Facts In Brief
- In January, 2009, Aadhar scheme was launched by the Government in order
to create the world’s largest unique identification system. The Government of
India, initiated a project titled ‘Unique Identification for BPL Families
- In November 2012, Justice K.S. Puttaswamy (Retired) filed a petition in
the Supreme Court challenging the constitutionality of Aadhaar on the grounds
that it violates the right to privacy.
- The Petitioner argued before the nine-judge bench that this right was an
independent right, guaranteed by the right to life with dignity under
Article 21 of the Constitution. The Respondent submitted that the
Constitution only recognized personal liberties which incorporated the right
to privacy to a certain extent.
- The case came before a three judge Bench of the Court which, on 11
August 2015, ordered that the matter should be referred to a larger Bench of
- On 18 July 2017, a five judge Constitution Bench ordered the matter to
be heard by a nine judge Bench to determine whether there was a fundamental
right to privacy within the Constitution.
- The challenge was made before the nine-judge bench to determine whether
the right to privacy was guaranteed as an independent fundamental right
following conflicting decisions from other Supreme Court benches earlier.
The matter in hand was whether privacy is a right under article 21 of the
Constitution. This question arose in 2015 before a three-judge bench of the Apex
court considering Aadhar scheme to possess potential threat for an individual’s
data is a breach of right to life and personal liberty. But it was argued that
Right to privacy is not a part of Article 21 since the larger benches of the
court in the cases M.P. Sharma v. Satish Chandra
( 8 judge bench) and
Singh v. Uttar Pradesh
(6 judge bench) had refused to accept it in the purview
of Fundamental Rights. Consequently, the bench referred this matter to a
five-judge to ensure “institutional integrity and judicial discipline”
bench suggested forming even a larger bench as an eight-judge bench has already
decided on the matter and a nine-judge bench should be formed to articulate
authoritatively on the status of the right to privacy.
- Whether right to privacy is a Fundamental Right under Article 21 of
Part III of the Constitution of India, 1950.
- Whether the decision in M P Sharma v. Satish Chandra, District Magistrate,
Delhi & Kharak Singh v. State of U.P is correct in law.
Rule ( Ratio Dcedendi)
- The nine-judge bench of the Supreme Court unanimously recognized
that the Constitution guaranteed the right to privacy as an
intrinsic part of the right to life and personal liberty under
Article 21. The right to privacy was given the status of a
fundamental right subjected to certain restrictions as it is not
- No, all the judges unanimously overruled the law laid down in M.P. Sharma v.
Satish Chandra and Kharak Singh v. State of U.P.
In a historic landmark judgement by apex court the nine judges, judgement
spanning 547 pages, contains six opinions and a lot of interesting observations,
but the Ratio Dcedendi or the law laid down is a historic change and also shows
overreach of judiciary.
The leading judgment is a tour de force, given on behalf
of four judges by Dr D Y Chandrachud J in 266 pages. It deals, in detail, with
the Indian domestic case law on privacy and the nature of constitutional rights.
Thus, the operative part of the judgment, i.e. the binding part, is only the
order that has been signed by all nine judges, which is presented here in
- The eight-judge bench decision in M P Sharma (1954), which
held that the right to privacy is not protected by the
Constitution stands over-ruled;
- The Court’s subsequent decision in Kharak Singh (1962) also stands
over-ruled to the extent that it holds that the right to privacy is not
protected under the Constitution;
- The bench unanimously recognised Right to Privacy is protected as an
intrinsic part of the right to life and personal liberty under Article 21 and as
a part of the freedoms guaranteed by Part III of the Constitution and the right
is not an “absolute right” and
- The body of case law that developed subsequent to Kharak Singh,
recognizing the right to privacy, enunciated the correct position of law.
Law cannot remain static; it needs to update itself with changing times.
Fundamental rights were once described by the Supreme Court as:
into which each generation must pour its content in light of its
On the contrary it seems to spill over with a myriad right,
rather like a receptacle for pretty much everything that make life worth living.
The judgment of the Supreme Court in KS Puttaswamy v Union of India
enormous leap in the direction of setting men (and women) free.
It is a
resounding victory for civil liberties in India. The judgment comes from what is
arguably, the most powerful court in the world, an activist court that presides
over the destinies of a sixth of humankind. A bench of nine judges has finally
stamped out the brooding spectre of MP Sharma and Kharak Singh.
These were two
archaic judgments which the Court itself had put past itself over the last
several decades when it proceeded to recognise privacy in a myriad different
context from surveillance and telephone tapping, bank accounts and black money,
to matrimonial relationships and dietary choices. It was held in MP Sharma that
in absence of a provision like the Fourth Amendment to the US Constitution, a
right to privacy couldn’t be read into the Indian Constitution.
This position is
misleading and contrary in present times. The Court further reasoned that
privacy is not an absolute right, like other fundamental freedoms under Part
III. On page 264, Justice Chandrachud writes that a ‘law which encroaches upon
privacy will have to withstand the touchstone of permissible restrictions on
fundamental rights. Thus, in context of Article 21, an invasion of privacy must
be fulfilled on the basis of a law which stipulates a procedure which is fair,
just and reasonable.’ He further said that an invasion of life or personal
liberty must meet the following:
- legality, which postulates the existence of law;
- need, defined in terms of legitimate state aim; and
- proportionality which ensures a rational nexus between the objects and
the means adapted to achieve them.
This judgement takes privacy far beyond the confines of Article 21 and weaves it
into other fundamental rights such as the freedom of conscience, the freedom of
assembly and the freedom of occupation. Although in the past, the Supreme Court
had carved out the right to privacy from Article 21, (the Autoshankar case being
the most significant of these cases), never before has the right to privacy has
travelled so far outside the contours of Article 21 to touch other fundamental
Privacy has been described in Puttaswamy as a “travelling right”, a
necessity and a pre -condition for the exercise of other freedoms. In present
times, somewhat paradoxically, privacy is a pre-requisite of free speech. The
judgment in Puttaswamy recognizes the right to privacy against not just the
State but private parties as well The State is now under a duty to safeguard the
privacy rights of citizens not only against itself but also against non – state
actors who have built empires on economic espionage.
The judgement proceeds to
recognise several new facets of privacy that the Supreme Court might not have
had occasion to address before. For example, the judgment recognises the right
to publicity, the right of an individual to control the public portrayal of her
image and to control the commercial use of her identity, image or likeness. It
also recognises the right to be forgotten in the context of the digital world,
the right to erase information from the public domain that has become irrelevant
The present judgment has re-shaped the ambit of fundamental rights in Indian
constitutional history. The Indian judiciary has acted as a true guardian of
liberty. It has given the Indian government an opportunity to re-think its data
protection mechanism, both in light of individual privacy and the interests of
Relevance Of Case
The Puttaswamy judgment brings out a constitutional understanding of where
liberty places an individual in the context of a social order. In the forwarding
of understanding of constitutional law, the present case plays an important role
as it deals with the most sacrosanct part of our constitution that is
Fundamental Rights here we get to learn how the judges differing in their views
in judgements but the final outcome is the same and unanimously right to
privacy comes under the ambit of article 21.
Also as a law student after reading
the 547 page, it is clear that it will not lose its status amongst the Golden
Trinity Of Article i.e. Article 14, 19 and 21. It also provides new facets to do
research. Also apart from it it enriches our knowledge for better understanding
the interpretative power of judiciary with changing time as the Supreme Court of
India evolved itself in overruling and altering the judiciary’s jurisprudence.
COMMENTS (Personal Opinion)
As lawyer is recognized social engineers their tools, for engineering is the
laws and Acts which must be changed to cater the needs of the public with
changing times and this decision is on the same lines. This decision has been
recognised as being of great legal and political significance. The Opposition
Congress party leader said that it “will rank among the most important judgments
delivered by the Supreme Court since the advent of the constitution of India.”
The Hindustan Times commented that “The country could not have got a better
gift from the judiciary for its 70th year of independence”. It is a landmark
judgment in the realm of traditional as well as digital privacy. The opinions
though diverse in nature led to the same conclusion i.e. overruling all the
previous judgments and recognizing privacy as a fundamental right. The case
expands freedom of expression by recognizing privacy as an independently
enforceable right, as opposed to a right that is available only as far as it
impacts constitutionally guaranteed freedoms.
This provides for the protection
of freedom of expression by recognizing rights such as the right against
arbitrary, unregulated State surveillance, the right to express one’s sexual
orientation, religious expression and data protection. The Court considered
detailed arguments on the nature of fundamental rights, its constitutional
interpretation, the theoretical and philosophical bases of privacy and other
minute aspects before giving it the status of a fundamental right. The fact that
privacy is intact even when a person is in the public sphere truly justifies the
nature of our democracy.
A striking feature of this joint judgment is the
detailed treatment of issues of digital privacy which are of increasing
importance, both in India as well as internationally. Also, the judgment makes
it clear that the Indian Government is now concerned to establish an online data
protection regime to protect the privacy of the individual which is great as
India is lagging behind in online data privacy regime i.e. proper laws and
regulations regarding collection, preservation, and compliance of personal data
and related enforcement mechanisms.
The decision was given by a historic nine-judge bench of the Supreme Court.
Therefore, it establishes a binding precedent on all Courts, unless overruled by
a larger bench. It is also of wider significance because, by putting the right
to privacy at the heart of the constitutional debate in the world’s largest
democracy, it is likely to provide assistance and inspiration for privacy
campaigners around the world. In just a short span of two years the decision was
also citied and a pathway for one of the most audacious and the revolutionary
decision by the Indian judiciary the decriminalisation of homosexuality in case
of Navtej Singh Johar v. Union of India , and in other cases also.
A striking feature of the joint judgment is the detailed treatment of issues of
digital privacy which are of increasing importance both in India and
internationally. The judgment, while deciding the contours of privacy, very
interestingly refers to the fundamental notions of privacy depicted in
an article on ‘Typology of Privacy’. The diagram below, sourced from
the judgment, gives a lucid categorization of privacy rights.
As explained in the judgment, informational privacy reflects an interest in
preventing information about the self from being disseminated and controlling
the extent of access to information. The Court thus recognized information
privacy as a facet of the right to privacy and recommended that The government
of India should examine and put in place a robust mechanism for data protection.
This exercise is quite tricky because it would require a fair balance between
the rights of citizens and the state.
The six separate and concurring judgments in Justice K.S. Puttaswamy (Ret'd) and
Anr v. Union of India and Ors are trailblazing for their commitment to privacy
as a fundamental freedom and for the judges’ use of foreign law across
jurisdictions and spanning centuries. The decision by the apex court on the
vital issue about privacy now open the flood gates for the different matter to
be filed under the name of this facet as it is not explicitly mentioned in the
constitution but the court held it as a fundamental right by reading between the
lines in Article 21 as earlier also many other rights were covered under the
ambit of this Article.
With the recognition of privacy as a basic and
fundamental right of an individual, India definitely cannot lag behind. The
judgment of the Supreme Court is correct and true and with the growing
information technology, privacy needs to be a fundamental right. The judgment is
clear: privacy and human dignity are intrinsically linked. Privacy is new born
right of today’s era. Due to fast technological developments in the world, data
protection is the foremost duty of the government.
Further, thecase is likely to be of wider significance as privacy campaigners
use it to pursue the constitutional debate over privacy in other countries. The
present case widens the purview of freedom of expression by advocating privacy
as a natural right, as any opposition to this would infringe the fundamental
right of an individual which is backed by constitutional sanctions.
expand the scope of privacy regarding state surveillance, religious expression
and data protection. s this decision was given by a historic nine-judge bench of
the Apex courtTherefore, it established a binding precedent on all courts,
unless overruled by a larger bench. The real test of privacy will lie in how
subsequent Courts apply the Puttaswamy decision to determine these varied
- No person shall be deprived of his life or personal liberty except
according to procedure established by law
- 1954 A.I.R. 300
- A.I.R. 1295
- PUCL v Union of India (2003) 4 SCC 399
- AIR 2018 SC 4321
- Article 141, Constitution of India, 1950.