Justice K.S. Puttaswamy ( Retd ) v.

union of India (2004) 6 SCC 235

Facts

This case was initiated through a petition filed by Justice K.S. Puttaswamy, a retired judge of
the Karnataka High Court in relation to the Aadhaar Project, which was spearheaded by the
Unique Identification Authority of India (UIDAI). The Aadhaar number was a 12-digit
identification number issued by the UIDAI to the residents of India. The Aadhaar project was
linked with several welfare schemes, with a view to streamline the process of service delivery
and remove false beneficiaries. The petition filed by Justice Puttaswamy was a case which
sought to challenge the constitutional validity of the Aadhaar card scheme. Over time, other
petitions challenging different aspects of Aadhaar were also referred to the Supreme Court.

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 Kharak Singh.
While addressing these challenges, 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 right. 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. The case was referred to a
Constitution Bench to scrutinize the precedents laid down in M.P. Sharma and Kharak
Singh and the correctness of the subsequent decisions. On 18 July 2017, a Constitution Bench
considered it appropriate that the issue be resolved by a bench of nine judges. 
 

Issue

A. Whether the right to privacy was a fundamental right under Part III of the Constitution of
India.
 

Arguments

The Respondents mainly relied upon the judgments in the cases of M.P. Sharma, as well as
the case of Kharak Singh, which had observed that the Constitution did not specifically
protect the right to privacy. The judgments were pronounced by an eight Judge and a six
Judge Bench respectively, and the Respondents argued that they would therefore be binding
over the judgments of smaller benches given subsequently. The Respondents further argued
that the makers of the Constitution did not intend to make the right to privacy a fundamental
right.
On the other hand, the submission of the Petitioners was that M.P. Sharma and Kharak
Singh were founded on principles expounded in A.K. Gopalan vs. State of Madras (1950 SCR
88). The Petitioners argued that A.K. Gopalan,which construed each provision contained in
the Chapter on fundamental rights as embodying a distinct protection, was held not to be
good law by an eleven Judge Bench in Rustom Cavasji Cooper vs. Union of India ((1970) 1
SCC 248). Hence, the Petitioners submitted that the basis of the two earlier decisions was not
valid. It was also urged that in the seven Judge Bench decision in Maneka Gandhi vs. Union
of India ((1978) 1 SCC 248), the minority judgment of Justice Subba Rao in Kharak
Singh was specifically approved while the decision of the majority was overruled. 
In addition to this, other arguments made during the hearing dealt with the scope of the right
to privacy. The Petitioners argued for a multi-dimensional model of privacy as a fundamental
right, while the Respondents stated that the right to privacy was an ambiguous concept and
could only be crystallized as a statutory and common law right.

The Petitioners argued that the Constitution would have to be read in line with the Preamble,
while keeping in mind that privacy was a natural right, and an international human right. The
Respondents advocated for a narrow approach which focused on the Constitution as the
repository of fundamental rights and the Parliament as the only body which had the powers to
modify the same. 

HELD

The Supreme Court, through six separate opinions, pronounced privacy to be a distinct and
independent fundamental right under Article 21 of the Constitution. The crux of the decision
spelled out an expansive interpretation of the right to privacy - it was not a narrow right
against physical invasion, or a derivative right under Article 21, but one that covered the
body and mind, including decisions, choices, information and freedom. Privacy was held to
be an overarching right of Part III of the Constitution which was enforceable and
multifaceted. Details regarding the scope of the right were discussed in the multiple opinions.
 he Court overruled the judgments in M.P. Sharma, and Kharak Singh, insofar as the latter
held that the right to privacy was not a fundamental right. With respect to M.P. Sharma, the
Court held that the judgment was valid for maintaining that the Indian Constitution did not
contain any limit to the laws on search and seizure analogous to the Fourth Amendment in the
United States Constitution. However, the Court held that the Fourth Amendment was not an
exhaustive concept of privacy and an absence of a comparable protection in the Constitution
did not imply that there was no inherent right to privacy in India at all – and therefore the
conclusion in M.P. Sharma was overruled. The Court rejected the insular view of personal
liberty (“ordered liberty”) adopted by Kharak Singh, which Justice D.Y. Chandrachud
referred to as the “silos” approach borrowed from A.K. Gopalan. The Court observed that this
approach of viewing fundamental rights in water-tight compartments was abrogated
after Maneka Gandhi. The Court further observed that he majority opinion in Kharak
Singh suffered from an internal contradiction, as there was no legal basis to have struck down
domiciliary visits and police surveillance on any ground other than privacy – a right which
they referred to in theory but held not to be a part of the Constitution. The Court also held
that the decisions subsequent to Kharak Singh upholding the right to privacy were to be read
subject to the principles laid down in the judgment. 
The Court also analysed the affirmative case for whether the right to privacy was protected
under the right to life, personal liberty and the freedoms guaranteed under Part III of the
Constitution. The Bench established that privacy was “not an elitist construct”. It rejected the
argument of the Attorney General that the right to privacy must be forsaken in the interest of
welfare entitlements provided by the state. 

Significantly, while holding that the right to privacy was not absolute in nature, the judgment
also gave an overview of the standard of judicial review that must be applied in cases of
intrusion by the State in the privacy of an individual. It held that the right to privacy may be
restricted where such invasion meets the three-fold requirement of 

A. legality, which postulates the existence of law;

B. need, defined in terms of a legitimate state aim; and
C. proportionality which ensures a rational nexus between the objects and the means adopted to
achieve them.
Justice S.K Kaul added a fourth prong to this test which mandated “procedural guarantees
against abuse of such interference”.
At the same time, Justice J. Chelameswar held that the standard of “compelling state interest”
was only to be used in privacy claims which deserve “strict scrutiny”. As for other privacy
claims, he held that the just, fair and reasonable standard under Article 21 would apply.
According to his judgment, the application of the “compelling state interest” standard would
depend on the context of the case. 

The Court also emphasised the fact that sexual orientation was an essential facet of privacy. It
further discussed the negative and positive content of the right to privacy, where the State
was not only restrained from committing an intrusion upon the right but was also obligated to
take necessary measures to protect the privacy of an individual.

The judgment held informational privacy to be a part of the right to privacy. The Court while
noting the need for a data protection law left it in the domain of Parliament to legislate on the
subject.