Justice K.S.Puttaswamy (Retired). vs Union of India And Ors., 2017.

By – Kaifi Khan

In The Supreme Court of India

NAME OF THE CASEJustice K.S.Puttaswamy (Retired). vs Union of India And Ors., 2017.  
CITATIONWrit Petition (Civil) No. 494 of 2012, (2017) 10 SCC 1
DATE OF THE CASE24th August 2017
JURISDICTIONThe Supreme Court of India
APPELLANTJustice K S Puttaswamy (Retired)
RESPONDENTUnion of India and Others
BENCH/JUDGESanjay Kishan Kaul, Dhananjaya Y. Chandrachud, R. K. Agrawal, J. S. Khehar, S. A. Bobde, S. A. Nazeer, R. K. Agrawal, J. Chelameswar, A.M. Sapre JJ.
IMPORTANT SECTIONS/ARTICLESArticle 19,19(1)(a), 21 and 25


The case of Justice K.S. Puttaswamy (Retired) vs. Union of India has become the cornerstone of the ‘Right to Privacy’ jurisprudence in India. In this case, a nine-judge bench unanimously reaffirmed the ‘right to privacy as a fundamental right guaranteed to the citizens of India under our Constitution.

The case was brought forward by the retired court Judge K.S. Puttaswamy challenged the Government’s proposed scheme for a standardized biometrics-based positive identification which might be mandatory for access to government services and benefits. The govt. argued that the Constitution did not supply unique safety for the right to privacy. The Court was of the opinion that privacy is an event of fundamental freedom or liberty guaranteed under Article 21 of the Indian Constitution which provides that: “No person shall be bereft of his life or personal liberty except in line with the procedure established by law”. This is often regarded as a landmark case that is probably going to guide to constitutional challenges to a good range of Indian legislation, for example, legislation criminalising same-sex relationships likewise as bans on beef and alcohol consumption in the many Indian States. Observers additionally anticipate from the Indian Government to decide an information protection regime to protect the privacy of the people.

Further, the case is probably going to be of wider significance as privacy campaigners use it to pursue the constitutional debate over privacy in other countries.
The Bench altogether was of the view that the right to privacy is protected as an inherent part of the right to life and private liberty under Article 21 and as an element 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 Singh, insofar because the latter held that the right to privacy wasn’t recognised under the Indian Constitution. In addition to cementing the place of the right to privacy as a fundamental right, this case also laid down the necessity for the implementation of a brand new law regarding data privacy, expanded the scope of privacy in personal spaces, and discussed privacy as an essential value.


On 24th August 2017, a huge nine-judge bench of the Supreme Court in Justice K.S. Puttaswamy vs Union of India passed a notable judgment that affirmed the constitutional ‘right to privacy. It declared privacy to be a vital element of Part III of the Constitution of India, which lays down our fundamental rights, starting from rights referring to equality (Articles 14 to 18); freedom of speech and expression (Article 19(1)(a)); freedom of movement (Article 19(1)(d)); safety of existence and private liberty (Article 21) and others. These essential rights cannot receive or taken away through the law, and all legal guidelines and govt. moves ought to abide through them.

The Supreme Court has, however, clarified that like maximum different essential rights, the proper to privacy isn’t always an “absolute right”. Subject to the pleasure of sure checks and benchmarks, a person’s personal hobbies may be overridden through the competing nation and individual hobbies. This article discusses the checks which have been laid down through the Supreme Court withinside the Puttaswamy case, towards which privacy infringements can be evaluated going forward. Based on this analysis, the article argues that a majority of the judges on this decision have agreed that the European widespread of proportionality will be carried out to check privacy infringements in the future. However, the rigour and technicality with which this doctrine is carried out will rely upon the character of the competing hobbies in query and could evolve on a case through case basis. At the very least, any impugned motion will remain examined on the “just, honest and reasonable” widespread developed below Article 21 of the Constitution. However, earlier than we delve into the requirements laid down through the Court, it’s miles crucial to apprehend why the Supreme Court changed into referred to as upon to determine if we have an essential right to privacy and the way to examine the selection it subsequently delivered.

Background Of The Case

The case arose out of an undertaking to the constitutional validity of the Aadhaar project, whose goal is to construct a database of private identification and biometric records overlaying each and every Indian man or woman. About one thousand million Indians and plenty of greater have to this point been registered withinside the Aadhaar programme, which sees residents issued with a 12-digit variety that aligns to unique biometric facts consisting of eye scans and fingerprints. Registration is now turn out to be obligatory for submitting tax returns, beginning financial institution accounts, securing loans, shopping for and promoting belongings or maybe making purchases of 50,000 rupees and above.

 In 2012, a retired High Court Justice K.S. Puttaswamy filed a petition within the Supreme Court that challenged the constitutionality of the Aadhaar card in view that it violates the right to privacy. On 11th August 2015, a Bench of 3 judges comprising of Justices Chelameswar, Bobde and C. Nagappan exceeded an order that a Bench of suitable power needs to look at the correctness of the decisions in M P Sharma v Satish Chandra, District Magistrate, Delhi, 1954 (eight Judge Bench) and Kharak Singh v State of Uttar Pradesh, 1964 (6 Judge Bench). In precise, it ordered that the Court need to determine that whether or not we’ve got an essential right to privacy or not.

Initially, the problem was placed before a five Judge Bench headed with the aid of using the then Chief Justice Khehar. Then finally, the issue was referred to a nine Judge Bench on 18th July 2017. The Bench comprised Chief Justice Khehar and Justices Jasti Chelameshwar, S.A. Bobde, DY Chandrachud, Abdul Nazeer, Nariman, R.K. Agarwal, Abhay Manohar Sapre, and Sanjay Kishan Kaul. The proceedings started on 19th July 2017 and concluded on 2nd August 2017.

Subsequently, in an extraordinary judgement brought on 24th August 2017, the Bench unanimously recognized an essential ‘right to privacy of each man or woman assured with the aid of using the Constitution, inside Article 21 of the Indian Constitution specifically and Part III at the whole. The decisions in M.P. Sharma and Kharak Singh had been overruled.

Facts Of The Case

A project named, ‘Unique Identification for BPL Families’ was initiated by the Government of India. A Committee was also set up for the project. The Committee suggested the creation of a ‘Unique Identification Database’ for the said project. It was decided that the project will be set up in three phases. Then in January 2009, the Planning Commission of India passed a notification on UIDAI (Unique Identification Authority of India). Further in 2010, the National Identification Authority of India Bill was passed by the Planning Commission.

The present case was brought forward by a 91-year old retired High Court Judge K.S. Puttaswamy against the Union of India i.e. the Government of India. The case came up before a nine-judge bench of the Supreme Court which had been specially set up in relation to the Constitution Bench. The special bench was formed to determine whether the ‘right to privacy was guaranteed as an independent fundamental right following conflicting decisions from other Supreme Court benches.

The case had raised several issues regarding the government’s Aadhaar scheme (a form of uniform biometrics-based identity card). The government proposed that the above-mentioned scheme might become mandatory for access to government services and benefits in the nearing future. Initially, the challenge was made before a three-judge bench of the Supreme Court on the basis that the scheme violated the ‘right to privacy guaranteed by the Constitution of India to its citizens. However, the Attorney General argued on behalf of the Union of India that the Indian Constitution doesn’t give specific protection for the right to privacy. He based this mostly on observations created at intervals within the case of M.P. Sharma vs. Satish Chandra (an eight-judge bench) and Kharak Singh vs. Uttar Pradesh (a five-judge bench). Subsequently, an eleven-judge bench found that fundamental rights weren’t to be construed as distinct, unrelated rights, thereby it upheld the dissenting view in the Kharak Singh case. This also worked as a precedent of later decisions by smaller benches of the Supreme Court which expressly recognized the right to privacy.

Further, it was in this context that a Constitution Bench was set up and concluded that there should be the formation of a nine-judge bench to determine whether there was a fundamental right to privacy within the Constitution or not.

Finally, on 24th August 2017, the Supreme Court gave a significant verdict which stated that the right to privacy is a Fundamental Right under Article 21 of the Indian Constitution.

Issues Raised Before The Court

Several issues were raised before the Supreme Court during the proceedings of the case. The issues were as follows:

  • Whether the ‘right to privacy’ is an inherent part of the right to life and personal liberty guaranteed under Article 21 and also a part of the freedoms guaranteed by Part III of the Constitution,
  • And whether the judgement taken in M P Sharma v Satish Chandra, District Magistrate, Delhi was right in the face of law?
  • And was the decision taken in Kharak Singh v State of Uttar Pradesh correct in legal sense?

Arguments From The Petitioner’s Side

  1. The learned counsel for the petitioner i.e. Retired Justice K.S. Puttaswamy contended before the Apex court that the ‘right to privacy’ is an innate part of the right to life and personal liberty guaranteed under Article 21 and also a component of the freedoms guaranteed by Part III of the Constitution and same is to be protected by the constitution of India.
  2. The petitioner also submitted that the issue should also be put forward to evaluate the correctness of the decision noted in Karak Singh vs. The state of Uttar Pradesh and M. P. Sharma vs. Satish Chandra on the ground that it violated the Right to Privacy under Article 21 of the constitution.
  3. The petitioner contended that the Aadhaar Act by its very virtue is probabilistic in nature. The aim of the act was to extend subsidies, benefits, and services to society but it is possible that rather than providing the above mentioned benefits to the society for which all these are meant, it might end up excluding them from receiving such beneficiaries.
  4. The main arguments from the petitioner’s side were that the Act passed by the government might take away the rights and liberties of the citizens which are guaranteed to them under the Indian Constitution. They also alleged that if the Aadhaar Act is strictly implemented then it could create some serious problems as it is contrary to the Fundamental Rights which are given to us within the Indian Constitution.
  5. They argued that the Aadhaar Act also made a classification of citizens based on their religion which not only discriminated them but also forced them to reveal their religion which is in violation of Article 25 of the Indian Constitution.

Arguments From The Respondent’s Side

  1. The learned counsel for the respondent argued that the Constitution of India doesn’t specifically protect the ‘Right to privacy’ and on behalf of this the right of privacy was not guaranteed under the Constitution.
  2. Since ‘right to privacy’ is not guaranteed under the Constitution of India, Article 21 of the Indian Constitution had no application in the case of both M. P. Sharma vs Satish Chandra and Karak Singh vs. State of UP.
  3. The respondents also rebutted that the Aadhaar Act doesn’t ask for any information which could violate a person’s Right to Privacy. They stated that the Act hardly asks for any personal information from the citizens which could enable State surveillance on them.
  4. The respondents stated in an affidavit that their intention behind introducing the Act was to make sure that all the citizens who are eligible for the benefits and subsidies by the Government receive such benefits and subsidies and are not deprived of it. 
  5. It was also stated by the respondents that the Aadhaar works as only an identity card which is used by approximately 92 crore people for accessing various social schemes and availing benefits which are provided to the citizens of the country by the Government.

Related Provisions

  1. Article 19 of the Indian Constitution: Article 19 of the constitution of India guarantees six freedoms within the nature of civil rights only to the citizens of India. The six freedom includes the liberty of speech and expression, freedom of assembly without arms, freedom of association, freedom of movement throughout the territory of our country, freedom to reside and settle in any a part of the country of India and therefore the freedom to practice any profession. All the above mentioned freedoms are subject to reasonable restrictions that may be imposed by the State, listed under Article 19 itself. The grounds for imposing these restrictions may vary according to the freedom sought to be restricted and include national security, public order, decency and morality, contempt of court, incitement to offences and defamation. The State is additionally empowered, within the interests of the overall public to nationalize any trade, industry or service to the exclusion of the citizens.
  2. Article 19(1)(a) of the Indian Constitution: Article 19(1)(a) of the Constitution of India guarantees to all its citizens the right to freedom of speech and expression. The freedom of speech under Article 19(1)(a) includes the right to express one’s views and opinions at any issue through any medium. It also incorporates the freedom of communication and the right to publish opinions. Since free expression cannot be equated with a license to make unfounded and irresponsible allegations against the judiciary, the right is subjected to reasonable restrictions imposed under Article 19(2). The fundamental right to freedom of speech and expression allows its citizens to participate fully and effectively in the social and political process of the country therefore, it is regarded as one of the most basic elements of a healthy democracy. 
  3. Article 21 of the Indian Constitution: Article 21 of the constitution of India is regarded as the heart and soul of the fundamental rights. According to Article 21, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Right to life is elemental to our very existence without which we cannot live as a human being and which has all those aspects of life which contributed to make a man’s life meaningful, complete, and worth living. It’s the sole article within the Constitution of our country that has received the widest possible interpretation. Article 21 gives shelter, growth and nourishment to too many rights.
  4. Article 25 of the Indian Constitution: Article 25 of the Indian Constitution guarantees freedom of religion to all individuals in India. It provides that each individual in India, subject to public order, morality, health, and other provisions: are equally entitled to freedom of conscience, and have the right to freely profess, practise and propagate religion. It further provides that this text shall not affect any existing law and shall not prevent the state from making any law relating to:
  5. Regulation or restriction of any economic, financial, political, or any secular activity related to religious practice.
  6. Providing social welfare and reform.
  7. Opening of Hindu religious institutions of public character for all the classes and sections of the Hindus.


On the 24th of August, 2017, a nine-judge bench of the Supreme Court of India gave a landmark judgment that upheld the fundamental right to privacy under Article 21 of the constitution of India. The historical nine-judge bench of the Apex Court altogether gave the recognition that the Constitution guaranteed the right to privacy as an inherent part of the right to life and personal liberty under Article 21. The Supreme Court, with the assistance of six separate opinions, pronounced that privacy is a distinct and independent fundamental right guaranteed under Article 21 of the Indian Constitution. The most important point of the judgement communicated a broad interpretation of the right to privacy. It was elucidated that right to privacy was neither a narrow right against physical invasion nor a derivative right under Article 21, but it is one that covered the body and mind which includes decisions, choices, information and freedom. It was held that privacy was an overarching right of Part III of the Constitution which was enforceable and multifaceted. 

Altogether, the Court also overruled the judgments in M.P. Sharma, and Kharak Singh, as according to the latter the right to privacy was not a fundamental right guaranteed by the Constitution and regarding M.P. Sharma, the Court was of the view that the judgment was legitimate for keeping up with that the Indian Constitution didn’t contain any limitations to the laws on search and seizure comparable to the Fourth Amendment in the United States Constitution. Nonetheless, the Court held that the Fourth Amendment was not a comprehensive idea of security and a shortfall of a similar assurance in the Constitution didn’t suggest that there was no innate right to protection in India by any stretch of the imagination– and consequently, the end in M.P. Sharma was overruled. The Apex Court likewise dismissed the prejudicial perspective on close to home freedom which was embraced by Kharak Singh. As indicated by Justice D.Y. Chandrachud this view was alluded to as the “storehouse” approach acquired 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 the 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 affirmative cases on whether the right to life, the right to personal liberty and the right to liberty guaranteed in Part III of the Constitution protect the right to privacy. The bench determined that privacy “is not a construction of elitism.” It rejected the Attorney General’s argument that the right to privacy should be waived to the welfare rights provided by the state 

Altogether, while holding that the right to privacy was not independent in nature, the judgment additionally gave an outline of the norm of a legal survey that should be applied in instances of interruption by the State in the privacy of a person. It held that the right to privacy might be confined where such intrusion meets the three-crease necessity of :

  1. legality, which hypothesizes the presence of law;
  2. need, characterized as far as an authentic state point; and
  3. proportionality which guarantees a reasonable nexus between the objects and the means adopted to accomplish them.

Justice S.K Kaul added a fourth prong to this test which commanded “procedural assurances against maltreatment of such impedance”.

At the same time, J. Chelameswar believes that the “overriding national interest” standard should only be used for privacy claims that require “careful scrutiny.” Regarding other privacy claims, the court held that the fair, just, and reasonable standard of Article 21 should be applied, and whether to apply the “national priority” standard depends on the circumstances of the case.

The court also emphasized the fact that sexual orientation is an important aspect of privacy. In addition, it also discussed the negative and positive content of the right to privacy, that is, the state not only cannot intervene in this right but is also obliged to take necessary measures to protect personal privacy. The judgment held that information privacy is part of the right to privacy. Although the court pointed out the need to enact a data protection law, it left the task of legislation on this matter to Parliament.


This decision has been recognized as having great legal and political significance. The leader of the opposition Congress Party said, “This will be one of the most important judgments issued by the Supreme Court since the advent of the Indian Constitution.” The Hindustan Times commented: “The country received a better gift from the judiciary on the 70th anniversary of its independence.” The case was regarded as a major setback for the Modi government. A distinctive feature of the Joint Judgment is the detailed handling of digital privacy issues, which are becoming increasingly important in India and internationally.

The future of Aadhaar’s plan is being questioned and, in the opinion of the majority, it is now highly possible that the Supreme Court will cancel legislation criminalizing same-sex relationships. The joint judgment clearly stated that the Indian government is now obliged to establish a data protection system to protect personal privacy.

The right to privacy in the Constitution can now be used to challenge the ban on beef and alcohol consumption in many states in India. The government led by the National People’s Party implemented these bans as part of their efforts to incorporate Hindu religious practices into law. The decision was well-received by Indian and international commentators, putting privacy at the centre of constitutional debates around the world’s largest democracy, and may provide help and inspiration for privacy activists around the world.

The Supreme Court of India has once again become the sole protector of the Constitution, establishing a legal framework for India’s privacy protection. The ruling covers all issues and determines that privacy is an inalienable fundamental right inherent in human dignity and freedom under Article 21 of the Indian Constitution. The ruling paved the way for the legalization of homosexuality in India in Navtej Singh Johar v. Union of India.

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