India: Right To Privacy – A "Fundamental Right" Now

Last Updated: 31 August 2017
Article by Rajat Jariwal, Harsh Walia and Supratim Chakraborty

Most Read Contributor in India, October 2017


The Government of India's Aadhar Card scheme (a digital recognition initiative) stirred up a hornets' nest when allegations regarding violation of privacy were raised against the said scheme. Subsequently, a 9 (nine) judge bench of the Hon'ble Supreme Court (SC) was constituted to consider whether privacy is a fundamental right. The bench delivered a unanimous verdict on 24 August 2017, in Justice K S Puttaswamy (Retd) v Union of India & Ors [Writ Petition (Civil) No 494 of 2012], holding that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21, as a fundamental right guaranteed by the Constitution of India (Constitution). It is an inalienable, inherent and natural right that is indispensable to a dignified life and hence, is read into the right to life as provided under Article 21 of the Constitution.

Key Takeaways

  • Privacy has three main facets i.e. privacy of the body, privacy of information and privacy of choice, which will henceforth be expressly protected under Article 21 of the Constitution.
  • Right to privacy is recognised internationally as a human right under various instruments such as the Universal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR). India, being a signatory to the said instruments, must adopt an interpretation which abides by the international commitments made thereunder.
  • Right to privacy of individuals, though recognized under various statutes, is not sufficiently protected since a statute may be amended at the legislature's will.
  • Akin to other fundamental rights, right to privacy is not an absolute one. However, a law that encroaches upon privacy must pass the litmus test of permissible restrictions on fundamental rights. In relation to Article 21, an encroachment upon privacy must be justified on the basis of a law that stipulates a procedure which is fair, just and reasonable. The law must also be valid in relation to encroachment on life and personal liberty under Article 21. An invasion of personal liberty must pass the triple test of: (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate state aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.
  • The cases of M P Sharma v Satish Chandra [as reported in (1954) SCR 1077], and Kharak Singh v State of Uttar Pradesh [as reported in (1964) 1 SCR 332], to the extent that they held that the right to privacy is not protected by the Constitution, stand overruled.
  • The case of ADM Jabalpur v Shivakant Shukla [as reported in (1976) 2 SCC 521], which held that Article 21 of the Constitution is the sole repository of all rights of life and personal liberty and, permitted suspension of fundamental rights by executive order, has been expressly overruled.
  • Sexual orientation has been held to be at core of the right to privacy. The Naz Foundation case [as reported in (2014) 1 SCC 1], in which the SC upheld the constitutionality of Section 377 of the Indian Penal Code 1860 (IPC) (which criminalizes homosexual acts), has been strongly criticised. These observations provide great solace to the LGBT community. This issue is currently pending before a 5 (five) judge Constitution Bench of the SC.

Recommendations of the SC

  • The growth and development of technology has created new avenues for a possible invasion of privacy, involving State or non-State actors, and is required to be protected under Article 21 of the Constitution.
  • There is a need to formulate regulations and have a robust legislation on data protection. Such data protection regime must strike a balance between individual interests and legitimate concerns of the State. The legitimate concerns of the State would include, inter alia, welfare programmes, national security, prevention and investigation of crime.
  • The State must ensure that information is not used without the consent of users and data collected is used only: (i) for a legitimate purpose; and (ii) to the extent that it was disclosed.

The Union Government has already constituted a committee headed by Justice B N Srikrishna, a retired Judge of the SC, to structure a regime for the protection of data. Accordingly, it has been suggested that the Government of India have due regard to the principles set out in this judgment.


This historic judgment has secured the privacy of individuals within the protective walls of the fundamental rights enshrined in Part III of the Constitution. It is expected that the law laid down by this judgment will have a positive and salutary impact on the legislative and regulatory processes. The future evolution of law will have to take into account the impact on an individual's privacy more seriously than ever before.

Statutory bodies like Telecom Regulatory Authority of India have also been emphasizing on the need for a legislation / framework for data protection. Presently, Indian laws are not comprehensive enough to meet all challenges relating to privacy, especially within the digital domain. Therefore, in light of the SC's judgment, the Indian data protection regime will have to be revamped to include adequate safeguards.

Further, the Aadhar issue is now slated to be re-examined and, if required, the Aadhar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act 2016 may require appropriate amendment.

The impact of this enhanced recognition of privacy and its wide ranging socio-political impact cannot be overstated. Previous SC judgments upholding criminalization of homosexual acts under the IPC, restricting consumption of food items such as beef, and suspending fundamental rights by executive orders may no longer have a jurisprudential basis in light of the fundamental right to privacy. The judgment will have far reaching consequences on upholding the dignity and liberty of the individual, thus leading to a better and enriched life.

The content of this document do not necessarily reflect the views/position of Khaitan & Co but remain solely those of the author(s). For any further queries or follow up please contact Khaitan & Co at

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