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CITATIONS: Writ Petition (Civil) No. 494 of 2012, (2017) 10 SCC 1

BENCH: A Bhushan, A Khanwilkar, A Sikri, D Misra

APPELLANT: Justice K.S. Puttaswamy (Retd.)

RESPONDENT: Union of India


‘Privacy’ has always been a fundamental point of discussion within the legal community, due to its close association with Articles 14 (Right to Equality), 19, and 21 (Right to Freedom).

In fact, the right to privacy has been widely considered a fundamental human right, and for a long time too, as has been enshrined under Article 12 of the Universal Declaration of Human Rights:

No one shall be subjected to arbitrary interference with his privacy, family, home, or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

The Supreme Court has made important observations regarding this in judgments like M.P. Sharma v Satish Chandra, Maneka Gandhi v Union of India, Kharak Singh v State of UP, Peoples Union for Civil Liberties v Union of India, and, most importantly, in the case of Justice K. S. Puttaswamy (Retd.) V Union of India.


  • The petitioner was a retired High Court Judge who brought the case before the Supreme Court

  • The case was concerning the government proposal to make Aadhar mandatory for access to governmental services and benefits. The petitioner argued that the scheme was a violation of the right to privacy. This was made before a three-judge bench.

  • The Attorney-General argued on behalf of the Union of India that the Constitution does not give protection under right to privacy, pointing towards M.P. Sharma v Satish Chandra, and Kharak Singh v State of UP.

  • An eleven-judge bench subsequently put forward that fundamental rights should not be understood as separate rights.

A constitutional bench was later set up in this context and it further recommended the need for a larger bench to determine if the right to privacy was a fundamental right under the constitution.

  • The subsequently founded nine-member bench found that the right to privacy is a fundamental inalienable right under Article 21 of the Constitution of India, on the basis of the arguments of the petitioner and the respondent, as well as theoretical and philosophical viewpoints on the right to privacy.


If and whether there is any fundamental right to privacy under the Indian Constitution?

Whether the Aadhaar Project creates or tends to create a surveillance state and is, thus, unconstitutional on this ground?


Petitioners Arguments

  • The petitioners argued that the Right to Privacy is an integral part of the Right to Life and Personal Liberty and any prohibition or restriction placed upon must be in sync with the procedure as dictated by law and should satisfy the requirements of Art. 14 and 19. Making Aadhaar Cards compulsory for the welfare schemes would rob the people of their choice while at the same time putting them under the watchful eye of the state. This would amount to a grave violation of the right to life as it would encroach upon the dignity of the individual, which is the basic element of the Constitution.

  • Moreover, as per the circumstances and facts of the case, the limitations imposed by the government on the right to privacy were unreasonable and very arbitrary,

such that there was no nexus between the objective and the classification of the Aadhar Act. It has the potential to enable an intrusive state to become a surveillance state based on information that would be collected with respect to everyone by the creation of a joint electronic mesh. Even the information sought from the people was a violation of the bodily and mental integrity of the people.

Respondents Arguments

  • The respondents stated that bare minimum information was obtained from an individual who enrolled for Aadhar. Section 2(k) of the Aadhar Act specifically provides that regulations cannot include additional demographic information like race, religion, caste, tribe, ethnicity, language, etc. This ensures that the scope of adding additional demographic information is very narrow and limited.

  • Further, they argued that the constitution of India does not specifically protect the right to privacy, and hence the right to privacy is not guaranteed under Article 21 of the constitution which pertains to the right to life and personal liberty.


A nine-judge bench of the Supreme Court of India passed the judgement on 24th August 2017, upholding the fundamental right to privacy under Article 21 of the constitution of India, which says:

“No person shall be deprived of his life or personal liberty except according to procedure established by law”.

It is stated within the judgement that privacy is to be an integral part of Part III of the Indian Constitution, which lays down the fundamental rights of the citizens. The Supreme Court also said that the state must balance individual privacy and the legitimate aim, as fundamental rights cannot be given or taken away by law, and all laws and acts must abide by the constitution. The Court also declared that the right to privacy is not an absolute right and any invasion of privacy by state or non-state actor must satisfy the triple test i.e.

  1. Legitimate Aim

  2. Proportionality

  3. Legality

The decision that has been passed by all nine judges holds that:

  1. The decisions in M P Sharma vs. Satish Chandra and Kharak Singh vs. State of UP which declares that the right to privacy isn’t protected under the Constitution were overruled.

  2. The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 of the constitution of India and as a part of the freedoms guaranteed by Part III of the Constitution of India.


The Supreme Court of India upheld its constitutional duty to protect and interpret the constitution and created a legal framework for the protection of privacy in India. The judgement itself has established privacy as a fundamental and inalienable right under article 21 of the constitution. It was this judgment that further paved the way for the decriminalization of homosexuality under Navtej Singh Johar v. Union of India and the abolishment of the crime of Adultery under Joseph Shine v. Union of India.

This article is written by Ankit Rana of Army Institute of Law, Mohali.

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