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In Justice K.S. Puttaswamy (Retd.) vs Union of India, a nine-Judge Bench of the Supreme Court 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. The Court overruled the decision in M P Sharma to the extent that it holds that privacy is not protected, and overruled Kharak Singh to the extent that it held the same.
Is the right to privacy a fundamental right under the Indian Constitution?
Yes. The nine-Judge Bench 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. The decision in M P Sharma, which holds that privacy is not protected, stands overruled, and Kharak Singh is overruled to the extent that it holds the same. Privacy is not an absolute right, and several Judges said so.
Result: the reference is answered in four terms in the Order of the Court, signed by all nine Judges. Six opinions were delivered, and they agree on the answer.
Case Details
- Case number
- Writ Petition (Civil) No. 494 of 2012, heard with Transferred Cases (Civil) Nos. 151 and 152 of 2013 and other connected matters
- Diary number
- 35071/2012
- Date of judgment
- 24 August 2017
- Neutral citation
- 2017 INSC 801
- Bench
- Chief Justice J.S. Khehar, Justice J. Chelameswar, Justice S.A. Bobde, Justice R.K. Agrawal, Justice R.F. Nariman, Justice A.M. Sapre, Justice D.Y. Chandrachud, Justice S.K. Kaul and Justice S. Abdul Nazeer
- Judgment written by
- Dr Justice D.Y. Chandrachud for himself, Chief Justice Khehar, Justice Agrawal and Justice Nazeer. Justices Chelameswar, Bobde, Sapre, Nariman and Kaul wrote separate judgments
- Opinions
- Six opinions: one for four Judges and five separate opinions. A short Order of the Court is signed by all nine Judges
- Referred by
- Order dated 11 August 2015 of a three-Judge Bench, and order dated 18 July 2017 of a Constitution Bench
- Main laws
- Articles 14, 19 and 21 of the Constitution and the fundamental rights in Part III
- Status
- Reportable
Case Journey: How It Reached the Supreme Court
- 1Aadhaar challenge and first referenceA Bench of three judges notes in its order of 11 August 2015 that the Aadhaar scheme is challenged on the ground that it violates the right to privacy. The Attorney General says M P Sharma (eight judges) and Kharak Singh (six judges) put the right in doubt. The Bench notes an apparent unresolved contradiction in the law and says the question should be examined by a Bench of appropriate strength.
- 2Reference to nine JudgesOn 18 July 2017 a Constitution Bench headed by the Chief Justice considers it appropriate that the issue be resolved by a Bench of nine judges, and lists the matters before a nine-Judge Constitution Bench on 19 July 2017.
- 3Hearing before nine JudgesThe Bench hears senior counsel for the petitioners, for the Union of India and for several States. Some States support the Union and others support the petitioners.
- 4JudgmentOn 24 August 2017 the Court delivers six opinions and one Order of the Court signed by all nine Judges. It answers the reference in favour of a constitutionally protected right to privacy.
What Was the Case About?
The case began as a challenge to the Aadhaar card scheme of the Union Government. A Bench of three judges noted in its order of 11 August 2015 that the norms for and compilation of demographic and biometric data by the government were questioned on the ground that they violate the right to privacy. The Attorney General for India urged that the existence of a fundamental right to privacy was in doubt because of two decisions: M P Sharma vs Satish Chandra, decided by a Bench of eight judges, and Kharak Singh vs State of Uttar Pradesh, decided by a Bench of six judges. In his submission, each of them contained observations that the Indian Constitution does not specifically protect the right to privacy.
The petitioners answered that M P Sharma and Kharak Singh were founded on the view in A K Gopalan vs State of Madras, which treated each provision in the chapter on fundamental rights as a separate protection. They said an eleven-judge Bench had held in Rustom Cavasji Cooper vs Union of India that Gopalan is not good law, and that a seven-judge Bench in Maneka Gandhi vs Union of India had approved the minority view of Justice Subba Rao in Kharak Singh. The three-Judge Bench also took note of later decisions, Gobind vs State of Madhya Pradesh, R Rajagopal vs State of Tamil Nadu and PUCL vs Union of India, which held privacy to be a constitutionally protected right but were rendered by smaller Benches. It felt that institutional integrity and judicial discipline required a reference to a larger Bench.
On 18 July 2017 a Constitution Bench presided over by the Chief Justice decided that the issue must be heard by a Bench of nine judges and listed the matters for 19 July 2017. The nine Judges heard senior counsel for the petitioners, for the Union of India and for several States. Some State governments supported the Union and others supported the petitioners. The judgment is dated 24 August 2017.
M P Sharma arose from search warrants issued during an investigation under the Companies Act into a company in liquidation. The question was whether the searches contravened Article 20(3), the protection against self-incrimination. The Court held that a search and seizure does not infringe Article 20(3), and added that when the Constitution makers had not subjected the power of search and seizure to constitutional limitations by recognising a fundamental right to privacy analogous to the Fourth Amendment of the US Constitution, there was no justification to import it. In Kharak Singh the majority struck down Regulation 236(b) of the Uttar Pradesh Police Regulations, which provided for nightly domiciliary visits, but held that the right to privacy is not guaranteed by the Constitution.
The Union of India and some States argued that a statutory regime already protects privacy, so there is no need to read a constitutional right into the fundamental rights. They also argued that privacy is merely a common law right. The Attorney General argued that privacy is an elitist construct which must be forsaken in the interest of welfare entitlements. Counsel for the State of Gujarat argued that the requirement of a valid law under Article 21 is not conditioned by the notion of substantive due process.
Issues and What the Supreme Court Held
This table lists each question the Court dealt with, its answer in simple words, and the paragraph of the judgment where you can read it.
| Question | Court's answer | Paragraph |
|---|---|---|
| Does the Constitution protect the right to privacy? | Yes. 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. | Order para 2(iii), Part T para 3(C) |
| Does M P Sharma still hold that privacy is not protected? | No. The Order of the Court says the decision in M P Sharma, which holds that privacy is not protected by the Constitution, stands overruled. The opinion for four Judges says it is overruled to the extent that it indicates to the contrary, and that the controversy in M P Sharma was about Article 20(3), so its remarks on privacy were at the highest stray observations. | Order para 2(i), Part T para 1, Paras 24 to 26 |
| Does Kharak Singh still hold that privacy is not protected? | No. Kharak Singh is overruled to the extent that it holds that privacy is not protected. The opinion for four Judges says its first part, which struck down nightly domiciliary visits, implicitly recognises privacy. | Order para 2(ii), Part T para 2, Bobde J para 47(a), Nariman J para 94 |
| Is privacy a separate fundamental right or a part of existing rights? | Part of existing rights. The Order places privacy within Article 21 and within the freedoms of Part III. The opinion for four Judges says privacy was not couched as an independent fundamental right, and that this does not detract from the protection it has. | Order para 2(iii), Para 169, Bobde J para 47(b) |
| Is the right to privacy absolute? | No. Several Judges said privacy is not absolute and can be limited. The opinion for four Judges says a law that encroaches on it must withstand the touchstone of permissible restrictions on fundamental rights. | Part T para 3(H), Chelameswar J para 42, Nariman J para 86, Kaul J para 72 |
| What test must a law that invades privacy meet? | Depends on the opinion. The opinion for four Judges requires legality (a law), need (a legitimate state aim) and proportionality (a rational nexus between the objects and the means), and says this applies to all restraints on privacy. Justice Kaul sets a four-part test, and Justice Chelameswar, Justice Bobde and Justice Nariman state the limits in their own ways. | Para 180, Part T para 3(H), Chelameswar J paras 44 to 45, Bobde J paras 45 to 46, Nariman J para 86, Kaul J para 71 |
| Is statutory protection a reason to deny a constitutional right to privacy? | No. A statutory right can be changed by a simple enactment, while a constitutional right is placed beyond legislative majorities. Negating a constitutional right because a statute protects it inverts constitutional theory. | Paras 152 to 153 |
| Is privacy merely a common law right? | No. The fact that a right had common law protection does not bar its recognition as a constitutional right. | Para 158 |
| Is privacy an elitist construct that must give way to welfare entitlements? | No. The Court held that civil and political rights and socio-economic rights are complementary and not mutually exclusive, and that privacy is not a privilege for the few. | Paras 154 to 155, Para 157 |
| Is the Article 21 test the same as American substantive due process? | Not equated. The opinion for four Judges said it would be inappropriate to equate the power of a Constitutional Court in India to hear a substantive challenge to a law with the exercise of substantive due process under the US Constitution. | Para 159, Para 167 |
| Is informational privacy part of the right to privacy? | Yes. Informational privacy is a facet of the right to privacy. The Court commends to the Union Government the need to examine and put in place a robust data protection regime. | Para 170, Part T para 5, Kaul J paras 62 to 65 |
| Did the Court decide whether the Aadhaar scheme is valid? | Not decided. The judgment answers the reference. Justice Sapre said arguments attacking the Aadhaar scheme cannot be entertained in this reference, and Justice Nariman said the cases are sent back to the original three-Judge Bench for adjudication on merits. | Sapre J paras 39 to 41, Nariman J para 94 |
| Did the Court decide whether Section 377 is valid? | Not decided. The opinion for four Judges left the constitutional validity of Section 377 of the Indian Penal Code to be decided in an appropriate proceeding, because the challenge was pending before a larger Bench. | Para 128, Kaul J para 81 |
| Was ADM Jabalpur overruled? | Overruled. The opinion for four Judges and the opinion of Justice Nariman expressly overrule it, and Justice Kaul agrees with the express overruling. The Order of the Court does not mention it. | Para 121, Nariman J para 92, Kaul J para 82 |
The Court's Reasoning in Simple Words
A nine-Judge Bench held that privacy is protected under Article 21 and Part III. All nine Judges signed the Order of the Court. Justice Chandrachud wrote the opinion for four Judges (himself, Chief Justice Khehar, Justice Agrawal and Justice Nazeer), and five Judges wrote separate opinions. The Court overruled M P Sharma and Kharak Singh to the extent that they held privacy is not protected. It decided the reference and did not decide the Aadhaar challenge.
All nine Judges signed an Order of the Court that disposes of the reference in four terms. First, the decision in M P Sharma, which holds that the right to privacy is not protected by the Constitution, stands overruled. Second, the decision in Kharak Singh, to the extent that it holds that the right to privacy is not protected by the Constitution, stands overruled. Third, 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. Fourth, decisions after Kharak Singh which stated the position in the third term lay down the correct position in law. The Order records that Dr Justice D.Y. Chandrachud delivered the judgment for four Judges and that five other Judges delivered separate judgments.
In the opinion for four Judges, Justice Chandrachud held that M P Sharma and Kharak Singh took a position based on the view of the majority in Gopalan, and that this view stands abrogated by Cooper and Maneka. He said M P Sharma decided only a question under Article 20(3), and its remarks that the Constitution has no privacy guarantee like the Fourth Amendment were at the highest stray observations. He held that the first part of Kharak Singh, which invalidated nightly domiciliary visits on the ground that they violated ordered liberty, is an implicit recognition of the right to privacy. The second part, which holds that privacy is not a guaranteed right, is not reflective of the correct position. He added that decisions after Kharak Singh which upheld the right to privacy are to be read subject to the principles in his conclusions.
The opinion for four Judges says life and personal liberty are inalienable rights that are not creations of the Constitution, and that recognising a constitutional right of privacy is not an exercise in amending the Constitution, which is a function entrusted to Parliament. It describes privacy as the constitutional core of human dignity. It says privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation, and that it also connotes a right to be left alone. Privacy is not lost or surrendered merely because a person is in a public place. The opinion says the Court has not attempted an exhaustive list of what privacy includes, and that the Constitution must evolve with the felt necessities of time, including technological change.
Privacy is not an absolute right. The opinion for four Judges recognises, for instance in the context of data protection, legitimate aims of the State including protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits. It says that a law which encroaches on privacy must withstand the touchstone of permissible restrictions on fundamental rights. In the context of Article 21 an invasion of privacy must be justified by a law that stipulates a procedure which is fair, just and reasonable, and must meet a three-fold requirement: legality, which postulates the existence of law; need, defined in terms of a legitimate state aim; and proportionality, which ensures a rational nexus between the objects and the means adopted to achieve them. It also says privacy has a negative content, which restrains the State from intrusion, and a positive content, which obliges the State to take the measures needed to protect the privacy of the individual.
The other Judges state the limits in their own ways. Justice Chelameswar said he outlined the manner of limiting privacy only to indicate the direction of the debate, and that the just, fair and reasonable standard under Article 21 applies, with the standard of compelling State interest used only for privacy claims that deserve the strictest scrutiny. Justice Bobde said that, at a minimum, a law that interferes with privacy must be tested by the standards for a law that invades personal liberty under Article 21, and also by the tests of whichever other Part III guarantees the interference curtails. Justice Nariman said the right is subject to reasonable regulation to protect legitimate State interests or public interest, and that the tests of the Articles to which the right relates must be scrupulously followed. Justice Kaul set out a four-part test: the action must be sanctioned by law, must be necessary in a democratic society for a legitimate aim, must be proportionate to the need for the interference, and must come with procedural guarantees against abuse. On the content of the right, Justice Nariman said that in the Indian context privacy covers at least three aspects: privacy that involves the person, informational privacy, and the privacy of choice.
On the arguments of the Union and the States, the opinion for four Judges held that a statutory protection is no reason to deny a constitutional right, because a statutory right can be changed by a simple enactment while a constitutional right is placed beyond legislative majorities. It rejected the argument that privacy is an elitist construct and said that civil and political rights and socio-economic rights are complementary and not mutually exclusive. It also held that the fact that privacy had common law protection does not bar its recognition as a constitutional right. On substantive due process, it said it would be inappropriate to equate the power of a Constitutional Court in India to hear a substantive challenge to the validity of a law with substantive due process under the US Constitution.
The opinion for four Judges says informational privacy is a facet of the right to privacy and that dangers to privacy in an age of information can come from the State and from non-State actors. It commends to the Union Government the need to examine and put in place a robust data protection regime, and notes that the Union Government told the Court it had constituted a Committee chaired by Justice B N Srikrishna for this purpose. Justice Kaul wrote that the right to control personal data also covers the right to control one's existence on the internet, and that this is not an absolute right. He said the right to privacy is claimed against the State and non-State actors, and that recognition and enforcement of claims against non-State actors may require legislative intervention by the State.
The opinion for four Judges and the opinion of Justice Nariman expressly overrule ADM Jabalpur vs Shivakant Shukla, and Justice Kaul agrees with the express overruling. The opinion for four Judges also overrules Union of India vs Bhanudas Krishna Gawde, which followed ADM Jabalpur. The Order of the Court does not mention ADM Jabalpur. The opinion for four Judges also rejected the reasons that Suresh Kumar Koushal vs Naz Foundation gave for dismissing the privacy and dignity claims of LGBT persons, including that only a minuscule fraction of the population is affected and that there were few prosecutions. It said sexual orientation is an essential attribute of privacy, but it left the constitutional validity of Section 377 of the Indian Penal Code to be decided in an appropriate proceeding because the challenge was pending before a larger Bench. Justice Sapre made a general statement that a request to overrule other earlier decisions that were not referred to the Bench cannot be entertained in this reference. He does not name ADM Jabalpur.
- The Court does not decide whether the Aadhaar scheme is valid. It answers the questions referred to the nine-Judge Bench.
- The Court does not decide the constitutional validity of Section 377 of the Indian Penal Code. It leaves that to an appropriate proceeding.
- The Court does not list everything that privacy includes. The opinion for four Judges says the Court has not embarked on an exhaustive enumeration or catalogue of the entitlements and interests that privacy comprises.
- The Court does not frame a data protection law. It commends to the Union Government the need to examine and put in place a robust regime, and says this is a matter of policy for the Union Government.
- The Order of the Court does not mention ADM Jabalpur or Suresh Kumar Koushal. They are discussed in the opinions.
- The Judges do not all state the limits on privacy in the same way. The opinion for four Judges sets the three-fold test of legality, need and proportionality, and the other opinions state the limits differently. Justice Kaul's four-part test is the closest to it.
Who Wrote What: Nine Judges, Six Opinions
The judgment is long because each Judge or group of Judges wrote a separate opinion. The table shows who wrote each opinion, the main points it makes and the PDF pages where it sits.
| Judge or Judges | What the opinion says | PDF pages |
|---|---|---|
| Dr Justice D.Y. Chandrachud, for himself, Chief Justice Khehar, Justice R.K. Agrawal and Justice S. Abdul Nazeer | The longest opinion, divided into Parts A to T. It holds that privacy is protected under Article 21 and Part III, overrules M P Sharma and Kharak Singh to the extent stated, overrules ADM Jabalpur, rejects the reasons Koushal gave for dismissing the privacy and dignity claims, sets the three-fold test of legality, need and proportionality, and discusses informational privacy and data protection. | Pages 1 to 266 |
| Justice J. Chelameswar | Asks three questions: whether there is a fundamental right to privacy, where it is located and what its contours are. He agrees with the conclusions of his brothers and, to indicate the direction of the debate, says limits on privacy are tested by the just, fair and reasonable standard under Article 21, with compelling State interest reserved for claims that deserve the strictest scrutiny. | Pages 267 to 310 |
| Justice S.A. Bobde | Says privacy is inextricably bound up with all exercises of human liberty and is distributed across Part III. He says M P Sharma and the majority opinion in Kharak Singh stand overruled to the extent that they indicate otherwise, and that interference by the State must satisfy the tests of whichever Part III freedoms it curtails. | Pages 311 to 350 |
| Justice R.F. Nariman | Says the right to privacy covers at least three aspects: privacy of the person, informational privacy and privacy of choice. He expressly overrules the majority judgments in ADM Jabalpur and answers the reference in paragraph 94, adding that the later judgments recognising privacy do not need to be revisited and that the cases are sent back to the three-Judge Bench. | Pages 351 to 472 |
| Justice A.M. Sapre | Says he has nothing more useful to add to the reasoning and conclusion of his brothers and adds a few words of concurrence. He says privacy is not absolute and that the reference Court cannot go beyond the questions referred to it, and he declines to entertain requests to overrule other earlier decisions or to examine the Aadhaar scheme in this reference. | Pages 473 to 496 |
| Justice S.K. Kaul | Calls privacy a primal, natural right. He writes on privacy and technology and on informational privacy, including control over one's existence on the internet, sets a four-part test for State action, agrees that privacy cannot be denied because only a minuscule fraction of the population is affected, and agrees with the express overruling of ADM Jabalpur. | Pages 497 to 543 |
| Order of the Court, signed by all nine Judges | A short Order that records who delivered which judgment and disposes of the reference in four terms. | Pages 544 to 547 |
Final Order of the Supreme Court
- The decision in M P Sharma, which holds that the right to privacy is not protected by the Constitution, stands overruled.
- The decision in Kharak Singh, to the extent that it holds that the right to privacy is not protected by the Constitution, stands overruled.
- 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.
- Decisions after Kharak Singh which have enunciated the position in the third term lay down the correct position in law.
- The Order records that Dr Justice D.Y. Chandrachud delivered the judgment on behalf of Chief Justice Khehar, Justice R.K. Agrawal, Justice S. Abdul Nazeer and himself, and that Justice J. Chelameswar, Justice S.A. Bobde, Justice A.M. Sapre, Justice R.F. Nariman and Justice S.K. Kaul delivered separate judgments.
Laws, Rules and Cases in This Judgment
| Provision | What it deals with and how it features | Paragraph |
|---|---|---|
| Article 21 of the Constitution | The protection of life and personal liberty. The opinion for four Judges says privacy emerges primarily from this guarantee. | Part T para 3(C), Order para 2(iii) |
| Part III, including Articles 19 and 14 | Elements of privacy also arise in varying contexts from the other freedoms guaranteed by Part III. The opinion for four Judges says a legitimate state aim must fall within the zone of reasonableness mandated by Article 14, which guards against arbitrary state action. | Part T para 3(C), Para 180 |
| Article 20(3) of the Constitution | The protection against being compelled to be a witness against oneself. M P Sharma held that search and seizure does not infringe it. | Paras 8 to 9, Part T para 1 |
| Article 359 of the Constitution | As amended by the Forty-Fourth Amendment, the power of the President to suspend the right to move a Court during an emergency does not extend to Articles 20 and 21. | Para 123, Nariman J para 93 |
| Article 12 of the UDHR and Article 17 of the ICCPR | The opinion for four Judges relies on these international provisions on privacy as part of India's commitment to a global human rights regime, together with Article 51 of the Constitution. | Para 129 |
| Section 377 of the Indian Penal Code | Discussed through Koushal and the Delhi High Court decision in Naz Foundation. The Court left its constitutional validity to be decided in an appropriate proceeding. | Paras 124 to 128, Kaul J paras 80 to 81 |
| Section 8(1)(j) of the Right to Information Act, 2005 | Cited as an example of a statutory exemption that refers to information whose disclosure would cause an unwarranted invasion of privacy. | Para 153 |
| Protection of Human Rights Act, 1993 | Section 2(1)(d) defines human rights by reference to the International Covenants, which include the ICCPR. It features in the discussion of international commitments and in Justice Nariman's reasoning on ADM Jabalpur. | Para 129, Nariman J para 92 |
| Case | How it features | Paragraph |
|---|---|---|
| M P Sharma vs Satish Chandra, (1954) SCR 1077 | Eight-judge Bench decision on search and seizure under Article 20(3). The Court overruled it to the extent that it indicates that privacy is not protected. | Paras 8 to 9, Part T para 1, Order para 2(i) |
| Kharak Singh vs State of Uttar Pradesh, (1964) 1 SCR 332 | Six-judge Bench decision that struck down nightly domiciliary visits but held that privacy is not guaranteed. Overruled to the extent that it holds so. | Para 27, Part T para 2, Order para 2(ii) |
| A K Gopalan vs State of Madras, AIR 1950 SC 27 | Treated each fundamental right as a separate protection. The opinion for four Judges says the view it gave to M P Sharma and Kharak Singh stands abrogated. | Para 3, Para 24 |
| Rustom Cavasji Cooper vs Union of India, (1970) 1 SCC 248 | Eleven-judge Bench decision that held Gopalan is not good law. | Para 3, Para 21 |
| Maneka Gandhi vs Union of India, (1978) 1 SCC 248 | Seven-judge Bench decision that approved the minority view of Justice Subba Rao in Kharak Singh. | Para 3, Para 22 |
| Gobind vs State of Madhya Pradesh, (1975) 2 SCC 148 | One of the later, smaller-Bench decisions that held privacy to be a constitutionally protected right. | Para 4 |
| R Rajagopal vs State of Tamil Nadu, (1994) 6 SCC 632 | One of the later, smaller-Bench decisions that held privacy to be a constitutionally protected right. | Para 4 |
| PUCL vs Union of India, (1997) 1 SCC 301 | One of the later, smaller-Bench decisions that held privacy to be a constitutionally protected right. | Para 4 |
| ADM Jabalpur vs Shivakant Shukla, (1976) 2 SCC 521 | Decision on whether a Presidential order under Article 359(1) suspending the right to move any Court for the enforcement of Article 21 leaves detained persons without a remedy. Justice Nariman records that the majority held Article 21 to be the sole repository of the rights to life and personal liberty. Overruled in the opinion for four Judges and in Justice Nariman's opinion, with Justice Kaul agreeing. | Paras 118 to 123, Nariman J paras 91 to 93, Kaul J para 82 |
| Union of India vs Bhanudas Krishna Gawde, (1977) 1 SCC 834 | Followed ADM Jabalpur. Overruled by the opinion for four Judges. | Para 121 |
| I R Coelho vs State of Tamil Nadu, (2007) 2 SCC 1 | Took the view that ADM Jabalpur stood impliedly overruled. The opinion for four Judges says the Court now expressly does so. | Para 122 |
| Suresh Kumar Koushal vs Naz Foundation, (2014) 1 SCC 1 | Two-judge Bench decision on Section 377. The opinion for four Judges rejected the reasons it gave for dismissing the privacy and dignity claims of LGBT persons. | Paras 124 to 128, Kaul J paras 80 to 81 |
Key Points From This Judgment
- 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.
- M P Sharma and Kharak Singh are overruled to the extent that they hold that privacy is not protected by the Constitution.
- Privacy is not absolute. The opinion for four Judges says an invasion of privacy needs a law, a legitimate state aim and proportionality, and the other Judges state the limits in their own ways.
- Privacy includes personal intimacies, family life, marriage, procreation, the home and sexual orientation, and it is not lost merely because a person is in a public place.
- Informational privacy is a facet of privacy, and the Court commends to the Union Government the need for a robust data protection regime.
- A statutory protection does not take away the need for a constitutional right, and privacy is not an elitist construct.
- Three opinions overrule or agree with overruling ADM Jabalpur, while the Order of the Court does not mention it.
- Six opinions agree on the answer to the reference, but they differ in their reasoning and in the tests they set for limits on privacy.
Why This Judgment Matters
This judgment answers a question that was open for decades: whether the Constitution protects privacy. Because it overrules the contrary position in two earlier decisions of larger Benches, it is the authority on the point that privacy is a constitutionally protected right. The Court decided the reference and did not decide the challenge to the Aadhaar scheme or the validity of Section 377. The six opinions differ in their reasoning, so the separate opinions are worth reading together with the Order of the Court. This is a Reportable judgment of a nine-Judge Bench.
This page is useful for lawyers, judges, law students, journalists and anyone who wants to understand how the Supreme Court recognised privacy as a constitutional right.
Key Legal Terms Explained
- Reference
- A question sent by a smaller Bench to a larger Bench of the Court to be decided authoritatively.
- Overruled
- Set aside as wrong law by a later, larger or equal Bench.
- Informational privacy
- The right of a person to control how information about him or her is collected, used and shared.
- Proportionality
- A test that asks whether the means a law uses are proportionate to the aim it pursues.
- Concurring opinion
- A separate opinion by a Judge who agrees with the result but may give different reasons.
- Non-State actor
- A private person or company that is not part of the government.
- Domiciliary visit
- A visit by the police to a person's home, as in the nightly visits struck down in Kharak Singh.
- Substantive due process
- A doctrine from the US Constitution under which courts examine the content of a law and not just its procedure.
Read the Full Judgment
Read every paragraph and the final order on the official Supreme Court of India website.
This page explains the judgment in simple words. It is not legal advice. Please read the full judgment before you rely on it.
Frequently Asked Questions
What is the Puttaswamy case about?
It is about whether the Indian Constitution protects the right to privacy. The question reached a nine-Judge Bench through a challenge to the Aadhaar scheme, after the Union argued that M P Sharma and Kharak Singh had held that no such right exists.
How many Judges decided the Puttaswamy case?
Nine Judges: Chief Justice J.S. Khehar, Justice J. Chelameswar, Justice S.A. Bobde, Justice R.K. Agrawal, Justice R.F. Nariman, Justice A.M. Sapre, Justice D.Y. Chandrachud, Justice S.K. Kaul and Justice S. Abdul Nazeer. They delivered six opinions and signed one Order of the Court.
Is the right to privacy a fundamental right?
The Order of the Court says 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.
Which earlier decisions did the Court overrule on privacy?
M P Sharma, which holds that the right to privacy is not protected by the Constitution, and Kharak Singh, to the extent that it holds the same.
Is the right to privacy absolute?
No. The opinion for four Judges says privacy is not an absolute right, and Justice Chelameswar, Justice Nariman and Justice Kaul also say it has limits. The opinion for four Judges says a law that invades it needs legality, a legitimate state aim and proportionality.
What is the three-fold test in the Puttaswamy judgment?
The opinion for four Judges says an invasion of life or personal liberty must meet three requirements: legality, which means a law must exist; need, which means a legitimate state aim; and proportionality, which means a rational nexus between the objects and the means adopted.
Did the Court decide whether Aadhaar is valid?
No. The Court answered the reference on privacy. Justice Sapre said that arguments attacking the Aadhaar scheme could not be entertained in this reference, and Justice Nariman said the cases are sent back to the original three-Judge Bench for adjudication on merits in light of the judgment.
What did the Court say about Section 377?
The opinion for four Judges rejected the reasons that Suresh Kumar Koushal vs Naz Foundation gave for dismissing the privacy and dignity claims of LGBT persons and said sexual orientation is an essential attribute of privacy. It left the constitutional validity of Section 377 to be decided in an appropriate proceeding, because the challenge was pending before a larger Bench.
Was ADM Jabalpur overruled in this judgment?
Yes, in three opinions. The opinion for four Judges and the opinion of Justice Nariman expressly overrule it, and Justice Kaul agrees with the express overruling. The Order of the Court itself does not mention ADM Jabalpur.
Does the judgment protect privacy against private companies?
The opinion for four Judges says dangers to privacy can come from non-State actors as well as the State and asks the Union Government to examine a data protection regime. Justice Kaul says privacy is claimed against the State and non-State actors, and that enforcing claims against non-State actors may require legislation.
Did the Court look at the law of other countries?
Yes. The opinion for four Judges has a part on comparative law covering decisions in the United Kingdom, the US Supreme Court, South Africa, Canada, the European Convention on Human Rights and the European Charter, and the Inter-American Court of Human Rights.
Who wrote the Puttaswamy judgment?
Dr Justice D.Y. Chandrachud wrote the judgment for himself, Chief Justice Khehar, Justice R.K. Agrawal and Justice S. Abdul Nazeer. Justices Chelameswar, Bobde, Sapre, Nariman and Kaul wrote separate judgments.
Where can I read the full Puttaswamy judgment?
You can read it on the official Supreme Court of India website through the judgment PDF linked on this page. Its neutral citation is 2017 INSC 801 and the diary number is 35071/2012.
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