Privacy is fundamental to human being and there are various aspects of privacy
such as privacy of space, privacy of body, privacy of information, privacy of
choice which has been evolved over time. And in today's digital era there is
greater need to protect this right. The Constitution of India does not
specifically guarantee a right to privacy, however through various judgments
over the years the Courts of the country have interpreted the other rights in
the Constitution to be giving rise to a limited right to privacy - primarily
through Article 21 - the right to life and liberty.
Until the year 2017, privacy
was not given the status of fundamental right as the Constitution does not
explicitly guarantee it and because of the conflicting opinions of the
courts. The right to privacy is now an intrinsic part of the right to life and
personal liberty under Article 21 of the Constitution of India after (Retd)
Justice K.S. Puttaswamy and Anr. v Union of India
and Ors. This case is
Popularly known as the Aadhaar Case. In this paper the author tries to analyse
the Hon'ble Supreme Court's privacy judgment which was delivered on August 24,
Details Of The Case
- Citation: Writ Petition (Civil) No 494 of 2012; (2017) 10 SCC 1; AIR 2017
- Case Type: Civil Writ Petition
- Decided on: August 24, 2017
- Case Holding: The right to Privacy is protected under Articles 14, 19
and 21 of the Constitution of India
- The privacy verdict is given by the bench of 9 judges — J.S. Khehar, J.
Chelameswar, S.A. Bobde, R.K. Agrawal, R.F. Nariman, A.M. Sapre, Dr. D.Y.
Chandrachud, S.K. Kaul and S.A. Nazeer.
On 24th August 2017, a nine-judge bench of the Supreme Court in Justice K.S.
Puttaswamy (Retd.) and Anr. v Union of India and Ors. passed a historic
judgment affirming the constitutional right to privacy. It declared privacy to
be an integral part Article 21 of Part III of the Constitution of India. The
case began with the question of whether the right to privacy was a fundamental
right, which was raised in 2015 in the arguments concerning the legal validity
of the Aadhaar database before a three Judge Bench.
The State argued that the
existence of the right to privacy as a fundamental right was in doubt in view of
the two decisions in the cases of M.P. Sharma v Satish Chandra
Magistrate, Delhi, rendered by an eight Judge Bench, and Kharak Singh v State
of Uttar Pradesh
, rendered by a six Judge Bench. At the same time, several
subsequent judgments over the years had recognised the right to privacy as a
fundamental right. However, these subsequent decisions that affirmed the
existence of the right to privacy were rendered by benches of a smaller strength
than M.P. Sharma and Kharak Singh.
Due to issues relating to the precedential
value of judgments and noting the far-reaching importance of the right to
privacy, this case was referred to a nine Judge Bench of the Supreme Court. 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 a part
of the freedoms guaranteed by Part III of the Constitution". In doing so, it
overruled previous judgments of the Supreme Court in M.P. Sharma and Kharak
Background Of The Case
Aadhaar is the national identity project introduced by the Government of India
in 2011 and a new agency, UIDAI was also established. Under this scheme,
biometric data such as finger print, retina scan and facial scan of Indian
residents are collected and a unique identification number will be provided to
them. These data were stored in a central server. The object of this scheme was
to make public services efficient and to curb corruption.
The Government made Aadhaar mandatory to avail several welfare schemes such as public distribution
system, mid-day meal scheme etc. A petition was filed by Justice K.S. Puttaswamy,
a retired judge of the Karnataka High Court which sought to challenge the
constitutional validity of the Aadhaar card scheme. He challenged the Aadhaar
Programme for infringing upon rights guaranteed by the Constitution.
contended that Aadhaar violates the right to privacy. He expressed concern over
(i) the ability of private entities to request Aadhaar authentication and (ii)
the lack of checks on the power of the government to use the biometric data
collected. He argued that entitlements granted to individuals by the State's
social sector schemes are themselves a fundamental right and cannot be
restricted by the Aadhaar ID.
Over time, other petitions challenging different
aspects of Aadhaar were also referred to the Supreme Court. After filing this
writ petition, a series of orders were passed. The Aadhaar Act was passed in
2016. In course of time the government makes mandatory linking to Aadhaar to pan
mobile number, admission to school and even filing of IT returns by amending
PMLA and IT Act. The petitioners then filed another writ petition challenging
the vires of the Act. This writ petition was then merged with the previous one
and was treated as one writ petition. During the span of 2012 to 2018 nearly 11
petitions were filed regarding the issue of Aadhaar.
Facts Of The Case
The petition filed by Justice Puttaswamy was a case which sought to challenge
the constitutional validity of the Aadhaar card scheme. In 2015, before a three
Judge Bench of the Court, the norms for, and compilation of, demographic
biometric data by the government were questioned on the grounds of violation of
the right to privacy. The Attorney General of India argued against the existence
of the fundamental right to privacy based on the judgments in M.P. Sharma and
The Two Cases That Casted Doubt
- M.P. Sharma v Satish Chandra, District Magistrate, Delhi, rendered by an
eight Judge Bench. In writ petitions before the Supreme Court, the
Constitutional validity of the searches was challenged on the grounds that they
violated their fundamental rights under Article 19(1) (f) and 20 (3) -
protection against self-incrimination. The eight - bench judge of the Supreme
Court held that the drafters of the Constitution did not intent to subject the
power of search and seizure to a fundamental right of privacy.
- Kharak Singh v State of Uttar Pradesh, rendered by a six Judge
Bench. After nine years, in Kharak Singh v. State of Uttar Pradesh majority of
the Judges participating in the decision again rejected the right to privacy
held that, "our Constitution does not in terms confer any like constitutional
guarantee". But minority opinion of Justice Subba Rao in Kharak Singh case was
in favour of privacy. He held "It is true our Constitution does not expressly
declare a right to privacy as a fundamental right, but the said right is an
essential ingredient of personal liberty." The right to privacy was invoked in
this case to challenge the surveillance of an accused person by the police.
Thus, it is clear that before 1975, the right to privacy is not expressly
recognized by the larger benches of the Supreme Court. Over the next 40 years,
the interpretation and scope of privacy as a right expanded, and was accepted by
smaller benches of the Supreme Court as being constitutional in subsequent
judgments. While addressing these challenges in the instant case, the three
Judge Bench took note of several decisions of the Supreme Court in which the
right to privacy had been held to be a constitutionally protected fundamental
Privacy As A Fundamental Right - Decisions Of Smaller Benches
- In Gobind v State of Madhya Pradesh, three judge Bench upheld the
existence of a fundamental right to privacy for the first time. The right
was not absolute and could be interfered with by a procedure established by
- Maneka Gandhi v Union of India
- Unni Krishnan J.P and Ors. v State of Andhra Pradesh And Ors.
- R. Rajagopal v State of Tamil Nadu
- Peoples Union for Civil Liberties v Union of India (Telephone
However, these subsequent decisions which affirmed the existence of a
constitutionally protected right of privacy, were rendered by benches of a
strength smaller than those in M.P. Sharma and Kharak Singh. Consequently, this
bench referred the matter to a five-judge Constitution bench to ensure
"institutional integrity and judicial discipline". On 18 July 2017, a
Constitution Bench considered it appropriate that the issue be resolved by a
bench of nine judges.
The bench was set up not to not look into the
constitutional validity of Aadhaar, but to consider a much larger question:
whether right to privacy is a fundamental right and can be traced in the rights
to life and personal liberty? A Nine - Judge Bench of the Supreme Court
delivered a unanimous verdict in Justice K.S. Puttaswamy vs. Union of India and
others, affirming that the Constitution of India guarantees to each individual a
fundamental right to privacy. Although unanimous, the verdict saw six separate
concurring decisions. Justice Chandrachud authored the decision speaking for
himself, Justices Khehar and R.K. Agarwal and Abdul Nazeer.
The remaining 5
judges each wrote individual concurring judgments. This Bench did not decide the
fate of Aadhaar but only the nature and status of right to privacy under the
Constitution. It does not comment on whether the government's demand for Aadhaar
to be linked to all financial transactions amounts to an infringement of
privacy. The Bench asserted that such decision will be taken by smaller bench of
the Supreme Court ie. 5 Judge Bench.
- Whether the Aadhaar Project has a propensity to create a surveillance
state and is thus unconstitutional based on this ground
- Whether the Aadhaar Project violates the right to privacy of the citizens and
is unconstitutional based on this ground?
- Whether Section 7 and 8 of the Aadhaar Act also includes children?
- Whether the Aadhaar Act can be treated as a 'Money Bill' within the meaning
of Article 110 of the Indian Constitution?
- Whether Section 139AA of the Income Tax Act, 1961 violates the right to
privacy of the citizens under the Indian Constitution?
- Whether Rule 9(a) of the Prevention of Money Laundering (Maintenance of
Records) Rules, 2005 and the notifications issued thereafter, which mandate
linking of Aadhaar with bank accounts, are valid under the Indian Constitution?
- Whether Circular dated March 23, 2017, issued by the Department of
Telecommunications which mandates the linking of the mobile number of the
citizens with Aadhaar is illegal and unconstitutional?
- Whether certain actions which were taken by the respondents are in
contravention of the interim orders passed by the Court?
- Whether the following provisions and Regulations of the Aadhaar Act are
- Sections 2(c) and 2(d) read with Section 32;
- Sections 2(c) and 2(d) read with Section 32;
- Section 2(h) read with Section 10 of the Act- Central Identities Data
- Section 2(v), Section 3, Section 5, Section 6, Section 8, Section 9;
- Sections 11 to 23;
- Sections 23 and 54;
- Section 23(2)(g) read with Chapter VI & VII;
- Section 29, Section 33, Section 47, Section 48, Section 57, Section 59
Issue Regarding Privacy
Whether the Right to Privacy was a fundamental right under Part III of the
Constitution of India?
Reading The Puttaswamy Judgment
The judgment dated August 24, 2017, spanning 547 pages, contains six opinions
and a lot of interesting observations. At the outset, however, it is important
to note that only the majority opinion in a judgment is binding on future cases.
In this case, Chandrachud J. wrote the plurality opinion, on behalf of four
judges (Kehar C.J., Agrawal J., Nazeer J., and himself), while the remaining
five judges (Nariman J., Kaul J., Bobde J., Sapre J., and Chelameswar J.) wrote
Thus, while Justice Chandrachud's opinion is the
"plurality" opinion, it does not constitute the majority, since it has not been
signed by a total of five or more judges. Similarly, the concurring opinions
too, are not binding and do not constitute 'precedent' for future cases.
the operative part of the judgment, i.e. the binding part, is only the order
that has been signed by all nine judges, which holds:
- 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 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 body of case law that developed subsequent to Kharak Singh,
recognizing the right to privacy, enunciated the correct position of law.
Multiple Views On Privacy
Writing the plurality opinion, Chandrachud J., holds that the right to privacy
is not independent of the other freedoms guaranteed by Part III of the
Constitution. It is an element of human dignity and is an inalienable natural
right. He focuses on the informational aspect of privacy, its connection with
human dignity and autonomy, and rejects the argument that privacy is an elitist
During the course of his opinion, Chandrachud J. makes several
observations about privacy in the digital economy, dangers of data mining,
positive obligations on the State, and the need for a data protection law. He
also raises an important point about the negative and positive elements of
privacy. The former restricts the State from unfairly interfering in the privacy
of individuals, while the latter obliges it to put in place a legislative
framework to restrict others from doing so.
Chelameswar J. on the other hand, grounds the right to privacy, as comprising of
three facets, namely repose (freedom from unwarranted stimuli), sanctuary
(protection from intrusive observation) and intimate decision (autonomy to make
personal life decisions).
Nariman J. too endorses Gary Bostwick's conceptual understanding of privacy as
encompassing "repose, sanctuary, and intimate decision". He gives further
content to the right by classifying it into three categories: (1) that which
involves invasion by the State into a person's physical body, (2) information
privacy which captures unauthorised uses of personal information, and (3)
privacy of choice, or "individual autonomy over fundamental personal choices".
For Bobde J., fundamental rights have two aspects - first, to restrict
legislative powers and second, to provide the conditions for the development and
dignity of individuals. Thus, similar to Chandrachud J., he recognizes both the
positive and negative aspects of enforcing fundamental rights, although he is
clear that fundamental rights claims (as opposed to other laws) fall squarely on
Kaul J., on the other hand, recognizes the claims of privacy against the State
and non-State actors. In respect of the State, he identifies concerns of
surveillance and profiling, whereas, in respect of non-State actors, he
emphasizes on the impact of technology, in the form of pervasive data
generation, collection, and use in a digital economy. Kaul J. also elaborates on
the influence of big data, in particular, its impact on the actions of an
individual and the resultant chilling effect it may have on free speech and
expression. He thus observes the need to protect certain information from both
the State as well as private actors.
Finally, Sapre J. focuses his opinion on the importance of the Preamble to the
Constitution, and the principles of liberty, dignity, and fraternity enshrined
Tests For Infringement Of Privacy
It is held that the fundamental right to privacy is not absolute and will always
be subject to reasonable restrictions. The Supreme Court accepted that privacy
forms an integral part of "personal liberty" under Article 21 of the
Constitution, which cannot be denied except through a "procedure established by
The Supreme Court has clarified this to mean that the procedure prescribed
by law must necessarily be "just, fair and reasonable". The State can impose
restrictions on the right to privacy to protect legitimate State interests but
it can only do so by following the three-pronged test summarized below:
- Existence of a law that justifies an encroachment on privacy
- A legitimate State aim or need that ensures that the nature or the
content of this law falls within the zone of reasonableness and operates to
guard against arbitrary State action; and
- The means adopted by the State are proportional to the objects and needs
sought to be fulfilled by the law.
Fate Of Aadhaar
On 17th January 2018, the hearing of Aadhaar Case was started in Supreme Court.
Constitutionality of Aadhaar Act was decided by a Five Judge Bench on
26th September 2018. Bench consists of Justice D. Misra, Justice D.Y.
Chandrachud, Justice A Bhushan, Justice AM Khanwilkar and Justice A Sikri. A 4:1
majority upheld the Aadhaar Act as constitutional but struck down certain
It held that the Act does not create a surveillance State and,
further, that it has the potential to empower the marginalized by facilitating
the disbursal of State subsidies and benefits. The Supreme Court held Aadhaar
card to be valid but struck down certain provisions such as mandatory linking of
Aadhaar with mobile number and bank accounts and making Aadhaar mandatory for
school admissions and competitive exams.
It struck certain sections such as
allowing of data sharing on the ground of national security. Sikri J authored
the majority opinion on behalf of now ret'd Misra CJI, Khanwilkar J and
himself. Bhushan J concurred and Chandrachud J dissented.
The question of whether right to privacy is a fundamental right first raised in
the year 1955. The court took more than 60 yrs to decide that right to privacy
is a fundamental right. The Court's broad interpretation of the right to privacy
has paved the way for a wide range of claims. While the exact boundaries of the
right will continue to develop on a case by case basis, it is clear that privacy
claims will often have to be weighed against other competing interests.
absence of a defined hierarchy among the various rights guaranteed under Part
III of the Constitution, the decision in each case will vary based on facts at
hand and the judicial interpretation. In fact, a PIL was filed before the Delhi
High Court that the restitution of conjugal rights provision in the Hindu
Marriage Act and Special Marriage Act is violative of the right to privacy. The
real test of privacy will lie in how subsequent Courts apply the Puttaswamy
decision to determine these varied questions.
Right to privacy is now a fundamental right envisaged under Article 21 of the
Constitution of India. It protects an individual from the scrutiny of the State
in their home, of their movements and over their reproductive choices, choice of
partners, food habits, etc. Therefore, any action by the State that results in
an infringement of the right to privacy is subject to judicial review.
judgment in Puttaswamy's case
also calls for the Government to create a data
protection regime to protect the privacy of the individual. By expressly recognising an individual's right to privacy regarding his sexual choices, the
judgement had an impact on the decriminalisation of homosexuality and
decriminalization of Adultery in India. To the extent that the judgment has
stated that the State cannot interfere in the food choices of an individual it
had an impact on the various cases protesting the ban on beef imposed by certain
- Constitution of India, 1950
- Indian Penal Code, 1860
- Universal Declaration of Human Rights, 1948
- The Aadhaar (Targeted Delivery of Financial and Other Subsidies,
Benefits and Services) Act, 2016
- Justice K.S.Puttaswamy (Retd) vs Union Of India And Ors. on 24 August,
- Justice K.S.Puttaswamy (Retd) vs Union Of India on 26 September, 2018
- Alok Prasanna Kumar, The Puttaswamy Judgment Exploring Privacy Within
and Without, LII EPW 34 (2017).
- Anurag Bhaskar, Key Highlights of Justice Chandrachud's Judgment in the
Right to Privacy Case, THE WIRE (Jan. 10, 2022, 9.00 PM)
- Bhandari, V., et al. An Analysis of Puttaswamy: The Supreme Court's
Privacy Verdict. 11 IndraStra Global 1 (2017).
- Menaka Guruswamy, Justice K.S. Puttaswamy (Ret'd) and Anr v. Union of India
and Ors, Writ Petition (Civil) No. 494 of 2012, 111 The American Journal of
International Law 994 (2017).
- Ritansha Lakshmi, Case Summary: Justice K.S puttaswamy (Retd.) vs. Union of
India, 2017, LAWLEX.ORG (Jan. 10, 2022, 9.30 PM)
- Sahaj Karan Singh, Case Comments: Aadhaar Card Verdict by Supreme Court
K.S. Puttuswami V. Union of India - (2017) 10 SCC 1, 6 PENACCLAIMS 1 (2019).
- Shefalika Narain, Aftermath of the Puttaswamy Judgement: Reproductive
Rights in India, 9 Vivekananda Journal of Research 1 (2020).
- Vrinda Bhandari and Renuka Sane, Protecting Citizens from the State Post
Puttaswamy: Analysing the Privacy Implications of the Justice Srikrishna
Committee Report and The Data Protection Bill, 2018, Published in Articles
section of www.manupatra.com.
- Justice K.S. Puttaswamy (Retd.) and Anr. v Union of India and Ors.
(2017) 10 SCC 1; AIR 2017 SC 4161
- M.P. Sharma v Satish Chandra, District Magistrate, Delhi (1954) SCR 1077.
- Kharak Singh v State of Uttar Pradesh (1964) 1 SCR 332.
- Article 21 states that No person shall be deprived of his life or
personal liberty except according to a procedure established by law.
- M.P. Sharma v Satish Chandra, District Magistrate, Delhi, (1954) SCR 1077.
- Kharak Singh v State of Uttar Pradesh, (1964) 1 SCR 332.
- Gobind v State of Madhya Pradesh, AIR 1975 SC 1378.
- Maneka Gandhi v Union of India, AIR 1978 SC 597.
- Unni Krishnan J.P and Ors. v State of Andhra Pradesh And Ors., 1993 AIR
- R. Rajagopal v State of Tamil Nadu, 1995 AIR 264.
- Peoples Union for Civil Liberties v Union of India, AIR 1997 SC 568.