The Right to privacy has traveled a prolonged for obtaining the status of fundamental rights. The Right to privacy is derived from “protection of life and personal liberty” under Article 21 of the Constitution.

The Fundamental Right’s Sub-Committee deliberated on the issue of privacy.

KM Munshi, Harman Singh, and Dr. Ambedkar supported a right to privacy of persons, houses, papers, and effects: and said that ‘the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue but upon probable cause’.

Others like BN Rau and Alladi Krishnaswamy Aiyyar opposed it on grounds that it would impact the investigatory powers of the police. It may seriously affect the powers of investigation of the police.

In the early years after independence, the courts took a very textual view of the fundamental rights, and refuse the right to privacy as a part of them. The recognition began with the dissenting judgment in Kharak Singh where Judge Subba Rao declared it an essential ingredient of liberty.


A) M.P. Sharma vs Satish Chandra (1954)

The court refused to recognize a right against search & seizure since the Constitution makers had not included it in the constitution. Even the right to privacy is not recognized under Article 20(3).

B) Kharak Singh vs State of UP (1963)

The Supreme Court held that regulation 236(b) of UP Regulation, which permits domiciliary visits at night, is unconstitutional. Hence it is violative of Article 21. The majority did not discuss it. But Subba Rao J. in his dissenting judgment equated the right to privacy as an essential ingredient of personal liberty under Article 21 of the Constitution.

C) Govind vs State of MP (1975) 

The right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation, and child-rearing but subject to restrictions imposed in the public interest. Hence, the court held ‘The Right to Privacy is not an absolute right’.

The Supreme Court has in the case of Ram Jethmalani vs. Union of India (2011) held that the Right to Privacy is an integral part of the Right to Life.

D) Justice K.S. Puttaswamy vs. Union of India

The Right to Privacy took a different turn during the ‘Aadhar Case’. And the question was raised about the fundamental status of the right to privacy in the Indian Constitution.

In the case of Justice K.S. Puttaswamy vs. Union of India (2017) a nine judge’s bench of the Supreme Court held that ‘privacy is a constitutionally protected right which not only emerges from Article 21 but also from other facets of freedom and dignity recognized under part III of the Constitution.’ This judgment overruled the case of M.P. Sharma & Kharak Singh and gives a status of Fundamental right to the ‘Right of Privacy’.

Background of the case 

The case arose out of a challenge to the Aadhaar project, which aims to build a database of personal identity and biometric information of every citizen of India. More than a billion Indians have so far been registered in the Aadhaar program, which sees citizens issued with a 12-digit number that aligns with specific biometric data such as eye scans and fingerprints.  This project made the registration now mandatory for filing tax returns, opening bank accounts, securing loans, buying and selling property, or even making a purchase of 50,000 rupees and above.

In 2012, Justice K.S. Puttaswamy in the Supreme Court challenged the constitutional validity of Aadhaar on the grounds it violates the right to privacy.

The Government argued that there is no constitutional right of privacy as the eight-judge bench in M.P. Sharma v. Satish Chandra and four-judge bench in Kharak Singh v. State of Uttar Pradesh in their majority judgment denies the ‘Right to Privacy as a part of fundamental rights.


The case originally came before a three-judge Bench of the Court, on 11 August 2015, which referred the matter to a larger Bench.  On 18 July 2017, a five-judge Constitution Bench referred the same to a nine-judge Bench.  While it awaited clarification on the right to privacy, the bench hearing the constitutional challenge to Aadhaar passed an interim order and restricts the compulsory linking of Aadhaar for benefits delivery.

The nine judges of the Court gave six separate opinions. The leading judgment is a masterpiece, given by D.Y Chanderchud on behalf of four judges. It deals, in detail, with the Indian domestic case law on privacy and the nature of constitutional rights.  And also consider the Comparative Law on Privacy (from England, the US, South Africa, Canada, and the European Court of Human Rights and the Inter-American Court of Human Rights).

The main issue for the Petitioners was that the Indian Constitution does not contain a crystal clear privacy right.  Nevertheless, the Indian Constitution is a living instrument.  The Courts have sought to give effect to the “values” which the Constitution contains, through the interpretation of the express fundamental rights.  The determining provision for this purpose is Article 21 of the Indian Constitution which provides that:

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

Chanderchud J points out that this provision has been interpreted as containing, inter alia, the rights to a speedy trial, legal aid, shelter, a healthy environment, freedom from torture, reputation and to earn a livelihood .  Privacy is one of the episodes of the fundamental freedom of liberty.

In an important section of the joint judgment with the heading “Essential Nature of Privacy”, Chanderchud J explores the concept of privacy as being founded on autonomy and as an essential aspect of dignity:

“Dignity cannot exist without privacy.  Both dignity and privacy reside within the inviolable values of life, liberty, and, freedom which is recognized by the Constitution. Privacy is the ultimate expression of the sanctity of the individual.  It is a constitutional value that stands across the gamut of fundamental rights and protects a zone of choice and self-determination for the individual.

The conclusions of the judgment are set out on pages 260-265 of the joint judgment.  It is held that privacy is a constitutionally protected right that emerges, fundamentally, from Article 21 of the Constitution.  This is not an absolute right but intervention must be based on these threefold requirements i.e. (i) Legality; (ii) the need for a legitimate aim and (iii) proportionality.  It is also noted that informational privacy is a part of the right to privacy, and the Government is needed to put in place a robust regime for data protection.

Two other important points in the joint judgment:

 Firstly, it emphasizes the fact that sexual orientation is an essential part of privacy, thus the case of Suresh Kumar Koushal v. Naz Foundation (2014) which upheld section 377 of the Indian Penal Code, which effectively criminalizes same-sex relationships between consenting adults, is valid.  A reconsideration of Suresh Koushal is pending before a constitution bench of the Supreme Court.

Secondly, Chanderchud J overruled the judgment of his father (Chanderchud CJ) in the notorious case of ADM Jabalpur vs. Shivakant Shukla (1976) which held that the fundamental rights could be suspended during the Emergency ([121]).  Though the ADM Jabalpur judgment was nullified by the 44th constitutional amendment it has now finally been put to rest.  In his concurring judgment, Sanjay Kishan Kaul J commented:

The ADM Jabalpur case … was an aberration in the constitutional jurisprudence of our country and the desirability of burying the majority opinion ten fathom deep, with no chance of resurrection

Hence, the Court ruled that the right to privacy is protected under Article 21. And is also an essential part of the right to life and fundamental liberty.  The case was referred back to the original bench three judges for a decision on the merits.

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