A nine-judge bench of the Supreme Court in Justice KS Puttaswamy (Retd) & Anr v Union of India & Ors has unanimously held that “[t]he right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21” of India’s constitution. The decision emanates from a constitutional challenge to the collection of data by the government for the Aadhaar card project.
By this ruling, the Supreme Court overruled its previous decisions in MP Sharma v Satish Chandra, District Magistrate, Delhi (1954) and Kharak Singh v State of Uttar Pradesh (1962), in which it had held that the constitution did not recognize the right to privacy. Notably, in Kharak Singh the Supreme Court had recognized that “every man’s house is his castle”.
These earlier decisions of the court were founded on the Supreme Court’s majority decision in AK Gopalan v State of Madras (1950), which had held that every fundamental right guaranteed by the constitution in the various articles was mutually exclusive. The Gopalan doctrine was overruled by the Supreme Court in Maneka Gandhi v Union of India (1978), which recognized that fundamental rights overlapped.
The Supreme Court further noted that:
- Certain rights are not bestowed by the state but are inherent and inalienable;
- The constitution, a living document, upholds the freedoms, liberties and the dignity of individuals, and constitutional recognition is not barred merely because the right is also protected under common law or statute;
- The right to privacy, like other fundamental rights, is subject to permissible restrictions;
- There is no conflict between the right to privacy and the right to personal liberty; and
- Judicial review permits courts to test the reasonableness of the procedure and the constitutional validity of a law to guarantee against the state’s encroachments on an individual’s life and personal liberty.
After analysing numerous judgments, comparative international law and concepts, six of the nine judges delivered separate opinions.
Justice Chandrachud (speaking for himself and three other judges) held that:
- MP Sharma did not adjudicate whether the right to privacy could emanate from other fundamental rights;
- Life and personal liberty are inherent and inalienable rights and the right to privacy emerged from these rights;
- Elements of privacy exist in other facets of individual freedom recognized and guaranteed by the constitution;
The right to privacy not only restrains the state from encroaching upon the life and personal liberty of citizens but casts an obligation on the state to protect the privacy of individuals;
- ADM Jabalpur v Shivakant Shukla (1976), in which the Supreme Court held that fundamental rights could be suspended, was expressly overruled;
- The decision of the Supreme Court in Suresh Kumar Koushal v NAZ Foundation (2014) – which dismissed a challenge to criminalizing sexual acts of consenting adults in private in so far as it dealt with the claims based on privacy and dignity by lesbian, gay, bisexual and transgender persons – was incorrect. However, since a larger bench is to consider Suresh Kumar Koushal, the constitutional validity of section 377 of the Indian Penal Code was not dealt with;
- In the digital age a careful balance had to be struck between the interests of the state and individual interests.
Justice Nariman observed that the preamble to the constitution was the foundation of the right to privacy. He also noted that balancing public interest and the right to privacy was essential. According to Justice Chelameswar, only “compelling state interest” could justify invasion of privacy.
Justice Bobde held the right to privacy to be an “inarticulate major premise” in the constitution and an essential condition to exercise most freedoms. He, however, also stated that the scope of the right can only be decided on facts.
Justice Sapre agreed with Justice Nariman that the right to privacy emanated from the preamble. He also remarked that the right to privacy would be subject to reasonable restrictions imposed by law.
Justice Kaul noted that the right to privacy may be claimed against the state and private parties but legislative intervention was required to curtail invasion of privacy of private parties.
The precise contours of the right to privacy will be shaped by legislation and judicial precedents in the years to come.
Sneha Jaisingh and Shreya Gupta are senior associates at Bharucha & Partners.
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