• Ms Arushi Singh

Justice K.S. Puttaswamy (retd.) v. Union of India (Writ Petition (Civil) No 494 Of 2012)


Justice K.S. Puttaswamy (retd.) v. Union of India


Writ Petition (Civil) No 494 Of 2012


Supreme Court of India (Civil Original Jurisdiction)

Nine Judges’ Constitutional Bench: Hon’ble Chief Justice Jagdish Singh Khehar, Hon’ble Mr. Justice R.K. Agrawal, Hon’ble Dr Justice D.Y. Chandachud (Authored the Majority Judgment), Hon’ble Mr. Justice S Abdul Nazeer, Hon’ble Mr. Justice J. Chelameswar, (Authored concurrent judgment) Hon’ble Mr. Justice R.F. Nariman (Authored concurrent judgment), Hon’ble Mr. Justice A.M. Sapre (Authored concurrent judgment), and Hon’ble Mr. Justice S.K. Kaul (Authored concurrent judgment)


Right to Privacy Judgment


Whether Right to Privacy is a fundamental right guaranteed by the Constitution of India or not?


  1. Retired Justice KS Puttaswamy of Karnataka High Court in 2012 approached the Supreme Court via a writ petition challenging the constitutional validity of the Aadhaar Scheme of the then government.

  2. The petition was placed before a 3 Judge Bench of Justice Chelameshwar, Justice Bobde, Justice C. Nagappan in August 2015.

  3. The bench referred the matter to a 5 Judge Bench which in turn referred the specific matter of determining whether right to privacy was a fundamental right or not, to a 9 Judge Bench.

  4. Hence, the present bench dealt with the aforementioned issue.


  • Whether the term “privacy” can be exhaustively defined or not?

The court iterated that it was not possible to exhaustively define right to privacy. It held that the Constitution must evolve with the felt necessities of time to meet the challenges of future. However, the court did recognise the broad contours of privacy so that it does not remain vague and uncertain. It was held that privacy includes at its core –

  1. The preservation of personal intimacies.

  2. The sanctity of family life, marriage, procreation and the home.

  3. Sexual orientation.

  4. Right to be left alone. (An expectation that society would not interfere in the choices made by the person so long as they do not cause harm to others)

  5. Individual autonomy and the ability of the individual to control vital aspects of his or her life.

Furthermore, the court recognised that privacy has both positive and negative content. The negative content restrained the state from committing an intrusion upon the life and personal liberty of a citizen. Its positive content imposed an obligation on the state to take all necessary measures to protect the privacy of the individual.

  • Whether the right to privacy is protected under Part III of the Constitution of India or not?

It was held that privacy was a constitutionally protected right which emerged primarily from the guarantee of life and personal liberty in Article 21. Elements of privacy also arose in varying contexts from the other fundamental rights contained in Part III.

  • Whether the right to privacy was absolute or not? And if not, then when can the State encroach upon the right to privacy?

The court held that like other rights under Part III, privacy was not an absolute right. In the context of Article 21 an invasion of privacy must be justified on the basis of a law which stipulated a procedure which was fair, just and reasonable. An invasion of life or personal liberty must be met with the three-fold requirement of –

1. Legality (of the law under which privacy was restricted)

2. Necessity (for encroaching upon privacy)

3. Proportionality (to determine the permissible extent of encroachment)

  • Whether the ratio decidendi of M.P. Sharma (1954) and Kharak Singh(1964) was overruled in light of the above discussion or not?

The judgment in M P Sharma which affirmed the validity of search and seizure, held essentially, that in the absence of a provision similar to the Fourth Amendment to the US Constitution (which enshrined the Right to Privacy the US constitution), the right to privacy could not be read into the provisions of Article 20 (3) (Right against self-incrimination) of the Indian Constitution. The judgment did not specifically adjudicate on whether a right to privacy would arise from any of the other provisions of the rights guaranteed by Part III including Article 21 and Article 19. The observation that privacy was not a right guaranteed by the Indian Constitution was not reflective of the correct position and therefore it was held that M P Sharma was overruled to the extent to which it indicated to the contrary.

In Kharak Singh, the U.P. Police to establish the personal records of criminals under surveillance, subjected the petitioner to regular surveillance, including midnight knocks. The petitioner moved to the Supreme Court for a declaration that his fundamental rights were infringed. The court while deciding that the domiciliary visits at night violated liberty and held that –

Part 1. Content of the expression ‘life’ under Article 21 meant not merely the right to a person’s “animal existence” and that the expression ‘personal liberty’ was a guarantee against invasion into a person’s home/ personal security.

Part 2. The right to privacy was not a guaranteed right under our Constitution.

The Court in the present matter held that the first part of the judgment was correct, however, the second part was not reflective of the correct position. Hence, the court overruled Kharak Singh partially.


  1. M P Sharma v Satish Chandra, District Magistrate, Delhi (1954) SCR 1077

  2. Kharak Singh v State of Uttar Pradesh (1964) 1 SCR 332

  3. A K Gopalan v State of Madras AIR 1950 SC 27

  4. Rustom Cavasji Cooper v Union of India (1970) 1 SCC 248

  5. Maneka Gandhi v Union of India (1978) 1 SCC 248

  6. People’s Union for Civil Liberties v Union of India (1997) 1 SCC 301

The author is a LL.B Graduate of University School of Law and Legal Studies, GGSIPU, New Delhi

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