A Live Controversy, Not a Recap: Why Puttaswamy Is Being Tested Again

Recently, India witnessed a strong student-led protest against the paper leaks in the prestigious National Eligibility-cum-Entrance Test (NEET), which is a national level entrance test for admission into medical colleges. The protest spanned across many cities and police personnels were deployed for maintenance of peace and order at the protest sites. The police vans in Delhi were reportedly equipped with face recognition and biometric surveillance systems. The Hon’ble Supreme Court of India agreed to hear the writ petition against the actions of Delhi Police to deploy automated systems to identify protestors at Jantar Mantar, one of the main protest sites in Delhi. The issue explicitly becomes a matter concerning the constitutional right to privacy and the Digital Personal Data Protection Act, 2023. The Indian standards of privacy law have been guarded by the landmark ruling of Justice K.S. Puttaswamy (Retd.) v. Union of India.It is a judgment that grounded privacy not merely in “personal liberty” but in dignity, autonomy, and “constitutional morality” utilising the doctrine of transformative constitutionalism.

It is constitutional moralitythat streamlined the jurisprudential analysis, paving the path for Puttaswamy. However, it involves indispensable interpretive work. On the contrary, it has been believed that dignity and autonomy are freestanding moral premises of the Constitution, not an interpretive endeavour. In similar lines, Puttaswamy also treated privacy as an attribute intimately connected to the “universally affirmed” values of dignity and autonomy. Puttaswamy established in the case that privacy is intrinsic to life and personal liberty under Article 21 by overruling prior rulings such as M.P. Sharma and Kharak Singh,which had not recognised privacy as an independent facet of personal liberty. The historical results show that privacy was first grounded in liberty and the jurisprudential aspect of constitutional morality arrived later, linking it to Art. 21. This shows that constitutional morality functions less in isolation and rather servesas a gateway for future claims to be read into the ambit of Article 21 of the Constitution.

This choice of moral vocabulary over textual interpretation of “life and liberty” creates a pattern of judgements which are generalised in nature in the direction of the right to life. The finest example of overuse can be found in the Navtej Singh Johar judgment that decriminalised consensual same-sex relations by reading down Section 377 of the Indian Penal Code. This demonstrates that constitutional morality could prevail over social morality. This turned Ambedkar’s institutional vision of supremacy of constitutional method over social sentiments into a doctrinal machine. The courts have increasingly treated morality language as an independent anchor in determining rights without any reference to or understanding of the textual origin and the original purpose of the relevant constitutional provision. When left unexamined, constitutional morality acts as a judicial template that can ground an expansive range of rights even where the underlying textual and interpretive basis remains underdeveloped.

This background provides an insight to two competing accounts of Puttaswamy. One, which recognises a liberty-based model, which reads privacy as an incident of personal liberty under Article 21. While, the other which grounds privacy independently in constitutional morality, dignity, and autonomy. This blog examines how semantic originalism would have disciplined the derivation of privacy rights and how surveillance cases reveal the costs of transformative constitutionalism’s overreach.

Semantic Originalism and the Ordering of Constitutional Reasoning

The other aspect of the story, semantic originalism, fixes the meanings and interpretations of the constitutional text to its original public meaning of the text. It strictly bounds subsequent construction of moral interpretations and elaborations to that original meaning, prohibiting a moral interpretation from substituting for the original textual meaning. Applying semantic originalism, the blog proposes the following three-step interpretive discipline. First, it anchors the analysis in the phrase “life and personal liberty,” asking how a reasonably informed reader in 1950 and the Constitution’s framers would have understood its meaning. Second, the various rights being formulated and associated with life and liberty, such as privacy, would be considered as an incident of that right, not as an autonomous, freestanding right sitting beside it. Third, it would only then treat constitutional morality as a secondary interpretive glossary. This would not only help in creating rights with bounds to respect other freedoms but also would never allow a freshly created right or an interpretation to supersede the source from which the right itself is generated.

The current provision and constitutional interpretation of transformative constitution anchor on moral desirability toward liberty. Rather, the correct and viable approach should be liberty-anchored, with dignity as confirmation. This would also create a logical solution to current issues of interpretation where justifications often stay in question. A semantic approach would justify a right through the textual sources, rather than searching for textual sources to justify the moral interpretation. This change in doctrinal approach would also provide a viable test to verify and identify rights under Article 21, where the test is understanding how liberty is understood and interpreted within a case rather than inviting courts to ask at each new frontier, what liberty and dignity are in a case. This would curb a surplus of mere moral judgements and justifications by providing a point of stability. This approach of semantic originalism would also create a point of stability, restricting radical application of transformative constitutionalism.

Where the Two Theories Diverge: Facial Surveillance and the Limits of Liberty-Incident Reasoning

The debate surrounding whether the interpretation method should be based on semantic originalism or transformative constitutionalism is subjective. Yet, if we distinguish between state-mandated disclosure and state-imposed silence, we find that the Jantar Mantar case is conceptually narrower than general information privacy, centring on state-mandated disclosure rather than state-imposed silence. A demonstration participant passing a series of facial-recognition cameras developing an immutable biometric record of his presence is more than just “seen”; they are forced into the pages of a government book to fulfil the conditions for his assembly. Additionally, there are serious concerns about the technology’s veracity and reliability. A report by Indian Express revealed that the Delhi Police’s facial recognition system falsely flagged 25 individuals as present at the Jantar Mantar protests despite records showing they were in jail.

Semantic originalism helps settle this issue completely through the means of liberty-related reasoning; it is enough to prove that compulsory biometric enrolment violates personal liberty in its straightforward legal sense that courts have already used to defend the right to movement and association against arbitrary licensing practices. Nevertheless, the boundary does exist, and a true understanding compels one to mention it. A positive right, such as the right to algorithmic “analytical opacity,” which prevents the creation of a profile from the various bits of legitimately collected information or the right to the cessation of certain data being stored according to the DPDP Rules of 2025, is viable under the dignity principle of transformative constitutionalism. However, the liberty-incident theory struggles to justify such a positive entitlement, since it presupposes only a duty on the state to refrain from interfering with citizens, not an affirmative duty to act on their behalf. This is a structural limitation that must be squarely acknowledged: any liberty-based defence of such rights would require reframing the theory to accommodate affirmative state obligations, not merely negative restraint. The above-mentioned reframe to recast the state’s role from mere restraint to affirmative action would allow the liberty-incident theory to accommodate this kind of positive right.

Doctrinal Portability as a probable resolution

The reason for noting the distinction between liberty-based and morality-based reasoning is not just an academic interest but rather the portability of doctrines. A privacy doctrine with its source in individual freedom is likely to facilitate data surveillance practices compared to one based on morality.  This is due to the fact that whereas the former will have clearly defined limits based on the definition of “personal freedom”, the meaning of the latter term will change according to the views of the judges on cultural concepts of dignity. As India undergoes different stages in the enforcement of the data protection laws, the Constitutional validity of the laws will come into question. Adopting a morality-based Puttaswamy model would imbue the courts with the rhetorical power and flexibility that would allow them to object to a wide range of data practices. In the case of a liberty-based Puttaswamy model, the courts would need to identify and assess coercion on the part of government authorities.

This argument is not an ideological one. Predictability and judicial restraint are neutral constitutional values that protect individual liberties from present and future government overreach. From this viewpoint, semantic originalism is actually favourable to protecting privacy. The argument is not that Puttaswamy was wrongly decided; it is that it went beyond the textual requirements of Article 21, a doctrine that brings costs of its own. Semantic originalism would accept privacy, but its location on the constitutional hierarchy would be different from what the majority finds. As the Jantar Mantar facial-recognition episode and the DPDP Rules reveal, the real issue is not between originalism and privacy but a constitutional specification of what privacy is and how it should be prioritised.