CASE BRIEF

K.S PUTTASWAMY AND ANR V. UNION OF INDIA AND ORS

CASE DETAILS
CITATION: (2017) 10 SCC 1
DATE OF JUDGEMENT: AUGUST 24TH, 2017.
BENCH/JUDGE: J.S KHEHAR, CJ, JASTI CHELAMESWAR, S.A BOBDE, R.K. AGARWAL, R.F
NARIMAN, A.M SAPRE, DR. D.Y. CHANDRACHUD, SANJAY KISHAN KAUL AND S. ADBUL
NAZEER.
LAW: CONSTITUTION OF INDIA
IMPORTANT ARTICLE: ARTICLE 14, ARTICLE 19 & ARTICLE 21.

BACKGROUND: FACTS LEADING TO REFERRAL BENCH

- A bench of three Judges of this Court while considering the constitutional challenge to the
Aadhar card scheme of the Union Government in deciding whether the norms for and
compilation of demographic biometric data by the Government vide order dated 11-8-
2015 was challenged on the ground that it violates the right to privacy.

- The question for referral arose due the position of law of two decisions namely M.P
Sharma v. Satish Chandra 1954 SCR 1077 and Kharak Singh v State of UP 1964 1 SCR
332. While respondents urged that aforementioned judgements were by a bench of eight
and six judges respectively, the petitioners submitted that the aforementioned judgements
were founded on the principle expounded in A.K Gopalan v State of Madras (1950) SCC
228 which was held not be good law by an eleven judge bench in RC Cooper v Union of
India((1970) 1 SCC 248. Additionally, seven judge bench in Maneka Gandhi v Union
of India (1978) 1 SCC 248 upheld the minority judgment of Subba Rao, J in Kharak Singh
case. Other various judgements1 which upheld the right of privacy were by a smaller bench
of judges.
(@Para 4,5)

ISSUES
ISSUE I: Whether there is a constitutionally protected right to privacy; If there is a
constitutionally protected right, whether this has the character of an independent fundamental
right or whether it arises from within the existing guarantees of protected rights such as life
and personal liberty; the doctrinal foundations of the claim to privacy; the content of privacy;
the nature of the regulatory power of the State.
ISSUE II: What is the ratio decidendi of MP Sharma case and Kharak Singh case and whether
those cases are rightly decided?

1
Gobind v State of M. P (1975) 2 SCC 148, R. Rajagopal v. State of T.N (1994) 6 SCC 632, PUCL v. Union of
India (1997) 1 SCC 301.

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Majority Judgement by Dr. DY Chandrachud, J (On behalf of Khehar, CJ, Agrawal, J,
himself and Nazeer, J)
ANSWERING ISSUE I: OVERRULING OF THE DOCTRINAL POSITION IN MP SHARMA &
KHARAK SINGH
1. Decision in MP - The Union Government ordered an investigation under the
Singh Companies Act into a company in liquidation due to
(@Para 9,10) suspicions of embezzlement and concealment of its true
financial state. During this investigation, search warrants
were issued and records seized, leading to a legal challenge
claiming violations of fundamental rights under Article
19(1)(f) and Article 20(3) of the Constitution. The challenge
regarding Article 19(1)(f) was dismissed. The main issue
before the Court was whether the searches violated Article
20(3), which protects against self-incrimination.
- The court held that the constitutional right to privacy was not
explicitly protected under the Indian Constitution in relation
to powers of search and seizure

2. Decision in - In this case, Kharak Singh, who had been previously

Kharak Singh implicated in a dacoity case but released due to lack of
(@Para 11, 12, evidence, was placed under surveillance by the police based
17) on a "history sheet" compiled against him. This surveillance
included measures like secret picketing, domiciliary visits at
night, regular inquiries into his personal life, and monitoring
of his movements. Kharak Singh challenged these actions as
infringements of his fundamental rights, particularly the right
to privacy and freedom of movement guaranteed under the
Constitution of India.
- In this as per the view of the majority, the right to privacy is
not guaranteed under the constitution in view of the AK
Gopalan judgement which governed the interrelationship
between Article 19 and Article 21 as distinct.
- Subba Rao, J in his dissenting opinion held that rights
conferred by Part III have overlapping areas and that
constitution does not expressly declare the right to privacy as
a fundamental right but such right is essential to personal
liberty.

3. Gopalan - The majority judgement echoed the view that relationship

doctrine: between Article 19 and Article 21 is be one of mutual
Fundamental exclusion. A law which curtailed one of the freedoms
rights as isolated guaranteed by Article 29 would be required to answer the
silos tests of reasonableness under Article 19(2)-(6) alone and was
(@Para 19) excluded from Article 21. Further, “Procedure established by
law” under Article 21 was held to exclude “due process of
law”.

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 - Fazl Ali, J dissented and adopted the view that fundamental
rights are not isolated and separate but protect a common
thread of liberty and freedom

4. Cooper and - The doctrine of fundamental rights as isolated silos was

Maneka: discarded in the case of RC Cooper.
Interrelationship - Further in the case of Maneka Gandhi, it was held that the
between rights expression “personal liberty” in Article 21 covers a variety of
(@Para 22-23) rights, some which have been raised to the status of distinct
fundamental rights and given additional protection under
Article 19.

5. Overruling - Doctrinal positions stand overruled in subject of the view in

(@Para 24-25) RC Cooper and Maneka Gandhi case.
- Settled position of constitutional law stands at:
a. The fundamental rights emanate from the basic notions of
liberty and dignity and the enumeration of some facts of
liberty as distinctly protected rights under Article 19 does
not delude Article 21 of its expansive ambit.
b. The validity of a law which infringed the fundamental
rights has to be tested not with reference to the object of
State action but on the basis of its effect on the guarantees
of freedom.
c. The requirement of Article 14 that State action must not
be arbitrary and must fulfil the requirement of
reasonableness, imparts meaning to the constitutional
guarantees in Par III.

ANSWERING ISSUE II: WHETHER PRIVACY IS A RIGHT PROTECTED BY PART III OF THE
CONSTITUTION?
1. ORIGINS OF PRIVACY
- Evolution of the doctrine of privacy has followed the public-private realms distinction.
(@Para 31)
- Thomas Cooley in his Treatise on the Law of Torts first adopted the phrase “the right to
be let alone”. (@Para 37)
- It is a basic human need to live with dignity and privacy, particularly in the context of
urbanization and economic progress that disrupts the traditional rural life. As society
evolved with technology, there is a growing concern about protecting individuals from
constant public scrutiny and interconnectedness. (@Para 41)

2. NATURAL & INALIENABLE RIGHTS

- Natural rights are inalienable because they are inseparable from the human personalitly.
(@Para 42)
- Natural rights are not bestowed by the State. They inhere in the human beings because
they are huma. Individuals can have rights against the state that are prior to rights created
by explicit legislation. This idea was developed owing to the liberal theory of law
propounded by Ronald Dworkin. (@Para 46, 48)

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 3. EVOLUTIONS OF THE PRIVACY DOCTRINE IN INDIA
- The court notes that a comprehensive analysis of precedent for constitutional right of
privacy rests on the doctrinal foundation on trilogy of MP Sharma case, Kharak Singh
case & Gobind. The court noted the deficiency is in the form of an direct answer to
question of the status pf right to privacy in Constitutional framework. MP Sharma did
not answer the question, Kharak Singh dealt with the question in an inconsistent manner
while Gobind case rested on an assumption that such right exists.
(@Para 99, 104 )
- The court studied the content of right to privacy which found expression in various cases
such as PUCL, X v. Hospital Z, Selvi, Ram Jethmalani, NALSA. (@Para 103)

4. JURISPRUDENCE ON DIGNITY
- India’s constitutional jurisprudence recognizes the inseparable relationship between
protection of life and liberty with dignity. Dignity as a constitutional value finds
expression in the Preamble which facilitates a humane and compassionate society.
Reflection of dignity are found in the guarantee against arbitrariness (Article 14), the
lamps of freedom (Article 19) and in the right to life and personal liberty. (Article 22).
(@Para 108).
- The court underlined the importance of individual freedoms and dignity in life with
catena of judgements. Dignity, a fundamental constitutional value, is central to all
guaranteed rights, including privacy, which ensures life is lived with true substance and
fulfillment. (@Para 118, 119).

5. FUNDAMENTAL RIGHTS CASES

- The court went through catena of judgements to elucidate the primacy and nature of
fundamental rights
Serial Name of the Case & Finding in brief Paragraph
No. number
1. Golak Nath v. State of The Fundamental Rights are 120
Punjab primordia rights which have
traditionally been regarded as natural
rights and are inseparable from
human existence.
2. Kesavananda Bharati Fundamental Rights cannot be 121-123
v State of Kerela amended out of existence.
3. Indira Nehru Gandhi v Parliament in the exercise of its 124
Raj Narain. (Khanna, power to amend the Constitution
J) cannot destroy or abrogate the basic
CHECK structure of the Constitution.
4. Minerva Mills Ltd v. Article 14 & 19 confer rights 125
Union of India essential for proper functioning of a
democracy and are universally
regarded by UDHR. Withdrawing
protections of Article 14 and 19 is
impermissible and amounts to
violation of basic structure.
6. NO WAIVER OF FUNDAMENTAL RIGHTS (@PARA 126)
7. PRIVACY AS INTRINSIC TO FREEDOM & LIBERTY

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- Argument that right to privacy is independent of the liberties guaranteed by the Part III
of the Constitution and to be recognized as a constitutional right would require a
constitutional amendment is wrong. The sanctity of privacy lies in its functional relation
with dignity. Privacy recognizes the autonomy of the individual. (@Para 127).

8. DISCORDANT NOTES OF THE COURT ON

i. ADM, Jabalpur case (@Para 133, 139, 141)
ii. Suresh Kumar Koushal Case (@Para 146, 147).
9. INDIA’S COMMITMENT UNDER INTERNATIONAL LAW
- The recognition of privacy as a fundamental constitutional value is part of India’s
commitment to a global human rights regime. (@Para 148).
- When there is contradiction between internation and domestic law, domestic law will
prevail. In this case, there is no contradiction. (@Para 154).

10. COMPARATIVE LAW

i. UK decisions (@Para 156-170).
ii. US decisions. (@Para 171-195).
iii. South African decisions. (@Para 196-205).
iv. Canadian decisions. (@Para 206-215).
v. Eurpoean Convention on Human Rights and the European Charter.
(@Para 216-229).
vi. Inter-American Court of Human Rights. (@Para 230).
11. CRITICISMS OF THE PRIVACY DOCTRINE
i. Thomson’s Reductionism (@Para 241)
ii. Posner’s Economic critique. (@Para 242).
iii. Bork’s critique. (@Para 243-244).
iv. Feminist critique. (@Para 245).
12. LACK OF CLARITY OVER DEFINITION OF PRIVACY
- Privacy as distinct connotations: Spatial control; Decisional autonomy. Informational
control. (@Para 248).
- Nine types of privacy mainly bodily, spatial, communicational, proprietary, intellectual,
decisional, associational, behavioral and informational. (@Para 250).
13. CONSTITUENT ASSEMBLY & PRIVACY: LIMITS OF ORIGINALIST INTERPRETATION
- It cannot be said Constituent Assembly has expressly revolved to rejected the notion of
right to privacy as an integral element of liberty and free guaranteed by the Fundamental
rights. (@Para 258).
- Interpretation of the Constitution cannot be restricted to original understanding and must
continuously evolve to meet aspirations and challenges of the present and the future.
(@Para 259).
- Constitution as a living instrument. (@Para 262)

14. IS THE STATUTORY PROTECTION TO PRIVACY A REASON TO DENY A

CONSTITUTIONAL RIGHT?
- Difference between constitutional rights and statutory rights explained. (@Para 264).
- An existence of law will not negate the rationale for a constitutional right or make it
unnecessary. (@Para 265).
15. RIGHT TO PRIVACY IS NOT AN ELITIST CONSTRUCT
- Civil and Political rights are not subservient to socio-economic rights. Both set rights
are complimentary. (@Para 267).

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 - Privacy is not a privilege of few. Court rejected the elitist view argument. (@Para 271).
16. SUBSTANTIVE DUE PROCESS
- The expression “due process of law” was deleted by the Drafting Committee owing to
the fear of invalidation of social welfare as observed in US history.
- Now, evolution of Article 21 has two major areas of change. First, Fundamental rights
are no longer isolated silos. Second, that “procedure established by law” connotes that
procedure must be fair, just and reasonable. (@Para 291).
17. ESSENTIAL NATURE OF PRIVACY
- Privacy as an essential aspect of dignity. (@Para 298)
- Privacy as core of human personality and autonomy. (@Para 299).
18. INFORMATIONAL PRIVACY
- Information has three facets: it is non-rivalrous, invisible and recombinant. (@Para
303).
- Informational privacy has also given rise to data protection which seeks to protect the
autonomy of the individual. State must undertake this exercise after balancing the
requirements of privacy coupled with over values such as transparency, non-
discrimination, etc. (@Para 307-308).
- To protect legitimate state interest, the statute must ensure adherence to the three-fold
requirement to protect all aspects of privacy. (@Para 310, 313).

19. CONCLUSION
- MP Sharma & Kharak Singh stands overruled to the extend it holds that right to privacy
is not guaranteed as a right under our constitution. (@Para 316-317).
- Life and personal liberty are inalienable rights. They are not creations of Constitution
but are recognized in the constitution in each individual as intrinsic and inseparable.
(@Para 318-319).
- Privacy is a constitutionally protected right which emerges primarily from the
guarantees of life and personal liberty in Article 21. (@Para 320).
- Nature of Privacy and its content. (@Para 323-324).
- Right to privacy is not an absolute right and must pass meet the threshold requirement
of legality, need and proportionality. (@Para 325).
- Informational privacy is a facet of right to privacy. (@Para 328).

JUDGEMENT BY JUSTICE J. CHALEMESHWAR (CONCURRING)

Issues (@Para 331).
Issue I: Is there any fundamental right to privacy under Constitution?
Issue II: If it exists, where is it located?
Issue III: What are the contours of such rights?
Judgement
A. Limitations of MP Sharma judgement and its rejection as not being correct
authority for proposition of right to privacy. (@Para 336-337).
B. Limitation of Kharak Singh: Inconsistency in the judgement. (@Para 340, 344).
C. Interpretation of Constitution.

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- Interpretation cannot be just limited to the text of the constitution to understand he purpose
and scheme of the constitution. It would be detrimental to the liberties of the subject. This
court has given way to plethora of rights which weren’t recognized by the text of the
constitution but were given realization as being inherent to right to life and personal liberty
under Article 21 (@Para 346, 349).
- Explanation of the word “liberty” in Article 21 as per the constitutional texts and in light
of the judgements. (@Para 362, 363, 365).
D. Nature and right to privacy (@Para 372, 373).
E. Limitation on the right to privacy.
- If a privacy claim flows only from one of the expressly enumerated provision under Article
19 then limitations under Article 19 would apply. (@Para 379).
- As for others, the reasonable standard under Article 21 shall apply. (@Para 380).
JUDGEMENT BY JUSTICE S.A BOBDE (CONCURRING)
-
I. The effect of MP Sharma and Kharak Singh
- Limitations in the judgment (@Para 385, 389).
- Limitation in Kharak Singh (@Para 386, 389).
II. The form of the privacy right
- The nature of this right. (@Para 392).
- The argument that right to privacy must either be a common law right or a fundamental
right was rejected. A distinction between the two forms of rights also explained. (@Para
397).
- Privacy has the nature of being both: a common law right and a fundamental right. (@Para
398).
III. The contents of the right to privacy
- Defining privacy as the condition or state of being free from public interference or
intrusion with one’s act or decisions. (@Para 402-403).
IV. Privacy’s connection to dignity and liberty
- Privacy is not just a descriptive claim but also a normative one. (@Para 407).
- Article 21 and right to privacy: They both are integrally connected in a way that privacy
is often the basic condition for exercise of the right of personal liberty. (@Para 409).
- Dignity and privacy are both intimately intertwined and are natural conditions for the birth
and death of the Individual. (@Para 411).
V. Privacy as a travelling right:
- It is just not limited to Article 21 but can also be simultaneously found in any other
guarantees in Part III. (@Para 415).
VI. The test for privacy
- Privacy as a relational right. (@Para 423).
- Two step to right to privacy: First, to choose which activities that are taken in by the
general residue of liberty available to her and second, to specify whom to include in one’s
circle of performing them. (@Para 424).
VII. Conclusions (@Para 428).

JUDGEMENT BY JUSTICE R.F NARIMAN (CONCURRING)

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- No such broad ratio cases of Kharak Singh and MP Sharma can be found that says right
to privacy is not available in Part III of the Constitution. (@Para 457, 469, 475).
- In absence of any specific prohibition in domestic law, international law forms part of
Indian law and must be read into as a part of our fundamental rights. (@Para 462).
- Argument that constitution does not uses the phrase “due process” rejected and
emphasized that constitution and right to privacy must be judged in today’s context and
not yesterday’s.
- The elitist argument rejected. (@Para 478).
- Right to privacy as a vague and amorphous concept rejected. (@Para 479).
- Only information that is already in public domain and not parted with “voluntary” will not
be covered with privacy right. (@Para 480).
- Right to privacy in respect of taxation laws requiring information, in relation to census,
documents required for obtaining passport and prohibitions pertaining to viewing
pornography was also discussed and were said to be protected by the right to privacy.
(@Para 487).
- The argument that statutes already protect the privacy rights of individual so it in
unnecessary to read a fundamental right to privacy into Part III was also rejected. A
distinction was also drawn to protected afforded to statutory laws and fundamental rights
in Part III. (@Para 489, 490).
- The argument that right to privacy is afforded protection under Part III then state will not
be able to obtain any information about persons and statutory provisions dealing with
aspect of privacy would be vulnerable was held untenable. Such statutory provisions
would be tested on the balancing test. (@Para 495).
- As a result of constitutional interpretation after Maneka Gandhi, Article 21 has been a
repository of a vast multitude of human rights. In this light, the doctrine of originalism
was rejected. (@Para 500, 501).
- The content of right to privacy under our Constitution would cover three aspects (@Para
521):
a. Privacy involving person [Article 19(1)(d) and (e)].
b. Informational privacy [Article 21]
c. Privacy of choice [Article 19(1)(a) to (c), 20(3), 21 and 25]
- Right to privacy is not absolute and is subject to reasonable regulation made by the State
to protect legitimate state interests or public interest. (@Para 526).
- Right to privacy is in the nature of inalienable right. (@Para 534).
JUDGEMENT BY JUSTICE A.M SAPRE (CONCURRING)

- Right to privacy of any individual is essentially a natural right. It is indeed inseparable

and inalienable form human being. (@Para 557-558).
- Right to privacy emanates from the two expression of the Preamble, namely, “Liberty of
thought, expression ,belief and worship” and “Fraternity assuring the dignity of the
Individual”, from Article 19 and Article 21 of the Constitution.
- Rejected the argument of petitioners to overrule certain cases pertaining to right to privacy
which were not referred to this bench. As per Justice A.M Sapre, refence court cannot
travel beyond the reference made and is confined to answer only those questions that are
referred. (@Para 571-572).

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 JUDGEMENT BY JUSTICE SANJAY KISHAN KAUL (CONCURRING)
- Emphasized on the right to privacy claims against the State actors in terms of surveillance,
data collection, etc. and non-state actors such as journalism and technological
development. (@Para 585, 587).
- While highlighting the concerns arising due to “Big data”, Justice Kaul pointed out the
unprecedented need for regulation of information. (@Para 592).
- Rejected the traditional notation original intent theory of Constitution argument and
emphasized on the nature of Constitution as living document. (@Para 598, 599 602, 617).
- Right to privacy is important for the protection of privacy and to ensure protection of
liberty and dignity. It is also key to freedom of thought. (@Para 618, 619)
- Privacy also entails right to control dissemination of personal information. (@Para 620 ).
- Right to privacy also included right to protect his reputation from being unfairly harmed.
Information that breaches privacy requires protection. (@Para 623, 624).
- Right to privacy also includes right to control his/her own life and image as portrayed to
the world and to control commercial use of his/her identity. It protects individual autonomy
and personal dignity. (@Para 625, 626).
- Data Regulation (@Para 637).
- Conclusion (@Para 644, 650).
ORDER OF THE COURT (SUMMARIZED IN @PARA 652).
- Point 1: The decision in MP Sharma which holds that the right to privacy is not protected
by the Constitution stands overruled.
- Point II: The decision in Kharak Singh to the extent that it holds that the right to privacy
is not protected by the Constitution stands overruled.
- Point III: The right to privacy is protected as an intrinsic part of the right to life and
personal liberty under Article 21 and as part of the freedom guaranteed by Part III of the
Constitution.
- Point IV: Decisions subsequent to Kharak Singh which have enunciated the position in
Point III lay down the correct position in law.