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(2017) 10 SCC 1, AIR 2017 SC 4161

JUSTICE K.S.
PUTTASWAMY
(RETD.) & ANR.
VS.
UNION OF INDIA
& ORS.
 2017

Case Status NOT The Supreme Court reaffirmed that the

OVERRULED right to privacy was a fundamental right
derived from life and personal liberty under
Article 21 and from Part III of the Constitution.
Case Type CIVIL WRIT This right is subject to reasonable restrictions.
PETITION
Constitutional ARTICLES
Provision(s)
14,19,21

Bench
Strength
9
JUDGES
1 plurality opinion by
Justice D.Y. Chandrachud on behalf of
Justice J.S. Khehar,
Justice R.K. Agarwal,
Number of
Opinion(s)
6/0
OPINIONS DISSENT
Justice S.A. Nazeer and himself,
1 concurring opinion by
Justice J. Chelameshwar,
1 concurring opinion by
Justice S.A. Bobde,
1 concurring opinion by
Justice R.F. Nariman,
1 concurring opinion by
Justice S.K. Kaul, and
1 concurring opinion by
Justice A.M. Sapre.
“ The right to privacy is inextricably bound up with all
exercises of human liberty – both as it is specifically
enumerated across Part III, and as it is guaranteed in the
residue under Article 21. It is distributed across the various
articles in Part III and, mutatis mutandis, takes the form
of whichever of their enjoyment its violation curtails.”

T
his case is the cornerstone of the ‘Right to Chandra, District Magistrate, Delhi ((1954) SCR
Privacy’ jurisprudence in India. The nine 1077), rendered by an eight Judge Bench, and
Judge Bench in this case unanimously Kharak Singh vs. State of Uttar Pradesh ((1964) 1 SCR
reaffirmed the right to privacy as a fundamental 332), rendered by a six Judge Bench. Both the
right under the Constitution of India. The Court cases, the State argued, contained observations
held that the right to privacy was integral to that the Constitution did not specifically protect
freedoms guaranteed across fundamental rights, the right to privacy as a fundamental right. At the
and was an intrinsic aspect of dignity, autonomy same time, several subsequent judgments over the
and liberty. years had recognised the right to privacy as a
fundamental right. However, these subsequent
The case began with the question of whether the decisions that affirmed the existence of the right to
right to privacy was a fundamental right, which privacy were rendered by benches of a smaller
was raised in 2015 in the arguments concerning strength than M.P. Sharma and Kharak Singh. Due
the legal validity of the Aadhaar database. The to issues relating to the precedential value of judg-
Attorney General appearing for the State argued ments and noting the far-reaching importance of
that the existence of the right to privacy as a the right to privacy, this case was referred to a nine
fundamental right was in doubt in view of the two Judge Bench of the Supreme Court.
decisions in the cases of M.P. Sharma vs. Satish

1
The Bench unanimously held that “the right to
privacy is protected as an intrinsic part of the right
to life and personal liberty under Article 21 and as against the existence of the fundamental right to
a part of the freedoms guaranteed by Part III of the privacy based on the judgments in M.P. Sharma
Constitution”. In doing so, it overruled previous and Kharak Singh. While addressing these
judgments of the Supreme Court in M.P. Sharma challenges, the three Judge Bench took note of
and Kharak Singh, insofar as the latter held that the several decisions of the Supreme Court in which
right to privacy was not recognised under the the right to privacy had been held to be a constitu-
Indian Constitution. tionally protected fundamental right. However,
these subsequent decisions which affirmed the
In addition to cementing the place of the right to existence of a constitutionally protected right of
privacy as a fundamental right, this case also laid privacy, were rendered by benches of a strength
down the need for the implementation of a new smaller than those in M.P. Sharma and Kharak
law relating to data privacy, expanded the scope Singh. The case was referred to a Constitution
of privacy in personal spaces, and discussed Bench to scrutinize the precedents laid down in
privacy as an intrinsic value. M.P. Sharma and Kharak Singh and the correctness
of the subsequent decisions. On 18 July 2017,
Facts a Constitution Bench considered it appropriate
that the issue be resolved by a bench of
This case was initiated through a petition filed by nine judges.
Justice K.S. Puttaswamy, a retired judge of the
Karnataka High Court in relation to the Aadhaar Issue
Project, which was spearheaded by the Unique
Identification Authority of India (UIDAI). The A) Whether the right to privacy was a fundamen-
Aadhaar number was a 12-digit identification tal right under Part III of the Constitution of
number issued by the UIDAI to the residents of India.
India. The Aadhaar project was linked with sever-
al welfare schemes, with a view to streamline the Arguments
process of service delivery and remove false bene-
ficiaries. The petition filed by Justice Puttaswamy The Respondents mainly relied upon the judg-
was a case which sought to challenge the constitu- ments in the cases of M.P. Sharma, as well as the
tional validity of the Aadhaar card scheme. case of Kharak Singh, which had observed that the
Over time, other petitions challenging different Constitution did not specifically protect the right
aspects of Aadhaar were also referred to the to privacy. The judgments were pronounced by an
Supreme Court. eight Judge and a six Judge Bench respectively,
and the Respondents argued that they would
In 2015, before a three Judge Bench of the Court, therefore be binding over the judgments of small-
the norms for, and compilation of, demographic er benches given subsequently. The Respondents
biometric data by the government were ques- further argued that the makers of the Constitution
tioned on the grounds of violation of the right to did not intend to make the right to privacy a
privacy. The Attorney General of India argued fundamental right.

2
 Decision

The Supreme Court, through six separate opin-

On the other hand, the submission of the Petition- ions, pronounced privacy to be a distinct and
ers was that M.P. Sharma and Kharak Singh were independent fundamental right under Article 21
founded on principles expounded in A.K. Gopalan of the Constitution. The crux of the decision
vs. State of Madras (1950 SCR 88). The Petitioners spelled out an expansive interpretation of the
argued that A.K. Gopalan, which construed each right to privacy - it was not a narrow right against
provision contained in the Chapter on fundamen- physical invasion, or a derivative right under
tal rights as embodying a distinct protection, was Article 21, but one that covered the body and
held not to be good law by an eleven Judge Bench mind, including decisions, choices, information
in Rustom Cavasji Cooper vs. Union of India ((1970) 1 and freedom. Privacy was held to be an overarch-
SCC 248). Hence, the Petitioners submitted that ing right of Part III of the Constitution which was
the basis of the two earlier decisions was not valid. enforceable and multifaceted. Details regarding
It was also urged that in the seven Judge Bench the scope of the right were discussed in the
decision in Maneka Gandhi vs. Union of India ((1978) multiple opinions.
1 SCC 248), the minority judgment of Justice
Subba Rao in Kharak Singh was specifically The Court overruled the judgments in M.P.
approved while the decision of the majority Sharma, and Kharak Singh, insofar as the latter held
was overruled. that the right to privacy was not a fundamental
right. With respect to M.P. Sharma, the Court held
In addition to this, other arguments made during that the judgment was valid for maintaining that
the hearing dealt with the scope of the right to the Indian Constitution did not contain any limit
privacy. The Petitioners argued for a multi-dimen- to the laws on search and seizure analogous to the
sional model of privacy as a fundamental right, Fourth Amendment in the United States Constitu-
while the Respondents stated that the right to tion. However, the Court held that the Fourth
privacy was an ambiguous concept and could Amendment was not an exhaustive concept of
only be crystallized as a statutory and common privacy and an absence of a comparable protec-
law right. tion in the Constitution did not imply that there
was no inherent right to privacy in India at all –
The Petitioners argued that the Constitution and therefore the conclusion in M.P. Sharma was
would have to be read in line with the Preamble, overruled. The Court rejected the insular view of
while keeping in mind that privacy was a natural personal liberty (“ordered liberty”) adopted by
right, and an international human right. The Kharak Singh, which Justice D.Y. Chandrachud
Respondents advocated for a narrow approach referred to as the “silos” approach borrowed from
which focused on the Constitution as the reposito- A.K. Gopalan. The Court observed that this
ry of fundamental rights and the Parliament as approach of viewing fundamental rights in
the only body which had the powers to modify water-tight compartments was abrogated after
the same. Maneka Gandhi. The Court further observed that

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the majority opinion in Kharak Singh suffered from Justice S.K Kaul added a fourth prong to this test
an internal contradiction, as there was no legal which mandated “procedural guarantees against
basis to have struck down domiciliary visits and abuse of such interference”.
police surveillance on any ground other than
privacy – a right which they referred to in theory At the same time, Justice J. Chelameswar held that
but held not to be a part of the Constitution. The the standard of “compelling state interest” was
Court also held that the decisions subsequent to only to be used in privacy claims which deserve
Kharak Singh upholding the right to privacy were “strict scrutiny”. As for other privacy claims, he
to be read subject to the principles laid down in held that the just, fair and reasonable standard
the judgment. under Article 21 would apply. According to his
judgment, the application of the “compelling state
The Court also analysed the affirmative case for interest” standard would depend on the context of
whether the right to privacy was protected under the case.
the right to life, personal liberty and the freedoms
guaranteed under Part III of the Constitution. The The Court also emphasised the fact that sexual
Bench established that privacy was “not an elitist orientation was an essential facet of privacy. It
construct”. It rejected the argument of the Attor- further discussed the negative and positive
ney General that the right to privacy must be content of the right to privacy, where the State
forsaken in the interest of welfare entitlements was not only restrained from committing an
provided by the state. intrusion upon the right but was also obligated to
take necessary measures to protect the privacy of
Significantly, while holding that the right to an individual.
privacy was not absolute in nature, the judgment
also gave an overview of the standard of judicial The judgment held informational privacy to be a
review that must be applied in cases of intrusion part of the right to privacy. The Court while
by the State in the privacy of an individual. It held noting the need for a data protection law left it
that the right to privacy may be restricted where in the domain of Parliament to legislate on
such invasion meets the three-fold requirement of the subject.
i) legality, which postulates the existence of law;
ii) need, defined in terms of a legitimate state
aim; and
iii) proportionality which ensures a rational nexus
between the objects and the means adopted to
achieve them.