# JUSTICE K S PUTIASWAMY (RETD.), AND ANR v. UNION OF INDIA AND ORS

- **Citation:** [2017] 10 S.C.R. 569
- **Court:** Supreme Court of India
- **Decided:** 2017-08-24
- **Bench:** Dr. D. Y. Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/justice-k-s-putiaswamy-retd-and-anr-v-union-of-india-and-ors-31636
- **Pages:** 433

## Headnote

Constitution of India - Art.21 ..:. Right to privacy - Kharak ·
Singh judgment - Correctness of - Held: In the first part of decision
in Kharak Singh, it was correctly held that the content of the expression
569
H
•
570
SUPREME COURT REPORTS
[2017] 10 S.C.R.
A
B
c
'life' under Art.21 means not merely the right to a person's "animal
existence" and that the expression 'personal liberty' is a guarantee
against invasion into the sanctity of a person's home or an intrusion
into personal security - Kharak Singh also correctly laid down that
the dignity of the individual must lend content to the meaning. of
'personal liberty' - Thus, the first part of the decision in Kharak
Singh which invalidated domiciliary visits at night on the ground
that they violated ordered liberty is an implicit recognition of the
right to privacy - The second part of the decision, however, which
holds that the right to privacy is not a guaranteed right under our
Constitution, is not reflective of the correct position -
Kharak Singh
to the extent that it holds that the right to privacy is not protected
under the Constitution is overruled. (Dr. D. Y. Chandrachud, J.)
Constitution of lndici - Art.21 - Dignity - Jurisprudence on
dignity - Dignity as a constitutional value findf expression in the
Preamble - The constitutional vision seeks the realisation of justice
D (social, economic and political); liberty (of thought, expression,
belief, faith and worship); equality (as a guarantee against
· arbitrary treatment of individuals) and fraternity (which assures a
life of dignity to every indil'idual) - These constitutional precepts
exist in unity to facilitate a humane and compassionate society -
The individual is a focal point of the Constitution because it is in
E the realisation of individual rights that the collective well being of
the community is determined - To live is to live with dignity - Privacy
with its attendant values assures dignity to the individlial and it is
only when life can be enjoyed with dignity can liberty be of true
substance - Privacy ensures the fulfilment of dignity and is a core
F
value which the protection of life and liberty is intended to achieve
- Jurisprudence. (Dr. D. Y. Chandrachud, J.)
Constitution of India - Art.21 - Privacy as intrinsic to freedom
and liberty - The submission that recognising the right to privaly is
an exercise which would require a. constitutional amendment and
G cannot be a matter of judicial interpretation is not an acceptable
doctrinal position - The argument assumes that the right to privacy
is independent of the liberties guaranteed by Part Ill of the
Constitution - There lies the error-The right to privacy is an element
of human dignity - The sanctity of privacy lies in its functional
relationship with dignity - Privacy ensures that a human being can
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA
571
lead a life of dignity by securing the inner recesses of the human A
personality fromunwanted intrusion - Privacy recognises the
autonomy of the individual and the right of every person to make
essential choices which affect the course of life - In doing so. privacy
recognises that living a life of dignity is essential for a human being
to fulfil the liberties and ft-eedoms which are the cornerstone of the
B
Constitution. (Dr. D. Y. Chandrachud. J.)
Constitution of India - Art.21- Even in the absence of Art.21,
it would not have, been permissible for the State to deprive a person
of his life and liberty without the authority of the law.
(D1: D. · Y. Chandrachud, J.)
c
Constitution of India - Art.21 - Right to privacy, whether an
absolute right- Like other rights which form part of the fundamental
ft-eedorns protected by Part Ill, including the right to life and personal
liberty under Art.21, privacy is not an absolute right -A law which
encroaches upon privacy will have to withstand the touchstone of
permissible. restrictions on fundamental rights - In the context of D
Art.21, an invasion of privacy m

## Text

_Characters 0–39,937 of 1,025,482. This is a partial read: ask again with offset=39937 for what follows._

[2017] 10 S.C.R. 569
JUSTICE K S PUTIASWAMY (RETD.),
AND ANR.
v.
UNION OF INDIA AND ORS.
(Writ Petition (Civil) No. 494 of2012)
AUGUST 24, 2017
[JAGDISH SINGH KHEHAR, CJI, J. CHELAMESWAR,
S. A. BOBDE, R. K. AGRAWAL, R. F .. NARIMAN,
ABHAY MANOHAR SAPRE, DR. D. Y. CHANDRACHUD,
SANJAY KISHAN KAUL AND S. ABDUL NAZEER, JJ.]
Constitution of India - A11.21 - Right to privacy - Privacy is
a constitutionally protected right in India - The decision in M. P.
Sharma which holds that the right to privacy is not protected by the
Constitution stands over-ruled - The decision in Kharak Singh to
A
B
c
the extent that it holds that the right to privacy is not protected by D
the Constitution stands over-ruled - Right to privacy is protected
· as an intrinsic part of the right to life and personal liberty under
Art.21 and as a part of the freedom guaranteed by Part Ill of the
Constitution - Aadhar (Targeted Delivery of Financial and other
Subsidies, Benefits and Services) Act, 2016, (Per Court)
Constitution of India -Art.21 - Right to privacy - MP Sharma
. judgment - Correctness of - Held: The judgment in M P Sharma
holds essentially that in the absenc~ of a provision ·similar to the
Fourth Amendment to the US Constitution, the right to privacy cannot
E
be read into the pmvisions of An.20(3) of the Indian Constitution -
F
The judgment does not specifically adjudicate on whether a right
to privacy would arise from any of the other provisions of the rights
guaranteed by Part lTl including Art.21 and Art.19- The observation
that privacy is not a right guaranteed by the Indian Constitution is
not reflective of the correct position - M P Sharma is overruled to
the
extent
to
which
it
indicates
to
the
confrary.
G
(Dr. D. Y. Chandrachud, J.)
Constitution of India - Art.21 ..:. Right to privacy - Kharak ·
Singh judgment - Correctness of - Held: In the first part of decision
in Kharak Singh, it was correctly held that the content of the expression
569
H
•
570
SUPREME COURT REPORTS
[2017] 10 S.C.R.
A
B
c
'life' under Art.21 means not merely the right to a person's "animal
existence" and that the expression 'personal liberty' is a guarantee
against invasion into the sanctity of a person's home or an intrusion
into personal security - Kharak Singh also correctly laid down that
the dignity of the individual must lend content to the meaning. of
'personal liberty' - Thus, the first part of the decision in Kharak
Singh which invalidated domiciliary visits at night on the ground
that they violated ordered liberty is an implicit recognition of the
right to privacy - The second part of the decision, however, which
holds that the right to privacy is not a guaranteed right under our
Constitution, is not reflective of the correct position -
Kharak Singh
to the extent that it holds that the right to privacy is not protected
under the Constitution is overruled. (Dr. D. Y. Chandrachud, J.)
Constitution of lndici - Art.21 - Dignity - Jurisprudence on
dignity - Dignity as a constitutional value findf expression in the
Preamble - The constitutional vision seeks the realisation of justice
D (social, economic and political); liberty (of thought, expression,
belief, faith and worship); equality (as a guarantee against
· arbitrary treatment of individuals) and fraternity (which assures a
life of dignity to every indil'idual) - These constitutional precepts
exist in unity to facilitate a humane and compassionate society -
The individual is a focal point of the Constitution because it is in
E the realisation of individual rights that the collective well being of
the community is determined - To live is to live with dignity - Privacy
with its attendant values assures dignity to the individlial and it is
only when life can be enjoyed with dignity can liberty be of true
substance - Privacy ensures the fulfilment of dignity and is a core
F
value which the protection of life and liberty is intended to achieve
- Jurisprudence. (Dr. D. Y. Chandrachud, J.)
Constitution of India - Art.21 - Privacy as intrinsic to freedom
and liberty - The submission that recognising the right to privaly is
an exercise which would require a. constitutional amendment and
G cannot be a matter of judicial interpretation is not an acceptable
doctrinal position - The argument assumes that the right to privacy
is independent of the liberties guaranteed by Part Ill of the
Constitution - There lies the error-The right to privacy is an element
of human dignity - The sanctity of privacy lies in its functional
relationship with dignity - Privacy ensures that a human being can
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA
571
lead a life of dignity by securing the inner recesses of the human A
personality fromunwanted intrusion - Privacy recognises the
autonomy of the individual and the right of every person to make
essential choices which affect the course of life - In doing so. privacy
recognises that living a life of dignity is essential for a human being
to fulfil the liberties and ft-eedoms which are the cornerstone of the
B
Constitution. (Dr. D. Y. Chandrachud. J.)
Constitution of India - Art.21- Even in the absence of Art.21,
it would not have, been permissible for the State to deprive a person
of his life and liberty without the authority of the law.
(D1: D. · Y. Chandrachud, J.)
c
Constitution of India - Art.21 - Right to privacy, whether an
absolute right- Like other rights which form part of the fundamental
ft-eedorns protected by Part Ill, including the right to life and personal
liberty under Art.21, privacy is not an absolute right -A law which
encroaches upon privacy will have to withstand the touchstone of
permissible. restrictions on fundamental rights - In the context of D
Art.21, an invasion of privacy must be justified on the· basis of a
law which stipulates a procedure which is fair, ji1st and reasonable
- The law must also be valid with reference to the encroachment on
life and personal liberty under Art.21 - An invasion of life or
personal liberty must meet the three-fold requirement of (i) legality,
E
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. (Dr. D. Y. Chandrachud, J.)
Constitution of India - Art.21 - Informational privacy is a
F
. facet of the right to privacy - The dangers to privacy in an age of
information can originate not only from the State but from nonState actors as well - The Union Government entrusted to put into·
place a robust regime for data protection - The creation of such a
regime requims a careful and sensitive balance between individual
interests and legitimate concerns of the State - The legitim.ate aims
G
of the State would include for instance protecting national security,
preventing and investigating crime, encouraging innovation and
the spread of knowledge, and preventing the dissipation of social
welfare benefits - These are matters of policy to be considered by
tl1e Union government while designing a carefully structured regime
H
572
SUPREME COURT REPORTS
[2017] 10 S.C.R.
A for the protection of the data.(Dr. D. Y. Chandrachud, J.)
Constitution of India - Art.21 - Deprivation of life or personal
liberty - A person cannot be deprived of life or liberty except in
accordance with the procedure established by .law - Art.14 as a
guarantee against arbitrariness infuses the entirety of Art.21 - lnterB
relationship between the guarantee against arbitrariness and the
protection of life and personal liberty operates in a multi-faceted
plane - First, it ensures that the procedure for deprivation must be
fair, just and reasonable - Second, Art.14 impacts both the -
procedure and the expression 'law' - A law within the meaning of
Art.21 must be consistent with the norms of fairness which originate
C
in Art.14. (Dr. D. Y. Chandrachud, J.)
Constitution of India - Art.21 - Right to privacy - Inalienable
right - The international covenants and declarations to which India
was a party, namely, the 1948 Declaration and the 1966 Covenant
both spoke of the right to life and liberty as being "inalienable" -
D Given the fact that this has to be read as being part of Art.21, it is
clear that Art.21 would, therefore, not be the sole repository of these
human rights but on(v reflect the fact that they were "inalienable";
that they inhere in every human being by virtue of the person being
a human being - s.2( I )(d) of the Protection of Human Rights Act,
E
F
1993 recognises that the right to life, liberty, equality and dignity
referable to international covenants and enforceable by Courts in
India are "human rights" - And international covenants expressly
state that these rights are 'inalienable' as they inhere in persons
because they are human beings - Protection of Human Rights Act,
1993 -
s.2(1 )(d). (R. F. Nariman, J.)
Constitution of India - Art.21 - Right to privacy - The
fundamental right of privacy, which has so many developing facets,
can only be developed on a case to case basis -
Depending upon
the particular facet that is relied upon, either Art.21 by itself or in
conjunction with other fundamental rights would get attracted -
G But this is not to say that such a right is absolute - This right is
. subject to reasonable regulations made by the State to protect
legitimate State interests or public interest - However, when it comes
to restrictions on this right, the drill of various Articles to which the
right relates ,must be scrupulously followed - The balancing act
H that is to be carried out between individual, societal and State
JUSTICE K S PUITASWAMY (RETD.) y. UNION OF INDIA
573
interests must be left to the training and experti~e of the judicial
A
mind. (R. F. Nariman, J.)
Constitution of India - Art.21 - Right to privacy ~"Liberty"
i11 the Preamble to the Constitution, is said to be .of thought,
expre~sion, belief, faith and worship - This cardinal ~alue can be
found strewn all over the fundamental rights chapter -
But most B
important of all is the cardinal value of fraternity which assures the
dignity of the individual - The dignity of the individual encompasses
the right of the individual to develop to the full extent of his potential
- And this development can only be if an individual has autonomy
over fundamental personal choices and control over dissemination
of personal information which may be infringed through an
C
unauthorised use of such iriformation - Art.2 I more than any of the
other Articles in the fundamental rights chapter, reflects each of
these constitutional values in full and is to be read in consonance
with
these
values
and
with
the
international
covenants.(R. F. Nariman, J.)
D
Constitution of India - Art.21 - Right to privacy - The
inalienable fundamental right to privacy resides in Art.21 and other
fundamenta.l freedoms contained in Part Ill of the Constitution of
India - M.P. Sharma case and the majority in Kharak Singh case, to
the extent that they indicate to the contrary, stand overruled - The
E
later judgments of Supreme Court recognizing privacy as a
. fundamental right do not need to be revisited - These cases are,
thereft1re: sent back for adjudication on merits to the original Bench ·
of 3 honourable Judges of this Court in light of the judgment.
(R.F. Nariman, J.)
F
Constitution of India -Arts.21, 14, 19 or 25 - Right to privacJ;
- M.P. Sharma case - Effect of - The question whether the right to
privacy is implied in any other fandamental right guamnteed under
Arts.21, 14, 19 or 25 was not examined in M.P. Sharma case -
Thus,
M.P. Sharma is not an authority for a proposition that there is no
right of privacy under our Constitution. (J. Chelameswar, J.)
G
Constitution of India- -Ar.i..:' I - Kharak Singh case - Effect of
- Kharak Singh per majority took the view that the impugned
regulation insofar as it provided for 'domiciliary visits at night' is
unconstitutional whereas the minority opinedJhe impugned
H
574
SUPREME COURT REPORTS
[2017] 10 S.C.R.
A regulation is in its entirety unconstitutional - Kharak Singh per
majority opined that "the right of privacy is not a guaranteed right
under 011.r Constitution", and therefore the same cannot be read
into Art.21'- 'if1e approach adopted by the majority is illogical and
against settled principles of interpretation of even an ordinary
B statute and wholly unwarranted in the context of constitutio11al
interpretation. (J. Chelameswar, J.)
Constitution of India -Arts 21, 19(1) - Expression 'liberty' -
Connotation of- The expression 'liberty' is capable of taking within
its sweep not only the right to move freely, guaranteed under
Art.19( I)( d); but also each one of the other freedoms mentioned
C under Art.19(1) - Personal liberty takes within its sweep not only
the right not to be subjected to physical restraints, but also the
freedom of thought, belief, emotion and sensation and a variety of
other freedoms -
The most basic understanding of the. expression
'liberty' is the freedom of a11 individual to do what he pleases.
D
(J. Chelameswar, J.)
Constitution of India - Art.21 - Scope of - Held: The
expression 'liberty' in Art.21 is wide enough to take in not only the
various freedoms enumerated in Art. 19( I) but also many others
which are not enumerated. (J. Chelameswm; J.)
E
CollStitution of India -
Art.21 - Right to privacy - Held: The
right to privacy consists of three facets i.e. repose, sanctuary and
intimate decision - Each of these facets is so essential for the liberty
of human beings that there is no reason to doubt that the right to
privacy is part of the liberty guaranteed by our Constitution -
F Fundamental rights are the only constitutional firewall to prevent
States interference with those core freedoms constituting liberty of
a human being - The right to privacy is certainly one of the core
freedoms which is to be defended - It is part of liberty within the
meaning of that expression in Art.21. (J. Chelameswm; J.)
G
Constitution of lndia - Art.21 - Right to privacy, limitations -
H
Held: No legal right can be absolute - Every right has limitatiollS -
Therefore, even a fundamental right to privacy has limitations -
The limitations are to be identified on case to case basis depending
upon the nature of the privacy interest claimed -
The optiollS for
limiting the right to privacy are (i) a just, fair and reasonable basis
·JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA
575
(that is substantive due process) for limitation per Art.21 and (ii) a A
jusi, fair and reasonable ba;Hs (that is substantive due process) for
limitation per Art.21 plus the amorphous standard of 'compelling
State interest'. (J. Chelameswar, J.)
Constitution of India - Art.21 - An inalienable constitutional
right to privacy inheres in Part Ill of the Constitution - M.P. Sharma
B
and the majority opinion in Kharak Singh overruled to the extent
that they indicate to the contrary- The right to privacy is inextricably
bound up with all exercises of human liberty, both as it is specifically
enumerated across Part Ill, and as it is guaranteed in the residue
under Art.21 - It is distributed across the various Articles in Part c
Ill and, mutatis mutandis, takes the form of whichever of their
enjoyment its violation curtails -Any interference with privacy·by
an entity covered by Art.12's description of the 'State' must sati:,fy
the tests applicable to whichever one or more of the Part Ill freedotm
the interj'erence affects. (S.A. Bahde, J.)
Constitution of India - Art.21 - Privacy's connection to D
Dignity and Liberty - The first and natural home for a right of
privacy is in Art.21 at the very heart of 'personal liberty' and life
itself - Liberty and privacy are integrally connected in a way that
privacy is often the basic condition necessary for exercise of the
right of personal liberty - There are innumerable activities which
E
are virtually incapable of being perj'ormed at all and in many cases
. with dignity unless an individual 'is left alone or is otherwise
empowered to ensure his or her privacy - Privacy is necessary in
both its mental and physical aspects as an enabler of guaranteed
freedoms - It is difficult to see how dignity, whose constitutional
F
significance is acknowledged both by the Preamble and by Supreme
Court in its exposition of Art.21, among other rights, can be assured
to the individual without privacy - Both dignity and privacy are
intimately .intertwined and are natural conditions for· the birth and
death of individuals, and for many significant events in life between
these events - Necessarily, then, the right of privacy is an integral
G
part of both 'life' and 'personal liberty' under Art.21, and is intended
to enable the rights bearer to develop potential to the falle.~t extent
made possible only in consonance with the constitutional values
expressed in the Preamble as well as across Part 111.(S.A. Bobde, J.)
H
576
A
B
c
SUPREME COURT REPORTS
[2017] 10 S.C.R.
Constitution of India - Right to life - Neither life nor liberty
are bounties conferred by the State nor does the Constitution create
these rights - The right to life has existed even before the advent of
the Constitution - In recognising the right, the Constitution does
not
become
the
sole
repository
of
the
right.
(Dr. D. Y. Chandrachud, J.)
Constitution of India - Substantive due process - History
surrounding the drafting of Art.21 and changes made in original
draft of Art.21, discussed - Substantive challenge to the validity of
laws encroaching upon the right to life or personal liberty - Case
laws discussed. (Dr. D. Y. Chandrachud, J.)
Constitution of India - Constitution of the world and of India
- The Constitution of any country reflects the aspirations and goals
of the people of that count1y voiced through the language of the
few chosen individuals entrusted with the respom·ibility of framing
its Constitution - Such aspirations and goals depend upon the history
D of that society - History invariably is a product of various forces
emanating from religious, economic and political events - The
Constitution of any country is a document which contains provisions
specifying the rules of governance in its different aspects - It defines
the powers of the legislature and the procedures for law making,
E
F
the powers of the executive to administer the State by enforcing the
law made by the legislature and the powers of the judiciary - The
underlying belief is that the Constitution of any country contains
certain core political values and beliefs of the people of that country
which cannot normally be tinkered with lightly, by transient public
opinion. (J. Chelameswar, J)
Constitution of India - Forms of Privacy Rights - Common
right and fundamental right - Distinction between - Held: Common
law rights are horizontal in their operation when they are violated
by one'.~ fellow man, he can be named and proceeded against in an
ordinary court of law - Constitutional and fundamental rights, on
G the other hand, provide remedy against the violation of a valued
interest by the 'State', as an abstract entity, whether through
legislation or otherwise, as well as by identifiable public officials,
being individuals clothed with the powers of the State - Where the
inteiference with a recognized interest is by the State or any other
H
like entity recognized by Art.12, a claim for the violation of a
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA
577
fundamental right would lie - Where the author of an identical A
interference is a non-State actor, an action at common law would
lie in an ordinary court. (S. A. Bobde, J.)
Constitution of India - Privacy - Whether solitude is essential
to privacy - Held: Privacy has a deep affinity with seclusion (of
our physical persons and things) as well as such ideas as repose,
solitude, confidentiality and secrecy (in our communications), and
intimacy - But this is not to suggest that solitude is always essential
to privacy - ft is in this sense of an individual's liberty to do things
privately that a group of individuals, however large, is entitled to
seclude itselffrom others and be private. (S. A. Bobde, J.)
B
c
Constitution of India - Part III - Privacy is the necessary
condition precedent to the enjoyment of any of the guarantees in
Part Ill - As a re~ult, when it is claimed by rights bearers before
constitutional courts, a right to privacy may be situated not only in
Art.21, but also simultaneously in any of the other guarantees in
D
Part Ill. (S. A. Bobde, J.)
Constitution of India - Right to privacy of any individual is
essentially a natural right, which inheres in every human being by
birth and remains with the human being till he/she breathes last - It
is indeed inseparable and inalienable from human being - One
cannot conceive an individual enjoying meaningful life with dignity
E
without such right - However, it is not an absolute right but is subject
to certain reasonable restrictions, which the State is entitled to impose
on the basis of social, moral and compelling public interest in
accordance with law. (Abhay Manohar Sapre, J.)
Constitution of India - Dignity of an individual - The Preamble
F
to the Constitution lay emphasis on dignity of the individual - The
expression "Dignity" carries with it moral and spiritual imports - ft
also implies an obligation· on the part of the Union to respect the
personality of every citizen atid create the conditions in which every
citizen would be left free. to find himself/herself and attain selfG
fulfillment- Dignity of the individual is, therefore, always considered
the prime constituent of the fraternity, which assures the dignity to
every individual. (Abhay Manohar Sapre, J.)
Constitution of India'- Unity and integrity of the Nation cannot
survive unless the dig11ity of every individual citizen is guaranteed H
578
SUPREME COURT REPORTS
[2017] 10 S.C.R.
A
-
The expressions "liberty", "equality" and "fraternity"
incorporated in the Preamble are not separate entities - They have
to be read in juxtaposition while dealing with the rights of the
citizens. (Abhay Mal!ohar Sapre, J.)
B
c
Constitutioll of India - Right to privacy - Privacy is not just
a commol! law right, but a fundamelltal right falling in Part Ill of
the Constitution of India - Although an issue like privacy could
never have been anticipated to acquire such a level of importance
when the Constitution was being contemplated, yet today, the times
we live in, necessitate that it be recognised /lot only as a valuable
right, but as a right fundamental in constitutional jurisprudence -
The Constitution and its all encompassing spirit forever grows but
never ages. (Sanjay Kishan Kaul, J.)
Constitution of India - Data Regulation - Duty of State -
Held: The State must e11Sure that infonnation is not used without the
consent of users and that it is used for the purpose and to the extent
D
it was disclosed. (Sanjay Kishan Kaul, J.)
Co11Stitution of India - Right of privacy is a fundamental right
- It is a right which protects the inner sphere of the individual from
interference from both State, and non-State actors and allows the
individuals to make autonomous life choices .:.. The technology has
E made it possible to enter a citizens house without knocking at his/
her door and this is equally possible both by the State and nonState actors - It is an individuals choice as to who enters his house,
how he lives and in what relationship - · The privacy of the home
must protect the family, nuirriage, procreation and sexual orientation
F
which are all important aspects of dignity - If the individual permits
someone to enter the house it does not mean that others can enter
the house - The only check and balance is that it should not hann
the other individual or affect his or her rights - This applies both to
the physical form and to technology - In an era where there are
wide, varied, social and cultural norms and more so in a count1y
G like ours which prides itself on its diversity, privacy is one of the
most important rights to be protected both against State and nonState actors and be recognized as a fundamental right - How it
thereafter works out in its inter-play with other fundamental rights
and when such restrictions would become necessary would depend
H on the factual matrl>: of each case - That it may give rise to more
•
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA
579
litigation can hardly be the reason not to recognize this important,
A
natural,
primordial
right
as
a
fundamental
right.
(Sanjay Kishan Kaul, J.)
Constitution of India - Test of popular acceptance - The
guarantee of constitutional rights does not depend upon their
exercise being favourably regarded by majoritarian opinion - The
B
test of popular acceptance does not furnish a valid basis to disregard
rights which are conferred with the sanctity of constitutional
protection - Discrete and insular minorities face grave dangers of
discrimination for the simple reason that their views, beliefs or way
of life does not accord with the 'mainstream' -
Yet i'n a democratic
Constitution founded on the rule of law, their rights are as sacred C
as those conferred on other citizens to protect their freedoms and
liberties. (Dr. D. Y. Chandrachud, J.)
Constitution of India -
Rig/it to privacy - Majoritarian
concept - Held: The right of privacy cannot be denied, even if
there is a miniscule fraction of the population which is affected -
D
The majoritarian concept does not apply to Constitutional rights
and the Courts are often called up on to take what may be
categol'i>zed as a non-majoritarian view, in the check and balance
of :P.ower envisaged under the Constitution of India.
(Sanjay Ki9han Kaul, J.)
E
Constitution of India - A living document - The Constitution
was not drafted for a specific time period or for a certain generation
- It was drafted to stand firm, for eternity - It sought to create a
Montesquianframework that would endear in both war time and in
peace time - The founders of the Constitution were aware of the
F
fact that Constitution would need alteration to keep up with the
trends of the age - This was precisely the reason that an unrestricted
amending power was sought to be incorporated in the text of the
Constitution in Part xx of Art.368. (Sanjay Kislzan Kaul, J)
Constitution of India - Art.145(3) - When a substantial G
question as to the interpretation of the Constitution arises, it is
Supreme Court alone under Art.145(3) that is to decide what the
interpretation of the Constitution shall be, and for this purpose the
Constitution entrusts this task to a minimum of 5 Judges of Supreme
Court - Interpretation of Constitution. (R. F. Nariman, J.)
H
580
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2017] 10 S.C.R.
International law - India '.I' commitment - Where there is a
contradiction between international law and a domestic statute, the
Cou11 would give effect to the latter - In the present case, there is
no contradiction between the international obligations which have
been assumed by India and the Constitution - The Court will not
readily presume any inconsistency - On the contrary, constitutional
provisions must be read and interpreted in a manner which would
enhance their conformity with the glObal human rights regime -
India is a responsible member of the international conununity and
the Court must adopt an interpretation which abides by the
international commitments made by the country particularly where
its constitutional and statutory mandates indicate no deviation.
(Dr. D. Y. Chandrachud, J.)
International law - Binding effect - Held: In the absence of
any specific prohibition in municipal law, international law forms
part of Indian law and consequently must be read into or as part of
our fundamental rights. (R. F. Nariman, J.)
Interpretation of Constitution - Constituent Assembly and
privacy - limits of originalist interpretation -
The interpretation of
the Constitution cannot be frozen by its original understanding -
The Constitution has evolved and must continuously evolve to meet
the aspirations and challenges of the present and the future - The
framers were conscious of the widespread abuse of human rights
by authoritarian regimes in the two World Wars separated over a
period of two decades - The framer.~ were equally conscious of the
injustice suffered under a colonial regime and more recently of the
horrors of partition - The backdrop of human suffering furnished
a reason to preser11e a regime of governance based on the rule of
law which would be subject to democratic accountability against a
violation of fundamental freedoms - The content of the fundamental
rights evolved over the cotlrse of our constitutional history and
any discussion of the issues of privacy, together with its relationship
with liberty and dignity, would be incomplete without a brief
reference to the course of history as it unravels in precedent - By
guaranteeing the freedoms and liberties embodied in the
fundamental rights, the Constitution has preser11ed natural rights
and ring-fenced them from attempts to attenuate their existence.
(Dr. D. Y. Chandrachud, J.)
•
JUSTICE KS PUTTASWAMY (RETD.)"v. UNION OF INDIA
581
Interpretation of Constitutio11 - The Constitμtion is a sacred A
living document lind, heizce susceptible to appropriate i11terpreuitfrm
of its provisions based on changing needs of the society - While
interpreting any provision of the Constitution; the Preamble to the
Constitution may be relied on as a remedy for mischief or/and to
·.
find out the true meaning of the relevant provision as the case may
B'. • ''
be. (Abhay Mano/Jar Sapre, J.)
Interpretation of Constitution - Necessity of doctrine of
flexibility while dealing with Constitution - Case laws discussed.
(Sanjay Kishan Kaul, J.)
Privacy - Privacy. not an elitis(can,1·trucr~ fr.ivary is not a c
pril'ilege for thefew + Every individual in society irrespective of
social class or economic status is entitled to the intimacy and
autonomy which privacy protects. (01: D. Y. Chandrachud, J.)
Privacy - Privacy, not just a .common law right - The
Constitution recognises the right simply because it is an incident of D
a fundamental freedom or liberty which the draftsperson considered
to be so sign(ficant as to require constitutional protection - Once
privacy is held to be an incident of the protection of life, personal
liberty and of the liberties guaranteed by the provisions of Part Ill
of the Constitution, the submission that privacy is only a right at
common law is misplaced - The central theme is that privacy is an
intrinsic part of life, pe1wnal liberty and of the freedom~ guaranteed
by Part Ill which entitles it to protection as a core of constitutional
doctrine - The protection of privacy by the Constitution liberates it,
as it were, from the uncertainties of statutory law which is subject
to the range of legislative annulments open to a rnajoritarian
government.
(D1: D. Y. Chandrachud, J.)
E
F
Primcy - Concept of privacy in other jurisdictions - Each
country is governed by its own constitutional and legal structure -
Constitutional structures have an abiding connection with the
histot)', culture, political doctrine and values which a society G
considers as its founding principles - Foreign judgments must hence
be read with circumspection ensuring that the text is not read
isolated ftvm its context. (Dr. D. Y. Chandrachud, J.)
Privacy - Comparative Law on Privacy (from England, the
US, South Africa, Canada, the European Court of Human Rights . H
582
SUPREME COURT REPORTS
[2017] 10 S.C.R.
A
and the Inter-American Court of Human Rights) - Various criticisms
of the privacy doctrine - from Bork, Posner and feminist critics -
Discussed. (Dr. D. Y. Chandrachud, J.)
Privacy - Types of privacy - Nine primary types of privacy
depicted in a seminal article published in 2017 titled "A Typology
B of privacy" published in the Uni,versity of Pennsylvania Journal of
International law, discussed. (Dr. D. Y. Chandrachud, J.)
Privacy - Privacy - right to control information - Privacy
assists in preventing awkward social situations and reducing social
frictions - An individual has a right to control one's life while
c submitting personal data for various facilities and services - The
truthful information that breaches privacy may also require
protection. (Sanjay Kishan Kaul, J.)
Privacy -
Informational privacy - right to control existence
on internet - Right to privacy in this modern age emanate certain
D other rights such as tlze right of individuals to exclusively
commercially exploit their identity and personal information, to
control information that is al'Uilable about them on the 'world wide
web' and to disseminate certain personal information for limited
pu1poses alone. (Sanjay Kishan Kaul, J.)
E
F
Rights ~ Natural and inalienable rights -
Natural rights are
not bestowed by the State - They inhere in human beings because
they are human - They exist equally in the individual irrespective of
class, strata, gender or orientation. ( D1: D Y Chandrachud, J.)
Rights - Natural and inalienable rights - How natural and
inalienable rights developed in Indian scenario - Discussed.
(Dr. D. Y. Chandrachud, J.)
Rights - Natural and inalienable rights - Life and personal
liberty are inalienable rights - These are rights which are
inseparable from a dignified human existence - The dignity of the
G individual, equality between human beings and the ques(for liberty
are the foundational pillars of the Indian Constitution.
(D1: D. Y. Chandrachud, J.)
H
Reference - Scope of - Held: Reference Court cannot travel
beyond the reference made and is confined to answer only those
questions that ai·e referred. (Abhay Manohar Sapre, J.)
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA
583
A scheme was propounded by the Government oflndia popularly A
known as the Aadhar card scheme. Under the said scheme, the
Government of India collects and compiles both demographic and
biometric data of the residents of this country to be used for various
purposes. In the instant reference, the ground of attack on the said scheme
is that the very collection of such data is violative of the "Right to
B
Privacy". The issue reaches out to the foundation of a constitutional
culture based on the protection of human rights and presents challenges
for constitutional interpretation.
Answering the reference, the Court
HELD:
PER COURT:
(i) The decision in M.P. Sharma which holds that the right
to privacy is not protected by the Constitution stands overruled;
(ii) The decision in Kharak Singh to the extent that it holds that
c
the right to privacy is not protected by the C~.nstitution stands D
over-ruled; (iii) The right to privacy is protected as an intrinsic
part of the right to life and personal liberty under Article 21 and
as a part of the freedoms guaranteed by Part III of the
Constitution; (iv) Decisions subsequent to Kharak Singh which
have enunciated the position in (iji) above lay down the correct E
position in law. [Para 2][998-G-H; 999-A-B]
PER DR. D. Y. CHANDRACHUD, J.:
. 1. Natural and inalienable rights: Privacy is a concomitant
of the right of the individual to exercise control over hi.s or her
personality. It finds an origin in the notion that there are certain
F
·rights which are natural to or inherent in a human being. Natural
rights are inalienable because they are inseparable from the
human personality. The human element in life is impossible to
conceive without the existence of natural rights. Natural rights
are not bestowed by the State. They inhere in human beings G
because they are human. they exist equally in the individual.
irrespective of class or strata, gender or orientation. All human
beings retain their inalienable rights (whatever their situation,
whatever their acts, \yhatever their guilt or innocence). The
concept of natural inalienable rights secures autonomy to human
l
H
.....
584
SUPREME COURT. REP.ORTS
[2017) IO S.C.R.
A beings. But the autonomy is not absolute, for the simple reason
that, the concept of inalienable rights postulates that there arc
some rights which no human being may alienate. While natural
rights protect the right of the individual to choose and preserve
liberty, yet the autonomy of the individual is not absolute or total.
B
c
D
E
F
As a theoretical construct, it would otherwise be strictly possible
to hire another person to kill oneself or to sell oneself into slavery
or servitude. Though these acts .arc autonomous, they would be
in violation of inalienable rights. [Paras 40, 44-45][667-E; 669-FG; 670-A-B]
Second Treatise of Government (1690) by John
Locke; Commentaries on the Laws of England (1765)
by William Blackstone; American Declaration of
Independence (1776); Declarat.ion of the Rights of
Man and the Citizen (1789); Roscoe Pound, The Spirit
of the Common Law, Marshall Jones Company (1921);
Roscoe Pound, "The Revival of Natural Law", Notre
Damne Lawyer (1942), Vol. 27, No 4; A Pragmatist
Looks at Natural Law and Natural Rights (1955) by
Edwin W Patterson; Taking Rights Seriously (1977)
by Ronald Dworkin - referred to.
2. Evolution of the privacy doctrine in India: The right to
privacy has been traced in the decisions which have been
rendered over more than four decades to the guarantee of life
and personal liberty in Article 21 and the freedoms set out in
Article 19. As Indian society has evolved, the assertion of the
right to privacy has been considered by this Court in varying
contexts replicating the choices and autonomy of the individual
citizen. The deficiency, however, is in regard to a doctrinal
formulation of the basis on which it can be determined as to
whether the right to privacy is constitutionally protected. M P
Sharma need not have answered the question; Kharak Singh dealt
G with it in a somewhat inconsistent formulation while Gobind
H
rested on assumption. [Paras 91, 92][711-H; 712-D-F]
A. K. Gopalan v. State of Madras AIR 1950 SC 27 :
[1950] SCR 88; Rustom Cavasji Cooper v. Union of
India (1970) 1 sec 248 : [1970] 3 SCR 530; Gobind
v. State of Madhya Pradesh (1975) 2 sec 148 : [1975]
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA · 585
· · · ·
3 SCR 946; Maneka Gandhi v. Union of India (1978)
1 SCC 248 : [1978] 2 SCR 621; R Rajagopal v .. State
of Tamil Nadu (1994) 6 SCC 63~ : [1!194] 4 .Suppl ..
SCR 353; People'.~ Union for Civil Liberties v. Union
of India (1997) 1 SCC 301 : [1996] 10 Suppl. SCR
321; Satwant Singh Sawhney v. D Ramarathnam [1967]
3 SCR 525; RM Malkani E State of Maharashtra (1973) ..
1 SCC 471; !vfalak Singh v. State of Punjab and
Harvana (1981) 1 Sec 420 : [1981] 2 SCR 311; State
.
.
of Maharashtra v. Madhukar Narayan Mardikar
(1991) 1 SCC 57; Life Insurance Corporation of India
P. Prof Manubhai D Shah (1992) 3 SCC 637 : [1992]
3 SCR 595; Indian Express 'Newspapers(Bombay) Pvt
Ltd v. Union 9f India (1985) 1 SCC 641 : [1985] 2 SCR
287; Mr. X v. Hospital Z (1998) 8 SCC 296 : [1998]
1 Suppl. SCR 723; PUCD v. Union of India (1997) 1
SCC 301 : [1996]-ll} Stipp!. s·cR 32-1; ·State of
Karnataka v. Krishnappa (2000) 4 SCC 75 : [2000]
2 SCR 761; Sudhansu Sekhar Sahoo v. State of Orissa
(2002) 10 SCC 743 : [2002] 5 Suppl. SCR 536; Sharda
v Dharmpal (2003) 4 SCC 493 : [2003] 3 SCR 106;
District Registrar and Collector;. Hyderabad v. Canara
Bank (2005) 1 SCC 496 : [2004] 5 Suppl. SCR 833; P
R Metmni v. Commissioner of Income Tax (2007) 1 SCC
789 : [2006] 9 Suppl. SCR 1; Directorate of Revenue
v. Mohd Nisar Holia (2008) 2 SCC 370 : [2007] 12
SCR 906; Anuj Garg v. Hotel Association of India
(2008) 3 SCC 1 : [2007] 12 SCR 991; Hinsa Virodhak
Sangh v. Mirzapur Moti Kuresh Jamat (2008) 5 SCC
33 : [2008] 4 SCR 1020; State of Maharashtra v. Bharat
Shanti Lal Shah (2008) 13 SCC 5 : [2008]
12 SCR 1083; Suchita Srivastava v. Chandigarh
Administration (2009) 9 SCC l; Bhavesh Jayanti
Lakhani v. State of Maharashtra (2009) 9 SCC 551 :
[2009] 12 SCR 861; Selvi v.