Fundamental Right to Privacy

Justice K. S. Puttaswamy v. Union of India

PART I

Judgement of the Supreme Court in Plain English (I)

On 24th August, 2017 a 9 Judge Bench of the Supreme Court delivered a unanimous verdict
in Justice K.S. Puttaswamy vs. Union of India and other connected matters, affirming that the
Constitution of India guarantees to each individual a fundamental right to privacy. Although
unanimous, the verdict saw 6 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.
 
The conclusion arrived at by the Bench in the concurring judgments records the plurality of
opinions and the various facets of privacy that have made their way into the reasoning. The first
of the two-part series examines the decision authored by Justice Chandrachud, along with those
of Chelameshwar and Bobde JJ.
 

Chandrachud J. 

 The doctrinal foundation of the right to privacy in India rests on the trilogy
of decisions in M.P. Sharma vs. Satish Chandra, Kharak Singh vs.
State of U.P. and Govind vs State of  Maharashtra. Of these, the decision
in M.P. Sharma does not adjudicate on constitutional protection of a
privacy right. Further, Kharak Singh, while rightly acknowledging that
‘life’ under Article 21 is not a right to “animal existence”, suffers from an
internal inconsistency that where on the one hand the regulation permitting
domiciliary visits was struck down on the rationale of privacy without
expressly using the term, on the other it recorded the absence of
constitutional protection of privacy. These two contradicting views cannot
co-exist and the two decisions, to the extent that they hold that the
Constitution of India does not protect privacy, are overruled.
 Fundamental rights emanate from basic notions of liberty and dignity.
Although Article 19 expansively enumerates some facets of liberty, this
does not denude Article 21 of its wide scope and ambit. Privacy is
a concomitant of an individual’s right to exercise control over his own
personality and finds its origin in the notion that certain natural or inherent
rights are inseparable from the human personality. Like other rights in Part
III of the Constitution, privacy too cannot be an absolute right and its
 violation must, in addition to the test of due process and procedure
established by law, also factor in legitimate State interests.
 The right to privacy imposes on the State a duty to protect the privacy of
an individual, corresponding to the liability that is to be incurred by the
state for intruding the right to life and personal liberty. The right to life
and liberty are inalienable to human existence – not bounties granted by
the state, nor creations of the Constitution. No civilized state can
contemplate an encroachment upon them without the authority of
law. ADM Jabalpur vs, S.S. Shukla is overruled to the extent that it held
that the aforesaid rights may be surrendered in an emergency.
 Judicial recognition of the constitutional protection of a privacy right does
not in any manner amount to usurpation of a legislative function, as the
right is not independent of the liberties guaranteed under Part III and
emerges from the concepts of liberty and dignity alluded to in the
Preamble.
 Privacy recognises the ability of individuals to control vital aspects of their
lives and safeguards the autonomy exercised by them in decisions of
personal intimacies, matters of home and marriage, the sanctity of family
life and sexual orientation, all of which are at the core of privacy.
 The Constitution must evolve to meet the aspirations and challenges of the
present and the future. In an age where information technology governs
virtually every aspect of our lives, the Courts must impart meaning to the
concept of individual liberty, particularly where an overarching presence
of State and non-State entities regulates aspects of social existence which
bear upon the freedom of an individual. Every individual irrespective of
social or economic status is entitled to the intimacy and autonomy which
privacy protects.

Chelameshwar J.

 Among basic rights conferred on individuals by the Constitution as a

shield against excesses by the State, some rights are at the core of human
existence. Thus, they are granted the status of fundamental, inalienable
rights essential to enjoy liberty. Liberty is the freedom of an individual to
do what he pleases and the exercise of that freedom would be meaningless
in the absence of privacy.
 M.P. Sharma is not an authority for the absolute proposition that the
Constitution does not protect a privacy right, for such is not the ratio of the
case.
 The right to privacy incorporates three aspects: repose, sanctuary and
intimate decision. Each of this is essential to the liberty of an individual
and finds resonance in the freedoms guaranteed under Part III. A liberal
democracy safeguards certain core human values and freedoms against
 unqualified intrusion by the State. Fundamental rights are detriments to
state’s interference with the liberty of an individual of which privacy is an
essential ingredient.
 Like all fundamental rights, privacy too has its limitations. There must be
identified depending upon the nature of privacy interest claimed. Courts
must be guided by the standard of just, fair and reasonable legislation as
applicable to Article 21. The strictest scrutiny standard of compelling State
interest must be used.

Bobde J.

 Natural rights protect those moral interests which are inherent to human
beings. The innate dignity and autonomy of the individual are two such
universally affirmed and safeguarded moral values. Privacy being
intimately connected to the two eminently qualifies as a natural,
inalienable right. It must be elevated to the status of a fundamental right
and granted constitutional protection irrespective of whether it is legal or
common law right. Privacy has the nature of being both a common law
right as well as a fundamental right. Its content, in both forms, is identical.
The difference is that as a fundamental right it is available against state
action, while common law right operates horizontally between individuals.
 The right to be let alone, to seclude oneself from intrusions of any manner,
is essential to privacy. Every individual is entitled to a state of repose.
Liberty and privacy are integrally connected in a way that privacy is often
the basic condition necessary to exercise personal liberty.
 Privacy is as inalienable as the right to perform any constitutionally
permissible act and constitutes the springboard for the exercise of the
freedoms guaranteed by Part III and can thus be located in Part III as a
whole.
 Only after acknowledging that the right of privacy is a fundamental right,
can we consider how it affects the plenary powers of the state. There is no
warrant to assume a privacy right is an absolute right which cannot be
reasonably restricted.
 Individuals avail their right to privacy by exercising the liberty granted to
them under the Constitution while specifically including or excluding
certain individuals or entities from the performance of such act of
freedom. Consequently, privacy also entails negative autonomy to not do a
specific act.
 “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.” Consequently an act
of the State violating the right must satisfy the test of the applicable
 Article apart from the test of being fair, just and reasonable under Article
21.

Fundamental Right to Privacy

Justice K. S. Puttaswamy v. Union of India
PART II

Judgement of the Supreme Court in Plain English (II)

On 24th August, 2017 a 9 Judge Bench of the Supreme Court delivered a unanimous verdict
in Justice K.S. Puttaswamy vs. Union of India and other connected matters, affirming that the
Constitution of India guarantees to each individual a fundamental right to privacy. Although
unanimous, the verdict saw 6 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.
 
The conclusion arrived at by the Bench in the concurring judgments records the plurality of
opinions and the various facets of privacy that have made their way into the reasoning. The first
of the two-part series examines the decision authored by Justice Chandrachud, along with those
of Chelameshwar and Bobde JJ.
 
This post is the second in a two-part series and records the decisions rendered
by Nariman J., Sapre J. and S. K. Kaul J.
 

Nariman J.

 The three great dissents of Fazl Ali J. in A.K. Gopalan, Subba Rao J.

in Kharak Singh,  and Khanna J. in ADM Jabalpur indicate the true
meaning of Article 21. The dissenting opinion of Subba Rao J. in
particular has a direct bearing on privacy. It records that the right to life
and personal liberty under Article 21 includes the right to be free from
encroachments in private life, and even in the absence of an express right
to privacy in the Constitution, it is an essential ingredient of personal
liberty.
 The decision in M.P Sharma is confined to Article 20(3) and whether or
not the Fourth Amendment, the American equivalent of a Constitutional
privacy right, could be imported to the same. The ratio here cannot be read
to mean that  a fundamental right to privacy is not available in Part III of
the Constitution. Further, the decision was delivered at a time when
 fundamental rights were being read disjunctively in water tight
compartments contrary to the position post the decision in Maneka
Gandhi. The ratio in  M.P. Sharma cannot be the guiding principle to
ground a privacy right in Part III. Further, the contradictory views of the
majority decision in Kharak Singh lead to an internal inconsistency. The
decision cannot be given the value of a binding precedent on the question
of a privacy right and subsequent Supreme Court decisions recognising a
privacy right need not be revisited.
 The content of fundamental rights expands to keep pace with human
activity and a perusal of the Constituent Assembly Debates would show
that the framers of the Constitution aimed to create an organic document
the interpretation of which could be evolved with time. Thus, privacy must
be debated in the present day context of technological advancement.
 The amorphous, multifaceted nature of privacy cannot be a deterrent to its
constitutional protection. Even though it may be impossible to encompass
all the contours of privacy, the right can be classified as inclusive of
interests pertaining to the physical realm and the mind.
 Privacy right is an inalienable fundamental right and though not absolute,
is a multifaceted freedom which may be traced to Article 21 either in itself
or in conjunction with other liberties depending on the interest claimed
and the right would, therefore, be developed on a case to case basis.
 It is only after the privacy right has been recognised can the legitimate
state interests that would reasonably restrict the same be determined and
such interests themselves cannot be a reason to altogether deny
constitutional protection of an individual’s right against intrusion. A
privacy claim over the physical body of a person or dissemination of
personal information would have to be balanced on test of reasonable
prescribed for the freedom under which such interest is claimed.
 Privacy in the Indian context would include protection of an individual’s
physical person against intrusion; Informational privacy and control over
dissemination of information; and privacy of choice or autonomy if
personal decisions.
 The argument that privacy and liberty are interchangeable cannot be
accepted for privacy begins where liberty ends. The cardinal value of
fraternity and the dignity of an individual encompasses the capacity of an
individual to develop his/her personality and the same can only be done
when the autonomy over personal choices is protected.

Sapre J.

 Dignity in the Preamble implies State’s obligation to secure the autonomy

of self-development for every individual while respecting their
personality. Further, Liberty, Equality and Fraternity must be read in
 juxtaposition so as to fully realise the scope and ambit of rights under Part
III.
 The right to privacy is an inherent, inalienable and multifaceted right of an
individual enabling the enjoyment of a meaningful life with dignity and
must be recognised and cherished in every society governed by Rule of
Law. It emanates from Articles 21 and 19 as well as the Preamble.
 However, this right is subject to reasonable restrictions which the State is
entitled to impose by law, to protect social, moral and compelling public
interest.

S. K. Kaul J.
 The Constitution is an organic document that embodies a set of eternal,
undefinable values. It must be interpreted to incorporate civil liberties of
the past, present and future. Core constitutional concepts of liberty,
equality, and dignity are abstract notions that manifest differently with
time and must be interpreted contextually.
 “The right of privacy is a fundamental right. It is a right which protects
the inner sphere of the individual from interference from both State, and
non-State actors and allows the individuals to make autonomous life
choices.”
 Privacy is not merely a common law right. It is an important core of any
individual existence. It is an inherent right that entitles an individual to
protect one’s personality, individuality, and dignity.
 Technological advancement has not only enhanced the scope of pervasive
behaviour by the State, but also made privacy considerably vulnerable to
intrusion by non-State actors. In a digital society where the informational
security of an individual is at an enhanced risk of violation through
surveillance, profiling and data collection, a balance must be struck
between legitimate State interests of national security and the privacy of
an individual.
 Further, access to personal information without any regulation of usage
arms State and non-State actors with power over an individual, which in
the case of the former may be utilised to curb dissent, thus striking at the
very root of democracy.
 The hallmark of freedom in a democracy is the individuals’ autonomy. A
privacy right entails the right to control dissemination of personal
information enabling the individual to safeguard their personality and
dignity.
 The State must put forth a regime of data protection that balances
legitimate state interests and an individual’s privacy concerns, with
 consent of the individual being the guiding principle for collection and
usage of data.
 Fundamental rights do not adhere to a majoritarian concept. Merely
because a minuscule fraction of the population would bear the impact is
not reason enough to deny a right. It is in this context that the sexual
autonomy of an individual must be understood as an attribute of privacy.