Summary of Landmark judgment

Case: Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors.

Date of Order / Judgment: 24th August 2017.

The Matter Heard by Bench: Justice J.S. Khehar, Justice Jasti Chelameswar, Justice S.A. Bobde, Justice R.K. Agrawal, Justice R.F. Nariman, Justice A.M. Sapre, Justice D.Y. Chandrachud, Justice Sanjay Kishan Kaul, Justice S. Abdul Nazeer


This case was initiated through a petition filed by Justice K.S. Puttaswamy, a retired judge of the Karnataka High Court in relation to the Aadhaar Project, which was spearheaded by the Unique Identification Authority of India (UIDAI). The Aadhaar number was a 12-digit identification number issued by the UIDAI to the residents of India. The Aadhaar project was linked with several welfare schemes, with a view to streamline the process of service delivery and remove false beneficiaries. The petition filed by Justice Puttaswamy was a case which sought to challenge the constitutional validity of the Aadhaar card scheme. Over time, other petitions challenging different aspects of Aadhaar were also referred to the Supreme Court. In 2015, before a three Judge Bench of the Court, the norms for, and compilation of, demographic biometric data by the government were questioned on the grounds of violation of the right to privacy. The Attorney General of India argued against the existence of the fundamental right to privacy based on the judgments in M.P. Sharma and Kharak Singh. While addressing these challenges, the three Judge Bench took note of several decisions of the Supreme Court in which the right to privacy had been held to be a constitutionally protected fundamental right. However, these subsequent decisions which affirmed the existence of a constitutionally protected right of privacy, were rendered by benches of a strength smaller than those in M.P. Sharma and Kharak Singh. The case was referred to a Constitution Bench to scrutinize the precedents laid down in M.P. Sharma and Kharak Singh and the correctness of the subsequent decisions. On 18 July 2017, a Constitution Bench considered it appropriate that the issue be resolved by a bench of nine judges.


Whether the right to privacy was a fundamental right under Part III of the Constitution of India?

Observation of the Supreme Court

The Court overruled the judgments in M.P. Sharma, and Kharak Singh, insofar as the latter held that the right to privacy was not a fundamental right. With respect to M.P. Sharma, the Court held that the judgment was valid for maintaining that the Indian Constitution did not contain any limit to the laws on search and seizure analogous to the Fourth Amendment in the United States Constitution. However, the Court held that the Fourth Amendment was not an exhaustive concept of privacy and an absence of a comparable protection in the Constitution did not imply that there was no inherent right to privacy in India at all – and therefore the conclusion in M.P. Sharma was overruled. The Court further observed that he 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 the affirmative case for whether the right to privacy was protected under the right to life, personal liberty and the freedoms guaranteed under Part III of the Constitution. The Bench established that privacy was “not an elitist construct”. It rejected the argument of the Attorney General that the right to privacy must be forsaken in the interest of welfare entitlements provided by the state. It held that the right to privacy may be restricted where such invasion meets the three-fold requirement of
A. legality, which postulates the existence of law;
B. need, defined in terms of a legitimate state aim; and
C. Proportionality which ensures a rational nexus between the objects and the means adopted to achieve them. At the same time, Justice J. Chelameswar held that the standard of “compelling state interest” was only to be used in privacy claims which deserve “strict scrutiny”. As for other privacy claims, he held that the just, fair and reasonable standard under Article 21 would apply. According to his judgment, the application of the “compelling state interest” standard would depend on the context of the case. The Court also emphasised the fact that sexual orientation was an essential facet of privacy.


The Supreme Court, through separate opinions, pronounced privacy to be a distinct and independent fundamental right under Article 21 of the Constitution. Privacy was held to be an overarching right of Part III of the Constitution which was enforceable and multifaceted. The judgment held informational privacy to be a part of the right to privacy. The Court while noting the need for a data protection law left it in the domain of Parliament to legislate on the subject.