In a recent Supreme Court judgment delivered on 24.08.2017 by a 9-Judge Bench of the Supreme Court comprising of Hon’ble Chief Justice Justice J.S. Khehar,  Justice R K Agrawal,  Justice S Abdul Nazeer and Dr Justice D Y Chandrachud,  Justice J Chelameswar,  Justice S A Bobde,  Justice Abhay Manohar Sapre,  Justice Rohinton Fali Nariman and  Justice Sanjay Kishan Kaul, in the matter Justice K S Puttaswamy (Retd.), and Anr vs. Union of India and Ors, has held that right to privacy is a fundamental right under Article 21 of the Constitution of India.

The Court has held that privacy postulates the reservation of a private space for the individual, described as the right to be let alone. The Court has also laid down the essential nature of privacy:

  1. Privacy enables an individual to take decisions relating to significant matters of human life.
  2. Privacy of an individual is an important aspect and subset of human dignity and, therefore, they are inseparably interlinked with each other.
  3. Privacy is intrinsic for the exercise of liberty and for the fulfillment of freedoms protected by the Constitution because it is in privacy that the individual can decide how liberty and freedom is best exercised. For e.g., an individual may prefer to lead a particular lifestyle, faith or religion, etc which requires a choice to be made within the privacy of the mind.
  4. But individuals may, at times, face privacy concerns because they reside in a society where they may have to interact with people, either directly or using technology or both, and share information about themselves. The Supreme Court further held that privacy is not lost or surrendered merely because the individual is in a public place and that there is also a need to examine and introduce a robust regime for data protection in India.

The Supreme Court while holding that life and personal liberty are rights that are recognized by the Constitution as inalienable and inherent to an individual came to the following conclusion:

  • Privacy is a right protected by the Constitution which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution;
  • Some aspects of privacy also arise from the other facets of freedom and dignity recognized and guaranteed by the fundamental rights contained in Part III of the Constitution;
  • But, at the same time, the right to privacy is not an absolute right and may be subjected to the following restrictions as specified in Part III of the Constitution: a. A law may impose certain reasonable restrictions, as specified under Part III, on the exercise of any fundamental right; and b. In the context of Article 21, an invasion of privacy may be justified on the basis of a law which lays down a procedure which is fair, just and reasonable as well as meet the requirements of (i) legality; (ii) need; and (iii) a rational nexus between the objects and the means adopted to achieve them.

With the pronouncement of this Judgment, the Supreme Court has declared that it has overruled the various earlier judgments which were of the view that right to privacy is not constitutionally protected.


Harini Daliparthy

Legal Associate


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