Right To Privacy By Mitali Singh At LEXCLIQ

On 24 August 2017, the Supreme Court of India in a historic judgement declared the right to privacy as a fundamental right protected under the Indian Constitution. In declaring that this right stems from the fundamental right to life and liberty, the Court’s decision has far-reaching consequences.

A nine-judge bench of the Supreme Court in the case of Puttuswamy v. Union of India has declared that the right to privacy is a fundamental right protected under Part III of the Constitution of India. While primarily focused on the individual’s right against the State for violations of their privacy, this landmark judgement will have repercussions across both State and non-State actors and will likely result in the enactment of a comprehensive law on privacy.


The judgement was pronounced in response to a reference made in connection with the legal challenge to India’s national identity project – Aadhaar – during which the Advocate General of India argued that the Indian Constitution does not include within it a fundamental right to privacy. His arguments were based on two cases decided by the Supreme Court – one, MP Sharma v. Satish Chandra decided by an eight judge bench in 1954 and the other, Kharak Singh v. State of Uttar Pradesh, by six judges in 1962. Both cases had held, in different circumstances, that the Constitution of India does not specifically protect the right to privacy. In the 55 years that have passed since these cases were decided, there hasn’t been a larger bench of Supreme Court that has considered this issue, and therefore these judgements were still binding.

MP Sharma dealt with the right against self-incrimination and, while it did mention the right to privacy in passing, it was clear that these comments were stray observations at best. Kharak Singh was a confusing decision that held, on the one hand, that any intrusion into a person’s home is a violation of liberty (relying on a US judgement on the right to privacy), but went on to say that there was no right to privacy contained in our Constitution. Since these were eight and six judge benches of the Supreme Court, every subsequent court had to deal with this confusion as best they could.

The key points of the judgement are summarized below:

(a) Right to Privacy – A Fundamental Right

The Supreme Court confirmed that the right to privacy is a fundamental right that does not need to be separately articulated but can be derived from Articles 14, 19 and 21 of the Constitution of India. It is a natural right that subsists as an integral part to the right to life and liberty. It is a fundamental and inalienable right and attaches to the person covering all information about that person and the choices that he/ she makes. 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.

(b) Not an Absolute Right – Subject to Reasonable Restrictions

The Supreme Court was at pains to clarify that the fundamental right to privacy is not absolute and will always be subject to reasonable restrictions. It held that 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:

  1. Existence of a law that justifies an encroachment on privacy;
  2. 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
  3. The means adopted by the State are proportional to the objects and needs sought to be fulfilled by the law.

Consequently, all State action that could have an impact on privacy will now have to be measured against this three-fold test. This is likely to have an impact on several ongoing projects including most importantly, the Aadhaar identity project.


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