Justice K.S. Puttaswamy (Retd.) v Union of India (Supreme Court, 2017) — privacy is a fundamental right

It is the largest Bench to have spoken on Article 21 since Kesavananda, and it supplies the framework, legality, need and proportionality, now applied to every interference with life and personal liberty. Navtej Singh Johar and Joseph Shine, decided the following year, build directly on it.

A Bench of three judges hearing the challenge to the Aadhaar scheme noted in an order of 11 August 2015 that the compilation of demographic and biometric data by the Government was questioned as a violation of the right to privacy. The Attorney General "urged that the existence of a fundamental right of privacy is in doubt in view of two decisions": M.P. Sharma v Satish Chandra (1954), by a Bench of eight, and Kharak Singh v State of U.P. (1962), by a Bench of six, each containing observations that the Constitution does not protect privacy. Since later decisions recognising privacy had been given by smaller Benches, the question was referred to a Bench of nine: Khehar C.J., Chelameswar, Bobde, Agrawal, Nariman, Sapre, Chandrachud, Kaul and Nazeer JJ. Chandrachud J. wrote the judgment for the Chief Justice, Agrawal, Nazeer JJ. and himself; the other judges delivered concurring opinions. The reading in the compilation is from Chandrachud J.'s judgment.

Is there a fundamental right to privacy under the Constitution, and were M.P. Sharma and Kharak Singh correct in holding that there is not?

The earlier cases. M.P. Sharma had held that the Constitution contains no guarantee against search and seizure like the Fourth Amendment, but had not decided whether privacy is protected by other provisions; its observations do not reflect the correct position. Kharak Singh's reliance on the majority in Gopalan "is not reflective of the correct position in view of the decisions in Cooper and in Maneka. Kharak Singh to the extent that it holds that the right to privacy is not protected under the Indian Constitution is overruled."

The conclusions. "(A) Life and personal liberty are inalienable rights. These are rights which are inseparable from a dignified human existence. The dignity of the individual, equality between human beings and the quest for liberty are the foundational pillars of the Indian Constitution"; "(B) Life and personal liberty are not creations of the Constitution. These rights are recognised by the Constitution as inhering in each individual as an intrinsic and inseparable part of the human element which dwells within"; "(C) Privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution. Elements of privacy also arise in varying contexts from the other facets of freedom and dignity recognised and guaranteed by the fundamental rights contained in Part III"; "(D) Judicial recognition of the existence of a constitutional right of privacy is not an exercise in the nature of amending the Constitution"; "(E) Privacy is the constitutional core of human dignity"; "(F) Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life"; "(G) This Court has not embarked upon an exhaustive enumeration or a catalogue of entitlements or interests comprised in the right to privacy. The Constitution must evolve with the felt necessities of time".

The test. "(H) Like other rights which form part of the fundamental freedoms protected by Part III, including the right to life and personal liberty under Article 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 Article 21 an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. The law must also be valid with reference to the encroachment on life and personal liberty under Article 21. An invasion of life or personal liberty must meet the three-fold requirement of (i) legality, 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". Privacy "has both positive and negative content": it restrains the State from intrusion and obliges it to protect the individual's privacy.

Informational privacy. "Informational privacy is a facet of the right to privacy. The dangers to privacy in an age of information can originate not only from the state but from non-state actors as well. We commend to the Union Government the need to examine and put into place a robust regime for data protection."

Privacy is a fundamental right, emerging primarily from Article 21 and from the other freedoms in Part III; it includes personal intimacies, family, marriage, procreation, the home, sexual orientation, autonomy and the right to be left alone. It is not absolute. An invasion must rest on a law providing a fair, just and reasonable procedure and must satisfy legality, a legitimate State aim, and proportionality between the object and the means. M.P. Sharma and Kharak Singh are overruled to the extent they held otherwise.