[This is a guest post by Srujan Sangai.]
In an era increasingly defined by technological mediation and an expanding regulatory ambit of the State, the precise contours of individual fundamental rights, particularly the right to privacy, are subject to constant judicial examination. A judgment by the Madras High Court in Play Games 24×7 Private Limited and Ors. vs. State Of Tamil Nadu brings these tensions to the fore. The case, challenging Tamil Nadu’s online gaming regulations which included mandatory Aadhaar authentication for players and restrictions on gaming hours, was framed by the Court as a situation involving competing aspects of Article 21 rights – the individual’s right to privacy and autonomy versus the collective’s (and implicitly, the individual’s own) interest in health and well-being, which the State sought to protect, thus creating an internal conflict between right to privacy and right to health. The doctrine of balancing of rights is not new. It has been invoked by constitutional courts around the world to resolve disputes. However, the present case is not of competing fundamental rights, rather it is of conflict within the same fundamental right, i.e., Article 21. My argument in this article is that the court erred in formulating the conflict between rights, avoided applying proportionality analysis and ignored relevant precedents.
A False Dichotomy: Manufacturing an ‘Intra-Article 21’ Conflict
The fundamental right to privacy, firmly embedded within Article 21 of the Indian Constitution by the nine-judge bench in Puttaswamy (2017), is not merely a right to be left alone; it is the bedrock of individual dignity, personal autonomy, and the freedom to make essential life choices without undue State interference. Concurrently, the State has undeniable duties, often articulated through Directive Principles like Article 47, to safeguard public health and promote general welfare. However, in the present case, the court seems to create first, a false dichotomy and then oscillate in framing the issue. In paragraph 60, the Court explicitly frames the issue as an “intra-conflict between the same fundamental rights [Article 21] of different individuals,” citing ‘X’ v. Hospital ‘Z’ and discussing the balancing of Article 21 rights through ‘larger public interest’ or ‘greater community interest’. It is unclear which ‘different’ individuals the court is referring to here. One possible interpretation of an intra-Article 21 conflict would be to imply that one set of Article 21 rights (e.g., the community’s right to health and safety from gaming harms, or even a player’s own right to health from addiction) is being weighed against another aspect of Article 21 (e.g., a player’s right to privacy or autonomy).
This framing is not just a conceptual error; it is a maneuver that unlocks immense judicial discretion. As Nikhil Pratap notes, when rights balancing lacks a standard structure, there is a significant risk that a judge can “invoke a competing fundamental right in every rights challenge by showing that the state interest is connected to a fundamental right; even though, at the granular level, the law may not implicate the state interest.” By manufacturing a conflict between a player’s privacy and their own health, the court creates a space to prioritize one value over the other in what Pratap calls an “impressionistic fashion,” rather than rigorously assessing the State’s regulation against the individual’s established rights.
However, paragraph 63 shifts this focus to an inter-fundamental rights conflict between Article 19(1)(g) and Article 21. It begins by stating, “Article 19(1)(g) is subject to reasonable restrictions and the rights of the people at large must be balanced with the individual right to conduct trade. Article 19(1)(g) being a vital fundamental right cannot be used to deter the people’s right to life under Article 21”. Here, the conflict is explicitly identified as one between the petitioners’ (gaming companies’) right to trade under Article 19(1)(g) and “the people’s right to life under Article 21” (which the State seeks to protect). These two inquiries are quite different. In the first scenario (intra-conflict), the inferences are absurd – same individual holds both privacy and health rights, and there is no natural conflict – players can choose to protect both rights by not gaming. The perceived conflict, therefore, is artificially created by state regulation that forces a choice, which has to adjudicate on a proportionality analysis (which I will back to). The court assuming that within the intra-conflict sphere, the right to health has prevailed without a sufficient analysis. Based on this premise, the court proceeds to an inter-fundamental rights conflict between Article 19 and Article 21 concluding that “several reports surfacing on the negative effects that the online RMGs have on the physical, mental and financial aspects of a player” and thus the player’s right to health must be secured over gaming companies’ right to trade.
The precedent on which the court places reliance is X v. Hospital Z. In that case, there was a contestation between two different individuals with competing claims of right to fair trial v. right to privacy (within Article 21) which gave rise to a natural tension, where satisfying one person’s right necessarily violates another’s. In the present case, there is no natural conflict – players can choose to protect both rights by not gaming or by gaming responsibly. The state is not mediating a direct conflict between two private individuals’ fundamental rights. It is acting as a regulator, restricting the activities of one group (gaming companies and players) to prevent potential harm to a diffuse public (including the players themselves from self-harm).
Furthermore, X v. Z was also decided when right to privacy was not declared as a fundamental right in India. Even in other cases which concern competing claims of fundamental rights such as Asha Ranjan v. State of Bihar, the court held that “there can be two individuals both having legitimacy to claim or assert the right… when there is intra-conflict of the right conferred under the same Article, like fair trial in this case, the test that is required to be applied, we are disposed to think, it would be “paramount collective interest” or “sustenance of public confidence in the justice dispensation system”. The Madras HC has not cited Asha Ranjan even when the court has explicit laid down the test to be applied in cases of intra-conflict of fundamental rights. It is unclear if paramount collective interest is the same as public interest.
Sidestepping the Proportionality Test
Having misdiagnosed the nature of the conflict, the court then failed to apply the correct constitutional test. The primary constitutional lens for State restrictions on privacy and autonomy remains the doctrine of proportionality, as established in Puttaswamy (2017) and applied in the Puttaswamy (Aadhaar judgment 2018). Courts have used proportionality as a means to resolve conflict of competing rights. The test mandates that State measures infringing a right must be lawful, pursue a legitimate aim, be rationally connected, necessary (least intrusive), and strike a fair balance (proportionality stricto sensu).
The State’s duty to protect public health provides the ‘legitimate state aim.’ However, the means employed—mandatory Aadhaar or blank hours—require rigorous scrutiny under the necessity and balancing prongs. The Madras High Court’s reasoning does not, in my view, demonstrate this granular analysis for each restriction. Instead, it broadly appeals to compelling public interest. Assuming that the court preferences the positive right to health against the negative right to privacy, the relevant inquiry would have been if the state’s intrusion measures (blanket ban, Aadhar authentication) are proportionate or not. The SC in Puttaswamy II had carried out am inquiry of whether biometric program/authentication was a proportionate measure, when it dealt with a conflict between right to informational privacy and right to food. This avoidance of the proportionality test is the central flaw of the judgment, as it replaces a structured, uniform framework with unconstrained judicial discretion. The very purpose of the proportionality doctrine is to prevent rights-balancing from becoming, as Pratap warns, a tool for judges “to enforce their personal, policy, and political preference unconstrained by precedent.” Without this standard structure of judicial reasoning, any uniformity is lost, and “unreasoned decision-making is bound to occur.”
Furthermore, the judgment also grapples with the Article 19(1)(g) rights of the online gaming companies. The crucial question is whether the reasonable restrictions test under Article 19(6) (which itself incorporates elements of proportionality) was applied with the requisite rigor, or if it was subsumed under the generalized public interest justification used for the Article 21 claims. The judgment’s approach seems to conflate the distinct tests. Another striking point in the judgement is that it holds that “Puttaswamy’s case did not affirm for right to privacy as an absolute right. The character of the right was transformed into a fundamental right thereby immediately bringing within its fold the reasonable restrictions that is available to all other fundamental rights.”. A apparent flaw that can be seen is that right to privacy is a recognised fundamental right under Article 21 and it does not talk about reasonable restrictions. The inquiry of reasonable restrictions is limited to Article 19. The only restriction on Article 21 is through ‘procedure established by law’ which is different from reasonable restrictions. A coherent constitutional analysis would demand a separate and thorough application of the relevant tests for each right infringed.
Individual autonomy, as a central tenet of Article 21 (affirmed in Common Cause v. Union of India), means that “people have the right to make informed decisions about trade-offs affecting their own rights,” and the state cannot paternalistically override individual choice about personal rights balance. When individuals can choose not to provide Aadhaar (protecting privacy) or not to game (protecting health), and can make informed decisions about acceptable risks, the State’s intervention to dictate these choices becomes constitutionally suspect. The Madras High Court’s assertion that its regulatory approach “is not restricted to just paternalism but goes a step beyond in ensuring the physical, mental and financial well being of its citizens”, while acknowledging the State’s protective duties, must be critically assessed. A constitutional court, in its capacity as a guardian of liberty, should ensure that this duty to protect does not morph into an unrestrained power to dictate personal choices that fall within the sphere of individual autonomy, especially when less intrusive, liberty-preserving regulatory alternatives may exist. The failure to robustly defend this sphere of individual choice may reflect, what academic perspectives might describe as a less than powerful assertion of the court’s role in protecting fundamental rights against potentially overbroad State action.
Conclusion
By framing the issue primarily as a competing fundamental rights scenario and invoking the ‘larger public interest’ or ‘greater community interest’ principle from Hospital ‘Z’, the Madras High Court’s analysis has inadvertently diluted the stringent, multi-pronged proportionality test mandated by Puttaswamy for restrictions on fundamental rights (especially privacy). The core question was never whether the state could protect its citizens, but whether it could do so by bypassing established constitutional safeguards. In sidestepping the balancing mandated by Puttaswamy, the judgment sanctions a model of governance where the State’s duty to protect becomes a license for paternalistic control. It prioritizes a collective, state-defined notion of welfare over the individual’s right to make informed choices about their own life and risks. The ruling is a missed opportunity to affirm that the right to privacy is the bedrock of autonomy, demanding the highest level of judicial scrutiny when threatened.