Holding

The right to privacy is a fundamental right 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.

Summary

The case arose from a reference to a nine-judge bench to determine whether the right to privacy is a constitutionally protected fundamental right under the Indian Constitution, particularly in light of the Aadhaar scheme's collection of biometric data. The petitioners argued that privacy is an intrinsic part of the right to life and personal liberty under Article 21, while the Union of India contended that earlier decisions in M.P. Sharma and Kharak Singh held that privacy is not a fundamental right. The Supreme Court overruled M.P. Sharma and the majority in Kharak Singh to the extent they denied privacy as a fundamental right. The Court held that privacy is a constitutionally protected right that emerges primarily from Article 21 and also from other fundamental rights in Part III, including Articles 14, 19, and 25. The judgment emphasized that privacy is essential for human dignity, autonomy, and the exercise of liberty, and that it is not an absolute right but subject to reasonable restrictions based on legitimate state interests and proportionality. The Court also recognized informational privacy as a facet of the right to privacy and directed the government to establish a robust data protection regime. The reference was answered accordingly, and the cases were sent back for adjudication on merits.

Issues considered

Whether the right to privacy is a fundamental right under the Indian Constitution?
Whether the decisions in M.P. Sharma and Kharak Singh correctly held that privacy is not a constitutionally protected right?
Whether privacy is an intrinsic part of the right to life and personal liberty under Article 21?
Whether privacy is also protected under other fundamental rights in Part III?
What are the contours and limitations of the right to privacy?
Whether informational privacy is a facet of the right to privacy?
Whether the state has an obligation to protect privacy against both state and non-state actors?

Legislation cited

Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016
Constitution of Indias. Article 14, s. Article 19, s. Article 20, s. Article 21, s. Article 25, s. Article 26, s. Article 28, s. Article 29, s. Article 359, s. Article 368, s. Article 51
Indian Post Office Act, 1898s. 26
Indian Telegraph Act, 1885s. 5(2)
Protection of Human Rights Act, 1993s. 12(f), s. 2(1)(d), s. 2(1)(f)
Right to Information Act, 2005s. 8(1)(j)

Subjects

Right to privacyFundamental rightsArticle 21Personal libertyDignityData protectionInformational privacyOverruling precedentConstitutional interpretationProportionalityLegitimate state interest

Judgment

[2017] 10 S.C.R. 569

JUSTICE K S PUTIASWAMY (RETD.), A
AND ANR.
v.
UNION OF INDIA AND ORS.
(Writ Petition (Civil) No. 494 of2012) B
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.] c
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
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)
E
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
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
H
569
570 SUPREME COURT REPORTS [2017] 10 S.C.R.

A '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
B
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
c 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 non-
State 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 - lnter-
B 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 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.)
F
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 -
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
H
·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
Ill and, mutatis mutandis, takes the form of whichever of their
c
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
significance is acknowledged both by the Preamble and by Supreme F
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.)

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576 SUPREME COURT REPORTS [2017] 10 S.C.R.

A 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.)
B
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.)
c
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 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)
F
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, B
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.)
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
Part Ill. (S. A. Bobde, J.) D

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 self- G
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.)
Constitutioll of India - Right to privacy - Privacy is not just
B 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 -
c 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 non-
State 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 non-
State 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.)
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580 SUPREME COURT REPORTS [2017] 10 S.C.R.

A 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
B
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
c 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
D 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
E 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
F 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
G 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.)
H

•
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 E
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 F
government. (D1: D. Y. Chandrachud, J.)
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 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.
F
(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.)
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.)
H
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: c
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
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.
As a theoretical construct, it would otherwise be strictly possible
B
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-F-
G; 670-A-B]
Second Treatise of Government (1690) by John
c 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);
D 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.

E 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
F 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
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]
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA · 585 ·· · ·

3 SCR 946; Maneka Gandhi v. Union of India (1978) A
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]
B
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] c
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 D
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 E
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
F
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 : G
[2009] 12 SCR 861; Selvi v. State of Kamataka (2010)
7 SCC 263 : [2010] 5 SCR 381; Bhabani Prasad Jena
v. Orissa State Commission for Women (2010) 8 SCC
633 : [2010] 9 SCR 457; Amar Singh v. Union of India
(2011) 7 SCC 69 : [2011] 6 SCR 403; Ram Jethmalani
H
586 SUPREME COURT REPORTS [2017] 10 S.C.R.

A v. Union of India (2011) 8 SCC 1 : [2011] 8 SCR 725;
Sai1joy Narayan v. High Court of Allahabad (2011) 13
SCC 155 : [2011] 10 SCR 781; Ramlila Maidan
Incident I'. Home Secretary, Union of India (2012) 5
SCC 1 : [2012] 4 SCR 971; Bihar Public Service
Commission v. Saiyed Hussain Abbas Rizwi (2012) 13
B
SCC 61 : [2012] 11 SCR 1032; Lillu @Rajesh v. State
of Harya11a (2013) 14 SCC 643; Thalappalam Service
Cooperative Bank Limited v. State of Kerala (2013) 16
SCC 82 : [2013] 14 SCR 475; Manoj Narula v. Union
of India (2014) 9 SCC 1 : [2014] 9 SCR 965; National
c Legal Services Authority v. Union of India (2014) 5 SCC
438; ABC v. The State (NCT of Delhi) (2015) 10 SCC 1
: [2015] 8 SCR 422; Supreme Court Advocates on
Recotd Association v. Union of India (2016) 5 SCC 1 :
[2016] 11SCR419 - referred to.
D Boyd v. United States 116 US 616 (1886); Wolf v.
Colorado 338 US 25 (1949); Griswold v. Connecticut
381 US 479 (1965); Jane Roe v. Henry Wade 410 US
113 (1973) - referred to.
3.1 Human dignity is an integral part of the Constitution.
E Reflections 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 21). Life is precious
in itself. But life is worth living because of the freedoms which
enable each individual to live life as it should be lived. The best
decisions on how life should be lived are entrusted to the
F individual. They are continuously shaped by the social milieu in
which individuals exist. The duty of the state is to safeguard the
ability to take decisions • the autonomy of the individual • and not
to dictate those decisions. 'Lif'e' within the meaning of Article 21
is not confined to the integrity of the physical body. The right
G comprehends one's being in its fullest sense. To live is to live
with dignity. The draftsmei:i of the Constitution defined their vision
of the society in which constitutional values would be attained by
emphasising, among other freedoms, liberty and dignity. So
fundamental is dignity that it permeates the core of the l"ights
guaranteed to the individual by Part III. Dignity is the core which
H unites the fundamental rights because the fundamental rights
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 587

seek to achieve for each individual the dignity of existence. A
Privacy with its attendant values assures dignity to the individual
and it is only when life can be enjoyed with dignity can liberty be
of true substance. [Paras 96, 106 and 107](714-B; 718-B-E]
Sajjan Singh v. State of Rajasthan (1965] 1 SCR 933;
Kesavananda Bharati v. State of Kerala (1973) 4 SCC B
225 : [1973] Suppl. SCR 1; Prem Shankar Shukla v.
Delhi Administration (1980) 3 SCC 526 : [1980] 3 SCR
855; Francis Coralie Mullin v. Union Territory of Delhi
(1981) 1 SCC 608 : [1981] 2 SCR 516; Bandhua Mukti
Morcha v. Union of India (1984) 3 SCC 161 : (1984]
2 SCR 67; Khedat Mazdoor Chetna Sangath v. State c
of MP (1994) 6 SCC 260; M Nagaraj v. Union of India
(2006) 8 sec 212 : (2006] 7 Suppl. SCR 336;
Maharashtra University of Health Sciences v.
Satchikitsa Prasarak Mandal (2010) 3 SCC 786 :
(201013 SCR 91; Dr Melunood Nayyar Azam v. State D
of Chhattisgarh (2012) 8 SCC 1 : [2012] 8 SCR 651;
Shabnam v. Union of India (2015) 6 SCC 702; Jeeja
Ghosh v. Union of India (2016) 7 SCC 761 : [2016] 4
SCR 638 - referred to.
3.2 The fundamental rights, are primordial rights which E
have traditionally been regarded as natural rights. In that character
these rights are inseparable from human existence. They have
been preserved by the Constitution, this being a recognition of
their existence even prior to the constitutional document. [Para
108][719-F]
F
Golak Nath v. State of Punjab (1967] 2 SCR 762; Indira
Nehru Gandhi v. Raj Narain (1975) 1 Suppl. SCC 1;
Minerva Mills Ltd v. Union of India (1980) 3 SCC 625 :
(1981] l SCR 206 - relied upon.
Behram Khurshed Pesikaka v. The State of Bombay G
[1955] 1 SCR 613 - referred to.
4.1 Privacy as intrinsic to freedoni and liberty: The
submission that recognising the right to privacy is an exercise
which would require a constitutional amendment arid cannot be a
matter of judicial interpretation is not an acceptable doctrinal H
588 SUPREME COURT REPORTS [2017] IO S.C.R.

A position. The argument assumes that the right to privacy is
independent of the liberties guaranteed by Part III of the
Constitution. There lies the error. 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
. ' rc~ogniscs that living a life of dignity is essential for a human
8
ht!ing to fulfil the liberties and freedoms which are the cornerstone
.<?f° tlie Constitution. To recognise the value of privacy as a
constitutional entitlement and interest is not to fashion a new
funda.mental right by a process of amendment through judicial
fiat 7 Neither are the judges nor is the process of judicial review
C entrusted with the constitutional responsibility to amend the
Constitution. [Para 113][726-D-F]
Unnikrishnan v. State of Andhra Pradesh (1993) 1 SCC
645 : [1993] 1 SCR 594 - relied on•
.4.2 The Constitution was drafted and ado1Jted in a historical
D context. The vision of the founding fathers was enriched by the
histories of suffering of those who suffered oppression and a
violation ot' dignity both here and elsewhere. Yet, it would be
difficult to dispute that many of the problems which contemporary
· societie~' face would not have been present to the minds of the
E most perspicacious draftsmen. No generation, including the
present, can have a monopoly over solutions or the confidence
in its ability to foresee the future. As society evolves, so must
constitutional doctrine. The institutions which the Constitution
has created must adapt flexibly to meet the challenges in a rapidly
growing knowledge economy. Above all, constitutional
F interpretation is but a process in achieving justice, liberty and
· · dignity to every citizen. [Para 116][728-B-D]
4.3 Undoubtedly, there have been aberrations. In the
evolution of the doctrine in India, which places the dignity of the
'• "fndiviclttal and freedoms and liberties at the forefront, there have
G been few discordant notes. Two of them are· ADM .Jabalpur and
Suresh Koushal. The judgments rendered by all the four judges
constituting the majority in ADM .Jabalpur arc seriously flawed.
Life and personal liberty are inalienable to human existence.
These rights are primordial rights. They constitute rights under
H natural law. Dignity is associated with libe.rty and freedom. No .
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 589

civilized State can contemplate an encroachment upon life and A
personal liberty without the authority oflaw. 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. It
B
would be preposterous to suggest that a democratic Constitution
without a Bill of Rights would leave individuals governed by the
state without either the existence of the right' to live or the means
of enforcement of the right. The right to life being inalienable to
each individual, it existed prior to the Constitution and continued
in force under Article 372 of the Constitution. The recognition of C
the right to life and personal liberty under the Constitution does
not denude the existence of that right, apart from it nor can there
be a fatuous assumption that in adopting the Constitution the
people of India surrendered the most precious aspect of the
human persona, namely, life, liberty and freedom to the state on
0
whose mercy these rights would depe~d. Such a construct is
contrary to the basic foundation of the rule of law which imposes
restraints upon the powers vested in the. modern state when it
deals with the liberties of the individual. ADM Jabalpur must be
and is accordingly overruled . .£Paras '111, 119 and 121][728-E;
734-A-E; 735-B] E
ADM Jabalpur v. Shivakant Shukla (1976) 2 SCC 521
: [1976] Suppl. SCR 172; Union of India v. Bhanudas
Krishna Gawde (1977) 1 SCC 834 : [1977] 2 SCR
719 - overruled.
l R Coelho v. State of Tamil Nadu (2007) 2 SCC l : F
[2007] 1 SCR 706 - referred to.
Korematsu v. United States 23 US 214 (1944) - referred
to.
4.~ The observation in Suresh Koushal that "a miniscule G
fractiun 9f the. country's populatio~ cons.titutes lesbians~ gays, •';•
bisexuals or transgenders" is not a sustainable basis to deny the
right- to privacy. Sexual orientation is an essential attribute of
privacy. Discrimination against an individual on the basis of sexual·
orientation is deeply offensive to the dignity and self-worth of
590 SUPREME COURT REPORTS [2017] 10 S.C.R.

A the individual. Equality demands that the sexual orientation of
each individual in society must be protected on an even platform.
The manner in which Koushal has dealt with the privacy - dignity
based claims of LGBT persons is unsustainable. [Paras 126,
128][737-E, G; 738-A, G]
B Suresh Kumar Koushal v. NAZ foundation (2014) 1
SCC 1 : [2013) 17 SCR 116 - disapproved.
5.1 India's commitments under International law: The
recognition of privacy as a fundamental constitutional value is
part of India's commitment to a global human rights regime.
c Article 51 of the Constitution which "forms part of the Directive
Principles requires the State to endeavour to foster respect for
international law and treaty obligations in the dealings of organised
peoples with one another. Article 12 of the Universal Declaration
of Human Rights recognises the right to privacy. Similarly, the
International Covenant on Civil and Political Rights (ICCPR) was
D adopted on 16 December 1966 and came into effect on 23 March
1976. India ratified it on 11 December 1977. The Protection of
Human Rights Act, 1993 which has been enacted by Parliament
refers to the ICCPR as a human rights instrument. The ICCPR
casts an obligation on states to respect, protect and fulfil its norms.
E The duty of a State to respect mandates that it must not violate
the right. The duty to protect mandates that the government must
protect it against interference by private parties. [Paras 129,
130][739-B; 740-C]
Bachan Singh v. State of Punjab (1980) 2 SCC 684;
p Vishaka v. State of Rajasthan (1997) 6 SCC 241 -
referred to.
5.2 It is well settled that where there is a contradiction
between international Jaw and a domestic statute, the Court would
give effect to the latter. In the present case, there is no
G 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 community
H
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 591

and the Court must adopt an interpretation which abides by the A
international commitments made by the country particularly where
its constitutional and statutory mandates indicate no deviation.
[Para 133][741-G; 742-A-B]
Comparative Law
6. Each country is governed by its own constitutional and B
legal structure. Constitutional structures have an abiding
connection with the history, culture, political doctrine and values
which a society considers as its founding principles. Foreign
judgments must hence be read with circumspection ensuring that
the text is not read isolated from its context. The decisions of c
the European Court of Human Rights, the Court of Justice of the
European Union and the Inter-American Court of Human Rights
are indicative of the manner in which the right to privacy has
been construed in diverse jurisdictions based on the histories of
the societies they govern and the challenges before them. The
US Constitution does not contain an express right to privacy. D
But American privacy jurisprudence reflects that it has been
protected under several amendments of the US Constitution. In
South Africa, the right to privacy has been enshrined in Section
14 of the Bill Rights in the 1996 Constitution. Although the
Canadian Charter of Rights and Freedoms of 1982 does not E
explicitly provide for a right to privacy, certain sections of the
charter have been relied on by the Supreme Court of Canada to
recognise a right to privacy. [Para 134)(742-C-G; 750-F; 770-C;
776-H; 777-A] ·
Peter Semayne v. Richand Gresham 11 ER 194; Prince .F
Albert v. Strange (1849) 41 ER 1171; Kaye v. Robertson
(1991] FSR 62; R v. Director of Seriou.~ Fraud Office,
ex parte Smith (1993] AC 1; Wainwright v. Home Office
[2004] 2 AC 406; Douglas v. Hello Ltd. [2001] QB
967; Campbell v. MGN (2004] 2 AC 457; A v. B Inc
(2003] QB 195; Douglas v. Hello ltd [2006] QB 125; G
Associated Newspapers Limited v. His Royal Highness
the Prince of Wales-[2006] EWCA Civ 1776; Murray
v. Big Pictures (UK) Ltd [2008] 3 WLR 1360; R v. The
Commissioner of Police of the Metropolis [2011] UKSC
21; JS v. News Group Newspapers Ltd [2016] UKSC H
592 SUPREME COURT REPORTS [2017] IO S.C.R.

A 26; Boyd v. United States 116 US 616 (1886); Meyer v.
Nebraska 262 US 390 (1923); Pierce v. Society of Siste1:5
(268) US SlO (192S); Olmstead v. United States 277
US 438 (1928); Griswold v. Connecticut 381 US 479
(196S); Katz v. United States 389 US 347 (1967); Stanlev
v. Georgia 394 US SS7 (1969); Eisenstadt v. Baird 40S
B
US 438 (1972); Paris Adult Theatre I v. Slaton 413 US
49 (1973); Roe I'. Wade 410 US 113 (1973); United
States v. Miller42S US 43S (1976); Carey v. Population
Services International 431 US 678 (1977); Smilh v.
Maryland 442 US 73S (1979); Planned Parenthood v.
c Casey SOS US 833 (1992); Minnesota v. Carter S2S
US 83 (1998); Minnesota v. Olson 49S US 91 (1990);
Ky/lo v. United States S33 US 27 (2001); Lawrence 1-:
Texas S39 US SS8 (2003); Bowers v. Hardwick 478 US
186 (1986); NASA v. Nelson S62 US 134 (2011);
Whalen v. Roe429 US S89 (1977); Nixon v. Administrator
D
of General Services 433 US 42S (1977); United States
v. Jones S6S US 400. (2012); Florida v. Jardines S69
US 1 (2013); Riley v. California S73 US (2014);
Obergefell v. Hodges S76 US (2015); National Media
Ltd v. Jooste 1996 (3) SA 262 (A); Bernstein v. Bester
E and Others 1996 (2) SA 7S1 (CC); National Coalition
for Gay and Lesbian Equali(v v. Minister of Justice 1999
(1) SA 6 (CC); Investigating Directorate: Serious
Offences v. Hyundai Motor Distributors Ltd 2001 (1)
SA 54S (CC); Minister of Home Afj'ai1:5 and Another v.
Fourie and Another 2006 (1) SA 524 (CC); NM and
F
Others v. Smith and Others 2007 (S) SA 2SO (CC);
United States v. Miller42S US 43S (1976); Sand Marper
v. United Kingdom [2008) ECHR 1S81; Escher et al v.
Brazil Inter-Am. Ct. H.R. (Ser. C) No. 200; Hunter v.
Southam Inc [1984] 2 SCR 145; R v. .Plant [1993] 3
G S.C.R. 281; Her Majesty, The Queen v. Walter Tessling
(2004) SCC 67; R v. Spencer (2014) SCC 43 - referred
to.
7. The fundamental notions of privacy have been depicted
in a scmin.al article publish1;d in 2017 titled "A Typology of
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 593

privacy" published in the University of' Pennsylvania Journal of A
International law. The articll:' contained diagrammatical
representation presenting two primary axes which emphasised
two aspects of' freedom: the freedom to be let alone and the
freedom for self-development. According to the diagram, the nine
primary types of privacy are (i) bodily privacy which reflects the B
privacy of'the physical body. Implicit in this is the negative freedom
of being able to prevent others from violating one's body or from
restraining the freedom of bodily movement; (ii) spatial privacy
which is reflected in the privacy of a private space through which
access of others can be restricted to the space; intimate relations
and family life are an apt illustration of spatial privacy; (iii) C
communicational privacy which is reflected in enabling an
individual to restrict access to communications or control the
use of information which is communicated to third parties; (iv)
proprietary privacy which is reflected by the interest of a person
in utilising property as a means to shield facts, things 01·
D
information from others; (v) intellectual privacy whieh is reflected
as an individual interest in the privacy of thought and mind and
the development of ·opinions and beliefs; (vi) decisional privacy
reflected by an ability to make intimate decisions primarily
. consisting one's sexual or procreative nature and decisions in
respect of intimate relations; (vii) associational privacy which is E
reflected in the ability of the individual to choose who she wishes
to interact with; (viii) behavioural privacy which recognises the
privacy interests of a person -even while conducting publicly
visible activities. Behavioural privacy postulates that even when
access is granted to others, the individual is entitled to control
F
the extent of access and preserve to herself a measure of freedom
from unwanted intrusion; and (ix) informational privacy which
reflects an interest in p1·eventing information about the self from
being disseminated and controlling the extent of access to
information. [Para 142][799-G; 800-A, E-G; 801-A-C]
8.1 Constituent Assembly and privacy: limits of originalist G
interpretation: There was a debate during the course of the
drafting of the Constitution on the proposal to guarantee to every
citizen the right to secrecy of correspondence in clause 9(d) and
the protection to be secure against unreasonable searches and
H
594 SUPREME COURT REPORTS [2017) 10 S.C.R.

A seizures in their persons houses, papers and assets. The debates
of the Constituent Assembly indicate that the proposed inclusion
(which was eventually dropped) was in two specific areas namely
correspondence and searches and seizures. From this, it cannot
be concluded that the Constituent Assembly had expressly
resolved to reject the notion of the right to privacy as an integral
B
element of the liberty and freedoms guaranteed by the
f~ndamental rights. [Para 148][801-C; 804-D, G]

8.2 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
C of the present and the future. Nor can judges foresee every
challenge and contingency which may arise in the future. This is
particularly of relevance in an age where technology reshapes
our fundamental understanding of information, knowledge and
human relationships that was unknown even in the recent past.
D Hence as Judges interpreting the Constitution today, the Court
must leave open the path for succeeding generations to meet
the challenges to privacy that may be unknown today. [Para
149][805-D-E]
8.3. Even at the birth of the Constitution, the founding
E fathers recognised in the Constituent Assembly that, for instance,
the freedom of speech and expression would comprehend the
freedom of the press. Hence the guarantee of free speech and
expression has been interpreted to extend to the freedom of the
press. Recognition of the freedom of the press does not create
by judicial fiat, a new fundamental right but is an acknowledgment
F of that, which lies embedded and without which the guarantee of
free speech and expression would not be complete. Similarly,
Article 21 has been interpreted to include a spectrum of
entitlements such as a right to a clean environment, the right to
public health, the right to know, the right to means of
G communication and the right to education, besides a panoply of
rights in the context of criminal law and procedure in matters
such as handcuffing and speedy trial. [Para 150][806-D-F]
Satwant Singh Sawhney v. D Ramarathnam APO New
Delhi [1967] 3 SCR 525; Suni( Batra v. Delhi
Administration (1978) 4 SCC 494 : [1979] 1 SCR 392;
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 595.

Charles Sobraj v. Supdt. Central Jail (1978) 4 SCC A
104 : [1979) 1 SCR 512; M H Hoskot v. State of
Maharashtra (1978) 3 SCC 544 : [1979) 1 SCR 192;
Hussainara Khatoon v. Home Secretary, State of Bihar
(1980) 1 SCC 81 : [1979) 3 SCR 169; Prem Shankar
Shukla v. Delhi Administ1'ation (1980) 3 SCC 526 :
B
[1980] 3 SCR 855; Sheela Barse v. State of
Maharashtra (1983) 2 SCC 96 : [1983) 2 SCR 337; A
G of India v. Lachrna Devi (1989) Suppl. 1 SCC 264;
Paramanand Katara v. Union of India (1989) 4 SCC
286 : [1989] 3 seR 997; Shantistar Builders v. N K
Totame (1990) 1 sec 520; Virender Gaur v. State of c
Haryana (1995) 2 SCC 577 : [1994) 6 Suppl. SCR 78;
Rudal Sah v. State of Bihar (1983) 4 sec 141 : [1983)
3 SCR 508; Umesh Kumar v. State of Andhra Pradesh
(2013) 10 SCC 591 : [2013) 14 SCR 213; Olga Tellis
v. Bombay Municipal Co1poration (1985) 3 SCC 545 :
D
[1985) 2 Suppl. SeR 51; Sunil Batra v. Delhi
Adminisiration (1978) 4 SCC 494 : [1979] 1 SCR 392
- affirmed.
8.4 Technology today is far different from what it was in
the Ii ves of the generation which drafted the Constitution. Today's
technology renders models of application of a few years ago E
obsolescent. Hence, it would be an injustice both to the draftsmen
of the Constitution as well as to the document which they
sanctified to constrict its interpretation to an originalist
interpretation. [Para 151][808-F]
9. Is the statutory protection to privacy reason to deny a F
constitutional right?
The purpose of infusing a right with a constitutional element
is precisely to provide it a sense of immunity from popular opinion
and, as its reflection, from legislative annulment. To negate a
'.constitutional right on the ground that there is an available G
statutory protection is to invert constitutional theory. As a matter
of fact, legislative protection is in many cases, an acknowledgment
and recognition of a constitutional right which needs to be
effectuated and enforced through protective laws. But when a
right is conferred with an entrenched constitutional status in Part H
596 SUPREME COURT REPORTS [2017] 10 S.C.R.

A III, it provides a touchstone on which the validity of executive
decision making can be assessed and the validity of law can be
determined by judicial review. [Para 153][809-E-F]
10. Not an elitist construct
10.1 The submission that the right to privacy is an elitist
B construct which stands apar~ from the needs and aspirations of
the large majority constituting the rest of society, is unsustainable.
This submission betrays a misunderstanding of the constitutional
position. Our Constitution places the individual at the forefront
of its focus, guaranteeing civil and political rights in Part III and
c embodying an aspiration for achieving socio-economic rights in
Part IV. The refrain that the poor need no civil and pqlitical rigbts
and are concerned only with economic well-being has been
utilised though history to wreak the most egregious violations of
human rights. Above all, it must be realised that it is the right to
c1uestion, the right to scrutinize and the right to dissent which
D enables an informed citizenry to scrutinize the actions of
government. [Para 154][810-C-E]
10.2 Socio-economic entitlements must yield true benefits
to those for whom they are intended. Conditions of freedom and
a vibrant assertion of civil and political rights promote a constant
E review of the justness of socio-economic programmes and of their
effectiveness in addressing deprivation and want. Scrutiny of public
affairs is founded upon the existence of freedom. Hence civil
and political rights and socio-economic rights are complementary
and not mutually exclusive. [Para 155][811-B-C]
F 10.3 Privacy is not a privilege for the few. Every individual
in society irrespective of social class or economic status is entitled
. to the intimacy and autonomy which privacy protects. It is privacy
as an intrinsic and core feature of life and personal liberty which
enables an individual to stand up against a programme of forced
G sterilization. Then again, it is privacy which is a powerful guarantee
if the State were to introduce compulsory drug trials of non-
consenting men or women. The sanctity of marriage, the liberty
of procreation, the choice of a family life and the dignity of being
are matters which concern every individual irrespective of social
strata or economic well being. The pursuit of happiness is founded
H
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 597

upon autonomy and dignity. Both are essential attributes of A
privacy which makes no distinction between the birth marks of
individuals. [Para 157][814-B-C]
11. Not just a common law right
Once privacy is held to be an incident of the protection of
life, personal liberty and of the liberties guaranteed by the B
provisions of Part III of the Constitution, the submission that
privacy is only a right at common law misses the wood for the
trees. The central theme is that privacy is an intrinsic part of life,
personal liberty and of the freedoms guaranteed by Part III which
entitles it to protection as a core of constitutional doctrine. The c
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 majoritarian
government. Any abridgment must meet the requirements
prescribed by Article 21, Article 19 or the relevant freedom. The
Constitutional right is placed at a pedestal which embodies both D
a negative and a positive freedom. The negative freedom protects
the individual from unwanted intrusion. As a positive freedom, it
obliges the State to adopt suitable measures for protecting
individual privacy. [Para 158][814-D-G]
Max Planck Encyclopaedia of Comparative E
Constitutional Law (2015) - referred to.
12.1 Substantive Due Process: The constitutional history
surrounding the drafting of Article 21 contains an abundant
retlection of a deliberate and studied decision of the Constituent
Assembly to delete the expression 'due process of law' from the F
draft Constitution when the Constitution was adopted. In the
Constituent Assembly, the Drafting Committee chaired by Dr B
R Ambedkar had included the phrase but it came to be deleted
after a careful evaluation of the vagaries of the decision making
process in the US involving interpretation of the due process G
clause. Significantly, present to the mind of the framers of our
Constitution was the invalidation of social welfare legislation in
the US on the anvil of the due process clause on the ground that
it violated the liberty of contract of men, women and children to
offer themselves for work in a free market for labour. This model
H
598 SUPREME COURT REPORTS [2017] 10 S.C.R.

A evidently did not appeal to those who opposed the incorporation
of a similar phrase into the Indian Constitution. Evidently 'due
process' was substituted with the expression 'procedure
established by law'. 'Liberty' was qualified by 'personal'. [Para
1631{815-C; 826-F-G; 827-A-B]
B 12.2 A person cannot be deprived of life or personal liberty
except in accordance with the procedure established by law.
Article 14, as a guarantee against arbitrariness, infuses the
entirety of Article 21. The inter-relationship between 'the
guarantee against arbitrariness and the protection of life and
c personal liberty operates in a multi-faceted plane. First, it ensures
that the procedure for deprivation must be fair, just and
reasonable. Second, Article 14 impacts both the procedure and
the expression "law". A law within the meaning of Article 21 must
be consistent with the norms of fairness which originate in Article
14. As a matter of principle, once Article 14 has a connect with
D Article 21, norms of fairness and reasonableness would apply
not only to the procedure but to the law as well. Above all, it
must be recognized that judicial review is a powerful guarantee
against legislative encroachments on life and personal liberty.
To cede this right would dilute the importance of the protection
granted to life and personal liberty by the Constitution. Hence,
E while judicial review in constitutional challenges to the validity
of legislation is exercised with a conscious regard for the
presumption of constitutionality and for the separation of po\Yers
between the legislative, executive and judicial institutions, the
constitutional power which is vested in the Court must be retained
F as a vibrant means of protecting the lives and freedoms of
individuals.· [Paras 163, 165 and 166][829-D-H; 830-A]
Mithu v. State of Punjab (1983) 2 SCC 277 : [1983]
2 SCR 690; State of Madras v. V.G. Row [1952] SCR
597; A K Roy I'. Union of India (1982) 1 sec 271 :
G [1982] 2 SCR 272; Saroj Rani v. Sudarshan Kumar
(1984) 4 sec 90 : [19851 1 SCR 303; Mohd. Arif v.
Supreme Court (2014) 9 SCC 737 : [2014]
11SCR1009; Rajbala v. State of Haryana (2016) 2
SCC 445 : [2015] 12 SCR 1106 - referred to.
H 12.3 The danger of construing this as an exercise of
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 599

'substantive dlfe process' is that it results in the incorporation of A
a concept from the American Constitution which was consciously
not accepted when the Constitution was framed. Moreover, even
in the country -0f its origin, substantive due process has led to
vagaries of judicial interpretation. [Para 167][830-B]
13.1 Essential nature of privacy B
Privacy postulates the reservation of a private space for
the individual, described as the right to be let alone. The concept
is founded on the autonomy of the individual. The ability of an
· individual to make choices lies at the core of the human pcrson~lity.
The notion of privacy enables the individual to assert and cimtrol c
the human clement which is inseparable from the personality of
the individual. Without the ability to make choices, the inviolability
of the personality would be in doubt. Recognizing a zone of privacy
is but an acknowledgment that each individual must be entitled
to chart and pursue the course of development of personality.
Hence privacy is a postulate of human dignity itself. Privacy D
protects the individual from the searching glare of publicity in·.
matters which arc personal to his or her life. Privacy attaches to
·the person and not to the place where it is associated. Privacy
constitutes the foundation of all liberty because it is in privacy
that the individual can decide how liberty is best exercised. E'
Individual dignity and privacy arc inextricably linked in a pattern
woven out of a thread of diversity into the fabric of a plural culture.
[Para 168][830-D-G; 831-B-C]
13.2 The Constitution does not contain a separate article
telling us that privacy has been declared to be a fundamental F
right. Nor have we tagged the provisions of Part III with an alpha
suffixed right of privacy: this is not an act of judicial redrafthrn.
Dignity cannot exist without privacy. Both reside within the
inalienable values of life, liberty and freedom which the
. Constitution has recognised. Privacy is the ultimate expression
of the sanctity of the individual. It is a constitutional value which G
straddles across the spectrum of fundamental rights and protects
for the individual a zone of choice and self-determination. [Para
169][832-E-F]
14 Informational privacy
H
600 SUPREME COURT REPORTS [2017] 10 S.C.R.

A 14.1 The age of information has resulted in complex issues
for informational privacy. These issues arise from the nature of
information itself. Information has three facets: it is nonrivalrous,
invisible and recombinant. Information is nonrivalrous in the
sense that there can be simultaneous users of the good - use of
a piece of information by one person does not make it less
B
available to another. Secondly, invasions of data privacy are
difficult to detect because they can be invisible. Information can
be accessed, stored and disseminated without notice. Its ability
to travel at the speed of light enhances the invisibility of access
to data, "information collection can be the swiftest theft of all".
c Thirdly, information is recombinant in the sense that data output
can be used as an input to generate more data output. [Para
173][835-C-E]
14.2 Formulation of a regime for data protection is a complex
exercise which needs to be undertaken by the State after a careful
D balancing of the requirements of privacy coupled with other values
which the protection of data sub-serves together with the
legitimate concerns of the State. While it intervenes to protect
legitimate state interests, the state must nevertheless put into
place a robust regime that ensures the fulfilment of a three-fold
requirement. These three requirements apply to all restraints
E on privacy (not just informational privacy). They emanate from
the procedural and content-based mandate of Article 21. The first
requirement that there must be a law in existence to justify an
encroachment on privacy is an express requirement of Article
21. For, no person can be deprived of his life or personal liberty
F except in accordance with the procedure established by law. The
existence of law is an essential requirement. Second, the
requirement of a need, in terms of a legitimate state aim, ensures
that the nature and content of the law which imposes the
restriction falls within the zone of reasonableness mandated by
Article 14, which is a guarantee against arbitrary state action.
G The pursuit of a legitimate state aim ensures that the law does
not suffer from manifest arbitrariness. Legitimacy, as a postulate,
involves a value judgment. Judicial review does not re-appreciate
or second guess the value judgment of the legislature but is for
deciding whether the aim which is sought to be pursued suffers
H
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 601

from palpable or manifest arbitrariness. The third requirement A
ensures that the means which arc adopted by the legislature are
proportional to the object and needs sought to be fulfilled by the
law. Proportionality is an essential facet of the guarantee against
arbitrary state action because it erisures that the nature and quality
of the encroachment on the right is not disproportionate to the B
purpose of the law. [Paras 179, 180][838·A, G; 839-A-E]
14.3 Apart from national security, the state may have
justifiable reasons for the collection and storage of data. In a
social welfare state, the government embarks upon programmes
which provide benefits to impoverished and marginalised sections
of society. There is a vital state interest in ensuring that scarce C
public resources arc not dissipated by the diversion of resources
to persons who do not <1ualify as recipients. Allocation of
resources for human development is coupled with a legitimate
concern that the utilisation of resources should not be siphoned
away for extraneous purposes. Data mining with the object of D
ensuring that resources are properly deployed to legitimate
beneficiaries is· a valid ground for the state to insist on the
collection of authentic data. But, the data which the state has
collected has to be utilised for legitimate purposes of the state
and ought not to be utilised unauthorizedly for extraneous
purposes. This will ensure that the legitimate conccms of the E
state are duly safeguarded while, at the same time, protecting
privacy concerns. Prevention and investigation of crime and
protection of the revenue arc among the legitimate aims of the
state. Digital platforms arc a vital tool of ensuring good governance
in a social welfare state. Information technology - legitimately F
deployed is a powerful enabler in the spread of innovation and
knowledge. [Para 181][839-F-H; 840-A-B]
M P Sharma v. Satish Cha11dra, District Magistrate,
Delhi [1954] SCR 1077; Kharak Singh v. State of Uttar
Pradesh [1964] 1 SCR 332 - partly overruled. a
Minister of Health v. Treatment Action Campaign (2002)
5 SA 721 (CC) - referred to.
B. Shiva Rao, The Framing of India's Constitution,
Indian Institute of Public Administration (1967), Vol.
H
602 SUPREME COURT REPORTS [2017] !0 S.C.R.

A 2, at page ·75; Amartya Sen, Development as Freedom,
Oxford University Press (2000), at page 180; Amartya
Sen, "The Country of First Boys'', OxfordUniversity
Press, Pg.80-81; Edwin Cameron and Max Taylor,
"The Untapped Potential of the Mandela
Constitution" ,Public Law (2017); Anna Jonsson
B
Cornell, "Right to Privacy", Thomas Cooley, Treatise
on the Law of Torts (1888), 2"d edition - referred to.
PERR. F. NARIMAN, J.
1. It is well settled that in the absence of any specific
·c prohibition in municipal law, international law forms part oflndian
law and consequently must be read into or as part of 'our
fundamental rights. [Para 29] [866 • D-E]
Bachan Singh v. State of Punjab (1980) 2 SCC 684;
Francis Coralie Mullin v. Administrator, Union Territory
D of Delhi & Ors. (1981) 1 SCC 608 : [1981] 2 SCR 516;
Vishaka & 01:1'. v. State of Rajasthan & Ors. (1997) 6
SCC 241 : [1997] 3 Suppl. SCR 404; National Legal
Services Authority v. Union of India (2014) 5 SCC 438
- relied on.
E Semayne's case 77 ER 194; Huckle v. Money 95 ER
768 (1763); Entick v. Carrington 95 ER 807 (1765);
Da Costa v. Jones 98 ER 1331 (1778); Burnet v.
Coronado Oil & Gas Co. 285 U.S. 393 at 406 (1932) -
referred to

F
2. Given the fact that M.P. Sharma judgment dealt only
with Article 20(3) and not with other fundamental rights; given
the fact that the 1948 Universal Declaration of Human Rights
containing the right to privacy was not pointed out to the Court;
given the fact that it was delivered in an era when fundamental
rights had to be read disjunctively in watertight compartments;
G and given the fact that Article 21 as we know it today only sprung
into life in the post Mancka Gandhi era, this judgment is
completely out of harm's way insofar as the grounding of the right
to privacy in the fundamental rights chapter is concerned. The
majority judgment of 4 Judges in Kharak Sillgh case struck down
H the sub-clause (b) of Regulation 236 pertaining to domiciliary
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 603

visits at night. This Court said that "life" used in Article 21 must A
mean something more than mere animal existence and "liberty"
something more than mere freedom from physical restraint. The
majority judgment held that Article 19(1) and Article 21 arc to be
read separately, and so read held that Article 19(1) deals with
particular species or attributes of personal liberty, whereas Article B
21 takes in and comprises the residue. If the passage in the
judgment dealing with domiciliary visits at night and striking it
down is contrasted with the later passage upholding the other
clauses of Regulation .236, it becomes clear that it cannot be said
with any degree of clarity that the majority judgment upholds the
right to privacy as being ~ontained in the fundamental rights C
chapter or otherwise. As the majority judgment contradicts itself
on this vital aspect, it would be correct' to say that it cannot be
given much value as a binding precedent. In any case, the majority ·
judgment is good law when it speaks of Article 21 being designed
to assure the dignity of the individual as a most cherished human D
value which ensures the means of full development and evolution
of a human being. The majority- judgment is also correct in
pointing out that Article 21 interdicts unauthorized intrusion into
a person's home. Where the majorityjudgment goes wrong is in
holding that fundamental rights arc in watertight compartments
and in holding that the right of privacy is not a guaranteed right E
under the Constitution. [Paras 36, 37 and 42][872-A-E; 875-B-
E]
A.K. Gopala11 1'. State of Madras [1950] SCR 88; Mohd.
Arif v. Registrar, Supreme Court of India & Ors. (2014)
9 SCC 737 : [2014] 11SCR1009; R.C. Cooper v. Union F
of India (1970) 1 SCC 248 : [1970] 3 SCR 530;
Maneka Gandhi v. Union of India (1978) 1 SCC 248 :
[1978] 2 SCR 621; Gobind v. State of Madhya Prade.~h,
(1975) 2 sec 148 : [1975] 3 SCR 946; t,J.:tra Judl.
Exec. Victim Families Association & Am: v. Union of
India & Ors. (2017) 8 SCC 417; District Registrar and
G
Collector, Hyderabad & Am: v. Canara Bank etc.
(2005) 1 SCC 496 : [2004] 5 Suppl. SCR 833 - relied ·
on.
Jolly George Vargliese v. Bank of Cochin (1980) 2 SCC
604 SUPREME COURT REPORTS [2017] IO S.G.R.

A 360 : [1980] 2 SCR 913; Charles Sobraj v. Delhi
Administration (1978) 4 SCC 494 : [1979] 1 SCR 392;
Prem Shankar Shukla v. Delhi Administration (1980) 3
SCC 526 : [1980] 3 SCR 855 - referred to.
3.1 Statutory law can be made and also unmade by a simple
B Parliamentary majority. In short, the ruling party can, at will, do
away with any or all of the protections contained in a statute.
Fundamental rights, on the other hand, are contained in the
Constitution so that there would be rights that the citizens of this
country may enjoy despite the governments that they may elect.
This is all the more so when a particular fundamental right like
C privacy of the individual is an "inalienable" right which inheres
in the individual because he is a human being. The recognition of
such right in the fundamental rights chapter of the Constitution
is only a recognition that such right exists notwithstanding the
shifting sands of majority governments. Statutes may protect
D fundamental rights; they may also infringe them. In case any
existing statute or any statute to be made in the future is an
infringement of the inalienable right to privacy, this Court would
then be required to test such statute against such fundamental
right and if it is found that there is an infringement of such right,
without any countervailing societal or public interest, it would be
E the duty of this Court to declare such legislation to be void as
offending the fundamental right to privacy. [Para 56][883-G-H;
884-A-C]
Khoday Distilleries Ltd. v. State of Kamataka (1995) J
SCC 574 : [1994] 4 Suppl. SCR 477; Krishna Kumar
F Narula v. State of Jammu and Kashmir [1967] 3 SCR
50; Har Shankar v. The Dy. Excise and Taxation "co11um:
(1975) 1 SCC 737 : [1975] 3 SCR 254 - referred to.
Miller v. United States 425 US 435 (1976); Stanley
v. Georgia 22 L.Ed. 2D 542; Katz v. United Stutes 389
G U.S. 347 (1967); Minnesota v. Carte 525 U.S. 83, 119
S.Ct. 469 at 477; Kyllo v. United States 533 U.S. 27,
121 S. Ct. 2038 at 2043 (2001) - referred to.
3.2 The "reasonable expectation of privacy" test was laid
down by decisions of the U.S. Supreme Court. Though this test
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION. OF INDIA 605

has been applied by several subsequent decisions even in the A
United States, the application of this test has been criticised. It is
clear therefore, that in the country of its origin, this test though
followed in certain subsequent judgments, has been the subject
matter of criticism. There is no doubt that such a test has no
plausible foundation in the text of Articles 14, 19, 20 or 21 of our
Constitution. Also the test is circular in the sense that there is B
no invasion of privacy unless the individual whose privacy is
invaded had a reasonable expectation of privacy. Whether such
individual will or will not have such an expectation ought to depend
on what the position in law is. Also, this test is intrinsically linked
with the test of voluntarily parting with information, inasmuch as C
if information is voluntarily parted with, the person concerned
can reasonably be said to have no expectation of any privacy
interest. [Paras 57, 59][884-C-D; 886-A-B]
4. In our Constitution, it is not left to all the three organs
of the State to interpret the Constitution. When a substantial D
question as to the interpretation of the Constitution arises, it is
this Court and this Court alone under Article 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 this Court. [Para 66][892-B-C]
E
AsJwk Tanwar & Am: v. State of H.P. & Ors. (2005) 2
SCC 104 : [2004] 6 Suppl. SCR 1065; l.R. Coelho
(dead) by LRs v. State of Tamil Nadu & Ors. (2007) 2
SCC 1 : [2007] 1 SCR 706; M. Nagaraj & Ors. v.
Union of India & Ors. (2006) 8 SCC 212 : [2006] 7
Suppl. SCR 336 - relied on. F

Behram Khurshid Pesikaka v. State of Bombay [1955]
1 SCR 613; Basheshar Nath v. CIT [1959] Suppl. 1
SCR 528; Olga Tellis v. Bombay Municipal Corporation
(1985) 3 SCC 545 : [1985] 2 Suppl. SCR 51 - referred
to •. G

5. "Liberty" in the Preamble to the Constitution, is said to
be of thought, expression, belief, faith and worship. This. cardinal
value can be found strewn all over the fundamental rights chapter.
It can be found in Articles 19(1)(a), 20, 21, 25 and 26. As is well
H
606 SUPREME COURT REPORTS [2017] IO S.C.R.

A known, this cardinal constitutional value has been borrowed from
the Declaration of the Rights of Man and of the Citizen of 1789.
But most 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
B
individual has autonomy over fundamental personal choices and
control over dissemination of personal information which may be
infringed through an unauthorised use of such information. It is
clear that Article 21 more than any of the other Articles in the
fundamental rights chapter, reflects each of these constitutional
c values in full and is to be read in consonance with these values
and with the international covenants. 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 Article 21 by itself or in conjunction
D with other fundamental rights would get attracted. 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. For example, if the
E restraint on privacy is over fundamental personal choices that an
individual is to make, State action can be restrained under Article
21 read with Article 14 if it is arbitrary and unreasonable; and
under Article 21 read with Article 19(1)(a) only if it relates to the
subjects mentioned in Article 19(2) and the tests laid down by
this Court for such legislation or subordinate legislation to pass
F
muster under the said Article. Each of the tests evolved by this
Court, qua legislation or executive action, under Article 21 read
with Article 14; or Article 21 read with Article 19(1)(a) in the
aforesaid examples must be met in order that State action tJass
muster. In the ultimate analysis, the balancing act that is to be
G carried out between individual, societal and State interests must
be left to the training and expertise of the judicial mind. [Paras
84, 85 and 86][907-H; 908-A-B, E-F; 909-A-E]
· R. Rajagopal v. State of Tamil Nadu (1994) 6 SCC 632
: [1994] 4 Suppl. SCR 353; PUCL v. Union of India
H
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 607

(1997) 1 sec 301 : [1996] 10 Suppl. SCR 321;
Sharda v. Dharmpal (2003) 4 SCC 493 : [2003] 3 SCR
106 - relied on.
Munn i-: Illinois 94 U.S. 113 (1876); Wolf v. Colorado
338 U.S. 25 (1949); Olmstead v. United States 277 U.S.
438 at 474; Griswold v. Connecticut 381 U.S. 479 B
. (1965); Roe v. Wade 410 U.S. 113 (1973); Loving v.
Virginia 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18
L.Ed.2d 1010 (1967); Skinner v. Oklahoma 316 U.S.
535, 541-542, 62 S.Ct. 1110, 1113-1114, 86 L.Ed. 1655
(1942); Eisenstadt v. Baird 405 U.S. 438, 453-454, 92
S.Ct. 1029, 1038-1039, 31 L.Ed.2d 349 (1972); Prince c
v. Massachusetts 321 U.S. 158, 166, 64 S.Ct. 438, 442,
88 L.Ed. 645 (1944); Pierce 1'. Society <>f Siste1:s 268
u.s; 510, 535, 45 s.ct. 571, 573, 69 L.Ed. 1010 (1925);
United States v. Jones 565 U.S. 400 (2012); Whalen v.
Roe 429 U.S. 589 at 598 and 599; NM & Ors. v. Smith D
& 01:s. 2007 (5) SA 250 (CC) - referred to.
6. The Inaliena-ble nature of the Right to privacy.
It is clear that the international covenants and declarations
to which .India was a party, namely, the 1948 Declaration and the
i966 Covenant both spoke of the right to life and liberty as being E
"inalienable". Given the fact that ttiis has to be read as being
part of Article 21, it is clear that Article 21 would, therefore, not
be the sole repository of these human rights but only reflect the
fact that they were "inalienable"; that they inhere in every human
being by virtue of the person being a human being. Secondly, · F
developments after this judgment have also made it clear that
the majority judgments are no longer good law and that Khanna,
J.'s dissent is the correct version of the law. Section 2(1)(d) of
the Protection of Human Rights Act, 1993 recognises that the
right to life, liberty, equality and dignity referable to internatiomtl
covenants and enforceable by Courts in India are "human rights"· G
And international covenants expressly state that these rights are
'inalienable' as they inhere in persons because they are human -
beings. [Para 90, 92][916-G-H; 917-A-D] .
Additional District Magistrate, Jabaipur v. S.S. Shukla
H
608 SUPREME COURT REPORTS [2017) 10 S.C.R.

A (1976) 2 sec 521 : [1976] Suppl. SCR 172 -
overruled.
Thalappalam Service Co-operative Bank Limited &
Ors., v. State of Kera/a & Ors. (2013) 16 SCC 82 :
[2013] 14 SCR 475 - affirmed.
B 7. The inalienable fundamental right to privacy resides in
Article 21 and other fundamental freedoms contained in Part III
of the Constitution of India. M.P. Sharma and the majority in
Kharak Singh cases, to the extent that they indicate to the
contrary, stand overruled. The later judgments of this Court
c recognizing privacy as a fundamental right do not need to be
revisited. These cases are, therefore, sent back for adjudication
on merits to the original Bench of 3 honourable .T udges of this
Court in light of the judgment. [Para 94][920-D-F]
M. P. Sharma and others v. Satish Chandra, District
D Magistrate, Delhi, and others 1954 SCR 1077; Kharak
Singh v. State of U.P. (1964) 1 SCR 332 - partly
overruled.
PER CHELAMESWAR, .T.
1.1
The issue which fell for the consideration of this Court
E in M.P. Sharma was - whether seizure of documents from the
custody of a person accused of an offence would amount to
"testimonial compulsion" prohibited under Article 20(3) of the
Constitution. The expression "testimonial compulsion" is not
found in in Article 20(3) of the Constitution. The mandate
F contained in Article 20(3) came to be described as the rule against
testimonial compulsion. The question whether the rule against
"testimonial compulsion'', entrenched as a fundamental right
under our Constitution create a right of privacy or whether the
right of privacy is implied in any other fundamental right
guaranteed under Articles 21, 14, 19 or 25 etc. was not examined
G in M.P Sharma. The question whether a fundamental right of
privacy is implied from these Articles, is therefore, res integra
and M.P. Sharma is no authority on that aspect. [Paras 4-7][921-
D-E; 922-A; 923-F]
M.P. Sharma & Others v. Satish Chandra &
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 609

Others [1954] SCR 1077 : AIR 1954 SC 300 - A
distinguished.
1.2 The issue in Kharak Singh was the constitutionality of
police regulations of UP which inter alia provided for 'surveillance'
of certain categories of people by. various methods, such as,
domiciliary visits at night', 'verification of movements and B
absences' etc. Two judgments (4:2) were delivered. Majority
took the view that the impugned regulation insofar as it provided
for 'domiciliary visits at night' is unconstitutional whereas the
minority opined the impugned regulation is in its entirety
unconstitutional. The Kharak Singh majority opined that the
impugned regulation insofar as it provided for 'domiciliary visits' C
is plainly "violative of Article 21". Their Lordships relied upon
the English Common Law maxim that "every man's house is his
castle". In substance domiciliary visits violate liberty b'llaranteed
under Article 21. The logical inconsistency in the judgment is
that while on the one hand their Lordships opined that the maxim D
"every man's house is his castle" is a part of the liberty under
Article 21, concluded on the other, that absence of a provision
akin to the U.S. Fourth Amendment would negate the claim to
the right of privacy. Both statements are logically inconsistent.
When it came to the constitutionality of the other provisions
impugned in Kharak Singh, their Lordships held that such· E
provisions are not violative of Article 21 since there is no right
to privacy under our Constitution. In substance Kharak Singh
declared that the expression "personal liberty" in Article 21 takes
within its sweep a bundle of rights. Both the majority and minority
are ad idem on that conclusion. The only point of divergence is F
that the minority opined that one of the rights in the bundle is the
right of privacy. In the opinion of the minority the right to privacy
is "an essential ingredient of personal liberty". Whereas the
majority opined that "the right of privacy is not a guaranteed
right under our Constitution", and therefore the same cannot be
read into Article 21. The approach adopted by the majority i~ G
illogical and against settled principles of interpretation of even
an ordinary statute; and wholly unwarranted in the context of
constitutional interpretation. [Paras 8-12][924-A-B, E-G; 925-B-
D; 926-B-D]
H
610 SUPREME COURT REPORTS [2017] 10 S.C.R.

A Kharak Singh v. State of U.P. & Others [1964) SCR
332 : AIR 1963 SC 1295 - referred to.
Boyd v. United States 116 US 616; Griswold v.
Connecticut, 381 US 479; Roe v. Wade, 410 U.S. 113
(1973) - referred to.
B 1.3 Constitution is the fundamental law adumbrating the
powers and duties of the various organs of the State and rights of
the SUBJECTS and limitations thereon, of the State. The
provisions purportedly conferring power on the State are in fact
limitations on the State power to infringe on the liberty of
c SUBJECTS. In the context of the interpretation of a Constitution
the intensity of analysis to ascertain the purpose is required to
be more profound. [Para 12][926-F; 927-A-B]
AK Gopalan v. State of Madras [1950) AIR 27: [1950)
SCR 88; R.C. Cooper v. Union of India [1970) 3
D SCR 530 : (1970) 1 SCC 248; Maneka Gandhi ~: Union
of India [1978) 2 SCR 621 : (1978) 1 SCC 248;
Kesavananda Bharati v. State of Kera/a [1973) Suppl.
SCR 1 : (1973) 4 SCC 225 - referred to.
Wolf v. Colorado, 338 US 25; Semayne's case (1604) 5
E Coke 91; The Melbourne Corporation v. The
Commonwealth (1947) 74 CLR 31 - referred to.
2.1 To embrace a rule that the text of the Constitution is
the only material to be looked at to understand the purpose and
scheme of the Constitution would not only be detrimental to
F liberties of SUBJECTS but could also render the administration
of the State unduly cumbersome. Fortunately, this Court did not
adopt such a rule of interpretation barring exceptions like
Gopalan and ADM Jabalpur. Else, this Court could not have found
the freedom of press under Article 19(1)(a) and the other rights
which were held to be flowing from the guarantee under Article
G 21. This Court by an interpretive process read the right to earn
a livelihood, the right to education, the right to speedy tria, the
right to protect one's reputation and the right to havl! an
environment free of pollution in the expression 'life' under Article
21 of the Indian Constitution. Similarly, the right to go abroad
H and the right tp speedy trial of criminal cases were read into the
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 611

expression liberty occurring under Article 21. This court found A
delayed execution of capital punishment violated both the rights
of life and 'liberty' guaranteed under Article 21 and also perceived
reproductive rights and the individual's autonomy regarding
sterilization to being inherent in the rights of life and liberty under
Art. 21. None of the above-mentioned rights are to be found
anywhere in the text of the Constitution. [Paras 13, 15 and 16][928- B
C-D; 929-D-E; 930-A-B]. .
Sakal Papers (P) Ltd. & Others etc. v. Union of India,
[1962] SCR 842 : AIR 1962 SC 305; Ramesh Thappar
\I. State of Madras [1950] SCR 594 : AIR 1950 SC
124; Mithu Etc. v. State of Punjab Etc. Etc. [1983] 2 c
SCR 690 : AIR 1983 SC 473; Olga Tellis JI. Bombay
" · Municipal Corporatio [1985] 2 Suppl. SCR 51 : (1985)
3 SCC 545; Mohini Jain JI. State of Karnataka [1992]
3 SCR 658 : (1992) 3 SCC 666; Um1i Krishnan. J.P
v. State of A.P. [1993] 1 SCR 594 : (1993) l SCC 645; D
Man.rnkhlai Vithaldas Chauhan v. State of Gujarat
[1997] 3 Suppl. SCR 705 : (1997) 7 SCC 622; State of
Bihar v. Lal Krishna Advani [2003] 3 Suppl. SCR 844
· , : (2003) 8 SCC 361; Shantistar Builders v. Narayan
Khimalal Totame (1990) 1 SCC 520; M.C. Mehfo :v.
Kamal Nath (2000) 6 SCC 2013; Satwant Singh E
Sawhney \I. Asst. Passport Officer [1967] 3 SCR 525;
Hussainara Khatoon \I. Home Secy, State of Biluu; [1979]
3 SCR 169 : (1980) 1 SCC 81; Vatheeswaran, T. V. v.
State of T. N. [1983] 2 SCR 348 : (1983) 2 SCC 68;
Devika Biswas v. Union of India (2016) 10 SCC 726 - - F
relied on.
ADM Jabalpur v. S.S. Shukla [1976] Suppl. SCR 172 :
AIR 1976 SC 1207
. - referred to.
.
2.2 Constitution is not merely a document signed by 284
members of the Constituent Assembly. It is a politically sacred G
instrument and cannot be seen as a document written in fok to
replace one legal regime by another. It is a testament created for
securing the goals professed in the Preamble. Part-III of the
Constitution is incorporated to ensure achievement of the objects
contained in the Preamble. [Para 18][931-A-C] H
612 SUPREME COURT REPORTS [2017) IO S.C.R.

A ln re, The Kera/a Education Bill, 1957 [1959] SCR 995
: AIR 1958 SC 956; Bidi Supp(v Co. v. Union of India
& Others, [1956] SCR 267 : AIR 1956 SC 479 - relied
on.
2.3 The Constitution of India is one such piece of legislation.
B Comparable are constitutions of United States of America, Canada
and Australia to mention only some. All such Constitutions apart
from containing provisions for administration of the State, contain
provisions specifying or identifying certain rights of citizens and
even some of the rights of non-citizens (both the classes of
persons could be collectively referred to as SUBJECTS). Such
C rights came to be described as "basic", "primordial",
"inalienable" or "fundamental" rights. Such rights arc a
protective wall against State's power to destroy the liberty of the
SUBJECTS. Irrespective of the nomenclature adopted in different
countries, such rights are believed in all democratic countries to
D be rights which cannot be abridged or curtailed totally by ordinary
legislation and unless it is established that it is so necessary to
abridge or curtail those rights in the larger interest of' the society.
Several Constitutions contain provisions stipulating various
attendant conditions which any legislation intending to abridge
such (fundamental) rights is required to comply with. [Para
E 20][932-C-F]
2.4 The scheme of our Constitution is that the power of
the State is divided along a vertical axis between the Union and
the States and along the horizontal axis between the three great
branches of governance, the legislative, the executive and the
F judiciary. Such division of power is believed to be conducive to
preserving the liberties of the people of India. The very purpose
·of creating a written Constitution is to secure justice, liberty and
equality to the people of India. J<'ramers of the Constitution
believed that certain freedoms are essential to enjoy the fruits of
G liberty and that the State shall not be permitted to trample upon
those freedoms except for achieving certain important and
specified objectives in the larger interests of society. Therefore,
the authority of the State for making a law inconsistent with
fundamental rights, is cabined within constitutionally proclaimed
limitations. [Para 22][933-D-E]
H
,'

..
JUSTICE KS PUTTASWAMY
. (RETD.) v.. UNION
.
OF
. ' INDIA 613

3.1 The· expression 'liberty' ·is· c~pabte of taking within its A
sweep not only the right to move freely, guaranteed·irnder Article
19(l)(d); but also each one of the other freedoms mentioned under
Article 19(1). l•erson:il iibcrty takes withih its sweep not· only ·
the right not to be subjected to physical restraints, bnt also the
freedom of thought, 'belief; emotion and sensation and a variety
B
of other freedoms. The most basic understanding of the
expression liberty is the free<Jom of an individual to do what he
pleases. But the idea of liberty is more complex than that. [Para
27][935-D-E]
3.2 The question now arises as to what is the purpose the
framers of the Constitution sought to achieve by specifically C
enumerating some of the freedoms which otherwise would form
part of the expression 'liberty'. The Constituent Assembly
thought it fit that some aspects of liberty require a more emphatic
declaration so as to restrict the authority of the State to abridge
or curtail them. The need for such an emphatic declaration arose D
from the history of this nation. The purpose sought to be achieved
is two-fold. Firstly, to place the expression 'liberty' beyond the
argumentative process of ascertaining the meaning of the
expression liberty, and secondly, to restrict the authority of the
State to abridge those enumerated freedoms only to achieve the
purposes indicated in the corresponding clauses (2) to (6) of E
Article 19. The authority of the State to deprive any person of
the fundamental right of liberty is textually unlimited as the only
rec1uircment to enable the State to achieve that result is to make
a 'law'. When it comes to deprivation of the freedoms under
Article 19(1), the requirement is: (a) that there must not only be F
a law but such law must be tailored to achieve the purposes
indicated in the corresponding sub-Article; and (b) to declare
that the various facets of liberty enumerated in Article 19(1) are
available only to the citizens of the country but not all SUBJECTS.
The rights guaranteed under Articles 14 and 21 are not confined
only to citizens but available even to non-citizens aliens or G
incorporated bodies even if they are incorporated in India etc.
[Para 28][936-B-D; 937-A-C]
Hans Muller of Nurenburg v. Superintendent,
Presidency Jail, Calcutta and Others [1955] SCR 1284
H
614 SUPREME COURT REPORTS [2017] 10 S.C.R.

A : AIR 1955 SC 367; State Trading Corporation of India
Ltd. l'. The Commercial Tax Officer and Others. [1964]
SCR 9 : AIR 1963 SC 1811; lndo-Clzina Steam
NaFigation Co. Ltd. I'. Jmjit Singh, Addiiional Collector
of Customs, Calcutta and Others [1964] SCR 594 : AIR
1964 SC 1140; Charles Sobraj 11. Supdt. Central Jail,
B
Tilwr, New Delhi, AIR 1978 SC 104; Louis De Raedt
v. Union of India and Others [1991] 3 SCR 149 : (1991)
3 sec 554 - relied on
Gobind v. State of M.P. [1975] 3 SCR 946 : (1975) 2
sec 148 - referred to.
c
Abraham Lincoln's statement 'Gettysburg Speech' -
referred to.
3.3 The question is whether SUBJECTS who are amenable
to the laws of this country have a Fundamental Right of Privacy
D against the State. The text of the Constitution is silent in this
regard. Therefore, it is required to examine whether such a right
is implied in any one or more of the Fundamental Rights in the
text of the Constitution. 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
E no reason to doubt that the right to privacy is part of the liberty
guaranteed by our Constitution. Concerns of privacy arise when
the State seeks to intrude into the body of SUBJECTS. Corporeal
punishments were not unknown to India, their abolition is of a
recent vintage. Forced feeding of certain persons by the State
F raises concerns of privacy. An individual's rights to refuse life
prolonging medical treatment or terminate his life is another
freedom which fall within the zone of the right of privacy. The
issue is pending before this Court. But in various other
jurisdictions, there is a huge debate on those issues though it is
still a grey area. A woman's freedom of choice whether to bear a
G child or abort her pregnancy are areas which fall in the realm of
privacy. [Para 32, 33, 36 and 38][938-G; 939-A-B; 940-D; 941-
C-D]
Bijoe Emmanuel & Ors v. State Of Kera/a & Others
[1986] 3 SCR 518 : (1986) 3 SCC 615 - relied on.
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 615

Griswold v. Connecticut 381 US 479 (1965) 487; Stanley A
v. Georgia, 394 U.S. 557 (1969); Skinner v. Oklahoma,
316 U.S. 535 (1942); Williams v. Fears, 119 U.S. 270
(1900) - referred to.
Gary Bostwick, 'A Taxonomy of Privacy: Repose,
Sanctuary, and Intimate Decision' (1976) 64 California, B
Law Review 1447 - referred to.
3.4 Similarly, the freedom to choose either to work or not
and the freedom to choose the nature of the work are areas of
private decision making process. The right to travel freely within
the country or go abroad is an area falling within the right of c
privacy. The text of our Constitution recognised the freedom to
travel throughout the country under Article 19(1)(d). This Court
has already recognised that such a right takes within its sweep
the right to travel abroad. A person's freedom to choose the
place of his residence once again is a part of his right of privacy
recognised by the Constitution of India under Article 19(1)(e) D
though the pre-dominant purpose of enumerating the above
mentioned two freedoms in Article 19(1) is to disable both the
federal and State Governments from creating barriers which are
incompatible with the federal nature of our country and its
Constitution. The choice of appearance and apparel are also E
aspects of the right of privacy. The freedom of certain groups of
SUBJECTS to determine their appearance and apparel (such as
keeping long hair and wearing a turban) are protected not as a
part of the right of privacy but as a part of their religious belief.
Such a freedom need not necessarily be based on religious beliefs
falling under Article 25. Informational traces are also an area which F
is the subject matter of huge debate in various jurisdictions falling
within the realm of the right of privacy, such data is as personal
as that of the choice of appearance and apparel. Telephone
tappings and internet hacking by State, of personal data is another
area which falls within the realm of privacy. The instant reference d
arises out of such an attempt by the Union of India to collect bio-
metric data regarding all the residents of this country. The above-
mentioned are some of the areas where some interest of privacy
exists. The examples given above indicate to some extent the
nature and scope of the right of privacy. Freedom of social and
H
616 SUPREME COURT REPORTS [2017] JO S.C.R.

A political association is guaranteed to citizens under Article
19(1)(c). Pers~nal association is still a doubtful area. The decision
.....
· ·making pr:ocess· regarding the freedom of association, freedoms
·of travel and re~idence are'purely private and fall within the realm
of the. right of· privacy. It is one of the most intimate decisions.
[Paras 38, 39 and 40][941-E; 942-A-G; 943-A]
B
3.5 All libetal ·democracies
. . believe that the State should
not have unqualified authority to intrude into certain aspect's of
human life and that the authority should be limited by parameters
co.ns'titutionally fixed. Fundamental rights are the only
constitutional firewall to prevent State's interference with those
c 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 Article 21.[Para 40][943-B-C]
4.1 It goes without saying that no legal right can be
D absolute. Every right has limitations. 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. There are different standards of
review to test infractions of fundamental right~. While the concept
E of reasonableness overarches Part III, it operates differently
across Articles (even if only slightly differently across some of
them). [Para 42][943-D-E]
4.2 The options canvassed for limiting the right to privacy
inelude : (i) Article 14 type reasonableness enquiry; (ii) limitation
F as per the express provisions of' Article 19; (iii) a just, fair and
reasonable basis (that is, substantive due process) for limitation
per Article 21; and (iv) a just, fair and reasonable standard per
Article 21 plus the amorphous standard of 'compelling state
interest'. The last of these four options is the highest standard of
scrutiny that a court can adopt. It is from this menu that a standard
G of review for limiting the right of privacy needs to be chosen. At
the very outset, if a privacy claim specifically flows only from one
of the expressly enumerated provisions under Article 19, then
the standard of review would be as expressly provided under
Article 19. However, the possibility of a privacy claim being
H entirely traceable to rights other than Art. 21 is bleak. Without
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 617

discounting that possibility, it needs to be noted that Art. 21 is , A
the bedrock of the privacy guarantee. If the spirit of liberty
permeates every claim of privacy, it is difficult if not impossible
to imagine that any stand:ird <if limitation, oth~r than the one under
Article 21 applies. For this reason, the available options is
restricted in this judgment to the latter two from the above B
described four. [Paras 43, 44][[943-F-G; 944-A-C]
4.3 The just, fair and reasonable standard of review under
Article 21 needs no elaboration. It has also most commonly been
used in cases dealin'g with a privacy claim hitherto. Gobi11d
resorted to the compelling state interest standard in addition to
the Article 21 reasonableness enquiry. l!'rom the United States C
where the terminology of 'compelling state interest' originated,
a strict standard of scrutiny comprises two things- a 'compelling
state interest' and a requirement of 'narrow tailoring' (narrow
tailoring means that the law must be narrowly framed to achieve
the objective). As a term, compelling state interest .docs not have D
definite contours in the US. Hence, ~t is critical that this standard
be adopted with some clarity as to whe11 a11dbi what types ofprivacy
claims it is to be used. Only in privacy claims which deserve the
strictest scrutiny is the standard of compelling State interest to
be used. As for others, the just, fair and reasonable standard under
Article 21 will apply. When the compelling State interest standard E
is to be employed must depend upon the context of concrete
cases. [Para 45][944-D-F]
T. Sareetha v. T. Venkata Subbaiah AIR 1983 AP 356;
Saroj Rani v. Sudarshan Kumar Clwdha [1985] 1 SCR
303 : AIR 1984 SC 1562; E.P. Royappa v. State of F
Tamil Nadu, [1974) 2 SCR 348 : AIR 1974 SC 555;
District Registrar & Collector, Hyderabad v. Canara
Bank [2004] 5 Suppl. SCR 833 : AIR 2005 SC 186;
State of Maharashtra v. Bharat Shanti. Lal Shah [2008)
12 SCR 1083 : (2008) 13 SCC 5 - referred to. G
United States v. Carotene Products, 304 U.S. 144 (1938)
- referred to.
Chapter 15.11 of the American Constitutional Law by
Laurence H. · Tribe - 2nd Edition - referred to.
H
618 SUPREME COURT REPORTS [2017) 10 S.C.R.

A PER S. A. BOBDE, J.
1. .Effect of M.P. Sharma and_ Kharak Singh: The question
whether Article 21 encompasses a fundamental right to privacy
did not fall for consideration before the 8 Judgi.;s in the M.P.
Sharma Court. Rather the question was whether an improper
B search and seizure operation undertaken against a company and
its directors would violate the constitutional bar against
testimonial compulsion contained in Article 20(3) of the
Constitution. Neither the majority Kharak Singh furnish a basis
for the proposition that no constitutional right to privacy exists.
Therefore, nothing in M.P. Sharma and Kharak Singh supported
c the conclusion that there is no fundamental right to privacy in
our Constitution. [Paras 4, 5, 6 and 9][946-D-E; 947-A; 948-C-
D]
M P Sharma v. Satish Chandra 1954 SCR 1077; Kharak
Singh v. State of Uttar Pradesh AIR 1963 SC 1295 :
D [1964] SCR 332 - partly overruled.
Maneka Gandhi v. Union of India [1978] 2 SCR 621 :
(1978) 1 SCC 248; AK Gopalan v. State of
Madras 1950 AIR 27 : [1950] SCR 88 - referred to.
E Semayne'.1· case (1604) 5 Coke 91 - referred to.
2. The Form of the Privacy Right: Privacy has the nature
, of being both a common law right as well as a fundamental right.
Its content, in both forms, is identical. All that differs is· the
incidei1ce of burden and the forum for enforcement for each form.
F It is perfectly possible for an interest to simultaneously be
recognized as a common law right and a fundamental right. Where
lite interference with a recognized interest is by the state or any
other like entity recognized by Article 12, a claim for the violation
of a fundamental right would lie. Where the au.thor of an identical
interference is a non-state actor, an action at c_ommon law would
G lie in an ordinary court. [Paras 11, 17, 18][948-F][952-C-E]
Kesavananda Bharati 11. State of Kera/a [1973] Suppl.
SCR 1 : (1973) 4 SCC 225 ,... relied on.
Mmtin Loughlin, The Foundations of Public Law 344-
46 (2010) - referred to.
H
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 619

3. The Content of the Right of Privacy: A
3.1 Every individual is entitled to perform his actions in
private. In other words, she is entitled to be in a state of repose
and to work without being disturbed, or otherwise observed or
spied upon. The entitlement to such a condition is not confined
only to intimate spaces such as the bedroom or the washroom B
-but goes with a person wherever he is, even in a public place.
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 ii;
not to suggest that solitude is always essential to privacy. It is in
this sense of an individual's liberty to do things privately that a C
group of individuals, however large, is entitled to seclude itself
from others and be private. In fact, a conglomeration of individuals
in a space to which the rights of admission are reserved - as in a
hotel or a cinema hall -must be regarded as private. Nor is the
right to privacy lost when a person moves about in public. The D
law requires a specific authorization for search of a person even
where there is suspicion. Privacy must also mean the effective
g\1arantce of a zone of internal freedom in which to think. The
disconcerting effect of having another peer over one's shoulder
while reading or writing explains why individuals would choose
to retain their privacy even in public. n is important to be able to E
keep one's work without publishing it in a condition which may
be described as private. The vigour and vitality of the various
expressive freedoms guaranteed by the Constitution depends
on the existence of a corresponding guarantee of cognitive
freedom. [Paras 19, 22)[952-E; 954-A-E] F
People's Union of Civil Liberties v. Union of
India [2005] 1 SCR 494 : (2005) 2 SCC 436; Society
for Unaided Private Schools of Rajasthan v. Union of
India [2012] 2 SCR 715 : (2012) 6 SCC 1; District
Registrar and Collector i< Canara Bank [2004] 5 Suppl. G
- SCR 833 : (2005) l SCC 496 - affirmed.
3.2 It is not possible to truncate or isolate the basic freedom
to do an activity in seclusion from the freedom to do the activity
itself. The right to claim a basic condition like privacy in which
H
620 SUPREME COURT REPORTS . [2017] 10 S.C.R.

A guaranteed fundamental rights can be exercised must itself be
regarded as a fundamental right. Privacy, thus, constitutes the
basic, irreducible condition necessary for the exercise of 'personal
liberty' and freedoms guaranteed by the Constitution. It is the
inarticulate major premise in Part III of the Constitution. [Para
B 25]
James 5:16 The Bible; Black's Law Dictionary (Bryan
Garne1; ed.) 3783 (2004); Samuel D. ITT1rren and Louis
D. Brandeis, The Right To Privacy, 4 Harv. L. Rev.
193 (1890); Kautilya 's Arthashastra189-90 (R.
Shamasastri, trans., 1915), AA Maududi, Human
c Rights in Islam 27 (1982); Thessalonians 4:11 The
Bible - referred to.
4. Privacy's Connection to Dignity and Liberty:
4.1 The first ~nd natural home for, a right of privacy is in
D Article 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 l.iberty. There are ·innumerable activities Which are
·' virtually incapable of being performed at all and in many cases
with dignity unless an individual is left alone or is otherwise
E empowered to ensure his or her privacy. Birth and death are
events when privacy is required for ensuring dignity amongst all
civilized people. Privacy is thus one of those rights "instrumentally
required if one is to enjoy" rights specified and enumerated in
the constitutional text. [Para 26, 28][955-E; 957-B-C]
F Seminal On Liberty (1859); John Stuart Mill, On
Liberty And Other Essays 15-16 (Stefan Collini ed.,
1989) (1859); Laurence H. Tribe and Michael C. Dorf,
Levels Of Generality In The Definition Of Rights, 57
U. Chi. L. Rev. 1057 (1990) at 1068 - referred tQ.
G 4.2 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 significance is
acknowledged both by the Preamble and by this Court in its
exposition of Article 21, among other rights, can be assured to
H the individual without privacy. Both dignity and privacy arc
JUSTICE K S PUTTASWAMY (RETD.) ·v. UNION·OF INDIA 621

intimately intertwined and are nutural conditions for the birth and A
death of individuals, and for many significant events in life between
these events. Necessarily, ~hen, the right of' pl'ivacy is an integral
part of both 'life' and 'personal liberty' under Article 21, and is
intended to enable the rights bearer to develop her potential to
the fullest extent made possible only 'in consonance with the
B
constitutional values expressed in the Preamble as well as across
Part III. [Paras 29, 30][958-F-H; 959-A]
Sunil Batra (!) v. Delhi Administration [1979] l SCR
392 : (1978) 4 SCC 494; Francis Coralie Mullin v.
Administrator, Union Territory of Delhi [1981] 2
SCR 516 : (1981) 1 SCC 608 - referred to. c
Munn v. Illinois, (1877) 94 US 113 (Per Field, J.) -
referred to.
5. Privacy as a Travelling Right
5.1 Freedom of speech and expression is always dependent D
on the capacity to think, read and write in private and is often
exercised in a state ·of privacy, to the exclusion of those not
intended- to be spoken to or communicated with. A peaceful
. assembly requires the exclusion of elements who may not be
peaceful or who may have a different agenda. The freedom to E
associate must necessarily be the freedom to associate with those
of one's choice and those with common objectives. The
requirement of privacy in matters concerning residence and
settlement is too \vell-known to rec1uire elaboration. Finally, it is
not· possible to conceive of an individual being· able to practice a
profession or carry on trade, business or occupation without the ·F
right to privacy in practical terms and without the right and power
. to keep others away from his work. Ex facie, privacy is essential
· to the exercise of freedom of conscience and the right to profess,
· practice and propagate religion vide Article 25. The further right
of every religious denomin.ution to maintain institutions for G
, religious and charitable purposes, to manage its own affairs and
, to own and administer property acquired for such purpo~d vide
· Article 26 also requires privacy, in the sense of non-interference
from the state. Article 28(3) expressly recognizes the right of a
student attending an educational institution recognized by the
H
622 SUPREME COURT REPORTS [2017) IO S.C.R.

A state, to be left alone. Such a student cannot be compelled to
take part in any religious instruction imparted in any such
institution unless his guardian has consented to it. [Paras 31,
32][959-B-F]
5.2 The right of' privacy is also integral to the cultural and
B educational rights whereby a group having a distinct language,
script or culture shall have the right to conserve the same. It has
also always been an integral part of the right to own property and
has been treated as such in civil law as well as in criminal law vide
all the offences and torts of trespass known to law. Privacy is the
necessary condition precedent to the enjoyment of any of the
C guarantees in Part III. As a result, when it is claimed by rights
bearers before constitutional courts,· a right to privacy may be
situated not only in Article 21, but also simultaneously in any of
the other guarantees in Part III. In the current state of things,
Articles 19(1), 20(3), 25, 28 and 29 are all rights helped up and
D made meaningful by the exercise of privacy. This is not an
exhaustive list. [Paras 33, 34][959-G-H; 960-A-B]
6. Judicial Enumeration of the Fundamental Right to Privacy
6.1 By the process of enumeration, constitutional courts
merely give a name and specify the core of guarantees already
E present in the residue of constitutional liberty. Over time, the
Supreme Court has been able to imply by its interpretative
process, that several fundamental rights including the right to
privacy emerge out of' expressly stated Fundamental Rights.
Privacy is be a right or condition, "logically presupposed" by
F rights expressly recorded in the constitutional. text, if they are to
make sense. As a result, privacy is more than merely a deriv~tive
constitutional right. It is the necessary and unavoidable logical
entailment of rights guaranteed in the text of the constitution.
[Para 35][960-C; 961-E]

G
6.2 There is no warrant for the assumption or for the
conclusion that the fundamental right to privacy is an absolute
right which cannot be reasonably restricted given a sufficiently
compelling state interest. [Para 38][962-D]
Unni Krishnan, J.P. v. State of A.P. [1993] 1 SCR 594 :
(1993) 1 sec 645 - relied on.
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 623

Satwant Singh v. D. Ramarathnam A.P. 0., New Delhi A
[1967] 3 SCR 525; Gobind v. State of M.P.. (1975) 2
. SCC 148; Griswold v. Connecticut 381 US 479; Charles
Sobhraj v. Supdt. (Central Jail) [1978] 4 SCR 104;
MH Hoskot v. State of Maharashtra [1979] 1 SCR 192:
(1978) 3 SCC 544; Hussainara Khatoon v. Home Secy,
B
State of Bihar [1979] 3 SCR 169: (1980) l SCC 81;
Prem Shankar v. Delhi Administration [1980] 3 SCR
855 : (1980) 3 SCC 526; TV Vatheeswaran v. State of
Tamil Nadu execution [1983] 2 SCR 348 : (1983) 2 SCC
68; Sheela Barse v. State of Maharashtra [1983]
2 SCR 337 : (1983) 2 SCC 96; A.G. of India v. c
Lachrnadevi (1989) Suppl. 1 SCC 264; Paramananda
Katra v. Union of India [1989] 3 SCR 997 : (1989) 4
SCC 286; Santistar Builder v. N.Kl. Totarne (1990) 1
sec 520 - affirmed.
"incipient rights" SALMOND, at p. 228 - referred to. D
7. The Test for Privacy:
7.1 To exercise one's right to privacy is to choose and specify
on two levels. It is to ciioose which of the various activities that
are taken in by the general residue of liberty available to her she
would like to perform, and to specify whom to include in one's E
circle when performing them. It is also autonomy in the negative,
and takes in the choice and specification of which activities not
to perform and which persons to exclude from one's circle.
Exercising privacy is the signaling of one's intent to these
specified others - whether they are one's co-participants or simply p
one's audience - as well as to society at large, to claim and
exercise the right. To check for the existence of an actionable
claim to privacy, all that needs to be considered is if such an
intent to choose and specify exists, whether directly in its
manifestation in the rights bearer's actions,,or otherwise. [Para
43][963-F-H; 964-A] G
Deoki Nandan v. Murlidhar [1956] SCR 756 - referred
to.
7.2 Such a formulation would exclude three recurring red
herrings in the Respondents' arguments. Firstly, it would not admit H
624 SUPREME COURT REPORTS [2017] JO S.C.R.
I J_ ''

A,· .of arguments that privacy is limited to property or places. So, for
."
· example,
. " .taking.
~·. one. or. more
. persons
. aside. .to .converse
. . . ' -
at a,
whisper even in a public place would clearly signal a claim to
privacy, just as broadcasting one's words by a loudspeaker would
signal the opposite intent. Secondly, thi~ formulation would not
B reduce privacy to solitude. Reserving the rights to admission at
a large gathering place, such as a cinema hall or club, would signal
a claim to privacy. Finally, neither would such a formulation mean
that private information must be information that is inaccessible
to all others. [Para 44][964-B-C]
8. Standards of Review of Privacy Violations: There is no
c doubt that privacy is integral to the several fundamental rights
recognized by Part III of the Constitution and must be regai·ded
as a fundamental right itself. The relationship between the right
of privacy and the particular fundamental right (or rights) involved
would depend on the ·action iritcrdicted by a particular law. At a
D minimum, since privacy is ahvay.s integrated with personal liberty,
the constitutionality of the,law which is .alleged to have invaded
into a rights bearer's privacy must be tested by the same
standards by which a law which invades personal liberty under
Article 21 is liable to be tested. Once it is established that privacy
imbues every constitutional freedom with its efficacy and that it
E can be located in each of them, it must follow that interference
with it by the state must be tested against whichever one or more
Part III guarantees whose enjoyment is curtailed. As a result,
privacy violations will usually have to answer to tests in addition
to the one applicable to Article 21. [Paras 45, 46][964-D-G]
F R. C. Cooper v. U1;io11 4 ln'dia [i970] 3' SCR 530 :
(1970) 1 SCC'248 - relied on. · ·
Olga Tellis v. Bombay Municipal Corporation [1985]
2 Supp.I. SCR 51 : (1985) 3 SCC 545; Paramanand
Katara. v. Union of India [1989] 3 SCR 997; Gobind
G v. State of M.P. [1975) 3 SCR 946 : (1975) 2 SCC 148
- referred to.
PJ Fitzgerald, Salmond on .Jurisprudence 217 (twelfth
edition, 1966); Roscoe Pound, The Spirit of the
Common Law 88 (1921) - referred to.
H
. JUSTitE K. s PUrtASWAMY (RETO.) v. UNION OF INDIA
' • ·-1 . . •• .• ''' . '
625

I
I
'PERADHAY'MANOHAR SAPRE, J. A I
·: .._, !: ·. .. . '. . . . ; .
·:~.

, , , ~ J ..T~~. Jp_i;?,r.por:i~~!Jn _pf. exp.ressio~ ,.''.Dignity of the
iudivid11ar• in the Preamble· was aimed essentially to show explicit
i . .

I
: repudiation of what people of this Country had inherited from the
·past. Dignitfof"tbe individual ·was, therefore, ·always considered
:"the-·priine constituent'nflhe fraternity; which 'assureil the dignity B
. ·to every i'ndlvidnal •. Both expressions: are Interdependent ·and
intertwined, Thus; U~ity and integrity Qf.the Nation·cannot survive
. ; .unless the dignity of every individual citizen is guaranteed. The
exprcssions.."/iberty", "equality" and "fraternity'? i.ncprporated 0

. in the .Preambie ;ire n~t !\~par;ite '.entitie~. '.fh~y .~ave to b~ rt;ad
in juxtaposition ,\,bil~· dealing ·•with 'the right~ of the citizens. They, C
·in fact, furn\ a unfon. If these expressions are divorced from each
other, it will defeat the very purpose of democracy. In other words,
liberty cannot· be' divorced· from equality ~o ·also equality cannot
be divorced from liberty•and 'nor can liberty and equality be
divorced from fraternity. The meaning assigned. to these D
expressions. has to be given.due wcightage while interpreting
Articles of Part III of the Constitution. It is, therefore, the duty
of the Courts and especially this Court as. sentinel on the q11i vive
to strike a balance between the changing needs of the Society
~
and the protection of the rights of the citizens as and when the
issue relating to the infringement of the rights of the citizen comes E
i up for consideration. Such a balance can be achieved only through
I
.,. I
securing and protecting liberty, equality and fraternity with social
and political justice to all the citizens under rule of law. [Paras 8·
13][966-G-H; 967-A-E]
S.S. Bqla & Ors. v. B.D. Sardana & Ors. [1997] 2 F
Suppl. _SCR 507 : (1997) 8 SCC 522 - affirmed.
2. Our Constitution has recognized certain existing
cherished rights of an individual. These rights arc incorporate\!
in different Articles of Part III of the Constitution under the
heading-Fundamental Rights. In so doing, some rights were G·

j incorporated and those, which were not incorporated, were read
in Part III by process of judicial interpretation depending upon
the nature of right asserted by the citizens on case-to-case basis.
1 It was not possible for the framers of the Constitution to
incorporate each and every right be that a natural or common law H
j
i
l
626 SUPREME COURT REPORTS [2017] 10 S.C.R.

A right of an individual in Part III of the Constitution. [Paras· 14,
15][967-F-H]
3. The Court should always make attempt to expand the
reach and ambit of the fundamental rights rather than to attenuate
their meaning and the content by process of judicial construction.
B [Para 20][968-H]
Rustom Cava.1jee Cooper v. Union of India (1970) 1
SCC 248 : [1970] 3 SCR 530; His Holiness
Kesavananda Bharati Sripadagalvaru v. State of Kerala
& Anr. [1973] Suppl. SCR 1 : (1973) 4 sec 225 -
c affirmed.
4. It is true that while interpreting our laws, the English
decisions do guide in reaching to a particular conclusion arising
for consideration. However, in the last seven decades, this Court
has interpreted our Constitution keeping in view the socio,
D economic and political conditions of the Indian Society, felt rieed
of, We, the People of this Country and the Country in general in
comparison to the conditions prevailing in other Countries.
[Paras 22, 23][969-D-F]
Hind Overseas (P) Ltd. vs. Raghunath Prasad
E Jhunjhunwala & Anr. [1976] 2 SCR 226 : (1976) 3
sec 259 - affirmed.
5. "Right to privacy of any individual" is essentially a
natural right, which inheres in every human being by birth. Such
right remains with the human being till he/she breathes last. It is
F indeed inseparable and inalienable from human being. One cannot
conceive an individual enjoying meaningful life with dignity
without such right. Indeed, it is one of those cherished rights,
which every civilized society governed by rule of law always
recognizes in every human being and is under obligation to
recognize such rights in order to maintain and preserve the dignity
G of an individual regardless of gender, race, religion, caste and
creed. It is, of course, subject to imposing certain reasonable
restrictions keeping in view the social, moral and compelling
public interest, which the State is entitled to impose by law. [Paras
25, 26][969-H; 970-A-C]
H
•
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 627

6. "Right to privacy" is not defined in law· except in the A
· dictionaries. The Courts, however, by process of judicial
interpretation, .has assigned meaning to this right in the· context
of specific issues involved on case-to-case basis. The most
popular meaning of "right to privacy" is - "the right to be let
alone". "Right to privacy" is a part of fundamental right of a citizen B
guaranteed under Part III of the Constitution. 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. [Paras 27,
28, 35][970-C-D]
Gobind v. State of Ma.dhya Pradesh & Anr. [1975) 3 c
SCR 946 : (1975) 2 SCC 148; Maneka Gandhi v. Union
of India & Anr. [1978) 2 SCR 621 : (1978) 1 SCC 248;
People'.s Union for Civil Liberties (PUCL) v. Union of
India & Anr. [1996) 10 Suppl. SCR 321 : (1997) 1 SCC
301; Mr. "X" v. Hospital 'Z' [1998) 1 Suppl. SCR 723 D
: (1998) 8 SCC 296; District Registrar & Collector.
Hyderabad & Am: v. Canara Bank & Ors. [2004] 5
Suppl. SCR 833 : (2005) 1 SCC 496; Thalappalam
Service Coop. Bank Ltd. & Ors. v. State of Kera/a &
01:1·. [2013) 14 SCR 475 : (2013) 16 SCC 82 - affirmed.
E
7. The submission that the law laid down by this Court in
some earlier decided cases though not referred for consideration
be also overruled while answering the questions referred to this
Bench is not entertained. It is well settled that the reference
Court cannot travel beyond the reference made and is c1infined
to answer only those questions that are referred. As and when F
any of these questions arise in any case, the appropriate Bench
will examine such questions on its merits in accordance with law.
[Paras 39, 40, 41][972-E, G-H]
Naresh Shridhar Mirajkar & Ors. v. State of
Maharashtra & Am: [1966] 3 SCR 744 - affirincd. G

M.P. Sharma and others v. Satisft Cha11dra, District
Magistrate Delhi & Ors. [1954] SCR 1077 : AIR 1954
SC 300; Kharak Singh v. State of Uttar Pradesh & Ors.
[1964] SCR 332 : AIR 1963 SC 1295; A. K.Gopalan
H
628 SUPREME COURT REPORTS [2017]' IO S.C.R.

A v, State of Madras [195q]. SCR 88: AJR.195Q SC ~7;
Mohd Arif @ Ashfr1q v.. Registrar, Supreme <;.ourt of
India [2014] 11 SCR 1009 : (2014) 9 SCC 737 -
referred to.
PER SANJAY KISHAN KAUL, J.
B 1.1 Privacy is not just a common law right, but a fundamental
right falling in Part III of the Constitution of India as privacy is a
primal, natural right which is inherent to an individual. The
importance of privacy may vary from person to person dependent
on his/her approach fo society and his concern for being left alone
c or not. That some people do not attach importance to their privacy
cannot be the basis for denying recognition to the right to privacy
as a basic hu'nian right. [Paras 1, 4][973-C, G]
1.2 H is not India alone, but the world that recognises the
right of privacy as a basic human right. The Universal Declaration·
D of Human Rights to which India is a signatory, recognises privacy
as an international human right. Privacy is an inherent right. It
is thus not given, but already exists. It is about respecting an ·
individual and it is undesirable to ignore a person's wishes without
a ~onwelling reason to do so. There is nothing wrong in
individuals limiting access and their ability to shield from
E unwanted access. This aspect of the right to privacy has assumed
particular significance in this information age and in view of
technological improvements. A person-hood· would be a
protection of one's personality, individuality and dignity. However,
no right is unbridled and so is it with privacy. We live in a society/
F community. Hence, restrictions arise from the interests of' the
community, state and from those of others. [Paras 5, 10, 11][973-
H; 974-A, F-G; 975-A]
The History of Freedom and Other Essays (1907), p
587; The Right to Privacy 4 HLR 193; Daniel Solove,
G '10 Reasons Why Privacy Matters' published on
January 20, 2014 - referred to.
2. PRIVACY & TECHNOLOGY
2.1 The access to information, which an individual may not
want to give, needs the protection of privacy. The right to privacy
H
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 629

is claimed qua the State and non-State actors. Recognition and A
enforcement of claims qua non-state actors may require legislative
intervention by the State. [Para 12][975-B-C]
2.1.1 Privacy Concerns A'gairtst The State : The' growth
and development of technology has crcatc<f new instruments for
the possible invasion of privacy by the State, including through B
surveillance, profiling and data collection. and processing ..
Survcillancc is not ~cw, but.technology bas PCJ,"mittc!l surveillance.
0

in ways that arc unimaginable. One tcclmiquc l:Jcing adopted by
States is 'profiling'. The European Union Regulation.of 2016 on
data privacy defines 'Profiling' as any form· of autom;itcd: :
processing of personal data consisting of the use of personal data C
to evaluate certain personal aspects relating to a natural person,
in particular to analyse or predict aspects concerning that natural
person's performance at work, economic situation, health,
personal preferences, interests, reliability, behaviour, location
or movements. Such profiling can result in. discrimi~ation based D
on religion, ethnicity and caste. However, 'profiling' can also be
used to further public interest and for the benefit of nationa'l
security. The security environment, not only in our country, but
throughout the world makes the safety of pen;ons and thci State a ·
matter to be balanced against this right to privacy. [Para 13][975-
D-F; 976-A-B] E

Regulation (EU) 20161679 of the European Parliament
and of the Council of 27 April 2016 on the protection
of natural persons with regard to the processing of
personal data and on the free movement of' such data,
and repcalirig Directive 95/46/EC (General Data F
Protection Regulation) - referred to.
2.1.2 Privacy Concerns Against Non-State Actors : T.hc
capacity of non-State actors to invade the home, and privacy has
also been enhanced. Technological development has facilitated
journalism that is mote intrusive than ever before. In this digital G
age, individuals ·arc constantly generating valuable data whicl,i
can be used by non"State actors to track tI:ieir moves, choices
and preferences. Data is &ei,.crated ~ot just by activ,c sharing of
information, but also passively, with every click on the 'world
wide web'. As we move towards becoming a digital economy and H .. . , . -
630 SUPREME COURT REPORTS [2017] 10 S.C.R.

A increase our reliance on internet based services, we arc creating
deeper and dcepr digital footprints - passively and actively.
Knowledge about a person gives a power over that person. The
personal data collected is capable of effecting representations,
influencing decision making processes and shaping behaviour.
It can be used as a tool to exercise control over us like the 'big
B
brother' State exercised. This can have a stultifying effect on the
expression of dissent and difference of opinion, which no
democracy can afford. Thus, there is an unprecedented need for
regulation regarding the extent to which such information can be
stored, processed and used by non-state actors. There is .also a
c need for protection of such information from the State. [Paras
16, 17, 19 and 20][976-B-D, G; 977-C-E]
State of West Bengal 11. Anwar Ali Sarkar 1952 AIR 75
: [1952] SCR 284; Kesavana11da Bllarati 11. State of
Kentla [1973] Suppl. SCR 1 : (1973) 4 SCC 225 -
D relied on.
Michael L. Rustad, Sanna Kulevska, Reconceptualizing
the right to be forgotten to enable transatlantic data
flow, 28 Harv. J.L. & Tech. 349; https://
tee h crunch .co m/2015/03/03/in-t he-age- of·
E disintcrmediation-the-battle-is-all-for-the-customer-
interfacc/ Tom Goodwin 'The Battle is for Customer
Interface'; Dhananjay Keer, Dr.Ambedkar: Life and
Mission, Bombay: Popular Prakashau, 1971 [1954],
p.410.); Kadhim Shubber, Ulackberry gives Indian
Government ability to intercept messages published
F by Wired on 11 July, 2013 http://www.wircd.eo.uk/
article/blackbcrry-iudia - referred to.
2.2 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 crate a Montes<1uian framework that
G would endear in both war time and in peace time. The founders
of the Constitution were aware of the 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
H 20 under Article 368. Therefore, the theory of original intent itself
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 631

supports the stand that the original intention of the makers of A
the Constitution was to ensure that it does not get weighed down
by the originalist interpretation but changes and evolves to suit
the felt need of the times. [Para 29, 32 and 33][978-G; 979-D-F]
3. · Privacy is essential to liberty and dignity: Privacy is
also the key to freedom of thought. A person has a right to think. B
The thoughts arc sometimes translated into speech but confined
to the person to whom it. is made. Ji'or example, one may want to
criticize someone but not share the criticism with the world. [Para
52][985-C; 986-G]
Geoffrey Robertson, QC and Andrew Nicol, QC, Media c_
Law fifth edition p. 265; Campbell v. MGN Ltd. 2004
UKHL 22 - referred to.
4. Privacy - Right To Control Information : An individual
has a right to protect his reputation from being unfairly harmed
and such protection of reputation needs to exist not only against D
falsehood but also certain truths. It cannot be said that a more
accurate judgment about people can be facilitated by knowing
private details about their lives - people judge us badly, the~
judge us in haste, they judge out of context, they judge without
hearing the whole story and they judge with hypocrisy. Privacy
lets people protect themselves from these troublesome E
judgments. There is no justification for making all truthful .
information available to the public. The public does not have an
interest in knowing all information that is true. [Paras 56, 57][986-
H; 988-B-D]
The Second Circuit's decision in Haelan Laboratories F
v. Topps Chewing Gum. 202 F.2d 866 (2d Cir. 1953)
penned by Judge Jerome Frank defined the right to
publicity as "the right to grant the exclusive privilege
of publishing his picture"; Mark P. McKennu, The
Right of Publicity and Autonomous Self-Definition, 67 G
U. PITT. L. REV. 225, 282 (2005); · William l. Pmsse1;
Privacy, 48 CAL. L. REV. 383 (1960); Arthur R. Mille1;
The University of Michigan Press - referred. to.
5. INFORMATIONAL PRIVACY: The European Union
Regulation of 2016 has recognized what has been termed as 'the H
632 SUPREME COURT REPORTS [2017) 10 S.C.R.

A right to be forgotten'. This does not mean that all aspects of earlier
existence are to be obliterated, as some may have a social
ramification. If we were to recognize a similar right, it would only
mean that an individual who is no longer desirous of his personal
data ~o be processed or stored, should be able to remove it from
the system where the personal data/ information is no longer
B
necessary, relevant, or is incorrect and serves no legitimate
interest. Such a right cannot be.exercised where the information/
data .i.<l necessary, for exercising the right of freedom of expression
and information, for compliance with legal obligations, for the
performance of a task carried out in public interest, on the grounds
C · of public interest in the area of public health, for archiving
purposes in the public interest, scientific or historical research
purposes or statistical purposes, or for the establishment, exercise
or defence of legal claims. Such justifications would be valid in all
cases of breach of privacy, including breaches of data privacy.
[Para 62, 69)[991-D-F]
D
Patricia Scinclzez Abril, Blurred Boundaries: Social
Media· Privacy and the Twenty-First-Century
.Empfoyee, 49 AM. BUS. L.J. 63, 69 (2012); Ravi
Antani, THE RESISTANCE OF MEMORY; Michael
L. Rustad, Sanna Kulevska, Reconceptualizing the
E right to be forgotten to enable transatlantic data flow,
28 Harv. J.L. & Tech. 349 - referred to.
6. Data Regulation: The State must ensure that information
is not used without the consent of users and that it is used for the
purpose and to the extent it was disclosed. Thus, for e.g. , if the
F posting on social media websites is meant only for a certain
audience, which is possible as per t,ools available, then it cannot
be said that all and sundry in ·public have a right to somehow
access that information and make use· of it. [Para 70][992-B]
7. Test: Principle of Proportionality and Legitimacy: The
right to privacy is not absolute. The right to privacy as falling in
G
part III of the Constitution may, depending on its variable facts,
vest in one part or the other; and would thus be subject to the
restrictions of exercise of that particular fundamental right.
National security would thus be an obvious restriction, so w~uld
the prQvisos to different funda~cntal. rights, dependent on where
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 633

the right to privacy would arise. The Public interest element would A
be another aspect. [Para '72][992-F:G]
8. Report of Group of Experts on Privacy: The concerns
about privacy have been left unattended for quite some time and
thus an infringement of the right of privacy cannot be left to be
formulated by the legislature. It is a primal natural right which is B
only being recognized as a fundamental right falling in part III of
the Constitution of India.[Para 76][995-G-H]
ADM Jabalpur v. Shivkant Shukla [1976] Suppl. SCR
172: (1976) 2 sec 521 - overruled.
l.R. Coelho v. The State of Tamil Na.du [2007] 1 SCR 706. c
: (2007) 2 sec 1 - relied on.
Union of India v. Naveen Jindal [2004] 1 SCR 1038 : .
(2004) 2 SCC 510; National Textile Workers Union v.
P.R. Ramakrish11a11 [1983] 1 SCR 922 .: (1983) 1
SCC 228; Sureslz Kumar Kaushal v. Naz. Fmlndation
. [2013] 17 SCR 116: (2014) 1 SCC 1 - referred .to .. D
Mosleyy. News Group Papers Ltd. (2008) EWHS 1777
(QB) - referred to. ·
Case Law Reference .
PER DR. D. Y. CHANDRACHUD, .T.
E
[1954] SCR 1077 partly overruled · Para.3
[1964] 1 SCR 332 partly overruled Para3
[1950] SCR 88 referred to Para3
[1970] 3 SCR 530 referred to Para3
[1975] 3 SCR 946 referred to Para 3 F
[1978] 2 SCR 621 referred to Para4
p994] 4 Suppl. SCR 353 referred to Para4
[1973] 2 SCR 417 referred to Para 47
[1981] 2 SCR 311 referred to Para 51
G
(1991) 1 sec 57 referred to Para 52
[1992] 3 SCR 595 · referred to Para 53 ·
[1985] 2 SCR 287 referred to Para 53
[1998] 1 Suppl. SCR 723 referred to P'ara 56
H.
634 SUPREME COURT REPORTS [2017] IO S.C.R.

A [1996] 10 Suppl. SCR 321 referred to Para 59
[2000] 2 SCR 761 referred to Para 62
[2002] 5 Suppl. SCR 536 referred to Para 62
(2003] 3 SCR 106 referred to Para 63

B [2004] 5 Suppl. SCR 833 referred to Para 65
[2006] 9 Suppl. SCR 1 referred to Para 67
(2007] 12 SCR 906 referred to Para 67
[2007] 12 SCR 991 . referred to Para 68
. [2008] 4 SCR 1020 referred to Para 69
c
[2008] 12 SCR 1083 referred to Para 70
(2009) 9 sec 1 referred to Para 71
[2009] 12 SCR 861 referred to Para 73
[2010] 5 SCR 381 referred to Para 74
D [2010] 9 SCR 457 referred to Para 75
[2011] 6 SCR 403 referred to Para 76
[2011] 8 SCR 725 referred to Para 77
[2011] 10 SCR 781 referred to Para 78
E [2012] 4 SCR 971 referred to Para 79
[2012] 11 SCR 1032 referred to Para 80
(2013) 14 sec 643 referred to Para 81
[2013] 14 SCR 475 referred to Para 82
F [2014] 9 SCR 965 referred to Para 83
(2014) 5 sec 438 referred to Para 84
[2015] 8 SCR 422 referred to Para 85
[2016] 11 SCR 419 referred to Para 86
[1965] 1 SCR 933 referred to Para 94
G
[1973] Suppl. SCR 1 referred to Para 95
[1980] 3 SCR 855 referred to Para 97
[1981] 2 SCR 516 referred to Para 98
[1984] 2 SCR 67 referred to Para 99
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 635

(1994) 6 SC~ 260 referred to Para 100. A
[2006] 7 Suppl. SCR 336 referred to Para 101
[2010] 3 SCR 91 referred to Para 102
[2012] 8 SCR 651 referred to Para 103
(2015) 6 sec 102 referred to Para 104 B
[2016] 4 SCR 638 referred to Para 105
[1967] 2 SCR,762 relied on Para 108
(1975) 1 Suppl. sec 1 relied on Para 110
[1981] 1 SCR 206 relied on Para 111
[1955] 1 SCR 613 referred to
c
Para 112
[1985] 2 Suppl. SCR51 referred to Para 114
[1993] 1 SCR 594 relied on Para 115
[1976] Suppl. SCR 172 overruled Para 118
[1977] 2 SCR 719 overruled Para 122 D
[2007] 1 S_CR 706 referred to Para 122
[2013] 17 SCR 116 disapproved Para 124
(1980) 2 sec 684 referred to Para 131
(1997) 6 sec 241 referred to Para 132 E
[1967) 3 SCR 525 affirmed Para 150
(1979] 1 SCR 392 affirmed Para 150
[1979] 1 SCR 512 affirmed Para .150.
(1979] 1 SCR 192 affirmed Para 150 F
[1979] 3 SCR 169 affirmed Para 150
[1980] 3 SCR 855 · affirmed Para 150
[1983] 2 SCR 337 affirmed Para 150
(1989) 1 suppl. sec 264 affirmed Para 150
G
[1989] 3 SCR 997 affirmed Para 150
(1990) 1 sec 520 affirmed Para 150
[1994] 6 Suppl. SCR 78 ·affirmed Para 150
[1983] 3 SCR 508 affirmed Para 150
H
636 . SUPREME COURT REPORTS (2017] 10 S.C.R.

A [2013) 14 SCR 213 affirmed Para 150
[1985) 2 Suppl. SCR 51 affirmed Para 150
[1979) 1 SCR 392 affirmed Para 163
[1983] 2 SCR 690 referred to Para 164
[1982] 2 SCR 272 referred to Para 164
B
[1985] 1 SCR 303 referred to Para 164
[2014) 11 SCR 1009 referred to Para 164
[2015) 12 SCR 1106 refc1·red to Para 165
[1952] SCR 597 referred to Para 165
c
PERR. F. NARIMAN, J.
,[1954] SCR 1077 partly overruled Para 2
[1964] 1 SCR 332 partly overruled Para3
[1970) 3 SCR 530 relied Oil Para3
D [1978] 2 SCR 621 relied Oil Para3
[1'975) 3 SCR 946 relied Oil Para 8
[1950) SCR 88 relied on Para 21
[2014] 11 SCR 1009 relied on Para 22
E (1980) 2 sec 684 relied on Para 29
[1981) 2 SCR 516 relied on Para 29
[1997] 3 Suppl. SCR 404 relied on Para 29
(2014) 5 sec 438 relied on Pam29

F (2017) 8 sec 417 relied on Para 31
[2003] 3 SCR 106 relied on Para 34
[2004] 5 Suppl. SCR 833 relied on Para 34
[1980] 2 SCR 913 referred to Para 48
[1979) 1 SCR 392 referred to Para 48
G
[1980] 3 SCR 855 referred to Para 48
[1994] 4 Suppl. SCR 477 referred to Para 54
[1967) 3 SCR 50 referred to Para 54
[1975] 3 SCR 254 referred to Para 54
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 637

[1955(1 SCR 613 referred to Para 60 A
[1959] Suppl. 1 SCR 528 referred' to Para 60
[1985] 2 Suppl. SCR 51 referred to Para 60
[2004] 6 Suppl. SCR i065 relied on Para 62
[2007] 1 SCR 706 relied on . Para 63 B
[2006] 7 Suppl. SCR 336 .relied on Para 64 /

[1994] 4 Suppl. SCR 353 relied on Para 74
[1996] 10 Suppl. SCR 321 relied on Para 75
[2013] 14 SCR 475 affirmed Para 88
[1976] Suppl . .SCR 172 ·
c
overruled Para 91

PER
,.. '. . .
.J. CHELAMESWAR,
. .J.
. [1954] SCR 1077 · distinguished Para4
[1964] SCR 332 referred to Para4 D
. (1950) AIR 27 referred to Para 9
[1970] 3 SCR 530 referred to Para 9
[1978] 'z SCR 621 referred to Para9
[1973) Suppl. SCR 1 referred ·to · Para 12
[1976) Suppl. SCR 172 referred to Para 13 E

' . SCR
[1962] .
842 relied on Para 13
(1950] SCR 594 relied on ·Para 13
[1983] 2 SCR 690 relied on ·Para 14
[1985) 2 Suppl. SCR 51 relied on Para 15 F
[1992] 3 SCR 658 relied on Para 15
[1993] 1 SCR 594 relied on Para 15
[1997] 3 Suppl. SCR 705 relied on Para 15
[:2003) 3 Suppl. SCR 844 relied on Para 15
(1990) 1 sec 520 relied on Para 15 G
(2000) 6 sec 2013 relied on Para 15
[1967] 3 SCR 525 relied on Para 15
[1979) 3 SCR 169 relied on Para 15
[1983] 2 SCR 348 relied on Para 16
H
638 SUPREME COURT REPORTS [2017] 10 S.C.R.

A (2016) 10 sec 726 relied on Para 16
[1959] SCR 995 relied on Para lS
[1956] SCR 267 relied on Para 20
[1955] SCR 12S4 relied on Para 2S
[1964] SCR 9 relied on Para 2S
B
[1964] SCR 594 relied on Para 2S
AIR 197S SC 104 relied on Para 2S
[1991] 3 SCR 149 relied on Para 2S
[1975] 3 SCR 946 referred to Para 31
c [1986] 3 SCR 51S relied on Para 37
AIR 19S3 AP 356 referred to Para 40
[19S5] 1 SCR 303 referred fo Para 40
[1974] 2 SCR 34S referred to Para 43

D [2004] 5 Suppl. SCR S33 referred to Para 45
[200S] 12 SCR 10S3 referred to Para 45
PER S.A. BOBDE, J,
[1954] SCR 1077 partly overruled Para 1
E [1964] SCR 332 partly overruled Para 1
[1970] 3 SCR 530 relied on Para7
[197SJ 2 SCR 621 referred to Para7
[1950] SCR SS referred to Para 7
F [19S5] 2 Suppl. SCR 51 referred to Paras
[1989] 3 SCR 997 referred to Paras
[1975] 3 SCR 946 referred to Para 10
[1973] Suppl. SCR 1 relied on Para 16
G [2005] 1 SCR 494 affirmed Para 16
[2012] 2 SCR 715 affirmed Para 16
[2004] 5 Suppl. SCR S33 affirmed Para 20
[1979] l SCR 392 referred to Para 29
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 639

[1981] 2 SCR 516 referred to Para 29 A
[1993] 1 SCR 594 relied on Para 35
[1967] 3 SCR 525 affirmed Para 35
(1975) 2 sec 148 affirmed Para 35
[1978] 4 SCR 104 affirmed Para 35 B
[1979]1 SCR 192 aflirmed Para 35
[1979] 3 SCR 169 affirmed Para 35
[1980 ] 3 SCR 855 affirmed Para 35
[1983] 2 SCR 348 affirmed Para 35
c
[1983] 2 SCR 337 aflirmed· Para 35
(1989) Supp. 1 sec 264 aflirmed Para 35
[1989] 3 SCR 997 aflirmed Para 35
D
(1990) 1 sec 520 affirmed Para 35
[1956] SCR 756 referred to Para 41
. PER ABHAY MANOHAR SAPRE, J.
[1954] SCR 1077 referred to Para3
E
[1964] SCR 332 referred to Para3
[1997] 2 Suppl. SCR 507 affirmed Para 13
[1950] SCR 88 referred to Para 17
[2014] 11 SCR 1009 referred to Para 17 F
[1970] 3 SCR 530 affirmed Para20
[1973] Suppl. SCR 1 affirnled Para 20
[1976] 2 SCR 226 affirmed Para 24
[1975] 3 SCR 946 aflirmed Para 28 G
[1978] 2 SCR 621 affirmed Para 29
[1996] 10 Suppl. SCR 321 affirmed Para 29
[1998] 1 Suppl. SCR 723 affirmed Para 29
H
640 SUPREME COURT REPORTS [2017) 10 S.C.R.

A . [2004) 5 Suppl. SCR 833 affirmed Para 29
[2013) 14 SCR 475 affirmed Para 29
[1966) 3 SCR 744 affirmed Para 40
PER SANJAY KISHAN' KAUL, J.
B [1952) SCR 284 relied on Para 34
[1973) Suppi. SCR 1 relied on Para 35
[2004) 1 SCR 1038 referred to Para 37
[1983) 1 SCR 922 referred to Para 44
c [2013) 17 SCR 116 referred to Para 80
. [1976) Suppl. SCR 172 overruled Para 82
[2007] 1 SCR 706 relied on Para 82
CIVIL ORIGINAL AND CRIMINAL APPELLATE
D JURISDICTION: W~it Petition (Civil) No. 494 of 2012.
Under Article 32 of the Constitution of India.
WITH
T.C. (C) Nos. 151 and 152 of 2013, W.P. (C) Nos. 833, 829 and
E 932 of2013. Contempt Petition (C) No. 144 of20l4 in W.P.(C) No. 494
of2012, T.P. (C) Nos. 313 and 312 of2014, S.L.P. (Crl.) No. 2524 of
2014. W.P. (C) Nos. 37 and 220 of 20J 5, Contempt Petition (C) No. 674
of2015 in W.P.(C) No.829 of2013, T.P. (C) No. 921 of2015. Contempt
Petition (C) No. 470 of 2015 in W.P. (C) No.494 of 2012, Contempt
F Petition (C) No. 444 of 2016 in W.P. (C) No. 494 of 2012, Cont~mpt
Petition (C) No. 608 of 2016 in W.P. (C) No.494 of 2012, W.P. (C)
No.797 of2016,Contempt Petition (C) No. 844 of2017 in W.P. (C) No.
494 of2012, W.P. (C) No. 342 of2017 and W.P. (C) No. 372 of2017.
K. K. Venugopal, AG, Tushar Mehta, ASG, Jugal Kishore Gilda,·
Adv. General, D. K. Singh, Shiv Mangal Sharma, AAGs, Arvind Datar,
G Ms. MeenakshiArora, Anand Grover, Shyam Di van, Gopal Subramanium,
C. A. Sundaram, Rakesh Dwivedi, Sajan Poovayya, Jayant Bhushan,
J. S. Attri, Kap ii Sibal, P.V. Surendra Nath, Sr. Ad vs. Anish Kumar Gupta,
Avdhesh Kr. Singh, R.K. Rajwanshi, Chandra Shekhar Suman, Ms. Deep
Shikha Bharti, Ms. Geetha Kovilan, Rahul Narayan, Apar Gupta,
H
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 641

Ms. Ananya, Shashwat Goel, Ms. Bhavna, Gautam Bhatia, Ms. Krutika, A
Shadan Farasat, Ms. Tripti Tandon, Ms. Lorraine Misquith, Ms. Srinidhi
Rao, Ms. Priyam Cherian, Prasanna S, Suraj, Vijayant Singh, Nipun
Saxena, Anando Mukherjee, Pratap Venugopal, Udayaditya Banerjee,
Prasanna S, Ms. Niharika, Anuj Sharma, Ms. Kanika Kalaiyarasan,
Ms. Sameeksha G, Ms. Kritika Bhardwaj, Apar Gupta (For Mis K. J. B
John & Co.), Vipin Nair. P. B. Suresh, S. Prasanna. Ms. Samiksha Godiyal,
Abbay Pratap Singh, Govihd Manoharan, V. K. Biju, Ms. Nidhi Khanna,
Dr. Abhishek Atrey, Ravindra Lokhande, Ms. Aishwarya Bhati,
Ms. Neha Meena, Jaideep Singh, Anirban Sen, Ms. Tani ya, Mis Meharia
& Co., Jaideep Singh, Ms. Archana Pathak Dave, TalhaAbdul Rahman,
Prateek Chaddha, Ankur Kashyap, Pavan Bhushan, Zulnoor Ahmed, C
Jayavardhan Singh, Eklavya Vasudev, Ms. Ankita Chaudhary, Ms.
Radhika Sharma, Prashant Bhushan, Chittaranjan Mishra, Bhanu Pratap
Singh, Sarthak Chodhury, Pranaya Kumar Mahapatra, Zoheb Hossain,
Raj at Nair, KanuAgrawal, Manan Popli, Ms. Shraddha Deshmukh,Ankur
Talwar, Piyush Goyal, Ms. Devika Jain, Anil Kr. Gulati (For Mrs. Anil D
Katiyar), Rajat Nair, Manan Popli, Kanu Agrawal, Ankit Lal, Mishra
Saurabh, Nishant R. Katneshwarkar, Ms. Rohini Musa, Abhishek Gupta,
Zafar Inayat, Apoorv Tripathy, Arpit Rai, Ms. Hemantika Wahi, Ms.
Jesal Wahi, Ms. Shodhika Sharma, Apoorva Garg, Ms. Sansriti Pathak,
Amit Sharma, Dipesh Sinha, Ms. Ayiala Imti, Saransh Kumar, Priyadarshi
Bane1jee, Pratibhanu S. Kharola, Saransh Jain (For E. C. Agrawala), E
Ms. Reeja Verghese, Ketan Paul, Kuldeep S. Parihar, H.S. Parihar,
Adarsh Upadhyay, Ms. Komal Mundra, Saurabh Agrawal, Varinder
Kumar Sharma, Chandra Nand Jha, Parmanand Gaur, J. M. Kalia,
D.S. Mahra, Lal it Bhasin, Ms. Nina Gupta, Mudit Shamia, Soumitra G.
Chaudhuri, Chanchal K. Ganguli, Ms. Vimla Sinha (for Mr. Gopal Singh), F
S. Udaya Kumar Sagar, Mrityunjai Singh, Ranjan Mukherjee, Guntur
Prabhakar, Ms. Prerna Singh, Gopal Sankaranarayanan, Zeeshan Diwan,
Ms. Savita Singh, Ms. Veera Mahuli, Shruthanjaya Bharadwaj, Jayant .
Mohan, Dr. Arghya Sengupta, Sanjay Kapur, T. G Narayanan Nair,
Ms. Nitya Madhusoodhanan, Puducherry V. G. Pragasam, Prabu
Ramasubramanian, Karan Bharihoke, Jagjit Singh Chhabra, Jatinder G
Kumar Bhatia, Ashutosh Kumar Sharma, Sanjay Kumar Visen,
A. P. Mayee, A.Selvin Raja, Avnish M. Oza, Chirag Jain, Shrey Kapoor,
T.A. Rehman (For Ms. Ruchi Kohli), Tapesh Kr. Singh, Sukant Vikram,
Mohd. Waquas, Aditya Pratap Singh, Nishe Raj en Shanker, Mohammed
H
642 SUPREME COURT REPORTS [2017] 10 S.C.R.

A Saddique, Ms. Resmitha R. Chandran, Ms. Anu K. Joy, M. Shoeb Alam,
Ms. Fauzia Shakil, Ujjwal Singh, Mojahid Karim Khan,
K. V. Jagdishvaran, Mrs. G. Indira, Sapam Biswajit Meitei, Naresh Kr.
Gaur, Ashok Kr. Singh, Gopal Singh, Rituraj Biswas, Manish Kumar,
Pranab Prakash, Shivam Singh, Aditya Raina, Shreyas Jain, Kumar Mil ind,
B Ms. Ambika Gautam, Chandan Kumar, J. K. Bhatia, Ashutosh Kr.
Sharma, Mrs. K. Enatoli Serna, Edward Belho, Amit Kumar Singh,
K. Luikang Michael, Ms. Elix Gangmei, Z. H. Isaac Haiding, S. Mukerjee,
Manoj K. Mishra, Umesh Dubey, Ms. Meghna Kalra, Ms. Neela
Gokhale, Aliam P, Ms. K. S. Mehlwal, R. Sudhinder, Ashok Mathur,
Ms. Amrita Sarkar, Nikhil Nayyar, Ms. Julian George,Arjun Ranganathan,
C Yatinder Garg, Yashwant Prasad, Pradeep Gupta, Parinav Gupta,
Mrs. Mansi Gupta, Moazzam Ali (For Dr (Mrs.) Vipin Gupta), Advs.
for the appearing parties.
The following Judgments and Order of the Court were delivered
by
D DR. D. Y. CHANDRACHUD, J.
This judgment has been divided into sections to facilitate analysis.
They are:
A The reference
E B Decision in M P Sharma
C Decision in Kharak Singh
D Gopalan doctrine: fundamental rights as isolated silos
E Cooper and Maneka: Interrelationship between rights
F F Origins of privacy
G Natural and inalienable rights
H Evolution of the privacy doctrine in India
I The Indian Constitution
G
• Prearnble
•Jurisprudence on dignity
• Fundamental Rights cases

H
.JUSTICE KS PUITASWAMY (RETD.) v. UNION OF INDIA 643
[DR. D. Y. CHANDRACHUD, J.]

• No waiver of Fundamental Rights A
• Privacy as intrinsic to freedom and liberty
• Discordant Notes : (i) ADM .Jabalpur
(ii) Suresh Koushal
J India's commitments under International law B
K Comparative law on privacy
(i) UK decisions
(ii) US Supreme Court decisions
(iii) Constitutional right to privacy in South Africa c
(iv) Constitutional right to privacy in Canada
(v) Privacy under the European Convention on Human Rights
and the European Charter
(vi) Decisions of the Inter-American Cou1t of Human Rights D
L Cdticisms of the privacy doctrine
a Thomson's Reductionism
b Posner's Economic critique
E
c Bork's critique
d Feminist critique
M Constituent Assembly and privacy:limits of originalist
interpretation
N Is the statutory protection to privacy reason to deny a . F
constitutional right?
0 Not an elitist construct
P Not just a common law right
Q Substantive Due Process G
R Essential nature of privacy
S Informational privacy
T Conclusions
H
644 SUPREME COURT REPORTS [2017] 10 S.C.R.

A A The reference
1. Nine judges of this Court assembled to determine whether
privacy is a constitutionally protected value. The issue reaches out to
the foundation of a constitutional culture based on the protection of human
rights and enables this Court to revisit the basic principles on which our
B Constitution has been founded and their consequences for a way of life
it seeks to protect. This case presents challenges for constitutional
interpretation. If privacy is to be construed as a protected constitutional
value, it would redefine in significant ways our concepts of liberty and
the entitlements that flow out of it~ protection.
c 2. Privacy, in it~ simplest sen~e, allows each human being to be
left alone in a core which is inviolable. Yet the autonomy of the individual
is conditioned by her relationships with the rest of society. Those
relationships may and do often pose questions to autonomy and free
choice~ The overarching presence of state and non-state entities regu\ates
aspects of social existence which bear upon the freedom of the individual.
D The preservation of constitutional liberty is, so to speak, work in progress.
Challenges have to be addressed to existing problems. Equally, new
challenges have to be dealt with in terms of a constitutional understanding
of where liberty places an individual in the context of a social order. The
emergence of new challenges is exemplified by this case, where the
E debate on privacy is being analysed in the context of a global information
based society. In an age where information technology governs virtually
every aspect of our lives, the task before the Court is to impart
constitutional meaning to individual liberty in an interconnected world.
While we revisit the question whether our _constitution protects privacy
as an elemental principle, the Court has to be sensitive to the needs of
F and the opportunities and dangers posed to liberty in a digital world.

3. A Bench of three judges of this Court while considering the
constitutional challenge to the Aadhaar card scheme of the Union
government noted in its order dated 1I August 2015 that the norm~ for
and compilation of demographic biometric data by government was
G · questioned on the ground that it violates the right to privacy. The Attorney
General for India urged that the existence of a fundamental right of
.'privacy is in cjoubt in vie..y oft~o deCisions: the first-MP Sharma v
Satish Chandra, District Magistrate, Delhi1("M P Sharma") was
rendered by a Bench of eight judges and the second, in Kharak Singh
H v State ofUttar Pradesh 2 ("Kharak Singh") was rendered by a Bench
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 645
[DR. D. Y. CHANDRACHUD, J.]

of six judges. Each of these decisions. in the submission of the Attorney A
General, contained observations that the Indian Constitution does not
specifically protect the right to privacy. On the other hand, the submission
of the petitioners was that MP Sharma and Kharak Singh were founded
on principles expounded in A K Gopalan v State of Madras 3
("Gopalan"). Gopalan, which construed each provision contained in B
the Chapter on fundamental rights as embodying a d.istinct protection,
was held not to be good law by an eleven-judge Bench in Rustom
Cavasji Cooper v Union of lndia4 ("Cooper"). Hence the petitioners
submitted that the basis of the two earlier decisions is not valid. Moreover,
it was also urged that in the seven-judge Bench decision in Maneka
Gandhi v Union oflndia5 ("Maneka"), the minority judgment ofJustice C
Subba Rao in Kharak Singh was specifically approved of and the
decision of the majority was overruled.
4. While addressing these challenges, the Bench of three judges
of this Court took note of several decisions of this Court in which the
right to privacy has been held to be a constitutionally protected fundamental D
right. Those decisions include : Gobind v State of Madhya Pradesh6
("Gobind"), R Rajagopal v State of Tamil Nadu7 ("Rajagopal") and
People's Union for Civil Liberties v Union of India 8 ("PUCL").
These subsequent decisions which affirmed the existence of a
constitutionally protected right of privacy, were rendered by Benches of
a strength smaller than those in MP Sharma and Kharak Singh. Faced E
with this predicament and having due regard to the far-reaching questions
of importance involving interpretation of the Constitution, it was felt that.
institutional integrity andjudicial discipline would require a reference to
a larger Bench. Hence the Bench of three learned judges observed in
its order dated 11August2015: F
"12. We are of the opinion that the cases on hand raise far reaching
questions of importance involving interpretation of the Constitution.
What is al stake is the amplitude of the fundamental rights including
'(1954) SCR 1077
'(1964) I SCR 332 G
'AIR 1950 SC 27
• (1970) 1 sec 248
'(1978) 1 sec 248
6
(1975) 2 sec 148
1
(1994) 6 sec 632
• (1997) 1 sec 301
H
646 SUPREME COURT REPORTS [2017] 10 S.C.R.

A that precious and inalienable right under Article 21. If the
observations made in M.P. Sharma (supra) and Kharak Singh
(supra) are to be read literally and accepted as the law of this
country, the fundamental rights guaranteed under the Constitution
of India and more paiticularly right to liberty under Article 21
would be denuded of vigour and vitality. At the same time, we are
B
also of the opinion that the institutional integrity and judicial
discipline require that pronouncement made by larger Benches of
this Court cannot be ignored by the smaller Benches without
appropriately explaining the reasons for not following the
pronouncements made by such larger Benches. With due respect
c to all the learned Judges who rendered the subsequent judgments
- where right to privacy is asse1ted or referred to their Lordships
concern for the liberty of human beings, we are of the humble
opinion that there appears to be certain amount of apparent
unresolved contradiction in the law declared by this Court.
D 13. Therefore, in our opinion to give a quietus to the kind of
controversy raised in this batch of cases once for all, it is better
that the ratio decidendi of M.P. Sharma (supra) and Kharak
Singh (supra) is scrutinized and the jurisprudential correctness of
the subsequent decisions of this Court where the right to privacy
is either asserted or referred be examined and authoritatively
E decided by a Bench of appropriate strength."
5. On 18 July 2017, a Constitution Bench presided over by the
learned Chief Justice considered it appropriate that the issue be resolved
by a Bench of nine judges. The order of the Constitution Bench reads
thus:
F
"During the course of the hearing today, it seems that it has become
essential for us to determine whether there is any fundamental
right of privacy under the Indian Constitution. The determination
of this question would essentially entail whether the decision
recorded by this Court in M.P. Sharma and Ors. vs. Satish
G Chandra, District Magistrate, Delhi and Ors. - 1950 SCR 1077
by an eight-Judge Constitution Bench, and also, in Kharak Sfngh
vs. The State of U.P. and Ors. - 1962 (I) SCR 332 by a six-
Judge Constitution Bench, that there is no such fundamental right,
is the correct expression of the constitutional position.
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 647
[DR. D. Y. CHANDRACHUD. J.]

Before dealing with the matter any further, we are of the view A
that the issue noticed hereinabove deserves to be placed before
the nine-Judge Constitution Bench. List these matters before the
Nine-Judge Constitution Bench on 19.07.2017." ·
6. During the course of hearing, we have been ably assisted on
behalf of the petitioners by Mr Gopal Subramanium, Mr Kapil Sibal, Mr B
Arvind Datar, Mr Sh yam Divan, Mr Anand Grover, Ms Meenakshi Arora,
Mr Sajan Poovayya and Mr Jayant Bhushan, learned senior counsel.
Mr J S Attri, learned senior counsel supported them on behalf of the
State of Himachal Pradesh. On behalf of the Union of India, the Court
has had the benefit of the erudite submissions of Mr K K Venugopal,
Attorney General for India. He has been ably supported by Mr Tushar' C
Mehta, Additional Solicitor General. Mr Rakesh Dwivedi, senior counsel
for the State of Gujarat, Mr Aryama Sundaram for the State of
Maharashtra, Mr Gopal Sankaranarayanan and Dr Arghya Sengupta
respectively. While some state governments have supported the stand
of the Union government, others have supported the petitioners. D
7. The correctness of the decisions in MP Sharma and Kharak
Singh, is to be evaluated during the course of the reference. Besides,
the jurisprudential correctness of subsequent decisions holding the right
to privacy to be a constitutionally protected right is to be determined.
The basic question whether privacy .is a right protected under our E
Constitution requires an understanding of what privacy means. For it is
when we understand what interests or entitlements privacy safeguards,
that we can determine whether the Constitution protects privacy. The
contents of privacy need to be analysed, not by providing an exhaustive
enunciation or catalogue of what it includes but by indicating its broad
contours. The Court has been addressed on various aspects of privacy F
including: (i) Whether there is a constitutionally protected right to privacy;
(ii) 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; (iii) the doctrinal foundations of the claim to privacy; (iv) the G
content of privacy; and (v) the nature of the regulatory power of the
state.
B Decision in M P Sharma
8. An investigation was ordered by the Union government under
H
648 SUPREME COURT REPORTS [2017] 10 S.C.R.

A the Companies Act into the affairs of a company which was in liquidation
on the. ground that it had made an organized attempt to embezzle its
funds and to conceal the true state of its affairs from the share-holders
and on the allegation that the company had indulged in fraudulent
transactions and falsified its records. Offences were registered .and
search warrants were issued during the course of which, records were
B
seized. The challenge was that the searches violated the fundamental
rights of the petitioners under Article 19(1)(f) and Article 20(3) of the
Constitution. The former challenge was rejected. The question which
this Court addressed was whether there was a contravention of Article
20(3). Article 20(3) mandates that no person accused of an offence
c shall be compelled to be a witness against himself. Reliance was placed
on a judgment9 of the USSupreme Court holding that obtaining
incriminating evidence by an illegal search and seizure violates the Fourth
and Fifth Amendments of the American Constitution. While tracing the
history ofindian legislation, this Court observed that provisions for search
were contained in successive enactments of the Criminal Procedure
D
Code. Justice Jagannadhadas, speaking for the Bench, held that a search
or seizure does not infringe the constitutional right guaranteed by Article
20(3) of the Constitution:
" ... there is no basis in the Indian law for the assumption that a
search or seizure of a thing or document is in itself to be treated
E as compelled production of the same. Indeed a little consideration
will show that the two are essentially different matters for the
purpose relevant to the present discussion. A notice to produce is
addressed to the party concerned and his production in compliance
therewith constitutes a testimonial act by him within the meaning
F of Article 20(3) as above explained. But a search warrant is
addressed to an officer of the Government, generally a police
officer. Neither the search nor the seizure are acts of the occupier
of the searched premises. They are acts of another to which he is
obliged to submit and are, therefore, not his testimonial acts in any
sense. " 10
G
9. Having held that the guarantee against self-incrimination is not
offended by a search and seizure, the Court observed that :

' Boyd v. United States, 116 US 616 (1886)
10
MP Sharma (Supra note 1), at page 1096
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 649
[DR. D. Y. CHANDRACHUD, J.]

"A power of search and seizure is in any system of jurisprudence A
an overriding power of the State for the protection of social security
and that power is necessarily regulated by law. When the
Constitution makers have thought fit not to subject such
regulation to constitutional limitations by recognition of a
fundamental right to privacy, analogous to the Fourth
Amendment, we have no justification to import it, into a B
totally different fundamental right, by some process of strained
construction. Nor is it legitimate to assume that the
constitutionalprotection under Article 20(3) would be defeated by
the statutory provisions for searches." 11 (emphasis supplied)
10. These observations - to be more precise in one sentence - C
indicating that the Constitution makers did not subject the regulation by
law of the power of search and seizure to a fundamental right of privacy,
similar to the Fourth amendment of the US Constitution, have been
pressed in aid to question the existence of a protected right to privacy
under our Constitution. D
C Decision in Kharak Singh
11. After being challaned in a case of dacoity in 1941, Kharak
Singh was released for want of evidence. But the police compiled a
"history sheet'' against him. 'History sheets' were defined in Regulation
228 of Chapter XX of the UP Police Regulations as "the personal records E
of criminals under surveillance". Kharak Singh, who was subjected to
regular surveillance, including midnight knocks, moved this Court for a
declaration that his fundamental rights were infringed. Among the
measures of surveillance contemplated by Regulation 236 were the
following: F
"(a) Secret picketing of the house or approaches to the houses
. of suspects;
(b) domiciliary visits at night;
(c) thorough periodical inquiries by officers not below the rank G
of sub-inspector into repute, habits, associations, income,
expenses and occupation;
(d) the reporting by constables and chaukidars of movements
and absences from home;
11 Ibid, at page 1096-97
H
650 SUPREME COURT REPORTS [2017] 10 S.C.R.

A (e) the verification of movements and absences by means of
inquiry slips;
(f) the collection and record on a history-sheet of all information
bearing on conduct."
12. This Court held that the freedom to move freely throughout
B the territory of India, guaranteed by Article 19(1 )( d) was not infringed
by a midnight knock on the door of the petitioner since "his locomotion is
not impeded or prejudiced in any manner".
13. When the decision in Kharak Singh was handed down, the
principles governing the inter-relationship between the rights protected
C by Atiicle 19 and the right to life and personal liberty under Article 21
were governed by the judgment in Gopalan.Gopalan considered each
of the articles in the Chapter on fundamental rights as embodying distinct
(as opposed to over-lapping) freedoms. Hence in Kharak Singh, the
Court observed :
D "In view of the very limited nature of the question before us it is
unnecessary to pause to consider either the precise relationship
between the "liberties" in Article 19(l)(a) & (d) on the one hand
• and that in Article 21 on the other, or the content and significance
of the words "procedure established by law" in the latter Article,
E both of which were the subject of elaborate consideration by this
Court in A.K. Gopalan v. State of Madras." 12 .
14. The decision in Kharak Singh held that clause (b) of
Regulation 236 which provided for domiciliary visits at night was violative
of Article 21. The Court observed:
F "Is then the word "personal liberty" to be construed as excluding
from its purview an invasion on the part of the police of the sanctity
of a man's home and an intrusion into his personal security and
his right to sleep which is the normal comfort and a dire necessity
for human existence even as an animal? It might not be
inappropriate to refer here to the words of the preamble to the
G
Constitution that it is designed to "assure the dignity of the
individual" and therefore of those cherished human values as the
means of ensuring his full development and evolution. We are
referring to these objectives of the framers merely to draw
12
Kharak Singh (Supra note 2), at page 345
H
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 651
[DR. D. Y. CHANDRACHUD, J.]

attention to the concepts underlying the constitution which would A
point to such vital words as "personal liberty" having to be construed
in a reasonable manner and to be attributed that sense which
would promote and achieve those objectives and by no means to
stretch the meaning of the phrase to square with any pre-conceived
notions or doctrinaire constitutional theories." 13
B
15. In taking this view, Justice RajagopalaAyyangar, speaking for
a majority of five judges, relied upon the judgment ofJustice Frankfurter,
speaking for the US Supreme Court in Wolf v Colorado 14, which held.:
"The security of one's privacy against arbitrary intrusion by the
police ... is basic to a free society... . C
We have no hesitation in saying that were a State affirmatively to
sanction such police incursion into privacy it would run counter
to the guarantee of the Fourteenth Amendment." 15
(emphasis supplied)
I)
While the Court observed that the Indian Constitution does not
contain a guarantee similar to the Fourth Amendment of the US
Constitution, it proceeded to hold that :
"Nevertheless, these extracts would show that an unauthorised
intrusion into a person's home and the disturbance caused to E
him thereby, is as it were the violation of a common law right
of a man an ultimate essential of ordered liberty, if not of the
very concept of civilisation. An English Common Law maxim
asserts that ''every man's house is his castle" and in Semayne
case [5 Coke 91 : 1 Sm LC (13th Edn) 104 at p. 105] where this
was applied, it was stated that "the house of everyone is to F
him as his castle and fortress as well as for his defence against
injury and violence as for his repose". We are not unmindful of
the fact that Semayne case [(1604) 5 Coke 91 : I Sm LC (13th
Edn) 104 at p. 105] was concerned with the law relating to
executions in England, but the passage extracted has a validity G
quite apart from the context of the particular decision. It embodies
an abiding principle which transcends mere protection of
property rights and expounds a concept of "personal liberty"
13 Ibid, at pages 347-348
14
338 us 25 ( 1949)
" Cited in Kharak Singh (Supra note 2), at page 348 H
652 SUPREME COURT REPORTS [2017] IO S.C.R.

A which does not rest on any element of feudalism or on any theory
of freedom which has ceased to be of value." 16
(emphasis supplied)
16. Kharak Singh regards the sanctity of the home and the
protection against unauthorized intrusion an integral element of "ordered
B liberty". This is comprised in 'personal liberty' guaranteed by Article 21.
The decision invalidated domiciliary visits at night authorised by Regulation
236 (b ), finding them to be an unauthorized intrusion into the home of a
person and a violation of the fundamental right to personal liberty.
However, while considering the validity of clauses (c),( d) and (e) which
provided for periodical enquiries, reporting by law enforcement personnel
c and verification of movements, this Court held as follows :
" ... the freedom guaranteed by A1ticle 19( 1)( d) is not infringed by
a watch being kept over the movements of the suspect. Nor do
we consider that Article 21 has any relevance in the context as
was sought to be suggested by learned Counsel for the petitioner.
D As already pointed out, the right of privacy is not a guaranteed
right under our Constitution and therefore the attempt to
ascertain the movements of an individual which is merely a
manner in which privacy is invaded is not an infringement
of a fundamental right guaranteed by Part 111.m7
(emphasis supplied)
E
In the context of clauses (c), (d) and (e), the above extract indicates
the view of the majority that the right of privacy is not guaranteed under
" the Constitution.
17. Justice Subba Rao dissented. Justice Subba Rao held that the
F rights conferred by Part III have overlapping areas. Where a law is
challenged as infringing the right to freedom of movement under Article
19( I)(d) and the liberty of the individual under Article 21, it must satisfy
the tests laid down in Article 19(2) as well as the requirements of Article
21. Justice Subba Rao held that:
G "No doubt the expression "personal liberty" is a comprehensive
one and the right to move freely is an attribute of personal liberty.
It is said that the freedom to move freely is carved out of personal
liberty and, therefore, the expression "personal liberty" in Article
21 excludes that attribute. In our view, this is not a correct
16 Ibid, at page 349

H 17
Ibid, at page 351
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 653
[DR. D. Y. CHANDRACHUD, J.]

approach. Both are independent fundamental rights. though there A
is overlapping. There is no question of one being carved out of
another. The fundamental right of life and personal liberty have
many attributes and some of them are found in A1ticle 19. If a
person's fundamental right under Article 21 is infringed, the State
can rely upon a law to sustain the action; but that cannot be a B
complete answer unless the said law satisfies the test laid down
in Article 19(2) so far as the attributes covered by Article 19(1)
are concerned. In other words, the State must satisfy that both
the fundamental rights are not infringed by showing that there is a
law and that it does amount to a reasonable restriction within the
meaning of Article 19(2) of the Constitution. But in this case no C
such defence is available, as admittedly there is no such law. So
the petitioner can legitimately plead that his fundamental rights
both under Article 19(l)(d) and Article 21 are infringed by the
State." 18
18. Justice Subba Rao held that Article 21 embodies the right o.f D
the individual to be free from restrictions or encroachments. In this
view, though the Constitution does not expressly declare the right to
privacy as a fundamental right, such a right is essential to personal liberty.
The dissenting opinion places the matter of principle as follows:
"In an uncivilized society where there are no inhibitions, only E
physical restraints may detract from personal liberty, but as
civilization advances the psychological restraints are more effective
than physical ones. The scientific methods used to condition a
man's mind are in a real sense physical restraints, for they engender
physical fear channelling one's actions through anticipated and
expected grooves. So also the creation of conditions which F
necessarily engender inhibitions and fear complexes can be
described as physical restraints. Further, the right to personal liberty
takes in not only a right tci be free from restrictions placed on his
movements, but also free from encroachments on his private life.
It is true our Constitution does not expressly declare a o
right to privacy as a fundamental right, but the said right is
an essential ingredient of personal liberty. Every democratic
country sanctifies domestic life; it is expected to give him rest,
physical happiness, peace of mind and security. In the last resort,
" Ibid, at pages 356-357
H
654 SUPREME COURT REPORTS (2017] I 0 S.C.R.

A a person's house, where he lives with his family, is his "castle"; it
is his rampart against encroachment on his personal liberty. The
pregnant words of that famous Judge, Frankfurter J.,
in Wolf v. Colorado [[1949] 238 US 25] pointing out the
importance of the security of one's privacy against arbitrary
intrusion by the police, could have no less application to an
B
Indian home as to an American one. If physical restraints on a
person's movements affect his personal liberty, physical
encroachments on his private life would affect it in a larger degree.
Indeed, nothing is more deleterious to a man's physical happiness
and health than a calculated interference with his privacy. We
c would, therefore, define the right of personal liberty in Article 21
as a right of an individual to be free from restrictions or
encroachments on his person, whether those restrictions or
encroachments are directly imposed or indirectly brought about
by calculated measures. If so understood, all the acts of
surveillance under Regulation 236 infringe the fundamental right
D
of the petitioner under Article 21 of the Constitution." 1"
(emphasis suppl,ied)
Significantly, both Justice Rajagopala Ayyangar for the majority
and Justice Subba Rao in his dissent rely upon the observations of Justice
Frankfurter in Wolf vColorado which specifically advert to privacy.
E The majority, while relying upon them to invalidate domiciliary visits at
night, regards the sanctity of the home as part of ordered liberty. In the
context of other provisions of the regulation, the majority declines to
recognise a right of privacy as a constitutional protection. Justice Subba
Rao recognised a constitutional by protected right to privacy, considering
F it as an ingredient of personal liberty. ·
D Gopalan doctrine : fundamental rights as isolated silos
19. When eight judges of this Court rendered the decision in MP
Sharma in 1954 and later, six judges decided the controversy in Kharak
Singh in 1962, the ascendant and, even well established, doctrine governing
G the fundamental rights contained in Part III was founded on the Gopalan
principle. In Gopalan, Chief Justice Kania, speaking for a majority of
five of the Bench of six judges, construed the relationship between
Articles 19 and 21 to be one of mutual exclusion, In this line of enquiry,
what was comprehended by Article 19 was excluded from Article 21.
H 1
• Ibid, at pages 358-359
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 655
[DR. D. Y. CHANDRACHUD, J.]

The seven freedoms of Article 19 were not subsumed in the fabric of A
life or personal liberty in Article 21. The consequence was that a law
which curtailed one of the freedoms guaranteed by Article 19 would be
required to answer the tests of reasonableness prescribed by clauses 2
to 6 of Article 19 and those alone. In the Gopalan perspective; free
speech and expression was guaranteed by Article 19(l)(a) and was B
hence excluded from personal liberty under Article 21. Article 21 was
but a residue. Chief Justice Kania held :
"Reading Article 19 in that way it appears to me that the concept
of the right to move freely throughout the territory oflndia is an
entirely different concept from the right to "personal libe.rty"
contemplated by Article 21. "Personal liberty" covers many mo.re C
rights in one sense and has a restricted meaning in another sense.
For instance, while the right to move or reside may be covered by
the expression, "personal liberty" the right to freedom of speech
(mentioned in Article 19(1)(a)) or the right to acquire, hold or
dispose of property (mentioned in l 9(l)(t)) cannot be considered D
a part of the personal liberty of a citizen. They form part of the
liberty of a citizen but the limitation imposed by the word ''personal"
leads me to believe that those rights are not covered by the
expression personal liberty. So read there is no conflict between
Articles 19 and 21. The contents and subject-matters of Articles
19 and 21 are thus not the same and they proceed to deal with the_ E
rights covered by their respective words from totally different
angles. As already mentioned in respect of each of the rights
specified in sub-clauses of Article 19(1) specific limitations in
respect of each-is provided, while the expression "personal liberty"
in Article 21 is generally controlled by the general expression F
"procedure established by law"." 20
'Procedure established by law' under Article 21 was, in this view,
not capable of being expanded to include the 'due process oflaw'. Justice
Faz! Ali dissented. The dissent adopted the view that the fundamental
rights are not isolated and separate but protect a common thread of G
liberty and freedom:
"To my mind, the scheme of the Chapter dealing with the
fundamental rights does not contemplate what is attributed to ii,
namely, that each article is a code by it~elf and is independent of
20 Gopalan (Supra note 3), at pages 36-37
H
656 SUPREME COURT REPORTS (2017] 10 S.C.R.

A the others. In my opinion, it cannot be said that Articles 19,20, 21
-
and 22 do not to some extent overlap each other. The case of a
person who is convicted of an offence will come under Articles
·20 and 21 and also under Article 22 so far as his arrest and detention
in custody before trial are concerned. Preventive detention, which
is dealt with an Article 22, also amount~ to deprivation of personal
B
liberty which is referred to in Article 21, and is a violation of the
right of freedom of movement dealt with in Article 19(1 )( d) ...
It seems clear that the addition of the word "personal'' before
"liberty" in Article 21 cannot change the meaning of the words
used in Article 19, nor can it put a matter which is inseparably
c bound up with personal liberty beyond its place ... "21
20. In Satwant Singh Sawhney v D Ramarathnam22 ("Satwant
Singh Sawhney"), Justice Hidayatullah. speaking for himself and Justice
RS Bachawat, in the dissenting view noticed the clear lines of distinction
between the dissent of Justice Subba Rao and the view of the majority
D in Kharak Singh. The observations of Justice Hidayatullah indicate
that if the right of locomotion is embodied by Article 21 of which one
aspect is covered by Article 19(l)(d), that would in fact advance the
minority view in Kharak Singh:
"Subba Rao J. (as he then was) read personal liberty as· the
E antithesis of physical restraint or coercion and found that Articles
19(1) and 21 overlapped and Article 19(1 )( d) was not carved out
of personal liberty in Article 21. According to him, personal liberty
could be curtailed by Jaw, but that Jaw must satisfy the test in
Article 19(2) in so far as the specific rights in Article 19(1 )(3) are
F concerned. In other words, the State must satisfy that both the
fundamental rights are not infringed by showing that there is a
law and that it does not amount to an unreasonable restriction
within the meaning of Article 19(2) of the Constitution. As in that
case there was no law, fundamental rights, both under Article
19( l )(d) and Article 21 were held to be infringed. The learned
G Chief Justice has read into the decision of the Court a meaning
which it does not intend to convey. He excludes from Article 21
the right to free motion and locomotion within the territories of
India and puts the right to travel abroad in Article 21. He wants to
21 Ibid, at pages 52-53
22 ( 1967) 3 SCR 525
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 657
[DR. D. Y. CHANDRACHUD, J.]

see a law and if his earlier reasoning were to prevail, the law A
should stand the test of Article 19(2). But since clause (2) deals
with matters in Article 19(1) already held excluded, it is obvious
that it will not apply. The law which is made can only be tested on
the ground of articles other than Article 19 such as Articles 14, 20
and 22 which alone bears upon this matter. In other words, the B
majority decision of the Court in this case has rejected Ayyangar
J.'s view and accepted the view of the minority in Kharak Singh
case ...
This view obviously clashes with the reading of Article 21
in Kharak Singh case, because there the right of motion and
locomotion was held to be excluded from Article 21. In other C
words, the present decision advances the minority ~'iew in Kharak
Singh case above the majority view stated in that case." 23
E Cooper and Maneka: Interrelationship between rights
21. The theory that the fundamental rights are water-tight D
compartments was discarded in the judgment of eleven judges of this
· Court in Cooper. Gopalan had adopted the view that a law of preventive
detention would be tested for its validity only with reference to Article
22, which was a complete code relati'ng to the subject. Legislation on
preventive detention did not, in this view, have to meet the touchstone of
Article l 9(l)(d). The dissenting view of Justice Fazl Ali in Gopalan E
was noticed by Justice J C Shah, speaking for this Court, in Cooper.
The consequence of the Gopalan doctrine was that the protection
afforded by a guarantee of personal freedom would be decided by the
object of the State action in relation to the right of the individual and not
upon its effect upon the guarantee. Disagreeing with this view, the F
Court in Cooper held thus :
" .. .it is necessary to bear in mind the enunciation of the guarantee
of fundamental rights which has taken different forms. In some
cases it is an express declaration of a guaranteed right: Articles
29(1 ), 30(1), 26, 25 and 32; in others to ensure protection of G
individual rights they take specific forms of restrictions on State
· action - legislative or executive -Articles 14, 15, 16, 20, 21,
22(1), 27 and 28; in some others, it takes the fonn of a positive
declaration and simultaneously enunciates the restriction thereon:
23 Ibid, at page 554
H
658 SUPREME COURT REPORTS (2017] 10 S.C.R.

A Articles 19(1) and 19(2) to (6); in some cases, it arises iis an
implication from the delimitation of the authority of the State, e.g.
Articles 31 (1} and 31 (2); in still others, it takes the form of a
general prohibition against the State as well as others: Articles 17,
23 and 24. The enunciation of rights either express or by
implication does not follow a uniform pattern. But one
B
thread runs through them: they seek to protect the rights
of the individual or groups of individuals against
infringement of those rights within specific limits. Part III
of the Constitution weaves a pattern of guarantees on the
texture of basic human rights. The guarantees delimit
c the protection of those rights in their allotted fields: they
do not attempt to enunciate distinct rights." 24
(emphasis supplied)
22. The abrogation of the Gopalan doctrine in Cooper was
revisited in a seven-judge Bench decision in Maneka. Justice P N
D Bhagwati who delivered the leading opinion of three Judges held that
the judgment in Cooper affirms the dissenting opinion of Justice Subba
Rao (in Kharak Singh) as expressing the valid constitutional position.
Hence in Mancka, the Court held that:
"It was in Kharak Singh v. State of U.P.[AIR 1963 SC 1295 :
E (1964) 1 SCR 332 : (1963) 2 Cri LJ 329] that the question as to
the proper scope and meaning of the expression "personal liberty"
came up pointedly for consideration for the first time before.this
Court. The majority of the Judges took the view "that "personal
Iibe1ty" is used in the article as a compendious term to include
within itself all the varieties of rights which go to make up the
F "personal liberties" of man other than those dealt with in the several
clauses of Article 19( 1). In other words, while Article 19( 1) deals
with particular species or attributes of that freedom, 'personal
liberty' in Article 2 I .takes in and comprises the residue. The
minority Judges, however, disagreed with this view taken by the
G majority and explained their position in the following words: "No
doubt the expression 'personal liberty' is a comprehensive one
and the right to move freely is an attribute of personal liberty. It is
said that the freedom to move freely is carved out of personal
liberty and, therefore, the expression 'personal liberty' in Article
24 Cooper (Supra note 4), at page 289 (para 52)
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 659
[DR. D. Y. CHANDRACHUD. J.]

21 excludes that attribute. In our view, this is not a correct A
approach. Both are independent fundamental rights, though there
is overlapping. There is no question of one being carved out of
another. The fundamental right of life and personal liberty has
many attributes and some of them are found in Article 19. If a
person's fundamental right under Article 21 is infringed, the State B
can rely upon a law to sustain the action, but that cannot be a
complete answer unless the said law satisfies the test laid down
in Article 19(2) so far as the attributes covered by Article 19( I)
are concerned." There can be no doubt that in view of the
decision of this Court in R.C. Cooper v. Union of
India [(1970) 2 SCC 298 : (1971) 1 SCR 512] the minority C
view must be regarded as correct and the majority view
must- be held to have been overruled." 25
(emphasis supplied)
23. Following the decision in Maneka, the established constitutional
- doctrine is that the expression 'personal liberty' in Article 21 covers a D
variety of rights, some of which 'have been raised to the status of distinct
fundamental rights' and given additional protection under Article 19.
Consequently, in Satwant Singh Sawhney, the right to travel abroad
was held to be subsumed within Article 21 as a consequence of which
any deprivation of that right could be only by a 'procedure established
by law'. Prior to the enactment of the Passports Act, 1967, there was no E
law regulating the right to travel abroad as a result of which the order of
the Passport Officer refusing a passport was held to be invalid. Th~
decision in Mancka carried the constitutional principle of the over-lapping
nature of fundamental rights to its logical conclusion. Reasonableness
which is the foundation of the guarantee against arbitrary state action F
under Article 14 infuses Article 21. A law which provides for a deprivation
of life or personal liberty under Article 21 must lay down not just any
procedure but a procedure which is fair, just and reasonable.
24. The decisions in M P Sharma and Kharak Singh adopted a
doctrinal position on the relationship betweenA1ticles 19 and 21, based G
on the view of the majority in Gopalan. This view stands abrogated
particularly by the judgment in Cooper and the subsequent statement of
doctrine in Maneka. The decision in Maneka, in fact, expressly
recognized that it is the dissenting judgment of Justice Subba Rao in
2-' Maneka (Supra Note 5), at page 278 (para 5)
H
660 SUPREME COURT REPORTS [2017] 10 S.C.R.

A
Kharak Singh which represents the exposition of the correct
constitutional principle. The jurisprudential foundation which held the
field sixty three years ago in MP Sharma and fifty five years ago in
Kharak Singh has given way to what is now a settled position in
constitutional law. Firstly, the fundamental rights emanate from basic
notions of libe1ty and dignity and the enumeration of some facets of
B
liberty as distinctly protected rights under Article 19 does not denude
Article 21 of its expansive ambit. Secondly, the validity of a law which
infringes 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. Thirdly, the requirement of Article 14 that state action ipust
c not be arbitrary and must fulfil the requirement of reasonableness, imparts
meaning to the constitutional guarantees in Part III.
25. The doctrinal invalidation of the basic premise underlying the
decisions in M P Sharma and Kharak Singh still leaves the issue of
whether privacy is a right protected by Part III of the Constitution open·
D for consideration. There are observations in both decisions that the
Constitution does not contain a specific protection of the right to privacy.
Presently, the matter can be looked at from the perspective of what
actually was the controversy in the two cases. M P Sharma was a case
where a law prescribing a search to obtain documents for investigating
into offences was challenged as being contrary to the guarantee against
E self-incrimination in Article 20(3). The Comt repelled the argument that
a search for documents compelled a person accused of an offence to be
witness against himself. Unlike a notice to produce documents, which is
addressed to a person and whose compliance would constitute a
testimonial act, a search warrant and a seizure which follows are. not
F testimonial acts of a person to whom the warrant is addressed, within
the meaning of Article 20(3). The Court having held this, the controversy
in MP Sharma would rest at that. The observations in MP Sharma to
the effect that the constitution makers had not thought it fit to subject the
regulatory power of search and seizure to constitutional limitations by
recognising a fundamental right of privacy (like the US Fourth
G amendment), and that there was no justification to impart it into a 'totally
different fundamental right' are at the highest, stray observations.
26. The decision in M P Sharma held that in the absence of a
· provision like the Fourth Amendment to the US Constitution, a right to
privacy cannot be read into the Indian Constitution. The decision in MP
H
.
JUSTICE KS PUTTASWAMY (~ETD.).v. UNION OF INDIA 661
[DR. D. Y. CHANDRACHUD, J.]

Sharma did not decide whether a constitutional right to privacy is .A
protected by other provisions contained in the fundamental rights including
among them, the right to life and personal liberty under Article 21. Hence
the decision cannot be construed to specifically exclude the protection
of privacy under the framework of protected guarantees including those
in Articles 19 or 21. The absence of an express constitutional guarantee .. 'B
of privacy still begs the question whether privacy is an element ofliberty
and, as an integral. part of human dignity, is comprehended within the
protection oflife as well.
27. The decision in Kharak Singh is n~tew.orthy because whi.Je : ·
invalidating Regulation 236(b) of the Police Regulations which provided
for nightly domiciiiary visits; the .majority construed, this to be. an c
unauthorized intrusion into a person's home and a violation of ordered
liberty. While arriving at this conclusion, the majority placed reliance on
the privacy doctrine enunciated by Justice Frankfurter, speaking forthe
US Supreme Court in Wolf v Colorado (the extract from Wolf cited in
the majority judgment specifically adverts to 'privacy' twice). Having D
relied on this doctrine to invalidate domiciliary visits, the majority in ,
Kharak Singh proceeded to repel the chailenge to other clauses of
Regulation 236 on the ground that the right of privacy is not guaranteed
under the Constitution and hence Article 21 had no applica.tion. This
part of the judgment in Kharak Singh is inconsistent with . the earlier ·E. ..
part of the decision. The decision: of the majority in.Kliarak Singh suffers·
from an internal in~~nsistency. · · · · •"
:, '

F Origins of priV?CY, ·
28. An evaluation of the origins ofprivacy is essential in order to.'
understand whether (as the Union oflndia postulates), the concept is so F
amorphous as to defy description. The submission of the government is
that the Court cannot recognize a juristic concept which is so vague and
uncertain that it fails to withstand constitutional scrutiny. This makes it
necessary to analyse tbe origins.of privacy and to trace its.evolution.
29. The.Greek philosopher Aristotle spokl'. of a .divisio~ between G
the public sphere of political affairs (which he termed the polis) an(j the"
personal sphere of human life (termed oikos). This dichotomy may·
provide an early recognition of "a confidential zone on behalf of the
citizen" 26 • Aristotle's distinction between the public and private realms
can be regarded as prov.iding a basis for restricting governmental authority
H
_6,_6'f. '1_•• , .. SUPRJ;,ME COURT .REPORTS I [2017] 10 S.C.R.

A to activities falling within the public realm. On the other hand, activities
in the private realm are more appropriately reserved for "private
reflection, familial relations and self-determination"27 •
· · · 30. At a certain level, the evolution of the doctrine of privacy has
followed the public ·- private distinction. Wiliiam Blackstone in his
B ·Cornrnentarfos on the Laws of Englan.d (1765) spoke about this
d.istinction while dividing wrongs into private wrongs and public wrongs.
Private wrongs are an infringement merely of particular rights concerning
individuals and are in the.miture of civil injuries. Public wrongs constitute
a breach of general and public rights affecting the whole community and
according to him, are called crimes and misdemeanours.
c
31. John Stuart Mill in his essay, 'On Liberty' (1859) gave
expression to the need to preserve a wile within which the liberty of the
citizen would be free from the authority of the state. According to Mill :
. ';
"'Ihe only part of the conduct of fll1Y one, for which he is amenable
D to s~ietY:,is_th~t v;J:iic~ f pncerns. others .. In the part which merely
. ;._ • i r, concerns itlmself, his independence is, of right, absolute. Over
himself, over his own body and mind, the individual is sovereign.""
a
•While speaking·of "struggle between liberty and authority""',
Mill posited that the (yranny of
the. majority could be reined by the
E recognition of cNiJ rights such as the individual right to privacy, free
speech, assembly and expression.
32. Austin in his Lectures on Jurisprudence (1869) spoke of
the distinctjon betw~en the public and the private realms :jus publicum
and jus privatum.
F The distinction between the public and private real ms has its
(
limitations. If the- ·reasoii for ·pr9tecting 'prihcy is the dignity of the
individual, the rationafo.f9r its exiS'ten~e does not cease merely because
to
the individual has int~ra~t with others Jn the public arena. The extent
to which an individual expects privacy in a public street may be different
from that which she expects i~ the sanctity of the home. Yet if dignity is
G
:?6Michael C. James. NA Comparative.Analysis of the Right to Prtvacy in the United
States, Canada and Europe~. Connecticut Journal oflntemational Law (Spring 2014),
·Vol. 29, Issue 2, at page 261
"'Ibid, at page 262
"John Stuart Mill, On Liberty, Batoche Books (1859), at page 13
29 Ibid, at page 6 ·
\
!
H :

(
. . .
JUSTICE K S PUTTASWf..MY (RETD.) v. UNI(JN OF INJ?IA . 663
[DR. D. Y. CijAND~ACHUD, J.]

the underlying feature, the basis of recognising the right to privacy is not A
denuded in public spaces. The extent of permissible state regulation may,
however, differ based on the legitimate concerns of governmental
authority.
33. James Madison, who was the architect of the American
Constitution, contemplated the protection of the faculties of the citizen B
as an incident of the inalienable property rights of human beings. In his
words:
"In the fonnersense, a man's land, or merchandize, or money ·is
called his property. In the latter sense, a man has property in his.
opinions and the free communication of them... · c
He has an equal property interest in the free use of his faculties
and free choice· of the objects on which to·empfoy them. In a
word, as a man is said to have a right to his property, he may be
equally said to have a property in his rights. Where an excess of
power prevails, property of no sort is duly respected. No man is D
safe in his opinions, his person, his faculties or his possessions ...
Conscience is the most sacred of all property; other property
depending in part on positive law; the exercise of that, being a
natural and inalienable right. To guard a man's house as his castle,
to pay public and enforce private debts with the most exact faith, .E
can give no title to invade a man's conscience which is more
sacred than his castle, or to withhold from it that debt of protection,
for which the public faith is pledged, by the very natw·e and original
conditions of the social pact.''30
Madison traced the recognition of an inviolable zone to an F
inalienable right to property. Property is construed in tht< broadest sense
to include tangibles and intangibles and ultimately to control over one's
conscience itself.
34. In an article published on 15 December 1890 in the Harvaro
Law Review, Samuel D Warren and Louis Brandeis adverted to the G
evolution· of the law to incorporate within it, the right to life as "a
recognition of man's spiritual nature, of his feelings and his intellect" 31 •
As legal rights were broadened, the right to life had "come to mean the
30 James Madison, "Essay on Property", in Gaillard Hunt ed., The Writings of James
Madison (1906), Vol. 6, at pages 101-103.
H
664 SUPREME COURT REPORTS [2017] I0 S.C.R.

A right to enjoy life- the right to be let alone". Recognizing that "only
a part of the pain, pleasure and profit of life lay in physical things" and
that "thoughts, emotions, and sensations demanded legal recognition",
Warren and Brandeis revealed with a sense of perspicacity the impact
of technology on the right to be let alone:
B "Recent inventions and business methods call attention to the next
step which must be taken for the protection of the person, and for
securing to the individual what Judge Cooley calls the right "to be
let alone". Instantaneous photographs and newspaper enterprise
have invaded the sacred precincts of private and domestic life;
and numerous mechanical devices threaten to make good the
c prediction that "what is whispered in the closet shall be proclaimed
from the house-tops." For years there has been a feeling that the
law must afford some remedy for the unauthorized circulation of
portraits of private persons ...
The intensity and complexity of life, attendant upon advancing
D civilization, have rendered necessary some retreat from the world,
and man, under the refining influence of culture, has become more
sensitive to publicity, so that solitude and privacy have become
more essential to the individual; but modern enterprise and invention
have, through invasions upon his privacy, subjected him to mental
E pain and distress, far greater than could be inflicted by mere bodily
injury." 32
In their seminal article, Warren and Brandeis observed that:
''The principle which protects persona1 writings and all other
personal productions, not against theft and physical appropriation,
F but against publication in any form, is in reality not the principle of
priYate propel\y, but that of an inviolate personality."33
(emphasis supplied)
The right "to be let alone" thus represented a manifestation of
"an inviolate personality", a core of freedom and liberty from which the
G human being had to be free from intrusion. The technology which provided
a justification for the need to preserve the privacy of the individual was
the development of photography. The right to be let alone was not so
Warren and Brandeis, ''The Right to Privacy", Harvard Law Review (1890), Vol.4,
31

No. 5, at page 193
· 32 Ibid, at pages 195-196

H 33 Jbid, at page 205 "
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 665
[DR. D. Y. CHANDRACHUD, J.]

much an incident of property as a reflection of the inviolable nature of A
the human personality.
35. The ringing observations of Warren and Brandeis on the impact
of technology have continued relevance today in a globalized world
dominated by the internet and information technology. As societies have ·
evolved, so have the connotations and'ambit of privacy. B
36. Though many contemporary accounts attribute the modern
conception of the 'right to privacy' to the Warren and Brandeis article, :·. ·· · . ·
historical material indicates that it was Thomas Cooley who adopted :
the phrase "the right to be let alone", in his Treatise on the Law of
Torts 34• Discussing personal immunity, Cooley stated: c
"the right of one's person may be said to be a right of complete
immunity; the right to be alone." 35
Roscoe Pound described the Warren and Brandeis article as
having done "nothing less than add a chapter to our law" 36 • However,
another writer on the subject states that: D
"This right to privacy was not new. Warren and Brandeis did not
even coin the phrase, "right to privacy," nor its common soubriquet,
"the right to be let alone''." 37
The right to be let alone is a part of the right' to enjoy life: The E
right to enjoy life is, in its turn, a part of the fundamental right to life of
the individual. ·
37. The right to privacy was developed by Warren and Brandeis
in the backdrop of the dense urbanization which occurred particularly in
the East Coast of the United States. Between 1790 and 1890, the US
F
population had risen from four million to sixty-three million. The population
of urban areas had grown over a hundred-fold since the end of the civil
war. In 1890, over eight million people had immigrated to the US.
Technological progress and rapid innovations had led to theprivate realm
being placed under stress :
34
G.
Thomas Cooley, Treatise on the Law of Torts (1888), 2"' edition .
35 Ibid, at page 29
36 Dorothy J Glancy, "The Invention of the Right to Privacy", Arizona Law Review

(1979) Vol. 21, No. I, at page I. The article attributes the Roscoe Pound quotation to
"Letter from Roscoe Pound to William Chilton (1916)" as quoted in Alpheus Mason,
Brandeis : A Free Man's Life 70 (1956).
37 Ibid, at pages 2-3.
H
666 SUPREME COURT REPORTS [2017] 10 S.C.R.

A " ... technological progress during the post-Civil War decades had
brought to Bo.ston Md. the rest of the United States "countless,
. little-noticed revolutions" in the f9rm of a. 1.'ariety of inventions
which made the personal lives and p.ersona!ities· of individ.uals
increasingly accessible to large numbers of others, irrespective of
acquaintance, social or economic class; or the customary
B
constraints of propriety. Bell invented the telephone in Boston;
the first t;:ommercial telephone exchange opened there in 1877,
while Warren and Brandeis were students ·at the Harvard Law
School. I;ly 1890 there were also telegraphs, fairly inexpensive
portable cameras, sound recording devices, and better and cheaper
c methods bf making window glass. Warren and Brandeis
n;cogni~ed that these advances in technology•. coupled with
. intensified newspaper enterprise, increased the vulnerability of
individuals to having their actions, words, images, and personalities
communicated without their consent beyond the protected circle
of family and chosen friends." 38
D
Coupled with this was the trend towards 'newspaperization' 39,
the increasing presence ofthe'Print lnedia in American soC:iety. Six months
before the publication of the Warren and Brandeis' articJe; EL God.kin,
a newspaper man had published an article on the same subject in
Scribner's magazine in July 1890. Godkin, however, suggested no realistic
E remedy for protecting privacy against intrusion, save and except "by the
cudgel or the horsewhip"40 • It was Warren and Brandeis who advocated·
the use of the common law to vindicate the right to privacy. 41
38. Criminal libel actions were resorted to in the US during a part
of the nineteen!~ century but by 189.0, they had virtually ceased to be "a
F ' viable protection for individlial privaci"42 • The Sedition Act of 1789
expired in 1.801. Before truth came to. be accepted as a defence in
. defamation actions, criminal libel prosecutions flourished in the State
courts. 43 Similarly, truth was not regarded as a valid defence to a civil
libel activn in much of the nineteenth century. By the time Warren and
G Brandeis wrote their article in 1890, publication of the truth was perhaps
" Ibid, at pages 7-8
" Ibid, at page 8
• 0 Ibid, at page 9
41 Ibid, at page 10
42 Ibid, at page 12

H 43
Ibid, at page 14 . "
JUSTICE K S PUTTASWAMY(RETD.) v. UNION OF INDIA ·, · 667 ..
[DR. D. Y. CHANDRACHUD, J.]
'.·

no longer actionabJe. under the law of defamation. It was this breach or. : A ·'
lacuna that they sought to fill tip by speaking of the right to privacy
which would prciteCt the control of the individual over her personality. 44 · • . ,
The right to privacy evolved as a ''leitniotif' r~presenting ·'the long .
tradition of Americ;iry individualism". 45. · ·

39. Conscious as we are of the limitations with which comparative
frameworks 46 oflaw and history sh6uld be evalUated, the above account
is of significance. It reflects tqe basic need of every individual tp live
with dignity. Urbanization: and economic development lead to .a
replacement of traditional' social structures. Urban ghettos' replace the ,'
tranquillity of self-sufficient rural livelihoods. The need to protect the
priyacy of the being is no less when development and technological change c
continuously threaten to place the person .'
into public gaze and pmtend to
' '
submerge the individual into a seamless web of inter-connected lives.
G Natural and inalienable rights
. .' '
40. Privacy is a concomitant of the right of the individual to exerc,i.~e. , r)
control over his or qer personality. It finds an origin in the notion that .,
there are certain rights which are natµr&l to. pr inherent in a human ' .' ..
being. Natural rights are inalienable. b~cause they are inseparable from· · , .•,
the human personality. The human element in life is impossible to conceiv.e ..
without the existence of natutctl rights. In l690, John Locke had in his, ..., ·
Second Treatise of Government observed that the lives, liberties and ·. E ·
estates of individuals are as amatter of funtlamental natural law, a priV.ate :: : ·,
preserve. The idea of a private preserve· was ·to create barriers from · ' •
outside interference. In 1765, William Blackstone in his,
Commentaries on the Laws of England spoke of a "natural liberty:'L ' ·
There were, in his view;absolute right~ which were vested in the individual '' f;"
by the immutable laws· of nature. These absolute rights were divided ' ·
into right~ of personill security, 'personal liberty and property. The right
of personal security involved a legal and uninterrupted enjoyment oflife,
" Ibid, at Pages 15-16
"Id at Pages 21-22
"'Illustratively, the Centre for Internet and Society has two interesting articles tracing G
· the origin of privacy within Classical Hindu Law and Islamic Law. See Ashna Ashesh
and Bhairav Acharya ,"Locating Constructs of Privacy within Classical Hindu Law",
The Centre for Internet and Society, available at https://cis-india.orn/internet-
governance/blog/loading-constructs-of-privacy-within-classical-hindu-law. See also
Vidushi Marda and Bhairav Acharya, "Identifying Aspects of Privacy in Islamic
Law'', Tile Centre for Internet cmd Society, available at https://cis-india.org{intemet- ·
governance/blog/identifying-aspects-of-privacy-in-islamic-law H·
668 SUPREME COURT REPORTS [2017] 10 S.C.R.

A limbs, body, health and reputation by an individual.
41. The notion that certain rights are inalienable was embodied in
the American Declaration of Independence (1776) in the following
tenns:., .
"We hold these truths to be self-evident, that all men are created
B'' . .
eqiial, that they are endowed by their Creator with cei:tain
unalienable rights, that among these are life, liberty and the
pursuit of happiness". (emphasis supplied)
The term inalienable rights was incorporated in the Declaration
of the Rights of Man and of the Citizen (1789) adopted by the French
C National Assembly in the following tenns:
"For its drafters, to ignore, to forget or to depreciate the rights of
man are the sole causes of public misfortune and government
corruption. These rights are natural rights, inalienable and
sacred, the National Assembly recognizes and proclaims them-it
D does not grant, concede or establish them-and their conservation
is the reason for all political communities; within these rights figures
resistance to oppression". (emphasis supplied)
42. In 1921, Roscoe Pound, in his work titled "The Spirit of
the Common Law'', explained the meaning of natural rights:
E
"Natural rights mean simply interests which we think ought to be
secured; demands which human beings may make which we think
ought to be satisfied. It is perfectly true that neither law nor
statecreates them. But it is fatal to all sound thinking to treat them
_as legal conceptions. For legal rights, the devices which law
F employs to secure such of these interests as it is expedient to
recognize, are the work of the law and in that sense the work of
the state." 47
Two decades later in 1942, Pound in "The Revival of Natural
Law"
. propounded. that:
. .
G "Classica·l natural law in the seventeenth and eighteenth centuries
had three postulates. One was natural rights, qualities of the
ideal or perfect man in a state of perfection by virtue of which he
ought to have certain things or be able to do certain things. These
47
Roscoe Pound, The Spirit of the Common Law, Marshall Jones Company ( 1921 ), at
H page 92
. JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 669
[DR. D. Y. CHANDRACHUD, J.]
. .

of
were a guarantee stability because the natural rights were A
taken to .be immutable and inalienable. (2) The social compact,
a postulated contract basis of civil society. Here was a guide to
change. (3) An ideal law of which positive laws were only
declaratory; an ideal body of perfect precepts governing human
relations and ordering human conduct, guaranteeing the natural B
rights and expressing the ·social compact."48
(emphasis supplied)
43. In 1955, Edwin W Patterson in "A Pragmatist Looks At
Natural Law and Natural Rights" observed that rights which individuals
while making a social compact to create a government, reserve to
themselves, are natural rights because they originate in a condition of
c
nature and survive the social .compact. In his words:
. ' · "The basic right~ of the citi~en in our political society are regarded
as continuing from a prepolitical condition or as arising in society
independently of positive constitutions, statutes, and judicial
decisions, which merely seek to "secure" or "safeguard" rights D
already reserved. These rights are not granted by a benevolent
despot to his grateful subjects. The "natural rights" theory thus
provided a convenient ideology for the preservation of such
important rights as freedom of speech, freedom of religion and
procedural due process of law. As a pragmatist, I should prefer E
to explain them as individual and social interests which arise or
exist normaily in our culture and are tuned into legal rights by
being legally protected." 49
44. Natural rights are not bestowed by the state. They inhere in
human beings bej:ause they are human. They ~xi st equally in the individual F
irrespective of class or strata, gender or orientation.
45. Distinguishing an inalienable right to an object from the object
itself emphasises the notion of inalienability. All human beings retain
their inalienable rights (whatever their situation, whatever their acts,
whatever their guilt or innocence). The concept of natural inalienable G
rights secures autonomy to human beings. But the autonomy is not
absolute, for the simple reason that, the concept of inalienable rights
48 Roscoe Pound, "The Revival of Natural Law", Noire Damne Lawyer(1942), Vol. 27,
No 4, at page 330
49 Edwin W. Patterson, "A Pragmatist Looks At Natural Law and Natural Rights", in

. Arthur L. Harding ed., Natural Law and Natural Rights ( 1955), at pages 62-63 H
670 · SUPREME COURT REPORTS [2017] 10 S.C.R.

A postulates that there are some rights which no human being may alienate.·
While natural rights protect the right of the individual to choose aiid
preserve liberty, yet the autonomy of the individual is not a~solute or
total. 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 are autonomous, they would be in violation
B
of inalienable rights. This is for the reason that: ·
" ... These acts, however autonomous, would be in violation of
inalienable rights, as the theories·would have it. They wouli:I be
morally invalid, and ineffective actually to alienate inalienable rights.
Although self-regarding, they pretend to an autonomy that does
c not exist. Inalienable rights are precisely directed against such
false autonomy.
Natural inalienable rights, like othernatural rights, have long rested
upon what has been called the law of nature of natural law. Perhaps
all of the theories discussed above could be called law of nature
D or natural law theories. The American tradition, even as early as
1641, ten years before Thomas Hobbes published Leviathan.
included claims of natural rights, and these claims appealed to the
law of nature, often in terms. Without a moral order of.the law of
nature sort, natural inalienable rights are difficult to pose. "'It is
E . from natural law, and from it alone, that man obtai.ns those rights
we refer to as inali(fnable and inviolable.: .Human rights can have
no foundation other than natural law." 50
46. The idea.that individuals can have rights against the State'that
are prior to rights created by explicit legislation has ·been developed as
F part of a liberal theory of law propounded by Ronald Dworkin. 'In his
seminal work titled "Taking Rights Seriously" 51 (1977), he states that:
"Individual rights arc political trumps ·Mld-"by indivfdua'Is.
Individuals have rights when, for some reason, a collective goal is
not a sufficient justification for denying them what they wish, as
G individuals, to have or to do, or not a sufficient justification for
imposing some loss or injury upon them." 52 (emphasis supplied)
Dworkin asserts the existence of a right against the government
so Craig A. Ster and Gregory M. Jones, "The Coherence of Natural Inalienable Rights",
UMKC Law Review (2007-08), Volume 76 (4), at pages 971-972
,,. Ronald Dworkin, 'faking Rights Seriously. Duckworth (1977)
H
" Ibid, at page x.i
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA . 671 :
[DR. D. Y. CHANDRACHUD, J.]

as essential to protecting the dignity of the individual: A
"It makes sense to. say that a man has a fundamental right
. · against the Government, in the strong sense, like free
speech, if that right is necessary to protect his dignity, or
his standing. as ~qually entitled to concern arid· respect, or
· some othet personal value of like consequen&'.'"53 · . · B
(emphasis suppiied)
Dealing· with the question whether the Government l,ll~Y ()bridge
the rights of others to act when their acts might simply increase the risk,,
by however slight or speculative a margin, that some person's right t9
· life or prop'e,rty"'will be violated, Dworkin says : c
"But no society that purports to recognize a variety of ri~hts, op
the ground that a man's dignity or equality may be invaded in a
..
variety of ways, can accept such a principle54 •••
If rights make sense, then the degrees of their importance cannot
be so ·different that some count not at all when others are · D
mentioried55 •••
If the; Government
·. ;
does not take rights.seriously,
• . ' '6 . • '• •.•
then it does not
take Jaw seriously either5 ...." :, . . .
· Dworkin states that judges should decide.how widely an individual's
E
rights extend: He 'states: .
' ..
~'Indeed, the suggestion that rights can. be demonstrated by a
process of history ratlier than by an ,appeal 'io principle shows
. either a confusion or no rear' concern tibout what riglits are ...
Thi~ ·hds'tieen a complex argument, and:I wailr to summai'iz1Ht. F
Oor constitutional system rests on a particular moral theory; ·namely,
that men have moral rights against the state. The'Clifferentclauses
·· ' "of the Bill of Rights, like the due•pmcess and· equal protection ·
· clauses, must be understood ·as appealing to moral concepts rather
than' l'aying dbwn particular concepts; therefore, a court that
undertakes the burden of applying these clauses.fully as law mustbe G.
an activist court, in the sense that it must be -prepared to frame
53
Ibid, at page 199
" Ibid, at page 203
" Ibid, at page 204
,. Ibid, at pag~ 205 · · ·
H·
672 SUPREME COURT REPORTS [2017) 10 S.C.R.

A and answer questions of political morality ... " 57
A later section of this judgment deals with how natural and
inalienable rights have been developed in Indian precedent.
H Evolution of the privacy doctrine in India
B 47. Among the early deCi.sions of this Court following Kharak
Singh was R M Malkani v State of Maharashtra58 . In that case, this
Court held that Section 25 of the Indian Telegraph Act, 1885 was not
violated because :
"Where a person talking on the telephone allows another person
C to record it or to hear it, it cannot be said that the other person
who is allowed to do so is damaging, removing, tampering, touching
machinery battery line or post for intercepting or acquainting
himself with the contents of any message. There was no element
of coercion or compulsion in attaching the tape recorder to the
telephone." 59
D
This Couit followed the same line of reasoning as it had in Kharak
Singh while rejecting a privacy based challenge under Article 21.
Significantly, the Court observed that:
"Article 21 was invoked by submitting that the privacy of the
appellant's conversation was invaded. Article 21 contemplates
E
procedure established by law with regard to deprivation of life or
personal liberty. The telephone conversation of an innocent citizen
will be protected by Courts against wrongful or high handed
interference by tapping the conversation. The protection is not
for the guilty citizen against the efforts of the police to vindicate
F the law and prevent corruption of public s~rvants ..It must not be
understood that the Court will tolerate safeguards f<;ir the protection
of the citizen to be imperilled by permitting the police to proceed
by unlawful or irregular methods." 60 ·

In other words, it was the targeted and specific nature of the
G interception which weighed with the Court, the telephone tapping being
directed at a guilty person. Hence the Court ruled that the telephone
conversation of an innocent citizen will be protected against wrongful
57 Ibid, at page 14 7
58 (1973) 1 sec 471
59
Ibid, at page 476 (para 20)
H 60 Ibid, at page 479 (para 31)
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 673
[DR. D. Y. CHANDRACHUD, J.]

interference by wiretapping. A
48. In Gobind61 , a Bench of three judges of this Court considered
a challenge to the validity of Regulations 855 and 856 of State Police
Regulations under which a history sheet was opened against the petitioner
who had been placed under surveillance. The Bench of three judges
adverted to the decision in Kharak Singh and to the validation of the B
Police Regulations (other than domiciliary visits at night). By the time
the decision was handed down in Gobind, the law in the US had evolved
and this Court took note of the decision in Griswold v Connecticut62
("Griswold") in which a conviction under a statute on a charge of
giving information and advice to married persons on contraceptive
methods was held to be invalid. This Court adverted to the dictum that C
specific guarantees of the Bill of Rights have penumbras which create
zones of privacy. The Court also relied upon the US Supreme Cour.t
decision in Jane Roe v Henry Wade 63 in which the Court upheld the
right of a married woman to terminate her pregnancy as a part of the
right of personal privacy. The following observations ofJ ustice Mathew, D
who delivered the judgment of the Court do indicate a constitutional
recognition of the right to be let alone :.
"There can be no doubt that the makers of our Constitution wanted
_ to ensure conditions favourable to the pursuit of happiness. They
certainly realized as Brandeis, J. said in his dissent in Olmstead v. E
United States64 , the significance of man's spiritual nature, of his
feelings and of his intellect and that only a part of the pain, pleasure,
satisfaction of life can be found in material things and therefore,
they must be deemed to have conferred upon the individual as
against the government 65
. . a sphere where. he should be let alone". . F
.These observations follow upon a reference to the Warren and
Brandeis article; the two decisions of the US Supreme Court noted earlier;
the writings of Locke and Kant; and to dignity, liberty.and autonomy. ·
49. Yet a close reading of the decision in Gobind would indicate
that the Court eventually did not enter a specifa: finding on the existence G
of a right to privacy under the Constitution. The Court indicated that if
" (1975) 2 sec 148
62
381 us 479 (1965)
•i410 US 113 (1973)
.. 277 us 438 (1928)
65 Supra note 6, at page 155 (para 20)
H.. ·
674 SUPREME COURT REPORTS [2017] 10 S.C.R.

A tile court cioes find that a particular right sho~ld be protected as a
fundamental privacy right, it could be overridden only subject to a
C0t}1pelling interest of the State:
"There can be no doubt that privacy-dignity claims deserve to be
examined with care and to be denied only when an importa.nt
B countervailing interest is shown to be superior. If the Court does
find that a claimed right is entitled to protection as a
fundamental privacy right, a law infringing it must satisfy the
compelling State interest test. '.fhen the question .would be
as
whether a State interest is of such paramount importance w.ould
justify an infringement of the right.'' 66 (emphasis supplied)
While emphasising individual autonomy and the dangers of
individual privacy being eroded by new de','.elopments that "will make it
p~ssible to be heard in the, &treet what is whispered in the closet", the
Court had obvious concerns about adopting a broad definition of privacy
since the right of privacy "is not explicit in the Constitution". Observing
D that the concept of privacy overlaps with liberty, this Court noted thus:
"Individual autonomy, perhaps the central concern of any system
oflimited govemnient, is protected in part under our Constitution
by explicit constitutional guarantees. In the application of the
Constitution our contemplation cannot only be of what has been
E but what may be. Time works changes and brings irito
existence new conditions. Subtler and far reaching means
of invading privacy will make it possible to be heard in the
street what is whispered in the closet. Yet, too broad a
definition of privacy raises serious questions about the
F propriety .of judicial reliance on a right that is not explicit in
the Constitution. Of course, privacy primarily concerns the
individual. It therefore relates to and overlaps with the concept
of liberty. The most serious advocate of privacy must confess
that there are serious problems of defining the essence and scope
of the right. Privacy interest in autonomy must also be placed in
G the context of other rights and values.'' 67 (emphasis supplied)
Justice Mathew proceeded to explain what any right of privacy
must encompass and protect and found it to be implicit in the concept of
66 Ibid, at page 155 (para 22)

67 Ibid, at page 156 (para 23)
H
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 675
[DR. D. Y. CHANDRACHUD, J.]

ordered liberty: A
"Any right to privacy must encompass and protect the personal
intimacies of the home, the family, marriage, motherhood,
procreation and child rearing. This catalogue approach to the
question is obviously not as instructive as it does not give an
analytical picture of the distinctive characteristics of the right of B
privacy. Perhaps, the only suggestion that can be offered as
unifying principle underlying the concept has been the assertion
that a claimed right must be a fundamental right implicit in the
·concept of ordered liberty." 68
In adverting to ordered liberty, the judgment is similar to the c
statement in the judgment of Justice Rajagopala Ayyangar in Kharak
Singh which found the intrusion of the home by nightly domiciliary visits
a violation of ordered liberty.
The Court proceeded to hold that in any event, the right to privacy
will need a case to case elaboration. The following observations were D
carefully crafted to hold tliat even on the "assumption" that there is an
independent right of privacy em.anating from personal liberty, the right to
movement and free speech, the right is not absolute:
"The right to privacy in any event will necessarily have to go
. through a process of case-by-case development. Therefore, even E
assuming that the right to personal liberty, the right to move
freely throughout the territory of India and the freedom of
speech create an independent right of privacy as an emanation
from them which one can characterize as a fundamental right,
we do not think that the right is absolute."69
(emphasis supplied) F
Again a similar "assumpti~n" was made by the Court in the
following observations:
" ... Assuming that the fundamental rights explicitly guaranteed to
·.a citizen have penumbra! zones and that the right to privacy is G
itself a fundamental right, that fundamental right n'mst be subject
to restriction on the basis of compelling public interest.· As
Regulation 856 has the force of law,· it cannot be' said that the
fundamental right of the petitioner under Article 21 has been
68
Ibid, at page 156 (para 24)
69
Ibid,'at page 157 (para 28) tt·
676 SUPREME COURT REPORTS (2017] 10 S.C.R.

A violated by the provisipns contained in it : for, what is guaranteed
under that Article is that no person shall be deprived of his life or
personal liberty except by the procedure established by 'l~w·.
We think that the procedure is reasonable having regard to the
provisions of Regulations 853 (c) and 857."70 (emphasis suppiied)
B The Court declined to interfere with the regulations.
50. The judgment in Gobind does not contain a clear statement
of principle by the Court of the existence of an independent right of
privacy or of such a right being an emanation from explicit constitutional
guarantees. The Bench, which consisted of three judges, may .have
C been constrained by the dictum in the latter part of Kharak Singh.
Whatever be the reason, it is evident that in several places Justice Mathew
proceeded on the "assumption" that if the right to privacy is protected
under the Constitution, it is a part of ordered liberty and is not absolute
but subject to restrictions tailor-made to fulfil a compelling state interest.
This analysis of the decision in Gobind assumes significance because
D subsequent decisions of smaller Benches have proceeded on the basis
that Gobind does indeed recognise a right to privacy. What the contours
of such a right are, emerges from a reading of those decisions. This is
the next aspect to which we now turn. ·
51. Malak Singh v State of Punjab arid Haryana 71 ("Malak
E Singh") dealt with the provisions of Section 23 of the Punjab Police
Rules .under which a surveillance register was to be maintained among.
other persons, of all convicts of a particular description and petsons who
were reasonably believed to be habitual offenders whether or not, they
were convicted. The validity of the rules was not questio·n~d in view of
F the decisions in Kharak Singh and Gobind. The rules provided for
modalities of surveillance. Justice 0 Chinnappa Reddy speaking for a
Bench of two judges of this Court recognised the need for surveillance
on habitual and potential offenders. In his view:
"Prevention of crime is one of the prime .purP.oses of .the
G constitution of a police force. The preamble to the Police Act,
1861 says: "Whereas it is expedient to reorganise the police imd
to make it a more efficient instrument for the prevention and
detection of crime." Section 23 of the Police Act prescribes it as
the duty of police officers "to collect and communicate intelligence
70 Ibid, at page 157-158 (para 31)
. H · 71 (1981) 1 SCC420 •
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 677
[DR. D. Y. CHANDRACHUD, J.]

affecting the public peace; to prevent the commission of offences A
and public nuisances". In connection with these duties it will be
necessary to keep discreet surveillance over reputed bad
characters, habitual offenders and oth~r potential offenders ..
Organised crime cannot be successfolly fought without close watch
of suspects. But, surveillance may be intrusive and it may so B
seriously encroach on the privacy of a citizen as to infringe
his fU;ndamental right to personal liberty guaranteed by
Article'~zt. of the Constitution and the freedom of'movement
guarartteed by,Articje 19( 1)( d). That cannot be 'permitted. This is
recognii~ifby .the
• ' ·i'
• •
Punjab Police Rules themselves. Rule 23.7,
j ! ~ ' •

whichprescripes,tne rriode of sur\reill.ance, permits fu.¢close \vatch · C. ·
over th.e mtiveriients of the person under surVei.llance butwitho~1t • ·
any illegal':intcirf¢rence. Permissible surveillance is only t9 the· .
extent\)ffclose ·;vatch'qver.the Tl).oveme~ts of the person under · ·
surveillance ahd no i:rore: So Jong ·as surveillance is for the purpos·e
of preventing· crime and is confined to the limits prescribed by
D
Rule 23:7 we do not think a person whose name is included in the
surveillance register can have a genuine cause for coi~plaint. We
may notice here that interference in accordance with law and for
the prevention of ~isorder and crime is an exception recognised
even by European Convention of Human Rights to the right to
respect for a person's private and family life. Article 8 of the E
Convention reads as follows:
"(l) Everyone's right to respect for his private and family life, his
home and his correspondence shall be recognised.
(2) There shall be no interference by a public authority with the
exercise of this right, except such as is in accordance with law F
and is necessary in a democratic society in the interests of nt1tional
security, public safety, for the prevention of disorder and crime or
for the protection of health or morals.""72 (emphasis supplied)
The Court dW n,ot consider it unlawfulfoqhe PQlice to-cond\tCJ,.
surveillance so long a's·it was for, the purpose of preventing c~ime arid · G·
was confined.to the limits presciibed by Rule 23.7 which, while authorising
a close watch on the movement' of a person under surveillance, contained .
a condition that this should be without any illegal interference. The object
being to prevent crime, the Court held that the person who is subject to
72 Ibid, at pages 424-425 (para 6) H
678 SUPREME COURT REPORTS [2017] 10 S.C.R.

A surveillance is not entitled to access the register nor was a pre-decisional
hearing compliant with natural justice warranted. Confidentiality, this
Court held. was required in the interest of the public, including keeping in
confidence the sources of infonnation. Again the Court held:
"But all this does not mean that the police have a licence to enter
B the names of whoever they like (dislike?) in the surveillance
register; nor can the surveillance be such as to squeeze the
fundamental freedoms guaranteed to all citizens or to obstruct the
free exercise and enjoyment of those freedoms; nor can the
surveillance so intrude as to offend the dignity of the individual.
Surveillance of persons who do not fall within the categories
c mentioned in Rule 23.4 or for reasons unconnected with the
prevention of crime. or excessive surveillance falling beyond the
limits prescribed by the rules, will entitle a citizen to the court's
protection which the court will not hesitate to give. The very Rules
which prescribe the conditions for making entries in the surveillance
D register and the mode of surveillance appear to recognise the
caution and care with which the police officers are required to
proceed. The note following Rule 23.4 is instructive. It enjoins a
duty upon the police officer to construe the rule strictly and confine
the entries in the surveillance register to the class of persons
mentioned in the rule. Similarly Rule 23.7 demands that there
E should be no illegal interference in the guise of surveillance.
Surveillance, therefore, has to be unobtrusive and within bounds." 73
The observations in Malak Singh on the issue of privacy indicate
that an encroachment on privacy infringes personal liberty under Article
21 and the right to the freedom of movement under Article 19(1 )( d).
F Without specifically holding that privacy is a protected constitutional value
under Article 19 or Article 21, the judgment of this Court indicates that
serious encroachments on privacy impinge upon personal liberty and the
freedom of movement. The Court linked such an encroachment with
the dignity of the individual which would be offended by surveillance
G bereft of procedural protections and carried out in a manner that would
obstruct the free exercise of freedoms guaranteed by the fundamental
rights.
52. State of Maharashtra v Madhukar Narayan Mardikar74
73 Ibid, at page 426 (para 9)

H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 679
[DR. D. Y. CHANDRACHUD, J.]

is another decision by a two-judge Bench which dealt with a case of a A
police inspector who was alleged to have attempted to have non-
consensual intercourse with a woman by entering the hutment where
she lived. Following an enquiry, he was dismissed from service but the
punishment was modified, in appeal, to removal so as to enable him to
apply for pensionary benefits. The High Court quashed the punishment B
both on the ground of a violation of the principles of natural justice, and
by questioning the character of the victim. Holding that this approach of
the High Court was misconceived, Justice AM Ahmadi (as the learned
Chief fostice then was) held that though the victim had admitted "the
dark side of her life", she was yet entitled to her privacy :
''The High Court observes that since Banubi is an unchaste woman C
it would be extremely unsafe to allow the fortune and career of a
government official to be put in jeopardy upon the uncorroborated
version of such a woman who makes no secret of her illicit intimacy
with another person. She was honest enough to admit the dark
side of her life. Even a woman of easy virtue is entitled to D
privacy and no one can invade her privacy as and when he
likes. So also it is not open to any and every person to
violate her person as and when he wishes. She is entitled
to protect her person if there is an attempt to violate it
against her wish. She is equally entitled to the protection
of law. Therefore, merely because she is a woman of easy E
virtue, her evidence cannot be thrown overboard. At the
most the officer called upon to evaluate her evidence would be
required to administer caution unto himself before accepting her
evidence." 75 (emphasis supplied)
As the above extract indicates, the issue before this Court ·was F
essentially based on the appreciation of the evidence of the victim by the
High Court. However, the observations of this Court make a strong
statement of the bodily integrity ofa woman, as an incident of her privacy.
53. The decision In Life Insurance Corporation of India v
ProfManubhai D Shah76 , incon-ectly attributed to the decision in Indian G
Express Newspapers(Bombay) Pvt Ltd v Union of lndia 77 the
principle that the right to free expression under Article 19(l)(a) includes
"(1991) 1sec57
75 Ibid, at pages 62-63 (para 8)

"(1992) 3 sec 637
11
(1985) 1 sec 641 H
680 SUPREME COURT REPORTS [2017] 10 S.C.R.

A the privacy of communications. The judgment of this Cou1t in Indian
Express cited a U N Report but did no more.
54. The decision which has assumed some significance is
Rajagopal7 8 • Jn that case, in a proceeding under Article 32 of the
Constitution, a writ was sought for restraining the state and prison
B authorities from interfering with the publication of an autobiography of a
condemned prisoner in a magazine. The prison authorities, in a
communication to the publisher. denied the claim that the autobiography
had been authored by the prisoner while he was confined to jail and
opined that a publication in the name of a convict was against prison
rules. The prisoner in question had been found guilty of six murders and
C was sentenced to death. Among the questions which were posed by this
Court for decision was whether a citizen could prevent another from
writing about the life story of the former and whether an unauthorized
publication infringes the citizen's right to privacy. Justice Jeevan Reddy
speaking for a Bench of two judges recognised that the right of privacy
D has two aspects: the first affording an action in t01t for damages resulting
from an unlawful invasion of privacy, while the second is a constitutional
right. The judgment traces the constitutional protection of privacy to the
decisions in Kharak Singh and Gobind. This appears from the following
observations:
E " ... The first decision of this Court dealing with this aspect
is Kharak Singh v. State ofU.P. [(1964) 1 SCR 332: AIR 1963
SC 1295 : ( 1963) 2 Cri LJ 329] A more elaborate appraisal of this
right took place in a later decision in Gobind v.State ofM.P.[(1975)
2 SCC 148: 1975 SCC (Cri) 468] wherein Mathew, J. speaking
for himself, Krishna Iyer and Goswami, JJ. traced the origins of
F this right and also pointed out how the said right has been dealt
with by the United States Supreme Court in two of its well-known
decisions in Griswold v. Connecticut [381 US 479 : 14 L Ed 2d
510 (1965)] and Roe v. Wade [410 US 113 : 35 L Ed 2d 147
(1973)] ... "79
G The decision in Rajagopal considers the decisions in Kharak
Singh and Gobind thus:
" ... Kharak Singh [(1964) 1SCR332 :AIR 1963 SC 1295: (1963)
" (1994) 6 sec 632
" Ibid, at pages 639-640 (para 9)
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA .· . 68J
. [DR. D, Y..CHANDRACHUD, J.] .

2 Cri LJ 329] was a case where the petitioryer was put under A
surveillance as defined in Regulation 236 ~f the U.P.:Pbiice·
Regulations... · · ·'
Though :right.to priyacy was ref.e~~d to, the decision turned on
the meaning and contentof"personal liberty" and "life'.'..in Al1icle
21. Gobind [(1975) 2 SCC 148: 1975 SCC (Cri) 468] was also a B
case of surveillance under M.P. Police Regulations. Kharak
Singh [(1964) 1 SCR 332 : AIR 1963 SC 1295 : (1963) 2 Cri LJ
329] was followed even while at the same time elaborating the, .
right to privacy .. ,"80 ,.',, ·

The Court held that neither the State nor its officials caii impose c
priorrestrictions\m the publication ofan autobiography of a convict. In
the course of its summary of the decision, the Court held:
"( l) The right to privacy is implicit in the right to life and liberty
guaranteed to the citizens of this country by Article 21. It is a
"right to be let alone". A citizen has a right to safeguard the privacy D
of his home, his family, marriage, procreation, motherhood, child-
bearing and education among other matters. None can publish
anything concerning the above· matters without his consent -
whether truthful or otherwise and whether laudatory or critical. If
he does so, he would be violating the right to privacy of the person
concerned and would be liable in an action f\)r damages. ~osition E
may, however, be different, if a person voluntarily thrusts himself
into controversy or voluntarily invites .or raises a controversy.
(2) The rule aforesaid is subject to the exception •. t,11at any ..
publication concerning the aforesaid aspects hecomes
unobjectionable if such publication is based upon public records F
including court records. This is for the reason that once a matter
becomes a matter of public record, the right to privacy no longer
subsists and it becomes a legitimate subject for comment by press
and media among others. We are, however, of the opinion that in
the interests of decency [A1ticle 19(2)] an exception must be G
carved out.to this rule, viz., a female who is the victim of a sexual
assault, kidnap, abduction or a like offence should not further be
subjected to the indignity of her name and the incident being
publicised in press/media.
80
Ibid, at page 643 (para 13)
H
682 SUPREME COURT REPORTS [2017] IO S.C.R.

A (3) There is yet another exception to the rule in (I) above -
indeed, this is not an exception but an independent rule. In the
case of public officials, it is obvious, right to privacy, or for that
matter, the remedy of action for damages is simply not available
with respect to their acts and conduct relevant to the discharge of
their official duties. This is so even where the publication is based
B
upon facts and statements which are not true, unless the official
· establishes that the publication was made (by the defendant) with
reckless disregard for truth. In such a case, it would be enough
for the defendant (member of the press or media) to prove that
he acted after a reasonable verification of the facts; it is not
c necessary for him to prove that what he has written is true. Of
course, where the publication is proved to be false and actuated
by malice or personal animosity, the defendant would have no
defence and would be liable for damages. It is equally obvious
that in matters not relevant to the discharge of his duties, the
public official enjoys the same protection as any other citizen, as
D
explained in (I) and (2) above. It needs no reiteration that judiciary,
which is protected by the power to punish for contempt of court
and Parliament and legislatures protected as their privileges are
by Articles 105 and 104 respectively of the Constitution oflndia,
, represent exceptions to this rule ... " 81
E
55. The judgment of Justice Jeevan Reddy regards privacy as
implicit in the right to life and personal liberty under Article 21. In coming
to the conclusion, the judgment in Rajagopal notes that while Kharak
Singh had referred to the right of privacy, the decision turned on the
content oflife and personal liberty in Article 21. The decision recognises
F privacy as a protected constitutional right, while tracing it to Article 21.
56. In an interesting research article on 'State's surveillance
and the right to privacy', a contemporary scholar has questioned the
theoretical foundation of the decision in Rajagopal on the ground that
the case essentially dealt with cases in the US concerning privacy against
G governmental intrusion which was irrelevant in the factual situation before
this Court. 82 In the view of the author, Rajagopal involved a publication

si Ibid, at pages 649-650 (para 26)
"Gautam Bhatia, "State Surveillance and the Right to Privacy in India: A Constitutional
Biography", National Law School oflndia Review (2014), Vol. 26(2), at pages 138-
139
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 683
[DR. D. Y. CHANDRACHUD, J.]

of an article by a private publisher in a magazine, authored by a private A
· individual, albeit a convict. Hence the decision has been ~riticized ori the
ground that Rajagopal was about an action between private parties
and, therefore, ought to have dealt with privacy in the context of tort
law. 83 While it is true that in Rajagopal it is a private publisher who was
seeking to publish an article about a death row convict, it is equally true B
that the Court dealt with a prior restraint on publication imposed by the
state and its prison officials. That is, in fact, how Article 32 was invoked
by the publisher.
57. The intersection between privacy and medical jurisprudence
has been dealt with in a series of judgments of this Court, among them C
being Mr X v Hospital Z84 . In that case, the appellant was a doctor in
the health service of a state. He was accompanying a patient for surgery
from Nagaland to Chennai and was tested when he was to donate blood.
The blood sample was found to be HIV+. The appellant claiming to
have been socially ostracized by the disclosure of his HIV+ status by
the hospital, filed a claim for damages before the National Consumer D
Disputes Redressal Commission (NCDRC) alleging that the hospital had
unauthorizedly disclosed his HIV status resulting in his marriage being
called off and in social opprobrium. Justice Saghir Ahmad, speaking for
a Bench of two judges of this Court, adverted to the duty of the doctor to
maintain secrecy in relation to the patient but held that there is an exception
E
to the rule of confidentiality where public interest will override that duty.
The judgment of this Court dwelt on the right of privacy under Article 21
and other provisions of the Constitution relating to the fundamental rights
and the Directive Principles:
"Right to privacy has been culled out of the provisions of Article
21 and other provisions of the Constitution relating to the F
Fundamental Rights read with the Directive Principles of State
Policy. It was in this context that it was held by this Court
in Kharak Singh v. State of U.P. [AIR 1963 SC 1295 : (1964) 1
SCR 332) that police surveillance of a person by domiciliary visits
would be violative of Article 21 of the Constitution. This decision G
was considered by Mathew, J. in his classic judgment
in Gobind v. State ofM.P. [(1975) 2 SCC 148: 1975 SCC (Cri)
468) in which the origin of "right to privacy" was traced and a
83 Ibid

,. <I 998) s sec 296
H
684 SUPREME COURT REPORTS [20171 IO S.C.R.

A number of American decisions, including Munn v. Illinois [94 US
113: 24 LEd 77 (1877)], Wolfv. Colorado [338 US 25: 93 LEd
1782 (1949)] and various a1ticles were considered ... "85
The Court read the decision in Malak Singh as reiterating the
. , view taken earlier, on privacy in Kharak Singh and Gobind. The Court
B . ,proceeded to rely on the decision in Rajagopal. The Court held that the
right to privacy is not absolute and is subject to action lawfully taken to
prevent crime or disorder or to protect the health, morals and the rights
and freedoms of others. Public disclosure of even true facts, the Court
held, may amount to invasion of the right to privacy or the right to be let
C ;alow: when a doctor breaches confidentiality. The Court held that:
''Disclosure of even true private facts has the tendency to disturb
a person's tranquillity. It may generate many complexes in him
and may even lead to psychological problems. He may, thereafter,
have a disturbed life all through. In the face of these potentialities,
and as already held by this Court in its various decisions referred
D to above, the right of privacy is an essential component of the
right to life envisaged by Article 21. The right, however, is not
absolute and may be lawfully restricted forthe prevention of crime,
disorder or protection of health or morals or protection of rights
and freedom of others·." 86
E However, the disclosure that the appellant was HIV+ was held
not to be violative of the right to privacy of the appellant on the ground
that the woman to whom he was to be married "was saved in time by
such disclosure and from the risk of· being infected''. The denial of a
claim for compensation by the NCDRC was upheld.
F 58. The decision in Mr ·X v. Hospital Z fails to adequately
appreciate thatthe latter part of the decision in Kharak Singh declined
to accept privacy as a constitutional right, while the earlier part
invalidated domiciliary visits in the context of an invasion.of 'ordered
liberty'. Similarly, several observations in Gobind proceed on an
G assumption: if there is a right of privacy, it would comprehend certain
matters and would be subject to a regulation to protect compelling state
interests.
· 59. In a decision ofa Bench of two judges of this Court in PUCL87 ,
" Ibid, at page 305 (para 21)
86 Ibid, at page 307 (para 28)

H "(1997)1SCC301
JUSTICE K S PUITASWAMY (RETD.) v. UNION OF INDIA 685
[DR. D. Y. CHANDRACHUD, J.]

the Court dealt with telephone tapping. The petitioner challenged the A
constitutional validity of Section 5(2) of the Indian Telegraph Act, 1885
and urged in the alternative for adopting procedural safeguards to curb
arbitrary acts of telephone tapping. Section, 5(2) authorises the
. ,. of messages
interception .
in. transmission
,.
in the following terms: .
"On the occurrence of any public emergency, or in the interest of B
the public safety, the Central Government or a State Governn1ent
or any officer specially unauthorised in this behalf by the Central
Government or a State Government may, if satisfied that it is
necessary or expedient so to do in the Interests of the sovereignty
and integrity ofindia, the security of the State, friendly relations
with foreign States or public order or for preventing incitement to C
the commission of an offence, for reasons to be recorded in writing,
by order, direct that any message or class of messages to or from
any person or class of persons, or relating to any particular subject,
brought for transmission by or transmitted or received by any
telegraph, shall not be transmitted, or shall be intercepted or D
::!.·' ·:ned, or shall be disclosed to the Government making the order
or a11 . officer thereof mentioned in the order: ·
Erovided that press messages intended to be published in India of
c. c'orrespondents accredited to the Central Government or a State
Government shall not be intercepted or detained, unless their E
transmission' has been prohibited under this sub-~ection.';
60. The ·submission on the invalidity of the :statutory provision
iiuthorising telephone tapping was based on the right to privacy'. being a
fundamental right under Articles 19(1) <md.21 oftlie. Coii~foutiop. Justice. , .: .· .
. Kuldip Singh adverted to the obser~ations cont~iried in °the n~~jority ' F
judgment In KharakSingh which led to the in\'alidation of the provision
for domiciliary visits at night under Regulation 236(b). PUCL cited the
minority view of Justice Subba Rao as having. gone even further by
invalida'ting Regulation 236, in its entirety. The judgment, therefore,
construes both the majority and minority judgments as having affirmed
the right to privacy as a part of Article 21: · G
"Article 21 of the Constitution has, therefore, been interpreted by
all the seven learned Judges in Kharak Singh case [(1964) 1 SCR
332: AIR 1963 SC 1295] (majority and the minority opinions) to
include that "right to priV'acy" as a part of the right to "protection ..
. H
686 SUPREME COURT REPORTS [2017) 10 S.C.R.

A oflife and personal liberty" guaranteed under the said Article." 88
Gobind was construed to have upheld the validity of State Police
Regulations providing surveillance on the ground that the 'procedure
established by law' under Article 21 had not been violated. After
completing its summation of precedents, Justice Kuldip Singh held as
B follows:
"We have, therefore, no hesitation in holding that right to privacy
is a part of the right to "life" and "personal liberty" enshrined
under Article 21 of the Constitution. Once the facts in a given
case constitute a right to privacy, Article 21 is attracted. The said
c right cannot be curtained ''except according to procedure
established by law"."89
Telephone conversations were construed to be an important
ingredient of privacy and the tapping of such conversations was held to
infringe Article 21, unless pennitted by 'procedure established by law' :
D "The right to privacy- by itself- has not been identified under
the Constitution. As a concept it may be too broad and moralistic
to define it judicially. Whether right to privacy can be claimed or
has been infringed in a given case would depend on the facts of
the said case. But the right to hold a telephone conversation in the
E privacy of one's home or office without interference can certainly
be claimed as "right to privacy". Conversations on the telephone
are often of an intimate and confidential character. Telephone
conversation is a part of modern man's life. It is considered so
important that more and more people are carrying mobile telephone
instruments in their pockets. Telephone conversation is an important
F facet of a man's private life. Right to privacy would certainly
include telephone conversation in the privacy of one's home or
office. Telephone-tapping would, thus, infract Article 21 of the
Constitution of India unless it is permitted under the procedure
established by law." 90
G The Court also held that telephone tapping infringes the guarantee
of free speech and expression under Article 19(1)(a) unless authorized
by Article 19(2). The judgment relied on the protection of privacy under
"Ibid, at page 310 (para 14)
" Ibid, at page 311 (para 17)
90 Ibid, at page 311 (para 18)
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 687
[DR. D. Y. CHANDRACHUD, J.]

Article 17 of the International Covenant on Civil and Political Rights A
(and a similar guarantee under Article 12 of the Universal Declaration
of Human Rights) which, in its view, must be an interpretative tool for
· construing the provisions of the Constitution. Article 21, in the view of
the Court, has to be interpreted in conformity with international law. In
. the absence of rules providing for the precautions to be adopted for B
preventing improper interception and/or disclosure of messages, the
fundamental rights under Articles 19(l)(a) and 21 could not be
safeguarded. But the.Court was not inclined to require prior judicial
scrutiny before intercepting telephone conversations. The Court ruled
that it would be necessary to lay down procedural safeguards for the
protection of the right to privacy ofa person until Parliament intervened C
by framing rules under Section 7 of the Telegraph Act. The Court
accordingly framed guidelines to be adopted in all cases envisaging
telephone tapping.
61. The judgment in PUCL construes the earlier decisions in
Kharak Singh (especially the majority view on the invalidity of D
domiciliary visits), Gobind and Rajagopal in holding that the right to
privacy is embodied as a constitutionally protected right under Article
21. The Court was conscious of the fact that the right to privacy has "by
itself' not been identified under the Constitution. The expression "by
itself' may indicate one of two meanings. The first is that the Constitution
does not recognise a standalone right to privacy. The second recognizes E
that there is no express delineation of such a right. Evidently, the Court
left the evolution of the contours of the right to a case by case
determination. Telephone conversations from the home or office were
construed to be an integral element of the privacy of an individual. In
PUCL, the Court consciously established the linkages between various F
articles conferring guarantees of fundamental rights when it noted that
wire-tapping infringes privacy and in consequence the right to life and
personal liberty under Article 21 and the freedom of speech and
expression under Article 19(1)(a). The need to read the fundamental
constitutional guarantees with a purpose illuminated by India's
commitment to the international regime of human rights' protection also G
weighed in the decision. Section 5(2) of the Telegraph Act was to be
regulated by rules framed by the Government to render the modalities of
telephone tapping fair, just and reasonable under Article 21. The
importance which the Court ascribes to privacy is evident from the fact
H
688 SUPREME COURT REPORTS [2017] IO S.C.R.

A that it did not await the eventual formulation of rules by Parliament and .
prescribed that ~n the meantime, certain procedural safeguards which it
envisaged should be put into place.
62. While dealing with a case involving the rape of an eight year
old child, a three-judge Bench of this Court in State of Karnataka v
B Krishnappa 91 held:
"Sexual violence apart from being ... dehumanising ... is an
unlawful intrusion of the right to privacy and sanctity ... It. .. offends
her. .. dignity." 92
Similar observations were made in Sudhansu Sekhar Sahoo v
C State of Orissa 93 •
63. In Sharda v DharmpaFI, the appellant and respondent were
spouses. The respondent sued for divorce and filed an application for
conducting a medical examination of the appellant which was opposed.
The Trial Court allowed the application. The High Court dismissed the
D challenge in a Civil Revision which led the appellant to move this Court.
The appellant argued before this Court that compelling her to undergo a
medical examination violated her personal liberty under Article 21 and
that in the absence of an empowering provision, the matrimonial Court
had no jurisdiction to compel a party to undergo a medical examination.
E Justice S B Sinha, speaking for the Bench of three judges, dealt with the
first aspect of the matter (whether a matrimonial Court has jurisdiction
to order a medical examination) in the following terms:·
"Even otherwise the court may issue an appropriate direction so
as to satisfy itself as to whether apart from treatment he requires
adequate protection inter alia by way oflegal aid so that he may
F
not be subject to an unjust order because of his incapacity. Keeping
in view of the fact that in a case of mental illness the court has
adequate power to examine the party or get him examined by a
qualified doctor, we are of the opinion that in an appropriate case
the court may take recourse to such a procedure even at the
G instance of the party to the lis 95 •••

" c2000) 4 sec 75
92 Ibid, at page 82 (para 15)

., c2002J 10 sec 743
,. (2003) 4 sec 493
H "' Ibid, at page 513 (para 52)
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 689
[DR: D. Y. CHANDRACHUD, J.] .

Furthermore, the court must be held to have the requisite power A
even under Section 1~1 of the Code of Civil Procedure to issue
such direction either suo rnotu or otherwise which, according to
him, would lead to the truth. 96 "
64. The second question considered by the Court ~as whether a
compulsive subjecting of a person to a medical examination violates Article B
21. After noticing the observations in MP Sharma and Kharak Singh
where it was held that the Constitution has not guaranteed the right of·
privacy, the. Court held that .in subsequent decisions, such a .right has
been read into Article 21 on an expansive interpretation of personal liberty.
In the course of its judgment, the Court adverted to the decisions in
Rajagopal, PUCL, Gobind and Mr X v Hospital Z on the basis of C
which it stated that it had "'outlined the law relating to privacy in India".
In the view of this Court, in matrimonial cases where a decree of divorce
is sought on medical grounds, a medical examination is the only way in
·which an allegation could be proved. In such a situation:
"If the respondent avoids such medical examination on the ground D
that it violates his/her right to privacy or for that matter right to
· personal liberty as enshrined under Article 21 of the Constitution
oflndia, then it may in most of such cases become impossible to
arrive at a conclusion. It may render the very grounds on which
divorce is permissible nugatory. Therefore, when there is no right E
to privacy specifically Conferred by Article 21 of the Constitution
of India and with the extensive interpretation of the phrase
"personal liberty" this right has been read into Article 21, it cannot
be treated as an absolute right.. .' 097
The right of privacy was held not to be breached. F
65. In District Registrar and Collector, Hyderabad v Canara
Bank ("Canara Bank"), a Bench:.of;two·j~dges. of thi~ Court
98

cqns.ider~ the provisions of the Ind]~iri''Staihp'Act; l 89~· {as amended by
a special law in Andhra Pradesh). Section 73,.which was.invaiidated by
the High Court, empowered the Collector to iospe(;t registers, books and G
records, papers, documents and proceedings in the custody ,of any public
officer 'to secure any duty or to prove or would lead to the discovery of
.. a fraud or .omission'. Section 73 w.as in the following temis: · .
.,. Ibid, at page 513 (para 53)
"Ibid, at page 523 (para 76)
.. (2005) 1 sec 496 H ..
690 SUPREME COURT REPORTS [2017] 10 S.C.R.

A "73. Every public officer having in his custody any registers, books,
records, papers, documents or proceedings, the inspection whereof
may tend to secure any duty. or to prove or lead to the discovery
of any fraud or omission in relation to any duty, shall at all
reasonable times permit any person authorised in writing by the
Collector to inspect for such purpose the registers, books, papers,
B
documents and proceedings, and to take such notes and extracts
as he may deem necessary, without fee or charge."
After adverting to the evolution of the doctrine of privacy iri the
US from a right associated with propertyw to a right associated with the
individual 100, Chief Justice Lahoti referred to the penumbras created by
C theBi11 of Rights resulting in a zone ofprivacyl 01 leading up eventually
to a "reasonable expectation of privacy" 102 • Chief Justice Lahoti
considered the decision in M P Sharma to be "of limited help" to the
discussion on privacy. However, it was Kharak Singh which invalidated
nightly-domiciliary visits that provided guidance on the issue. The
D evaluation of Kharak Singh was in the following terms:
''In ... Kharak Singh v State ofU P [(1964) I SCR 332: (1963)
2 Cri LJ 329] the U.P. Regulations regarding domiciliary visits
were rn question and the majority referred
to Munn v. Illinois [94 US 113 : 24 L Ed 77 (1877)) and held
E that though our Constitution did not refer to the right to
privacy expressly, still it can be traced from the right to
"life" in Article 21. According to the majority, clause 236 of the
relevant Regulations in U.P., was bad in law; it offended Article
21 inasmuch as there was no law permitting interference by such
visits. The majority did not go into the question whether these
F visits violated the "right to privacy". But, Subba Rao, J. while
concurring that the fundamental right to privacy was part of the
right to liberty in Article 21, part of the right to freedom of speech
and expression in Article l 9(l)(a), and also of the right to
movement in Article 19( 1)(d), held that the Regulations permitting
G surveillance violated the fundamental right of privacy. In the
discussion the learned Judge referred to Wolf v. Colorado [338
US 25 : 93 L Ed 1782 ( 1949)] . In effect, all the seven learned
""Boyd v United States, 116 US 616 (1886)
100 Olmstead v United States, 277 US 438 (1928)

'"'Griswold v State of Connecticut, 381US479 (1965)
H '"'Katz v Uniteu States, 389 US 347 (1967) ·
JUSTICE K S PUTIASWAMY (RETD.) v. UNION OF INDIA 691
[DR. D. Y. CHANDRACHUD, J.]

Judges held that the "right to privacy" was part of the right A
to "life" in Article 21." 103 (emphasis supplied)
The decision in Gobind is construed to have implied the right to
privacy in Articles 19(l)(a) and 21 of the Constitution:
"We have referred in detail to the reasons given by Mathew,
J, in Gobind to show that, the right to privacy has been B
implied in Articles 19(l)(a) and (d) and Article 21~ that, the
right is not absolute and that any State intrusion can be a reasonable
restriction only if it has reasonable basis or reasonable materials
to support it." 104 (emphasis supplied)
The Court dealt with the application of Section 73 of the Indian C
Stamp Act (as amended), to documents of a customer in the possession
of a bank. The Court held:
"Once we have accepted in Gobind [(1975) 2 SCC 148: 1975
SCC (Cri) 468] and in later cases that the right to privacy deals
with "persons and not places", the documents or copies of D
documents of the customer which are in a bank, must continue to
remain confidential vis-ii-vis the person, even if they are no longer
at the customer's house and have been voluntarily sent to a bank.
If that be the correct view of the law, we cannot accept the line
of Miller [425 US 435 (1976)] in which the Court proceeded on E
the basis that the right to privacy is referable to the right of
"property'' theory. Once that is so, then unless there is some
probable or reasonable cause or reasonable basis or mated al before
the Collector for reaching an opinion that the documents in the
possession of the bank tend to secure any duty or to prove or to
lead to the discovery of any fraud or omission in.relation to any F
duty, the search or taking notes or extracts therefore, cannot be
valid. The above safeguards must necessarily be read into the
provision relating to search and inspection and seizure so as to
save it from any unconstitutionality.'' 105
Hence the Court repudiated the notion that a person who places G
documents with a bank would, as a result, forsake an expectation of
confidentiality. In the view of the Court, even if the documents cease to
w3 Supra Note 95, at page 516 (para 36)
104 Ibid, at page 518 (para 39)
10' Ibid, at page 523 (para 53)
H
692 SUPREME COURT REPORTS [2017] IO S.C.R.

A be at a place other than in the custody and control of the customer,
privacy attaches to persons and not places and hence the protection of
privacy is not diluted. Moreover, in the view of the Court, there has to
- be a reasonable basis or material for the Collector to form an opinion
that the documents in the possession of the bank would secure the purpose
B of investigating into an act of fraud or an omission in relation to duty.
The safeguards which the Court introduced were regarded as being. -
implicit in the need to make a search of this nature reasonable. The
second part of the ruling of the Court is equally important for it finds
fault with a statutory provision which allows an excessive delegation of
. _.the power conferred upon the Collector to inspect documents. The
C provision, the Court rules, would allow the customers' privacy to be
breached by non-governmental persons. Hence the statute, insofar as it
allowed the Collector to authorize any person to seek inspection, would
be unenforceable. In the view of the Court:
"Secondly, the impugned provision in Section 73 enabling the
D Collector to authorise "any person" whatsoever to inspect, to take
notes or extracts from the papers in the public office suffers from
the vice of excessive delegation as there are no guidelines in the
Acrand more importantly, the section allows the facts relating to
the customer's privacy to reach non-governmental persons and
would, on that basis, be an unreasonable encroachment into the
E customer's rights. This part of Section 73 permitting delegation to
"any person" suffers from the above serious defects and for that
reason is, in our view, unenforceable. The State must clearly define
the officers by designation or state that the po»'er can b,e delegated
to officers not below a particular rank in the official hierarchy, as
F may be designated by the State." 106
66. The significance of the Judgment in Canara Bank lies first in .
its reaffirmatio!l of the right to privacy as:emaniitin'g 'froin the· liberties
guaranteed by Article 19. and from the. protection of life and personal
liberty.under Article 21. Second~y, the Court finds the foundation for the
G reaffirmation of this right not only in the judgments in Kharak Singh
and Gobind and the cases which followed, but also in terms of India's
international commitments under the Universal Declaration of Human
Rights (UDHR) and International Covenant on Civil and Political Rights
(ICCPR). Thirdly, the right to privacy is construed as a right which
106
Ibid, at page 524 (para 54)
H

•
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 693
[DR. D. Y. CHANDRACHUD, J.]

attaches to the person. The significance of this is that the right to privacy A
is not lost as a result of confidential documents or infonnation being
parted with by. the customer to the custody of the bank. Fourthly, the
Court emphasised the need to read procedural safeguards to ensure that
the power of search and seizure of the nature contemplated by Section
73 is not exercised· arbitraFily.. Fifthly,. access to bank records to the B
Collector does not permit a delegation of those powers by the Collector
to a private individual. Hence everi when the power to inspect and 'Search
is validly exercisable by an organ of the state, necessary safeguards·
would be required to ensure that the information does not travel to
unauthorised private hands. Sixthly, information provided by an individual
to a third party (in that case a bank) carries with it a reasonable C
expectation that it will be utilised only for the purpose for which it is
provided. Parting with information (to the bank) does not deprive the
individual of the privacy interest. The reasonable expectation is allied to
the purpose for which information is provided. Seventhly, while legitimate
aims of the.state, such as the protection of the revenue may intervene to D
permit a disclosure to the state, the state must take care to ensure that
the information is not accessed by a private entity. The decision in Canara
Bank has thus important consequences for recognising informational
privacy.
67. After the decision in Canara Bank, the provisions for search
and seizure under Section 132(5) of the Income Tax Act, 1961 were E
construed strictly by this Court in P R Metrani v Commissioner of
Income Taxw7 on the ground that they constitute a "serious intrusion
into the privacy of a citizen". Similarly, the search and seizure provisions
of Sections 42 and 43 of the NDPS 108 Act were construed by this Court
in Directorate of Revenue v Mohd Nisar Holia 109 • Adverting to F
Canara Bank, among other decisions, the Court held that the right to
privacy is crucial and imposes a requirement of a written recording of
reasons before a search and seizure could be carried out.
68. Section 30 of the Punjab Excise Act, 1914 prohibited the
employment of "any man under the age of 25 years" or "any woman" in G
any part of the premises in which riquor or an intoxicating drug is consumed
by the public. The provision was also challenged i.n Anuj Garg v Hotel
107 (2007) 1 sec 789
'°'Narcotic Drugs and Psychotropic Substances Act, 1985
109
(2008) 2 sec 370
H
694 SUPREME COURT REPORTS [2017] 10 S.C.R.

A Association oflndia 110 on the ground that it violates the right to privacy.
While holding that the provision is ultra vires, the two-judge Bench
observed:
"Privacy rights prescribe autonomy to choose profession
whereas security concerns texture methodology of delivery of
B this assurance. But it is a reasonable proposition that that the
measures to safeguard such a guarantee of autonomy should not
be so strong that the essence of the guarantee is lost. State
protection must not translate into censorship 111 •••
Instead of prohibiting women employment in the bars altogether
c the state should focus on factoring in ways through which unequal
consequences of sex differences can be eliminated. It is state's
duty to ensure circumstances of safety which inspire confidence
in women to discharge the duty freely in accordance to the
requirements of the profession they choose to follow. Any other
policy inference (such as the one embodied under Section
D 30) from societal conditions would be oppressive on the
women and against the privacy rights 112 ...
The Court's task is to determine whether the measures
furthered by the State in form of legislative mandate, to
augment the legitimate aim of protecting the interests of
E women are proportionate to the other bulk of well-settled
gender norms such as autonomy, equality of opportunity,
right to privacy et al.m" (emphasis supplied)
69. In Hinsa Virodhak Sangh v Mirzapur Moti Kuresh
Jamat 11 • ("Hinsa Virodhak Sangh"), this Court dealt with the closure
F of municipal slaughterhouses in the city of Ahmedabad for a period of
nine days each year during the Jain observance of paryushan, pursuant
to the resolution of the municipal corporation. The High Court had set
aside the resolutions. In appeal, this Court observed as follows:
"Had the impugned resolutions ordered closure of municipal
G slaughterhouses for a considerable period of time we may have
held the impugned resolutions to be invalid being an excessive
110 c2oos) 3 sec 1
111 Ibid, at page 15 (para 35)
112
Ibid, at pages 16-17 (para 43)
113 Ibid, at page 19 (para 51)

H
11
• c2oos) 5sec 33
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 695
[DR. D. Y. CHANDRACHUD, J.]

restriction on the right~ of the butchers of Ahmedabad who practise A
their profession of meat selling. After all, butchers are practising
a trade and it is their fundamental right under Article 19( I )(g) of
the Constitution which is guaranteed to all citizens of India.
Moreover, it is not a matter of the proprietor of the butchery shop
alone. There may be also several workmen therein who may B
become unemployed if the slaughterhouses are closed for a
considerable period of time, because one of the conditions of the
licence given to the shop-owners is to supply meat regularly in the
city of Ahmedabad and this supply comes from the municipal
slaughterhouses of Ahmedabad. Also, a large number of people
are non-vegetarian and they cannot be compelled to become C
vegetarian for a long period. What one eats is one's personal
affair and it is a part of his right to privacy which is included
in Article 21 of our Constitution as held by several decisions
of this Court. In R. Rajagopal v. State of T.N. [(1994) 6 SCC
632: AIR 1995 SC 264] (vide SCC para 26: AIR para 28) this . D
Court held that the right to privacy is implicit in the right to life and
liberty guaranteed by Article 21. It is a "right to be let alone"." 115
(emphasis supplied)
However, since the closure of slaughterhouses was for a period
of nine days, the Court came to the conclusion that it did not encroach
upon the freedom guaranteed by Article 19(1 )(g). The restriction was E
held not to be excessive.
70. The decision in the State of Maharashtra v Bharat Shanti
Lal Shah 116 deals with the constitutional validity of Sections 13 to 16 of
the Maharashtra Control of Organized Crime Act (MCOCA) which
inter alia contains provisions for intercepting telephone and wireless F
communications. Upholding the provision, the Court observed:
"The object ofMCOCA is to prevent the organised crime and a
perusal of the provisions of the Act under challenge would indicate
that the said law authorises the interception of wire, electronic or
oral communication only if it is intended to preventthe commission G
of an organised crime or if it is intended to collect the evidence to
the commissi,on of such an organised crime. The procedures
authorising such interception are also provided therein with enough
115 Ibid, at pages 46-47 {para 27)

'"<200&) 13 secs
H
696 SUPREME COURT REPORTS (2017] 10 S.C.R.

A procedural safeguards, some of which are indicated and discussed
hereinbefore." 117 ·

The safeguards that the Court adverts to in the above extract
include Section 14, which requires details of the organized crime that is
being committed or is about to be committed, before surveillance could
B be authorized. The requirements also mandate describing the nature and
location of the facilities from which the communication is to be intercepted,
the nature of the communication and the identity of the person, if it is
known. A statement is also necessary on whether other modes of enquiry
or intelligence gathering were tried or had failed or why they reasonably
appear to be unlikely to succeed if tried or whether these would be too
c dangerous or would likely result in the identification of those connected
with the operation. The duration of the surveillance is restricted in time
and the provision requires "minimal interception" 118 • •
71. During the course of the last decade, this Court has .had
occasion to deal with the autonomy of a woman and, as an integral part,
D her control over the body. Suchita Srivastava v Chandigarh
Administration 119("Suchita Srivastava") arose in the context of the
Medical Termination of Pregnancy Act (MTP) Act, 1971. A woman
\'{ho was alleged to have been raped while residing in a welfare institution
run by the government was pregnant. The district administration moved
E the High Court to seek termination of the pregnancy. The High Court
directed that the pregnancy be terminated though medical experts had
opined that the victim had expressed her willingness to bear the child.
The High Court had issued this direction without the consent of the
woman which was mandated under the statute where the woman is a
major and does not suffer from a mental illness. The woman in this case
F was found to suffer from a case of mild to moderate mental retardation.
Speaking for a Bench of three judges, Chief Justice Balakrishnan held
that the reproductive choice of the woman should be respected having
regard to the mandate of Section 3. In the view of the Court:
"There is no doubt that a woman's right to make reproductive
G choices is also a dimension of "personal liberty" as understood
under Article 21 of the Constitution of India. It is important to
recognise that reproductive choices can be exercised to procreate
117
Ibid, at page 28 (para 61)
"'Gautam Bhatia (supra note 82), at page 148
H '" (2009) 9 sec 1
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 697
[DR. D. Y. CHANDRACHUD, J.]

· as well as to abstain from procreating. The crucial consideration A
is that a woman's right to privacy, dignity and bodily integrity
should be respected. This means that there should be no
restriction whatsoever on the exercise of reproductive choices
such as a woman's right to refuse participation in sexual activity
or alternatively the insistence on use of contraceptive methods. B
Furthermore, women are also free to choose birth control methods
such as undergoing sterilisation procedures. Taken to their
logical conclusion, reproductive rights include a woman's
entitlement to carry a pregnancy to its full term, to give
birth and to subsequently raise children. However, in the
case of pregnant women there is also a "compelling State interest" C
in protecting the life of the prospective child. Therefore, the
termination of a pregnancy is only permitted when the conditions
specified in the applicable statute have been fulfilled. Hence, the
provisions of the MTP Act, 1971 can also be viewed as reasonable
restrictions that have been placed on the exercise of reproductive D
choices." 120 (emphasis supplied)
The Cllu1t noted that the statute requires the consent of a guardian
where the woman has not attained majority or is mentally ill. In the view
of the Court, there is a distinction between mental illness and mental
retardation and hence the State which was in-charge of the welfare
E
institution was bound to respect the personal autonomy of the woman.
72. The decision in Slichita Srivastava dwells on the statutory
right of a womari under the MTP Act to decide whether or not to consent
to a termination of pregnancy and to have that right respected where
she does not cons.ent to termination. The statutory recognition of the
right is relatable to the.constitutional right to make reproductive choices F
which has been held to be an ingredient of personal liberty under Article
21. The Court deduced the existence of suc.h a right from a woman's
right to privacy, dignity and bodily integrity.
73. In Bhavesh Jayanti Lakhani v State of Maharashtra 121 ,
this Court dealt with a challenge to the validity of an arrest. warrant G
issued by a US court and a red comer notice issued by INTERPOL on
the groundthat the petitioner had, in violation of an interim custody order,
returned to India with the child. The Court did not accept the submission
120
Ibid, at page 15 (para 22)
121 (2009) 9 sec 551 H
698 SUPREME GOURT REPORTS [2011] 10 S.C.R.

A that the CBI, by coordinating with INTERPOL had breached the
petitioner's right of privacy. However, during the course of the discussion,
this Court held as follows:
"Right to privacy is not enumerated as a fundamental right either
in terms of Article 21 of the Constitution oflndia orotherwise. It,
B however, by reason of an elaborate interpretation by this Court
in Kharak Singh v. State ofU.P. [AIR 1963 SC 1295: (1964) 1
SCR 332] was held to be an essential ingredient of "personal
liberty" ." 122
"This Court. however, in Gob ind v. State of M.P. upon taking an
c elaborate view of the matter in regard to right to privacy vis-a-vis
the Madhya Pradesh Police Regulations dealing with surveillance,
opined that the said Regulations did not violate the "procedure
established by law". However, a limited fundamental right to
privacy as emanating from Articles 19(1)(a), (d) and 21 was
upheld, but the same was held to be not absolute wherefore
D reasonable restrictions could be placed in terms of clause (5) of
Article 19." 12~
74. In Sclvi v State of Karnataka 124 ("Sclvi"), a Bench of three
judges of this Court dealt with a challenge to the validity of three
investigative techniques: narco-analysis, polygraph test (lie-detector test)
E and Brain Electrical Activation Profile (BEAP) on the ground that they
implicate the fundamental rights under Articles 20(3) and 21 of the
Constitution. The Court held that the results obtained through an
involuntary administration of these tests are within the scope of a
testimonial, attracting the protective shield of Article 20(3) of the
F Constitution. Chief Justice Balakrishnan adverted to the earlier decisions
rendered in the context of privacy and noted that thus far, judicial
understanding had stressed mostly on the protection of the body and
physical actions induced by the state. The Court emphasised that while
the right against self-incrimination is a component of personal libe1ty
under Article 21, privacy under the constitution has a meeting point with
G Article 20(3) as well. In the view of the Court:
"The theory of interrelationship of rights mandates that the right
against self-incrimination should also be read as a component of
122Ibid, at pages 584-585 (para 102)
123Ibid, at page 585 (para 103)
H "' c2010) 7 sec 263
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 699
[DR. D. Y. CHANDRACHUD, J.]

"personal liberty" under Article 21. Hence, our understanding of A
the ''right to privacy" should account for its intersection with Article
20(3). Furthermore, the "rule against involuntary confessions" as
embodied in Sections 24, 25, 26 and 27 of the Evidence Act, 1872
seeks to serve both the objectives of reliability as well as
voluntariness of testimony given in a custodial setting. A conjunctive B
reading of Articles 20(3) and 21 of the Constitution along with the
principles of evidence law leads us to a clear answer. We must
recognise the importance of personal. aufonomy in aspects such
as the choice between remaining silent and speaking. An
individual's decision to make a statement is the product of a private
choice and there should be no scope for any other individual to C
interfere with such autonomy, especially in circumstances where
the person faces exposure to criminal charges or penalties ...
Therefore, it is our considered opinion that subjecting a person to
the impugned techniques in an involuntary manner violates the
prescribed boundaries of privacy. Forcible interference with a D
person's mental processes is not provided for under any statute
and it most certainly comes into conflict with the "right against
self-incrimination". " 125
In tracing the right to privacy under Article 20(3), as well as Article
21, the decision marks a definite shift away from the M P Sharma E
rationale. The right not to be compelled to speak or to incriminate oneself
when accused of an offence is an embodiment of the right to privacy.
Selvi indicates how the right to privacy can straddle the ambit of several
constitutional rights - in that case, Articles 20(3) and 21.
75. In Bhabani Prasad Jena v Orissa State Commission for F
Women 126, the Court was considering the question whether the.High
Court was justified in issuing a direction for a DNA test of a child and
the appellant who, according to the mother of the child, was the father.
It was held that:
"In a matter where paternity of a child is in issue before the court, G
the use of DNA test is an extremely delicate and sensitive aspect.
One view is that when modern science gives the means of
ascertaining the paternity of a child, there should not be any
hesitation to use those means whenever the occasion requires.
'" Ibid, at pages 369-370 (paras 225-226)
• (201 OJ s sec 633
12
H
700 SUPREME COURT REPORTS [2017) 10 S.C.R.

A The other view is that the court must be reluctant in the use of
such scientific advances and tools which result in invasion of right
to privacy of an individual and may not only be prejudicial to the
rights of the parties but may have devastating effect on the child.
Sometimes the result of such scientific test may bastardise an
innocent child even though his mother and her spouse were living
B
together during the time of conception." 127
76. In Amar Singh v Union of lndia 128 , a Bench of two judges
of this Court dealt with a petition under Article 32 alleging that the
fundamental right to privacy of the petitioner was being breached by
intercepting his conversations on telephone services provided by a service
c provider. The Court held:
"Considering the materials on record, this Court is of the opinion
that it is no doubt true that the service provider has to act on an
'"
urgent basis and has to act in public interest. But in a given case,
like the present one, where the impugned communication dated
D 9-11-2005 is full of gross mistakes, the service provider while
immediately acting upon the same, should simultaneously verify
the authenticity of the same from the author of the document.
This Court is of the opinion that the service provider has to act as
a responsible agency and cannot act on any communication.
E Sanctity and regularity_ in official communication in such
matters must be maintained especially when the service
provider is taking the serious step of intercepting the
a
telephone conv.ersation of person and by doing so is
invading the privacy right of the person concerned and which
is a fundamental right protected under the Constitution, as
F has been held by this Court." 129 (emphasis supplied)
77. In Ram Jethmalani v.Union of India 130 ("Ram
Jethmalani"), a Bench of two judges was dealing with a public interest
litigation concerned with unaccounted monies and seeking the
appointment of a Special Investigating Team to follow and investigate a
G money trail. This Court held that the revelation of the details of the bank
accounts of individuals without the establishment of a prima fade ground
127 Ibid, at page 642 (para 21)
12• c2011) 1sec69
m Ibid, at page 84 (para 39)
H " 0 c2011) s sec 1
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 701
[DR. D. Y. CHANDRACHUD, J.]

of wrongdoing would be a violation of the right to privacy. This Court A
observed thus:
"Right to privacy is an integral part of right to life. This is a
cherished constitutional value, and it is importarit that human beings
be allowed domains of freedom that are free of public scrutiny.
·unless they act in an unlawful manner. We understand and B
appreciate the fact that the situation with respect to unaccounted
for monies is extremely grave. Nevertheless, as constitutional
adjudicators we always have to be mindful of preserving the
sanctity of constitutional values, and hasty steps that derogate
from fundamental rights, whether urged by Governments or private
citizens, howsoever well meaning they may be, have to be C
necessarily very carefully scrutinised. The solution for the problem
of abrogation of one zone of constitutional values cannot be the
creation of another zone of abrogation of constitutional values ...
The rights of citizens, to effectively seek the protection of
fundamental rights, under clause (I) of Article 32 have to be D
· balanced against the rights of citizens and persons under Article
21. The latter cannot be sacrificed on the anvil of fervid desire to
find instantaneous solutions to systemic problems such as
unaccounted for monies, for it would lead to dangerous
circumstances, in which vigilante investigfltions, inquisitions and E
rabble rousing, by masses of other citizens could become the order
of the day. The right of citizens to petition this Court for upholding·
of fundamental rights is granted in order that citizens, inter alia,
are ever vigilant about the functioning of the State in order to .
; protect the constitutional project. That right cannot be extended
to being inquisitors of fellow citizens. An inquisitorial order, F
where citizens' fundamental right to privacy is breached by
,•.fellow citizens is destructive of social order. The notion of
fundamental rights, such as a right to privacy as part of
right to life, is not merely that the State is enjoined from .
derogating from them. It also includes the responsibility of G
the State to uphold them against the actions of others in ·
the society, even in the context of exercise of fundamental
rights by those others." 131 (emphasis supplied)

131 Ibid, at pages 35-36 (paras 83-84)

H
702 SUPREME COURT REPORTS [2017] lO S.C.R.

A The Court held that while the State could access details of the
bank accounts of citizens as an incident of its power to investigate and
prosecute crime, this would not enable a private citizen to compel a
citizen to reveal bank accounts to the public at large.
78. In Sanjoy Narayan v High Court of Allahabad 132, the two-
B judge Bench dealt with a contempt petition in respect of publication of
an incorrect report in a newspaper which tarnished the image of the
Chief Justice of a High Court. The Court made the following observations:
"The unbridled powerofthe media can become dangerous if check
and balance is not inherent in it. The role of the media is to
c provide to the readers and the public in gene1·al with
information and views tested and (ound as true and correct.
This power must be carefully regulated and must reconcile
with a person's fundamental right to privacy."m
(emphasis supplied)
D 79. In Ramlila Maidan Incident v Home Secretary, Union of
India 1J.1,J ustice B S Chauhan in a concurring judgment held that:
"Right to privacy has been held to be a fundamental right of the
citizen being an integral part of Article 21 of the Constitution of
India by this Court. Illegitimate intrusion into privacy of a person
E is not permissible as right to privacy is implicit in the right to life
and liberty guaranteed under our Constitution. Such a right has
been extended even to woman of easy virtues as she has been
held to be entitled to her right of privacy. However, right of privacy
may not be absolute and in exceptional circumstance particularly
surveillance in consonance with the statutory provisions may not
F violate such a right." 135
In the view of the Court, privacy and dignity of human life have
"always been considered a fundamental human right of every human
being" like other constitutional values such as free speech. We must
also take notice of the construction placed by the judgment on the decision
G in Kharak Singh as having "held that the right to privacy is a part oflife
under Article 21 of the Constitution" and which was reiterated in PUCL.
"' (2011) 13 sec 155
Ill Ibid, at page 156 (para 6)
c2012J s sec 1
134

m Ibid, at pages 119-120 (para 312)
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 703
[DR. D. Y. CHANDRACHUD, J.]

80. The judgment of a Bench of two judges of this Court in Bihar A
Public Service Commission v Saiyed Hussain Abbas Rizwi 1J6 dealt
with the provisions of Section 8(1 )(g) of the Right to Information Act,
2005. A person claiming to be a public-spirited citizen sought information
under the statute from the Bihar Public Service Commission on a range
of matters relating to interviews conducted by it on two days. The B
commission disclosed the information save and except for the names of
the interview board. The High Court directed disclosure. Section 8(1 )(g)
provides an exemption from disclosure of information of the following
nature:
"information, the disclosure of which would endanger the life or
physical safety of any person or identify the source of information C
or assistance given in confidence for law enforcement and security
purposes."
Justice Swatanter Kumar, speaking for the Court, held thus:
"Certain matters, particularly in relation to appointment; are D
required to be dealt with great confidentiality. The infon'nation
may come to knowledge of the authority as a result of disclosure
by others who give that information in confidence and with complete
faith, integrity and fidelity. Secrecy of such information shall be
maintained, thus, bringing it within the ambit of fiduciary capacity.
Similarly, there may be cases where the disclosure has no E
relationship to any public activity or interest or it may even
cause unwarranted invasion of privacy of the individual. All
these protections have to be given their due implementation as
they spring from statutory exemptions. It is not a decision
simpliciter between private interest and public interest. It F
is a matter where a constitutional protection is available to
a person with regard to the right to privacy. Thus, the public
interest has to be construed while keeping in mind the balance
factor between right to privacy and right to information with the
purpose sought to be achieved and the purpose that would be
served in the larger public interest, particularly when both these G
rights emerge from the constitutional values under the Constitution
of India." 137 (emphasis supplied)

,,. c2012) 13 sec 61
137
.Ibid, at page 74 (para 23)
H
704 SUPREME COURT REPORTS [2017] 10 S.C.R.

A Significantly, though the Court was construing the text of a statutory
exemption contained in Section 8, it dwelt on the privacy issues involved
in the disclosure of information furnished in confidence by adverting to
the constitutional right to privacy.
81. The decision Lillu @Rajesh v State of Haryana 138
B emphasized the right of rape survivors to privacy, physical and mental
integrity and dignity. The Court held thus:
"In view of International Covenant on Economic, Social, and
Cultural Rights 1966; United Nations Declaration of Basic
Principles of Justice for Victims of Crime and Abuse of Power
c 1985, rape survivors are entitled to legal recourse that does not
retraumatize them or violate their physical or mental integrity and
dignity. They are also entitled to medical procedures conducted in
a manner that respects their right to consent. Medical
procedures should not be carried out in a manner that
constitutes cruel, inhuman, or degrading treatment and
D health should be of paramount consideration while dealing
with gender-based violence. The State is under an
obligation to make such services available to survivors of
sexual violence. Proper measures should be taken to
ensure their safety and there should be no arbitrary or
E unlawful interference with his privacy." 139 (emphasis supplied)
82. In Thalappalam Service Cooperative Bank Limited v
State of Kerala 140, another Bench of two judges considered the
correctness of a decision of the Kerala High Court which upheld a circular
issued by the Registrar of Cooperative Societies. By the circular all
F c'ooperative institutions under his administrative control were declared
to be public authorities within the meaning of Section 2(h) of the Right to
Information Act, 2005. Section 8U) contains an exemption from ihe
disclosure of personal information which has no relationship to any public
activity or interest, or which would cause "unwarranted invasion of the
privacy of the individual" unless the authority is satisfied that the larger
G public interest justifies its disclosure. This Court observed that the right
to privacy has been recognized as a part of Article 21 of the Constitution
and the statutory provisions contained in Section 8(j) of the RTI Act
"' (2013) 14 sec 643
13' Ibid, at page 648 (para 13)

'"' (2013) 16 sec 82
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF lNDIA 705
[DR. D. Y. CHANDRACHUD, J.]

have been enacted by the legislature in recognition of the constitutional A
protection of privacy. The Court held thus:
"The right to privacy is also not expressly guaranteed under the
Constitution oflndia. However, the Privacy Bill, 2011 to provide
for the right to privacy to citizens of India and to regulate the
collection, maintenance and disseminati9n of their per~orial B
information and for penalisation for violation of such rights and
matters connected therewith, is pending. In several judgments
including Kharak Singh v. State of U.P .[AIR 1963 SC 1295 :
(1963) 2 Cri LJ 329] , R. Rajagopal v. State of T.N. [(1994) 6
SCC 632] , People's Union for Civil Liberties v. Union of
. India [(1997) 1 SCC 301] and State of Maharashtra v. Bharat C
Shanti Lal Shah [(2008) 13 SCC 5] this Court has recognised the .
right to privacy as a fundamental right emanating from Article 21
of the Constitution of India." 141
"Recognising the fact that the right to privacy is a sacrosanct
facet of Article 21 of the Constitution, the legislation has put a lot · D
of safeguards to protect the rights under Section SU), as already
indicated." 142
This Court held that on facts the cooperative societies were not
public authorities and the decision under challenge was quashed.
E
83. In Manoj Narula v Union oflndia 143 , a Constitution Bench
of this Court was hearing a petition filed in the public interest complaining
of the increasing criminalization of politics. Dealing with the provisions
of Article 75(1) of the Constitution, Justice Dipak Misra, while explaining
the doctrine of"constitutional implications", considered whether the Court
could read a disqualification into the provisions made by the Constitution F
in addition to those which have been provided by the legislature. In that
context, the Jeadingjudgmentobserves:
"In this regard, inclusion of many a facet within the ambit of Article
21 is well established. In R. Rajagopal v. State of T.N. [(1994)
6 SCC 632] , right to privacy has been inferred from Article G
21. Similarly, in Joginder Kumar v. State of U.P. [(1994) 4 SCC
260 : 1994 SCC (Cri) 1172 : AIR 1994 SC 1349] , inherent rights
141
Ibid, at page 112 (para 57)
'"Ibid, at page 114 (para 64)
'" (2014) 9 sec 1 H
706 SUPREME COURT REPORTS [2017] 10 S.C.R.

A under Articles 21 and 22 have been stated. Likewise, while dealing
with freedom of speech and expression and freedom of press, the
Court, in Romesh Thappar v. State of Madras [AIR 1950 SC 124
: (1950) 51 Cri LJ 1514] , has observed that freedom of speech
and expression includes freedom of propagation of ideas ...
B There is no speck of doubt that the Court has applied the doctrine
of implication to expand the constitutional concepts, but the context
in which the horizon has been expanded has to be borne in mind ...
At this juncture, it is seemly to state that the principle of implication
is fundamentally founded on rational inference of an idea from
c the words used in the text ...
Any proposition that is arrived at taking this route of interpretation
must find some resting pillar or strength on the basis of certain
words in the text or the scheme of the text. In the absence of
that, it may not be pennissible for a court to deduce any proposition
D as that would defeat the legitimacy of reasoning. A proposition
can be established by reading a number of articles cohesively, for
that will be in the domain of substantive legitimacy." 144
(emphasis supplied)
84. In National .Legal Services Authority v Union of India 145
E ("NALSA"), a Bench of two judges, while dealing with the rights of
transgenders. aJverted to international conventions acceded to by India
including the UDI IR and ICCf>R. Provisions in these conventions which
confer a protection against arbitrary and unlawful interference with a
person's privacy, family and home would, it was held, be read in a manner
which harmonizes the fundamental rights contained in Articles 14, 15, 19
F and 21 with India's international obligations. Justice KS Radhakrishnan
held that:
"Gender identity, therefore, lies at the core of one's personal identity,
gender expression and presentation and, therefore, it will have to
be protected under Article 19( I )(a) of the Constitution oflndia. A
G transgender's personality could be expressed by the transgender's
behaviour and presentation. State cannot prohibit, restrict or
interfere with a transgender's expression of such personality, which
reflects that inherent personality. Often the State and its authorities
144
Ibid, at pages 47-48 (paras 69-70)
1
•' c2ot4) s sec 438
H
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 707
[DR. D. Y. CHANDRACHUD, J.]

either due to ignorance or otherwise fail to digest the innate A
character and identity of such persons. We, therefore, hold that
values of privacy, self-identity, autonomy and personal integrity
are fundamental rights guaranteed to members of the trans gender
community under Article 19( 1)(a) of the Constitution oflndia and
the State is bound to protect and recognise those rights.'' 146
B
Explaining the ambit of Article 21, the Court noted:
"Article 21 is the heart and soul of the Indian Constitution, which
speaks of the rights to life and personal liberty. Right to life is one
of the basic fundamental rights and not even the State has the
authority to violate or take away that right. Article 21 takes all c
those aspects of life which go to make a person's life meaningful.
Article 21 protects the dignity of human life, one's personal
autonomy, one's right to privacy, etc. Right to dignity has been
recognised to be an essential part of the right to life and accrues
to all persons on account of being humans. In Francis Coralie
Mullin v. UTofDelhi[(l981) 1SCC608: 1981 SCC (Cri) 212) D
(SCC pp. 618-19, paras 7 and 8), this Court held that the right to
dignity forms an essential part of our constitutional culture which
seeks to ensure the full development and evolution of persons and
includes "expressing oneself in diverse forms, freely moving about
and mixing and comingling with fellow human beings ... 147 E
Article 21, as already indicated, guarantees the protection of
"personal autonomy" of an individual. In Anuj Garg v. Hotel Assn.
oflndia [(2008) 3 SCC 1] (SCC p. 15, paras 34-35), this Court
held that personal autonomy includes both the negative right of
not to be subject to inte1ference b)' others and the positive right of F
individuals to make decisions about their life, to express themselves
and to choose which activities to take part in. Self-determination
of gender is an integral part of personal autonomy and self-
expression and falls within the realm of personal liberty guaranteed
under Article 21 of the Constitution oflndia. 148 "
G
Dr Justice AK Sikri wrote a lucid concurring judgment.
NALSA indicates the rationale for grounding of a right to privacy
in the protection of gender identity within Article 15. The intersection of
146 Ibid, at page 490 (para 72)
147
Ibid, at page 490 (para 73)
14
' Ibid, at page 491 (para 75)
H
708 SUPREME COURT REPORTS [2017] 10 S.C.R.

'
A Article 15 with Article 21 locates a constitutional right to privacy as an
expression of individual autonomy, dignity and identity. NALSAindicates
that the right to privacy does not necessarily have to fall within the ambit
of any one provision in the chapter on fundamental rights. Intersecting
rights recognise the right to privacy. Though primarily, it is in the gual."antee
oflife and personal liberty under Article 21 that a constitutional right to
B
privacy dwells, it is enriched by the values incorporated in other rights
which are enumerated in Part III of the Constitution.
85. In ABC v The State (NCT of Delhi) 149, the Court dealt with
'
the question whether it is imperative for an unwed mother to specifically
notify the putative father of the child of her petition for appointment as
C guardian of her child. It was stated by the mother of the child that she
does not want the future of her child to be marred by any controversy
regarding his paternity, which would indubitably result should the father
refuse to acknowledge the child as his own. It was her contention that
her own fundamental right to privacy will be violated if she is compelled
D to disclose the name and particulars of the father of her child. Looking
into the interest of the child, the Bench directed that "if a single parent!
unwed mother applies for the issuance of a Birth Certificate for a
child born from her womb, the Authorities concerned may only
require her to furnish an affidavit to this effect, and must thereupon
issue the Birth Certificate, unless there is a Court direction to the
E contrary" 150•

86. While considering the constitutional validity of the Constitution
(Ninety-Ninth Amendment) Act, 2014 which enunciated an institutional
process for the appointment ofjudges, the concurring judgment ofJustice
Madan B Lokur in Supreme Court Advocates on Record Association
F v Union of India 151 dealt with privacy issues involved if disclosures
were made about a candidate under consideration for appointment as a
Judge of the Supreme Court or High Court. Dealing with the right to
know of the general public on the one hand and the right to privacy on
the other hand, Justice Lokur noted that the latter is an "implicit
G fundamental right that all people enjoy". Justice Lokur observed thus:
"The balance between transparency and confidentiality is very
delicate and if some sensitive information about a particular person
'" (2015) 10 sec 1
iso Ibid, at page 18 (para 28)
H "' (2016) s sec 1
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 709
[DR. D. Y. CHANDRACHUD, J.]

is made public, it can have a far-reaching impact on his/he.r A
reputation and dignity. The 99'h Constitution Amendment Act and
the NJAC Act have not taken note of the privacy concerns of an
individual, This is important because it was submitted by the.
learned Attorney General that the proceedings of NJAC will be
.completely transparent and any one can have access to information B
that is available with NJAC. This is a rather sweeping
generalization which obviously does not take into account
the privacy of a person who ha.s been recommended for
appointment, particularly as a Judge of the High Court or
in the first instance as a Judge of the Supreme Court. The
right to know is not a fundamental right but at best it is an C
implicit fundamental right and it is hedged in with the implicit
fundamental right to privacy that all people enjoy. The balance
between the two implied fundamental rights is difficult to maintain,
but the 99'h Constitution Amendment Act and the NJAC Act do
not even attempt to consider, let alone achieve that balance." 152
D
(emphasis supplied)
87. A comprehensive analysis of precedent has been· necessary
because it indicates the manner in which the debate on the existence of
a constitutional right to privacy has progressed. The content of the
constitutional right to privacy_and its limita\ions have proceeded on a
case to case basis, each precedent seeking to build upon and follow the E
previous formulati,ons. The doctrinal foundation essentially rests upon ·
the trilogy of M P Sharma - Kharak Singh - Gobind upon which
subsequent decisions including those in Rajagopal, PUCL, Canara
Bank, Selvi and NALSA have contributed. Reconsideration of the
doctrinal basis cannot be complete without evaluating what the trilogy of F
cases has decided.
88. MP Sharma dealt with a challenge to a search on the ground
that the statutory provision whicli. authorized it, violated the guarantee
against self-incrimination in Article 20(3). In the absence of a specific
provision like the Fourth Amendment to the US Constitution in the Indian G
Constitution, the Court answered the challenge by its ruling that an
individual who is subject to a search during the course of which material
is seized does not make a voluntary testimonial statement of the nature
that would attract Article 20(3). The Court distinguished a compulsory
m Ibid, at page 676 (para 953)
H
710 SUPREME COURT REPORTS [2017] 10 S.C.R.

A search from a voluntary statement of disclosure in pursuance of a notice
issued by an authority to produce documents. It was the former category
that was held to be involved in a compulsive search, which the Court
held would not attract the guarantee against self-incrimination. The
judgment, however, proceeded further to hold that in the absence of the
right to privacy having been enumerated in the Constitution, a provision
B
like the Fourth Amendment to the US Constitution could not be read into
our own. The observation in regard to the absence of the right to privacy
in our Constitution was strictly speaking, not necessary for the decision
of the Court in MP Sharma and the observation itself is no more than a
passing observation. Moreover, the decision does not adjudicate upon
C whether privacy could be a constitutionally protected right under any
other provision such as Article 21 or under Article 19.
89. Kharak Singh does not contain a reference to M P Sharma.
The decision of the majority in Kharak Singh is essentially divided into
two parts; the first dealing with the validity of a regulation for nocturnal
D domiciliary visits (which was struck down) and the second dealing with
the rest of the regulation (which was upheld). The decision on the first
part, which dealt with Regulation 236(b) conveys an inescapable
impression that the regulation invaded the sanctity of the home and was
a violation of ordered liberty. Though the reasoning of the Court does
not use the expression 'privacy', it alludes to the decision of the US
E Supreme Court in Wolfv Colorado, which deals with privacy. Besides,
the portion extracted in the judgment has a reference to privacy specifically
at two places. While holding domiciliary visits at night to be invalid, the
Court drew sustenancefrom the right to life under Article 21 which means
something more than a mere animal existence. The right under Article
F 21 includes the enjoyment of those faculties which render the right
meaningful. Hence, the first part of the decision in Kharak Singh
represents an amalgam of life, personal liberty and privacy. It protects
interests which are grounded in privacy under the rubric of liberty. The
difficulty in construing the decision arises because in the second part of
its decision, the majority upheld the rest of the regulation and observed
G (while doing so) that there is an absence of a protected right to privacy
under the Constitution. These observations in the second part are at
variance with those dealing with the first. The view about the absence
of a right to privacy is an isolated observation which cannot coexist with
the essential determination rendered on the first aspect of the regulation.
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 711
[DR. D. Y. CHANDRACHUD, J.].

Subsequent Benches of this Court in the last five decades and more, A
have attempted to make coherent doctrine out of the uneasy coexistence
between the first and the second parts of the deci.sion in Kharak Singh.
Several of them rely on the protection of interests grounded in privacy in
the first part, under the conceptual foundation of ordered liberty.
90. Gobind proceeded on the basis of an assumption and explains B
what according to the Court would be the content of the right to privacy
if it is held to be a constitutional right. Gobind underlines that the right
would be intrinsic to ordered liberty and would cover intimate matters
such as family, marriage and procreation. Gobind, while recognizing
that the right would not be absolute and would be subject to the regulatory
powerof the State, conditioned the latter on the existence of a compelling C
state interest. The.decision also brings in the requirement of a narrow
tailoring of the regulation to meet the needs of a compelling interest. The
Bench which decided Gobind adverted to the decision in Kharak Singh
(though not MP Sharma). Be that as it may, Go bind has proceeded on
the basis of an assumption that the right to privacy is a constitutionally l)
protected right in India. Subsequent decisions of this Court have treated
the formulation of a right to privacy as one that emerges out of Kharak
Singh or Gobind (or both). Evidently, it is the first part of the decision in
Kharak Singh which is construed as having recognized a constitutional
entitlement to privacy without reconciling the second part which contains
a specific observation on the absence of; protected constitutional right E
to privacy in the Constitution. Succeeding Benches of smaller strength
were not obviously in a position to determine the correctness of the MP
Sharma and Kharak Singh formulatiqns. They had to weave a
jui-isprudei1ce of privacy as new challenges emerged from a variety of
sources: wire-tapping, narco-analysis, gender based identity, medical F
information, informational autonomy and other manifestations of privacy.
As far as the decisions following upon Gobind are concerned, it does
emerge that the assumptions which find specific mention in several parts
of the decision were perhaps not adequately placed in perspective.
Gobind has been construed by subsequent Benches as affirming the
right to privacy. G
91. 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. In addition, India's commitment to a world order founded on respect
, H
712 SUPREME COURT REPORTS (2017] 10 S.C.R.

A for human rights has been noticed along with the specific articles of the
UDHR and the ICCPR which embody the right to privacy. 15:1 In the
view of this Court, international law has to be construed as a part of
domestic law in the absence of legislation to the contrary and, perhaps
more significantly, the meaning of constitutional guarantees must be
illuminated by the content of international conventions to which India is
B
a party. Consequently, as new cases brought new issues and problems
before the Court, the content of the right to privacy has found elaboration
in these diverse contexts. These would include telephone tapping
·(PUCL), prior restraints on puf:Jlication of material on a death row convict
(Rajagopal), inspection and search of confidential documents involving
c the banker - customer relationship (Canara Bank), disclosure of HIV
status (Mr X v Hospital Z), food preferences and animal slaughter
(Hinsa Virodhak Sangh), medical termination of pregnancy
(SuchitaSrivastava), scientific tests in criminal investigation (Selvi),
disclosure of bank accounts held overseas (Ram .Jcthmalani) and the
D rightoftransgenders (NALSA). Early cases dealt with police regulations
authorising intrusions on liberty, such as surveillance. As Indian society
has evolved, the assertionofthe right to privacy has been considered by
this Court in varying contexts replicating the choices and autonomy of
the individual citizen. 92. The deficiency, however, is in regard to a doctrinal
formulation of the basis on which it can be determined as to whether the
E right to privacy is constitutionally protected.MP Sharma need not have
answered the quesJion; Kharak Singh dealt with it in a somewhat
inconsistent formulation while Gobind rested on assumption. M P
Sharma being a decision of eight judges, this Bench has been called
upon to decide on the objection of the Union oflndia to the existence of
such a right in the first place.
F
I The Indian Constitution
Preamble
93. The Preamble to the Constitution postulates that the people of
India have resolved to constitute India into a Republic which (among
G other things) is Sovereign and Democratic and to secure to all its citizens:
"JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship; .
'"See Rishika Taneja and Sidhant Kumar, Privcicy Lmv: Principles, lnj1111ctio11s tmd
Compensation, Eastern Book Company (2014), for a comprehensive account on the
H right to privacy an~ t;>~i"!acy laws in India. - ·
JtJSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 713
[DR. D. Y. CHANDRACHUD, J.] ,

EQUALITY of status and of opportunity; and to promote among A
them all
FRATERNITY assuring the dignity of the individual and the unity
of the Nation; ... "
94. In Sajjan Singh v Sfate of Rajasthan 154 , Justice Mudholkar
alluded to the fact that the Preamble to our Constitution is "not of the B
common run" as is the Preamble in a legislative enactment 'but was
marked both by a "stamp of deep deliberation" and precision. This was
suggestive, in the words of the Court, of the special significance attached
to the Preamble by the framers of the Constitution. ;,.,
95. In Kesavananda Bharati v State of Kerala 155 C ,_.
("Kesavananda Bharati"), ChiefJustice Sikri noticed that the Preamble
is a part of the Constitution. The Preamble emphasises the need to
secure to all citizens justice, liberty, equality itnd fraternity. Together
they constitute the founding faith or the blueprint of values embodied
with a sense of permanence in the constitutional document. The Preamble D
speaks of securing liberty of thought, expression, belief, faith and worship.
Fraternity is to be promoted to assure the dignity of the individual. The
individual lies at the core of constitutional focus and the ideals of justice,
liberty, equality and fraternity animate the vision of securing a dignified
existence to the individual. The Preamble envisions a social ordering in
which fundamental constitutional values are regarded as indi~pensable E
to the pursuit of happiness. Such fundamental values have also found
reflection in the foundational document of totalitarian regimes in other
parts of the world. What distinguishes India is the adoption of a democratic
way of life, founded on the rule of law. Democracy accepts differences
of perception, acknowledges divergences in ways of life, and respects F
dissent.
Jurisprudence on dignity
96. Over the last four decades, our constitutional jurisprudence
has recognised the inseparable relationship between protection of life
and liberty with dignity. Dignity as a constitutional value finds expression G
iri the Preamble. The constitutional visions.eeks the realisation of justice
(social, economic and political); liberty (of thought, expression, belief,
faith and worship); equality (as a guarantee against arbitrary treatment
154
(1965) I SCR933
"' (1973) 4 sec 225 r
H
714 SUPREME COURT REPORTS [2017] 10 S.C.R.

A of individuals) and fraternity (which assures a life of dignity to every
individual). These constitutional precepts exist in unity to facilitate a
humane and compassionate society. The individual is the focal point of
the Constitution because it is in the realisation of individual rights that
the collective well being of the community is determined. Human dignity
is an integral part of the Constitution. Reflections of dignity are found in
B
the guarantee against arbitrariness (Article 14), the lamps of freedom
(Article 19) and in the right to life and personal liberty (Article 21).
97. In Prem Shankar Shukla v Delhi Administration 156, which
arose from the handcuffing of the prisoners, Justice Krishna Iyer, speaking
C for a three-judge Bench of this Court held:
" ... the guarantee of human dignity, which forms part of our
constitutional culture, and the positive provisions of Articles 14,
19 and 21 spring into action when we realise that to manacle man
is more than to mortify him; it is to dehumanize him and, therefore,
to violate his very personhood, too often using the mask of
D 'dangerousness' and security ... 157
The Preamble sets the humane tone and temper of the Founding
Document and highlights Justice, Equality and the dignity of the
individual. 158"

E 98. A Bench of two judges in Francis Coralie Mullin v Union
Territory of Delhi 159("Francis Coralie") while construing the
entitlement of a detenue under the Conservation of Foreign Exchange
and Prevention of Smuggling Activities (COFEPOSA) Act, 1974 to have
an interview with a lawyer and the members of his family held that:

F "The fundamental right to life which is the most precious human
right and which forms the ark of all other rights must therefore be
interpreted in a broad and expansive spirit so as to invest it with
significance and vitality which may endure for years to come and
enhance the dignity'ofthe individual and the worth of the human
person ... 160
G
... the right to life enshrined in Article 21 cannot be restricted to
" 0 980) 3 sec 526
6

m Ibid, at pages 529-530 (para I)
"'Ibid, at page 537 (para 21)
5
' ' o o
98 1 sec 608
''°Ibid, at page 618 (para 6)
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 715
[DR. D. Y. CHANDRACHUD, J.]

. mere animal existence. It means something much more than just A
physical survival. 161
... We think that the right to life includes the right to Jive with
human dignity and all that goes along with it, namely, the bare
necessaries oflife such as adequate nutrition, clothing and shelter
and facilities for reading, writing and expressing one-self in diverse B
forms, freely moving about and mixing and commingling with fellow
human beings ... Every act which offends against or impairs human
dignity would constitute deprivation pro tanto of this right to live
·and it would have to be in accordance with reasonable, fair and
just procedure established by law which stands the test of other C
fundamental rights ... 162 "
99. In Bandhua Mukti Morcha v Union of India 163 , a Bench
of three judges of this Court while dealing with individuals who were
Ii ving in bondage observed that:
" ... This right to live with human dignity enshrined in Article 21 D
. derives its life breath from the Directive Principles of State Policy
and particularly Clause (e) and (f) of"Article 39 and Arts. 41 and
42 and at the least, therefore, it must include protection of the
health and strength of the workers, men and women, and of the
tender age of children against abuse, opportunities and facilities
for children to develop in a healthy manner and in conditions of E
freedom and dignity; educational facilities, just and humane
conditions of work and maternity relief. These are the minimum
requirements which must exist in order to enable a person to live
with human dignity, and nor State - neither the Central Government
- has the right to take any action which will deprive a person of F
the enjoyment of these basic essentials." 164
100. Dealing with an allegation that activists of an organization
were arrested and paraded throughout the town by the police and were
· beaten up in police custody, this Court in Khedat Mazdoor Chctna·
Sangath v State of M P 165 held that:. G
11
6 Ibid, at page 618 (para 7).
162 Ibid, at pages 618-619 (para 8)
163 (1984) 3 sec 161
164 Ibid, at page 183 (para 10)

"' (1994>6 sec 260
H
716 SUPREME COURT REPORTS [2017] lOS.C.R.

A "It is, therefore, absolutely essential in the interest ofjustice, human
dignity and democracy that this Court must intervene; order an
investigation determine the correct facts and take strongest possible
action against the respondents who are responsible for these
atrocities ... 166
B If dignity or honor vanishes what remains of life. 167 "
101. Human dignity was construed in M Nagaraj v Union of
India 168 by a Constitution Bench of this Court to be intrinsic to and
inseparable from human existence. Dignity, the Court held, is not
something which is conferred and which can be taken away, because it
C is inalienable:
"The rights, liberties and freedoms of the individual are not only to
be protected against the State, they sh~uld be facilitated by it ... It
is the duty of the State not only to protect the human dignity
but to facilitate it by taking positive steps .in that direction.
D No exact definition of human dignity exists. It refers to the
intrinsic value of every human being, which is to be
respected. It cannot be taken away. It cannot give. It simply
is. Every human being has dignity by virtue of his
existence ... 169
E India is constituted into a sovereign, democratic republic to secure
to all its citizens., fraternity assuring the dignity of the individual
and the unity of the nation. The sovereign, democratic republic
exists to promote fraternity and the dignity of the individual citizen
and to secure to the citizens certain rights. This is because the
objectives of the State can be realized only in and through the
F individuals. Therefore, rights conferred on'citizens and non-citizens
are not merely individual or personal rights. They have a large
social and political content, because the objectives of the
Constitution cannot be otherwise realized. 170" (emphasis supplied)
102. In Maharashtra University of Health Sciences v
G Satchikitsa Prasarak Mandal 171 , this Court held that the dignity of the
166 Ibid, at pages 262-263 (para I 0)
167
Ibid, at pages 271 (para 37)
168 (2006) 8 sec 212
169
Ibid, at page 243-244 (para 26)
""Ibid, at pages 247-248 (para 42)
H 111
c2010) 3 sec 786
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 717
[DR. D. Y. CHANDRACHUD, J.]

individual is a core constitutional concept. In Selvi, this Court recognised A
that:
" ... we must recognize that a forcible intrusion into a person's
mental processes is also an affront to human dignity and liberty,
oftln with grave and Jong-lasting consequences ... " 172 •

I 03. In Dr Mehrnood Nayyar Azarn v State of Chhattisgarh 173 , B
this Court noted that when dignity is lost, life goes into oblivion. The
same emphasis on dignity finds expression in the decision in NALSA.
104. The same principle was more recently reiterated in Shabnarn
v Union oflndia 174 in the following terms:
c
"This right to human dignity has many elements. First and foremost,
human dignity is the dignity of each human being 'as a human
being'. Another element, which ileeds to be highlighted, in the
context of the present case, is that human dignity is infringed if a
person's life, physical or mental welfare is alarmed. It is in this
sense torture, humiliation, forced labour, etc. all infringe on human D
dignity. It is in this context many rights of the accused derive from
. his dignity as a human being." 175
105. The recent decision in J eeja Ghosh v Union of
lndia 176Gonstrued the constitutional protection afforded to human dignity..
The Court observed: E
" .•. human dignity is a constitutional value anda constitutional goal.
What are the dimensions of constitutional value of human dignity?
It is beautifully illustrated by Aharon Barak 177 (former Chief
Justice of the _Supreme Court of Israel) in the following manner:
F
"The constitutional value of human dignity has a central
normative role. Human dignity as a constitutional value is the
factor that unites the human rights into one whole. It ensures
the normative unity of human rights. This normative unity is
expressed in the three ways: first, the value of human dignity
serves as a normative basis for constitutional rights set out in· G
172 Ibid, at page 376 (para 244) --
173(2012) s sec 1
"'(2015) 6sec102
mrbid;at page 713 (para 14)
11
• c2016J 7 sec 761
177
Aharon Barak. H11111a11 Dignity- The Co11stit11tional Value cmd the Constitutional.
Right, Cambridge University Press (2015) · H
718 SUPREME COURT REPORTS · [2017] 10 S.C.R.

A the constitution; second, it serves as an interpretative principle
for determining the scope of constitutional rights, including the
right to human dignity; third, the value of human dignity has an
important role in determining the proportionality of a statute
limiting a constitutional right." 178
B 106. Life is precious in itself. But life is worth living because of
the freedoms which enable each individual to live life as it should be
lived. The best decisions on how life should be lived are entrusted to the
individual. They are continuously shaped by the social milieu in which
individuals exist. The duty of the state is to safeguard the ability to take
decisions - the autonomy of the individual - and not to dictate those
C decisions. 'Life' within the meaning of Article 21 is not confined to the
integrity of the physical body. The right comprehends one's being in its
fullest sense. That which facilitates the fulfilment of life is as much
within the protection of the guarantee of life.
107. To live is to live with dignity. The dmftsmen of the Constitution
D defined their vision of the society in which constitutional values would
be attained by emphasising, among other freedoms, liberty and dignity.
So fundamental is dignity that it permeates the core of the rights
guaranteed to the individual by Part III. Dignity is the core which unites
the fundamental rights because the fundamental rights seek to achieve
E for each individual the dignity of existence. Privacy with its attendant
values assures dignity to the individual 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 value which the protection oflife
and liberty is intended to achieve.
F Fundamental Ri~hts cases
108. In Golak Nath v State of Punjabm, there was a challenge
to the Punjab Security of Land Tenures Act, 1953 and to the Mysore
Land Reforms Act (as amended) upon their inclusion in the Ninth
Schedule to the Constitution.
G Chief Justice Subba Rao dwelt on the rnle of law and its purpose
in ensuring that every authority constituted by the Constitution is subject
to it and functions within its parameters. One of the purposes of
constraining governmental power was to shield the fundamental freedoms
178
Supra Note 176, at page 792 (para 37)
'"' (1967) 2 SCR 762
H
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF.INDIA 719
[DR. D. Y. CHANDRACHUD, J.]

against legislative majorities. This thought is reflected in the following A
extract from the judgment of Chief Justice Subba Rao:
" ... But, having regard to the past history of our country, it could
not implicitly believe the representatives of the people, for
uncontrolled and unrestricted power might lead to an authoritarian
State. It, therefore, preserves the natural rights against the B
State encroachment and constitutes the higher judiciary of
the State as the sentinel of the said rights and the balancing
wheel between the rights, subject to social control. In short, the
fundamental rights, subject to social control, have been
incorporated in the rule of law ... " 180 (emphasis supplied)
c
The learned Judge emphasised the position of the fundamental
right~ thus:

" ... They are the rights of the people preserved by our Constitution.
"Fundamental Rights" are the modern name for what have
been traditionally known as "natural rights". As one author D
puts: "they are moral rights which every human being everywhere
all times ought to have simply because of the fact that in
contradistinction with other things is rational and moral". They
are the primordial rights necessary for the development of human
personality. They are the rights which enable a man to chalk out
of his own life in the manner he likes best... " 181 E
(emphasis supplied)
The fundamental rights, in other words, are primordial rights which
have traditionally been regarded as natural rights. In that character these
· rights are inseparable from human existence. 111ey have been preserved
by the Constitution, this being a recognition of their existence even prior F
to the constitutional document.·
109. In Kesavaminda Bharati, a Bench of 13 judges consfllered
the nature of the amending power conferred by Article 368 and whether
the exercise of the amending power was subject to limitations in its
curtailment of the fundamental freedoms. Chief Justice Sikri held that G
the fundamental rights are inalienable. In his view, the Universal
Declaration of Human Rights had to be utilised to interpret the Constitution
having regard to the mandate of Article 51. India, having acceded to the
180
Ibid, at page 788
181 Ibid, at page 789 · H
720 SUPREME COURT REPORTS [2017] IO S.C.R.

A Universal Declaration, Sikri, C.J. held that the treatment of rights as
inalienable must guide the interpretation of the Court. The Chief Justice
relied upon a line of precedent holding these rights to be natural and
inalienable and observed:
"300. Various decisions of this Court describe fundamental rights
B as 'natural rights' or 'human rights'. Some of these decisions are
extracted below:
"There can be no doubt that the people of India have in exercise
/ of their sovereign will as expressed in the Preamble, adopted the
democratic ideal, which assures to the citizen the dignity of the
c- individual and other cherished human values as a means to the
full evolution and expression of his personality, and in delegating
to the legislature, the executive and the judiciary their respective
powers in the Constitution, reserved to themselves certain
fundamental rights so-called, I apprehend because they have been
retained by the people and made paramount to the delegated
D powers, as in the American Model. (Per Patanjali Sastri, J.,
in Gopalan v. State of Madras. [AIR 1950 SC 27: 1950 SCR 88,
198-199: 19:50SCJ174] (Emphasis supplied).
(ii) ''That article (Article 19) enumerates certain freedoms under
the caption 'right to freedom' and deals with those great and
E basic rights which are recognised and guaranteed as
the natural rights inherent in the status of a citizen of a free
country. (Per Patanjali Sastri, C J., in State of Wesr
Bengal v. Subodh Gopal Bose [AIR 1954SC 92: 1954 SCR587,
596: 1954SCJ127]) (Emphasis supplied).
F "I have no doubt that the framers of our Constitution drew the
same distinction and classed the natural right or capacity of a citizen
'to acquire, hold and dispose of property' with other nanlral
rights and freedoms inherent in the status of a free citizen and
embodied them in Article 19(1) ... (ibid, p. 597)" (Emphasis
G supplied).
"For all these reasons, I am of opinion-that under the scheme of
the Constitution, all those broad and basic freedoms inherent in
the status of a citizen as a free man are embodied and protected
from invasion by the State under clause (1) of Article 19 ... " (ibid,
p. 600) (Emphasis supplied).
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 721
[DR. D. Y. CHANDRACHUD, J.]

(iii) "The people, however, regard certain rights as A
paramount, because they embrace liberty of action to the
individual in matters of private life, social intercourse and
share in the Government of the country and other spheres.
The people who vested the three limbs of Government with their
power and authority, at the same time kept back these rights of B
citizens and also some times of non-citizens, and made
them inviolable except under certain conditions. The rights thus
kept back are placed in Part III of the Constitution, which is headed
'Fundamental Rights', and the conditions under which these rights
can be abridged are also indicated in that Part. (Per Hidayatullah,J.
in Ujjambai v. State of U.P. [(1963) 1 SCR 778, 926-27 : AIR C
1962 SC 1621]) (Emphasis supplied).
301. The High Court Allahabad has described them as follows: .
"(iv), .. man has certain natural or inalienable rights and that
it is the function of the State, in order that human liberty
might be preserved and human personality developed, to D
give recognition and free play to those rights ... suffice it to
say that they represent a trend in the democratic thought of our
age. (Motilal v. State of U.P.)" (Emphasis supplied)." 182
This was the doctrinal basis for holding that the fundamental rights
could not be "amended out of existence". Elaborating all those features E .
of the Constitution whichJormed a part of the basic structure, Sikri, CJ
held that:
"The learned Attorney-General said that every provision of the
Constitution is essential; otherwise it would not have been put in
the Constitution. This is true. But this does not place every provision · F
of the Constitution in the same position. The true position is that
every provision of the Constitution can be amended provided in
the result the basic foundation and structure of the Constitution
.remains the same. The basic structure may be said to.consist of
the following features: a
(1) Supremacy of the Constitution;
(2) Republican and Democratic form of Government;
~. (3) Secular character of the Constitution;
182 Supra note 155, at page 367-368 (para 300)
H
722 SUPREME COURT REPORTS (2017] 10 S.C.R.

A (4) Separation of powers between the legislature, the executive
and the judiciary;
(5) Federal character of the Constitution."' 83
Justices Shelat and Grover held that "[t)he dignity of the individual
secured by the various freedoms and basic rights in Part III and the
B mandate to build a welfare State contained in Part IV" 184 constituted a
part of the basic structure.
Justices Hegde and Mukherjea emphasised that the primary object
before the Constituent Assembly were: (i) to constitute India into a
sovereign, democratic republic and (ii) to secure its citizens the rights
c mentioned in it. Hence, the learned Judges found it impossible to accept
that the Constitution makers would have made a provision in the
Constitution itself for the destruction of the very ideals which they had
embodied in the fundamental rights. Hence, Parliament had no power to
abrogate the fundamental features of the Constitution including among
D them "the essential features of the individual freedoms secured to the
citizens".
"On a careful consideration of the various aspects of the case,
we are convinced that the Parliament has no power to abrogate
or emasculate the basic elements or fundamental features of the
E Constitution such as the sovereignty of India, the democratic
character of our polity, the unity of the country, the essential
features of the individual freedoms secured to the citizens.
Nor has the Parliament the power to revoke the mandate to build
a welfare State and egalitarian society. These limitations are only
illustrative and not exhaustive. Despite these limitations, however,
F there can be no question that the amending power is a wide power
and it reaches every Article and every part of the Constitution.
That power can be used to reshape the Constitution to fulfil the
obligation imposed on the State. It can also be used to reshape the
Constitution within the limits mentioned earlier, to make it an
G
effective instrument for social good. We are unable to agree
with the contention that in order to build a welfare State, it
is necessary to destroy some of the human freedoms. That,
at any rate is not the perspective of our Constitution. Our
Constitution envisages that the State should without delay
183
Ibid, at page 366 (para 292)
H ''"'Ibid, at page 454 (para 582)
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 723
[DR. D. Y. CHANDRACHUD, J.]

make available to all the citizens of this country the real A
benefits of those freedoms in a democratic way. Human
freedoms are lost gradually and imperceptibly and their destruction
is generally followed by authoritarian rule. That is what hisiory
has taught us. Struggle between liberty and poV.:er is eternal.
Vigilance is the price that we like every other democratic society B
have to pay to safeguard the democratic values enshrined in our
Constitution. Even the best of Governments are not averse to
have more and more power to carry out their plans and programmes
which they may sincerely believe to be in public interest. But a
freedom once lost is hardly ever regained except by revolution.
Every encroachment on freedom sets a pattern for further C
encroachments. Our constitutional plan is to eradicate poverty
without destruction of individual freedoms." 185 (emphasis
supplied)
Justice Jaganmohan Reddy held that:
" ... Parliament cannot under Article 368 expand its power of D
amendment so as to confer on itself the power to repeal, abrogate
the Constitution or damage, emasculate or destroy any of the
fundamental rights or essential elements of the basic structure of
the Constitution or of destroying the identity of the
Constitution ... " 186 E
Justice Khanna in the course of the summation of his conclusions
held, as regards the power of amendment, that:
"The power of amendment under Article 368 does not include the
power to abrogate the Constitution nor does it include the power
to alter the basic structure or framework of the Constitution. F
Subject to the retention of the basic structure or framework of
the Constitution, the power of amendment is plenary and includes
within itself the power to amend the various articles of the
Constitution, including those relating to fundamental rights as well
as those which may be said to relate to essential features. No G
part of a fundamental right can claim immunity from amendatory
process by being described as the essence, or core of that right.
The power of amendment would also include within itself the power

'"Ibid, at pages 486-487 (para 666)
186Ibid, at page 666 (para 1212) H
724 SUPREME COURT REPORTS (2017] 10 S.C.R.

A to add, alter or repeal the various articles.'' 187
Significantly, even though Justice Mathew was in the minority,
the learned Judge in the course of his decision observed the importance
of human dignity:
"The social nature cf man, the generic traits of his physical and
B mental constitution, his sentiments ofjustice and the morals within,
his instinct for individual and collective preservations, his desire
for happiness, his sense of human dignity, his consciousness of
man's station and purpose in life, all these are not products of
fancy but objective factors in the realm of existence ... " 188
c 110. In Indira Nehru Gandhi v Raj Narain 18v, Justice Khanna
clarified that his view in Kesavananda Bharati is that Parliament in
the exercise of its power to amend the Constitution cannot destroy or
abrogate the basic structure of the Constitution. No distinction was made
in regard to the scope of the amending power relating to the provisions
D of the fundamental rights and in respect of matters other than the
fundamental rights:
" ... The limitation inherent in the word "amendment" according to
which it is not permissible by amendment of the Constitution to
change the basic structure of the Constitution was to operate
E equally on articles pertaiiiing to fundamental rights as on other
articles not pertaining to those rights ... " 1'Xl
Justice Khanna noted that the right to property was held by him
not to be a part of the basic structure. Justice Khanna observed that it
would have been unnecessary for him to hold so, if none of the
F fundamental rights were to be a part of the basic structure of the
Constitution.
111. Chandrachud C J, in the course of his judgment for the
Constitution Bench in Minerva Mills Ltd v Union of India ivi, traced
the history of the evolution of inalienable rights, founded in inviolable
G liberties, during the course of the freedom movement and observed that
both Parts III and IV of the Constitution had emerged as inseparably
187
Ibicl, at page 824 (para 1537(vii))
188
Ibid, at pages 866-867 (para 1676)
"''(1975) 1 Suppl. sec 1
1'° Ibid, at page 115 (para 251)

H .. , (1980) 3 sec 625 •
JUSTICE K S PUITASWAMY (RETD.) v. UNION OF INDIA 725
[DR. D. Y. CHANDRACHUD, J.]

inter-twined, without a distinction between the negative and positive A
obligations of the state.
The Constitution, in this view, is founded on "the bedrock of the ·
balance between Parts III and JV" and to give absolute primacy to one
over the other would be to disturb the harmony of the Constitution. In
the view of the Chief Justice: B
"The edifice of out Constitution is built upon the concepts
crystallised in the Preamble. We resolved to constitute ourselves
into a Socialist State which carried with it the obligation to secure
to our people justice-social, economic and political. We, therefore,
put Pait IV into our Constitution containing directive principles of c
State policy which specify the socialistic goal to be achieved. We
promised to our people a democratic polity which carries with it
the obligation of securing to the people liberty of thought, expression,
belief, faith and worship; equality of status and of opportunity and
the assurance that the dignity of the individual will at all costs be
preserved. We, therefore, put Part III in our Constitution conferring D
those rights on the people ... "192
Articles 14 and 19, the Court held, confer rights essential for th!!
proper functioning of a democracy and are universally so regarded by
the Universal Declaration of Human Rights. Withdrawing the protection
.ofArticles 14and19 was plainly impermissible and the immunity granted E
by the 42"d Amendment to the Constitution fo a law against the challenge
. that it violates Articles 14 or 19 (if the law is for giving effect to the
Directive Principles) amounted to a violation of the basic structure.
No waiver of Fundamental Rights
F
112. In Behram Khurshed Pesikaka v The State of
Dombay 193 , Chief Justice Mahajan, speaking for the Constitution Bench,
noted the link between the constitutional vision contained in the Preamble
and the position of the fundamental rights as a means to facilitate its
fulfilment. Though Part III embodies fundamental rights, this was
construed to be part of the wider notion of securing the vision of justice G
of the founding fathers and, as amatter of doctrine, 'the rights guaranteed
were held not to be capable of being waived. Mahajan, CJ, observed:

'" Ibid, at page 654 (para 57)
"'(1955) I SCR 613
H
726 SUPREME COURT REPORTS [2017] 10 S.C.R.

A "We think that the rights described as fundamental rights are a
necessary consequence of the declaration in the Preamble that
the people oflndia have solemnly resolved to constitute India into
a sovereign democratic republic and to secure to all its citizens
justice, social, economic and political; liberty of thought, expression,
belief, faith and worship; equality of status and of opportunity.
B
These fundamental rights have not been put in the Constitution
merely for individual benefit, though ultimately they come into
operation in considering individual rights. They have been put there
as a matter of public policy and the doctrine of waiver can have
no application to provisions oflaw which have been enacted as a
c matter of constitutional policy." 194
Privacy as intrinsic to freedom and liberty
113. The submission that recognising the right to privacy is an
exercise which would require a constitutional amendment and cannot be
a matter of judicial interpretation is not an acceptable doctrinal position.
D The argument assumes that the right to privacy is independent of the
liberties guaranteed by Part III 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 lead a life of dignity by securing the inner recesses
E of the human personality from unwanted 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 freedoms which are the cornerstone of the
Constitution. To recognise the value of privacy as a constitutional
F entitlement and interest is not to fashion a new fundamental right by a
process of amendment through judicial fiat. Neither are the judges nor is
the process of judicial review entrusted with the constitutional
responsibility to amend the Constitution. But judicial review certainly
has the task before it of determining the nature and extent of the freedoms
G available to each person under the fabric of those constitutional
guarantees which are protected. Courts have traditionally discharged
that function and in the context of Article 21 itself, as we have already
noted, a panoply of protections governing different facets of a dignified
existence has been held to fall within the protection of Article 21.
H ,.,.. Ibid, at pages 653-654
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 727
[DR. D. Y. CHANDRACHUD, J.]

114. In Olga Tellis v Bombay Municipal Corporation 195 , A
Chandrachud CJ, while explaining the ambit of Artide 21 found a rationale
for protecting the right to livelihood as an incident of the right to life. For,~
as the Court held, deprivation oflivelihood would result in the abrogation
of the right to life:
"148. The sweep of the right to life conferred by Article 21 is B
wide and far-reaching.· It does riot mean merely that life cannot
be extinguished or taken away as, for example, by the imposition
and execution of the death sentence, except according to procedure
established by law. That is but one aspect of the right to life. An
equally important facet of that right is the right to livelihood because,
no person can live without the means of living, that is, the means ·C
oflivelihood. If the right to livelihood is not treated as a part of the
constitutional right to life, the easiest way of depriving a person of
. his right to life would be to deprive him of his means oflivelihood
to the point of abrogation. Such deprivation would not only denude
the life of its effective content and meaningfulness but it would D
make life impossible to live. And yet, such deprivation would not
have to be in accordance with the procedure established by law,
ifthe right to livelihood is not regarded as a part"of the right to life.
That, which alone makes it possible to live, leave aside what makes
life liveable, must be deemed to be an integral component of the
right to life. Deprive a person of his right to livelihood and you E
shall have deprived him of his life ... ''. 196
115. In Unnikrishnan v State of Andhra Pradesh 197 , Justice
Jeevan Rerldy, speaking for this Court, held that though the right to
education (as the Constitution then stood) was not "stated expressly as
a fundamental right" in Part III, that would not militate against its being F
protected under the rubric oflife under Article 21. These decisions have
been ultimately guided by the object of a Constitutional Court which
must be to expand the boundaries of fundamental .human freedoms rather
than to attenuate their content through a constricted judicial interpretation
In Maneka; it h<ls been stated that: G
"The attempt of the court should be to expand the reach and .
ambit of the fundamental rights rather than attenuate their meaning
'" (1985) 3 sec 545
196
Ibid. at page 572 (para 32)
'" (1993) 1 sec 645 H
728 SUPREME COURT REPORTS (2017] IO S.C.R.

A and content by process of judicial construction ...
"personal liberty" in Article 21 is of the widest amplitude." 198
I 16. Now, would this Court in interpreting the Constitution freeze
the content of constitutional guarantees and provisions to what the
founding fathers perceived? The Constitution was drafted and adopted
B in a historical context. The vision of the founding fathers was enriched
by the histories of suffering of those who suffered oppression and a
violation of dignity both here and elsewhere. Yet, it would be difficult to
dispute that many of the problems which contemporary societies face
would not have been present to the minds of the most perspicacious
c draftsmen. No generation, including the present; can have a monopoly
over solutions or the confidence in its ability to foresee the future. As
society evolves, so must constitutional doctrine. The institutions which
the Constitution has created must adapt flexibly to meet the challenges
in a rapidly growing knowledge economy. Above all, constitutional
interpretation is but a process in achieving justice, liberty and dignity to
D every citizen.
117. Undoubtedly, there have been aberrations. In the evolution
of the doctrine in_ India, which places the dignity of the individual and
freedoms and liberties at the forefront, there have been a few discordant
notes. Two of them need attention.
E
Discordant Notes
(i) ADM Jabalpur
118. In ADM Jabalpur v Shivakant Shukla 1•J 9 ("ADM
Jabalpur"), the issue before this Court was whether an order issued by
F the President under Article 359(1) of the Constitution suspends the right
of every person to move any Court for the enforcement of the right to
personal liberty under Article 21 upon being detained under a law providing
for preventive detention. The submission of the detenues in this Court
was that the suspension of the remedy to enforce Article 21 does not
G aufomatically entail suspension of the right or the rule of law and that
even during an emergency the rule of law could not be suspended. A
majority of four judges of this Court (Justice H R Khanna dissenting)
held that:
'"' Maneka (Sup'ra note 5), at page 280 {para 5)
'"' 0 976) 2 sec 521
H
. JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 729
[DR. D. Y. CHANDRACHUD, J.]

"Liberty is confined and controlled by law, whether common law A
or statute. It is in the words of Burke a regulated freedom. It is
not all'abstract or absolute freedom. The safeguard ofliberty is in
the good sense of the people and in the system of representative
and responsible government which has been evolved. If
extraordinary powers are given, they are given because the B
emergency is extraordinary, and are limited to the period of the
emergency." 200
Dealing with the issue as to whether Article 21 is the sole
repository' of the right to life, Ray CJ, observed that where any right -
which existed before the commencement of the Constitution has .been
incorporated in Part III, the common law right would not exist under the c
.Constitution. In a concurring judgment Justice Beg held that while
adopting the Constitution, there was a notional surrender by the p!(ople
of India of the control over these rights to a sovereign republic and it is
only the Constitution which is supreme and which can confer rights and
powers. There was, in this view, a notional surrender of individual D
freedom. Justice Beg held that:
"The whole object of guaranteed fundamental rights is to make
those basic aspects of human freedom, embodied in fundamental
rights, more secure than others not so selected. In thus recognising
and declaring certain basic aspects of rights as fundamental by E
the Constitution of the country, the purpose was to protect them
against undue encroachments upon them by the legislative, or
executive, and, sometimes even judicial (e.g. Article 20) organs
of the State. The encroachment must remain within permissible
limits and must take place only in prescribeo modes. The intention
could never be to preserve something concurrently in the F
field of natural law or common law. It was to exclude all
other control or to make the Constitution the sole repository
of ultimate control over those aspects of human freedom
which were guaranteed there." 201 (emphasis supplied) ·
A similar position was adopted by Justice Chandrachud: G

· "The right to personal liberty has no hallmark and therefore
when the right is put in action it is impossible to ident~fy
whether the right is one given by the Constitution or is
200
Ibid, at page 571 (para 33)
· . '"'Ibid, at page 604 (para 1~3) H
730 SUPREME COURT REPORTS [2017] 10 S.C.R.

A one which existed in the pre-Constitution era. If the argument
of the respondents is correct, no action to enforce the right to
personal libe1ty can at all fall within the mischief of the Presidential
Order even if it mentions Articles 19, 20, 21 and 22 because,
every preliminary objection by the Government to a petition to
enforce the right to personal liberty can be effectively answered
B
by contending that what is being enforced is either the natural
right to personal liberty or generally, the pre-Constitution right to
personal liberty. The error of the respondents argument lies
in its assumption, and in regard to the argument of some of
the counsel in its major articulate premise, that. the
c qualitative content of the non-constitutional or pre-
constitutional right to personal liberty is different from the
content of the right to personal liberty conferred by Part
III of the Constitution ... "202 (emphasis supplied)
In his view:
D "It therefore does not make any difference whether any right to
personal liberty was in existence prior to the enactment of the
Constitution, either by way of a natural right, statutory right,
common law right or a right availa]~.Je under the Jaw of torts.
Whatever may be the source of the right and whatever may be its
E jurisdiction, the right in essence and substance is the right to personal
liberty. That right having been included in Part III, its enforcement
will stand suspended if it is mentioned in the Presidential Order
issued under Article 359(1)."203
.Justice Bhagwati held as follows:
F "Now, to my mind, it is clear that when this principle ofrule oflaw
that the Executive cannot deprive a person of his liberty except
by authority oflaw, is recognised and embodied as a fundamental
right and enacted as such in Article 21, it is difficult to comprehend
how it could continue to have a distinct and separate existence,
G independently and apart from this article in which it has been
given constitutional vesture. I fail to see how it could continue in
force under Article 372 ·when it is expressly recognised and
embodied as a fundamental right in Article 21 and finds a place in
202 Ibid, at page 664 (para 379)
203 Ibid, at page 666 (para 383)
H
JUSTICE KS PUTIASWAMY (RETD.) v. UNION OF INDIA 731
[DR. D. Y. CHANDRACHUD, J.]

the express provisions of the Constitution. Once this principle A
is recognised and incorporated in the Constitution and
forms part of it, it could not have any separate existence
apart from the Constitution, unless it were also enacted as
a statutory principle by some positive law of the State ... " 204
(emphasis supplied) B
In his view, it is the Constitution which is supreme and if it ordains
that a person who is detained otherwise than in accordance with law
would not be entitled to enforce the right of personal liberty, the Court
was duty bound to give effect to it: .
" .. .it cannot be overlooked that, in the ultimate analysis, the . c
protection of personal liberty and the supremacy. of law which
sustains it must be governed by the Constitution itself. The
CIJilStitution is the paramount and supreme law of the land and if
it says that even if a person is detained otherwise than in
accordance with the law. he shall not be entitled to enforce his
right of personal liberty, whilst a Presidential Order under Article D
359, clause (1) specifying Article 21 is in force, I have to give
effect to it. Sitting as I do, as a Judge under the Constitution, I
cannot ignore the plain and emphatic command of the Constitution
for what I may consider· to be necessary to meet the ends of
justice. It is said that law has the feminine capacity to tempt each E
devotee to find his own image in her bosom. No one escapes
entirely. Some yield blindly, some with sophistication. Only a few
more or less effectively resist. I have always leaned in favour of
upholding personal liberty, for, I believe, it is one of the most
cherished values of mankind. Without it life would not be worth
living. It is one of the pillars of free democratic society. Men have F
readily laid down their lives at it5 altar, in order to secure it, protect
it and preserve it. But I do not think it would be right for me to
allow my love of personal liberty to cloud my vision or to persuade
me to place on the relevant provision of the Constitution a
construction which its language cannot reasonably bear. I cannot a
assume to myself the role of Plato's "Philosopher King" in order
to render what I consider ideal justice between the citizen and the
State. After all, the Constitution is the law of all laws and there .
alone judidal conscience must find its ultimate support and its
• 204 Ibid, at page 701 (para 459)
H
732 SUPREME COURT REPORTS [2017] 10 S.C.R.

A final resting place. It is in this spirit of humility and obedience to
the Constitution and driven by judicial compulsion, that I have
come to the conclusion that the Presidential Order dated June 27,
1975 bars maintainability of a writ petition for habeas corpus where
an order of detention is challenged on the ground that it is mala
fide or not under the Act or not in compliance with it." 205
B
In his dissenting opinion, Justice Khanna emphatically held that
the suspension of the right to move any Court for the enforcement ofthe
right under Article 21, upon a proclamation of emergency, would not
affect the enforcement of the basic right to life and liberty. The
Constitution was not the sole repository of the right to life and liberty:
c
"I am of the opinion that Article 21 cannot be considered to be the
sole repository of the right to life and personal libe1ty. The right to
life and personal liberty is the most precious right of human beings
in civilised societies governed by the rule of law. Many modern
Constitutions incorpornte certain fundamental rights, including the
D one relating to personal freedom. According to Blackstone, the
absolute rights of Englishmen were the rights of personal security,
personal liberty and private property. The Ame~ican Declaration
oflndependence (1776) states that all men are created equal, and
among their inalienable rights are life, liberty, and the pursuit of
E happiness ... "206
Even in the absence of Article 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:
"Even in the absence of Article 21 in the Constitution, the State
has got no power to deprive a person of his life or liberty without
the authority of law. This is the essential postulate and basic
assumption of the rule oflaw and not of men in all civilised nations.
Without such sanctity oflife and liberty, the distinction between a
lawless society and one governed by laws would cease to have
G any meaning._The principle that no one shall be deprived of his
life or liberty without the authority of law is rooted in the
consideration that life and liberty are priceless possessions which
·cannot be made the plaything of individual whim and caprice and
that any act which has the effect of tampering with life and liberty
20
' Ibid, at pages 723-724 (para 487)
206
H Ibid, at page 747 (para 525)
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 733
[DR. D. Y. CHANDRACHUD, J.]

must receive sustenance from and sanction of the laws of the A
land. Article 21 incorporates an essential aspect of that principle
and makes it part of the fundamental right5 guaranteed in Patt III
of the Constitution. It does not, however, follow from the above
that if Article 21 had not been drafted and inserted in Part III, in
that event it would have been permissible for the State to deprive B
a person of his life or liberty without the authority oflaw. No case
has been cited before us to show that before the coming into
force of the Constitution or in countries under rule of law where
there is no provision corresponding to Article 21, a claim was
ever sustained by the courts that the State can deprive a person
of his life or liberty without the authority of law ... "207 C
The remedy for the enforcement of the right to life or liberty ·
would not stand suspended even if the right to enforce Article 21 is ·
suspended:
"Recognition as fundamental right of one aspect of the pre-
constitutional right cannot have the· effect of making things less D
favourable so far as the sanctity of life and personal liberty is
concerned compared to the position if an aspect of such right had
not been recognised as fundamental right because of the
vulnerability offundainental rights accruing from Article 359 ... "208
Justice Khanna held that while wide powers to order preventive E
detention are vested in the State, there is no antithesis between the power
to detain and power of the Court to examine the legality of such a
detention:
'The impact upon the individual of the massive and comprehensive
powers of preventive detention with which the administrative F
officers are armed has to be cushioned with legal safeguards against
arbitrary deprivation of personal liberty if the premises of the rule
of law is not to lose its content and become meaningless ... "21w .
119. The judgments rendered by all the four judges constituting
the majority in ADM Jabalpur are seriously flawed. Life and personal G
liberty are inalienable to human existence. These rights are, as
recognisedin Kesavananda Bharati, primordial rights. They constitute
207 Ibid~ at pages 749-750 (para 530)
208
Ibid, at page 751 (para 531)
209 Ibid, page 767 (para 574)
H
734 SUPREME COURT REPORTS [2017] IO S.C.R.

A rights under natural law. The human element in the life of the individual
is integrally founded on the sanctity of life. Dignity is associated with
liberty and freedom. No civilized state can contemplate an encroachment
upon life and personal liberty without the authority of law. Neither life
nor liberty are bounties c9nferred by the state nor does the Constitution
create these rights. The right to life has existed even before the advent
B
of the Constitution. In recognising the right, the Constitution does not
become the sole repository of the right. It would be preposterous to
suggest that a democratic Constitution without a Bill of Rights would
leave individuals governed by the state without either the existence of
the right to live or the means of enforcement of the right. The right to life
c being inalienable to each individual, it existed prior to the Constitution
and continued in force under Article 372 of the Constitution. Justice
Khanna was clearly right in holding that the recognition of the right to
life and personal liberty under the Constitution does not denude the
existence of that right, apart from it nor can there be a fatuous assumption
· that in adopting the Constitution the people of India surrendered the
D
most precious aspect of the human persona, namely, life, liberty and
freedom to the state on whose mercy these rights would depend. Such a
construct is contrary to the basic foundation of the rule of law which
imposes restraints upon the powers vested in the modern state when it
de\lls with the liberties of the individual. The power of the Court to issue
E a Writ of Habeas Corpus is a precious and undeniable feature of the rule
oflaw.
120. A constitutional democracy can survive when citizens have
an undiluted assurnnce that the rule oflaw will protect their rights and
liberti~s against any invasion by the state and that judicial remedies would
F be available to ask searching questions and expect answers when a
citizen has been deprived of these, most precious rights. The view taken
by Justice Khanna must be accepted, and accepted in reverence for the
strength of its thoughts and the courage of its convictions.
121. When histories ofnations are written and critiqued, there are
G judicial decisions at the forefront ofliberty. Yet others have to be consigned
to the archives, reflective of what was, but should never have been.
The decision of the US Supreme Court in Buck v Bcll 210 ranks amongst
the latter. It was a decision in which Justice Oliver Wendell Holmes Jr.
accepted the forcible sterili1.1tion by tubular ligation of Carrie Bucks as
210 274 us 200 (1927)
H
JUSTICE K S PUITASWAMY (RETD.) v. UNION OF INDIA 735
[D~. D. Y. CHANDRACHUD, J.)

part of a programme of state sponsored eugenic sterilization. Justice A
Holmes, while upholding the programme opined that: "three generations
of imbeciles is enough" 211 • In the same vein was the decision of the US
Supreme Court in Korematsu v United States 212 , upholding the
imprisonment of a citizen in a concentration camp solely because of his
Japanese ancestry.
B
ADM J1;1balpur must be and is accordingly overruled. We also
overrule the decision in Union oflndia v Bhanudas Krishna Gawde2 13,
which followed ADM Jabalpur.
· 122. In IR Coelho v State of Tamil Nadu 21 4; this Court took the
view that ADM Jabalpur has been impliedly overruled by \larious c
subsequent deci~ions:
"During Emergency, the fundamental rights were read even more
restrictively as interpreted by. the majority in ADM, Jabalpur v.
Shivakant Shukla [(1976) 2 SCC 521]. The decision in ADM,
Jabalpur [(1976) 2 SCC 521] about the restrictive reading ofright D
· to life and liberty stood impliedly overruled by various subsequent
decisions."215
We now expressly do so.
123. As a result of the Forty-Fourth Amendment to the Constitution,
Article 359 has been amended to provide that during the operation of a E
proclamation of emergency, the power of the President to declare a
suspension of the right to move a Court for the enforcement of the
fundamental rights contained in Part III shall not extend to Articles 20
and 21.
(ii) Suresh Koushal F
124. Another discordant note which directly bears upon the
evolution of the constitutional jurisprudence on the right to privacy finds
·reflection in a two judge Bench decision of this Court in Suresh Kumar
Koushal v NAZ foundation216 ("Koushal"). The proceedings before
211
A moving account of the times and the position is to be found in Siddhartha G
Mukherjee, The Gene: An Intimate History, Penguin Books Lt.\!. (2016), pages 78-
85.
212 323 us 214 {1944)
"' o977) 1 sec 834
21 • c2001) 2 sec 1
215 Ibid, at page 76 (para 29)
21
• c2014) 1 sec 1 H
736 SUPREME COURT REPORTS [2017] 10 S.C.R.

A this Court arose from a judgment217 of the Delhi High Court holding that
Section 377 of the Indian Penal Code, insofar as it criminalises consensual
sexual acts of adults in private is violative of Articles 14, 15 and 21 of the
Constitution. The.Delhi High Court, however, clarified that Section 377
will continue to govern non-consensual penile, non-vaginal sex and penile
non-vaginal sex involving minors. Among the grounds of challenge was
B
that the statutory provision constituted an infringement of the rights to
dignity and privacy. The Delhi High Court held that:
" ... The sphere of privacy allows persons to develop human
relations without interference from the outside community or from
the State. The exercise of autonomy enables an individual to
c attain fulfilment, grow in self-esteem, build relationships of his or
her choice and fulfil all legitimate goals that he or she may set. In
the Indian Constitution, the right to live with dignity and the right
of privacy both are recognised as dimensions of Article 21 ... "218
Section 377 was held to be a denial of the dignity of an individual
D and to criminalise his or her core identity solely on account of sexuality
would violate Article 21. The High Court adverted at length to global
trends in the protection of privacy - dignity rights of homosexuals,
including decisions emanating from the US Supreme Court, the South
African Constitutional Court and the European Court of Human Rights.
E The view of the High Court was that a statutory provision targeting
homosexuals as a class violates Article 14, and amounted to a hostile
discrimination on the grounds of sexual orientation (outlawed by Article
15). Tht< High Court, however, read down Section 377 in the manner
which has been adverted to above.
F 125. When the matter travelled to this Court, Justice Singhvi,
speaking for the Bench dealt with several grounds including the one
based on privacy-dignity. The Court recognised that the right to privacy
which is recognised by Article 12 of the Universal Declaration andArticle
17 of ICCPR has been read into Article 21 "through expansive reading
of the right to life and liberty". This Court, however, found fault with the
G basis of the judgment of the High Court for the following, among other
reasons:
" ... the Division Bench of the High Court overlooked that a
miniscule fraction of the country's population constitutes
211
Naz Foundation v Government of NCT, 2010 Cri LJ 94
H "' Ibid, at page 110 (para 48)
JUSTICE KS PUTIASWAMY (RETD.) v. UNION OF INDIA 737
[DR. D. Y. CHANDRACHUD, J.]

lesbians, gays, bisexuals or transgenders and in last more A
than 150 years less than 200 persons have been prosecuted
(as per the reported orders) for committing offence under Section
377 IPC and this cannot be made sound basis for declaring that
section ultra vires the provisions of Articles 14, 15 and 21 of the
Constitution."219 (emphasis supplied)
B
The privacy and dignity based challenge was repelled with the
following observations:
"In its anxiety to protect the so-called rights of LGBT
persons and to declare that Section 377 IPC violates the
right to privacy, autonomy and dignity, the High Court has c
extensively relied upon the judgments of other jurisdictions. Though
these judgments shed considerable light on various aspects of this
right and are informative in relation to the plight of sexual minorities,
we feel that they cannot be applied blindfolded for deciding the
constitutionality of the law enacted by the Indian Legisiature."220
(emphasis supplied) D
126. Neither of the above reasons can be regarded as a valid
constitutional basis for disregarding a claim based on privacy underArticle
21 of the Constitution. That "a miniscule fraction of the country's
population constitutes lesbians, gays, bisexuals or trans genders" (as
observed in the judgment ofthi"s Court) is not a sustainable basis to deny E
the right to privacy. The purpose of elevating certain rights to the stature
of guaranteed fundamental rights is to insulate their exercise from the
. disdain of majorities, whether legislative or popular. The guarantee of
constitutional rights does not depend upon their exercise being favourably
regarded by majoritarian opinion. The test of popular acceptance does F
not furnish a valid basis to disregard rights which are conferred with the
sanctity of constitutional protection. Oiscrete 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 iri a
democratic Constitution founded on the rule of law, their rights are as
sacred as those conferred on other citizens to protect their freedoms G
and liberties. Sexual orientation is an essential attribute of privacy.
Discrimination against an individual on the basis of sexual orientation is
deeply offensive to the,dignity and self-worth of the individu.al. Equality
,.. Koushal (Supra note 216), at page 69-70 (para 66)
220 Ibid, at page 78 (para 77)
H
738 SUPREME COURT REPORTS [2017] 10 S.C.R.

A demands that the sexual orientation of each individual in society must be
protected on an even platform. The right to privacy and the protection of
sexual orientation lie at the core of the fundamental rights guaranteed by
Articles 14, 15 and 21 of the Constitution.
127. The view in Koushal that the High Court had erroneously
B relied upon international precedents "in its anxiety to protect the so-
called rights ofLGBT. persons" is similarly, in our view, unsustainable.
The rights of the lesbian, gay, bisexual and transgender population cannot
be construed to be "so-called rights". The expression "so-called" seems
to suggest the exercise of a liberty in the garb of a right which is illusory.
This is an inappropriate construction of the privacy based claims of the
C LGBT population. Their rights are not "so-called" but are real rights
founded on sound constitutional doctrine. They inhere in the right to life.
They dwell in privacy and dignity. They constitute the essence ofliberty
and freedom. Sexual orientation is an essential component of identity.
Equal protection demands protection of the identity of every indi victual
D without discrimination.
128. The decision in Koushal presents a de minimis rationale
when it asserts that there have been only two hundred prosecutions for
violating Section 377. The de minimis hypothesis is misplaced because
the invasion of a fundamental right is not rendered tolerable when a few,
E as opposed to a large number of persons, are subjected to hostile
treatment. The reason why such acts of hostile discrimination are
constitutionally impermissible is because of the chilling effect which they
have on the exercise of the fundamental right in the first place. For
instance, pre-publication restraints such as censorship are vulnerable
because they discourage people from exercising their right to free speech
F because of the fear of a restraint coming into operation. The chilling
effect on the exercise of the right poses a grave danger to the unhindered
fulfilment of one's sexual orientation, as an element of privacy and dignity.
The chilling effect is due to the danger of a human being subjected to
social opprobrium or disapproval, as reflected in the punishment of crime.
G Hence the Koushal rationale that prosecution of a few is not an index
of violation is flawed and cannot be accepted. Consequently, we disagree
with the manner in which Koushal has dealt with the privacy - dignity
based claims of LGBT persons on this aspect.
Since the challenge to Section 377 is pending consideration before
H a larger Bench of this Court, we would leave the constitutional validity
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 739
[DR. D. Y. CHANDRACHUD, J.]

to be decided in an appropriate proceeding. A
J India's commitments under International law
129. The recognition of privacy as a fundamental constitutional
value is part of India's commitment to a global human rights regime.
Article 51 of the Constitution, which forms part of the Directive Principles,
requires the State to endeavour to "foster respect for international law B
and treaty obligations in the dealings of organised peoples with one
another''221 • Article 12 of the Universal Declaration of Human Rights,
recognises the right to privacy:
"Article 12: No one shall be subjected to arbitrary interference
with his privacy, family, home or correspondence, nor to attacks G
upon his honour and reputation. Everyone has the right to the
protection of the law against such interference or attacks."·
Similarly, the International Covenant on Civil and Political Rights
was adopted on 16 December 1979 and came into effect on 23 March
1976. India ratified it on 11December1977. Article 17 of the ICCPR D
provides thus:
"The obligations imposed by this article require the State to adopt
legislative and other measures to give effect to the prohibition
against such interferences and attacks as well as to the protection
of the right." E
The Protection of Human Rights Act, 1993 which has been enacted
by Parliament refers to the ICCPR as a human rights instrument. Section
2(1)(d) defines human rights: ·
"human rights" means the rights relating to life, liberty, equality F
and dignity of the individual guaranteed by the Constitution or
embodied in the International Covenants and enforceable by courts
in India."
Section 2(1)(f) defines International Covenants:
. "International Covenants" means the International Covenant on G
Civil and Political Rights and the International Covenant on
Economic, Social and Cultural rights adopted by the General
Assembly cif the United Nations on the 1611' December, 1966 [and
such other Covenant or Convention adopted by the General
221 Article Sl(c) of the Indian Constitution

H
740 SUPREME COURT REPORTS [2017] IO S.C.R.

A Assembly of the United Nations as the Central Government may,
by notification, specify"
Under Section I2(f) of the Protection of Human Rights Act, 1993,
the National Human Rights Commission:
"is entrusted with the function of studying treaties and other
B international instruments on human rights and make
recommendations for their effective implementation."
130. The ICCPR casts an obligation on states to respect, protect
and fulfil its norms. The duty of a State to respect mandates that it must
not violate the right. The duty to protect mandates that the government
c must protect it against interference by private parties. The duty to fulfil
postulates that government must take steps towards realisation of a right.
While elaborating the rights under Article 17, general comment 16
specifically stir.;ulates that:l
" .....there is universal recognition of the fundamental importance,
D and enduring relevance, of the right to privacy and of the need to
ensure that it is safeguarded, in law and practice."
Significantly, while acceding to the ICCPR, India did not file any
reservation or declaration to Article 17. While India filed reservations
against Articles I, 9 and ·13, there was none to Article 17:
E
"Article 1 refers to the right to self-determination. The reservation
to Article I states that "the Government of the Republic of India
declares that the words 'the right of self-determination' appearing
in [this article] apply only to the peoples under foreign domination
and that these words do not apply to sovereign independent States
F or to a section of a people or.nation-which is the essence of national
integrity. ' The reservation to Article 9, which refers to the right
to liberty and security of person, detention and compensation
payable on wrongful arrest or detention, states that "the
government of the Republic of India takes the position that the
provisions of the article shall be so applied as to be in consonance
G
with the provisions of clauses (3) to (7) of article 22 of the
Constitution oflndia. Further under the Indian Legal System, there
is no enforceable right to compensation for persons claiming to be
. victims of unlawful arrest or detention against the State." The
reservation to ArtiCle 13 - which refers to protections for aliens,
H
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 741
[DR. D. Y. CHANDRACHUD, J.]

states that "the Government of the Republic oflndia reserves its A
right to apply its law relating to foreigners."
On 30 June 2014, a report was presented by the Office of the
United Nations High Commissioner for Human Rights. 222 The report
underscores that:
" ... there is universal recognition of the fundamttntal importance, B
and enduring relevance, of the right to privacy and of the need to
ensure that it is safeguarded, in law and in practice. " 223
131. In Bachan Singh v State of Punjab224 ("Bachan Singh"),
this Court considered in relation to the death penalty, the obligations
.assumed by India in international law, following the ratification of the C
ICCPR. The Court held that the requirements of Article 6 of the ICCPR
are substantially similar to the guarantees contained in Articles 20 and
21 of the Constitution. The penal law oflndia was held to be in accord
with its international commitments. In Francis Coralie, this Court, while
explaining the ambit of Article 21, held that: D
" ... there is implicit in Article 21 the right to protection against
torture or cruel, inhuman or degrading treatment which is
enunciated in Article 5 of the Universal Declaration of Human
Rights and guaranteed by Article 7 of the International Covenant
·on Civil and Political Rights ... " 225 E
22
132. In Vishaka v State of Rajasthan 6, this Court observed
that in the absence of domestic law, the Convention on the Elimination
of Discrimination against Women (CEDAW) is applicable. In NALSA,
while dealing with the rights of transgenders, this Court found that the
international conventions were not inconsistent with the fundamental F
rights guaranteed by the Constitution and must be recognised and
followed.
133. The position in law is well settled. Where there is a
contradiction between international law and a donfestic statute, the Court
would give effect to the latter. In the present case,· there is no G
contradiction between the international obligations which have been
222 "The Right to privacy in the Digital age'', Report of the Office of the United
Nations High Commissioner for Human Rights (30 June 2014)
223 Ibid, at page 5 (para 13)

,,. 0 980) 2 sec 684
"-'Francis Coralie (Supra note 159), at page 619 (para 8)
"'(1997) 6 sec 241 H
742 SUPREME COURT REPORTS [2017] 10 S.C.R.

A assum.ed by India and the Constitution. The Comt will not readily presume
any inconsistency. On the contrary, constitutional provisions must be
read and interpreted in a manner which would enhance their conformity
withtheglobal humanrights regime. India is a responsible member of the
international community and the Court must adopt an interpretation which
abides by the international commitments made by the country particularly
B
where its constitutional and statutory mandates indicate no deviation. In
fact, the enactment of the Human Rights Act by Parliament would
indicate a legislative desire to implement the human rights regime founded
on constitutional values and international conventions acceded to by India.
K Comparative Law
c
134. This section analyses the evolution of the concept of privacy
in other jurisdictions from a comparative law perspective. The Court is
conscious of the limits of a comparative approach. Each country is
governed by its own constitutional and legal structure. Constitutional
structures have an abiding connection with the history, culture, political
D doctrine and values which a society considers as its founding principles.
Foreign judgments must hence be read with circumspection ensuring
that the text is not read isolated from its context. The countries which
have been dealt with are:
(i) United Kingdom;
E
(ii) United States;
(iii) South Africa; and
(iv) Canada.
The narrative will then proceed to examine the decisions of the
F
European Court of Human Rights, the Court of Justice of the European
Union and the Inter-American Court of Human Rights. These decisions
are indicative of the manner in which the right to privacy has been
construed in diverse jurisdictions based on the histories of the societies
they govern and the challenges before them.
G (i) U K decisions
The first common law case regarding protection of privacy is said
to be Semayne'sCase227 (1604). The case related to the entry into a
property by the Sheriff of London in order to execute a valid writ. The
"' Peter Semayne v Richard Gresham, 77 ER 194
H
JUSTICE.KS PUTTASWAMY (RETD:) v. UNION OF INDIA 743
[DR. D. Y. CHANDRACHUD, J.]

case is famous for the words of Sir Edward Coke: A
"That the house of every one is to him as his castle and fortress,
as well for his defence against injury and violence, as for his
repose ... "
Then, in the case of Entick v Carrington228 (1765), Entick's
house had been forcibly entered into by agents of the State/King. Lord B
Camden CJ held that: ·
"By the laws of England, every invasion of private property, be it
ever so minute, is a trespass. No man can set his foot upon my
ground without my licence, but he is liable to an action, though the
damage be nothing; which is proved by every declaration in C ·
trespass, where the defendant is called upon to answer for bruising
the grass and even treading upon the soil." _
Privacy jurisprudence developed fu1ther in the 19'h century. In
1849, in Prince Albert v Strange229 (1849), publication was sought to
be restrained of otherwise unpublished private etchings and lists of works D
done by Prince Albert and Queen Victoria. In the High Court of Chancery,
Lord Cottenham observed that:
" ... where privacy is the right invaded, postponing the injunction
would be equivalent to denying it altogether. The interposition of
this Court in these cases does not depend upon any legal right, · E
and to be effectual, it must be immediate."
However, the approach adopted by the Court in Prince Albert
case took a different turn in the case of Kaye v Robcrtson 2J0 (1991).
In this case, when the appellant, after an accident, was recovering from
brain surgery in a private hospital room, two journalists posed as doctors F
and took photographs of him. The appellant attempted to obtain an order
to restrain publication of the photographs. The Court of Appeal held
that:
" ... in English law there is no right to privacy, and accordingly
there is no right of action for breach of a person's privacy" G
The decision in R v Director of Serious Fraud Office, ex partc
Srnith2J 1 ( 1993) discussed the question of the right to silence. The
2is (1765) 19 St. Tr. 1029
229 (1849) 41ER1171
230 [1?91] FSR 62
231
[1993] AC I
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744 SUPREME COURT REPORTS [2017] 10 S.C.R.

A applicant (the chairman and managing director of a company) was
charged of doing acts with the intent to defraud its creditors. After having·
been cautioned. he was asked to answer questions of the Director of the
Serious Fraud Office. The issue was whether the requirement to answer
questions infringed the right to silence. It was held that the powers of
the Director of the Serious Fraud Office, under the Criminal Justice Act
B
1987, entitled him/her to compel the applicant to answer questions on
pain of commission of a criminal offence. Lord Mustill, who delivered
the leading opinion of the Court, held that:
"[It] is a simple reflection of the common view that one person
should so far as possible be entitled to tell another person to mind
c his own business. All civilised states recognise this assertion of
personal liberty and privacy. Equally, although there may be
pronounced disagreements between states, and between individual
citizens within states, about where the line should be drawn. few
would dispute that some curtailment of the liberty is indispensable
D to the stability of society; and indeed in the United Kingdom today
our lives are permeated by enforceable duties to provide information
on demand, created by Parliament and tolerated by the majority,
albeit in some cases with reluctance."
Lord Mustill's statement ''underlines the approach taken by the
E common law to privacy" that "it recognised privacy as a principle of
general value" and that "privacy had only been given discrete and specific
protection at common law". 232
This approach was diluted in the.case of Wainwright v Home
Office233 (2004), ·where a mother and son were subjected to a strip-
F search when visiting a prison in 1997, in accordance with existing Prison
Rules. The son, who was mentally impaired and suffered from cerebral'
palsy, later developed post-traumatic stress disorder. Claims for damages
arising from trespass and trespass to the person were issued. At. the
time of the incident, the Human Rights Act, 1998(HRA) had not yet
come into force. When the case reached before House of Lords. it was
G argued that "the law of tort should give a remedy forany kind of distress
caused by an infringement of the right of privacy protected by article 8
of the European Convention for the Protection of Human Rights". It
was further argued that reliance must be placed upon thejudgment of
232 Lord Neuberger, "Privacy in the 2lst Century'', UK Association ofJewish L<iwyers

and Jurists' Lecture (28 Novemb.er 2012)
H 2'' [2004] 2 AC 406
JUSTICE K S PUITASWAMY (RETD.) v. UNION OF INDIA 745
[DR. D. Y. CHANDRACHUD, J.]

Sedley LJ in Douglas v Hello! Ltd 234 (2001 ), where it was said that:· A
"What a concept of privacy does, however, is accord
recognition to the fact that the law has to protect not only ·
thos.e people whose trust has been abused but those who
simply find themselves subjected to an unwanted intrusion
into their personal lives. The law no longer needs to construct B
an artificial relationship of confidentiality between intruder and
victim: it can recognise privacy itself as a legal principle drawn
from the fundamental value of personal autonomy."
(emphasis supplied)
However, Lord Hoffman in Wainwright rejected all the contentions· c
and held that
"I do not understand Sedley LJ to have been advocating the creation
of a high-level principle of invasion of privacy. His observations
are in my opinion no more (although certainly no less) than a plea
for the extension and possibly renaming of the old action for breach D
of confidence."
Lord Hoffman also observed that:
"What the courts have so far refused to do is to formulate a general
principle of"invasion ofprjvacy" ...
E
There seems to me a great difference between identifying privacy
as a value which underlies the existence of a rule of law (and
maypoint the direction in which the law should develop) and privacy
as a principle oflaw in itself. The English common law is familiar
with the notion of underlying values - principles only in the broadest
sense - which direct its developinent. .. F
Nor is there anything in the jurisprudence of the European Court
of Human Rights which suggests that the adoption of some high
level principle of privacy is necessary to comply with article 8 of
the Convention. The European Court is concerned only with
whether English law provides an adequate remedy in a specific G
case in which it considers that there has been an invasion of privacy
contrary to article 8(1) and not justifiable under article 8(2)." ·
· There has been a transformation in this approach after the Human
<34 [2001] QB 967
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746 SUPREME COURT REPORTS [2017] IO S.C.R.

A Rights Act, 1998(HRA) came into force. For the first time, privacy was
incorporated as a right under the British law. 235 In Campbell v MGN236
(2004), a well-known model was photographed leaving a rehabilitation
clinic, following public denials that she was a recovering drug addict.
The photogrnphs were published in apublication run by MON. She sought
damages under the English law through her lawyers to bring a claim for·
B
breach of confidence engaging Section 6.ofthe Human Rights Act. The
House of Lords by majority decided in her favour. Lord Hope writing
for the majority held:
"[l]f there is an intrusion in a situation where a person can
reasonably expect his privacy to be respected, that intrusion will
be capable of giving rise to liability unless the intrusion can be
justified ... [A] duty of confidence arises when confidential
information comes to the knowledge of a person where he has
notice that the information is confidential."
In holding so, Lord Hope relied upon the following statement of
D Lord Woolf in Av B Inc237 (2003):
"A duty of confidence will arise whenever a party subject to the
duty is in a situation where he either knows or ought to know that
the other person can reasonably expect his privacy to be protected."
E Lord Hope also held that the Courts, in order to decide a case,
must carry out a "balancing operation, weighing the public interest in
maintaining corifidence against a countervailing public interest favouring
disclosure".
Baroness Hale wrote a concurring judgment and held that:
F ''The Human Rights 1998 Act does not create any new cause of
235 The UK Human Rights Act incorporates the rights set out in the European Convention

on Human Rights (ECHR) into domestic British law. The Preamble of the Act states
that it "gives further effect to rig~ts and freedoms guaranteed" under the ECHR. Under
the Act (S. 6), it is unlawful for any public authority, including a court or tribunal at any
level, to act in a manner which is incompatible with a Convention right. The Convention
rights take precedence over rules of common law or equity, and over most subordinate
G legislations. The Act, thereby, protects the right to privacy, which has been provided
under Article 8 (I) of the ECHR. See Ben Emmerson et al. (ed), Human Rights and
Criminal Justice, Sweet & Maxwell (2000). See also "Concerns and Ideas about the
Developing English Law of Privacy", Institute ofGlobal Law, available online at iJ!!Q;L
/www.ucl.ac.uk/laws/global law/publications/iilstitute/docs/privacy I 00804.pdf.
236 [2004) 2 AC 457.

H 237
[2003) QB 195
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA . 747
[DR. D. Y. CHANDRACHUD, J.]

action between private persons. But if there is a relevant cause A
of action applicable, the court as a public authority must act
compatibly with both parties' Convention rights. In a case such as
this, the relevant vehicle will usually be the acti.on for breach of
confidence, as Lord Woolf CJ held in A v B pie [2002] EWCA
Civ 337, [2003] QB 195, 202, para 4:
B
"[Articles 8 and 10] have provided new parameters within
which the court will decide, in an action for breach of
' '

confidence, whether a person is entitled to have his privacy
protected by the court or whether the.restriction of freedom of
expression which such protection involves cannot be justified. C
The court's approach to the issues which the applications raise
has been modified because, under section 6 of the 1998 Act,
the court, as a public authority, is required not to 'act in a way ·
which is incompatible with a Convention right'. The court is
able to achieve this by absorbing the rights which articles 8
and 10 protect into the long-established action for breach of D
confidence. This involves giving a new strength and breadth to
the action so that it accommodates the requirements of these
articles."
Later, in Douglas v Hello! Ltd238 , it was held that:
"What the House [in Campbell] was agreec\ upon was that.the . E
knowledge, actual or imputed, that information is private will
normally impose on anyone publishing that information the duty to
justify what, in the absence of justitlcatio\1, will be a wrongful
invasion of privacy."
Subsequent cases establish the contribution the HRA has made in F :
jurisprudence on privacy in the UK. In Associated Newspapers
Limited v His Royal Highness the Prince of Wales239 (2006), an
appeal was made against the judgment in r.espect of the claim of Prince
Charles for breach of confidence and infringement of 'copyright. The
case brought about when 'The Mail on Sunday' published extracts of a G
dispatch by the Prince of Wales. The Court held that:
"The information at issue in this case is private information, public
disclosure of which constituted an interference with Prince
"' [2006] QB 125
'" [2006] EWCA Civ 1776
H
748 SUPREME COURT REPORTS [2017] 10 S.C.R.

A Charles' Article 8 rights. As heir to the throne, Prince Charles is
an important public figure. In respect of such persons the public
takes an interest in information about them that is relatively trivial.
For this reason public disclosure of such information can be
particularly intrusive ... Prince Charles has a valid claim based
on breach of confidence and interference with his Article 8 rights."
B
In Murray v Big Pictures (UK) Ltd 240(2008), a photographer
had taken a series of photographs of a writer's infant son, which were
later pub! ished in a newspaper. The issue was whether there was misuse
of private information by taking photographs. It was held that:
c "[The] question of whether there is a reasonable expectation of
privacy is a broad one, which takes account of all the circumstances
of the case. They include the attributes of the claimant, the nature
of the activity in which the claimant was engaged, the place at
which it was happening, the nature and purpose of the intrusion,
the absence of consent and whether it was known or could be
D inferred, the effect on the claimant and the circumstances in which
and the purposes for which the information came into the hands
of the publisher ... [l]t is at least arguable that David had a
reasonable expectation of privacy. The fact that he is a child is in
our view of greater significance than the judge thought."
E R v The Commissioner of Police of the Metropolis 241 (2011)
was a case concerning the extent of the police's power (under
guidelines issued by the Association of Chief Police Officers- the
ACPO guidelines) to indefinitely retain biometric data associated
with individuals who are no longer suspected of a criminal offence.
F The UK Supreme Cou1t, by a majority held that the police force's
policy of retaining DNA evidence in the absence of 'exceptional
circumstances' was unlawful and a violation of Article 8 of the
European Convention on Human Rights. Lord Dyson, on behalf
ofthe majority, held that:

G "It is important that, in sµch an imp01tant and sensitive area as the
retention of biometric data by the police, the court reflects its
decision by making a formal order to declare what it considers to
be the true legal position. BV! it is not necessary to go further..
''° [2008] 3 WLR 1360
241 [2011] UKSC 21
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 749
[DR. D. Y. CHANDRACHUD, J.]

Section 8(1) of the HRA gives the court a wide discretion to grant A
such relief or remedy within its powers as it considersjust and
appropriate. Since Parliament is already seized of the matter, it is
neither just nor appropriate to make an order requiring a change
in the legislative scheme within a specific period ...
. . . .he present ACPO guidelines are unlawful because they are B
incompatible with article 8 of the ECHR. I would grant no ottier
relief."
ln the matter of an application by JR38 for .Judicial Review
(Northern Ireland) 242 (2015), the Appellant was involved in rioting in
2010, when still only 14 years of age. ·The police, in order to identify c
those responsible, and for the sake of deterrence, published CCTV footage
depicting the Appellant in two newspapers. The issue involved was:
"Whether the publication of photographs by the police to identify a young
person suspected of being involved in riotous behaviour and attempted
criminal damage can ever be a necessary and proportionate interference
with that person's article 8 rights?" The majority held that Article 8 was D
not engaged, as there was no reasonable expectation of priva_cy in the
case. Lord Toulson (with whom Lord Hodge agreed), while stating that
the conduct of the police did not amount, prima jacie, to an interference
with the appellant's right to respect for his private life, held that:
"The reasonable or legitimate expectation test is an objective test. E
It is to be applied broadly, taking account of all the circumstances
of the case (as Sir Anthony Clarke said in Murray's case) and
having regard.to underlying value or values to be protected. Thus,
for example, the publication of a photograph of a young person
acting in a criminal manner for the purpose of enabling the police F.
to discover his identity may not fall within the scope of the
protection of personal autonomy which is the purpose of article 8,
but the publication of the same photograph for another purpose
might."
Lord Clarke wrote a separate judgment concurring with Lord G
Toulson and held that:
"' .. the criminal n(lture of what the appellant was doing was not
an aspect of his private life that he was entitled to keep private.
He could not have had an objectively reasonable expectation that
242
[2015] UKSC 42
H
750 SUPREME COURT REPORTS [2017] 10 S.C.R.

A such photographs, taken for the limited purpose of identifying who
he was, would not be published."
The decision in PJS v News Group Newspapers Ltd 243 (2016)
dealt with an anonymised privacy injunction244 • The injunction was sought
by the claimant to restrain publication of details of his sexual relationship
B with two other people, on the ground that the publication would breach
his rights to privacy and confidentiality, protected by Article 8 ofECHR.
The UK Supreme Court by majority ruled in favour of the applicant.
Speaking on behalf of the majority, Lord Mance held that:
" ... having regard to the nature of the material sought to be
c published and the identity and financial circumstances of the
appellant, that the appellant's real concern is indeed with the
invasion of privacy that would be involved in further disclosure
and publication in the English media, and that any award of
damages, however assessed, would be an inadequate remedy."

D The HRA has rendered clarity on the existence of a right to privacy
in UK jurisprudence and substantially resolved conflicting approaches
regarding privacy in decided cases. The HRA, by incorporating the
provisions of the European Convention on Human Rights (ECHR), has
adopted the guarantee of the right to privacy into UK domestic law. The
Convention, together with its adoption into domestic legislation, has led
E to a considerable change in the development of protection of human
privacy in English law.
(ii) US Supreme Court decisions
The US Constitution does not contain an express right to privacy.
F But American privacy jurisprudence reflects that it has been protected
.under several amendments 245 of the ·us Constitution.
243 [2016) UKSC 26
i44 Jn English law. an anonymiscd injunction is "an interim injunction which restrains
a person from publishing information which concerns the applicant and is said to be
confidential or private where the names of either or both of the parties to the proceedings
G are not stated". See "Report of the Committee on Super-Injunctions: Super-Injunctions,
Anonymised Injunctions and Open Justice" (2011), available online at hllru.;lL
www.judicim:y.gov.uk/wp-content/uploads/JCO/Documents/Reports/supcr-injunction-
report-20052011.pdf
245 The concept of privacy plays a major role in the jurisprudence of the First, Third,

Fourth, Fifth, and Fourteenth Amendments. The Ninth Amendment has also been
interpreted to justify broadly reading the Bill of Rights to protect privacy in ways not
H specifically provided in the first eight amendments.
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 751
[DR. D. Y. CHANDRACHUD, J.]

As early as 1886, in Boyd v United States246 , the question before A
the US Supreme Court was whether compulsory production of a person's
private papers to be used in evidence against him in a judicial proceeding,
is an unreasonable search and seizure within the meaning of the Fourth
Amendment.Justice Bradley delivered the opinion of the Cou1t and held
- as follows:
B
"The principles laid down in this opinion affect the very essence
of constitutional liberty and security ... they apply to all
invasions on the part of the government and its employees
of the sanctity of a man's home and the privacies of life. H
is not the breaking of his doors and the rummaging of his
drawers that constitutes the essence of the offence, but it C
is the invasion of his indefeasible right of personal security,
personal liberty, and private property, - it is the invasion
of this sacred right ...
And any compulsory discovery by extorting the party's oath, or
compelling the production of his private books and papers, to convict D
him of crime or to forfeit his property, is contrary to the principles
of a free government... It may suit the purposes of despotic power,
but it cannot abide the pure atmosphere of political liberty and
personal freedom." (emphasis supplied)
In tw9 decisions in the 1920s, the Court read the Fourteenth E
Amendment's liberty to prohibit states from making laws interfering with
the private decisions of parents and educators to shape the education of
their children. In Meyer v Nebraska247 (1923), the Court struck down
a state law that prohibited the teaching of foreign languages to students
that had not yet completed the eighth grade. The Court in a7:2 decision, F
written by Justice McReynolds, concluded that the state failed to show
a compelling need to infringe upon the rights of parents and teachers to
decide on the best course of education for young students. On liberty,
Justice McReynolds held:
"Without doubt, it denotes not merely freedom from bodily restraint, G
but also the right of the individual to contract, to engage in any of
the common occupations oflife, to acquire useful knowledge, to _
marry, establish a home and bring up children, to worship God
246 116 us 616 (1886)
247 262 us 390 (1923)
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752 SUPREME COURT REPORTS [2017] 10 S.C.R.

A according to the dictates of his own conscience, and generally to
enjoy those privileges long recognized at common law as essential
to the orderly pursuit of happiness by free men. The established
doctrine is that this liberty may not be interfered with, under the
guise of protecting the public interest, by legislative action which
is arbitrary or without reasonable relation to some purpose within
B
the competency of the State to effect."
Two years later, in Pierce v Society of Sisters2~8 (1925), the
Court, relying upon Mayer v Nebraska, struck downthe Oregon
Compulsory Education Act, which mandated all children (between eight
and sixteen years) to attend public schools. It was held the said statute
c is an "unreasonable interference with the liberty of the parents and
guardians to direct the upbringing of the children,· and in that respect
violates the Fourteenth Amendment".
In Olmstead v United States249 (1928), the question before the
Court was whether the use of evidence of private telephone conversations,
D intercepted by means of wiretapping amounted to a violation of the Fourth
and Fifth Amendments. In a 5:4 decision, it was held that there was no
violation of the Fourth and Fifth Amendments. Chief Justice Taft wrote
the majority judgment, holding that:
"The Amendment itself shows that the search is to be of material
E things - the person, the house, his papers, or his effects .... The
Amendment does not forbid what was done here. There was no
searching. There was no seizure. The evidence was secured by
the use of the sense of hearing, and that only. There was no entry
of the houses or offices of the defendants."
F However, Justice Louis Brandeis wrote a dissenting opinion and
observed that:
" ... time works changes, brings into existence new conditions
and purposes." Subtler and more far-reaching means of invading
privacy have become available to the Government. Discovery
G and invention have made it possible for the Government, by means
far more effective than stretching upon the rack, to obtain disclosure
in court of what is whispered in the closet. Moreover, "in tll.e
application of a constitution, our contemplation cannot be
""(268) us 510 (1925)
249 277 us 438 (1928)
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 753
[DR. D. Y. CHANDRACHUD, J.]

only of what has, been but of what may be." The progress of A
science in furnishing the Government with means of espionage is
not likely to stop with wiretapping. Ways may someday be
developed by which the Government, without removing papers
from secret drawers, can reproduce them in court, and by which
it will be enabled to expose to a jury the most intimate occurrences B
of the home. Advances in the psychic and related sciences may
bring means of exploring unexpressed beliefs, thoughts and
emotions ... " .(emphasis supplied)
He questioned whether the Constitution affords no protection
against such invasions of individual security. Justice Brandeis answers C
this question in a celebrated passage:
"The makers of our Constitution undertook to secure conditions
favorable to the pursuit of happiness. They sought to protect
Americans in their beliefs, their thought~. their emotions and their
sensations. They conferred, as against the Government, the
right to be let alone - the most comprehensive of rights, D
and the right most valued by civilized men. To protect that
right, every unjustifiable intrusion by the Government upon the
privacy of the individual, whatever the means employed, must be
deemed a violation of the Fourth Amendment..."
(emphasis supplied) E
The Court,in the case of Griswold v Connccticut 250 (1965)
,invalidated a state law prohibiting the possession, sale, and distribution
of contraceptives to married couples, for the reason that the law violated
the right to marital privacy. Justice Douglas, who delivered the main
opinion, observed that this right emanated from ''penumbras" of the F
fondamental constitutional guarantees and rights in the Bill of Rights,
0

which together create "zones of privacy". Accordingly, it was held that:
~'The present case, then concerns a relationship lying within the
zone of privacy created by several fundamental constitutional
guarantees ... Would we allow the police to search the sacred G
precincts of marital bedrooms of teUtale signs of the use of
contraceptives? The very idea is repulsive to the notions of privacy·
surrounding the marriage relationship."

""381 us 479 (1965)
H
754 SUPREME COURT REPORTS [2017] 10 S.C.R.

A Justice Goldberg wrote in the concurring opinion that:
"The fact that no particular provision of the Constitution explicitly
forbids the State from disrupting the traditional relation of the family
- a relation as old and as fundamental as our entire civilization
- surely does not show that the Government was meant to have
B the power to do so. Rather, as the Ninth Amendment expressly
recognizes, there are fundamental personal rights such as this
one, which are protected from abridgment by the Government,
though not specifically mentioned in the Constitution."
The 1967 decision in Katz v United States251 ("Katz") overruled
c Olmstead v United States (supra) and revolutionized the interpretation
of the Fourth Amendment regarding the extent to which a constitutional
right to privacy applies against government interference. In this case,
Charles Katz was a gambler who used a public telephone booth to
transmit illegal wagers. Unbeknownst to Katz, the FBI which was
investigating Katz's activity, was recording his conversations via an
D electronic eavesdropping device attached to the exterior of the phone
booth. Subsequently, Katz was convicted based on these recordings. He
challenged his conviction, arguing that the recordings were obtained in
violation of his Fourth Amendment rights. The constitutional question in
the case was whether the 4th Amendment protection from 'unreasonable
E searches and seizures' was restricted to the search and seizure of tangible
property, or did it extend to intangible areas such as conversations
overheard by others. It was held that the Government's eavesdropping
activities violated the privacy, upon which petitioner justifiably relied,
while using the telephone booth, and thus constituted a "search and
seizure" within the meaning of the Fourth Amendment, and that the
F Amendment governs not only the seizure of tangible items, but extends
as well to the recording of oral statements.
Prior to I 967 when determining the 'reasonable expectation of
privacy' for purposes of discussing Fourth Amendment violations~ the
analysis was focused on whether the authority had trespassed on a private
G location. This 'trespass doctrine' was the prevailing test until Katz, which
extended the protection of the Fourth Amendment from 'places' to
'people·, affording individuals more privacy even in public. The 'trespass
doctrine' applied in Olmstead v United States (supra) was held to be
no longer relevant.
H ~" 389 us 347 (1967)
JUSTICE K S PUTIASWAMY (RETD.) v. UNION OF INDIA 755
[DR. D. Y. CHANDRACHUD, J.]

Justice Stewart wrote the majority (7: 1) opinion and held that: A
"One who occupies it [a telephone booth], shuts the door behind
him, and pays the toll that permits him to place a call is surely
entitled to assume that the words he utters into the
mouthpiece will not be broadcast to the world. To read the
Constitution more narrowly is to ignore the vital role that B
the public telephone has come to play in private
communication." (emphasis supplied)
Justice Harlan wrote the concurring judgment holding that:
"a) that an enclosed telephone booth is an area where, like
a home ... a person has a constitutionally protected reasonable C
expectation of privacy; (b) that electronic, as well as physical,
intrusion into a place that is in this sense private may
constitute a violation of the Fourth Amendment.. .. "
(emphasis supplied)
The reasonable expectation of privacy test was formulated as D
follows:
" .... the Fourth Amendment protects people, not places."
The question, however, is what protection it affords to those
people. Generally, as here, the answer to that question requires
reference to a ."place." My understanding of the rule that has E
emerged from prior decisions is that there is a twofold requirement,
first that a person has exhibited an actual (subjective)
expectation of privacy and, second, that the expectation be
one that society is prepared to recognize as "reasonable."
Thus, a man's home is, for most purposes, a place where
F
he expects privacy, but objects, activities, or statements
that he exposes to the "plain view" of outsiders are not
"protected," because no intention to keep them to himself
has been exhibited. On the other hand, conversations in
the open would not be protected against being overheard,
for. the expectation of privacy under the circumstances G
would be unreasonable." · (emphasis supplied)
In Stanley v Georgia 252 (1969), the Court analyzed the
constitutionality of a statute imposing criminal sanctions upon the knowing
"'394 us 557 (1969)
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756 SUPREME COURT REPORTS [2017] 10 S.C.R.

A possession of obscene matter. The Court, in a unanimous decision, held
that mere private possession of obscene matter cannot constitutionally
be made a crime:
"For also fundamental is the right to be free, except in very limited
circumstances, from unwanted governmental intrusions into one's
B privacy...
[T]he rights that the appellant is asserting in the case before
us ... the right to read or observe what he pleases - the right to
satisfy his intellectual and emotional needs in the privacy of his
own home ..... the right to be free from state inquiry into the contents
c of his library .. .
Whatever the power of the state to control public dissemination
of ideas inimical to the public morality, it cannot constitutionally
premise legislation on the desirability of controlling a person's
private thoughts."
D Seven years after Griswold, the Court expanded the right to
privacy beyond the 'marital bedroom' to include unmarried persons. In
Eisenstadt v Baird253 (1972), the Court invalidated a law prohibiting
the distribution of contraceptives to unmarried persons, ruling that it
violated the Equal Protection Clause of the Constitution:
E "It is true that in Griswold the right of privacy in question inhered
in the marital relationship. Yet the marital couple is not an
independent entity with a mind and heart of its own, but an
association of two individuals each with a separate intellectual
and emotional makeup. If the right of privacy means anything, it
is the right of the individual, married or single, to be free from
F
unwarranted governmental intrusion into matters so fundamentally
affecting a person as the decision whether to bear or beget a
child."
The decision in Paris Adult Theatre Iv Slaton254 (1973), upheld
G a state court's injunction against the showing of obscene films in a movie
theatre, restricted to consenting adult~. The Court distinguished the case
from Stanley v Georgia (supra), on the ground that the privacy of the
home in Stanley was not the same as the commercial exhibition of
obscene movies in a theatre. Chief Justice Burger observed that the
m405 US 438 (1972)
H 25•413 us 49 (1973)
' .

JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA c757
[DR. D. Y. CHANDRACHUD, J.]

prior ~ecisions of the Supreme Court on the rightto privacy only included A
those personal rights that were "fundamental" or "implicit in the concept
of ordered liberty" such as "the personal intimacies of the home, the
family, marriage, mother~ood, procreation and childbearing" and held
that:
"Nothing, however, in this Court's decisions intimates that there is B
any "fundamental" privacy right "implicit in the concept of ordered
liberty" to watch obscene movies in places of public
accommodation ... The idea of a "privacy" right and a place of
public accommodation are, in this context, mutually exclusive."
In the landmark decision on the right to abortion, Roe v c
Wade255 (1973), the Court dealt with the question of the right of an
.unmarried pregnant woman to terminate her pregnancy by ab01tion. The
constitutionality of a Texas Statute prohibiting abortions except with
respect to those procured or admitted by medical advice for the purpose
of saving the life of the mother was challenged on the ground that the
law improperly invaded the right and the choice of a pregnant woman to D
terminate her pregnancy and was violative of the "liberty" guaranteed
under the Fomteenth Amendment and the right to privacy recognized in
Griswold. The Court ruled 7:2 that a right to privacy under the Due
Process Clause of the Fourteenth Amendment extended to a woman's
decision to have an abortion, but that this right must be bala_nced against E
the state's interests in regulating abortions. Justice Blackmun delivered
the majority judgment and held that:
"The Constitution does not explicitly mention any right of
privacy. In a line of decisions, however, the Court has
recognised that a right of personal privacy, or a guarantee F
of certain areas or zones of privacy, does exist under the
Constitution. In varying contexts, the Court or individual Justices
have, indeed, found at least the roots of that right in the First
Amendment; in the penumbras of the Bill of Rights; in the Ninth
Amendment; or in the concept of liberty guaranteed by the first
section of the Fourteenth Amendment... G
This right of privacy, whether it be founded in the
Fourteenth Amendment's concept of personal liberty and
restrictions upon state action, as we feel it is, or, as the
~,, 410 us 113 (1973)
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758 SUPREME COURT REPORTS [2017] 10 S.C.R.

A District Court determined, in the Ninth Amendm~nt's
reservation of rights to the people, is broad enough to
encompass a woman's decision whether or not to terminate
her pregnancy." (emphasis supplied)
The right to privacy in bank records was analysed by the US
B Supreme Court in United States v Miller 256(1976). In this case federal
agents were investigating the defendant for his involvement in a
bootlegging conspiracy. The agents subpoenaed two banks and received
his bank records. As a result, he was indicted. The question was whether
an individual reasonably can expect that records kept incidental to his
personal banking transactions will be protected from uncontrolled
C government inspection. In a 6:3 opinion, the Supreme Court held that a
bank depositor has no Fourth Amendment interest in the records that his
bank is required to keep in compliance with the Bank Secrecy Act of
1970, and that Miller had no right to privacy in his bank records. Writing
for the majority, Justice Lewis F. Powell asserted that the ''documents
D subpoenaed... are not [Miller's] 'private papers'," but instead, part of
the bank's business records. It was held:
"There is no legitimate "expectation of privacy" in the
contents of the original checks and deposit slips, since the
checks arc not confidential communications, but negotiable
E instruments to be used in commercial transactions, and all
the documents obtained contain only information voluntarily
conveyed to the banks and exposed to treir employees in the
ordinary course of business. The Fourth Amendment does not
prohibit the obtaining of information revealed to a third party and
conveyed by him to Government authorities. The Act's
F · recordkeeping requirements do n<:>t alter these considerations so
as to create a protectable Fourth Amendment interest of a bank
depositor in the bank's records of his account."
However, Justice Brennan dissented and held that:

G "A bank customer's reasonable expectation is that, absent it
compulsion by legal process, the matters he reveals to the b::mk
will be utilized by the bank only for internal banking purposes ...
[A] depositorreveals many aspects of his personal affairs, opinions,
habits, associations. Indeed, the totality of bank records provides
256
425 us 435 (1976)
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 759
[DR. D. Y. CHANDRACHUD, J.]

a virtual current biography ... Development of...sophisticated A
instruments have accelerated the ability of the government to
intrude into areas which a person normally chooses to exclude
from prying eyes and inquisitive minds. Consequently, judicial
interpretations of the constitutional protection of individual privacy
must keep pace with the perils created by these new devices."
B
Continuing its trend of expansion of individual rights in the 1960s
and 1970s, particularly in the domain of reproductive health - the right to
contraceptives as well as the right to abortion, the decision in Carey v
Population Services International2' 7(1977) expanded these rights from
adults to also include minors. In this case, a New York law banning sale
of even non-prescription contraceptives by persons other than licensed
c
pharmacists; sale or distribution to minors under sixteen; and contraceptive
display and advertising was declared unconstitutional. Justice Brennan
delivered the majority opinion of the Court and held that the Fourteenth
Amendment is not for "adults alone" and "Minors, as well as adults, are
protected by the Constitution": D
'"This right of personal privacy includes "the interest in
independence in making certain kinds of important decisions." ...
\\'l;ik the outer limits of this aspect of privacy have not been
marked by the Court, it is clear that among the decisions that an
indi\':dual may make without unjustified government interference E
arc personal decisions "relating to marriage ... ; procreation ... ;
contraception ... ; family relationships ... : and childrearing and
education ... "
It was further held that:
·'The decision whether or not to beget or bear a child is at the F
very hea11 of this cluster of constitutionally. protected choices ...
This is understandable, for in a field thm, by definition, concerns
the most intimate of human activities and relationships, deci.sions
whether to accomplish or to prevent conception are among the
most private and sensitive ... '' G
The Court also held that the right to privacy may be limited by a
regulation, \-Vhich is go\ l!rncJ by ~1 slifficient ·con1pcH1n~1 ·..,L,1~e in1.....,.-.. .-~t-.

In Smith v Maryland250 (1979), it was held th.:t ''''L• 1"'" ..
"'431us678 (1977)
'" 442 us 735 (1979) H
760 SUPREME COURT REPORTS [2017] 10 S.C.R.

A use of a 'pen register' was not a "search" within the meaning of the
Fourth Amendment, and hence no warrant was required. Justice
Blackmun delivered the majority (5: 4) opinion and held that the petitioner's
claim that he had a "legitimate expectation of privacy" could not be
sustained:
B "First, we doubt that people in general entertain any actual
expectation of privacy in the numbers they dial. All telephone
users realize that they must ''convey" phone numbers to the
telephone company, since it is through telephone company switching
equipment that their calls are completed. All subscribers realize,
moreover, that the phone company has facilities for making
c permanent records of the numbers they dial, for they see a list of
their long-distance (toll) calls on their monthly bills. In fact, pen
registers and similar devices are routinely used by telephone
companies "for the purposes of checking billing operations,
detecting fraud, and preventing violations of law."
D (emphasis supplied)
The majority adopted the "reasonable expectation of privacy" test
as formulated by Justice Harlan in Katz and held as follows:
"[The] inquiry, as Mr. Justice Harlan aptly noted in his Katz
concurrence, normally embraces two discrete questions.The first
is whether the individual, by his conduct, has "exhibited an actual
(subjective) expectation of privacy" ... whether... the individual
has shown that "he seeks to preserve [something] as private" ...
The second question is whether the individual's subjective
expectation of privacy is "one that society is prepared to recognize
F as reasonable,"' ... whether... the individual's expectation, viewed
objectively, is "justifiable" under the circumstances.
Since the pen register was installed on telephone company property
at the telephone company's central offices, petitioner obviously
cannot claim that his "property" was invaded or that police
G intruded into a "constitutionally protected area."
Thus the Court held that the petitioner in all probability entertained
no actual expectation of privacy in the phone numbers he dialled, and
that, even if he did. his expectation was not "legitimate." However, the
judgment also noted the limitations of the Katz test:
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 761
[DR. D. Y. CHANDRACHUD, J.]

"Situations can be imagined, of course, in which Katz' two- A
pronged inquiry would provide an inadequate index of
Fourth Amendment protection ... In such circumstances, where
an individual's subjective expectations had been "conditioned" by
influences alien to well recognized Fourth Amendment freedoms,
those subjective expectations obviously could play no meaningful B
role in ascertaining what the scope of Fourth Amendment
protection was. "
Justice Stewart wrote the dissent, joined by Justice Brennan and
held that there was a legitimate expectation of privacy in this case:
" ... the numbers dialled from a private telephone - like the c
conversations that occur during a call - are within the constitutional
protection recognized in Katz. It seems clear to me that information
obtained by pen register surveillance of a private telephone is
information in which the telephone subscriber has a legitimate
expectation of privacy. The information captured by such
surveillance emanates from private conduct within a person's D
home or office - locations that without question are entitled to
Fourth and Fourteenth Amendment protection. Further,· that
information is an integral part of the telephonic communication
that, under Katz, is entitled to constitutional protection ... "
Justice Marshal dissented and opined on the dangers of permitting E
such surveillance, holding:
"The use of pen registers, I believe, constitutes such an extensive
intrusion. To hold otherwise ignores the vital role telephonic
communication plays in our personai and professional relationships,
as well as the First and Fourth Amendment interests implicated F
by unfettered official surveillance. Privacy in placing calls is of
value not only to those engaged in criminal activity. The prospect
of unregulated governmental monitoring will undoubtedly prove
disturbing even to those with nothing illicit to hide. Many individuals,
including members of unpopular political organizations or journalists G
with confidential sources, may legitimately wish to avoid disclosure
of their personal contacts ...
Permitting governmental access to telephone records on
less than probable cause may thus imp~de certain forms of
political affiliation and journalistic endeavor that are the H
762 SUPREME COURT REPORTS (2017) IO S.C.R.

A hallmark of a truly free society. Particularly given the
Government's previous reliance on warrantless telephonic
surveillance to trace reporters' sources and monitor protected
political activity...
I am unwilling to insulate use of pen registers from independent
B judicial review." (emphasis supplied)
In Planned Parenthood v Casey 259 (1992), several Pennsylvania
state statutory provisions regarding abortion such as spousal consent
were challenged. The Court reaffim1ed- what it called- the "essential
holding" 260 of Roe v Wade (supra), and observed:
c "... Our precedents "have respected the private realm of family
life which the state cannot enter." ... These matters, involving the
most intimate and personal choices a person may make in a
lifetime, choices central to personal dignity and autonomy, are
central to the liberty protected by the Fourteenth Amendment. At
D the heart of liberty is the right to define one's own concept of
existence, of meaning, of the universe, and of the mystery of human
life. Beliefs about these matters could not define the attributes of
person hood were they. formed under compulsion of the State ...
The woman's right to terminate her pregnancy before viability is
E the most central principle of Roe v. Wade. It is a rule of law and
a component of liberty we cannot renounce."
In Minnesota v Carter261 (1998), the question was whether the
Fourth Amendment protected against the viewing by an outside police
officer, through a drawn window blind, of the defendants' bagging cocaine
F in an apartment. The Court answered this question in the negative. Chief
Justice Rehnquist delivered the majority opinion of the Court noting that
2.W 505 US 833 ( 1992)
260 The cs,;ential holding of Roe, as summarized in Planned Parenthood. comprised of

the following th.rce parts: (I) a recognition of a woman's right to choose to have an
abortion before foetal viabi111v and to obtain it without undue interference from the
State, whose pre-viability inl~Tcsts are not strong enough to support an abortion
G prohibition or the imposition of substantial obstacles to the woman's effective right to
elect the procedure; (2) a confirmation of the State's power to restrict abortions after
viability, if the law contains exceptions for pregnancies endangering a woman's life or
health: and (3) the principle that the State has legitimate interests from the outset of the
pregnancy in protecting tbe health of the woman and the life of the fetus that may
become~ child.
H 201
525 us 83 0 998)
JUSTICE K S PUTIASWAMY (RETD.) v. UNION OF INDIA 763
[DR. D. Y. CHANDRAGHUD, J.]

"[t]he text of the Amendment suggests that its protections extend only A
to people in "their" houses." The case was distinguished from Minnesota
v Olson 262 (l 990), where the Supreme Court decided that an overnight
guest in a house had the sort of expectation of privacy that the Fourth
Amendment protects. The Court was of the view that while an overnight
guest in a home may claim the protection of the Fourth Amendment, one B
who is merely present with the consent of the householder may not. The
respondents, in this cas~. were not overnight guests, but were present
for a business transaction and were only in the home for a few hours.
The Court held:
"Property used for commercial purposes is treated
differently for Fourth Amendment purposes from residential C
propHty. "An expectation of privacy in commercial
premises, however, is different from, and indeed less than,
a similar expectation in an individual's home." ...
And while it was a "home" in which respondents were present, it
was not their home... D
the purely commercial nature of the transaction engaged in here,
the relatively short period of time on the premises, and the lack of
any previous connection between respondents and the householder,
all lead us to conclude .... any search which may have occurred
did not violate their Fourth Amendment rights." (emphasis supplied) E
. Justice Ginsburg wrote the dissenting opinion joined by Justice
Stevens and Justice Souter, and held that:
"Our decisions indicate that people have a reasonable expectation
of privacy in their homes in part because they have the prerogative F
to exclude others ... Through the host's invitation, the guest gains
a reasonable expectation of privacy in the home. Minnesota v.
Olson, 495 U. S. 91 (1990), so held with respect to an overnight
guest. The logic of that decision extends to shorter term guests as
well."
G
In Kyllo v United States263 (2001), the Court held (5:4 majority)
that the thermal imaging of the house of a person suspected of growing
marijuana was a violation of the right to privacy. Justice Scalia delivered
. the opinion of the Court and held that there is no distinction between
262 495 us 91 (1990)
2•3 533 us 27 (2001) H
764 SUPREME COURT REPORTS [2017) 10 S.C.R.

A "off-the-wall" and "through-the-wall" surveillance as both lead to an
intrusion into an individual's privacy:
''Limiting the prohibition of thermal imaging to "intimate
details" would not only be wrong in principle; it would be
impractical in application, failing to provide "a workable
B accommodation between the needs of law enforcement and
the interests protected by the Fourth Amendment," ...
We ... would have to develop a.jurisprudence specifying which
home activities are "intimate" and which are not. And even when
(if ever) that jurisprudence were fully developed, no police officer
c would be able to know in advance whether his through-the-wall
surveillance picks up "intimate" details-and thus would be unable
to know in advance whether it is constitutional. .. "
(emphasis supplied)
It was concluded that even though no "significant" compromise
D of the homeowner's privacy had occurred due to the thermal imaging,
"the long view, from the original meaning of the Fourth Amendment"
must be taken forward.
In Lawrence v Texas 264,the Court in a 6:3 decision struck down
the sodomy law in Texas and by extension invalidated sodomy laws in
E 13 other states, making same-sex sexual activity legal in every state and
territory of the United States. The Court overturned its previous ruling
on the same issue in the 1986 case, Bowers v Hardwick 265 (1986),
where it upheld a challenged Georgia statute and did not find a
constitutional protection of sexual privacy. Justice Anthony Kennedy
wrote the majority opinion (6: 3 decision) and held that:
F
"The petitioners are entitled to respect for their private Ii ves. The
State cannot demean their existence or control their destiny by
making their private sexual conduct a crime ... It is a promise of
the Constitution that there is a realm of personal liberty which the
government may not enter ... The Texas statute furthers no
G legitimate state interest which can justify its intrusion into the
personal and private life of the individual."
Informational privacy was the core issue in NASA v
264 539 us 558 (2003)
265 478 us 186 (1986)
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 765
[DR. D. Y. CHANDRACHUD, J.]

Nelson266 (201 I ).The Court held unanimously that NASA's background A
checks of contract employees did not violate any constitutional privacy
right. The employees had argued that their constitutional riglit to privacy
as envisaged in previous US Supreme Court judgments namely Whalen
v Roe267 (1977) and Nixon v Administrator of General Services268
(1977). was violated by background checks. The majority judgment
B
delivered by Justice Alito, decided the case assuming that there existed
a constitutional right to privacy. The Court held that:
"We hold, however, that the challenged portions of the
Government's background check do not violate this right in the
present case. The Government's interests as employer and
proprietor in managing its internal operations, combined with the C
protections against public dissemination provided by the Privacy
Act of 1974, satisfy any "interest in avoiding disclosure" that may
"arguably ha[ve] its roots in the Constitution ... The Government
has good reason to ask employees about their recent illegal-drug
use." D
The majority also rejected all the contentions regarding the misuse
of collected data and held:
" ... the mere possibility that security measures will fail provides
no "proper ground" for a broad-based attack on government
information-collection practices. Ibid. Respondents also cite a E
portion of SF-85 that warns of possible disclosure "[t]o the news
media or the general public." App. 89. By its terms, this exception
allows public disclosure only where release is "in the public interest"
and would not result in "an unwarranted invasion of personal
266
562 us 134 (2011) F
267
429 US 589 (1977). In this case, for the firsttime, the Court explicitly recognized an
individual:s interest in nondisclosure of information. The Court chose to address the
status of privacy in the Constitution, underlining that the constitutional right to privacy
remains largely undefined and then identified the types of constitutionally protected
privacy interests as follows: ''The cases sometimes characterized as protecting 'privacy'
have in fact involved at least two different kinds of interests. One is the individual
interest in avoiding disclosure of personal matters, and another is the interest in G
independence in making certain kinds of impOttant decisions." ·
26
'433 US 425 (1977). In this case, the former President of US, Nixon, was challenging
the Presidential Recordings and Material Preservation Act, 1974 on the ground that it
violated his right of privacy, as there ·would be intrusion through the screening of his
documents. Nixon's plea was rejected by the Court, which held held that "any intrusion
[against privacy! must be weighed against the public interest".
H
766 SUPREME COURT REPORTS [2017] lO S.C.R.

A privacy." Ibid. Respondents have not cited any example of
such a disclosure, nor have they identified any plausible
scenario in which their information might be unduly
disclosed under this exception ... In light of the protection
provided by the Privacy Act's nondisclosure requirement,
and because the challenged portions of the forms consist
B
of reasonable inquiries in an employment background
check, we conclude that the Government's inquiries do not
violate a constitutional right to informational privacy."
(emphasis supplied)

c agreedJustice Scalia, in a concurring opinion joined by Justice Thomas,
that the background checks did not violate any constitutional
rights, but argued that the Court should have settled the constitutional
privacy question in the negative. The view held was that there exists no
constitutional right to informational privacy. Scalia J. criticized the Court's
decision to evade the constitutional question, stating that:
D ''If, on the other hand, the Court believes that there is a
constitutional right to informational privacy. then I fail to see the
minimalist virtues in delivering a lengthy opinion analyzing that
right while coyly noting that the right is "assumed" rather than
"dccidcu" ... The Court decides that the Government did
E not violate. the right to informational privacy without deciding
whether there is a right to informational privacy, and without
even describing what hypothetical standard should be used
to assess whether the hypothetical right has been violated."
(emphasis supplied)
F In United States v Jones269 (2012), it was held unanimously that
installing a Global Positioning System (GPS) tracking device on a vehicle
and using the device to monitor the vehicle's movements constitutes a
search under the Fourth Amendment. However, the judges were split
5:4 as to the fundamental reasons behind the conclusion. Justice Scalia
delivered the m<tjority judgment, applying the trespass test. It was held
G that the Government's physical intrusion onto the defendant's car for
the purpose of obtaining information constituted trespass and therefore
a "search''. Justice Scalia, however, left unanswered the question
surrounding the privacy implications of a warrantless use of GPS data
without physical intrusion.
H "'' 565 us 400 (2012)
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 767
[DR. D. Y. CHANDRACHUD, J.]

Justice Sonia Sotomayor, concurred with Justice Scalia,but A
addressed the privacy aspects of the judgment.Justice Sotomayor agreed
with Justice Alito's concurrence that "physical intrusion is now
unnecessary to many fonns of surveillance", and held that "li]n cases of
electronic or other novel modes of surveillance that do not depend upon
a physical invasion on property, the majority opinion's trespassory test B
may provide little guidance". It was further observed:
"GPS monitoring generates a precise, comprehensive record of a
person's public movements that reflects a wealth of detail about
her familial, political, professional, religious, and sexual associations.
Disclosed in [GPS] data ... will be trips the indisputably private
nature of which takes little imagination to conjure: trips to the C
psychiatrist, the plastic surgeon, the abortion clinic, the AIDS
treatment center, the strip club, the criminal defense attorney, the
by-the-hour motel, the union meeting, the mosque, synagogue or
church, the gay bar and on and on ... The Government can store
such records and efficiently mine them for information years into D
the future ... And because GPS monitoring is cheap in comparison
to conventional surveillance techniques and, by design, proceeds
surreptitiously, it evades the ordinary checks that constrain abusive
law enforcement practices: "limited police resources and
community hostility" ...
E
The net result is that GPS monitoring-by making available
at a relatively low cost such a substantial <1uantum of intimate
information about any person whom the Government, in its
unfdtered discretion, chooses to track-may "alter the
relationship between citizen and government in a way that
is inimical to democratic society"." (emphasis supplied) F

Justice Sotomayor concluded, by stating:
"[I] doubt that people would accept without complaint the
warrantless disclosure to the Government of a list of every Web
site they had visited [or phone numbers dialled] ... I would not G
assume that all information voluntarily disclosed to some member
of the. public for a limited purpose is, for that reason alone,·
disentitled to Fourth Amendment protection."
In Florida v Jardines270 (2013), the Court held that police use of
270 569 US I (2013)
H
768 SUPREME COURT REPORTS [2017] 10 S.C.R.

A a trained detection dog to sniff for narcotics on the front porch of a
private home is a "search" within the meaning of the Fourth Amendment
to the US Constitution, and therefore, without consent, requires both
probable cause and a search warrant. Justice Scalia who delivered the
opinion of the Court held as follows:
B "We ... regard the area "immediately surrounding and
associated with the home"-..... as "pait of the home itself for
Fourth Amendment purposes." .... This area around the home
is "intimately linked to the home, both physically and
psychologically," and is where "privacy expectations are
most heightened"." (emphasis supplied)
c
Justice Kagan, in a concurring opinion, wrote:
"Like the binoculars, a drug-detection dog is a specialized device
for discovering objects not in plain view (or plain smell). And as in
the hypothetical above, that device was aimed here at a home-
D the most private and inviolate (or so we expect) of all the
places and things the Fourth Amendment protects ... the
device is not "in general public use," training it on a home
violates our "minimal expectation of privacy"-an
expectation "that exists, and that is acknowledged to be
reasonable"." (emphasis supplied)
E
Three years ago, in Riley v California 271 (2014), the Court
unanimously held that the warrantless search and seizure of digital
contents of a cell phone during an arrest is unconstitutional. Chief Justice
Roberts delivered the opinion of the Court and commented on the impact
on privacy in an era of cell phones:
F
"Before cell phones, a search of a person was limited by
physical realities and tended as a general matter to
constitute only a narrow intrusion on privacy... thc possible
intrusion on privacy is not physically limited in the same
way when it comes to cell phones ... Data on a cell phone
G can also reveal where a person has been. Historic location
information is a standard feature on many smart phones
and can reconstruct someone's specific movements down
to the minute, not only around town but also within a
particular building ... Mobile application software on a cell
'" 573 us _(2014)
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 769
[DR. D. Y. CHANDRACHUD, J.]

phone, or "apps," offer a range of tools for managing A
detailed information about all aspects of a person's life ...
Modern cell phones arc not just another technological
convenience. With all they contain and all they may reveal,
they hold for many Americans "the privacies of life" ••. The
fact that technology now allows an individual to carry such B
information in his hand does not make the information any
less worthy of the protection for which the Founders fought.
Our answer to the question of what police must do before searching
a cell phone seized incident to an arrest is accordingly simple-
get a warrant." (emphasis supplied)
c
In Obergefell v Hodges272 , the Court held in a 5:4 decision that
the fundamental right to marry is guaranteed to same-sex couples by
both the Due Process Clause and the Equal Protection Clause of the
Fourteenth Amendment. Justice Kennedy authored the majority opinion
(joined by Justices Ginsburg, Breyer, Sotamayor and Kagan):
D
"Indeed, the Court has noted it would be contradictory to
recognize a right of privacy with respect to other matters
of family life and not with respect to the decision to enter
the relationship that is the foundation of the family in our
society." (emphasis supplied)
E
The development of the jLirisprudence on the right to privacy in
the United States of America shows that even though there is no explicit
mention of the word 'privacy' in the Constitution, the courts of the country
have not only recognised the right to privacy under various Amendments
of the Constitution but also progressively extended the ambit of protection
under the right to privacy. In its early years, the focus was on property F
and protection of physical spaces that would be considered private such
as an individual's home. This 'trespass doctrine' became irrelevant when
it was held that what is protected under the right to privacy is "people,
not places". The 'reasonable expectation of privacy' test has been relied
on subsequently by various other jurisdictions while developing the right G
to privacy. Having located the right to privacy in the 'person', American
jurisprudence on the right to privacy has developed to shield various
private aspects of a person's life from interference by the state - such
as conseience, education, personal information, communications and
272
576 us - (2015)
H
770 SUPREME COURT REPORTS [2017] 10 S.C.R.

A conversations, sexuality, marriage, procreation, contraception, individual
beliefs, thoughts and emotions, political and other social groups. Various
judgments of the Court have also analysed technological developments
which have made surveillance more pervasive and affecting citizens'
privacy. In all these cases, the Court has tried to balance the interests of
the individual in maintaining the right tu privacy with the interest of the
B
State in maintaining law and order. Decisions of the Supreme Court
decriminalizing consensual sexual activity between homosexuals and
guaranteeing same-sex couples the right to marry indicate that the right
to privacy is intrinsic to the constitutional guarantees of liberty and equal
protection of laws.
c (iii) Constitutional right to privacy in South Africa
In South Africa, the right to privacy has been en~hrined in Section
14 of the Bill of Rights in the 1996 Constitution. Section 14 provides that:
"14. Privacy.-Everyone has the right to privacy, which includes
D the right not to have-
(a) their person or home searched;
(b) their property searched;
(c) their possessions seized; or
E (d) the privacy of their communications infringed."
In National Media Ltd v Jooste 27 J( 1996), Justice Harms defined
privacy in the following terms:
"Privacy is an individual condition oflife characterised by exclusion
from the public and publicit). The condition embraces all those
F personal facts which a person concerned has determined him to
be excluded from the knowledge of outsiders and in respect of
which he has the will that they be kept private"
On the ambit of the right to privacy, the Court held that:
G ''A right to privacy encompasses the competence to determine
the destiny of private facts ...
The individual concerned is entitled to dictate the ambit of
disclosure ...
273 1996 (3) SA 262 (A)

H
JUSTICE K S PUTTASWAMY (RETD.) v: UNION OF INDIA 771
[DR. D. Y. CHANDRACHUD, J.] .·.

the purpose and method [of] the disclosure ... when and under A
what conditions private facts may be made public. A contrary
view will place undue constraints upon the individual's so-called
"absolute rights of personality" ...
It will also mean that rights of personality are of a lower order
than real or personal rights". B
In Bernstein v Bester and Others274 (1996), the South African
Supreme Court decided on a challenge to the constitutionality of certain
sections of the Companies Act, on the ground that examination under
these sections violated the general right to personal privacy (section 13).
It was held that the provisions were not in breach of the Constitution. c
Justice Ackermann expounded upon the concept of privacy as follows:
"The scope of privacy has been closely related to the concept of
identity and ... [that] the right ... [is] based on a notion of the
unencumbered self, but on the notion of what is necessary to
have one's own autonomous identity". D
The Court observed that like every other right, the right to privacy
also has its limits:
"[67] In the context of privacy it is only the inner sanctum of a
person, such as his/her family life, sexual preference and home
environment, which is shielded from erosion by conflicting rights E
of the community. This implies that community right~ and the rights
of fellow members place a corresponding obligation on a citizen,
thereby shaping the abstract notion of individualism towards
identifying a concrete member of civil society. Privacy is
acknowledged in the truly personal realm, but as a person moves F
into communal relations and activities such as business and social
interaction, the scope of personal space shrinks accordingly."
The constitutional validity of laws making sodomy an offence was
challenged in National Coalition for Gay and Lesbian Equality v
Minister of Justice275 (1999). It was held that the common law offence G
of sodomy was inconsistent with the Constitution of the Republic of
South Africa, 1996. Ackermann J. described how discrimination leads to
invasion of privacy and held that:
274
1996 (2) SA 751 (CC)
"' 1999 (I) SA 6 (CC)
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772 SUPREME COURT REPORTS [2017) JO S.C.R.

A "Privacy recognises that we all have a right to a sphere of private
intimacy and autonomy which allows us to establish and nurture
human relationships without interference from the outside
community. The way in which we give expression to our sexuality
is at the core of this area of private intimacy. If, in expressing our
sexuality, we act consensually and without harming one another,
B
invasion of that precinct will be a breach of our privacy ... "
Sachs J. discussed the interrelation between equality and privacy
and held that:
" ... equality and privacy cannot be separated, because they are
c both violated simultaneously by anti-sodomy Jaws. In the present
matter, such laws deny equal respect for difference, which lies at
the heart of equality, and become the basis for the invasion of
privacy. At the same time, the negation by the state of different
forms of intimate personal behaviour becomes the foundation for
the repudiation of equality."
D
On the meaning of 'autonomy', the Court observed that:
"Autonomy must mean far more than the right to occupy an
envelope of space in which a socially detached individual
can act freely from interference by the state. What is crucial
E is the nature of the activity, not its site. While recognising the
unique worth of each person,the Constitution does not
presuppose that a holder of rights is as an isolated, lonely and
abstract figure possessing a disembodied and socially disconnected
self. It acknowledges that people live in their bodies, their
communities, their cultures, their places and their times.
F .. .It is not for the state to choose or to arrange the ·choice of
partner, but for the partners to choose themselves."
(emphasis supplied)
Justice Sachs noted that the motif which links and unites equality
and privacy, and which runs right through the protections offered by the
G Bill of Rights, is dignity.
In Investigating Directorate: Serious Offences v Hyundai
Motor Distributors Ltd 276 (200J),the Court was concenied with the
constitutional.ity of the provisions of the National Prosecuting Authority
276
2001 (1) SA 545 (CC)
H
illSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 773
[DR. D. Y. CHANDRACHUD, J.]

Act that authorised the issuing of warrants of search and seizure for A
l'urposes of a "preparatory investigation".
Langa J. delivered judgment on the right to privacy of juristic
persons and held that:
" ... privacy is a right which becomes more intense the closer it
moves to the intimate personal sphere of the life of human beings, B
and less intense as it moves away from that core. This understanding
of the right flows ... from the value placed on human dignity by the
Constitution. Juristic persons are not the bearers of human dignity.
Their privacy rights, therefore, can never be as intense as those
of human beings. However, this does not mean that juristic persons c
are not protected by the right to privacy. Exclusion of juristic
persons would lead tO the"pOl;sibility of grave violations of privacy
in our society, with serious implications for the conduct of affairs."

i
Highlighting the need to balance interests of the individual and the D
State, it was held that:
"[54] ... Search and seizl1re pr6,visions, in the context of a
preparatory investigation, serve an important purpose in the fight
against crime. That the state has a pressing interest which involves
the security and freedom of the community as a whole is beyond E
question. It is an objective which is sufficiently important to justify
the limitation of the right to privacy of an individual in certain
circumstances .... On the other hand, state officials are not entitled
without good cause to invade the premises of persons for purposes
of searching and seizing prope11y; ... A balance must therefore
be struck between the interests of the individual and that F
of the state, a task that lies at the heart of the im1uiry into
the limitation of rights." (emphasis supplied)
In Minister of Home Affairs and Another v Fourie and
Another 277 (2006), the Constitutional Court of South Africa ruled
unanimously that same-sex couples have a constitutional right to marry. G
The judgment delivered by Justice Sachs, held that: ·
"Section 9(1) of the Constitution provides: "Everyone is equal before
the law and has the right to equal protection and benefit of the
law." ...
277
2006 (!)SA 524 (CC). H
774 SUPREME COURT REPORTS [2017) 10 S.C.R.

A Sections 9(1) and 9(3) cannot be read as merely protecting same-
sex couples from punishment or stigmatisation. They also go
beyond simply preserving a private space in which gay and
lesbian couples may live together without interference from
the state. indeed, what the applicants in this matter seek
is not the right to be left alone, but the right to be
B
acknowledged as equals and to be embraced with dignity
by the law ...
It is demeaning to adoptive parents to suggest that their
family is any less a family and any less entttled to respect
and concern than a family with procreated children. It is
c even demeaning of a couple who voluntarily decide not to
have children or sexual relations with one another; this
being a decision entirely within their protected sphere of
freedom and privacy ..." (emphasis supplied)
In NM and Others v Smith and Others 278 (2007),the names of
D three women who were HIV positive were disclosed in a biography.
They alleged that the publication, without their prior consent, violated
their rights to privacy, dignity and psychological integrity. The Court by
majority held that the respondents were aware that the applicants had
not given their express consent but had published their names, thereby
E violating their privacy and dignity rights. Justice Madala delivered the
majority judgment on the basis of the value of privacy and confidentiality
in medical information and held that:
"Private and confidential medical information contains highly
sensitive and personal information about individuals. The personal
F and intimate nature of an individual's health information, unlike
·other forms of documentation, reflects delicate decisions and
choices relating to issues pertaining to bodily and psychological
integrity and personal autonomy ...
Individuals value the privacy of confidential medical information
G because of the vast number of people who could have access to
the information and the potential harmful effects that may result
from disclosure. The lack ofrespcct for private medical information
and its subsequent disclosure may result in fear jeopardising an
individual's right to make ce1tain fundamental choices that he/she
278
2007 (5) SA 250 (CC).
H
JUSTICE K S PUTTASWAMY (~ETD.) v. UNION OF INDIA 775
[DR. D. Y. CHANDRACHUD, J.]

has a right to make. There is therefore a strong privacy interest in A
maintaining confidentiality."
The decision of the Court was that there must be a pressing social
need for the right to privacy to be interfered with and that there was no
such compelling public interest in this case.
In the dissenting opinion, Justice O'Regan held that the publication B
of the names and HIV status of the women was neither intentional nor
negligent. In that view, the respondents had assumed that consent was
given because the applicants' names and HIV status were published in
a publication, with no disclaimer regarding their consent to the contrary.
While elaborating on the constitutional right of privacy, the Court held c
that:
" ... although as human beings we live in a community and are in a
real sense both constituted by and constitutive of that community,
we are nevertheless entitled to a personal sphere from which we
may and do exclude that community. In that personal sphere, we D
establish and foster intimate human relationships and live our daily
lives. This sphere in which to pursue our own ends and interests
in our own ways, although often mundane, is intensely important
to what makes human life meaningful."
According to the decision, there are two inter-related reasons for E
the constitutional protection of privacy- one flows from the "constitutional
conception of what it means to be a human being" and the second from
the "constitutional conception of the state":
"An implicit part of [the first] aspect of privacy is the right to
choose what personal information of ours is released into the public F
space. The more intimate that information, the more
important it is in fostering privacy, dignity and autonomy
that an individual makes the primary decision whether to
release the information. That decision should not be made by
others. This aspect of the right to privacy must be respected by
all of us, not only the state . G
... Secondly, we value privacy as a necessary part of a
democratic society and as a constraint on the power of the
state ... In authoritarian societies, the state generally does not afford
such protection. People and homes are often routinely searched
H
776 SUPREME COURT REPORTS [2017] 10 S.C.R.

A and the possibility of a private space from which the state can be
excluded is often denied. The consequence is a denial of liberty
and human dignity.In democratic societies, this is impermissible."
(emphasis supplied)
The limits of the right to privacy and the need to balance it with
B otheryights emerge from the following observations:
"Recognition oflegitimate limits on the inviolability of personal
space, however, does not mean that the space is not worthy of
protection. The Constitution seeks to ensure that rights reinforce
one another in a constructive manner in order to promote human
c rights generally. At times our Constitution recognises that a balance
has to be found to provide protection for the different rights."
On the inter-relationship between the right to privacy, liberty and
dignity, the Court observed that:
"The right to privacy recognises the importance of protecting the
D sphere of our personal daily lives from the public. In so doing, it
highlights the inter-relationship between privacy, liberty and
dignity as the key constitutional rights which construct our
understanding of what it means to be a human being. All
these rights arc therefore inter-dependent and mutually
E reinforcing.We value privacy for this reason at least - that the
constitutional conception of being a human being asserts and seeks
to foster the possibility of human beings choosing how to live their
lives within the overall framework of a broader community."
(emphasis supplied)

F The interim as well as the Final Constitution of South Africa contain
explicit provisions guaranteeing the right to privacy. The Judges of South
African Supreme Court have given an expansive meaning to the right,
making significant inter-linkages between equality, privacy and dignity.
In doing so, it has been acknowledged that the right to privacy does not
exist in a vacuum, its contravention having a significant bearing on other
G citizen rights as well. Such an interpretation may prove to have a catalytic
effect on a country transitioning from an apartheid state to a democratic
nation.
(iv) Constitutional right to privacy in Canada
Although the Canadian Charter of Rights and Freedoms of 1982
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 777
[DR. D. Y. CHANDRACHUD, J.]

. ("the Charter") does not explicitly provide for a right to privacy, certain A
sections of the Charter have been relied on by the Supreme Court of
Canada to recognize a right to privacy. Most notably, Section 8279 (the
Canadian version of the Fourth Amendment of the US Constitution) has
been employed in this respect. Privacy issues have also been recognized
in respect of Section 7280 of the Charter. In 1983, the Privacy Act was
B
enacted to regulate how federal government collects, uses and discloses
personal information. 28 'The Personal Information Protection and
Electronic Documents Act (PJPEDA) governs how private sector
organisations collect, use and disclose personal information in the.course
of commercial activities
One of the landmark cases on the right to privacy was Hunter v c
Southam Inc282 (l 984). This was also the first Supreme Court of Canada
decision to consider Section 8 of the Charter. In this case, th!:'. Combines
Investigation Act had authorized several civil servants foenter the offices
of Southam Inc and examine documents. The company claimed that this
Act violated Section 8 of the Canadian Charter. The Court unanimously D
held that the Combines Investigation Act violated the Charter as it did
not provide an appropriate standard for administering warrants.
Dickson J. wrote the opinion of the Court and observed that the
Canadian Charter is a "purposive document" whose. purpose is to
"guarantee and to protect, within the limits of reason, the enjoyment of E
the rights and freedoms it enshrines" and to constrain governmental
action inconsistent with those rights and freedoms. The Court held that
since Section 8 is an entrenched constitutional provision, it was "not
vulnerable to encroachment by legislative enactments in the same way
as common law protections."
F
279 Section 8 of the Charter provides as follows: "Everyone has the right to be secure
against unreasonable search or seizure."
280 Section 7 of the Canadian Charter deals with life, liberty and security of person and

states that: "Everyone has the right to life, liberty and security of the person and the
right not to be deprived thereof except in accordance with the principles of fundamental
justice." G
"'In Lavigne v. Canada (Office of the Commissioner of Official Languages), (2002)
2 SCR 773, the Supreme Court of Canada recognised the Privacy Act as having a
"quasi-constitutional" status, as it is "closely linked to the values and rights set out in
the Constitution". The Court also stated that the "The Privacy Act is a reminder of the
extent to which the protection of privacy is necessary to the preservation of a free and
·democratic society".
282
[1984] 2 SCR 145 ' H

\,
778 SUPREME COURT REPORTS [2017] 10 S.C.R.

A The Court held that the purpose of Section 8 is to protect an
individual's reasonable expectation of privacy but right to privacy must
be balanced against the government's duty to enforce the law. It was
further held that:
"The guarantee of security from unreasonable search and seizure
B only protects a reasonable expectation. This limitation on the right
guaranteed bys. 8, whether it is expressed negatively as freedom
from "unreasonable" search and seizure, or positively as an
entitlement to a "reasonable" expectation of privacy, indicates
that an assessment must be made as to whether in a particular
situation the public's interest in being left alone by government
c must give way to the government's interest in intruding on the
individual's privacy in order to advance its goals, notably those of
law enforcement."
In Her Majesty, The Queen v Brandon Roy Dyment 283 (1988), ·
a patient had met with an accident on a highway. A doctor collected a
D sample of blood from his wound. The blood sample was taken for medical
purposes but was given to a police officer. As a result of an analysis
carried out by the police officer, the patient was charged with impaired
driving. The Court held that the seizing of blood taken for medical purposes
was a violation of Section 8 of the Charter and that the spirit of the
E Charter "must not be constrained by narrow legalistic classifications
based on notions of property". It was further held:
"[L]egal claims to privacy in this sense were largely confined to
the home. But ... [t]o protect privacy only in the home ... is
to shelter what has become, in modern society, only a small
F part of the individual's daily environmental need for
privacy...
Privacy is at the heart of liberty in a modern
state •.• Grounded in man's physical and moral autonomy,
privacy is essential for the well-being of the individual. For
G this reason alone, it is worthy of constitutional protection,
but it also has profound significance for the public order.
The restraints imposed on government to pry into the lives
of the citizen go to the essence of a democratic state."
(emphasis supplied)
283 (1988] 2 SCR 417

H
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 779
[DR. D. Y. CHANDRACHUD, J.]

On the importance of infonnational privacy, it was held: A
"This notion of privacy derives from the assumption that all
information about a person is in a fundamental way his own, for
him to communicate or retain for himself as he sees fit...
In modem society, especially, retention of information about oneself
is extremely important. We may, for one reason or another, wish B
or be compelled to reveal such infonnation, but situations abound
where the reasonable expectations of the individual that the
information shall remain confidential to the persons to whom, and
restricted to the purposes for which it is divulged, must be
protected." C
Justice La Forest wrote on the importance of consent and held
that "the use of a person's body without his consent to obtain information
about him, invades an area of personal privacy essential to the maintenance
of his human dignity."
The Court found that the patient had a "well-founded" and D
"reasonable" expectation of privacy that his blood sample, collected by
the doctor, would be used for medical purposes only and that such
expectation "is intended to protect people not things". It was held that:
"In the present case, however, the respondent may, for some
purposes perhaps, be deemed to have impliedly consented to a sample E
being taken for medical purposes, but he retained an expectation that his
privacy interest in the sample continue past the time of its taking ... Under
these circumstances, the sample was surrounded by an aura of privacy
meriting Charter protection. For the state to take it in violation of a patient's
right to privacy constitutes a seizure for the purposes of s. 8." F
R vPlant ( 1993) is a leading decision of the Supreme Court of
2114

Canada on the protection of personal information under the Charter. In
this case, a police officer, on the basis of information that marijuana was
being grown in an area, accessed the electrical utility's computer system
and discovered that a particular house was consuming an extremely G
high amount of electricity. Two officers then performed a warrantless
perimeter search of the property and observed that the basement windows
were covered with something opaque and a that a vent had been blocked
using a plastic bag. On the basis of this information, the police obtained
284
(1993] 3 S.C.R. 281
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780 SUPREME COURT REPORTS [2017] JO S.C.R.

A a warrant to search the home and discovered over a hundred seedling
marijuana plants. The accused was charged with cultivation of marijuana
and possession for the purpose of trafficking. The issue was whether
the warrantless perimeter search of his home and the seizure of electricity
consumption records violated his right against unreasonable search and
seizure under section 8 of the Charter.
B
The judgment delivered by Justice Sopinka relied on a part of the
United States v Miller285 decision, that in order to be constitutionally
protected the information must be of a "personal and confidential" nature
and held that:
c "'In fostering the underlying values of dignity, integrity and
autonomy, it is fitting thats. 8 of the Charter should seek to protect
a biographical core of personal information which individuals in a
free and democratic society would wish to maintain and control
from dissemination to the state. This would include information
which tends to reveal intimate details of the lifestyle and personal
D choices of the individual."
The Court held that the perimeter search violated the Charter and
that the seizure of consumption records was not in violation of Section 8.
This decision was based on the ground that the pattern of electricity
consumption revealed as a result of computer investigations could not
E be said to reveal intimate details since "electricity consumption reveals
v;ry little about the personal lifestyle or private decisions."
In Her Majesty, The Queen v Walter Tessling286 (2004), the
Supreme Court of Canada held that the use of thermal imaging by the
police in the course of an investigation of a suspect's property did not
F constitute a violation of the accused's right to a reasonable expectation
of privacy under Section 8 of the Canadian Charter.
On the reasonable expectation of privacy, it was held that the
totality of circumstances need to be considered with particular emphasis
on boththe existence of a subjective expectation of privacy, and the
G objective reasonableness of the expectation. The Court ruled that the
cases of privacy interests (protected by S. 8 of the Canadian Charter)
need to be distinguished between personal privacy, territorial privacy
and informational privacy."
"' 425 us 435 ( 1976)
" 6 (2004) sec 67
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 781
[DR. D. Y. CHANDRACHUD, J.]

The Court relied on Justice Sopinka's understanding of the scope A
of the protection of informational privacy in R v Plant (supra)and held
that the i1iformation generated by FLIR imaging did not reveal a
"biographical core of personal information" or "intimate details of [his]
lifestyle", and therefore section 8 had not been violated.
The decision in R v Spencer287 (2014) was related to informational B
privacy. In this case, the appellant used an online software to download
child pornography onto a computer and shared it publicly. The police
requested subscriber information associated with an IP address from
the appellant's Internet Service Provider and on the basis of it, searched
the computer used by him. The Canadian Supreme Court unanimously
ruled that the request for an IP address infringed the Charter's guarantee C
against unreasonable search and seizure. It was held that the appellant
had a reasonable expectation of privacy. In doing so, it assessed whether
there is a "reasonable expectation of privacy" in the "totality of the
circumstances", which includes "the nature of the privacy interests
implicated by the state action" and "factors more directly concerned D
with the expectation of privacy, both subjectively and objectively viewed,
in relation to those interests". It was further held:
" ... factors that may be considered in assessing the reasonable
expectation of privacy can be grouped under four main headings
for analytical convenience: (1) the subject matter of the alleged E
search; (2) the claimant's interest in the subject matter;
(3) the claimant's subjective expectation of privacy in the
subject matter; and (4) whether this subjective expectation
of privacy was objectively reasonable, having regard to the
totality of the circumstances." (emphasis supplied)
F
The issue in the case was whether there is a privacy interest in
subscriber information with respect to computers used in homes for
private purposes. The Court applied a broad approach in understanding
the online privacy interests and held that:
"Privacy is admittedly a "broad and somewhat evanescent G
concept" ... [T]he Court has described three broad types of privacy
interests - territorial, personal, and informational - which, while
often overlapping, have proved helpful in identifying the nature of
the privacy interest or interests at stake in particular situations ... "
m (2014) sec 43
H
782 SUPREME COURT REPORTS [2017] IO S.C.R.

A The Court found that the nature of appellant's privacy interest in
subscriber information relating to a computer used privately was primarily
an informational one and held:
" ... the identity of a person linked to their use of the Internet must
be recognized as giving rise to a privacy interest beyond that
B inherent in the person's name, address and telephone number found
in the subscriber information."
It then set out three key elements of informational privacy: privacy
as secrecy, privacy as control, and privacy as anonymity. It further
emphasised on the importance of anonymity in informational privacy,
c particularly in the age of the Internet and held that:
"... anonymity may, depending on the totality of the circumstances,
be the foundation of a privacy interest that engages constitutional
protection against unreasonable search and seizure ... "
Though the Court stopped short of recognizing an absolute right
D to anonymity, it held that "anonymous Internet activity engages a high
level of informational privacy". The Court further held that:
"The disclosure of this information will often amount to the
identification of a user with intimate or sensitive activities being
catTied out online, usually on the understanding that these activities
E would be anonymous. A request by a police officer that an ISP
voluntarily disclose such information amounts to a search."
The Canadian Supreme Court has used provisions of the Charter
to expand the scope of the right to privacy, used traditionally to protect
individuals from an invasion of their property rights, to an individual's
F "reasonable expectation of privacy''. The right to privacy has been held
to be more than just a physical right as it includes the privacy in
information about one's identity. Informational privacy has frequently
been addressed under Section 8 of the Charter. Canadian privacy
jurisprudence has developed with the advent of technology and the
internet. Judicial decisions have significant implications for internet/digital
0
privacy.
(v) Privacy under The European Convention on Human Rii;hts
and the European Charter
In Europe, there are two distinct but related frameworks to ensure
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 783
[DR. D. Y. CHANDRACHUD, J.]

the protection of the right of privacy. The first is the European Convention A
on Human Rights (ECHR), an international agreement to protect human
rights and fundamental freedoms in Europe. The second is the Charter
of Fundamental Rights of the European Union (CFREU), ·a treaty
enshrining certain political, social, and economic rights for the European
Union. Under ECHR ("the Convention"), the European Court of Human B
Rights (ECtHR), also known as the 'Strasbourg Court', is the adjudicating
body, which hears complaints by individuals on alleged breaches of human
rights by signatory states. Similarly, under CFREU ("the Charter), the
Court of Justice of the European Union (CJEU), also called the
'Luxembourg Court', is the chief judicial authority of the European Union
and oversees the uniform application and interpretation of European Union C
law, in co-operation with the national judiciary of the member states.
Article 8 of the ECHR provides that:
"Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, D
his home and his correspondence.
2. There shall be no interference by a ·public authority with the
exercise of this right except such as is in accordance with the law
and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, E
for the prevention of disorder or crime, for the protection of health
or morals, or for the protection of the rights and freedoms of
others." ·
Under the Charter, the relevant provisions are:
Article 7 F
Respect for private and family life
Everyone has the right to respect for his or her private and family
life, home and communications.
Article 8 G
Protection of personal data
_1. Everyone has the right to the protection of personal data
concerning him or her.
2. Such data must be processed fairly for specified purposes and H _
784 SUPREME COURT REPORTS [2017) 10 S.C.R.

A on the basis of the consent of the person concerned or some
other legitimate basis laid down by law. Everyone has the right of
access to data which has been collected concerning him or her,
and the right to have it rectified.
3. Compliance with these rules shall be subject to control by an
B independent authority.
Article 52
Scope of guaranteed rights
1. Any limitation on the exercise of the rights and freedoms
C recognised by this Charter must be provided for by law and respect
the essence of those rights and freedoms. Subject to the principle
of proportionality, limitations may be made only if they are
necessary and genuinely meet objectives of general interests
recognised by the Union of the need to protect the rights and
freedoms of others.
D
2. Rights recognised by this Charter which are based on the
Community Treaties or the Treaty on European Union shall be
exercised under the conditions and within the limits defined by
those Treaties.
3. In so far as this Charter contains rights which correspond to
E
rights guaranteed by the Convention of the Protection of Human
Rights and Fundamental Freedoms, the meaning and scope of
those rights shall be the same as those laid down by the said
Convention. This provision shall not prevent Union law providing
more extensive protection.
F
Article 52(3) provides for the ECHR as a minimum standard of
human rights in the EU. Article 52(3) thus leads the EU to be indirectly
bound by the ECHR as it must always be obeyed when restricting
fundamental rights in the EU. Moreover, in the pre-Charter era, the
protection of privacy was held to form part of the right to privacy in line
G with how the ECtHR in Strasbourg interprets Art. 8 of ECHR till date288 •
288 In the case of J McB v LE, Case C-400/10 PPU, [2010] ECR 1-nyr, the CJEU ruled

that where Charter rights paralleled ECHR rights, the Court of Justice should follow
any consistent jurisprudence of the European Court of Human Rights, elucidating that:
"It is clear that the said Article 7 [of the EU Charter] contains rights corresponding to
H those guaranteed by Article 8(1) of the ECHR. Article 7 of the Charter must therefore
JUSTICE KS PUTIASWAMY (RETD.) v. UNION OF INDIA 785
[DR. D. Y. CHANDRACHUD, J.]

Thus, in order to understand the protection exte.nded to the right A
to privacy in EU, the jurisprudence of Article 8 of the Convention and
Article 7 of the Charter need to be analyzed. The term 'private life' is an
essential ingredient of both these provisions and has been interpreted to
encompass a wide range of interests.
In the case of ·Niemietz v Germany 2 ~ 9 (1992), the ECtHR B
observed that:
"The Court does not consider it possible or necessary to attempt
an exhaustive definition of the notion of "private life". However,
it would be too restrictive to limit the notion to an "inner circle" in
which the individual may live his own personal life as he chooses c
and to exclude therefrom entirely the outside world not
encompassed within that circle. Respect for private life must also
comprise to a certain degree the right to establish and develop
relationships with other human beings."
Similarly, in Costello-Roberts v United Kingdom290 (1993),the D
ECtHR stated that "the notion of "private life" is a broad one" and "is
not susceptible to exhaustive definition".
This broad approach is also present in the recent cases of European
jurisprudence. In S and Marper v United Kingdom291 (2008), the
ECtHR held, with respect to right to respect for private life, that : E
" ... the concept of "private life" ... covers the physical and·
psychological integrity of a person ... It can therefore embrace
multiple aspects of the person's physical and social identity...
Elements such as, for example, gender identification, name and
sexual orientation and sexual life fall within the personal sphere F
protected by Article 8... Beyond a person's name, his or her private
and family life may include other means of personal identification
and oflinking to a family ... Information about the person's health
is an important element of private life... The Court furthermore
be given the same meaning and the same scope as Article 8(1) of the ECHR ..." Reference
can be passed to a case before ECtHR, Varec SA v. Etat beige, Case C-450/06, [2008] G
ECR I-581, where it was observed that that:· " ... the right to respect for private life,
enshrined in Article 8 of the ECHR, which flows from the common constitutional
traditions of the Member States .... is restated in Article 7 of the Charter of fundamental
rights of the European Union".
289
Application no. 13710/88,judgment dated 16September1992.
290 Application no. 13134/87, judgment dated 25 March 1993.

,., [2008] ECHR 1581 H
786 SUPREME COURT REPORTS [2017] 10 S.C.R.

A considers that an individual's ethnic identity must be regarded as
another such element... The concept of private life moreover
includes elements relating to a person's right to their image ... "
In Uzun v Germany 292 (2010),the European Court of Human
Rights while examining an application claiming violation of Article 8
B observed that:
. "Article 8 protects, inter alia, a right to identity and personal
development, and the right to establish and develop relationships
with other human beings and the outside world. There is, therefore,
a zone of interaction of a person with others, even in a public
c context, which may fall within the scope of "private life" ...
There are a number of elements relevant to a consideration of
whether a person's private life is concerned by measures effected
outside a person's home or private premises. Since there are
occasions when people knowingly or intentionally involve
D themselves in activities which are or may be recorded or reported
in a public manner, a person ·s reasonable expectations as to privacy
may be a significant, although not necessarily conclusive, factor ..."
Thus, the determination of a complaint by an individual under Article
8 of the Convention necessarily involves a two-stage test 29 ', which can
E be summarized as below:
"Stage I: Article 8 para. I
I .I Does the complaint fall within the scope of one of the
rights protected by Article 8 para I?
1.2 If so, is there a positive obligation on the State to respect
F
an individual's right and has it been fulfilled?
Stage 2: A1ticle 8 para. 2
2.1 Has there been an interference with the Article 8 right?
2.2 If so,
G
2.2.1 is it in accordance with law?

"' Application No. 35623/05
203 Ursula Kilkelly, "The right to respect for private and family life: A guide to the

implementation of Article 8 of the European Convention on Human Rights", Co1111cil of
H Europe (200 I), al page 9 ·
JUSTICE K S PUTTASWAMY (RETD-.) v. UNION OF INDIA .· 787
[DR. D. Y. CHANDRACHUD, J.]

2.2.2 does it pursue a legitimate aim? A
2.2.3 is it necessary in a democratic society?
This test is followed by the Court each time it. applies Article 8 in
a given case."
In other words, a fair balance is struck between the general interest B
of the community and the interests of the individual.
The Grand Chamber of 18 judges at the ECtHR, in S and Marper
v United Kingdom (supra), examined the claim of the applicants that
their Right to Respect for Private Life under Article 8 was being violated
as their fingerprints, cell samples and DNA profiles were retained in a C
database after successful termination of criminal proceedings against
them. The Court held that there had been a violation of Article 8 of the
Convention. Finding that the retention at issue had constituted a
disproportionate interference with the applicants' right to respect for
private life, the Court held that "the blanket and indiscriminate nature of
the powers of retention of the fingerprints, cellular samples and DNA D
profiles of persons ... fails to strike a fair balance between the competing
public and private interests and that the respondent State has overstepped
any acceptable margin of appreciation". It was further held that:
"The mere storing of data relating to the private life of an individual
amounts to an interference within the meaning of Article 8. E
However, in determining whether the personal information retained
by the authorities involves any of the private-life aspects mentioned
above, the Court will have due regard to the specific context in
which the information at issue has been recorded and retained,
the nature of the records, the way in which these records are F
used and processed and the results that may be obtained."
Applying the above principles, it was held that
"The Court notes at the outset that all three categories of the
personal information retained by the authorities in the present cases,
namely fingerprints, DNA profiles and cellular samples, constitute G
personal data within the meaning dfthe Data Protection Convention
as they relate to identified or identifiable individuals. The
Government accepted that all three categories are "personal data"
within the meaning of the Data Protection Act 1998 in the hands
of those who are able to identify the individual."
H
788 SUPREME COURT REPORTS [2017] 10 S.C.R.

A Regarding the retention of cellular samples and DNA profiles, it
was held that:
"Given the nature and the amount of personal information
contained in cellular samples, their retention per se must be
regarded as interfering with the right to respect for the private
B lives of the individuals concerned. That only a limited part of this
information is actually extracted or used by the authorities through
DNA profiling and that no immediate detriment is caused in a
paiticular case does not change this conclusion ... [T]he DNA
profiles' capacity to provide a means of identifying genetic
relationships between individuals ... is in itself sufficient to conclude
c that their retention interferes with the right to the private life of
the individuals concerned ... The possibility the DNA profiles create
for inferences lo be drawn as to ethnic origin makes their retention
all the more sensitive and susceptible of affecting the right to
private life."
D Regarding retention of fingerprints, it was held that:
" ... fingerprints objectively contain unique information about the
individual concerned allowing his or her identification with precision
in a wide range of circumstances. They are thus capable of
affecting his or her private life and retention of this information
E without the consent of the individual concerned cannot be
regarded as neutral or insignificant ... "
In Uzun v Germany (supra),the ECtHR examined an application
claiming violation of Article 8 of European Convention of Human Rights
where the applicant's data was obtained via the Global Positioning System
F (GPS) by the investigation agencies and was used against him in a criminal
proceeding. In this case, the applicant was suspected of involvement in
bomb attacks by the left-wing extremist movement. The Court
unanimously concluded that there had been no violation of Article 8 and
held as follows:
G "GPS surveillance of Mr Uzun had been ordered to investigate
several counts of attempted murder for which a terrorist movement
had claimed responsibility and to prevent further bomb attacks. It
therefore served the interests of national security and public safety,
the prevention of crime and the protection of the rights of the
victims. It had only been ordered after less intrusive methods of
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 789
[DR. D. Y. CHANDRACHUD, J.]

investigation had proved insufficient, for a relatively short period A
of time -three months - and it had affected Mr Uzun OIJly when
he was travelling with his accomplice's car. Therefore, he could
not be said to have been subjected to total and comprehensive
surveillance. Given that the investigation concerned very serious
crimes, the Court found that the GPS surveillance of Mr Uzun
B
had been proportionate."
The decision of the CJEU in the case Asociacion Nacional de
Establecimientos Financieros de Credito (ASNEF) v Spain 2') 4 relied
upon the Article 7 right to respect for private life and Article 8( 1) of the·
Charter to find that the implementation in Spain of the Data Protection
Directive was defective in that it applied only to information kept in a C·
specified public data bank rather than more generally to public and private
databases, on the basis that "the processing of data appearing in none
public sources necessarily implies that information relating to the data .
subject's private life will thereafter be known by the data controller and,
as the case may b_e, by the third party or parties to whoni the data is D
disclosed. This more serious infringement of the data subject's rights
enshrined in Articles 7 and 8 of the- Charter must be properly taken into
account".
In Digital Rights Ireland Ltd v Minister295 (2014), theCJEU
examined the validity of a Data Protection Directive, which required E
telephone and internet service providers to retain details of internet and
ca11 data for 6 to 24 months, as well as related data necessary to identify
the subscriber or user, so as to ensure that the data is available for the
purpose of prevention, investigation, detection and prosecution of serious .
crimes. The Court ruled that the. Directive is incompatible with Article
. 52(1) of the Charter, because the limitations which the said Directive F
placed were "not accompanied by the necessary principles for governing
the guarantees needed to regulate access to the data and their use". It
was held that: ·
. "To establish the existence of an interference with the fundamental
right to privacy, it does not matter whether the ·information on the G
private lives concerned is sensitive or whether the persons
concerned have been inconvenienced in any way."
2
. "'C~468/10, 24 November, (2011] ECR I-nyr
"'C-293/12
H
790 SUPREME COURT REPORTS [2017] I 0 S.C.R.

A While stating that data relating to the use of electronic
communications is particularly important and therefore a valuable tool in
the prevention of offences and the fight against crime, in particular
organised crime, the Court looked into the proportionality of the
interference with the right to privacy and held that:
B "As regards the necessity for the retention of data required by
Directive 2006/24, it must be held that the fight against serious
crime, in particular against organised crime and terrorism, is indeed
of the utmost importance in order to ensure public security and its
effectiveness may depend to a great extent on the use of modern
investigation techniques. However, such an objective of general
c interest, however fundamental it may be, does not, in itself, justify
a retention measure such as that established by Directive 2006/
24 being considered to be necessary for the purpose of that fight. .. "
Highlighting that the said Directive does not provide for sufficient
safeguards, it was held that by adopting the Directive, the EU "exceeded
D the limits imposed by compliance with the principle of proportionality in
the light of Articles 7, 8 and 52(1) of the Charter."
In RE v The United Kingdom 296 (2015),the applicant was
arrested and detained on three occasions in relation to the murder of a
police officer. He claimed violation of Article 8 under the regime of
E covert surveillance of consultations between detainees and their lawyers,
medical advisors and appropriate adults297 sanctioned by the existing
law. The ECtHR held that:
"The Court ... considers that the surveillance of a legal consultation
constitutes an extremely high degree of intrusion into a person's
F right to respect for his or her private life and correspondence ...
Consequently, in such cases it will expect the same safeguards to
be in place to protect individuals from arbitrary interference with
their A1ticle 8 rights ...
Surveillance of "appropriate adult"-detainee consultations were
G not subject to legal privilege and therefore a detainee would not
have the same expectation of privacy.... The relevant domestic
provisions, insofar as they related to the possible surveillance of
m Application No. 62498/11
297As per the facts of the case, an "appropriate adults" could be a relative or guardian,
or a person experienced in dealing with mentally disordered or mentally vulnerable
H people.
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 791
[DR. D. Y. CHANDRACHUD, J.]

consultations between detainees and "appropriate adults", were A
accompanied by "adequate safeguards against abuse", notably
as concerned the authorisation, review and record keeping. Hence,
there is no violation of Article 8."
In Roman Zakharov v Russia 298 (2015),ECtHR examined an
application claiming violation of Article 8 of the Convention alleging that B
the mobile operators had permitted unrestricted interception of all
telephone communications by the security services without prior judicial
authorisation, under the prevailing national Jaw. The Court observed that:
"Mr Zakharov was entitled to claim to be a victim of a violation of
the European Convention, even though he was unable to allege c
that he had been the subject of a concrete measure of surveillan_ce.
Given the secret nature of the surveillance measures provided for
by the legislation, their broad scope (affecting all users of mobile
telephone communications) and the lack of effective means to
challenge them at national level... Russian law did not meet the
"quality of law" requirement and was incapable of keeping the D
interception of communications to what was "necessary in a
democratic society". There had accordingly been a violation of
Article 8 of the Convention.''
Both the ECtHR and the CJEU, while dealing with the application
and interpretation of Article 8 of ECHR and Article 7 of the Charter, E
have kept a balanced approached between individual .interests and societal
interests. The two-step test in examining an individual claim related to a
Convention right has strictly been followed by ECtHR.
(vi) Decisions of the Inter-American Court of Human Rights
F
Article 11 of the American Convention on Human Rights deals
with the Right to Privacy. The provision is extracted below;
"I. Everyone has the right to have his honor respected and his
dignity recognized.
2. No one may be the object of arbitrary or abusive interference G
.with his private life, his family, his home, or his correspondence,
or of unlawful attacks on his honor or reputation.
3. Everyone has the right to the protection of the Jaw against such
interference or attacks."
'"Application No. 47143/06 H
792 ,SUPREME-COURT REPORTS [2017] 10 S.C.R.

A The decision in Artavia Murillo ET AL. ("In Vitro
Fertilization") v Costa Rica 299 (2012),addressed the question of
whether the State's prohibition on the practice of in vitro fertilisation
constituted an arbitrary interference with the right to private life. The
Court held that:
B "The scope of the protection of the right to private life has
been interpreted in broad terms by the international human
rights courts, when indicating that this goes beyond the right to
privacy. The protection of private life encompasses a series
of factors associated with the dignity of the individual,
·including, for example, the ability to develop his or her own
c personality and aspirations, to determine his or her own
identity and to define his or her own personal relationships.
The concept of private life encompasses aspects of physical
and social identity, including the right to pers~nal autonomy,
personal development and the right to establish and develop
D relationships with other human beings and with the outside
world. The effective exercise of the right to private life is
decisive for the possibility of exercising personal autonomy
on the future course of relevant events for a person's quality
of life. Private life includes the way in which individual views
himself and how he decides to project this view towards
E others, and is an essential condition for the free
development of the personality ... Furthermore, the Court.has
indicated that motherhood is an essential part of the free
development of a woman's personality. Based on the foregoing,
the Court considers that the decision of whether or not to become
F a parent is part of the right to private life and includes, in this case,
the decision of whether or not to become a mother or father in the
genetic or biological sense." (emphasis supplied)
In Escher et al v Brazi1300 (2009),telephonic interception and
monitoring of telephonic lines was carried out by the military police of
G the State between April and June 1999. The Court found that the State
violated the American Convention on Human Rights and held that:
"Article 11 applies to telephone conversations irrespective of their
content and can even include both the technical operations designed
m Inter-Am. Ct. H.R. (Ser. C) No. 257
H 300 Inter-Am. Ct. H.R. (Ser. C) No. 200
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 793
[DR. D. y, CHANDRACHUD, J.]

to record this content by taping it and listening to it, or any other A
element of tht; communication process; for example, the destination
or origin of the calls that are made, the identity of the speakers,
the frequency, time and duration of the calls, aspects that can be
verified without the need to record the content of the call by taping
the conversation... ·
B
Article l l of the Convention recognizes that every person has the
right to respect for his honor, prohibits an illegal attack against
honor and reputation, and imposes on the States the obligation to.
provide legal protection against such attacks. In general, the right
to honor relates to self-esteem and self-worth, while reputation
refers to the opinion that others have of a person... C
[O]wing to the inherent danger of abuse fn any monitoring system,
this measure must be based on especially precise legislation with
clear, detailed rules. The American Convention protects the
confidentiality and inviolability of communications from any kind
of arbitrary or abusive interference from the State or individuals; D
consequently, the surveillance, intervention, recording and
dissemination of such communications is prohibited, except in the
cases established by law that are adapted to the objects and
purposes of the American Convention."
Like otherinternational jurisdictions, the Inter-American Court of E
Human Rights dealt with the concept of privacy and private life in broad
terms which enhance the value of liberty and freedom. ·
The development of the law on privacy in these jurisdictions has
drawn sustenance from the importance and sanctity attributed to individual
freedom and liberty. Constitutions which, like the Indian Constitution, F
contain entrenched rights place the dignity of the individual on a high
pedestal. Despite cultural differences and disparate histories, a study of
comparative law provides reassurance that the path which we have
charted accords with a uniform respect for human values in the
constitutional culture of the jurisdictions which we have analysed. These G
values are universal and of enduring character. ·
L. Criticisms of the priv~cy doctrine
135. The Attorney General for India, leading the arguments before
this Court on behalf of Union oflndia, has been critical of the recognition
H.
794 . SUPREME COURT REPORTS [2017] 10 S.C.R.

A being given to a general right of privacy. The submission has several
facets, among them being:
(i) there is no general or fundamental right to privacy under the
Constitution;
(ii) no blanket right to privacy can be read as part of the
B fundamental rights and where some of the constituent facets
of privacy are already covered by the enumerated guarantees
in Part III, those facets will be protected in any case;
(iii) where specific species of privacy are governed by the
protection of liberty in Part III of the Constitution, they are
c subject to reasonable restrictions in the public interest as
recognized in several decisions of this Court ;
(iv) privacy is a concept which does not have any specific meaning
or definition and the expression is inchoate; and

D (v) the draftsmen of the Constitution specifically did not include
such a right as part of the chapter on fundamental rights and
even the ambit of the expression liberty which was originally
sought to be used in the draft Constitution was pruned to
personal liberty. These submissions have been buttressed by
Mr Aryama Sundaram, learned senior counsel.
E
136. Criticism and critique lie at the core of democratic governance.
Tolerance of dissent is equally a cherished value. In deciding a case of
, such significant dimensions, the Court must factor in the criticisms voiced
both domestically and internationally. These, as we notice. are based on
academic, philosophical and practical considerations.
F
137. The Stanford Encyclopaedia of Philosophy adverts to
"several sceptical ·and critical accounts of privacy". The criticism is set
out thus:
"There are several sceptical and critical accounts of privacy.
According to one well known argument there is no right to privacy
G and there is nothing special about privacy, because any interest
protected as private can be equally well explained and protected
by other interests or rights, most notably rights to property and
bodily security (Thomson, 1975). Other critiques argue that privacy
interests are not distinctive because the personal interests they
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 795
[DR. D. Y. CHANDRACHUD, J.]

protect are economically inefficient (Posner, 19$,1) or that they A
are not grounded in any adequate legal doctrine (Bork, 1990).
Finally, there is the feminist critique of privacy, that granting special
status to privacy is detrimental to women and others because it is
used as a shield to dominate and control them, silence them, and
cover up abuse (MacKinnon, 1989)."301
B
· 138. In a 2013 article published in the Harvard Law Review, a
professor of law at Georgetown Law Center, Georgetown University,
described privacy as having an "image problem" 302 • Privacy, as she notes,
has been cast as "old-fashioned at best and downright harmful at worst
- anti-progressive, overly costly, and inimical to the welfare of the body
politic"303 • The consequences in her view are predictable: c
" ... when privacy and its purportedly outdated values must be
balanced against the cutting-edge imperatives ofnational security,
efficiency, and entrepreneurship, privacy-comes up the loser.The
list of privacy counterweights is long and growing. The recent
additions of social media, mobile platforms, cloud computing, data D
mining, and predictive analytics now threaten to tip the scales
entirely, placing privacy in permanent opposition to the progress
of knowledge." 304
The article proceeds to explain that the perception of privacy as
antiquated and socially retrograde is wrong. Nonetheless, this criticism E
has relevance to India. The nation aspires to move to a knowledge based
economy. Information is the basis of knowledge. The scales must,
according to this critique, tip in favour of the paramount national need
for knowledge, innovation and development. These concerns cannot be
· discarded and must be factored in. They are based on the need to provide F
economic growth and social welfare to large swathes of an impoverished
society.
139. Another criticism, which is by Robert Bork, questions the
choice of fundamental values of the Constitution by judges of the US
Supreme Court and the theory (propounded by Justice Douglas in G
301 "Privacy", Stanford E11cyclopaedill of Philosophy (2002), available at
https://plato.stanford.edu/entries/privacy/
302 Julie E Cohen, "What Privacy Is For", Ha1Vmri Law Review (2013), Vol. 126, at

page 1904
303
Ibid
304 Ibid, at pages 1904-1905.
H
7.96 SUPREME COURT REPORTS [2017) 10 S.C.R.

A Griswold) of the existence of 'penumbras' or zones of privacy created
by the Bill of Rights as a leap of judicial interpretation.'05
140. The Stanford Encyclopaedia of Philosophy seeks to offer
an understanding of the literature on privacy in terms of two concepts: .
reductionism and coherentism.J06 Reductionists are generally critical of
B privacy while the Coherentists defend fundamental values of privacy
interests. TI1e criticisms of privacy have been broadly summarised as
consisting of the following:
a Thomson's Reductionism 307
Judith Jarvis Thomson, in an article published in 1975, noted
c that while there is little agreement on the content of privacy, ultimately
privacy is a cluster of rights which overlap with property rights or the .
right to bodily security. In her view, the right to privacy is derivative in
the. sense that a privacy violation is better understood as violation of a
more basic right.
D b Posner's Economic critique308
Richard Posner, in 'the Economics of Justice' published in
1981, argued that privacy is protected in ways that are economically
inefficient. In his view, privacy should be protected only when access to
information would reduce its value such as when a student is allowed
E access to a letter of recommt(ndation for admission, rendering such a
letter less reliable. According to Posner, privacy when manifested as
control over information about oneself, is utilised to mislead or manipulate
others. '
c Bork's critique
F Robert Bork, in 'The Tempting of America:The Political
Seduction of the Law' 309 , has been severe in his criticism of the
protection of privacy by the US Supreme Court. In his view, Justice
'"' For this criticism, see : Robert H Bork, "Neutral Principles and some First
Amendment Problems", Indiana LawJ011mal (Fall 1971), Vol. 47(1), at pages 8-9
G 306 Supra note 30 I

'°' Judith Jarvis Thomson, "The Right to Privacy" , Philosophy and Public Affairs
(1975), Vol. 4, at pages 295-314, as cited in Supra note 301
""' Richard Posner, The Economics of Justice, Harvard University Press (1981), as
cited in Supra note 301
"''Robert Bork, The Tempting ofAmerica: The Political Seduction of the Law, Simon
\, and Schuster (1990), as cited in Supra note 301 ·
H
JUSTICE K S PUTTASWAMY (REID.) v. UNION OF INDIA . 797
[DR. D. Y. CHANDRACHUD, J.]

Douglas in Griswold did not derive privacy frcm some pre-existing right A
but sought to create a new right which has no foundation in the Bill of
Rights, thereby overstepping the bounds of a judge by making new law
and not by interpreting it. ,
Many theorists urge that the constitutional right to privacy is more
correctly regarded as a right to liberty. · B
· The powerful counter argument to these criticisms Is that while ,
individuals possess multiple liberties under the Constituti011. read in
isolation, many of them are not related to the kinds of concerns that
emerge in privacy issues. In this view, I,iberty is a concept which is
broader than privacy and issues or claims relating to privacy are a sub- c
set of claims to liberty. 310 Hence it has been argued that privacy protects
liberty and that "privacy protection gains for us the freedom to define
ourselv~s and our.relations to others" 311 • This rationale understands the
relationship between liberty and privacy by stipulating that wl;lile liberty
is a broader notion, privacy is essential for protecting liberty. Recognizing
a constitutional right to privacy is a reaffirmation of the individuafinterest D
in making certain decisions crucial to one's personality and being.
d Feminist critique
Many writers on feminism express concern over the use ofprivacy
as a veneer for patriarchal domination and abuse of women. Patriarchal E
notions still prevail in several societies including our own and are used as
a shield to violate core constitutional rights of women based oil gender
and autonomy. As a result, gender violence is often treated as a matter
of "family honour" resulting in the victim of violence suffering twice
over-the physical and mental trauma. of her dignity peing violated and
the perception that it has cause an affront to "honour". Privacy must not F
be utilised as a.cover to conceal and assert patriarchal mindsets .
..
Catherine MacKinnon in a 1989 publication titled 'Towards a
Feminist Theory of the State' 312 adverts to the dangers of privacy
when it is used to cover up physical harm done to women by perpetrating
their subjection. Yet, it must also be noticed that women have an inviolable G
interest in privacy. Privacy is the ultimate guarantee against violations
caused by programmes n,ot unknown to history, such as state imposed
310Supra note 301
311
Ibid
312 Catherine MacKinnon, Toward a Feminist Theory of the State, Harvard University ,

Press (1989), as cited in Supra note 301 ' H
798 SUPREME COURT REPORTS [2017] 10 S.C.R.

A sterilization programmes or mandatory state imposed drug testing for
women. The challenge in this area is to enable the state to take the
violation of the dignity of women in the domestic sphere seriously while
at the same time protecting the privacy entitlements of women grounded
in the identity of gender and liberty.
B 141. The submission that privacy has no accepted or defined
connotation can be analysed with reference to the evolution of the
concept in the literature on the subject. Some of the leading approaches
which should be considered for an insight into the ambit and content of
privacy:
c (i) Alan Westin 313 defined four basic states of privacy which
reflect on the nature and extent of the involvement of the individual in
the pubIic sphere. At the core is solitude - the most complete state of
privacy involving the individual in an "inner dialogue with the mind and
conscience". 314 The second state is the state of intimacy which refers
not merely to intimate relations between spouses or partners but also
D between family, friends and colleagues. The third state is of anonymity
where an individual seeks freedom from identification despite being in a
public space. The fourth state is described as a state of reservation
which is expressed as "the need to hold some aspects of ourselves back
from others, either as too personal and sacred or as too shameful and
E profane to express" 315 •
(ii) Roger Clarke has developed a classification of privacy on
Maslow's pyramid of values 316 • The values described in Maslow's
pyramid are: self-actualization, self-esteem, Jove or belonging, safety
and physiological or biological need. Clarke's categories include (a)
F privacy of the person also known as bodily privacy. Bodily privacy is
violated by compulsory extraction of samples of body fluids and body
tissue and compulsory sterilization; (b) privacy of personal behaviour
which is part of a private space including the home; (c) Privacy of
mwestin's categorization of privacy is based on the specific values which it sub-
serves. Westin has drawn support from the distinction made in 1960 by William L.
G Prosser for the purposes of civil privacy violations or torts, Westin adopted a value
based approach, unlike the harms based approach of Prosser. For Prosser's work,
see William L. Prosser, "Privacy", Califomia Law Review (1960), Vol. 48(3), pages
383-423.
314 Bert-Jaap Koops et al .. "A Typology of Privacy", University of Pennsylvania

Jou ma/ of lutemational Law (2017), Vol. 38, Issue 2, at page 496
iis Ibid, at page 497
H 316
Ibid, at 498
JUSTICE K S PUITASWAMY (RETD.) v. UNION OF INDIA 799
[DR. D. Y. CHANDRACHUD, J.]

personal communications which is expressed as the freedom of A
communication without interception or routine monitoring of one's
communication by others; (d) Privacy of personal data which is linked to
the concept of informational privacy.
(iii) Anita Allen has, in a 2011 publication, developed the concept
of "unpopular privacy" 317 • According to her, governments must design B
"unpopular" privacy laws and duties to protect the common good, even
if privacy is being forced on individuals who may not want it. Individuals
under this approach are not permitted to waive their privacy rights. Among
the component elements which she notices are : (a) physical or spatial
privacy - illustrated by the privacy in the home; (b) infonnational privacy
including information data or facts about persons or their communications; c
(c) decisional privacy which protects the right of citizens to make intimate
choices about their rights from intrusion by the State; (d) proprietary
privacy which relates to the protection of one's reputation; (e)
associational privacy which protects the right of groups with certain
. defined characteristics to determine whom they may include or exclude. 318 D
Privacy has distinct connotations including (i) spatial control; (ii)
decisional autonomy; and (iii) informational control. 31 '1 Spatial control
denotes the creation of private spaces. Decisional autonomy comprehends
intimate personal choices such as those governing reproduction as well
as choices expressed in public such as faith or modes of dress. E
Informational control empowers the individual to use privacy as a shield
to retain personal control over information pertaining to the person. With
regard to informational privacy, it has been stated that:
" ... perhaps the most convincing conception is proposed by Helen
Nissenbaum who argues that privacy is the expectation that F
information about a person will be treated appropriately. This
theory of "contextual integrity" believes people do not want to
control their information or become inaccessible as much as they
want their information to be treated in accordance with their
expectation (Nissenbaum 2004, 2010, 2011 )."no
G
Integrated together, the fundamental notions of privacy have been
317Ibid, at 500
318
Ibid, at pages 500-501
'"Bhairav Achary a, ''The Four Parts of Privacy in India", Eco11omic & Political Weekly
(2015), Vol. 50 Issue 22, at page 32 .
m~-~~ H
800 SUPREME COURT REPORTS [2017] 10 S.C.R.

A depicted in a seminal article published in 2017 titled ''ATypology of.
· privacy"·121 in the University of Pennsylvania Journal of International
Law. The article contains an excellent visual depiction of privacy, which

M~rivltt pvblic-
personal intimate zont ~A."'OllJpi:~

B

(tmpll"~
M)
flttd:Jtn communicalon!I pmprietaty
.,,...
tab! le!
bodiyoliv•"Y
spatial prtvacy Privacy Privaq

c
informational privacy

D decisional

142. The above diagrammatical representation presents two
primary axes: a horizontal axis consisting of four zones of privacy and a
E vertical axis which emphasises two aspects of freedom: the freedom to
be let alone and the freedom for self-development. The nine primary
types ofpriv(\cy are, according to the above depiction: (i) bodily privacy
which reflects the privacy of the physical body. Implicit in this is the
negative freedom of being able to prevent others from violating one's
F body or from restraining the freedom of bodily movement; (ii) spatial
privacy which isreflected in the privacy of a private space through which
access of others can be restricted to the space; intimate relations and
family life are an apt illustration of spatial privacy; (iii) communicational
privacy which is reflected in enabling an individual to restrict access to
communications or control the use of information which is communicated
G to third parties; (iv) proprietary privacy which is reflected by the interest
of a person in utilising property as a means to shield.facts, things or
information from others; (v) intellectual privacy which is reflected as an
individual interest in the privacy of thought and mind and the development
321Bert-Jaap Koops et al., "A Typology of Privacy", University of Pe1111sylvcmicr
H Joumal ofl11tematio11al Law (2017), Vol. 38 Issue 2, at page 566
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 801
[DR. D. Y. CHANDRACHUD, J.]

of opinions and beliefs; (vi) decisional privacy reflected by an ability to A
make intimate decisions primarily consisting one's sexual or procreative
nature and decisions in respect of intimate relations; (vii) associational
privacy which is reflected in the ability of the individual to choose who
she wishes to interact with; (viii) behavioural privacy which recognises
the privacy interests of a person even while conducting publicly visible B
activities. Behavioural privacy postulates that even when access is
granted to others, the individual is entitled to control the extent of access
and preserve to herself a measure of freedom from unwanted intrusion;
and (ix) informational privacy which reflects an interest in preventing .
information about the self from being disseminated and controlling the
extent of access to information. C
M Constituent Assembly and privacy: limits of originalist
interpretation
I43. The founding fathers of the Constitution, it has been urged,
rejected the notion of privacy being a fundamental right. Hence it has
been submitted that it would be outside the realm of constitutional D ·
adjudication for the Court to declare a fundamental right to privacy. The
argument merits close consideration.
144. On 17 March 1947, KM Munshi submitted Draft articles on
the fundamental rights and duties of citizens to the Sub-committee on
fundamental rights. Among the rights of freedom proposed in clause 5 E
were the following 322 :
" ... (f) the right to the inviolability of his home,
(g) the right to the secrecy of his correspondence,
(h) the right to maintain his person secure by the law of the Union F
from exploitation in any manner contrary to law or public
authority ... "
145. On 24 March 1947, Dr Ambedkar submitted a Memorandum
and Draft articles on the rights of states and minorities. Among the draft
articles on fundamental rights of citizens was the following 323 : G
" ... 10. The right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures, shall
322 B. Shiva Rao, The Framing of India :s Constitution, Indian Institute of Public

Administration(l 967), Vol. 2, at page 75
323 Ibid, at page 87
H
802 SUPREME COURT REPORTS [2017) IO S.C.R.

A not be violated and no warrants shall issue but upon probable cause,
supported by oath or affinnation, and particularly describing the place to
be searched, and the persons or things to be seized ... "
146. The draft report of the Sub-committee submitted on 3 April
1947 contained a division between the fundamental rights into justiciable
B and non-justiciable rights. Clause 9(d) and Clause 10 provided as
follows 324 :
"9(d) The right of every citizen to the secrecy of his
correspondence. Provision may be made by law to regulate the
interception or detention of articles and messages in course of
transmission by post, telegraph or otherwise on the occurrence of
c any public emergency or in the interests of public safety or
tranquillity ...
I0. The right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures,
shall not be violated and no warrants shall issue but upon probable
D cause, supported by oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized"
147. Dr B N Rau in his notes on the draft report had reservations
about clause 10 which were expressed thusm:
"Clause 10. If this means that there is to be no search without a
E court's warrant, it may seriously affect the powers of investigation
of the police. Under the existing law, eg., Criminal Procedure
Code, section 165 (relevant extracts given below), the police have
certain important powers. Often in the course of investigation, a
police officer gets information that stolen property has been
secreted in a certain place. If he searches it at once, as he can at
F
present, there is a chance of his recovering it; but he has to apply
for a court's warrant, giving full details, the delay involved, under
Indian conditions of distance and lack of trnnsport in the interior
may be fatal."
A note was submitted by Sir Alladi Krishnaswamy Iyer on lO
G April 1947 objecting to the 'secrecy of correspondence' mentioned in
clause 9( d) and the protection against unreasonab'lc searches in clause
1Q326 :

"'Ibid, at page 139
'" Ibid, at page 152
326
Ibid, at pages 158-159
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 803
[DR. D. Y. CHANDRACHUD, J.]

"Clause (d). In regard to secrecy of correspondence I raised a A
point during the discussions that it need not find a place in chapter
on fundamental rights and it had better be left to the protection
afforded by the ordinary law of the land contained in the various
enactments. There is no such right in the American Constitution.
Such a provision finds a place only in the post-First World War
B
constitutions. The effect of the clauses upon the sections of the
Indian Evidence Act bearing upon privilege will have to be
considered. Restrictions -vide chapter 9, s 120-127. The result of
this clause will be that every private correspondence will assume
the rank of a State paper, or, in the language of s. 123 and 124, a
record relating to the affairs of State. C
A clause like this might checkmate the prosecution in establishing
any case of conspiracy or abetment, the plaintiff being helpless to
prove the same by placing before the court the correspondence
that passed between the parties which in all these cases would
furnish the most material evidence. The opening words of the D
claLise "public order and morality" would not be of any avail in
such cases. On a very careful consideration of the whole subject
I feel that inclusion of such a clause in the chapter on fundamental
rights will lead to endless complications and difficulties in the
administration of justice. It will be for the committee to consider
whether a reconsideration of the clause is called for in the above E
circumstances.
Clause 10. Unreasonable searches, In regard to this subject I
pointed out the difference between the conditions· obtaining in
America at the time when the American Constitution was drafted
and the conditions in India obtaining at present after the provisions F
of the Criminal Procedure Code in this behalf have been in force
for nearly a century. The effect of the clause, as it is, will be to
abrogate some of the provisions of the Criminal Procedure Code
and to leave it to the Supreme Court in particular cases to decide
whether the search is reasonable or unreasonable. While I am G
averse to reagitating the matter I think it may not be too fate for .
the committee to consider this pmticular clause."
During the course of the comments and suggestions on the draft
Constitution, Jaya Prakash Narayan suggested the inclusion of the secrecy
of postal, telegraphic and telephonic communications. Such an inclusion H
804 SUPREME COURT REPORTS [2017] 10 S.C.R.

A was, however, objected to on the following grounds 327 :
" ... It is also hardly necessary to include secrecy of postal,
telegraphic and telephonic communications as a fundamental right
in the Constitution itself as that might lead to practical difficulties
in the administration of the posts and telegraph department. The
B relevant laws enacted by the Legislature on the subject (the Indian
Post Office Act, 1898 and the Indian Telegraph Act, 1885) permit
interception of communications sent through post, telegraph or
telephone only in specified circumstances, such as, on the
occurrence of an emergency and in the interests of public safety."
c Eventually, clause 9(d) and clause 10 were dropped from the
chapter dealing with fundamental rights.
148. This discussion would indicate that there was a debate during
the course of the drafting of the Constitution on the proposal to guarantee
to every citizen the right to secrecy of correspondence in ciause 9(d)
D and the protection to be secure against unreasonable searches and
seizures in their persons houses, papers and assets. The objection to
clause 9( d) was set out in the note of dissent of Sir Alladi Krishnaswamy
Iyer and it was his view that the guarantee of secrecy of correspondence
may lead to every private correspondence becoming a state paper. There
was also a feeling that this would affect the prosecution especially in
E cases of conspiracy or abetment. Similarly, his objection to clause 10
was that it would abrogate some of the provisions of the Code of Criminal
Procedure. B N Rau likewise stated that this would seriously affect the
powers of investigation of the police. The clause protecting the secrecy
of correspondence was thus dropped on the ground that it would constitute
F a serious impediment in prosecutions while the protection against
unreasonable searches and seizures was deleted on the ground that there
were provisions in the Code of Criminal Procedure, 1898 covering the
area. The debates of the Constituent Assembly indicate that the proposed
inclusion (which was eventually dropped) was in two specific areas
namely correspondence and searches and seizures. From this, it cannot
G be concluded that the Constituent Assembly had expressly resolved to
reject the notion of the right to privacy as an integral element of the
liberty and freedoms guaranteed by the fundamental rights.

"' B. Shiva Rao, The Framing of llldia's Constitution: A Study, Indian Institute of
H Public Administration(1968), at pages 219-220
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 805
[DR. D. Y. CHANDRACHUD, J.]

149. The Constitution has evolved over time, as judicial A
interpretation, led to the recognition of specific interests and entitlements.
These have been subsumed within the freedoms and liberties guaranteed
by the Constitution. Article 21 has been interpreted by this Court to
mean that life does not mean merely a physical existence. It includes all
those faculties by which life is enjoyed. The ambit of 'the procedure B
established by law' has been interpreted to mean that the procedure
must be fair, just and reasonable. The coalescence of Articles 14, 19
and 21 has brought into being a jurisprudence which recognises the inter-
relationship between rights. That is how the requirements of fairness
and non-discrimination animate both the substantive and procedural •
aspects of Article 21. These constitutional developments have taken C
place as the words of the Constitution have been interpreted to deal with
·new exigencies requiring an expansive reading ofliberties and freedoms
to preserve human rights under the rule of law. India's brush with a
regime of the suspension oflife and personal liberty in the not too distant
past is a grim reminder of how tenuous liberty can be, if the judiciary is D
not vigilant. 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. Nor can judges foresee every challenge and contingency
which may arise in the future. This is particularly of relevance in an age
where technology reshapes our fundamental understanding of information, E
knowledge and human relationships that was unknown even in the recent
past. Hence as Judges interpreting the Constitution today, the Court
must leave open the path for succeeding generations to meet the
challenges to privacy that may be unknown today.
150. The impact of the decision in Cooper is to establish a link F
between the fundamental rights guaranteed by Part III of the Constitution.
The immediate consequence of the decision is that a law which restricts
the personal liberties contained in Article 19 must meet the test of
permissible restrictions contemplated by Clauses 2 to 6 in relation to the
fundamental freedom which is infringed. Moreover, since the fundamental
rights are inter-related, Article 21 is no longer to be construed as a residue G
of rights which are not specifically enumerated in Attic le 19. Both sets
of rights overlap and hence a law which affects one of the personal
freedoms under Article 19 would, in addition to the requirement of meeting
the permissible restrictions contemplated in clauses 2 to 6, have to meet
H
806 SUPREME COURT REPORTS [2017] 10 S.C.R.

A the parameters of a valid 'procedure established by law' under Article
21 where it impacts on life or personal liberty. The law would be assessed
not with reference to its object but on the basis of its effect and impact
on the fundamental rights. Coupled with the breakdown of the theory
that the fundamental rights are water-tight compartments, the post
Maneka jurisprudence infused the test of fairness and reasonableness
B
in determining whether the 'procedure established by law' passes muster
under Article 21. At a substantive level, the constitutional values
underlying each article in the Chapter on fundamental rights animate the
meaning of the others. This development of the law has followed a natural
.evolution. The basis of this development after all is that every aspect of
C the diverse guarantees of fundamental rights deals with human beings.
Every element together with others contributes in the composition of the
human personality. In the very nature of things, no element can be read
in a manner disjunctive from the composite whole. The close relationship
between each of the fundamental rights has led to the recognition of
D constitutional entitlement<> and interests. Some of them may straddle
, more than one, and on occasion several, fundamental rights. Yet others
may reflect the core value upon which the fundamental rights are founded.
Even at the birth of the Constitution, the founding fathers recognised in
the Constituent Assembly that, for instance, the freedom of speech and
expression would comprehend the freedom of the press. Hence the
E guarantee of free speech and expression has been interpreted to extend
to the freedom of the press. Recognition of the freedom of the press
does not create by judicial fiat, a new fundamental right but is an
acknowledgment of that, which lies embedded and without which the
guarantee of free speech and expression would not be complete.
Similarly, Article 21 has been interpreted to include a spectrum of
F entitlements such as a right to a clean environment, the right to public
health, the right to know, the right to means of communication and the
right to education, besides a panoply of rights in the context of criminal
law and procedure in matters such as handcuffing and speedy trial. The
rights which have been held to flow out of Article 21 include the following:
G (i) The right to go abroad - Satwant Singh Sawhney v D
Ramaratlmam APO New Delbi3 2M.
(ii) The right against solitary confinement - Sunil Batra v Delhi
Administration329 •
"' (1967) 3 SCR 525
H 3211 (1978)4 SCC494
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 807
[DR. D. Y. CHANDRACHUD, J.]

(i.ii) The right of prisoners against bar fetters - Charles Sobraj v A
Supdt. Central Jail330•
(iv) The right to legal aid - M H Hoskot v State of
Maharashtra331 • ·

(v) The right to speedy trial - Hussainara Khatoon v Home
Secretary, State of Bihar332 • B
(vi) The right against handcuffing - Prem Shankar Shukla v
Delhi Administration 33 3.
(vii) The right against custodial violence - Sheela Barse v State
of Maharashtra 334•
(viii) The right against public hanging-AG of India v Lachma
c
Devi3 35 •
(ix) Right to doctor's assistance at government hospitals -
Paramanand Katara v Union ofllldia 336 •
(x) Right to shelter - Shantistar Builders v N K Totame 337 •
D
· (xi) Right to a healthy environment - Virender Gaur v State of
Haryanam.
(xii) Right to compensation for unlawful arrest - Ruda! Sah v
State of Bihar339 •
(xiii) Right to freedom from torture - Sunil Batra v Delhi E
Administration 340 •
(xiv) Right to reputation - Umesh Kumar v State of Andhra
Pradesh 341 •
(xv) Right to earn a livelihood-Olga Tellis v Bombay Municipal
Corporation 342 • F
,,. (1978) 4 sec 104
"
1
(1978) 3 sec 544
332
(1980) I SCCS!
m (1980) 3 sec 526
"' <1983) 2 sec 96
33s (1989) Suppl.(!) sec 264 G
' 36 (1989) 4 sec 286
"'(1990) 1 sec 520
'" (1995) 2 sec 577
"' (1983) 4 sec 141
340 (1978) 4 sec 494
341
(2013) 10 sec 591
"' c 985) 3 sec 545 H
808 SUPREME COURT REPORTS [2017] 10 S.C.R.

A Neither is this an exercise in constitutional amendment brought
about by judicial decision nor does it result in the creation of a new set of
fundamental rights. The exercise has been one of interpreting existing
rights guaranteed by the Constitution and while understanding the core
of those rights, to define the ambit of what the right comprehends ..
B 151. The draftsmen of the Constitution had a sense of history-
both global and domestic- as they attempted to translate their vision of
freedom into guarantees against authoritarian behaviour. The Constitution
adopted a democratic form of government based on the rule of law. The
framers were conscious of the widespread abuse of human rights by
c authoritarian regimes in the two World Wars separated over a period of
two decades. The framers 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 preserve
a regime of governance based on the rule oflaw which would be subject
to democratic accountability against a violation of fundamental freedoms.
D The content of the fundamental rights evolved over the course 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 preserved natural rights and ring-fenced them
E from attempts to attenuate their existence.
Technology, as we experience it today is far different from what
it was in the lives of the generation which drafted the Constitution.
Information technology together with the internet and the social media
and all their attendant applications have rapidly altered the course oflife
F in the last decade. Today's technology renders models of application of
a few years ago obsolescent. Hence, it would be an injustice both to the
draftsmen ofthc Constitution as well as to the document which they
sanctified to constrict its interpretation to an originalist interpretation.
Today's problems have to be adjudged by a vibrant application of
G constitutional doctrine and cannot be frozen by a vision suited to a radically
different society. We describe the Constitution as a living instrument
simply for the reason that while it is a document which enunciates eternal
values for Indian society, it possesses the resilience necessary to ensure
its continued relevance. Its continued relevance lies precisely in its ability
to allow succeeding generations to apply the principles on which it has
H
JUSTICE K S PUTIASWAMY (RETD.) v. UNION OF INDIA 809
[DR. D. Y. CHANDRACHUD, J.]

been founded to find innovative solutions to intractable problems of their A
times. In doing so, we must equally understand that our solutions must
continuously undergo a process of re-engineering.
N Is the statutory protection to privacy reason to deny a
constitutional right?
152. The Union government and some of the States which have B
supported it have urged this Court that there is a statutory regime by
virtue of which the right to privacy is adequately protected and hence it
is not necessary to read a constitutional right to privacy into the
fundamental rights. This submission is sought to be fortified by contending
that privacy is merely a common law right and the statutory protection is c
a reflection of that position.
153. The submission betrays lack of understanding of the reason
why rights are protected in the first place as entrenched guarantees in a
Bill of Rights or, as in the case of the Indian Constitution, as part of the
fundamental rights. Elevating a right to the position of a constitutionally D-
protected right places it beyond the pale oflegislative majorities. When
a constitutional right such as the right to equality or the right to life assumes
the character of being a part of the basic structure of the Constitution, it
assumes inviolable status: inviolability even in the face of the power .of
amendment. Ordinary legislation is not beyond the pale of
legislativemodification. A statutory right can be modified, curtailed or E
annulled by a simple enactment of the legislature. In other words, statutory
rights are subject to the compulsion of legislative majorities. The purpose
of infusing a right with a constitutional element is precisely to provide it
a sense of immunity from popular opinion and, as its reflection, from
legislative annulment. Constitutionally protected right~ embody the liberal F
belief that personal liberties of the individual are so sacrosanct that it is
necessary to ensconce them in a protective shell t11at places them beyond
the pale of ordinary legislation. To negate a constitutional right on the
ground that there is an available statutory protection is to invert
constitutional theory. As a matter of fact, legislative protection is in
many cases, an acknowledgment and recognition of a constitutional right G
which needs to be effectuated and enforced through protective laws.
For instance, the provisions of Section 8( 1)(j) of the Right to
Information Act, 2005 which contain an exemption from the disclosure
of information refer to such information which would cause an
unwarranted invasion of the privacy of the individual. H
810 SUPREME COURT REPORTS [20171 10 S.C.R.

A But the important point to note is that when a right is conferred
with an entrenched constitutional status in Part ID, it provides a touchstone
on which the validity of executive decision making can be assessed and
the validity of law can be determined by judicial review. Entrenched
constitutional rights provide the basis of evaluating the validity of law.
B Hence, it would be plainly unacceptable to urge thatthe existence oflaw
negates the rationale for a constitutional right or renders the constitutional
right unnecessary.
0 Not art elitist construct
154. The Attorney General argued before us that the right to
C privacy must be forsaken in the interest of welfare entitlements provided
by the State. In our view, the submission that the right to privacy is an
elitist construct which stands apart from the needs and aspirations of the
large majority constituting the rest of society, is unsustainable. This
submission betrays a misunderstanding of the constitutional position. Our
Constitution places the individual at the forefront ofits focus, guaranteeing
D civil and political rights in Part III and embodying an aspiration for
achieving socio- economic rights in Part IV. The refrain that the poor
need no civil and political rights and are concerned only with economic
well-being has been utilised though history to wreak the most egregious
violations of human rights. Above all, it must be realised that it is the
E right to question, the right to scrutinize and the right to dissent which
#
enables an informed citizenry to scrutinize the actions of government.
Those who are governed are entitled to question those who govern,
about the discharge of their constitutional duties including in the provision
of socio-economic welfare benefits. The power to scrutinize and to reason
enables the citizens of a democratic polity to make informed decisions
F on basic issues which govern their rights. The theory that civil and political
rights are subservient to socio-economic rights has been urged inthe
past and has been categorically rejected in the course of constitutional
adjudication by this Court.
155. Civil and political rights and socio-economic rights do not
G · exist in a state of antagonism. The conditions necessary for realising or
fulfilling socio-economic rights do not postulate the subversion of political
freedom. The reason for this is simple. Socio-economic entitlements
must yield true benefits to those for whom they are intended. This can
be achieved by eliminating rent-seeking behaviour and by preventing the
H capture of social welfare benefits by persons who are not entitled to
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 811
[DR. D. Y. CHANDRACHUD, J.]

them. Capture of social welfare benefits can be obviated only when A
political systems are transparent and when there is a free flow ,of
information. Opacity enures to the benefit of those who monopolize
scarce economic resources. On the other hand, conditions where civil
and political freedoms flourish ensure that governmental policies are
subjected to critique and assessment. It is this scrutiny which sub-serves B
the purpose of ensuring that socio-economic benefits actually permeate
to the under-privileged for whom they are meant. Conditions of freedom
and a vibrant assertion of civil and political rights promote a constant
review of the justness of socio-economic programmes and of their
effectiveness in addressing deprivation and want. Scrutiny of public affairs
is founded upon the existence of freedom. Hence civil and political C
rights and socio-economic rights are complementary and not mutually
exclusive.
I 56. Some of these themes have been addressed in the writings
of the Nobel laureate, Amartya Sen. Sen compares the response of
many non-democratic regimes in critical situations such as famine with D
the responses of democratic societies in similar situations:143 His analysis
reveals that the political immunity enjoyed by government leaders in
authoritarian states prevents effective measures being taken to address
such conditions:
"For example, Botswana had a fall in food production of 17 percent E
and Zimbabwe one of 38 percent between 1979-1981 and
1983-1984, in the same period in which the food production decline
amounted to a relatively modest 11 or 12 percent in Sudan and
Ethiopia. But while Sudan and Ethiopia, with comparatively smaller
declines in food output, had massive famines, Botswana and
Zimbabwe had none, and this was largely due to timely and F
extensive famine prevention policies by these latter countries.
Had the governments in Botswana and Zimbabwe failed to
undertake timely action, they would have been under severe
criticism and pressure from the opposition and would have gotten
plenty of flak from newspapers. In contrast, the Ethiopian and G
Sudanese governments did not have to reckon with those prospects,
and the political incentives provided by democratic institutions were
thoroughly absent in those countries. Famines in Sudan and
34
' Amartya Sen, Development as Freedom, Oxford University Press (2000), at page

178-179 Ii
812 SUPREME COURT REPORTS [2017] 10 S.C.R.

A Ethiopia - and in many other countries in sub-Saharan Africa -
were fed by the political immunity enjoyed by governmental leaders
in authoritarian countries. This would seem to apply to the present
situation in North Korea as well."J44
In the Indian context, Sen points out that the Bengal famine of
B 1943 "was made viable not only by the lack of democracy in colonial
India but also by severe restrictions on reporting and criticism imposed
on the Indian press, and the voluntary practice of 'silence' on the famine
that the British-owned media chose to follow" 345 • Political liberties and
democratic rights are hence regarded as 'constituent components' of
development.) 46 In contrast during the drought which took place in
c Maharashtra in 1973, food production failed drastically and the per capita
food output was half of that in sub-Saharan Africa. Yet there was no
famine in Maharashtra where five million people were employed in
rapidly organized public projects while there were substantial famines in
sub-Saharan Africa. This establishes what he terms as "the protective
D role of democracy". Sen has analysed the issue succinctly:
"The causal connection between democracy and the non-
occurrence of famines is not hard to seek. Famines kill millions
of people in different countries in the world, but they don't kill the
rulers. The kings and the presidents, the bureaucrats and the
E bosses, the military leaders and the .commanders never are famine
victims. And if there are no elections, no opposition parties, no
scope for uncensored public criticism, then those in authority don't
have to suffer the political consequences of their failure to prevent
" famines. Democracy, on the other hand, would spread the penalty
of famines to the ruling groups and political leaders as well. This
gives them the political incentive to try to prevent any threatening
famine, and since famines are in fact easy to prevent (the
economic argument clicks into the political one at this stage), the
approaching famines are firmly prevented."J47
There is, in other words, an intrinsic relationship between
G development and freedom:
344
Ibid, at page 179
"' Amartya Sen, The Idea of Justice, Penguin Books (2009), at page 339
346
Jbid, at page 347
347
Amartya Sen, Development as Freedom, Oxford University Press (2000), at page
180
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 813
[DR. D. Y. CHANDRACHUD, J.]

" ... development cannot really be seen merely as the process of A
increasing inanimate objects of convenience, such as raising the GNP
per head, or promoting industrialization or technological advance or social
modernization. These accomplishments are, of course, valuable - often
crucially important- but their value must depend on what they do to the
lives and freedoms of the people involved. For adult human beings, with
B
responsibility for choice, the focus must ultimately be on whether they
have the freedom to do what they have reason to value. In this sense,
development consists of expansion of people's freedom." 34~
In an article recently published in July 2017 in Public Law, titled
"The Untapped Potential of the Mandela Constitution"'49 , Justice Edwin
Cameron, a distinguished judge of the Constitutional Court of South Africa, c
has provided a telling example. President Mbeki of South Africa doubted
· the medical science underlying AIDS and effectively obstructed a feasible
ARV programme. This posture of AIDS denialism plunged South Africa
into a crisis of public health as a result of which the drug Nevirapine
which was offered to the South African government free of charge was D
refused. Eventually it was when the South African Constitutional Court
intervened in the Treatment Action Campaign decision 350 that it was
held that the government had failed the reasonableness test. The article
notes that as a result of the decision, the drug became available and
"hundreds and thousands, perhaps millions, oflives have been saved".
Besides, the article notes that the judgment changed the public discourse E
of AIDS and "cut-through the obfuscation of denials and in doing so,
dealt it a fatal blow" 351 •
Examples can be multiplied on how a state sanctioned curtain of
misinfonnation or state mandated black-outs of information can cause a
serious denial of socio-economic rights. The strength of Indian F
democracy lies in the foundation provided by the Constitution to liberty
and freedom. Liberty and freedom are values which arc intrinsic to our .
constitutional order. But they also have an instrumental value in creating
conditions in which socio-economic rights can be achieved. India has
no iron curtain. Our society prospers in the shadow of its drapes Which· G
348
Amartya Sen, "The Country of First Boys", Oxford University Press, Pg.80-81
'" Edwin Cameron and Max Taylor, "The Untapped Potential of the Mandela
Constitution'',Public Law (2017), at page 394
'"'Minister of Health v Treatment Action Campaign, (2002) 5 SA 721 (CC)
"' Edwin Cameron and Max Taylor, "The Untapped Potentiai of the Mandela
Coiistitution",Public Law (2017), at page 395 H
814 SUPREME COURT REPORTS [2017] 10 S.C.R.

A let in sunshine and reflect a multitude of hues based on language, religion,
culture and ideologies.
157. We need also emphasise the lack of substance in the
submission that privacy is a privilege for the few. Every individual in
society irrespective of social class or economic status is entitled to the
B intimacy and autonomy which privacy protects. It is privacy as an intrinsic
and core feature of life and personal liberty which enables an individual
to stand up against a programme of forced sterilization. Then again, it is
privacy which is a powett'ul guarantee if the State were to introduce
compulsory drug trials of non-consenting men or women. The sanctity
of marriage, the liberty of procreation, the choice of a family life and the
c dignity of being are matters which concern every individual irrespective
of social strata or economic well being. The pursuit of happiness is
founded upon autonomy and dignity. Both are essential attributes of
privacy which makes no distinction between the birth marks of individuals.
P Not just a common law right
D
158. There is also no merit in the defence of the Union and the
States that privacy is merely a common law right. The fact that a right
may have been afforded protection at common law does not constitute a
bar to the constitutional recognition of the right. The Constitution
recognises the right simply because it is an incident of a fundamental
E freedom or liberty which the draftsperson considered to be so significant
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 Pait III of the Constitution, the submission
that privacy is only a right at common law misses the wood for the trees.
F The central theme is that privacy is an intrinsic part of life, personal
liberty and of the freedoms guaranteed by Part III 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, as we have noted, is subject to the range oflegislative
annulments open to a majoritarian government. Any abridgment must
G meet the requirements prescribed by Article 21, Article I9 or the relevant
freedom. The Constitutional right is placed at a pedestal which embodies
both a negative and a positive freedom. The negative freedom protects
the individual from unwanted intrusion. As a positive freedom, it obliges
the State to adopt suitable measures for protecting individual privacy.
H An apt description of this facet is contained in the Max Planck
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 815
[DR. D. Y. CHANDRACHUD, J.]

Encyclopaedia of Comparative Constitutional Law, in its section on A
the right to privacy 352 :
"2. The right to privacy can be both negatively and positively
defined. The negative right to privacy entails the individuals are protected
from unwanted intrusion by both the state and private actors into their
private life, especially features that define their personal identity such as B
sexuality, religion and political affiliation, ie the inner core of a person's
private life ....
The positive right to privacy entails an obligation of states to remove
obstacles for an autonomous shaping of individual identities."
Q Substantive Due Process c
159. During the course of the hearing, Mr Rakesh Dwivedi, learned
Senior Counsel appearing on behalf of the State of Gujarat submitted
that the requirement of a valid law with reference to A1ticle 21 is not
conditioned by the notion of substantive due process. Substantive due
process, it was urged is a concept which has been evolved in relation to D
the US Constitution but is inapposite in relation to the Indian Constitution.
The history surrounding the drafting of Article 21 indicates ii
conscious decision by the Constituent Assembly not to introduce the
expression "due process of law" which is incorporated in the Fifth and
Fourteenth Amendments of the US Constitution. The draft Constitution E
which was prepared by the Drafting Committee chaired by Dr B R
Ambedkar contained a 'due process' clause to the effect that 'nor any
State shall deprive any person of life, liberty and property without due
process oflaw'. The clause as originally drafted was subjected to three
important changes in the Constituent Assembly. Firstly, the reference to F
property was deleted from the above clause of the draft Constitution.
The members of the Constituent Assembly perceived that retaining the
right to property as part of the due process clause would pose a serious
impediment to legislative reform particularly with the redistribution of
property. The second important change arose from a meeting which
Shri B N Rau had with Justice Felix Frankfurter in the US. In the US G
particularly in the years around the Great Depression, American Courts
had utilised the due process clause to invalidate social welfare legislation.
In the Loclmer353 era, the US Supreme Court invalidated ,legislation
352 An.na Jonsson Cornell, "Right to Privacy", Max Plcmck Encyclopaedia of
Comparative Constitutional Law (20 I 5)
"'Lochner v New York, 198 US 45 (1905) H
816 SUPREME COURT REPORTS [2017] 10 S.C.R.

A such as statutes prohibiting employers from making their employees work
for more than ten hours a day or sixty hours a week on the supposition
that this infringed the liberty of contract. Between 1899 and 1937
(excluding the civil rights cases), 159 US Supreme Court decisions held
state statutes unconstitutional under the due process and equal proiection
clauses. Moreover, 25 other statutes were struck down under the due
B
process clause together with other provisions of the American
Constitution. 354 Under the due process clause, the US Supreme Court
struck down labour legislation prohibiting employers from discriminating
on the grounds ofunion activity; regulation of wages; regulation of prices
for commodities and services; and legislation denying entry into
c business.355 These decisions were eventually distinguished or overruled
in 1937 and thereafter.3 56
160. The Constituent Assembly, in this background, made a second
important change in the original draft by qualifying the expression 'liberty'
with the word 'personal'. Shri B N Rau suggested that if this qualification
D were not to be introduced, even price control legislation would be
interpreted as interfering with the opportunity of contract between seller
and buyer (see in this context B Shiva Rao's 'The Framing of India'.s
Constitution: A Study' 357 ).
161. The third major change which the Constituent Assembly made
E was that the phrase 'due process of law' was deleted from the text of
the draft Constitution. Following B N Rau's meeting with Justice
Frankfurter, the Drafting Committee deleted the phrase 'due process of
law' and replaced it with 'procedure established by law'. Granville
Austin refers to the interaction between Frankfurter and B N Rau and
the reason for the deletion 358 :
F 354
William B Lockhart, et al, Constitutional Law: Cases- Comments-Questions, West
Publishing Co. (1986), 6" edition, at page 394
m Adair v United States, 208 US 161, 28 S. Ct. 277, 52 L.Ed. 436 (1908) (fifth
amendment);
Adkins v Children's Hosp. 261 US 525, 43 S.Ct. 22, 70 L.Ed (1923) (fifth amendment);
Tyson & Bro. v. Banton, 273 US 418, 47 S.Ct. 426, 71 L.Ed. 718 (1927); and
G New State Ice Co. v. Liebmann, 285 US 262, 52 S Ct. 371, 76 L.Ed. 747 (1932)
'"'NLRB v Jones & Laughlin Stell Corp. (1937);
West Coast Hotel Co. v Parrish, 300 US 379, 57 S. Ct. 578, 81 L.Ed. 703 (1937)
m B. Shiva Rao, The Framing of India's Constitution: A Study, Indian Institute of
Public Administration(1968), at page 235. See also B. Shiva Rao, The Framing of
India's Constitution, Vol. 2, at pages 20-36, 147-153
"' Granville Austin, The Indian Co11stit11tion: Cornerstone of a Nation, Oxford
H University Press (1966), at pagel03
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 817
[DR. D. Y. CHANDRACHUD, J.]

"Soon after, Rau began his trip to the United States, Canada, Eire, A
. and England to talk with justices, constitutionalists, and statesmen
about the framing of the Constitution. In the United States he met .
Supreme Court Justice Felix Frankfurter, who told him that he
considered the power ofjudicial review implied in the due process
clause both undemocratic - because a few judges could veto B
legislation enacted by the representatives of a nation - and
burdensome to the Judiciary. Frankfurter had been strongly
influenced by the Harvard Law School's great constitutional
lawyer, James Bradley Thayer, who also feared that too great a
reliance on due process as a protection against legislative oversight
or misbehaviour might weaken the democratic process. Thayer's C
views had .impressed Rau even before he met Frankfurter. In his
Constitutional Precedents, Rau had pointed out that Thayer and
others had 'drawn attention to the dangers of attempting to find in
the Supreme Court - instead of in the lessons of experience - a
safeguard against the mistakes of the representatives of people'." D
· Though several members of the Constituent Assembly spoke
against the deletion, Sir Alladi Krishnaswamy Ayyar supported the move
on the ground that the expression 'due process' would operate as a
great handicap for all social legislation and introduce "judicial vagaries
into the moulding oflaw" 359• In his words 360 :
E
" .. .In the development of the doctrine of 'due process' the United
States Supreme Court has not adopted a consistent view at all
and the decisions are conflicting ...
The Minimum Wage Law or a Restraint on Employment have in
some cases been regarded as an invasion of personal liberty and F
freedom, by the United States Supreme Court in its earlier
decisions, the theory being that it is an essential part of personal
liberty that every person in the world be she a woman, be he a
child over fourteen years of age or be he a labourer, has the right
to enter into any contract he or she liked and it is not the province
of other people to interfere with that liberty. On that ground, in the G
earlier decisions of Supreme Court it has been held that the
Minimum Wages Laws are invalid as invading personal liberty ...
359 Constituent Assembly Debates, Vol. 7 (6'' December 1948), available at

http://parliamentofindia.nic.in/ls/debates/vol7p20b.htm
~~ H
818 SUPREME COURT REPORTS [2017] IO S.C.R.

A The clause may serve as a great handicap for all social legislation,
and for the protection of women ...
I trust that the House will take into account the various aspects of
this question, the future progress of India, the well-being and the
security of the States, the necessity of maintaining a minimum of
B liberty, the need for co-ordinating social control and personal liberty,
before coming to a decision. One thing also will have to be taken
into account, viz., that the security of the State is far from being
so secure as we are imagining at present ... "
On the other hand, several members of the Constituent Assembly
c preferred the retention of the phrase 'due process', among them being
Dr Sitaramayya, TT Krishnamachari, K Santhanam, M AAyyangar. Dr
B V Keskar, S L Saksena, Thakur Das Bhargava, Hukam Singh and
four members of the Muslim League. 361 K M Munshi stated that362 :
" ... a substantive interpretation of due process could not apply to
D liberty of contract-the basis on which the United States Supreme
Court had, at the beginning of the century, declared some social
legislation to be an infringement of due process and hence
unconstitutional -but only to liberty of person, because 'personal'
had been added to qualify liberty. 'When a law has been passed
which entitles the government to take away the personal liberty
E of an individual, Munshi said, 'the court will consider whether the
law which has been passed is such as is required by the exigencies
of the case and therefore, as I said, the balance will be struck
between individual liberty and social control. Other Assembly
members agreed: whilst not wishing to impede the passage of
F social reform legislation they sought to protect the individual's
personal liberty against prejudicial action by an arbitrary
Executive."
Dr B RAmbedkar in an insightful observation, presented the merits
and demerits of the rival viewpoints dispassionately. 111 his words 363 :
G "There are two views on this point. One view is this; that the
legislature may be trusted not to make any law which would
'''Granville Austin (Supra note 358), at page 105
362 Ibid, at pages I 05-106

363
Constituent Assembly Debates, Vol. 7 (13"' December 1948), available at http://
parliamentofindia.nic.in/ls/debates/vol7p25a.htm
H
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 819
[DR. D. Y. CHANDRACHUD, J.]

abrogate the fundamental rights of man, so to say, the fundamental . A
rights which apply to every individual, and consequently, there is
no danger arising from the introduction of the phrase 'due process'.
Another view is this : that it is not possible to trust the legislature;
the legislature is likely to err, is likely to be led away by passion,
by party prejudice, by party considerations, and the legislature B
may make a law which may abrogate what may be regarded as
the fundamental principles which safeguard the individual rights
of a citizen. We are therefore placed in two difficult positions.
One is to give the judiciary the authority to sit in judgment over
the will of the legislature and to question the Jaw made by the
legislature on the ground that it is not good law, in consonance C
with fundamental principles. Is that a desirable principle? The
second position is that the legislature ought to be trusted not to
make bad laws. It is very difficult to come to any definite
conclusion. There are dangers on both sides. For myself! cannot
altogether omit the possibility of a Legislature packed by party D
men making laws which may abrogate or violate what we regard
as certain fundamental principles affecting the life and liberty of
an individual. At the same time, I do not see how five or six
gentlemen sitting in the Federal or Supreme Court examining laws
made by the Legislature and by dint of their own individual
conscience or their bias or their prejudices be trusted to determine E
which law is good and which law is bad. It is rather a case where
a man has to sail between Charybdis and Scylla and I therefor
would not say anything. I would leave it to the House to decide in
any way it likes."
The amendments proposed by some members to reintroduce 'due F
process· were rejected on 13 December 1948 and the phrase "due
process of law" was deleted from the original draft Constitution.
However, A1ticle 22 was introduced into the Constitution to protect against
arbitrary arrest and detention by incorporating several safeguards.
162. In Gopalan, the Preventive Detention Act. 1950 was a
challenged on the ground that it denied significant procedural safeguards
against arbitrary detention. The majority rejected the argument that the
expression 'procedure established by law' meant procedural due process.
Chief Justice Kania noted that Article 21 of our Constitution had
consciously been drawn up by the draftsmen so as to not use the word
H
820 SUPREME COURT REPORTS [2017] IO S.C.R.

A 'due process' which was used in the American Constitution. Hence it
was impermissible to read the expression 'procedure established by law'
to mean 'procedural due process' or as requiring compliance with natural
justice. Justice Patanjali Sastri held that reading the expression 'due
process of law' into the Constitution was impermissible since it would
lead to those 'subtle and elusive criteria' implied in the phrase which it
B
was the deliberate purpose of the framers of our Constitution to avoid.
Similarly, Justice Das also observed that our Constitution makers had
deliberately declined to adopt "the uncertain and shifting American
doctrine of due process of law" which could not, therefore, be read into
Article 21. Hence, the view of the majority was that once the procedure
c was established by a validly enacted law, Article 21 would not be violated.
163. In his celebrated dissent, Justice Fazl Ali pointed out that the
phrase 'procedure established by law' was borrowed from the Japanese
Constitution (which was drafted under American influence atthe end of
the Second World War) and hence the expression means 'procedural
D due process'. In Justice FazlAli's view the deprivation oflife and personal
liberty under Article 21, had to be preceded by (i) a notice; (ii) an
opportunity of being heard; (iii) adjudication by an impartial tribunal; and
(iv) an orderly course of procedure. Formulating these four principles,
Justice Faz) Ali held thus:

E " ... Article 21 purports to protect life and personal liberty, and it
would be a precarious protection and a protection not worth having,
if the elementary principle of law under discussion which,
according to Halsbury is on a par with fundamental rights, is to be
ignored and excluded. In the course of his arguments, the learned
counsel for the petitioner repeatedly asked whether the Constitution
F would permit a law being enacted, abolishing the mode of trial
permitted by the existing law and establishing the procedure of
trial by battle or trial by ordeal which was in vogue in olden times
in England. The question envisages something which is not likely
to happen, but it does raise a legal problem which can perhaps be
G met only in this way that if the expression "procedure established
by law" simply means any procedure established or enacted by
statute it will be difficult to give a negative answer to the question,
but if the word "law" includes what I have endeavoured to show
it does, such an answer may be justified. It seems to me that
there is nothing revolutionary in the doctrine that the words
H
JUSTICE K S PUTIASWAMY (RETD.) v. UNION OF INDIA 821
[DR. D. Y. CHANDRACHUD, J.]

"procedure established by law" must include the four principles A
set out in Professor Willis' book, which, as I have already stated,
are different aspects of the same principle and which have no
vagueness or uncertainty about them. These principles, as the
learned author points out and as the authorities show, are not
absolutely rigid principles but are adaptable to the circumstances B
of each case within certain limits. I have only to add that it has not
been seriously controverted that "law" in this article means valid
law and "procedure" means certain definite rules of proceeding
and not something which is a mere pretence for procedure." 364
In Maneka, where the passport of the petitioner was impounded
without furnishing reasons, a majority of judges found that the expression C
'procedure established by law' did not mean any procedure howsoever
arbitrary or fanciful. The procedure had to be fair, just and reasonable.
The views of Justices Chandrachud, Bhagwati and Krishna Iyer emerge
from the following brief extracts:
"Chandrachud, J.: D

... But the mere prescription of some kind of procedure cannot
ever meet the mandate of Article 21. The procedure prescribed
by law has to be fair; just and reasonable, not fanciful, oppressive
or arbitrary. "365
E
"Bhagwati, J.:
The principle of reasonableness, which legally as well as
philosophically, is an essential element of equality or non-
arbitrariness pervades Article 14 like a brooding omnipresence
and the procedure contemplated by Article 21 must answer the F
test of reasonableness in order to be in conformity with Article
14. It must be "right and just and fair" and not arbitrary, fanciful
or oppressive; otherwise, it would be no procedure at all and the
requirement of Article 21 would not be satisfied."366
''Krishna Iyer, J.:
G
... So I am convinced that to frustrate Article 21 by relying on any
fonnal adjectival statute, however, flimsy or fantastic its provisions
be, is to rob what the constitution treasures.
364 Gopalan (Supra note 3), at pages 60-61 (para 77)
'" Maneka (Supra note 5), at page 323 (para 48)
366
Ibid, at page 284 (para 7) H
822 SUPREME COURT REPORTS (2017] 10 S.C.R.

A ... To sum up, "procedure" in Article 21 means fair, not formal
procedure. "Law" is reasonable law, not any enacted piece. " 367
Soon after the decision in Maneka, the Supreme Court considered
a challenge to the provisions for solitary confinement under Section 30(2)
of the Prisons Act, 1894 which stipulated that a prisoner "under sentence
B of death" is to be kept in a cell apart from other prisoners. In Sunil
BatravDelhi Administration' 68 , the Court pointed out that Sections 73
and 74 of the Penal Code which contain a substantive punishment by
way of solitary confinement was not under challenge. Section 30(2) of
the Prisons Act was read down by holding that the expression "under
C sentence of death" would apply only afterthe entire process ofremedies
had been exhausted by the convict and the clemency petition had been
denied. Justice DA Desai, speaking for the majority, held that:
" ... the word "law" in the expression "procedure established by
law" in Article 21 has been interpreted to mean in Maneka
Gandhi's case that the law must be right, just and fair and not
D arbitrary, fanciful or oppressive." 369
Justice Krishna Iyer took note of the fact that our Constitution
does not contain a due process clause and opined that after the decision
in Maneka,the absence of such a clause would make no difference:
E " ... true, our Constitution has no 'due process' clause or the VIIIth
Amendment; but, in this branch oflaw, after Cooper and Maneka
Gandhi the consequence is the same." 370
164. A substantive challenge to the constitutional validity of the
death penalty on a conviction on a charge of murder was raised in Bachan
F Singh371 • The judgment noted:
"136. Article 21 reads as under:
"No person shall be deprived of his life or personal liberty except
according to procedure established by law."
If this Article is expanded in accordance with the interpretative
G principle indicated in Maneka Gandhi, it will read as follows:
,., Ibid, at page 338 (paras 82 and 85)
368 (1978) 4 sec 494
,.9 Ibid, at pages 574-575 (para 228)
370 Ibid, at page 518 (para 52)

"' (1980) 2 sec 684
H
JUSTICE K S PUITASWAMY (RETD.) v. UNION OF INDIA 823
[DR. D. Y. CHANDRACHUD, J.]

"No person shall be deprived of his life or personal liberty except A
according to fair, just and reasonable procedure established by
valid law."
In the converse positive fonn, the expanded Article will read as
below:
"A person may be deprived of his life or personal liberty in B
accordance with fair, just and reasonable procedure_ established
by valid law." 372
Bachan Singh clearly involved a substantive challenge to the
constitutional validity of a statutory provision. The majority adjudicated
upon the coristitufional challenge under Article 21 and held that it did not C
suffer from substantive or procedural invalidity. In his dissent373 , Justice
Bhagwati significantly observed that the word "procedure" under Article
21 would cover the entire process by which deprivation is effected and
that would include not only ''the adjectival" but also substantive part of
law. In the view of the Court: D·
"The word 'procedure' in Article 21 is wide enough to cover the
entire process by which deprivation is effected and that would include
not only the adjectival but also the substantive part oflaw." 374
In Mithu v State of Punjab375 ("Mithu"), a Constitution Bench
considered the validity of Section 303 of the Penal Code which provided E
for a mandatory death penalty where a person commits murder·while
undergoing a sentence of life imprisonment. Section 303 excluded the
procedural safeguards under Section 235(2) and 354(3) of the Criminal
Procedure Code under which the accused is required to be heard on the
quest,ion of sentence and "special reasons" need to be adduced for F
imposing the death sentence. In the course of the judgment, Chandrachud
C J indicated examples of situations where a substantive enactment
could be challenged on the touchstone of Articles 14 and 21. The
observations of the Court, which are extracted below would indicate
that while the Co~rt did not use the expression "substantive due process"
it recognised that a Jaw would be amenable to challenge under -(\rticle G
21 not only on the ground that the procedure which it prescribes is not.
372 Ibid, at page 730 (para 136)

"'(1982) 3 sec 24
374
Ibid, at page 55 (para 17)
'" 0 983)2 sec 211
H
824 SUPREME COURT REPORTS [2017] 10 S.C.R.

A fair, just and reasonable but on the touchstone of having imposed a penalty
which is savage or, as the Court held, an anathema of civilised
jurisprudence:
"These decisions have expanded the scope of Article 21 in a
significant way and it is now too late in the day to contend that it
B is for the legislature to prescribe the procedure and for the courts
to follow it; that it is for the legislature to provide the punishment
and for the courts to impose it. Two instances, undoubtedly
extreme, may be taken by way of illustration for the purpose of
showing how the courts arc not bound, and arc indeed not
free, to apply a fanciful procedure by a blind adherence to
c the letter of the law or to impose a savage sentence.A law
providing that an accused shall not be allowed -to lead
evidence in self-defence will be hit by Articles 14 and 21.
Similarly, if a law were to provide that the offence of theft
will be punishable with the penalty of the cutting of hands,
D the law will be bad as violating Article 21. A savage sentence
is anathema to the civilized jurisprudence of Article 21. These
are, of course, extreme illustrations and we need have no fear
that our legislatures will ever pass such laws. But these examples
serve to illustrate that the last word on the question of justice
and fairness docs not rest with the legislature. Just as
E reasonableness of restrictions under clauses (2) to (6) of Article
19 is for the courts to determine, so is it for the courts to decide
whether the procedure prescribed by a law for depriving a person
of his life or liberty is fair, just and reasonable. The question
which then arises before us is whether the sentence of death,
F prescribed by Section 303 of the Penal Code for the offence of
murder committed by a person who is under a sentence of life
imprisonment, is arbitrary and oppressive so as to be violative of
the fundamental right conferred by Article 2 I ."376
(emphasis supplied)

G In AK Roy v Union of lndia377 , dealing with the question of
preventive detention, a Constitution Bench of this Court adverted to the
conscious decision in the Constituent Assembly to delete the expression
'due process of law' from Article 21. The Court held that:
376 Ibid, at pages 284-285 (para 6)

m (1982) I SCC 271
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA. 825
[DR. D. Y. CHANDRACHUD, J.]

"The fact that England and America do not resort to preventive A
detention in nonnal times was known to our Constituent Assembly
and yet it chose to provide for it, sanctioning its use for specified
purposes. The attitude of two other well-known democracies to
preventive detention as a means ofregulating the lives and liberties
of the people was undoubtedly relevant to the framing of our B
Constitution. But the framers having decided to adopt and legitimise
it, we cannot declare it unconstitutional by importing our notions
of what is right and wrong. The power to judge the fairness
and justness of procedure established by a law for the
purposes of Article 21 is one thing: that power can be spelt
out from the language of that article. Procedural safeguards C
are the handmaids of equal justice and since, the power of
the government is colossal as compared with the power of
an individual, the freedom of the individual can be safe only
if he has a guarantee that he will be treated fairly. The
power to decide upon the justness of the law itself is quite D
another thing: that power springs from a 'due process'
provision such as is to be found in the S1h and 141h
Amendments of the American Constitution by which no
person can be deprived of life, liberty or .property "without
due process of law"." 378 (emphasis supplied)
In Saroj Rani v Sudarshan Kumar379, this Court upheld the E
constitutional validity of the provision for restitution of conjugal rights
contained in Section 9 of the Hindu Marriage Act, 1955. The Court
found that the provision served a social purpose of preventing the
breakdown of marriages and contained safeguards against its being used
arbitrarily. F
In Mohd. Arif v Supreme Court 380, a Constitution Bench of
this Court held that the expression "reasonable procedure" in the context
of Article 21 would encompass an oral hearing of review petitions arising
out of death penalties. Tracing the history of the evolution of Article 21,
Justice Rohinton Fali Nari man, speaking for the majority in the Constitution G
Bench, observed as follows:
"The wheel has turned full circle. Substantive due process is now
378 Ibid, at page 301 (para 35)
3
" (1984>4 sec 90
380 c2014) 9 sec 737 H
826 SUPREME COURT REPORTS [2017] 10 S.C.R.

A to be applied to the fundamental right to life and.libeity." 381
More recently, Justice Chelameswar, speaking for a Bench of
two judges in Rajbala v State of Haryana 382 , has struck a note of caution,
by drawing attention to the position that the expression 'due process of
law' was consciously deleted in the drafting process after the framing of
B the Constitution. Hence, in the view of the learned Judge, it would be
· inappropriate to incorporate no.tions of substantive due process adopted
in the US while examining the constitutionality oflndian legislation: The
Court observed:
"From the above extract from McDowell & Co. case it is clear
that the courts in this country do not undertake the task of
c declaring a piece of legislation unconstitutional on the
ground that the legislation is "arbitrary" since such an
exercise implies a value judgment and courts do not
examine the wisdom of some specific provision of the
Constitution. To undertake such an examination would
D amount to virtually importing the doctrine of "substantive
due process" employed by the American Supreme Court
at an earlier point of time while examining the
constitutionality of Indian legislation. As pointed out in the
above extract, even in United States the doctrine is currently of
· doubtful legitimacy. This Court long back inA.S. Krishna v. State
E of Madras [1957 SCR 399] declared that the doctrine of due
process has no application under the Indian Constitution. As pointed
out by Frankfurter, J. arbitrariness became ~ mantra." 383
(emphasis supplied)
The constitutional history surrounding the drafting of Article 21
F contains an abundant reflection of a deliberate and studied decision of
the Constituent Assembly to delete the expression 'due process oflaw'
from the draft Constitution when the Constitution was adopted. In the
Constituent Assembly, the Drafting Committee chaired by Dr B R
Ambedkar had included the phrase but it came to be deleted after a
G careful evaluation of the vagaries of the decision making process in the
US involving interpretation of the due process clause. Significantly,
present to the mind of the framers ofour Constitution was the invalidation
of social welfare legislation in the US on the anvil of the due process
381
Ibid, at page 756 (para 28)
3" (2016) 2 sec 445
H 383 Ibid, at page 481 (para 64)
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 827
[DR. D. Y. CHANDRACHUD, J.]

clause on the ground that it violated the liberty of contract of men, women A
and children to offer themselves for work in a free market for labour.
This model evidently did not appeal to those who opposed the incorporation
of a similar phrase into the Indian Constitution.
Yet the debates in the Constituent Assembly indicate that there
was a substantial body of opposition to the deletion of the due process B .
clause, which eventually led Dr B RAmbedkar to objectively sum up
the rival view points·for decision by the House. Evidently 'due process'
was substituted with tl1e expression 'procedure established by law'.
'Liberty' was qualified by 'personal'.
Having noticed this, the evolution of Article 21, since the decision
in Cooper indicates two major areas of change. First, the fundamental c·
rights are no longer regarded as isolated.silos or water tight
compartments. In consequence, Article 14 has been held to animate the
content of Article 21. Second, the expression 'procedure established by
Jaw' in Article 21 does not connote a formalistic requirement of a mere
presence of procedure in enacted law. That expression has been held to D
signify the content of the procedure and its quality which must be fair,
just and reasonable. The mere fact that the law provides for the
deprivation of life or personal liberty is not sufficient to conclude its
validity and the procedure to be constitutionally valid must be fair, just
and reasonable. The quality of reasonableness does not attach only to
the content of the procedure which the law prescribes with reference to E
Article 21 but to the content of the law itself. In other words, the
requirement of Article 21 is not fulfilled only by the enactment offair
and reasonable procedure under the law and a Iaw which does so may
yet be susceptible to challenge on the ground that its content does not
accord with the requirements of a valid law. The law is open to substantive F
challenge on the ground that it violates the fundamental right.
In dealing with a substantive challenge to a law on the ground that
it violates a fundamental right, there are settled principles of constitutional
interpretation which hold the field. The first is the presumption of
constitutionality 384 which is based on the foundationarprinciple that the G
384 Charanjit Lal Chowdhury v. The Union oflndia, AIR 1951 SC 41 ; Ram Krishna

· Dalmia v. Shri Justice S.R. Tendolkar, AIR 1958 SC 538 ; Burrakur Coal Co. Ltd:v.
· Union of India AIR 1961 SC 954 ; Pathumma v. State ofKerala (1970) 2 SCR 537 ;
R.k Garg v. Union oflndia, (1981) 4 SCC 675 ; State of Bihar v. Bihar Distillery
Limited, AIR 1997 SC 1?11 ; State of Andhra Pradesh v. K. Purushottam Reddy.
(2003) 9 SCC 564, ; Mardia Chemicals Ltd. v. Union oflndia, (2004) 4 SCC 311 ; State
of Gujarat v. MirzapurMoti Kureshi Kassab Jamat, 2005 (8) SCC.534 ; Bhanumati v. H
828 SUPREME COURT REPORTS [2017) 10 S.C.R.

A legislature which is entrusted with the duty oflaw making best understands
the needs of society and would not readily be assumed to have
transgressed a constitutional limitation. The burden lies on the individual
who asserts a constitutional transgression to establish it. Secondly, the
Courts tread warily in matters of social and economic policy where they
singularly lack expertise to make evaluations. Policy making is entrusted
B
to the state. 385
The doctrine of separation of powers requires the Court to allow
deference to the legislature whose duty it is to frame and enact law and
to the executive whose duty it is to enforce law. The Court would not, in
. the exercise of judicial review, substitute its own opinion for the wisdom
C of the law enacting or law enforcing bodies. In the context of Article 19,
the test of reasonableness was explained in the erudite words of Chief
Justice Patanjali Sastri in State of Madras v V G Row 386, where the
learned Chief Justice held thus:
"It is important in this context to bear in mind that the test of
D reasonableness, wherever prescribed, should be applied to each
individual statute impugned, and no abstract standard, or general
pattern of reasonableness can be laid down as applicable to all
cases. The nature of the right alleged to have been infringed,
the underlying purpose of the restrictions imposed,. the
E extent and urgency of the evil sought to. be remedied
thereby, the disproportion of the imposition, the prevailing
conditions at the time, should all enter into the judicial
verdict. In evaluating such elusive factors and forming their own
conception of what is reasonable, in all the circumstances of a
given case, it is inevitable that the social philosophy and the scale
F of values of the judges participating in the decision should play an
important part, and the limit of their interference with legislative
State ofUttar Pradesh, (2010) 12 SCC I ; K.T. Plantation Pvt. Ltd. v. State ofKarnataka,
(2011) 9 SCC I; State of Madhya Pradesh v. Rakesh Kohli, (2012) 6 SCC 312 ; Namit
Sharma v. Union oflndia, (2013) 1SCC745
"'R.K. Garg v. Union of India, (1981) 4 SCC 675; Maharashtra State Board of
G Secondary and Higher Secondary Education v. Paritosh Bhupesh Kurmarsheth, AIR
1984 SC 1543; State of Andhra Pradesh v. McDowell, (1996) 3 SCC 709 ; Union of
India v. Azadi BachaoAndolan, (2004) IOSCC 1 ; State ofU.P. v. JeetS. Bish!, (2007)
6 SCC 586 ; K.T. Plantation Pvt. Ltd. v. State of Karnataka, (2011) 9 SCC I ;
Bangalore Development Authority v. The Air Craft Employees Cooperative Society
Ltd., 2012 (I) SCALE 646
386 (1952) SCR 597
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 829
[DR. D. Y. CHANDRACHUD, J.]

judgment in such cases can only be dictated by their sense of A
responsibility and self-restraint and the sobering reflection
that the Constitution is meant not only for people of their
way of thinking but for all, and that the majority of the elected
representatives of the people have, in authorizing the imposition
of the restrictions, ~onsidered them to be reasonable." 387
B
(emphasis supplied)
165. The Court, in the exercise of its power of judicial review, is
unquestionably vested with the constitutional power to adjudicate upon
the validity of a law. When the validity of a law is questioned on the
ground that it violates a guarantee contained in Article 21, the scope of
the challenge is not confined only to whether the procedure for the C
deprivation of life or personal liberty is fair, just and reasonable.
Substantive challenges to the validity oflaws encroaching upon the right
to life or personal liberty has been considered and dealt with in varying
contexts, such as the death penalty (Bachan Singh) and mandatory
death sentence (Mithu), among other cases. A person cannot be D
deprived of life or personal liberty except in accordance. with the
procedure established by law. Article 14, as a guarantee against
arbitrariness, infuses the entirety of Article 21. The inter-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. E
Second, Article 14 impacts both the procedure and the expression "law".
A law within the meaning of Article 21 must be consistent with the
norms of fairness which originate in Article 14. As a matter of principle,
once Article 14 has a connect with Article·2 I, norms of fairness and
reasonableness would apply not only to the procedure but to the law as F
well.
166. Above all, it must be recognized that judicial review is a
powerful guarantee against legislative encroachments on life and personal
liberty. To cede this right would dilute the importance of the protection
granted to life and personal liberty by the Constitution. Hence, while G
judicial review in constitutional challenges to the validity of legislation is
exercised with a conscious regard for the presumption of constitutionality
and for the separation of powers between the legislative, executive and
- judicial institutions, the constitutional power which is vested in the Court
387 Ibid, at page 607
H
830 SUPREME COURT REPORTS [2017] 10 S.C.R.

A must be retained as a vibrant means of protecting the lives and freedoms
of individuals.
167. The danger of construing this as an exercise of 'substantive
due process' is that it.results in the incorporation of a concept from the
American Constitution which was consciously not accepted when the
B Constitution was framed. Moreover, even in the country of its origin,
substantive due process has led to vagaries of judicial interpretation.
Particularly having regard to the constitutional history surrounding the
deletion of that phrase in our Constitution, it would be inappropriate to
equate the jurisdiction of a Constitutional Court in India to entertain a
C substantive challenge to the validity of a law with the exercise of
substantive due process under the USConstitution. Reference to
substantive due process in some of the judgments i.s essentially a reference
to a substantive challenge to the validity of a law on the ground that its
substantive (as distinct from procedural) provisions violate the
Constitution.
D R Essential nature of privacy
168. What, then, does privacy postulate? Privacy postulates the
reservation of a private space for the individual, described as the right to
be let alone. The concept is founded on the autonomy of the individual.
The ability of an individual to make choices lies at the core of the human
E personality. The notion of privacy enables the individual to assert and
control the human element which is inseparable from the personality of
the individual. The inviolable nature of the human personality is manifested
in the ability to make decisions on matters intimate to human life. The
autonomy of the individual is associated over matters which can be kept
p private. These are concerns over which there is a legitimate expectation
of privacy. The body and the mind are inseparable elements of the human ·
personality. The integrity of the body and the sanctity of the mind can
exist on the foundation that each individual possesses an inalienable ability
and right to preserve a private space in which the human personality can
develop. Without the ability to make choices, the inviolability of the
G personality would be in doubt. Recognizing a zone of privacy is but an
acknowledgment that each individual must be entitled to chart and pursue
the course of development of personality. Hence privacy is a postulate
of ~uman dignity itself. Thoughts and behavioural patterns which are
intimate to an individual are entitled to a zone of privacy where one is
H free of social expectations. In that zone of p~vacy, an individual is not
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 831
[DR. D. Y. CHANDRACHUD, J.]

judged by others. Privacy enables each individual to take crucial decisions A
which find expression in the human personality. It enables individuals to
preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences
and choices against societal demands of homogeneity. Privacy is an
intrinsic recognition of heterogeneity, of the right of the individual to be
different and to stand against the tide of conformity in creating a zone of B
solitude. Privacy protects the individual from the searching glare of
publicity in matters which are personal to his or her life. Privacy attaches
to the person and not to the place where it is associated. Privacy
constitutes the foundation of all liberty because it is in privacy that the
individual can decide how liberty is best exercised. Individual dignity and
privacy are inextricably linked in a pattern woven out of a thread of C
diversity into the fabric of a plural culture.
169. Privacy of the individual is an essential aspect of digriity.
Dignity has both an intrinsic and instrumental value. As an intrinsic-
value, human dignity is an entitlement or a constitutionally protected
interest in itself. In its instrumental facet, dignity and freedom are D
inseparably inter-twined, each being a facilitative tool to achieve the
other. The ability of the individual to protect a zone of privacy enables
the realization of the full value oflife and liberty. Liberty has a broader
meaning of which privacy is a subset. All liberties may not be exercised
in privacy. Yet others can be fulfilled only within a private space. Privacy
enables the individual to retain the autonomy of the body and mind. The E
autonomy of the individual is the ability to make decisions on vital matters
of concern to life. Privacy has not been couched as an independent
fundamental right. But that does not detract from the constitutional
protection afforded to it, once the true nature of privacy and its
relationship with those fundamental rights which are expressly protected F
is understood. Privacy lies across the spectrum of protected freedoms.
The guarantee of equality is a guarantee against arbitrary state action.
It prevents the state from discriminating between individuals. The
destruction by the state of a sanctified personal space whether of the
body or of the mind is violative of the guarantee against arbitrary state
action. Privacy of the bo~y entitles an individual to the integrity of the G
physical aspects ofpersonhood. The intersection between one's mental
integrity and privacy entitles the individual to freedom of thought, the
freedom to believe in what is right, and the freedom of self-determination.
When these guarantees intersect with gender, they create a private space
H
832 SUPREME COURT REPORTS [2017] 10 S.C.R.

A which protects all those elements which are crucial to gender identity.
The family, marriage, procreation and sexual orientation are all integral
to the dignity of the individual. Above all, the privacy of the individual
recognises an inviolable right to determine how freedom shall be exercised.
An individual may perceive that the best form of expression is to remain
silent. Silence postulates a realm of privacy. An artist finds reflection of
B
the soul in a creative endeavour. A writer expresses the outcome of a
process of thought. A musician contemplates upon notes which musical! y
lead to silence. The silence, which lies within, reflects on the ability to
choose how to convey thoughts and ideas or interact with others. These
are crucial ·aspects of person hood. Th.e freedoms under Article 19 can
C be fulfilled where the individual is entitled to decide upon his or her
preferences. Read in conjunction with Article 21, liberty enables the
individual to have a choice of preferences on various facets oflife including
what and how one will eat, the way one will dress, the faith one will
espouse and a myriad other matters on which autonomy and self-
D determination require a choice to be made within the privacy of the
mind. The constitutional right to the freedom of religion under Article 25
has implicit within it the ability to choose a faith and the freedom to
express or not express those choices to the world. These are some
illustrations of the manner in which privacy facilitates freedom and is
intrinsic to the exercise of liberty. The Constitution does not contain a
E separate article telling us that privacy has been declared to be a
fundamental right. Nor have we tagged the provisions of Part III with
an alpha suffixed right of privacy: this is not an act of judicial redrafting.
Dignity cannot exist without privacy. Both reside within the inalienable
values oflife, liberty and freedom which the Constitution has recognised.
F Privacy is the ultimate expression of the sanctity of the individual. It is a
constitutional value which straddles across the spectrum of fundamental
rights and protects for the individual a zone of choice and
self-determination.
Privacy represents the core of the human personality and
recognizes the ability of each individual to make choices and to take
G decisions governing matters intimate and personal. Yet, it is necessary to
acknowl~ge that individuals live in communities and work in communities.
Their personalities affect and, in turn are shaped by their social
environment. The individual is not a hermit. The lives of individuals are
as much a social phenomenon. In their interactions with others, individuals
H
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 833
[DR. D. Y. CHANDRACHUD, J.]

are constantly engaged in behavioural patterns and in relationships A
impacting on the rest of society. Equally, the life of the individual is being
consistently shaped by cultural and social values imbibed from living in
the community. This state of flux which represents a constant evolution
of individual personhood in the relationship with the rest of society provides
the rationale for reserving to the individual a zone of repose. The lives
B
which individuals lead as members of society engender a reasonable
expectation of privacy. The notion of a reasonable expectation of privacy
has elements both of a subjective and objective nature. Privacy at a
subjective level is a reflection of those areas where an individual desire
to be left alone. On an objective plane, privacy is defined by those
constitutional values which shape the content of the protected zone where C
the individual ought to be left alone. The notion that there rnust exist a
reasonable expectation of privacy ensures that while on the one hand,
the in di vi dual has a protected zone of privacy, yet on the other, the exercise
of individual choices is subject to the rights of others to lead orderly
lives. For instance, an individual who possesses a plot ofland may decide D
to build upon it subject to zoning regulations. If the building bye laws
define the area upon which construction can be raised or the height of
the boundary wall around the property, the right to privacy of the individual
is conditioned by regulations designed to protect the interests of the·
community in planned spaces. Hence while the individual is entitled to a
zone of privacy, its extentis based not only on the subjective expectation E
of the individual but on an objective principle which defines a reasonable
expectation.
S Informational privacy
170. Ours is an age of information. Information is knowledge.
The old adage that "knowledge is power" has stark implications for the F
position of the individual where data is ubiquitous, an all-encompassing
presence. Technology has made life fundamentally interconnected. The
internet has become all pervasive as individuals spend more and more
time on line each day of their lives. Individuals connect with others and·
use the internet as a means of communication. The internet is used to G
carry on business and to buy goods and services. Individuals browse the
web in search of information, to send e-mails, use instant messaging
services and to download movies. Online purchases have become an
efficient substitute for the daily visit to the neighbouring store. Online
banking has redefined relationships between bankers and customers.
H
834 SUPREME COURT REPORTS [2017] 10 S.C.R.

A Online tradin~ has created a new platform for the market in securities.
Online music has refashioned the radio. Online books have opened up a
new universe for the bibliophile. The old-fashioned travel agent has been
rendered redundant by web portals which provide everything from
restaurants to rest houses, airline tickets to art galleries, museum tickets
to music shows. These are but a few of the reasons people access the
B
internet each day of their lives. Yet every transaction of an individual
user and every site that she visits, leaves electronic tracks generally
without her knowledge. These electronic tracks contain powerful means .
of information which provide knowledge of the sort of person that the
user is and her interests 388 • Individually, these information silos may
c seem inconsequential. In aggregation, they disclose the nature of the
personality: food habits, language, health, hobbies, sexual preferences,
friendships, ways of dress and political affiliation. In aggregation,
information provides a picture of the being: of things which matter and
those that don't, of things to be disclosed and those best hidden.
D 171. Popular websites install cookie files by the user's browser.
Cookies can tag browsers for unique identified numbers, which allow
them to recognise rapid users and secure information about online
behaviour. Information, especially the browsing history of a user is utilised
to create user profiles. The use of algorithms allows the creation of
profiles about internet users. Automated content analysis of e-mails
E allows for reading of user e-mails. An e-mail can be analysed to deduce
user interests and to target suitable advertisements to a user on the site
of the window. The books which an individual purchases on-line provide
footprints for targeted advertising of the same genre. Whether an airline
ticket has been purchased on economy or business class, provides vital
F information about employment profile or spending capacity. Taxi rides
booked on-line to shopping malls provide a profile of customer
preferences. A woman who purchases pregnancy related medicines on-
line would be in line to receive advertisements for baby products. Lives
are open to electronic scrutiny. To put it mildly, privacy concerns are
seriously an issue in the age of information~
G
172. A Press Note released by the Telecom Regulatory Authority
388See Francois Nawrot, Katarzyria Syska and Przemyslaw Switalski, "Horizontal
application of fundamental rights-Right to privacy on the internet'', 9" Annual European
Constit11tionalism Seminar (May 2010), University of Warsaw, available at http://
en.zpc.wpia.uw.edu.pl/wp-content/uploads/2010/04/
H 9_Horizontal_Appl ication_of_Fundamental_Rights.pdf

•
JUSTICE K S PUTI'ASWAMY (RETD.) v. UNION OF INDIA 835
[DR. D. Y. CHANDRACHUD, J;]

of India on 3 July, 2017 389 is indicative of the prevalence of telecom A
services. in India as on 31 December, 2016. The total number of
subscribers stood at'! 151. 78 million, reflecting a 11.13 percent change
over the previous year. There were 683.14 million urban subscribers
and 468.64 million rural subscribers. The total number of internet
subscribers stood at 391.50 million reflecting an 18.04 per cent change B
over the previous quarter. 236.09 million were broadband subscribers.
370 million is the figure of wireless internet subscribers. The total internet
subscribers per I00 population stood at 30.56; urb;m internet subscribers
were 68.86 per 100 population; and rural internet subscribers being 13.08.
The figures only increase.
173. The age of information has resulted in complex issues for C
informational privacy. These issues arise from the nature of information
itself. Information has three facets: it is nonrivalrous, invisible and.
recombinant390 • Information is nonrivalrous in the sense that there can
be simultaneous users of the good- use of a piece of information by one
person does not make it less available to another. Secondly, invasions of D
data privacy are difficult to detect because .they can be invisible.
Information can be accessed, stored and disseminated without notice.
Its ability to travel at the speed oflight enhances the invisibility of access
to data, "information collection can be the swiftest theft of all" 391 • Thirdly,
information is recombinant in the sense that data output can be used as
an input to generate more data output. E

174. Data Mining processes together with knowledge discovery
can be combined to create facts about individuals. Metadata and the
internet of things have the ability to redefine human existence in ways
. which are yet fully to be perceived. This, as Christina Moniodis states
in her illuminating article results in the creation of new knowledge about F
individuals; something which even she or he did not possess. This poses
serious issues for the Court. In an age ofrapidly evolving technology it is
impossible for a judge to conceive of all the possible uses of infonnation
or its consequences:
" ... The creation of new knowledge complicates data privacy law G
389 Press Release 45/2017, available at http://trai.gov.in/sitcs/default/files/
PR No.45of20 l 7 .pdf
'"'Christina P. Moniodis, "Moving from Nixon to NASA: Privacy 's Second Strand-
A Right to Informational Privacy", Yale Journal ofLaw and Technology (2012), Vol.
15 (I), at page 153
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836 SUPREME COURT REPORTS [2017] 10 S.C.R.

A as it involves information the individual did not possess and could
not disclose, knowingly or otherwise. In addition, as our state
becomes an "information state'' through increasing reliance on
infom1ation - such that information is described as the "lifeblood
that sustains political, social, and business decisions. It becomes
impossible to conceptualize all of the possible uses of information
B
and resulting harms. Such a situation poses a challenge for courts
who are effectively asked to anticipate and remedy invisible,
evolving harms." 392
The contemporary age has been aptly regarded as "an era of
ubiquitous dataveillance, or the systematic monitoring of citizen's
c communications or actions through the use of information technology"J93 •
It is also an age of "big data" or the collection of data sets. These data
sets are capable of being searched; they have linkages with other data
sets; and are marked by their exhaustive scope and the permanency of
collection. 394 The challenges which big data poses to privacy interests
D emanate from State and non-State entities. Users of wearable devices
and social media networks may not conceive of themselves as having
volunteered data but their activities of use and engagement result in the
generation of vast amounts of data about individual lifestyles, choices
and preferences. Yvonne McDermott speaks about the quantified self
in eloquent terms:
E
" ... The rise in the so-called 'quantified self', or the self-tracking
of biological, environmental, physical, or behavioural information
through tracking devices, Internet-of-things devices, social network
data and other means (?Swan.2013) may result in information
being gathered not just about the individual user, but about people
F around them as well. Thus, a solely consent-based model does
not entirely ensure the protection of one's data, especially when
data collected for one purpose can be repurposed for another." 395
175. Daniel J Solove deals with the problem of "aggregatfon".
Businesses and governments often aggregate a variety of information
G fragments, including pieces of information which may not be viewed as

392 Ibid, at page 154
393 Yvonne McDermott, "Conceptualizing the right to data protection in an era of Big
Data", Big Data and Society (2017), at page 1
3
" Ibid, at pages I and 4

H 395
Ibid, at page 4

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JUSTICE K S PUITASWAMY (RETD.) v. UNION OF INDIA 837
[DR. D. Y. CHANDRACHUD, J.]

private in isolation to create a detailed portrait of personalities and A
behaviour of individuals. 396 Yet, it is now a universally accepted fact that
information and data flow are "increasingly central to social and economic
ordering" 397 • Individuals are identified w.ith reference to tax records,
voting eligibility, and government-provided entitlements. There is what is
now described as "'veillant panoptic assemblage', where data gathered B
through the ordinary citizen's veillance practices finds its way to state
surveillance mechanisms, through the corporations that hold that data" 398•
176. The balance between data regulation and individual privacy
raises complex issues requiring delicate balances to be drawn between
the legitimate concerns of the State on one hand and individual interest
in the protection of privacy on the other. c
177. The sphere of privacy stretches at one end to those intimate
matters to which a reasonable expectation of privacy may attach. It
expresses a right to be left alone. A broader connotation which has
emerged in academic literature of a comparatively recent origin is related
to the protection of one's identity. Data protection relates closely with D
the latter sphere. Data such as medical information would be a category
to which a reasonable expectation of privacy attaches. There may be
other data which falls outside the reasonable expectation paradigm. Apart
from safeguarding privacy, data protection regimes seek to protect the
autonomy of the individual. This is evident from the emphasis in the E
European data protection regime on the centrality of consent. Related to
the issue of consent is the requirement of transparency which requires a
disclosure by the data recipient of information pertaining to data transfer
and use.
178. Another aspect which data protection regimes seek to F
safeguard is the principle of non-discrimination which ensures that the
collection of data should be carried out in a manner which does not
discriminate on the basis of racial or ethnic origin, political or religious
beliefs, genetic or health status or sexual orientation.
396
Christina P. Moniodis, "Moving from Nixon to NASA: Privacy 's Second Strand- G
A Right to Informational Privacy", YClle Jounwl ofLaw and Technology (2012), Vol.
15 (!), at page 159. The article attributes Daniel Solove's work on privacy as-
Daniel J. Solove, Understanding PrivClcy 10 (2008).
"' Ibid, at page 156
"'Yvonne McDermott, "Conceptualizing the right to data protection in an era of Big
Data'', Big DatCl Cl1ld Society (2017), at page 4.
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838 SUPREME COURT REPORTS [2017] 10 S.C.R.

A 179. Formulation of a regime for data protection is a complex
exercise which needs to be undertaken by the State after a careful
balancing of the requirements of privacy coupled with other values which
the protection of data sub-serves together with the legitimate concerns
of the State. One of the chief concerns which the formulation of a data
protection regime has to take into account is that while the web is a
B
source of lawful activity-bothpersonal and commercial, concerns of
national security intervene since the seamless structure of the web can
be exploited by terrorists to wreak havoc and destruction on civilised
societies. Cyber attacks can threaten financial systems. Richard A Posner,
in an illuminating article, has observed:
c "Privacy is the terrorist's best friend, and the terrorist's privacy
has been enhanced by the same technological developments that
have both made data mining feasible and elicited vast quantities
of personal information from innocents: the internet, with its
anonymity, and the secure encryption of digitized data which, when
D combined with that anonymity, make the internet a powerful tool
of conspiracy. The government has a compelling need to exploit
digitization in defense of national security ... " 3'1'1
Posnernotes that while "people value their informational privacy",
yet "they surrender it at the drop of a hat" by readily sharing personal
E data ~n the course of simple daily transactions. The paradox, he observes,
can be resolved by noting that as long as people do not expect that the
details of their health, intimacies and finances among others will be used
to harm them in interaction with other people, they are content to reveal
those details when they derive benefits from the revelation. 400 As long
as intelligence personnel can be trusted to use the knowledge gained
F only for the defence of the nation, "the public will be compensated for
the costs of diminished privacy in increased security from terrorist
attacks"401 • Posner's formulation would indicate that the State does have
a legitimate interest when it monitors the web to secure the nation against
cyber attacks and the activities of terrorists .
.G 180. While it intervenes to protect legitimate state interests, the
state must nevertheless put into place a robust regime that ensures the
399
Richard A. Posner, "Privacy, Surveillance, and Law", The University of Chicago
Law Review(2008), Vol.75, at page 251
....,Ibid
1
•• Ibid
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JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 839
[DR. D. Y. CHANDRACHUD, J.]

fulfilment of a three-fold requirement. These three requirements apply A
to all restraints on privacy (not just informational privacy). They emanate
from the procedural and content-based mandate of Article 21. The first
requirement that there must be a law in existence to justify an
encroachment on privacy is an express requirement of Article 21. For,
no person can be deprived of his life or personal liberty except in B
accordance with the procedure established by law. The existence of
law is an essential requirement. Second, the requirement of a need, in
terms of a legitimate state aim. ensures that the nature and content of
the law whic_h imposes the restriction falls within the zone of
reasonableness mandated by Article 14, which is a guarantee against
arbitrary state action. The pursuit of a legitimate state aim ensures that C
the law does not suffer from manifest arbitrariness. Legitimacy, as a
postulate, involves a value judgment. Judicial review does not re-
appreciate or second guess the value judgment of the legislature but is
for deciding whether the aim which is sought to be pursued suffers from
palpable or manifest arbitrariness. The third requirement ensures that D
the means which are adopted by the legislature are proportional to the
object and needs sought to be fulfilled by the law. Proportionality is an
essential facet of the guarantee against arbitrary state action because it
ensures that the nature and quality of the encroachment on the right is
not disproportionate to the purpose of the law. Hence, the three-fold
requirement for a valid law arises out of the mutual inter-dependence E
between the fundamental guarantees against arbitrariness on the one
hand and the protection of life and personal liberty, on the other. The
right to privacy, which is an intrinsic part of the right to life and liberty,
and the freedoms embodied in Part III is subject to the same restraints
which apply to those freedoms.
F
181. Apart from national security, the state may have justifiable
reasons for the collection al\d storage of data. In a social welfare state,
the government embarks upon programmes which provide benefits to
impoverished and marginalised sections of society. There is a vital state
interest in ensuring that scarce public resources are not dissipated by
the diversion of resources to persons who do not qualify as recipients. G
Allocation ofresources for hwnan development is coupled with a legitimate
concern that the utilisation of resources should not be siphoned away for
extraneous purposes. Data mining with the object of ensuring that
resources are properly deployed to legitimate beneficiaries is a valid
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840 SUPREME COURT REPORTS [2017) 10 S.C.R.

A ground for the state to insist on the collection of authentic data. But, the
data which the state has collected ha~ to be utilised for legitimate purposes
of the state and ought not to be utilised unauthorizedly for extraneous
purposes. This will ensure that the legitimate concerns of the state are
duly safeguarded while,at the same time, protecting privacy concerns.
Prevention and investigation of crime and protection of the revenue are
B
among the legitimate aims of the state. Digital platforms are a vital tool
of ensuring good governance in a social welfare state. Information
technology- legitimately deployed is a powe1ful enabler in the spread of
innovation and knowledge.
182. A distinction has been made in contemporary literature
c between anonymity on one hand and privacy on the other. 402 Both
anonymity and privacy prevent others from gaining access to pieces of
personal information yet they do so in opposite ways. Privacy involves
hiding information whereas anonymity involves hiding what makes it
personal. An unauthorised parting of the medical records of an individual
D which have been furnished to a hospital will amount to an invasion of
privacy. On the other hand, the state may assert a legitimate interest in
analysing data borne from hospital records to understand and deal with
a public health epidemic such as malaria or dengue to obviate a serious
impact on the population. If the State preserves the anonymity of the
individual it could legitimately assert a valid state interest in the
E preservation of public health to design appropriate policy interventions
on the basis of the data available to it.
183. Privacy has been held to be an intrinsic element of the right
to life and personal liberty under Article 21 and as a constitutional value
which is embodied in the fundamental freedoms embedded in Part III of
F the Constitution. Like the right to life and liberty, privacy is not absolute.
The limitations which operate on the right to life and personal liberty
would operate on the right to privacy. Any curtailment or deprivation of
that right would have to take place under a regime oflaw. The procedure
established by law must be fair, just and reasonable. The law which
G provides for the curtailment of the right must also be subject to
constitutional safeguards.
184. The Union government constituted a Group of Experts on
privacy under the auspices of the erstwhile Planning Commission. The
402 See in this connection, Jeffrey M. Skopek, "Reasonable Expectations of Anonymity",

Virginia Law Review(2015), Vol.IOI, at pages 691-762
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JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 841
[DR. D. Y. CHANDRACHUD, J.]

Expert Group in its Report403 (dated 16 October 2012) proposed a A
framework for the protection of privacy concerns which, it was expected,
would serve as a conceptual foundation for legislation protecting privacy.
The framework suggested by the expert group was based on five salient
features: (i) Technological neutrality and interoperability with international
standards; (ii) Multi-Dimensional privacy; (iii) Horizontal applicability to B
state arid non-state entities; (iv) Conformity with privacy principles; and
(v) A co-regulatory enforcement regime. After reviewing international
best practices, the Expert Group proposed nine privacy principles. They
are:
(i) Notice: A data controller shall give simple-to-understand notice
of its information practices to all individuals in clear and concise C
language, before personal information is collected;
(ii) Choice and Consent: A data controller shall give individuals
choices (opt-in/opt-out) with regard to providing their personal
information, and take individual consent only after providing
notice of its information practices; D
(iii) Collection Limitation: A data controller shall only collect
personal information from data subjects as is necessary for
the purposes identified for such collection, regarding which
notice has been provided and consent of the individual taken.
Such collection shall be through lawful and fair means; E

(iv) Purpose Limitation: Personal data collected and processed
by data controllers should be adequate and relevant to the
purposes for which it is processed~ A data controller shall collect,
process, disclose, make available, or otherwise use personal
information only for the purposes as stated in the notice after F
takirig consent of individuals. If there is a change of purpose,
this must be notified to the individual. After personal information
has been used in accordance with the identified purpose it should
be destroyed as per the identified procedures. Data retention
mandates by the government should be in compliance with the G
National Privacy Principles; -
(v)Access and Correction: Individuals shall have access to personal
information about them held by a data controller; shall be able
-- -----
"Report of the Group of Expe11s on Privacy"(16 October, 2012). Government of
403
India, available at http:l/planningcommission.nic.in/reports/genrep/rep privacy.pdf
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842 SUPREME COURT REPORTS [2017] 10 S.C.R.

A to seek correction, amendments, or deletion of such information
where it is inaccurate; be able to confirm that a data controller
holds or is processing information about them: be able to obtain
from the data controller a copy of the personal data. Access
and correction to personal information may not be given by the
data controller if it is not, despite best efforts, possible to do so
B
without affecting the privacy rights of another person, unless
that person has explicitly consented to disclosure;
(vi) Disclosure oflnformation: A data controller shall not disclose
personal information to third parties, except after providing notice
and seeking informed consent from the individual for such
c disclosure. Third parties are bound to adhere to relevant and
applicable privacy principles. Disclosure for law enforcement
purposes must be in accordance with the laws in force. Data
controllers shall not publish or in any other way make public
personal information, including personal sensitive information;
D (vii)Security: A data controller shall secure personal information
that they have either collected or have in their custody, by
reasonable security safeguards against loss, unauthorised
access, destruction, use, processing, storage, modification,
deanonymization, unauthorized disclosure [either accidental or
E incidental] or other reasonably foreseeable risks;

, (viii)Openness: A data controller shall take all necessary steps to
implement practices, procedures, policies and systems in a
manner proportional to the scale, scope, and sensitivity to the
data they collect, in order to ensure compliance with the privacy
F principles, information regarding which shall be made in an
intelligible form, using clear and plain language, available to all
individuals; and
(ix)Accountability: The data controller shall be accountable for
complying with measures which give effect to the privacy
0 principles. Such measures shouldinclude mechanisms to
implement privacy policies; including tools, training, and
education; external and internal audits, and requiring
organizations or overseeing bodies extend all necessary support
to the Privacy Commissioner and comply with the specific and
general orders of the Privacy Commissioner.
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JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 843
[DR. D. Y. CHANDRACHUD, J,]

185. During the course of the hearing of these proceedings, the A
Union government has placed on the record an Office Memorandum
dated 31July2017 by which it has constituted a committee chaired by
Justice B N Srikrishna, former Judge of the Supreme Court of India to.
review inter alia data protection norms in the country and to make its
recommendations. The tenns of reference of the Committee are:
B
a) To study various issues relating to data protection in India;
b) To make specific suggestions for consideration of the Central
Government on principles to be considered for data protection in India
and suggest a draft data protection bill.
Since the government has initiated the process of reviewing the C
entire area of data protection, it would be appropriate to leave the matter
for expert determination so that a robust regime for the protection of
data is put into place. We expect that the Union government shall follow
up on its decision by taking all necessary and proper steps.
T Our Conclusions D
1 The judgment in M P Sharma holds essentially that in the
absence of a provision similar to the Fourth Amendment to the
US Constitution, the right to privacy cannot be read into the
provisions of Article 20 (3) of the Indian Constitution. The
judgment does not specifically adjudicate on whether a right to E
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 is not a right guaranteed by
the Indian Constitution is not reflective of the correct position.
MP Sharma is overruled to the extent to .which it indicates to F
the contrary.
2 Kharak Singh has correctly held that the content of the
expression 'life' under Article 21 means not 111erely the right to
a person's "animal existence" and that the expression 'personal
liberty' is a guarantee against invasion into the sanctity of a G
person's home or an intrusion into personal security. Kharak
Singh also correctlylaid down that the dignity of the individual
must lend content to the meaning of 'personal liberty'. The
first part of the decision in Kharak Singh which invalidated
domiciliary visit~ at night on the ground that they violated ordered
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844 SUPREME COURT REPORTS [2017] 10 S.C.R.

A 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. Similarly, Kharak Singh's
reliance upon the decision of the majority in Gopalan is not
reflective of the correct position in view of the decisions in
B
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.
3 (A) Life and personal liberty are inalienable rights. These are
rights which are inseparable from a dignified human existence.
c 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
D 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 oflife and personal liberty in Article
21 of the Constitution. Elements of privacy also arise in varying
E 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
F Constitution nor is the Court embarking on a constitutional
function of that nature which is entrusted to Parliament;
(E)Privacy is the constitutional core of human dignity. Privacy
has both a normative and descriptive function. At a normative
level privacy sub-serves those eternal values upon which the
G guarantees of life, liberty and freedom are founded. At a
descriptive level, privacy postulates a bundle of entitlements
and interests which lie at the foundation of ordered liberty;
· (F)Privacy includes at its core the preservation of personal
intimacies, the sanctity of family life, marriage, procreation,
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JUSTICE K S PUTIASWAMY (RETD.) v. UNION OF INDIA 845
[DR. D. Y. CHANDRACHUD, J.]

the home and sexual orientation. Privacy also connotes a right A
to be left alone. Privacy safeguards individual autonomy and
recognises the ability of the individual to control vital aspects
of his or her life. Personal choices governing a way of life are
intrinsic to privacy. Privacy protects heterogeneity and
recognises the plurality and diversity of our culture. While the B
legitimate expectation of privacy may vary from the intimate
zone to the private zone and from the private to the public
arenas, it is important to underscore that privacy is not lost or
surrendered merely because the individual is in a public place.
Privacy attaches to the person since it is an essential facet of
the dignity of the human being; C
(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 to meet the challenges thrown up in a
democratic order governed by the rule oflaw. The meaning of D
the Constitution cannot be frozen on the perspectives present
when it was adopted. Technological change has given rise to
concerns which were not present seven decades ago and the
rapid growth of technology may render obsolescent many
notions of the present. Hence the interpretation of the
Constitution must be resilient and flexible to allow future E
generations to adapt its content bearing in mind its basic or
essential features;
(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 F
which encroaches upon privacy will have to withstand the
touchstone of permissible restrictions con 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 G
with reference to the encroachment on life and personal liberty
j
under Article 21. An invasion oflife or personal liberty must
meet the three-fold requirement of (i) legality, which postulates
the existence oflaw; (ii) need, defined in terms of a legitimate
state aim; and (iii) proportionality which ensures a rational nexus
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846 SUPREME COURT REPORTS [2017] 10 s.C.R.

A between the objects and the means adopted to achieve them;
and
(I) Privacy has both positive and negative content. The negative
content restrains the state from committing an intrusion upon
the life and personal liberty of a citizen. Its positive content
B imposes an obligation on the state to take all necessary
measures to protect the privacy of the individual.
4 Decisions rendered by this Court subsequent to Kharak Singh,
upholding the right to privacy would be read subject to the
above principles. '
c 5 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. The creation
D of such a regime requires a careful and sensitive balance
between individual interests and legitimate concerns of the state.
The legitimate aims 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
E are matters of policy to be considered by the Union government
while designing a carefully structured regime for the protection
of the data. Since the Union government has informed the Court
that it has constituted a Committee chaired by Hon'ble Shri
Justice B N Srikrishna, former Judge of this Court, for that
F purpose, the matter shall be dealt with appropriately by the
Union government having due regard to what has been set out
in this judgment.
6 The reference is answered in the above terms.

G
R. F. NARIMAN, .J.
Proloi:ue
1. The importance of the present matter is such that whichever
way it is decided, it will have huge repercussions for the democratic
H republic that we call "Bharat" i.e. India. A Bench of9-Judges has been
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 847
[R. F. NARIMAN, J.]

constituted to look into questions relating to basic human rights. A 3- A
Judge Bench of this Court was dealing with a scheme propounded by
the Government of India popularly known as the Aadhar card scheme.
Under the said scheme, the Government oflndia collects and compiles
both demographic and biometric data of the residents of this country to
be used for various purposes. One of the grounds of attack on the said B
scheme is that the very collection of such data is violative of the "Right
to Privacy". After hearing the learned Attorney General, Shri Gopal
Subramanium and Shri Shyam Divan, a 3-Judge Bench opined as follows:
"12. We are of the opinion thatthe cases on hand raise far reaching
questions of importance involving interpretation of the Constitution.
What is at stake is the amplitude of the fundamental rights including C
that precious and inalienable right under Article 21. If the
observations made in M.P. Sharma (supra) and Kharak Singh
(supra) are to be read literally and accepted as the law of this
country, the fundamental rights guaranteed under the Constitution
of India and more particularly right to liberty under Article 21 D
would be denuded of vigourand vitality. At the same time, we are
also of the opinion that the institutional integrity and judicial
discipline require that pronouncement made by larger Benches of
this Court cannot be ignored by the smaller Benches without
appropriately explaining the reasons for not following the
pronouncements made by such larger Benches. With due respect E
to all the learned Judges who rendered the subsequentjudgment~
where right to privacy is asserted or referred to their Lordships
concern for the liberty of human beings, we are of the humble
opinion that there appears to be certain amount of apparent
unresolved contradiction in the law declared by this Court. F
13. Therefore, in our opinion to give a quietus to the kind of
controversy raised in this batch of cases once for all, it is better
th.at the ratio decidendi of M.P. Sharma (supra) and Kharak Singh
(supra) is scrutinized and the jurisprudential correctness of the
subsequent decisions of this Court where the right to privacy is G
either asserted or referred be examined and authoritatively decided
by a Bench of appropriate strength."
2. The matter was heard by a Bench of 5 learned Judges on July
18, 2017, and was thereafter referred to 9 learned Judges in view of the.
fact that the judgrnent in M.P. Sharma and others v. Satish Chandra,
District Magistrate, Delhi, and others, I954 SCR 1077, was by a H
848 SUPREME COURT REPORTS [2017) 10 S.C.R.

A Bench of 8 learned Judges of this Court.
3. Learned senior counsel for the petitioners, Shri Gopal
Subramanium, Shri Shyam Divan, Shri Arvind Datar. Shri Sajan
Poovayya, Slui Anand Grover and Miss Meenakshi Arora, have argued
that the judgments contained in M.P. Sharma (supra) and Kharak Singh
B v. State of U.P., (1964) I SCR 332, which was by a Bench of 6 learned
Judges, should be overruled as they do not reflect the correct position in
law. In any case, both judgments have been overtaken by R.C. Cooper
v. Union oflndia, (1970) 1 SCC 248, and Maneka Gandhi v. Union
of India, (l 978) I SCC 248, and therefore require a revisit at our end.
According to them, the right to privacy is very much a fundamental right
C which is co-terminus with the liberty and dignity of the individual.
According to them, this right is found in Articles 14, 19, 20, 21 and 25
when read with the Preamble of the Constitution. Further, i.t was also
argued that several international covenants have stated that the right to
privacy is fundamental to the development of the human personality and
D that these international covenants need to be read into the fundamental
rights chapter of the Constitution. Also, according to them, the right to
privacy should be evolved on a case to case basis, and being a fundamental
human right should only yield to State action if such State action is
compelling, necessary and in public interest. A large number ofjudgments
were cited by all of them. They also invited this Court to pronounce
E upon the fact that the right to privacy is an inalienable natural right which
is not conferred by the Constitution but only recognized as such.
4. Shri Kapil Sibal, learned senior counsel on behalf of the States
of Karnataka, West Bengal, Punjab and Puducherry broadly supported
the petitioners. According to him, the 8- Judge Bench and the 6-Judge
F Bench decisions have ceased to be relevant in the context of the vastly
changed circumstances of today. Further, according to him, State action
that violates the fundamental right to privacy must contain at least four
elements, namely:
• "The action must be sanctioned by law;
G
• The proposed action must be necessary in a democratic society
for a legitimate aim;
• The extent of such inte1ference must be proportionate to the
need for such interference;
H
JUSTICE K S PUTIASWAMY (RETD.) v. UNION OF INDIA 849
[R. F. NARIMAN, J.]

• There must be procedural guarantees against abuse of such A
interference."
5. Shri P.V. Surendra Nath, appearing on behalf of the State ·of
Kerala, also supported the petitioners and stated that the constitutional
right to privacy very much exists in Part Ill of the Constitution.
6.Appearing on behalfofthe Union oflndia, Shri K.K. Venugopal, B
learned Attorney General for India, has argued that the conclusions
arrived at in the 8-Judge Bench and the 6-Judge Bench decisions should
not be disturbed as they are supported by the fact that the founding
fathers expressly rejected the right to privacy being made part of the
fundamental rights chapter of the Constitution. He referred in copious C
detail to the Constituent Assembly debates for this purpose. Further,
according to him, privacy is a common law right and all aspects of privacy
do not elevate themselves into being a fundamental right. If at all, the
right to privacy can only be one amongst several varied rights falling
under the umbrella of the right to personal liberty. According to him, the
right to life stands above the right to personal liberty, and any claim to D
privacy which would destroy or erode this basic foundational right can
never be elevated to the status of a fundamental right. He also argued
that the right to privacy cannot be claimed when most of the aspects
which are sought to be protected by such right are already in the public
domain and the information in question has already been parted with by E
citizens.
7. Shri Tushar Mehta, learned Additional Solicitor General oflndia,
appearing for UIDAI and the State of Madhya Pradesh, generally
supported and adopted the arguments of the learned Attorney General.
According to him, privacy is an inherently vague and subjective concept F
· and cannot, therefore, be accorded the status of a fundamental right.
Further, codified statutory law in India already confers protection to the
individual's right to privacy. According to him, no further expansion of
the rights contained in Part III of our Constitution is at all warranted.
Also, the position under English Law is t!Jat there is no common law
right to privacy. He cited before us examples of other countries in the G
world where privacy is protected by legislation and not by or under the
Constitution.
8. Shri Aryama Sundaram, appearing for the State of Maharashtra,
also supported the arguments made by the learned Attorney General.
H
850 SUPREME COURT REPORTS [2017] 10 S.C.R.

A According to him, there is no separate "privacy" right and violation of a
fundamental right should direct! y be traceable to rights expressly protected
by Part III of the Constitution. Further, privacy is a vague and inchoate
expression. He also referred to the Constituent Assembly debates to
buttress the same proposition that the right to privacy was expressly
discountenanced by the framers of the Constitution. He went on to
B
state that "personal liberty" inArticle 21 is liberty which is circumscribed
- i.e. it relates only to the person of the individual and is smaller
conceptually than "civil liberty". According to him, the ratio ofKharak
Singh (supra) is that there is no fundamental right to privacy, but any
fundamental right that is basic to ordered liberty would certainly be
C included as a fundamental right. According to him, Gobind v. State of
Madhya Pradesh, (1975) 2 SCC 148, did not state that there was any
fundamental right to privacy and the later judgments which referred
only to Gobind (supra) as laying down such a right are incorrect for this
reason.
D 9. Shri Rakesh Dwivedi, learned senior counsel appearing for the
State of Gujarat, has argued that both the petitioners as well as the
learned Attorney General have taken extreme positions. According to
him, the petitioners state that in the case of every invasion of a privacy
right, howsoever trivial, the fundamental right to privacy gets attracted,
whereas according to the learned Attorney General, there is no
E fundamental right to privacy at all. He asked us to adopt an intermediate
position - namely, that it is only if the U.S. Supreme Court's standard
that a petitioner before a Court satisfies the test of "reasonable
expectation of privacy" that such infraction of privacy can be elevated
to the level of a fundamental right. According to Shri Dwivedi, individual
F persomil choices made by an individual are already protected under Article
21 under the rubric "personal liberty". It is only when individuals disclose
certain personal information in order to avail a benefit that it could be
said that they have no reasonable expectation of privacy as they have
voluntarily and freely parted with such information. Also, according to
him, it is only specialized data, if parted with, which would require
G protection. As an example, he stated that a person's name and mobile
number, already being in the public domain, would not be reasonably
expected by that person to be something private. On the other hand,
what is contained in that person's bank account could perhaps be stated
to be information over which he expects a reasonable expectation of
H privacy and would, if divulged by the bank to others, constitute an
JUSTICE KS PUITASWAMY (RETD.) v. UNION OF INDIA 851
[R. F. NARIMAN, J.]

infraction of his fundamental right to privacy. According to him: A
" ... when a claim of privacy seeks inclusion in Article 21 of the
Constitution of India, the Court needs to apply the reasonable
expectation of privacy test. It should see:-:-
(i) What is the context in which a privacy law is set up.
B
(ii) Does the claim relate to private or family life, or a confidential
relationship.
(iii) Is the claim serious one or is it trivial.
(iv) Is the disclosure likely to result in any serious or significant
injury and the nature and the extent of disclosure. C
(v) Is disclosure for _identification purpose or relates to personal
and sensitive information of an identified person. ·
(vi) Does disclosure relate to information already disclosed publicly
to third parties or several parties willingly and unconditionally. D
Is the disclosure in the course of e commerce or social media?
Assuming, that in a case that it is found that a claim for privacy is
protected by Article 21 of the Constitution, the test should be
following:-
(i) the infringement should be by legislation. E
(ii) the legislation should be in public interest.
(iii) the legislation should be reasonable and have nexus with the
public interest.
(iv) the State would be entitled to adopt that measure which would F
most efficiently achieve the objective without being excessive.
(v) if apart from Article 21, the legislation infringes any other
specified Fundamental Right then it must stand the test in
relation to that specified Fundamental Right.
(vi) Presumption of validity would attach to the legislations." G
10. Shri A. Sengupta, appearing on behalf of the State ofHaryana,
has supported the arguments of the learned Attorney General and has
gone on to state that even the U.S. Supreme Court no longer uses the
right to privacy to test laws that were earlier tested on this ground. Any
right to privacy is conceptually unsound, and only comprehensive data H
852 SUPREME COURT REPORTS (2017] IO S.C.R.

A protection legislation can effectively address concerns of data protection
and privacy. The Government of India is indeed alive to the need for
such a law. He further argued that privacy as a concept is always
marshaled to protect liberty and, therefore, argued that the formulation
that should be made by this Court is whether a liberty interest is at all
affected; is such liberty "personal liberty" or other liberty that deserves
B
constitutional protection and is there a countervailing legitimate State
interest.
11. Shri Jugal Kishore, appearing on behalf of the State of
Chhattisgarh, has also broadly supported the stand of the learned Attorney
General.
c
12. Shri Gopal Sankaranarayanan, appearing on behalf of the
.Centre for Civil Society, argued that M.P. Sharma (supra) and Kharak
Singh (supra) are correctly decided and must be followed as there has
been no change in the constitutional context of privacy from Gopalan
(supra) through R.C. Cooper (supra) and Maneka Gandhi (supra).
D He further argued that being incapable of precise definition, privacy
ought not to be elevated in all its aspects to the level of a fundamental
right. According to him, the words "life" and "personal liberty" in Article
21 have already been widely interpreted to include many facets of what
the petitioners refer to as privacy. Those facets which have statutory
E protection are not protected by Article 21. He also argued that we must
never forget that when recognizing aspects of the right to privacy as a
fundamental right, such aspects cannot be waived and this being the
case, a privacy interest ought not to be raised to the level of a fundamental
right. He also cautioned us against importing approaches from overseas
out of context.
F
Early Views on Privacy
13. Any discussion with regard to a right of privacy of the individual
must necessarily begin with Semayne's case, 77 ER 194. This case
was decided in the year 1603, when there was a change of guard in
G England. The Tudor dynasty ended with the death of Elizabeth I, and the
Stuart dynasty, a dynasty which hailed from Scotland took over under
James VI of Scotland, who became James I of England. 1 James I was
1
It is interesting to note that from 1066 onwards, England has never been ruled by a
native Anglo-Saxon. The Norman French dynasty which gave way to the Plantagenet
dynasty ruled from 1066-1485; the Welsh Tudor dynasty then ruled from 1485-1603
H AD; the Stuart dynasty, a Scottish dynasty, then ruled from 1603; and barring a minor

•
JUSTICE KS PUITASWAMY (RETD.) v. UNION OF INDIA 853
[R. F. NARIMAN, J.]

an absolute monarch who ruled believing that he did so by Divine Right. A
Semayne's case (supra} was decided in this historical setting.
14. The importance of Semayne's case (supra) is that it decided
that every man's home is his castle and fortress for his defence against
injury and violence, as well as for his repose. William Pitt, the Elder, put
it thus: "The poorest man may in his cottage bid defiance to all the.force B
'of the Crown. It may be frail - its roof may shake - the wind may
blow through it - the storm may enter, the rain may enter - but the
King of England cannot enter - all his force dare not cross the
threshold of the ruined tenement." A century and a half later, pretty
much the same tl1ing was said in Huckle v. Money, 95 ER 768 (1763),
in which it was held that Magistrates cannot exercise arbitrary powers C
which violated the Magna Carta (signed by King John, conceding certain
rights to his barons in 1215), and if they did, exemplary damages must be
given for the same. It was stated that, "To enter a man's house by
virtue of a nameless warrant, in order to procure evidence is worse than ·
the Spanish Inquisition, a law under which no Englishman would wish to D .
live an hour.''
15. This statement of the law was echoed inEntkk v. Carrington,
95 ER 807 (1765), in which Lord Camden held that an illegal search
warrant was "subversive of all the comforts of society" and the issuance
of such a warrant for the seizure of all of a man's papers, and not only E
those alleged to be criminal in nature, was "contrary to the genius of the
law of England." A few years later, in Da Costa v. Jones, 98 ER 1331
(1778), Lord Mansfield upheld the privacy of a third person when such
privacy was the subject matter of a wager, which was injurious to the
reputation of such third person. The wager in that case was as to whether
a certain Chevalier D'eon was a cheat and imposter in that he was p·
actually a woman. Such wager which violated the privacy of a third
person was held to be injurious to the reputation of the third person for
which damages were awarded to the third person. These early judgments
did much to uphold the inviolability of the person of a citizen.
16. When we cross the Atlantic Ocean and go to the United States, G
we find a very interesting article printed in the Harvard Law Review in·
1890 by Samuel D. Warren and Louis D. Brandeis [(4 Harv. L. Rev.
hiccup in the form of Oliver Cromwell, ruled up to 1714. From 1714 onwards, members
of a German dynasty from Hanover have been monarchs of England and continue to be
monarchs in England. ' H
854 SUPREME COURT REPORTS [2017] 10 S.C.R.

A 193)]. The opening paragraph of the said article is worth quoting:
"THAT the individual shall have full protection in person and in
property is a principle as old as the common law; but it has been
found necessary from time to time to define anew the exact nature
and extent of such protection. Political. social, and economic
B changes entail the recognition of new rights, and the common
law, in its eternal youth, grows to meet the demands of society.
Thus, in very early times, the law gave a remedy only for physical
interference with life and property, for trespasses vi et armis.
Then the "right to life" served only to protect the subject from
battery in its various forms; liberty meant freedom from actual
c restraint; and the right to property secured to the individual his
lands and his cattle. Later, there came a recognition of man's
spiritual nature, of his feelings and his intellect. Gradually the scope
of these legal rights broadened; and now the right to life has come
to mean the right to enjoy life,- the right to be let alone; the right
D to liberty secures the exercise of extensive civil privileges; and
the term "property" has grown to comprise every form of
possession- intangible, as well as tangible."
17. This article is of great importance for the reason that it spoke
of the right of the individual "to be let alone''. It stated in unmistakable
E terms that this right is not grounded as a property right, but is grounded
in having the right of an "inviolate personality''. Limitations on this right
were also discussed in some detail, and remedies for the invasion of this
right of privacy were suggested, being an action of tort for damages in
all cases and perhaps an injunction in some. The right of privacy as
expounded in this article did not explore the ramifications of the said
F right as against State action, but only explored invasions of this right by
private persons.
Three Great Dissents
18. When the Constitution oflndia was framed, the fundamental
G rights chapter consisted of rights essentially of citizens and persons against
the State. Article 21, with which we are directly concerned, was couched
in negative form in order to interdict State action that fell afoul of its
contours. This Article, which houses two great human rights, the right
to life and the right to personal liberty, was construed rather narrowly by
the early Supreme Court oflndia. But then, there were Judges who had
H
ruSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 855
[R. F. NARIMAN, J.]

vision and dissented from their colleagues. This judgment will refer to A
three great dissents by Justices Faz! Ali, Subba Rao and Khanna. , , ·
19. Charles Evans Hughes, before he became the Chief Justice
of the United States and while he was still a member of the New York
Court of Appeals, delivered a set of six lectures at Columbia Uriiversity. 2
The famous passage oft quoted in many judgments comes from his second B
lecture. In words that resonate even today, he stated:
"A dissent in a court of last resort is an appeal to the brooding
spirit of the law, to the intelligence of a future day, when a later
decision may possibly correct the error into which the dissenting
judge believes the court to have been betrayed ..... " c
20. Brandeis, J. had a somewhat different view. He cautioned
that "in most matters it is more important that the applicable rule oflaw
be settled than that it be settled right." [See Burnet v. Coronado Oil
& Gas Co., 285 U.S. 393 at406 (1932)]. John P. Frank wrote, in 1958,
of the Brandeis view as follows: D
"Brandeis was a great institutional man. He realized that ....
random dissents .... weaken the institutional impact of the Court
and handicap it in the doing of its fundamental job. Dissents ....
· need to be saved for major matters if the Court· is not to appear
indecisive and quarrelsome ..... To have discarded some of his E
separate opinions is a supreme example ofBrandeis'.s sacrifice to
the strength and consistency of the Court. And he had his reward:
his shots were all the harder because he chose his ground." 3
21. Whichever way one looks at it, the foresight of Faz! Ali, J. in
A.K. Gopalan v. State of Madras, 1950 SCR 88, simply takes our F
breath away. The subject matter of challenge in the said case was the
validity of certain provisions of the Preventive Detention Act of 1950.
In a judgment which anticipated the changes made in our constitutional
law twenty years later, this great Judge said: ·
"To my mind, the scheme of th~ Chapter dealing with the
0
fundamental rights does not contemplate what is attributed to it,
namely, that each article is a code by itself and is independent of
the others. In my opinion, it cannot be said that articles 19, 20, 21
2 See, E. Gaffney Jr., "The Importance of Dissent and the Imperative of Judicial

Civility" (1994) 28 Val. U.L. Rev 583.
'John P. Frank, Book Review, IO J. Legal Education 401, 404 (1958). · H
856 SUPREME COURT REPORTS (2017] IO S.C.R.

A and 22 do not to some extent overlap each other. The case of a
person who is convicted of an offence will come under articles 20
and 21 and also under article 22 so far as his arrest and detention
in custody before trial are concerned. Preventive detention, which
is dealt with in article 22, also amounts to deprivation of personal '
liberty which is referred to in article 21, and is a violation of the
B
right of freedom of movement dealt with in article 19(1 )(d). That
there are other instances of overlapping of articles in the
Constitution may be illustrated by reference to article 19(1 )(t)
and article 31 both of which deal with the right to property and to
some extent overlap each other."
c (at page 148)
He went on thereafter to hold that the fact that "due process"
was not actually used in Article 21 would be of no moment. He said:
"It will not be out of place to state here in a few words how the
D Japanese Constitution came into existence. It appears that on the
11th October, 1945, General McArthur directed the Japanese
Cabinet to initiate measures for the preparation of the 1apanese
Constitution, but, as no progress was made, it was decided in
February, 1946, that the problem of constitutional reform should
be taken over by the Government Section of the Supreme
E Commander's Headquarters. Subsequently the Chief of this
Section and the staff drafted the Constitution with the help of
American constitutional lawyers who were called to assist the
Government Section in the task. This Constitution, as a learned
writer has remarked, bore on almost every page evidences of its
F essentially Western origin, and this characteristic was especially
evident in the preamble "particularly reminiscent of the American
Declaration of Independence, a preamble Which, it has been
. observed, no Japanese could possibly have conceived or written
_and which few could even understand" [See Ogg and Zink's
"Modem Foreign Governments"]. One of the characteristics of
G . the Constitution which undoubtedly bespeaks of direct American
influence is to be found in a lengthy chapter, consisting of 31
articles, entitled "Rights and Duties of the People," which provided
for the first time an effective "Bill of Rights" for\ the Japanese
people. The usual safeguards have been provided there against
H apprehension without a warrant and against arrest or detention
JUSTICE K S PUTTASWAMY (RETD.) v. UNibN OF INDIA 857
, [R. F. NARIMAN, J.]

without being informed of the charges or without adequate cause A
(articles 33 and 34). ·
Now there are two matters which deserve to be noticed:- (1) that
the Japanese Constitution was framed wholly under American
influence; and (2) that at the time it was framed the trend of
judicial opinion in America was in favour of confining the meaning B
of the expression "due process of law" to what is expressed by
certain American writers by the somewhat quaint but useful
expression "procedural due process.·• That there was such a trend
would be clear from the following passage which I quote from
Carl Brent Swisher's "The Growth of Constitutional Power in the
United States" (page 107):- C
"The American histo~y of its interpretation falls into three
periods. During the first period, covering roughly_thefrrst century
of g~vernment under the Constitution_, .due process was
i,nterpreted principally as a restri<;tion upon procedure-:-and
D .-
largely the judicial procedure___:by which the government
exercised its powers. During the second period; which, again
roughly speaking, extended through 1936, due process was
expanded to serve as a restriction not merely upon procedure
but upon the substance of the activities in which the government
might engage. During the third period, extending from 1936 to .E
date, the use of due process as a substantive restrietioi1 has
been largely suspended or abandoned, leaving it principally in
its original status as a restriction upon procedure."
In the circumstanc~s mentioned, it seems permissible to surmise .
that the expression "procedure established by law" as used i!l the F
J!lpiinese Constitution represented the current trend of American
judicial opinion with regard to "due process oflaw,'' and, ifthat is
so, the expression as used in our Constitution means all that the
American writers have read ioto the words "procedural due
process." But I do not wish to base any conclusions upon mere .
surmise and will try to examine the whole question on its merits. G
The word "law'' may be used. in an abstract. or concrete sense.
Sometimes it is preceded by an article such as "a" or "the" or by
such words as "any," "all," etc., and sometimes it is used without
any such prefix. But, generally, the word "law" has a wider
H
858 SUPREME COURT REPORTS [20 I7] 10 S.C.R.

A meaning when used in the abstract sense without being preceded
by an article. The question to be decided is whether the word
"law" means nothing more than statute law.
Now whatever may be the meaning of the expression "due process
oflaw," the word "law" is common to that expression as well as
B "procedure established by law" and though we are not bound to
adopt the construction put on "Jaw" or "due process of law" in
America, yet since a number of eminent American Judges have
devoted much thought to the subject, I am not prepared to hold
that we can derive no help from their opinions and we should
completely ignore them."
c
(at pages 159-161)
He also wept on to state that "law" in Article 21 means "valid
Jaw",
On all counts, his·words were a cry in the wilderness. Insofar as
D his vision that fundamental rights are not in distinct watertight
compartments but do overlap, it took twenty years for this Court to realize
how correct he was, and in R.C. Cooper (supra), an 11-Judge Bench
of this Court, agreeing with Faz! Ali, J., finally held:
"52. In dealing with the argument that Article 31(2) is a complete
E code relating to infringement of the right to property by compulsory
acquisition, and the validity of the law is not liable to be tested in
the light of the reasof!ableness of the restrictions imposed thereby,
it is necessary to bear in mind the enunciation of the guarantee of
fundamental rights which has taken different forms. In some cases
F
it is an express declaration of a guaranteed right: Articles 29(1 ),
30(1), 26, 25 & 32; in others to ensure protection of individual
rights they take specific forms of restrictions on State action-
legislative or executive-Articles 14, 15 1 16, 20, 21, 22(1), 27 and
28; in some others, it takes the form of a positive declaration and
simultaneously enunciates the restriction thereon: Articles 19( 1)
G and 19(2) to (6); in some cases, it arises as an implication from
the delimitation ofthe authority of the State, e.g., Articles 31 (1)
and 31 (2); in stiJI others, it takes the form of a general prohibition
l!_gainst the State as well as others: Articles 17, 23 and 24. The
enunciation of rights either express or by implication does not
follow a uniform pattern. But one thread runs through them: they
H '
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OFJNDIA 859
[R F. NARIMAN, J.]

seek to protect the rights oftlte individu'itl or groups of individuals A
against infringement of thQSe rights Within specific limits. Part III
of the Constitution weaves.a.pattern of guarantees on the texture
of basic human rights. The guarantees delimit the protection. of
those .rights in their allotted fields: they do not attempt to enunciate
distinct rights. ·
B
53. We are therefore unable to hold that the challenge to the
· validity of the provision for acquisition is liable to be tested cmly on
the ground of non-compliance with Article 31 (2). Article 31 (2)
requires that property must be acquired for a public purpose and
that it must be acquired under a law with characteristics set out in
that Article. Formal compliance with the conditions under Article C
31(2) is not sufficient to negative the protection of the guarantee
of the right to property. Acquisition must be under the authority of
a law and the expression "law" means a law which is within the
competence of the Legislature, and does not impair the guarantee
•. of the rights in Part III. We are unable, therefore, to agree that D
Articles 19(l)(f) and 31(2) are mutually exclusive."4
(at page 289)
22. Insofar as the other part ofFazl Ali, J. 's judgment is concerned,
that "due process" was an elastic enough expression to comprehend
substantive due process, a recent judgment in Mohd. Arif v. Registrar, E
Supreme Court oflndia & Ors., (2014) 9 SCC 737, by a Constitution
Bench of this Court, has held:-
"27. The stage was now set for the judgment.in Maneka Gandhi
(1978) I SCC 248. Several judgments were delivered, and the
upshot of all of them was that Article 21 was to be read along F
with other fundamental rights, and so read not only has the
procedure established by law to be just, fair and reasonable, but
' Shri Gopal Sankaranarayanan has argued that the statement contained in R.C. Cooper
(supra) that 5 out of 6 learned Judges had held in Gopalan (supra) that Articie 22 was
a complete code and was to be read as such, is incorrect. He referred to various extracts G
from the judgments in Gopalan (supra) to demonstrate that this was, in fact, incorrect
as Article 21 was read together with Article 22. While Shri Gopal Sankaranarayanan ·
may be correct, it is important to note that at least insofar as Article 19 was concerned,
none of the judgments except that ofFazl Ali, J. were prepared to read Articles 19 and
21 together. Therefore, on balance, it is important to note that R.C. Cooper (supra)
cleared the air to state that none of the fundamental rights can be construed as bei~g
mutually exclusive. H
860 SUPREME COURT REPORTS [2017] 10 S.C.R.

A also the law itself has to be reasonable as Articles 14 and 19 have
now to be read into Article 21. [See: at SCR pp. 646-648 per Beg,
CJ., at SCR pp. 669, 671-674 and 687 per Bhagwati, J. and at ·
SCR pp. 720-723 per Krishna Iyer, J.]. Krishna Iyer, J. set out
the new doctrine with remarkable clarity thus (SCR p.723, para
85):
B
"85. To sum up, 'procedure' in Article 21 means fair, not formal
procedure. 'Law' is reasonable law, not any enacted piece.
As Article 22 specifically spells out the procedural safeguards
for preventive and punitive detention, a law providing for such
detentions should conform to Article 22. It has been rightly
c pointed out that for other rights forming part of personal liberty,
the procedural safeguards enshrined in Article 21 are available.
Otherwise, as the procedural safeguards contained in
Article 22 will be available only in cases of preventive and
punitive detention, the right to life, more fundamental than any
D other forming part of personal liberty and paramount to the
happiness, dignity and worth of the individual, will not be entitled
to any procedural safeguard save such as a legislature's mood
chooses."
28. Close on the heels of Maneka Gandhi case came Mithu vs.
E State of Punjab, (1983) 2 SCC 277, in which case the Court
noted as follows: (SCC pp. 283-84, para 6)
"6 .. .ln Sunil Batra v. Delhi Administration, (1978) 4 SCC
494, while dealing with the question as to whether a person
awaiting death sentence can be kept in solitary confinement,
F Krishna Iyer J. said that though our Constitution did not have a
"due process" clause as in the American Constitution; the same
consequence ensued after the decisions in the Bank,
Nationalisation case (1970) 1 SCC 248, and Maneka Gandhi
case (1978) 1 sec 248 ....

G
In Bachan Singh (Bachan Singh v. State of Punjab, (1980)
2 sec 684) which upheld the constitutional validity of the death
penalty, Sarkaria j., speaking for the majority, said that if
Article 21 is understood in accordance with the interpretation
put upon it in Maneka Gandhi, it will
read to say that: (SCC
p.730, para 136)
H
J

JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 861
[R. F. NARIMAN, J.]

"136. No person shall be deprived of his life or personal A
liberty except according to fair, just and reasonable procedure
established by valid law."
The wheel has turned full circle; Substantive due process is now
to be applied to the fundamental right to life and liberty." 5
(at pages 755-756) B
5 Shri Rakesh Dwivedi has argued before us that in Maneka Gandhi (supra),

Chandrachud, J. had, in paragraph 55 of the judgment, clearly stated that substantive
due process is no part of the Constitution of India. He further argued that Krishna
Iyer, J.'s statement in Sunil Batra (supra) that a due process clause as contained in the
U.S. Constitution is now to be read into Article 21, is a standalone statement of the law
and that "substantive due process" is an expression which brings in its wake concepts C
which do not fit into the Constitution of India. lt is not possible to accept this contention
for the reason that in the Constitution Bench decision in Mithu (supra), Chandrachud,
C.J., did not refer to his concurring judgment in Maneka Gandhi (supra), but instead
referred, with approval: to Krishna Iyer. J. 's statement of the law in paragraph 6. It is
this statement that is reproduced in paragraph 28 of Mohd. Arif (supra). Also,
"substantive due process" in our context only means that a law can be struck.down D
under Article 21 if it is not fair, just or reasonable on substantive and not merely·
procedural grounds. In any event, it is Chandrachud.C.J's earlier view that is a
standalone view. In Collector of Customs, Madras v. Nathella Sampathu Chetty.,
(1962) 3 SCR 786 at 816. a Constitution Bench of this Court. when asked to apply
certain American decisions, stated the following:
"It would be seen that the decisions proceed on the application of the "due
process" clause of the American Constitution. Th6ugh the tests of E
'reasonableness' laid down by clauses (2) to (6) of Article 19 might in great part
coincide with that for judging of 'due process', it must not be assumed that
these are identical. for it has to be borne in mind that the Constitution framers
deliberately avoided in this context the use of the' expression 'due process' with
its comprehensiveness, flexibility and attendant v·agueness, in favour of a
somewhat more definite word "reasonable", and caution has, therefore. to be
exercised before the literal application of American decisions." F
Mathew. J. in Kesavananda Bharati v. State ofKerala. (1973) Supp. SCR 1at824,
825 and 826 commented on this particular passage thus:
"When a court adjudges that a legislation is bad on the ground that it is an
unreasonable restriction, it is drawing the elusive ingredients for its conclusion
from several sources. 1n fact, you measure the reasonableness of a restriction
imposed by law by indulging in an authentic bit of special legislation [See
Learned Hand, Bill of Rights, p. 26). "The words 'reason' and 'reasonable' G
denote for the common law lawyer ideas which the 'Civilians' and the 'Canonists'
put under the head of the 'law of nature· ... "
" ... The limitations in Article 19 of the Constitution open the doors to judici~l
review oflcgislation in India in much the same manner as the doctrine of police
power and its companion, the due process clause. have done in the United
States. The restrictions that might be imposed by the Legislature to ensure the
H
862 SUPREME COURT REPORTS [2017] IO S.C.R.

A 23. The second great dissent, which is ofSubba Rao, J., in Kharak
Singh (supra), has a direct bearing on the question to be decided by us. 6
In this judgment, Regulation 237 of the U.P. Police Regulations was
challenged as violating fundamental rights under Article 19(1 )(d) and
Article 21. The Regulation reads as follows:-
B "Without prejudice to the right of Superintendents of Police to put
into practice any legal measures, such as shadowing in cities, by
which they find they can keep in touch with suspects in particular
localities or special circumstances, surveillance may for most
practical purposes be defined as consisting of one or more of the
following measures:-
c
(a) Secret picketing of the house or approaches to the house of
suspects;
(b) domiciliary visits at night;

(c) through periodical inquiries by officers not below the rank of
D Sub-Inspector into repute, habits, associations, income, expenses
and occupation;
(d) the reporting by constables and chaukidars of movements and
absences from home;
(e) the verification of movements and absences by means of inquiry
E
slips;
(f) the collection and record on a history-sheet of all information
bearing on conduct."
24. All 6 Judges struck down sub-para (b), but Subba Rao, J.
F joined by Shah, J., struck down the entire Regulation as violating the
individual's right to privacy in the following words:
public interest must be reasonable and, therefore, the Court will have to apply the
yardstick of reason in adjudging the reasonableness. If you examine the cases relating to
the imposition ofreasonable restrictions by a law, it will be found that all of them adopt
a standard which the American Supreme Court has adopted in adjudging reasonableness
G of a legislation under the due process clause .. "
" .. .In the light of what I have said, I am unable to understand how the word
'reasonable' is more definite than the words 'due process' ... "
6
Chief Justice S.R. Das in his farewell speech had this to say about Subba Rao, J.,
"Then we have brother Subba Rao, who is extremely unhappy because all our
fundamental rights are going to the dogs on account of some ill-conceived judgments of
H his colleagues which require reconsideration."
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 863
[R. F. NARIMAN, J.]

"Further, the right to personal liberty takes in not only a right to be A
.free from restrictions pl~ced on his movements, but also free from
encroachments on his private life. It is true our Constitution does
not expressly declare a right to privacy as a fundamental right,
but the said right is an essential ingredient of personal liberty.
·Every democratic country sanctifies domestic life; it is expected . B
to give him.rest, physical happiness,. peace of mind and security.
In the last resort, a person's house, where he lives with his family,
is his "castle": it is his rampart against encroachmerit on his
personal liberty. The pregnant words of that famous Judge,
Frankfurter J., in Wo({v. Colorado ( 1949) 338 U.S. 25, pointing
out the importance of the security of one's privacy against arbitrary C
intrusion by the police, could have no less application to an Indian
home as to an American one. If physical restraints on a person's
movements affect his personal liberty, physical encroachments
on his private life would affect it in a larger degree. Indeed, nothing
is more deleterious to a man's physical happiness and health than D
a calculated interference with his privacy. We would, therefore,
define the right of personal liberty in Article 21 as a right of an
individual to be free from restrictions or encroachments on his
person, whether those restrictions or encroachments are directly
imposed or indirectly brought about by calculated measures. If so
understood, all the acts of surveillance under Regulation 236 E
infringe the fundamental right of the petitioner underArticle 21 of
the Constitution."
(at page 359)
The 8 ,Judge Bench Decision in M.P. Sharma and the 6 Judge
Bench Decision in Kharak Sint,:h F

25. This takes us to the correctness of the aforesaid view, firstly
in light of the decision of the 8-Judge Bench in M.P. Sharma (supra).
The facts of that case disclose that certain searches were made as a
result of which a voluminous mass of records was seized from various
places. The petitioners prayed that the search warrants which allowed G
such searches and seizures to take place be quashed, based on an
argument founded on Article 20(3) of the Constitution which says that
no person accused of any offence shall be compelled to be a witness
against himself. The argument which was turned down by the Cour.t
was th;it" since this kind of search would lead fo the discovery of several H
864 SUPREME COURT REPORTS (2017] 10 S.C.R.

A incriminating documents, a person accused of an offence would be
compelled to be a witness against hiinself as such documents would
incriminate him. This argument was turned down with reference to the
law of testimonial compulsion in the U.S., the U.K. and in this country.
While dealing with the argument, this Court noticed that there is nothing
in our Constitution corresponding to the Fourth Amendment of the
B
U.S. Constitution, which interdicts unreasonable searches.and seizures.
In so holding, this Court then observed:
"It is, therefore, clear that there is no basis in the Indian law for
the assumption that a search or seizure of a thing or document is
in itself to be treated as compelled production of the same. Indeed
c a little consideration will show that the two are essentially different
matters for the purpose relevant to the present discussion. A notice
to produce is addressed to the party concerned and his production
in compliance therewith constitutes a testimonial act by him within
the meaning of article 20(3) as above explained. But search
D warrant is addressed to an officer of the Government, generally a
police officer. Neither the search nor the seizure are acts of the
occupier of the searched premises. They are acts of anoiher to
which he is obliged to submit and are, therefore, not his testimonial
acts in any sense."

E "A power of search and seizure is in any system of jurisprudence
an overriding power of the State for the protection of social security
and that power is necessarily regulated by law. When the
Constitution makers have thought fit not to subject such regulation
to constitutional limitations by recognition of a fundamental right
to privacy, analogous to the American Fourth Amendment, we
F have no justification to import it, into a totally different fundamental
right, by some process of strained construction."
(at pages 1096-1097)
26. The first thing that strikes one on reading the aforesaid passage
G is that the Court resisted the invitation to read the U.S. Fourth Amendment
into the U.S. Fifth Amendment; in short it refused to read or import the
Fourth Amendment into the Indian equivalent of that part of the Fifth
Amendment which is the same as Article 20(3) of the Constitution of
India. Also, the fundamental right to privacy, stated to be analogous to
the Fourth Amendment, was held to be something which could not be
H read into Article 20(3).
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 865
[R. F. NARIMAN. J.]

27. The second interesting thing to be noted about these A
observations is that there is no broad ratio in the said judgment that a
fundamental right to privacy is not available in Part III of the Constitution.
The observation is confined to Article 20(3 ). Further, it is clear that the
actual finding in the aforesaid case had to do with the law which had
developed in this Court as well as the U.S. and the U.K. on Article 20(3) B
which, on the facts of the case, was held not to be violated. Also we
must not forget that this was an early judgment of the Court, delivered in
the Gopalan (supra) era, which did not have the benefit of R.C. Cooper
(supra) or Maneka Gandhi (supra). Quite apart from this, it is clear
that by the time this judgment was delivered, India was already a signatory
to the Universal Declaration of Human Rights, Article 12 of which states: C
"No one shall be subjected to arbitrary interference with his
privacy, family, home or correspondence, nor to attacks upon his
honour and reputation. Everyone has the right to the protection
of the law against such interference or attacks."
28. It has always been the law of this Court that international D
treaties must be respected. Our Constitution contains Directive Principle
51 (c ), which reads as under:
"51. The State shall endeavour to-
(a) & (b) xxx xxx xxx
E
(c) foster respect for international law and treaty obligations in
the dealings of organized peoples with one another;"
In order that legislation be effected to implement an international
treaty, Article 253 removes legislative competence from all the States
and entrusts only the Parliament with such legislation. Article 253 reads F
as follows: -
"253. Legislation for giving effect to international
agreements. - Notwithstanding anything in the foregoing
provisions of this Chapter, Parliament has power to make any law
for the whole or any part of the territory oflndia for impleme11ting G
any treaty, agreement or convention with any other country or
countries or any decision made at any international conference,
association or other body."

H
866 SUPREME COURT REPORTS [2017) IO S.C.R.

A We were shown judgments of the highest Courts in the U.K. and
the U.S in this behalf. At one extreme stands the United Kingdom.
which states that international treaties are not a part of the laws
administered in England. At the other end of the spectrum, Article VI of
the U.S. Constitution declares:
B "xxx xxx xxx
This Constitution, and the laws of the United States which shall
be made in pursuance thereof; and all treaties made,, or which
shall be made, under the authority of the United States, shall be
the supreme law of the land; and the judges in every state shall be
c bound thereby, anything in the Constitution or laws of any State to
the contrary notwithstanding.
xxx xxx xxx"
It is thus clear that no succor can be drawn from the experience
of either the U.K. or the U.S. We must proceed in accordance with the
D law laid down in the judgments of the Supreme Court of India.
29. Observations of several judgments make it clear that in the
absence of any specific prohibition in municipal law, international law
fonns part oflndian law and consequently must be read into or as part
of our fundamental rights. (For this proposition, see: Bachan Singh· v.
E State of Punjab, (1980) 2 SCC 684 at paragraph 139, Francis Coralie
Mullin v. Administrator, Union Territory of Delhi & Ors., (1981) I
SCC 608 at paragraph 8, Vishaka & Ors. v. State of Rajasthan &
Ors., (1997) 6 SCC 241 at paragraph 7 and National Legal Services
Authority v. Union oflndia, (2014) 5 SCC 438 at paragraphs 51-60).
F This last judgment is instructive in that it refers to international treaties
and covenants, the Constitution, and various earlier judgments. The
conclusion in paragraph 60 is as follows:
"The principles discussed hereinbefore on TGs and the international
conventions, including Yogyakarta Principles, which we have
found not inconsistent with the various fundamental rights
G
guaranteed under the Indian Constitution, must be recognized and
followed, which has sufficient legal and historical justification in
our country."
(at page 487)
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 867
[R. F. NARIMAN. J.]

30. In fact, the Protection of Human Rights Act, 1993, makes A
interesting reading in this context.
Section 2(1)(d) and (f) are important. and read as follows:
"2. Definitions. - ( 1) In this Act, unless the context otherwise
requires, - .
B
(a) xxx .XXX xxx
(b) xxx xxx xxx
(c) xxx xxx xxx
(d) "human rights" means the rights relating to life, liberty, equality C
and dignity of the individual guaranteed by the Constitution or
. embodied in the International Covenants and enforceable by courts
inindia;
/ (e) xxx . xxx xxx
(f) "International Covenants" means the International Covenant D
on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights adopted by the General
Assembly of the United Nations on the 161h December, 1966 artd
such other Covenant or Convention adopted by the General
Assembly of the United Nations as the Central Government may,
by notification, specify;" E

31. In terms of Section 12(f), one important function of the National
Human Rights Commission is to study treaties and other international
instruments on human rights and make recommendations for their
effective implementation. In a recent judgment delivered by Lokur, J. in
Extra Judi. Exec. Victim Families Association & Anr..v. Union of F
India & Ors. in W.P.(Crl.) No.129 of 2012 decided on July 14, 2017,
this Court highlighted the Protection of Human Rights Act, 1993 as
follows:- ·
"29. Keeping this in mind, as well as the Universal Declaration of
Human Rights, Parliainent enacted the Protection of Human Rights G
Act, 1993. The Statement of Objects and Reasons for the
Protection of Human Rights Act, 1993 is of considerable
significance and accept~ the imRortance of issues relating to human
rights with .a view, inter alia, to bringaccountability and
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868 SUPREME COURT REPORTS [2017] I 0 S.C.R.

A transparency in human rights jurisprudence. The Statement of
Objects and Reasons reads as under:-
"1. India is a party to the International Covenant on Civil and
Political Rights and the International Covenant on Economic,
Social and Cultural rights, adopted by the General Assembly
B of the United Nations on the 16th December. 1966. The human
rights embodied in the aforesaid covenants stand substantially
protected by the Constitution.
2. However, there has been growing concern in the country
and abroad about issues relating to human rights. Having regard
c to this, changing social realities and the emerging trends in the
nature of crime and violence, Government has been reviewing
the existing laws, procedures and systems of administration of
ju.stice; with a view to bringing about greater accountability
and transparency in them, and devising efficient and effective
methods of dealing with the situation.
D
3. Wide ranging discussions were held at various fora such as
the Chief Ministers' Conference on Human Rights, seminars
organized in various parts of the country and meetings with
leaders of various political parties. Taking into account the views
expressed in these discussions, the present Bill is brought before
E Parliament."
30. Under the provisions of the Protection of Human Rights Act,
1993 the NHRC has been constituted as a high-powered statutory
body whose Chairperson is and always has been a retired Chief
Justice of India. Amongst others, a retired judge of the Supreme
F Court and a retired Chief Justice of a High Court is and has always
been a member of the NHRC.
31. In Ram Deo Chauhan v. Bani Kanta Das ((2010) 14 SCC
209), this Court recognized that the words 'human rights' though
not defined in the Universal Declaration of Human Rights have
G been defined in the Protection of Human Rights Act, 1993 in very
broad terms and that these human rights are enforceable by courts
in India. This is what this Court had to say in this regard in
paragraphs 47-49 of the Report:
"Human rights are the basic, inherent, immutable and inalienable
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 869
[R. F. NARIMAN, J.]

rights to which a person is entitled simply by virtue of his being A
born a human. They are such rights which are to be made
available as a matter of right. The Constitution and legislations
of a civilised country recognise them since they are so
quintessentially part of every human being. That is why every
democratic country committed to the rule of law put into force
B
mechanisms for their enforcement and protection.
Human rights are universal in nature. The Universal
Declaration of Human Rights (hereinafter referred to as
UDHR) adopted by the General Assembly of the United
Nations on l 0-12-1948 recognises and requires the observance
of certain universal rights, articulated therein, to be human rights, c
and these are acknowledged and accepted as equal and
inalienable and necessary for the inherent dignity and
development of an individual. Consequently, though the term
"human rights" itself has not been defined in UDHR, the nature
and content ofhulnan rights can be understood from the rights D
enunciated therein.
Possibly considering the wide sweep of such basic rights, the
definition of "human rights'' in the 1993 Act has been designedly
kept very broad to encompass within it all the rights relating to
life, liberty, equality and dignity of the individual guaranteed by E
the Constitution or embodied in the International Covenants
and enforceable by courts in India. Thus, if a person has been
guaranteed certain rights either under the Constitution or under
an International Covenant or under a law, and he is denied
access to such a right, then it amounts to a clear violation of
his human rights and NHRC has the jurisdiction to intervene F
for protecting it." ·
32. It may also be noted that the "International Principles on the
Application of Human Rights to Communication Surveillance"
(hereinafter referred to as the "Necessary and Proportionate Principles''),
which were launched at the U.N. Human Rights Council in Geneva in G
September 2013, were the product of a year-long consultation process
among civil society, privacy and technology experts. The Preamble to
the Necessary and Propo1tionate Principles states as follows:
"Privacy is a fundamental human right, and is central to the
H
870 SUPREME COURT REPORTS [2017) 10 S.C.R.

A maintenance of democratic societies. It is essential to human
dignity and it reinforces other rights, such as freedom of expression
and information. and freedom of association, and is recognized
under international human rights law ....."
33. Ignoring Article 12 of the 1948 Declaration would by itself
B sound the death knell to the observations on the fundamental right of
privacy contained in M.P. Sharma (supra).
34. It is interesting to note that, in at least three later judgments,
this judgment was referred to only in passing in:
(l) Sharda v. Dharmpal, (2003) 4 SCC 493 at 513-514:
c
"54. The right to privacy has been developed by the Supreme
Court over a period of time. A bench of eight judges in M.P.
Sharma v. Satish Chandra (AIR 1954 SC 300), AIR at pp. 306-
07, para 18, in the context of search and seizure observed that:

D "When the Constitution-makers have thought fit not to subject
such regulation to constitutional limitations by recognition of a
fundamental right to privacy, analogous to the American Fourth
Amendment, we have no justification to import it, into a totally
different fundamental right, by some process of strained
construction."
E
55. Similarly in Kharak Singh v. State of U.P. (AIR 1963 SC
1295), the majority judgment observed thus: (AIR p. 1303, para
20)
"The right of privacy is not a guaranteed right under our
Constitution and therefore the attempt to ascertain the
F
movements of an individual which is merely a manner in which
privacy is invaded is not an infringement of a fundamental right
guaranteed by Part III."
56. With the expansive interpretation of the phrase "personal
liberty'', this. right has been read into Article 21 of the Indian
G Constitution. (See R. Rajagopal v. State ofT.N., (1994) 6 SCC
632 and People'.~ Union for Ci11il Liberties v. Union of India,
(1997) I SCC 301 ). In some cases the right has been held to
amalgam of various rights."
(2) District Registrar and Collector, Hyderabad & Anr. v.
H
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF lNDIA 871
[R. F. NARIMAN, J.]

Canara Bank etc., (2005) I SCC 496 at 516, where this Court held: A
"35. The earliest case in India to deal with "privacy" and "search
and seizure" was M.P. Sharma v. Satish Challdra ( 1954 SCR
1077) in the context of Article 19(l)(f) and Article 20(3) of the
Constitution of India. The contention that search and seizure
violated Article 19(1 )(f) was rejected, the Court holding that .a B
mere search by itself did not affect any right to property, and
though seizure affected it. such effect was only temporary and
was a reasonable restriction on the right. The question whether
search warrants for the seizure of documents from the accused
were unconstitutional was not gone into. The Court, after referring
to the American authorities, observed that in the US, because of C
the language in the Fourth Amendment, there was a distinction
between legal and illegal searches and seizures and that such a
distinction need not be imported into our Constitution. The Court
opined that a search warrant was addressed to an officer and not
to the accused and did not violate Article 20(3). In the present D
discussion the case is oflimited help. In fact, the law as to privacy
was developed in later cases by spelling it out from the right to
freedom of speech and expression in Article 19(1)(a) and the
right to "life" in A1ticle 21."
And (3) Selvi v. State of Karnataka, (20 I0) 7 SCC 263 at 363, E
this Court held as follows:-
"205. In M.P. Sharma (M.P. Sharma v. Satish Chandra, AIR
1954 SC 300: 1954 SCC I 077), it had been noted that the Indian
Constitution did not explicitly include a "right to privacy" in a
manner akin to the Fourth Amendment of the US Constitution. In F
that case, this distinction was orie of the reasons for upholding the
validity of search warrants issued for documents required to
investigate charges of misappropriation and embezzlement."
35. It will be seen that different smaller Benches of this court
were not unduly perturbed by the observations contained in M.P. Sharma 0
(supra) as it was an early judgment of this Court delivered in the Gopalan
(supra) era which had been eroded by later judgments dealing with the
inter-relation between fundamental rights and the development of the
fundamental right of privacy as being pait of the liberty and dignity of
· the individual.
H
872 SUPREME COURT REPORTS [2017) 10 S.C.R.

A 36. Therefore, given the fact that this judgment dealt only with
Article 20(3) and not with other fundamental rights; given the fact that
the 1948 Universal Declaration of Human Rights containing the right to
privacy was not pointed out to the Court; given the fact that it was
delivered in an era when fundamental rights had to be read disjunctively
in watertight compartments; and given the fact that Article 21 as we
B
know it today only sprung into life in the post Maneka Gandhi (supra)
era, we !Jre of the view that this judgment is completely out of harm's
way insofar as the grounding of the right to privacy in the fundamental
rights chapter is concerned.
37. We now come to the majority judgment of 4 learned Judges in
c Kharak Singh (supra). When examining sub-clause (b) of Regulation
236, which endorsed domiciliary visits at night. even the majority had no
hesitation in striking down the aforesaid provision. This Court said that
"life" used in Article 21 must mean something more than mere animal
existence and "liberty" something more than mere freedom from physical
D restraint. This was after quoting the judgment of Field, J. in Munn v.
Illinois, 94 U.S. 113 (1876). The majority judgment, after quoting from
Gopalan (supra), then went on to hold that Article 19(1) and Article 21
are to be read separately, and so read held that Article 19(1) deals with
particular species or attributes of personal liberty, whereas Article 21
takes in and comprises the residue. 7
E
38. This patt of the judgment has been expressly overruled by
R.C. Cooper (supra) as recognized by Bhagwati, J. in Maneka Gandhi
(supra):
"5. It is obvious that Article 21, though couched in negative
F language, confers the fundamental right to life and personal liberty.
So far as the right to personal liberty is concerned, it is ensured by
providing that no one shall be deprived of personal liberty except
according to procedure prescribed by law. The first question that
arises for consideration on the language of Article 21 is: what is

G 7 This view of the Jaw is obviously incorrect. If the Preamble to the Constitution of

India is to be a guide as to the meaning of the expression "liberty" in Article 21, liberty
of thought and expression would fall in Article 19(1 )(a) and Article 21 and belief. faith
and worship in Article 25 and Article 21. Obviously, "liberty" in Article 21 is not
confined to these expressions, but certainly subsumes them. It is thus clear that when
Article 21 speaks of "liberty", it is, atleast, to be read together with Articles I 9(1)(a)
and 25.
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 873
[R. F. NARIMAN, J.]

·the meaning and content of the words .'p~rsonal liberty' as used in A
this article? This question incidentally came up for discussion in
some of the judgments in A.K. Gopalan v. State of Madras (AIR
1950 SC 27: 1950 SCR 88: 51CriLJ1383) and the observations
made by Patanjali Sastri, J., Mukherjea, J., and S.R. Das, J.,
..seemed to place a narrow interpretation on the words 'personal B
liberty' so as to confine the protection of Article 21 to freedom of
the person against unlawful detention. But there was no definite
pronouncement made on this point since the question before the
Court was not so much the interpretation of the words 'personal
liberty' as the inter-relation between A11icles 19 and 2 l. It was
in Kharak Singh v. State of U.P. (AIR 1963 SC 1295: (1964) 1 c
SCR 332: ( 1963) 2 Cri LJ 329) that the question as to the proper
scope and meaning of the expression 'personal liberty' came up
pointedly for consideration for the first time before this Couit
. The majority of the Judges took the view "that 'personal liberty'
is ttsed in the ai1icle as a compendious term to include within itself
D
all the varieties of rights which go to make up the 'personal
liberties' of man other than those dealt with in the several clauses
of Article 19(1). In other words, while Article 19(l)deal~ with·
particular species or attributes of that freedom, 'personal libe11y'
in Article 21 takes in and comprises the residue". The minority
Judges, however. disagreed with this view taken by the majority E
and explained their position in the following words: "No doubt the
expression 'personal liberty' is a comprehensive one and the right
to move freely is an attribute of personal liberty. It is said that the
freedom to move freely is carved out of personal liberty and,
therefore, the expression 'personal liberty' in Article 21 excludes
F
that attribute. In our view, this is not a correct approach. Both are
independent fundamenttd rights, though there is overlapping. There
is no question of one being carved out of another. The fundamental
right of life and personal liberty has many attributes and some of
them are found in Article 19. If a person's fundamental right under
· Article 21 is infringed, the State can rely upon a law to sustain the G
action, but that cannot be a complete answer unless the said .law
satisfies the test laid down in Article 19(2) so far as the attributes
·covered by Article 19(1) are_ concerned." There can be no doubt
that in view of the decision of this Court in R. C. Cooper v. Union
of India [(1970) 2 SCC 298: (1971) 1 SCR 512) the minority
H
874 SUPREME COURT REPORTS [2017] 10 S.C.R.

A view must be regarded as correct and the majority view must be
held to have been overruled."
(at pages 278-279)
39. The majority judgment in Kharak Singh (supra) then went
on to refer to the Preamble to the Constitution, and stated that Article 21
B contained the cherished human value of dignity of the individual as the
means of ensuring his full development and evolution. A passage was
then quoted from Wolf v. Colorado, 338 U.S. 25 (1949) to the effect
that the security ofone's privacy against arbitrary intrusion by the police
is basic to a free society. The Court then went on to quote the U.S.
c Fourth Amendment which guarantees the rights of the people to be
secured in their persons, houses, papers and effects against unreasonable
searches and seizures. Though the Indian Constitution did not express! y
confer a like guarantee, the majority held that nonetheless an unauthorized
intrusion into a person's home would violate the English Common Law
maxim which asserts that every man's house is his castle. In this view
D of Article 21, Regulation 236(b) was struck down.
40. However, while upholding sub-clauses (c), (d) and (e) of
Regulation 236, the Court stated (at page 35 l ):
"As already pointed out, the right of privacy is not a guaranteed
E right under our Constitution and therefore the attempt to ascertain
the movements of an individual which is merely a manner in which
privacy is invaded is not an infringement of a fundamental right
guaranteed by Part Ill."
This passage is a little curious in that clause (b) relating to
F domiciliary visits was struck down only on the basis of the fundamental
right to privacy understood in the sense of a restraint against the person
of a citizen. It seems that the earlier passage in the judgment which
stated that despite the fact that the U.S. Fourth Amendment was not
reflected in the Indian Constitution, yet any unauthorized intrusion into a
person's home, which is nothing but a facet of the right to privacy, was
G given a go by.
41. Peculiarly enough, without referring to the extracted passage
in which the majority held that the right to privacy is not a guaranteed
right under our Constitution, the majority judgment has been held as
recognizing a fundamental right to privacy in Article 21. (See: PUCL v.
H
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 875
[R. F. NARIMAN, J.]

Union oflndia, (1997) I sec 301 at paragraph 14; Mr. 'X' V. Hospital A
'Z', (1998) 8 SCC 296 at paragraphs 21 and 22; District Registrar
and Collector, Hyderabad & Anr. v. Canara Bank. etc .. (2005) 1
SCC 496 at paragraph 36; and Thalappalam Service Co-operative
Bank Limited & Ors. v. State of Kerala & Ors., (2013) 16 SCC 82
at paragraph 57).
B
42. Ifth~ passage in the judgment dealing with domiciliary visits
at night and striking it down is contrasted with the later passage upholding
the other clauses of Regulation 236 extracted above, it becomes clear
that it cannot be said with any degree of clarity that the majority judgment
upholds the right to privacy as being contained in the fundamental rights C
chapter or otherwise. As the majority judgment contradicts itself on this
vital aspect, it would be correct to say that it cannot be given much value
as a binding precedent. In any case, we are of the view that the majority
judgment is good law when it speaks of Article 21 being designed to
assure the dignity of the individual as a most cherished human value
which ensures the means of full development and evolution of a human . D
b~ing. The majority judgment is also correct in pointing out that Article
21 interdicts unauthorized intrusion into a person's home. Where the
majority judgment goes wrong is in holding that fundamental rights are in
watertight compartments and in holding that the right of privacy is not a
guaranteed right under our Constitution. It can be seen, therefore, that
the majority judgment is like the proverbial curate'.s egg- good only in E
parts. Strangely enough when the good parts alone are seen, there is no
real difference between Subba Rao, J. 's approach .in the dissenting
judgment and the majority judgment. This then answers the major part
of the reference to this 9-J udge Bench in that we hereby declare that
neither the 8-Judge nor the 6-Judge Bench can be read to come in the F
way of reading the fundamental right to privacy into Part III of the
Constitution.
43. However, the learned Attorney General has argued in support
of the 8-J udgc Bench and the 6-Judge Bench, statjng that the framers of
the Constitution expressly rejected the right to privacy being made part G
of the fundamcnt rights chapter of the Constitution. While he may be
right, Constituent Assembly debates make interesting reading only to
show us what exactly 'the framers had in mind when they framed the
Constitution of.India. As will be pointed out later in this judgment, our
judgments expressly recognize that the Constitution governs the lives of
H
876 SUPREME COURT REPORTS [2017] IO S.C.R.

A 125 crore citizens of this country and must be interpreted to respond to
the changing needs of society at different points in time.
44. The phrase ''due process" was distinctly avoided by the framers
of the Constitution and replaced by the colourless expression "procedure
established by law". Despite this, owing to changed circumstances,
B Maneka Gandhi (supra) in 1978, followed by a number of judgments,
··have read what was expressly rejected by the framers into Article 21,
so that by the time of Mohd. Arif (supra), this Court, at paragraph 28,
was able to say that the wheel has turned full circle and substantive due
process is now part and parcel of Article 21. Given the technological
revolution of the later part of the 2Q•h century and the completely altered
c lives that almost every citizen of this country leads, thanks to this
revolution, the right to privacy has to be judged in today's context and
not yesterday's. This argument, therefore, need not detain us.
45. The learned Attorney General then argued that between the
right to life and the right to personal liberty, the former has primacy and
D any claim to privacy which would destroy or erode this basic foundational
right can never be elevated to the status of a fundamental right.
Elaborating further, he stated that in a developing country where millions
of people are denied the basic necessities of life and do not even have
shelter, food, clothing or jobs, no claim to a right to privacy as a
E fundamental right would lie. First and foremost, we do not find any
conflict between the right to life and the right to personal libe1ty. Both
rights are natural and inalienable rights of every human being and are
required in order to develop his/her personality to the fullest. Indeed, the
right to life and the right to personal liberty go hand-in-hand, with the
right to personal liberty being an extension of the right to life. A large
F number of poor people that Shri Venugopal talks about are persons who
in today's completely different and changed world have cell phones, and
would come forward to press the fundamental right of privacy, both
against the Government and against other private individuals. We see
no antipathy whatsoever between the rich and the poor in this context.
G It seems to us that this argument is made through the prism oftheAadhar
(Targeted Delivery of Financial and other Subsidies, Benefits and
Services) Act, 2016, by which the Aadhar card is the means to see that
various beneficial schemes of the Government filter down to persons
for whom such schemes are intended. This 9-Judge Bench has not
been constituted to Iookinto the constitutional validity oftheAadhar Act,
H
JUSTICE K S PUTTASWAMY (RETff) v. UNION OF INDIA 877
[R. F. NARIMAN, J.]

but it has been constituted to consider a much larger question, namely, A
that the right of privacy would be found, inter alia, in Article 21 in both
"life" and "personal liberty" by rich and poor alike primarily against State
action. This argument again does not impress us and is rejected..
46. Both the learned Attorney General and Shri Sundaram next
argued that the right to privacy is so vague and amorphous a concept B
that it cannot be held to be a fundamental right. This again need not
detain us. Mere absence of a definition which would encompass the
many contours of the right to privacy need not deter us from recognizing
privacy interests when we see them. As this judgment will presently
show, these interests are broadly classified into interests pertaining to
the physical realm ancl interests pertaining to the mind. As case law, C
both in the U.S. and India show, this concept has travelled far from the
mere right to be let alone to recognition of a large number of privacy"
interests, which apart from privacy of one's home and protection from
unreasonable searches and seizures have been extended to protecting
an individual's interests in making vital personal choices such as the D
right to abort a fetus; rights of same sex couples- including the right to
marry; rights as to procreation, contraception, general family relationships,
c.hild rearing, education, data protection, etc. This argument again need
not detain us any further and is rejected. ·
47. As to the argument that if information is already in the public E
domain and has been parted with, there is no privacy right, we may only
indicate that the question as to "voluntary" parting with in.formation has
been dealt with, in the judgment in Miller v. United States, 425 US
435 (1976). This Court in Canara Bank (supra) referred to the criticism
of this judgment as follows:
F
"(A) Criticism of Miller
(1) The majority in Miller, 425 US 435 .(1976); laid down that a
customer who has conveyed his affairs to another had thereby
lost his privacy rights. Prof. Tribe states in his treatise (see p.
1391) that this theory reveals "alarming tendencies" because the 0
Court has gone back to the old theory that privacy is in relation t9
property while it has laid down that the right is one attached to the
person rather than to property. If the right is to be held to be not
attached to the person, then "we would not shield our account
balances, income figures and personal telephone and address books
H
878 SUPREME COURT REPORTS ['.2017] IO S.C.R.

A from the public eye. but might instead go about with the information
written on our 'foreheads or our bumper stickers'.'' He
observes that the majority in Miller, 425 US 435 (1976), confused
"privacy'' with "secrecy" and that '"even their notion of secrecy
is a strange one. for a secret remains a secret even wizen slwred
with those whom one selects for one's confidence''. Our
B
cheques are not merely negotiable instruments but yet the world
can learn a vii-st amount about us by knowing how and with whom
we have spent our money. Same is the position when we use the
telephone or post a letter. To say that one assumes great risks by
opening a bank account appeared to be a wrong conclusion. Prof.
c Tribe asks a very pertinent question (p. 1392 ):
"Yet one can hardly be said to have assumed a risk of
surveillance in a context where, as a practical matter, one had
no choice. Only the most committed - and perhaps civilly
committable - he1111it can live without a telephone, without
D a bank account, without mail. To say that one must take a
bitter pill with the sweet when one licks a stamp is to exact a
high constitutional price indeed for living in contemporary
society."
He concludes (p. 1400):
E . "In our information-dense technological era, when living inevitably
entails leaving not just informational footprints but parts of one's
self in myriad directories, files, records and computers, to hold
that the Fomteenth Amendment did not reserve to individuals some
power to say when and how and by whom that information and
F those confidences were to be used, would be to denigrate the
central role that informational autonomy must play in any
developed concept of the self."
(ii) Prof. Yale Kamisar (again quoted by Prof. Tribe) (p. 1392)
says:
G "It is beginning to look as if the only way someone living in our
society can avoid 'assuming the risk' that various intermediate
institutions will reveal information to the police is by engaging
in drastic discipline, the kind of discipline of I ife
under totalitarian regimes."
H (at pages 520-521)
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 879
IR.
. F. NARIMAN, J.].

It may also be noticed that Miller (supra) was done away with A
by a Congressional Act of 1978. This Court then went on to state:
"(B) Response to Miller by Co11gress
We shall next refer to the response by Congress to Miller, 425
US 435 ( 1976). (As stated earlier, we should not be understood
as necessarily recommending this law as a model for India.) Soon B
after Miller, 425 US 435 (1976), Congress enacted the Right to
Financial Privacy Act. 1978 (Public Law No. 95-630) 12 USC
with Sections 3401 to 3422). The statute accords customers of
banks or similar financial institutions, certain rights to be notified
of and a right to challenge the actions of Government in court at c
an anterior stage before disclosure is made. Section 3401 of the
Act contains "definitions". Section 3402 is important, and it says
that "except as provided by Section 3403(c) or (d), 3413 or 3414.
no government authority may have access to or obtain copies of.
or the information contained in the financial records of any customer
from a financial institution unless the financial records are D
reasonably described and that (1) such customer has authorised
such disclosure in accordance with Section 3404; (2) such records
are disclosed in response to (a) administrative subpoenas or
summons to meet requirement of Section 3405; (b) the
requirements of a search warrant which meets the requirements E
of Section 3406; (c) requirements of a judicial subpoena which
meets the requirement of Section 3407; or (d) the requirements
of a formal written. requirement under Section 3408. If the
customer decides to challenge the Government's access to the
records, he may file a motion in the appropriate US District Court,
to prevent such access. The Act also provides for certain specific F
exceptions." (at page 522)
48. Shri Sundaram has argued that rights have to be traced directly
to those expressly stated in the fundamen_tal rights chapter of the
Constitution for such rights to receive protection, and privacy is not one
of them. It will be noticed that the dignity of the individual is a cardinal G
value, which is expressed in the Preamble to the Constitution. Such
dignity is not expressly stated as a right in the fundamental rights chapter,
but has been read into the right to life and personal liberty. The right to
live with dignity is expressly read in to Article 21 by the judgment in Jolly·
George Varghese v. Bank of Cochin, ( 1980) 2 SCC 360 at paragraph H
880 SUPREME COURT REPORTS (2017] IO S.C.R.

A 10. Similarly, the right against bar fetters and handcuffing being integral
to an individual's dignity was read into Article 21 by the judgment in
Charles Sobraj v. Delhi Administration, ( 1978) 4 SCC 494 at
paragraphs 192, 197-B, 234 and 241 and Prem Shankar Shukla v.
Delhi Administration, (1980) 3 SCC 526 at paragraphs 21 and 22. It
is too late in the day to canvas that a fundamental right must be traceable
B
to express language in Part III of the Constitution. As will be pointed
out later in this judgment, a Constitution has to be read in such a way
that words deliver up principles that are to be followed and if this is kept
in mind, it is clear that the concept of privacy is contained not merely in
personal libetty, but also in the dignity of the individual.
c 49. The judgment in Stanley v. Georgia, 22 L.Ed. 2d 542 at 549,
550 and 551 ( 1969) will serve to illustrate how privacy is conceptually
different from an expressly enumerated fundamental right. In this case,
the appellant before the Court was tried and convicted under a Georgia
statute for knowingly having possession of obscene material in his home.
D The U.S. Supreme Court referred to judgments which had held that
obscenity is not within the area of constitutionally protected speech under
the First Amendment to the U.S. Constitution. Yet, the Court held:
"It is now well established that the Constitution protects the right
to receive infonnation and ideas. "This freedom [of speech and
E press] ... necessarily protects the right to receive ...... " Martin
v.CityofStruthers,319US 141, 143,87LEd 1313, 1316,63SCt
862 (1943); see Griswold v. Connecticut, 381 US 479, 482, 14 L
Ed 2d 510, 513, 85 S Ct 1678 (1965); Lamont I'. Postmaster
General, 381 U.S. 30 I, 307-308, 14 L Ed 2d 398, 402, 403, 85 S
Ct 1493 (1965) (Brennan, J., concurring); cf Pierce v. Society
F of the Sisters, 268 U.S. 510, 69 L Ed 1070, 45 S Ct 571, 39 ALR
468 ( 1925). This right to receive information and ideas. regardless
of their social worth, see Winters v. New York, 333 US 507, 510,
92 L Ed 840, 847, 68 S Ct 665 (1948), is fundamental to our free
society. Moreover, in the context of this case-a prosecution for
G mere possession of printed or filmed matter in the privacy of a
person's own home-that right takes on an added dimension. For
also fundamental is the right to be free, except in very limited
circumstances, from unwanted governmental intrusions into one's
privacy ...

H
These are the rights that appellant is asserting in the case before
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 881
[R. F. NARIMAN, J.]

us. He is asserting the right to read or observe what he pleases- A
the right to satisfy his intellectual and emotional needs in the privacy
of his own home. He is asserting the right to be free from state
inquiry into the contents of his library. Georgia contends that
appellant does not have these rights, that there are certain types
of materials that the individual may not read or even possess. B
Georgia justifies this assertion by arguing that the films in the
present case are obscene. But we think that mere categorization
of these films as "obscene" is insufficient justification for such a
drastic invasion of personal liberties guaranteed by the First and
Fourteenth Amendments. Whatever may be the justifications for
other statutes regulating obscenity. we do not think they reach c
into the privacy ofone's own home. If the First Amendment means
anything. it means that a State has no business telling a man. sitting
alone in his own house. what books he may read or what films he
may watch. Our whole constitutional heritage rebels at the ·thought
of giving government the power to control men's minds."
D
(Emphasis Supplied)
The Court concluded by stating:
"We hold that the First and Fourteenth Amendments prohibit making
mere private possession of obscene material a crime. Roth and
the cases following that decision are not impaired by today's · E
holding. As we have said, the States retain broad power to regulate
obscenity; that power simply does not extend to mere possession
by the individual in the privacy of his own home."
50. This case, more than any other, brings out in bold relief. the
difference between the right to privacy and the right to freedom of speech. F
Obscenity was held to be outside the freedom of speech amended by
the First Amendment, but a privacy interest which related to the right to
read obscene material was protected under the very same Amendment.
Obviously, therefore, neither is privacy as vague and amorphous as has
been argued, nor is it correct to state that unless it finds express mention G
i~ a provision in Part III of the Constitution, it should not be regarded as
a fundamental right. '
51. Shri Sundaram's argument that personal liberty is different
from civil liberty need not detain us at all for the reason that at least qua
the fundament right to privacy- that right being intimately connecte~ H .
882 SUPREME COURT REPORTS [2017] IO S.C.R.

A with the liberty of the person would certainly fall within the expression
''personal liberty".
52. According to Shri Sundaram, every facet of privacy is not
protected. Instances of actions which, according to him, are not protected
are:
B • ''Taxation laws requiring the furnishing of information;
• In relation to a census;
• Details and documents required to be furnished for the purpose
of obtaining a passport:
c • Prohibitions pertaining to viewing pornography.··
53. We are afraid that this is really putting the cart before the
horse. Taxation laws which require the furnishing of information certainly
impinge upon the privacy of every individual which ought to receive
protection. Indeed, most taxation laws which require the furnishing of
D
such information also have, as a concomitant provision, provisions which
prohibit the dissemination of such information to others except under
specified circumstances which have relation to some legitimate or
important State or societal interest. The same would be the case in
relation to a census and details and documents required to be furnished
E for obtaining a passport. Prohibitions pertaining to viewing pornography
have been dealt with earlier in this judgment. The U.S. Supreme Court's
decision in Stanley (supra) held that such prohibitions would be invalid if
the State were to intrude into the privacy of one's home.
54. The learned Attorney General drew our attention to a number
p of judgments which have held that there is no fundamental right to trade
in liquor and cited Khoday Distilleries Ltd. v. State of Karnataka,
(1995) I SCC 574. Quite obviously, nobody has the fundamental right to
carry on business in crime. Indeed, in a situation where liquor is expressly
permitted to be sold under a licence, it would be difficult to state that
such seller ofliquor would not have the fundamental right to trade under
G Article 19(1 )(g), even though the purport of some of our decisions seems
to stating exactly that - See the difference in approach between the
earlier Constitution Bench judgment in Krishna Kumar Narula v. State
of .Tammu and Kashmir, (1967) 3 SCR 50, and the later Constitution
Bench judgment in Har Shankar v. The Dy. Excise and Taxation
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 883
[R. F. NARIMAN, J.]

Commr., (1975) l SCC 737. In any event, the analogy to be drawn . A
from the cases dealing with liquor does not take us further for the simple
reason that the fondamental right to privacy once recognized, must yield
in given circumstances to legitimate State interests in combating crime.
But this arises only after recognition of the right to privacy as a
fundamental right and not before. What must be a reasonable restriction B
in the interest of a legitimate State interest or in public interest cannot
determine whether the intrusion into a person's affairs is or is not a
fundamental right. Every State intrusion into privacy interests which
deals with the physical body or the dissemination of information personal
to an individual or personal choices relating to the individual would be
subjected to the balancing test prescribed under the fundamental right C
that it infringes depending upon where the privacy interest claimed is
founded.
55. The teamed Attorney General and Shri Tushar Mehta, learned
Additional Solicitor General, in pai1icular, argued that our statutes are
replete with a recognition of the right to privacy, and Shri Tushar Mehta D
cited provisions- of the Right to Information Act; 2005, the
Indian Easements Act, 1882, the Indian Penal Code, 1860, the Indian
Telegraph Act, 1885, the Bankers' Books Evidence Act, 1891, the Credit
Information Companies (Regulation) Act, 2005, the Public Financial
Institutions (Obligation as to Fidelity and Secrecy) Act, 1983, the Payment
and Settlement Systems Act, 2007, the Income Tax Act, 1961, the Aadhaar E
(Targeted Delivery of Financial and other Subsidies, Benefits mid
Services) Act, 2016, the Census Act, 1948, the Collection of Statistics
Act, 2008, the Juvenile Justice (Care and Protection of Children) Act,
2015, the Protection of Children from Sexual Offences Act, 2012 and
the Information Technology Act, 2000. According to them, since these F
statutes already protect the privacy rights of individuals, it is unnecessary
to read a fundamental right of privacy into Part III of the Constitution.
56. Statutory law can be made and also unmade by a simple
Parliamentary majority. In short, the ruling party can, at will, do away
with any or all of the protections contained in the statutes mentioned G
hereinabove. Fundamental rights, on the other hand, _are contained in
the Constitution so that there would be rights that the citizens of this
country may enjoy despite the governments that they may elect. This is
all the more so when a pa11icular fundamental tight like privacy of the
individual is an "inalienable" right which inheres in the individual because
H
884 SUPREME COURT REPORTS [2017] 10 S.C.R.

A he is a human being. The recognition of such right in the fundamental
rights chapter of the Constitution is only a recognition that such right
exist5 notwithstanding the shifting sands of m~tjority governments. Statutes
may protect fundamental rights; they may also infringe them. In case
any existing statute or any statute to be made in the future is an
infringement of the inalienable right to privacy, this Court would then be
B
required to test such statute against such fundamental right and if it is
found that there is an infringement of such right. without any countervailing
societal or public interest, it would be the duty of this Comt to declare
such legislation to be void as offending the fundamental right to privacy.
This argument, therefore, also merits rejection.
c 57. Shri Rakesh Dwivedi referred copiously to the "reasonable
expectation of privacy" test laid down by decisions of the U.S. Supreme
Court. The origin of this test is to be found in the concurring judgment of
Harlan, J. in Katz v. United States, 389 U.S. 347 (1967). Though this
test has been applied by several subsequent decisions, even in the United
D States, the application of this test has been criticized.
58. In Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469 at 477
(1998 ), the concurring judgment of Scalia, J. criticized the application of
the aforesaid test in the following terms:
"The dissent believes that "fo]ur obligation to produce coherent
E results" requires that we ignore this clear text and 4-ccntury-old
tradition, and apply instead the notoriously unhelpful test adopted
in a "benchmar[k]" decision that is 31 years old. Post, at II 0,
citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19
L.Ed.2d 576 ( 1967). In my view, the only thing the past three
F decades have established about the Katz test (which has come to
mean the test enunciated by Justice Harlan's separate concurrence
in Katz, see id., at 360, 88 S.Ct. 507) is that, unsurprisingly, those
"'actual (subjective) expectation[s] of privacy'' "that society is
prepared to recognize as 'reasonable,'" id., at 361, 88 S.Ct. 507,
bear <in uncanny resemblance to those expectations of privacy
G that this Court considers reasonable. When that self-indulgent test
is employed (as the dissent would employ it here) to determine
whether a "search or seizure" within the meaning of the
Constitution has occurred (as opposed to whether that "search
or seizure" is an ·'unreasonable" one), it has no plausible foundation
H in the text of the Fourth Amendment. That provision did not
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 885
[R. F. NARIMAN, J.]

guarantee some generalized "right of privacy" and leave it to this A
Court to determine which particular manifestations of the value
of privacy "society is prepared to recognize as 'reasonable'."
Ibid." ,

In Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038 at 2043
(2001), the U.S. Supreme Court found that the use of a thermal imaging B
device, aimed at a private home from a public street, to detect relative
amounts of heat within the private home would be an invasion of the
privacy of the individual. In so holding, the U.S. Supreme Court stated:
"The Katz test-whether the individual has an expectation of
privacy that society is prepared to recognize as reasonable-has c
often been criticized as circular, and hence subjective and
unpredictable. Seel W. Lafave, Search and Seizure §2.1 (d), pp.
393-394 (3d ed. 1996); Posner, The Uncertain Protection of
Privacy by the Supreme Court,· 1979 S. Ct. Rev. 173,
188; Ca11er, supra, at 97, 119 S. Ct. 469 (SCALIA, J., concurring).
But see Rakas, supra, at 143-144, n. 12, 99 S. Ct. 421. While it D
may be difficult to refine Katz when the sear_ch of areas such as
telephone booths, automobiles, or even the curtilage and uncovered
portions of residences are at issue, in the case of the search of
the interior of homes-the prototypical and hence most commonly
litigated area of protected privacy-there is a ready criterion, with E
roots deep in the common law, of the minimal expectation of
privacy that exists, and that is acknowledged to be reasonable.
To withdraw protection of this minimum expectation would be to
permit police technology to erode the privacy guaranteed by the
Fourth Amendment. We think that obtaining by sense-enhancing
technology any information regarding the interior of the home that F
could not otherwise have been obtained without physical "intrusion
into a constitutionally protected area," Silverman, 365 U.S., at
512, 81 S. Ct. 679 constitutes a search-at least where (as here)
the technology in question is not in general public use. 111is assures
preservation of that degree of privacy against government that G
existed when the Fourth Amendment was adopted."
59. It is clear, therefore, that in the country ofits origin, this test
though followed in certain subsequent judgments, has been the subject
matter of criticism. There is no doubt that such a test has no plausible
foundation in the text of Articles 14, 19. 20 or 21 of our Constitution. H
886 SUPREME COURT REPORTS [20 ! 7] 10 S.C.R.

A Also, as has rightly been held, the test is circular in the sense that there
is no invasion of privacy unless the individual whose privacy is invaded
had a reasonable expt;ctation of privacy. Whether such individual will
or will not have such an expectation ought to depend on what the position
in law is. Also, this test is intrinsically linked with the test of voluntarily
B parting with information, inasmuch as if information is voluntarily parted
with, the person concerned can reasonably be said to have no expectation
of any privacy interest. This is nothing other than reading of the
"reasonable expectation of privacy" with the test in Miller (supra), which
is that if information is voluntarily parted with, no right to privacy exists.
As has been held by us, in Canara Bank (supra), this Court referred to
C Miller (supra) and the criticism that it has received in the country of its
origin, and refused to apply it in the Indian context. Also, as has been
discussed above, soon after Miller (supra), the Congress enacted the
Right to Financial Privacy Act, 1978. doing away with the substratum of
this judgment. Shri Dwivedi's argument must, therefore, stand rejected.
D 60. Shri Gopal Sankaranarayanan, relying upon the statement of
law in Beltram Khurshid Pcsikaka v. State of Bombay, (1955) 1
SCR 613, Basheshar Nath v. CIT, (1959) Supp. (I) SCR 528 and
Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545,
has argued that it is well established that fundamental rights cannot be
waived. Since this is the law in this country, if this Court were to hold
E that the right to privacy is a fundamental right, then it would not be
possible to waive any part of such right and consequently would lead to
the following complications:
• All the statutory provisions that deal with aspects of privacy
would be vulnerable.
F
• The State would be barred from contractually obtaining virtually
any information about a person, including identification,
fingerprints, residential address, photographs. employment
details, etc .. unless they were all found to be not u part of the
right to privacy.
G
• The consequence would be that the judiciary would be testing
what aspects of privacy could be excluded from Article 21
rather than what can be included in Article 21.
This argument again need not detain us. Statutory provisions that
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 887
[R. F. NARIMAN, J.]

deal with aspects of privacy would continue to be tested on the ground A
that they would violate the fundamental right to privacy, and would not
be struck down, if it is found on a balancing test that the social or public
interest and the reasonableness of the restrictions would outweigh the
particular aspect of privacy claimed. If this is so, then statutes which
would enable the State to contractually obtain information about persons B
would pass muster in given circumstances, provided they safeguard the
individual right to privacy as well. A simple example would suffice. If a
person was to paste on Facebook vital information about himself/herself,
such information, being in the public domain, could not possibly be
claimed as a privacy right after such disclosure. But, in pursuance
of a statutory requirement, if certain details need to be C
given for the concerned statutory purpose, then such details would
certainly affect the right to privacy, but would on a balance, pass muster
as the State action concerned has sufficient inbuilt safeguards to protect
this right- viz. the fact that such information cannot be disseminated to
anyone else, save on compelling grounds of public interest.
D
The Fundamental Ri::ht to Privacy
61. This conclusion brings us to where the right to privacy resides
and what its contours are. But before getting into this knotty question, it
is important to restate a few constitutional fundamentals.
62. Never must we forget the great John Marshall, C.J.'s E
admonition that it is a Constitution that we are expounding. [(see:
McCulloch v. Maryland, 17 U.S. 316 at 407 (1819)]. Indeed a
Constitution is meant to govern people's lives, and as people's lives
keep evolving and changing with the times, so does the interpretation of
the Constitution to keep pace with such changes. This was well expressed F
in at least two judgments of this Court. In Ashok Tanwar & Anr. v.
State of H.P. & Ors., (2005) 2 SCC 104, a Constitution Bench stated
as follows:
"This apart, the interpretation of a provision of the Constitution
having regard to various aspects serving the purpose and mandate G
of the Constitution by this Court stands on a separate footing. A
constitution unlike other statutes is meant to be a durable instrument
to serve through longer number of years, i.e., ages without frequent
revision. It is intended to serve the needs of the day when it was
enacted and also to meet needs of the changing conditions of the
H
888 SUPREME COURT REPORTS [2017] IO S.C.R.

A future. This Court in R.C. Poudyal v. Union of India, 1994 Supp
(1) sec 324, in paragraph 124, observed thus:
"124. In judicial review of the vires of the exercise of a
constitutional power such as the one under Article 2, the
significance and importance of the political components of the
B decision deemed fit by Parliament cannot be put out of
consideration as long as the conditions do not violate the
constitutional fundamentals. In the interpretation of a
constitutional document, 'words are but the framework of
concepts and concepts may change more than words
themselves'. The significance of the change of the concepts
c themselves is vital and the constitutional issues are not solved
by a mere appeal to the meaning of the words without an
acceptance of the line of their growth. It is aptly said that 'the
intention of a Constitution is rather to outline principles than to
engrave details'."
D In the First B.N. Rau Memorial Lecture on "Judicial Methods"
M. Hidayatullah, J. observed:
"More freedom exists in the interpretation of the Constitution
than in the interpretation of ordinary laws. This is due to the
fact that the ordinary law is more often before courts, that
E there are always dicta of judges readily available while in the
domain of constitutional law there is again and again novelty
of situation and approach."
Chief Justice Marshall while deciding the celebrated McCulloch
v. Maryland [4 Wheaton (17 US) 316: 4 L Ed 579 (1819)]
F (Wheaton at p. 407, L.Ed. at p. 602) made the pregnant remark-
" we must never forget that it is the constitution we are
expounding''- meaning thereby that it is a question of new
meaning in new circumstances. Cardozo in his lectures also said:
"The great generalities of the Constitution have a content and
a significance that vary from age to age." Chief Justice Marshall
G
in McCulloch v. Maryland [4 Wheaton (17 US) 316 : 4 L Ed 579
(18 l 9)] (L.Ed at pp 603-604) declared that the Constitution was
"intended to endure for ages to come, and consequently, to be
adapted to the various crises of human affairs". In this regard it is
worthwhile to see the observations made in paragraphs 324 to
H
JUSTICE K S PUTIASWAMY (RETD.) v. UNION OF INDIA 889
[R. F. NARIMAN, J.]

326 in Supreme Court Advocates-on-Record Assn, (1993) 4 SCC A
441: (SCC pp. 645-46)
"324. The case before us must be considerei:l in the light of our
entire experience and not merely in that of what was said by the
framers of the Constitution. While deciding the questions posed
before us we must consider what is the judiciary today and B
not what it was fifty years back. The Constitution has not
only to be read in the light of contemporary circi~mstances
and values, it has to be read in such. a way that the
circumstances and values of the present generation are given
e;.pression in its provisions. An eminent jurist observed that
'constitutional interpretation is as much a process of creation as C
one of discovery.'
325. It would be useful to quote hereunder a paragraph from the
judgment of Supreme Court of Canada in Hunter v. Southam
Inc. (1984) 2 SCR 145: [SCR at p.156 (Can)]
D
'It is clear that the meaning of "unreasonable" cannot be
determined by recourse to a dictionary, nor for that matter, by
reference to the rules of statutory construction. The task of
expounding a Constitution is crucially different from thdt of
construing a statute. A statute defines present rights and
obligations. It is easily enacted and as easily repealed. A E
Constitution, by contrast, is drafted with an eye to the future.
Its function is to provide a continuing framework for the
legitimate exercise of governmental power and, when joined
by a Bill or a Charter of Rights, for the unremitting protection·
, of individual rights and liberties. Once enacted, its provisiom F
cannot easily be repealed or amended. It must, therefore, be
capable of growth and development over time to meet new social,
political and historical realities often unimagined by its framers.
The judiciary is the guardian of the Constitution and must, in
interpreting its provisions, bear these considerations in mind.
Professor Paul Freund expressed this idea aptly when he G
admonished the American Courts "not to read the provisions of
the Constitution like a last will and testament lest it become on~".'
326. The constitutional provisions cannot be cut down by technical
construction rather it has to be given liberal and meaningful
H
890 SUPREME COURT REPORTS (2017] 10 S.C.R.

A interpretation. The ordinary rules and presumptions, brought
in aid to interpret the statutes. cannot be made applicable
while illferpreting the provisions of the Constitution. In Minister
of Home Affairs v. Fisher [(1979) 3 All ER 21 : 1980 AC 319]
dealing with Bermudian Constitution, Lord Wilberforce reiterated
that a Constitution is a document 'sui generis, calling for principles
B
of interpretation of its own, suitable to its character·."
This Court in Aruna Roy v. Union of India, (2002) 7 SCC 368,
recalled the famous words of the Chief Justice Holmes that "spirit
of law is not logic but it has been experience" and observed that
these words apply with greater force to constitutional law. In the
c same judgment this Court expressed that Constitution is a
permanent document framed by the people and has been accepted
by the people to govern them for all times to come and that the
words and expressions used in the Constitution, in that sense, have
no fixed meaning and must receive interpretation based on the
D experience of the people in the course of working of the
Constitution. The same thing cannot be said in relation to interpreting
the words and expressions in a statute."
(at pages 114-116)
63. To similar effect is the judgment of a 9-Judge Bench in I.R.
E Coelho (dead) by I.Rs v. State of Tamil Nadu & Ors., (2007) 2 SCC
1, which states:
"42. The Constitution is a living document. The constitutional
provisions have to be construed having regard to the march of
time and the development of law. It is, therefore, necessary that
F while construing the doctrine of basic structure due regard be had
to various decisions which led to expansion and development of
the law."'
(at page 79)
G 64. It is in this background that the fundamental rights chapter
has been interpreted. We may also refer to paragraph 19 in M.
Nagaraj & Ors. v. Union of India & Ors., (2006) 8 SCC 212,
for the proposition that any true interpretation of fundamental rights must
be expansive, like the universe in which we live. The content of
fundamental rights keeps expanding to keep pace with human activity.
H
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 891
[R. F. NARIMAN, J.]

65. It is as a result of constitutional interpretation that after A
Mancka Gandhi (supra), Article 21 has been the repository of a vast
multitude of human rights 8•
66. In India, therefore, the doctrine of originalism, which was
referred to and relied upon by Shri Sundaram has no place. According
to this doctrine, the first inquiry to be made is whether the founding B
fathers had accepted or rejected a particular dght in the Constitution.
According to the learned Attorney General and Shri Sundaram, the right
to privacy has been considered and expressly rejected by our founding
fathers. At the second level, according to this doctrine, it is not open to
8
(I) The right to go abroad. Maneka Gandhi v. Union of India (1978) 1 SCC 248 at
paras 5, 48, 90, 171and216; (2) The right of prisoners against bar fetters. Charles c
Sobraj v. Delhi Administration (1978) 4 SCC 494 at paras 192, 197-B, 234 and 241;
(3) The right to legal aid. M.H. Hoskot v. State of Maharashtra ( 1978) 3 SCC 544 at
para 12; (4) The right to bail. Babu Singh v. State ofUttar Pradesh (1978) 1 SCC
579 at para 8; (5) The right to live with dignity. Jolly George Varghese v. Bani\ of
Cochin (1980) 2 SCC 360 at para 10; (6) The right against handcuffing. Prem Shankar
Shukla v. Delhi Administration (1980) 3 SCC 526 at paras 21and22; (7) The right D
against custodial violence. Sheela Barse v. State of Maharashtra (1983) 2 SCC 96 at
para I; (8) The right to compensation for unlawful arrest. Rudul Sah v. State ofBihar
(1983) 4 SCC 141 at para 10; (9) The right to earn a livelihood. Olga Tellis v. Bombay
Municipal Corporation (1985) 3 SCC 545 at para 37; (10) The right to know. Reliance
Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers (1988) 4 SCC
592 at para 34; (11) The right against public hanging. A.G. of India v. Lachma Devi
( 1989) Supp ( 1) SCC 264 at para 1; ( 12) The right to doctor's assistance at government E
hospitals. Paramanand Katara v. Union of India (1989) 4 SCC 286 at para 8; (13)
The right to medical care. Paramanand Katara v. Union oflndia (1989) 4 SCC 286
at para 8; (14) The right to shelter. Shantistar Builders v. N.K. To tame ( 1990) 1 SCC
520 at para 9 and 13: (15) The right to pollution free water and air. Subhash Kumar
v. State of Bihar (1991) I SCC 598 at para 7; (16) The right to speedy trial. A.R.
Antulay v. R.S. Nayak (1992) l SCC 225 at para 86: (17) The right against illegal
detention ..Joginder Kumar v. State of Uttar Pradesh (1994) 4 SCC 260 at paras 20 F
and 21; (18) The right to a healthy environment. Virender Gaur v. State of Haryana
(1995) 2 SCC 577 at para 7; (19) The right to health and medical care for workers.
Consumer Education and Research Centre v. Union of India (l 995) 3 SCC 42 at
paras 24 and 25; (20) The right to a clean environment. Vellore Citizens Welfare
Forum v. Union of India (1996) 5 SCC 647 at paras 13, 16 and 17; (21) The right
against sexual harassment. Vishaka and others v. State of Rajasthan and others
(l 997) 6 SCC 241 at paras 3 and 7; (22) The right against noise pollution. In Re, Noise
G
Pollution (2005) 5 SCC 733 at para 117; (23) The right to fair trial. Zahira Habibullah
Sheikh & Anr. v. State of Gujarat & Ors. (2006) 3 SCC 374 at paras 36 and 38; (24)
The right to sleep. In'Re, Ramlila Maidan Incident (2012) 5 SCC I at paras 311 and
318; (25) The right to reputation. Umesh Kumar v. State of Andhra Pradesh (2013)
10 SCC 591 at para 18; (26) The right against solitary confinement. Shatrugan
Chauhan & Anr. v. Union oflndia (2014) 3 SCC I at para 241. H
892 SUPREME COURT REPORTS [2017] 10 S.C.R.

A the Supreme Court to interpret the Constitution in a manner that will
give effect to a right that has been rejected by the founding fathers.
This can only be done by amending the Constitution. It was, therefore,
urged that it was not open for us to interpret the fundamental rights
chapter in such a manner as to introduce a fundamental right to privacy,
when the founding fathers had rejected the same. It is only the Parliament
B
in it5 constituent capacity that can introduce such a right. This contention
must be rejected having regard to the authorities cited above. Further, in
our Constitution, it is not left to all the three organs of the State to interpret
the Constitution. When a substantial question as to the interpretation of
the Constitution arises, it is this Court and this Court alone under Article
c 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 this Court.
67. Does a fundamental right to privacy reside primarily in Article
21 read with certain other fundamental rights?
D 68. At this point, it is important to advert to the U.S. Supreme
Court's development of the right of privacy.
The earlier cases tended to see the right of privacy as a property
right as they were part of what was called the 'Lochner era' during
which the doctrine of substantive due process elevated property rights
E over societal interests 9• Thus in an early case, Olmstead v. United
States, 277 U.S. 438 at 474, 478 and 479 (1928), the majority of the
Court held that wiretaps attached to telephone wires on public streets
did not constitute a "search" under the Fourth Amendment since there
was no physical entry. into any house or office of the defendants. In a
F classic dissenting judgment, Louis Brandeis, J. held that this was too
narrow a construction of the Fourth Amendment and said in words that
were futuristic that:
"Moreover, "in the application of a constitution, our contemplation
cannot be only of what has been but of what may be." The
G
progress of science in furnishing the Government with means of
espionage is not likely to stop with wiretapping. Ways may
someday be developed by which the Government, without removing
•This era lasted from the early 20" Century till 1937, when the proverbial switch in
time that saved nine was made by Justice Roberts. It was only from 1937 onwards that
President Roosevelt's New Deal legislations were upheld by a majority of 5:4, having
H been struck down by a majority of 5:4 previously.
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 893
[R. F. NARIMAN, J.]

papers from secret drawers, can reproduce them in court, and by A
which it will be enabled to expose to a jury the most intimate
occurrences of the home. Advances in the psychic and related
sciences may bring means of exploring unexpressed beliefs,
thoughts and emotions. "That places the liberty of every man in
the hands of every petty officer" was said by James Otis of much B
lesser intrusions than these. To Lord Camden, a far slighter
intrusion seemed "subversive of all the comf~rts of society." Can
it be that the Constitution affords no. protection against such
invasions of individual security?"
69. Also in a ringing declaration of the right to privacy, that great C
Judge borrowed from his own co-authored article, written almost 40
years earlier, in order to state that the right of privacy is a constitutionally
protected right:
"The protection guaranteed by the Amendments is much broader
in scope. The makers of our Constitution undertook to secure
conditions favorable to the pursuit of happiness. They recognized D
the significance of man's spiritual nature, of his feelings, and of
his intellect. They knew that only a part of the pain, pleasure and
satisfaction of life are to be found in material things. They sought
to protect Americans in their beliefs, their thoughts, their emotions
' and their sensations. They conferred, as against the Government, E
the right to be let alone - the most comprehensive of rights, and
the right most valued by civilized men. To protect that right, every
unjustifiable intrusion by the Government upon the privacy of the
individual whatever the means employed, must be deemed a ·
violation of the Fourth Amendment. And the use, as evidence in
a crirninal proceeding, of facts ascertained by such intrusion must F
be deemed a violation of the Fifth."
Brandeis, J. 's view was held as being the correct view of the law
in Katz (supra).
·10. A large numberofjudgments of the U.S. Supreme Court since G
Katz (supra) have recognized the right to privacy as falling in one or
other of the clauses of the Bill of Rights in the U.S. Constitution. Thus,
in Griswold v. Connecticut, 381U.S.479 (1965), Douglas, J.'s majority
opinion found that the right to privacy was contained in the penumbra!
regions of the First, Third, Fourth and Fifth Amendments to the U.S.
H
894 SUPREME COURT REPORTS [2017] 10 S.C.R.

A Constitution. Goldberg, J. found this right to be embedded in the Ninth
Amendment which states that certain rights which are not enumerated
are nonetheless recognized as being reserved to the people. White, J.
found this right in the due process clause of the Fourteenth Amendment,
which prohibits the deprivation of a person's liberty without following
due process. This view of the law was recognized and applied in Roe v.
B
Wade, 410 U.S. 113 (1973), in which a woman's right to choose for
herself whether or not to abort a fetus was established, until the fetus
was found "viable". Other judgments also recognized this right of
independence of choice in personal decisions relating to marriage, Loving
v. Virginia, 388 U.S. 1. 12, 87 S.Ct. 1817, 1823. 18 L.Ed.2d 1010 (1967);
C procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542, 62 S.Ct.
1110, 11 13-1114, 86 L.Ed. 1655 (1942); contraception, Eisenstadt v.
Baird, 405 U.S. 438, 453-454, 92 S.Ct. 1029, 1038-1039. 31 L.Ed.2d
349 (1972), family relationships, Prince v. Massachusetts, 321 U.S .
158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944); and child rearing and
D education, Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct.
571, 573, 69 L.Ed. 1070 (l 925).
71. In a recent decision of the U.S. Supreme Court in United
States v. Jones, 565 U.S. 400 (2012), the U.S. Supreme Court's majority
judgment traces the right of privacy through the labyrinth of case law in
Part II of Scalia. J.'s opinion, and regards it as a constitutionally protected
E right.
72. Based upon the prevalent thinking of the U.S. Supreme
Court, a seminal judgment was delivered by Mathew. J. in
Gobind (supra). This judgment dealt with the M.P. Police Regulations,
similar to the Police Regulations contained in Kharak Singh (supra).
F After setting out the majority and minority opinions in the said judgment,
Mathew, J. went on to discuss the U.S. Supreme Court judgments in
Griswold (supra) and Roe (supra). In a very instructive passage the
learned Judge held:
"22. There can be no doubt that privacy-dignity claims deserve to
G be examined with care and to be denied only when an important
countervailing interest is shown to be superior. If the Court does
find that a claimed right is entitled to protection as a fundamental
privacy right, a law infringing it must satisfy the compelling State
interest test. Then the question would be whether a State interest
H is of such paramount importance as would justify an infringement
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA . 895
[R. F. NARIMAN, J.)

of the right. Obviously, if the enforcement of morality were held A
to be a compelling as well as a permissible State interest, the
characterization of a claimed right as a fundamental privacy right
would be of far less significance. The question whether
enforcement of morality is a State interest sufficient to justify the
infringement of a fundamental privacy right need not be considered
B
for the purpose of this case and therefore we refuse to enter the
controversial thicket whether enforcement of morality is a function
of State.
23. Individual autonomy, perhaps the central concern of any system
oflimited government, is protected in part under our Constitution
by explicit constitutional guarantees. In the application of the c
Constitution our contemplation cannot only be of what has been
but what may be. Time works changes and brings into existence
new conditions. Subtler and far reaching means of invading privacy
will make it possible to be heard in the street what is whispered in
the closet. Yet, too broad a definition of privacy raises serious D
questions about the propriety of judicial reliance on a right that is
not explicit in the Constitution. Of course, privacy primarily
concerns the individuals. It therefore relates to and overlaps with
the concept of liberty. The most serious advocate of privacy must
confess that there are serious problems of defining the essence
and scope of the right. Privacy interest in autonomy must also be E
placed in the context of other rights and values.
24. Any right to privacy must encompass and protect the personal
intimacies of the home. the family marriage, motherhood,
procreation and child rearing. This catalogue approach to the
question is obviously not as instructive as it does not give analytical F
picture of distinctive characteristics of the right of privacy. Perhaps,
the only suggestion that can be offered as unifying principle
underlying the concept has been the assertion that a claimed right
must be a fundamental right implicit in the concept of ordered
liberty. G
27. There are two possible theories for protecting privacy of home.
The first is that activities in the home harm others only to the
extent that they cause offence resulting from the mere thought
that individuals might be engaging in such activities and that such
'harm' is not constitutionally protectable by the State. The second H
896 SUPREME COURT REPORTS [2017] IO S.C.R.

A is that individuals need a place of sanctuary where they can be
free from societal control. The imponance of such a sanctuary is
that individuals can drop the mask, desist for a while from projecting
on the world the image they want to be accepted as themselves,
an image that may reflect the values of their peers rather than the
realities of their natures.
B
28. The right to privacy in any event will necessarily have to go
through a process of case-by-case development. Therefore, even
assuming that the right to personal liberty, the right to move freely
throughout the territory oflndia and the freedom of speech create
an independent right of privacy as an emanation from them which
c one can characterize as a fundamental right, we do not think that
the right is absolute."
(at pages 155-157)
The Police Regulations were, however, not struck down, but were
D termed as being perilously close to being unconstitutional.
73. Shri Sundaram has brought to our notice the fact that Mathew,
J. did not declare privacy as a fundamental right. By this judgment, he
reached certain conclusions on the assumption that it was a fundamental
right. He is correct in this submission. However, this would not take the
E matter very much further inasmuch as even though the later judgments
have referred to Gobind (supra) as the starting point of the fundamental
right to privacy, in our view, for the reasons given by us in this judgment,
even dehors Gobind (supra) these cases can be supported on the ground
that there exists a fundamental right to privacy.
74. In .R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632,
F
this Court had to decide on the rights of privacy vis-a-vis the freedom of
the press, and in so doing, referred to a large number of judgments and
arrived at the following conclusion:
''26. We may now summarise the broad principles flowing from
the above discussion:
G
(I) The right to privacy is implicit in the right to life and liberty
guaranteed to the citizens of this country by Article 21. It is a
''right to be let alone". A citizen has a right to safeguard the privacy
of his own, his family, marriage, procreation, motherhood, child-
bearing and education among other matters. None can ·publish
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 897
[R. F. NARIMAN, J.]

anything concerning the above matters without his consent- A
whether truthful or otherwise and whether laudatory or critical. If .
he does so, he would be violating the right to privacy of the person
concerned and would be liable 'in an action for damages. Position
may, however, be different, if a person voluntarily thrusts himself
into controversy or voluntarily invites or raises a controversy.
B
(2) The rule aforesaid is subject to the exception, that any
publication concerning the aforesaid aspects becomes
unobjectionable if such publication is based upon public records
including court records. This is for the reason that once a matter
becomes a matter of public record, the rightto privacy no longer
subsists and it becomes a legitimate subject for comment by press C
and media among others. We are, howevei;; of the opinion that in
the interests of decency [Article 19(2)] an exception must be c:irved
out to this rule, viz., a female who is the victim of a sexual assault,
kidnap, abduction or a like offence should not further be subjected
to the indignity ofhername and the incident being publicised in D
press/media.
(3) There is yet another exception to the rule in (1) above-indeed,
this is not an exception but an independent rule. In the case of
public officials, it is obvious, right to privacy, or for that matter, the
remedy of action for damages-is simply not available with respect E
to their acts and conduct relevant to the discharge of their official
duties. This is so even where the publication is based upon facts
and statements which are not true, unless the official establishes
that the publication was made (by the defendant) with reckless
disregard for truth. In such a case, it would be enough for the
defendant (member of the press or media) to prove that he acted · F
after a reasonable verification of the facts; it is not l)ecessary for
him to prove that what he has written is true. Of course, where
·the.publication is proved to be false anil actuated by malice or
personal animosity, the defendant would have no defence and
would be liable for damages. It is equally obvious that in matters G
not relevant to the discharge of his duties, the public officialenjoys
the same protection as any other citizen, as explained in (I) and
(2) above. It needs no reiteration that judiciary, which is pr~tec'ted
;by the power to punish for contempt of court and Parliament and
Jegislatures protected as their privileges are by Articles 105 and
H
898 SUPREME COURT REPORTS [2017] 10 S.C.R.

A 104 respectively of the Constitution oflndia, represent exceptions
to this rule.
(4) So far as the Government, local authority and other organs
and institutions exercising governmental power are concerned,
they cannot maintain a suit for damages for defaming them.
B (5) Rules 3 and 4 do not, however, mean that Official Secrets
Act. 1923, or any similar enactment or provision having the force
of law does not bind the press or media.
(6) There is no law empowering the State or its officials to prohibit,
or to impose a prior restraint upon the press/media." 10
c
(at pages 649-651)
75. Similarly, in PUCL v. Union oflndia, (1997) 1 SCC 301, this
Court dealt with telephone tapping as follows:
"17. We have, therefore, no hesitation in hqlding that right to privacy
D is a part of the right to "life" and "personal liberty" enshrined
under Article 21 of the Constitution. Once the facts in a given
case constitute a right to privacy, Article 21 is attracted. The said
right cannot be curtailed "except according to procedure established
by law''.
E 18. The right to privacy-by itself-has not been identified under
the Constitution. As a concept it may be too broad and moralistic
to define it judicially. Whether right to privacy can be claimed or
has been infringed in a given case would depend on the facts of
the said case. But the right to hold a telephone conversation in the
privacy of one's home oroffice without interference can certainly
F
be claimed as "right to privacy". Conversations on the telephone
are often of an intimate and confidential character. Telephone
conversation is a part of modern man's life. It is considered so
important that more and more people are carrying mobile telephone
instruments in their pockets. Telephone conversation is an important
G facet of a man's private life. Right to privacy would certainly
include telephone conversation in the privacy of one's home or
office. Telephone-tapping would, thus, infract Article 21 of the

'° It will be noticed that this judgment grounds the right of privacy in Article 21.
However, the Court was dealing with the aforesaid right not in the context of State
H action. but in the context of press freedom.
JUSTICE K S PUITASWAMY (RETD.) v. UNION OF INDIA 899
[R. F. NARIMAN, J.]

Constitution of India unless it is pennitted under the procedure A
established by Jaw."
(at page 311)
The Court then went on to apply Article 17 of the International
Covenant on Civil and Political Rights, 1966 which recognizes the right
to privacy and also referred to Article 12 of the Universal Declaration of B
Human Rights, 1948 which is in the same terms. It then imported these
·international law concepts to interpret Article 21 in accordance with
these concepts.
76. In Sharda v. Dharmpal (supra), this Court was 'concerned
with whether a medical examination could be ordered by a Court in a C
divorce proceeding. After referring to some of the judgments of this
Court and the U.K. Courts, this Court held:
"81. To sum up, our conclusions are:
1. A matrimonial court has the power to order a person to undergo D
medical test.
2. Passing of such an order by the court would not be in violation
of the right to personal liberty under Article 21 of the Indian
Constitution.
· 3. However, the comt should exercise such a power if the applicant E
has a strong prima facie case and there is sufficient material before
the court. If despite the order of the court, the respondent refuses
to submit himself to medical examination, the court will be entitled
to draw an adverse inference against him."
(atpage524) F
In Canara Bank (supra), this Court struck down Section 73 of
the Andhra Pradesh Stamp Act, as it concluded that the involuntary
impounding of documents under the said provision would be violative of
the fundamental right of privacy contained in Article 21. The Cou1t
exhaustively went into the issue and cited many U.K. and U.S. G
judgments. After so doing, it analysed some of this Court's judgments
and held:
"53. Once we have accepted in Gobind [(1975) 2 SCC 148 :
1975 SCC (Cri) 468] and in later cases that the right to privacy
deals with "persons and not places", the documents or copies of H
900 SUPREME COURT REPORTS (2017] IO S.C.R.

A documents of the customer which are in a bank, must continue to
remain confidential vis-a-vis the person, even if they are no longer
at the customer's house and have been voluntarily sent to a bank.
If that be the correct view of the law, we cannot accept the line
of Miller, 425 US 435 (1976), in which the Court proceeded on
the basis that the right to privacy is referable to the right of
B
"'property" theory. Once that is so, then unless there is some
probable or reasonable cause or reasonable basis or material before
the Collector for reaching an opinion that the documents in the
possession of the bank tend to secure any duty or to prove or to
lead to the discovery of any fraud or omission in relation to any
c duty, the search or -taking notes or extracts therefore. cannot be
valid. The above safeguards must necessarily be read into the
provision relating to search and inspection and seizure so as to
save it from any unconstitutionality.
56. In Smt. Maneka Gandhi vs. Union of India, (1978) 1 SCC
D 248, a seven-Judge Bench decision, P.N. Bhagwati, J. (as His
Lordship then was) held that the expression "personal liberty"
in Article 21 is of the widest amplitude and it covers a variety of
rights which go to constitute the personal liberty of man and some
of them have been raised to the status of distinct fundamental
rights and given additional protection under Article 19 (emphasis
E supplied). Any law interfering with personal liberty of a person
must satisfy a triple test: (i) it must prescribe a procedure; (ii) the
procedure must withstand the test of one or more of the
fundamental rights conferred under Article 19 which may be
applicable in a given situation; and (iii) it must also be liable to be
F tested with reference to Article 14. As the test propounded
by Article 14 pervades Article 21 as well, the law and procedure
authorizing interference with personal liberty and right of privacy
must also be right and just and fair and not arbitrary, fanciful or
oppressive. If the procedure prescribed does not satisfy the
requirement of Article 14 it would be no procedure at all within
G the meaning of Article 21."
(at pages 523 and 524)
In Selvi v. State of Karnataka (supra), this Court went into an in
depth analysis of the right in the context of lie detector tests used to
H detect alleged criminals. A number of judgments of this Court were
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 901
[R. F. NARIMAN, J.]

examined and this Court, recognizing the difference between privacy in A
a physical sense and the privacy of one's mental processes, held that
both received constitutional protection. This was stated in the following
words:
"224. Moreover, a distinction must be made between the character
of restraints placed on the right to privacy. While the ordinary B
exercise of police powers contemplates restraints of a physical
nature such as the extraction of bodily substances and the use of
reasonable force for subjecting a person to a medical examination,
it is not viable to extend these police powers to the forcible
extraction of testimonial responses. In conceptualising the "right
to privacy" we must highlight the distinction between privacy in a C
physical sense and the privacy of one's mental processes. ·
225. So far, the judicial understanding of privacy in our country
has mostly stres~ed on the protection of the body and physical
spaces from intrusive actions by the State. While the scheme of
criminal procedure as well as evidence law mandates inteiference D
with physical privacy through statutory provisions that enable
arrest, detention, search and seizure among others, the same cannot
be the basis for compelling a person "to impart personal knowledge
about a relevant fact". The theory of interrelationship of rights
mandates that the right against self-incrimination should also be E
read as a component of "personal liberty" under Article
21. Hence, our understanding of the "right ·to privacy" should
account for its intersection with Article 20(3). Furthermore, tht:
"rule against involuntary confessions" as embodied in Sections
24, 25, 26 and 27 of the Evidence Act, 1872 seeks to serve both
the objectives of reliability as well as voluntariness of testimony F
given in a custodial setting. A conjunctive reading of Articles 20(3)
and 21 of the Constitution along with the principles of evidence
law leads us to a clear answer. We must recognise the importance
of personal autonomy in aspects such as the choice between
remaining silent and speaking. An individual's decision to make a · G
statement is the product of a private choice and there should be
no scope for any other individual to inteifere with such autonomy;
especially in circumstances where the person faces exposure to
criminal charges or penalties."
(at pages 369-370) H
902 SUPREME COURT REPORTS (2017] 10 S.C.R.

A 77. All this leads to a discussion on what exactly is the fundamental
right of privacy - where does it fit in Chapter III of the Constitution, and
what are the parameters of its constitutional protection.
78. In an instructive article rep• '~'led in Volume 64 of the California
Law Review, written in 1976, Gary L. Bostwick suggested that the right
B to privacy in fact encompasses three separate and distinct rights.
According to the learned author, these three components are the
components of repose, sanctuary, and intimate decision. The learned
author puts it thus (at pages 1482-1483 ):-
''The extent of constitutional protection is not the only distinction
c between the types of privacy. Each zone protects a unique type
of human transaction. Repose maintains the actor's peace;
sanctuary allows an individual to keep some things private, and
intimate decision grants the freedom to act in an autonomous
fashion. Whenever a generalized claim to privacy is put forward
without distinguishing carefully between the transactional types,
D parties and courts alike may become hopelessly muddled in obscure
claims. The clear standards that appear within each zone are
frequently ignored by claimants anxious to retain some aspect of
their personal liberty and by courts impatient with the indiscriminate
invocation of privacy.
E Finally, it should be recognized that the right of privacy is a
. continually evolving right. This Comment has attempted to show
what findings of fact will lead to the legal conclusion that a person
has a right to privacy. Yet the same findings of fact may lead to
different conclusions of law as time passes and society's ideas
F change about how much privacy is reasonable and what kinds of
decisions are best left to individual choice. Future litigants must
look to such changes in community concerns and national
acceptance of ideas as harbingers of corresponding changes in
the contours of the zones of privacy."
G 79. Shortly thereafter, in 1977. an instructive judgment is to be
found in Whalen v. Roe, 429 U.S. 589 at 598 and 599 by the U.S.
Supreme Court. This case dealt with a legislation by the State of New
York in which the State, in a centralized computer file, registered the
names and addresses of all persons who have obtained, pursuant to a
Doctor's prescription, certain drugs for which there is both a lawful and
H
JUSTICE K S PUTIASWAMY (RETD.) v. UNION OF INDIA 903
[R. F. NARIMAN, J.]

unlawful market. The U.S. Supreme Cou1t upheld the statute, finding A ·
that it would seem clear that the State's vital interest in controlling the ·
distribution of d~ngerous drugs would support.the legislation at hand. In
an instructive footnote - 23 to the judgment; the U.S. Supreme Court
fol.ind that the right to privacy was grounded after Roe (supra) in the
Fourteenth Amendment's concept.of personal liberty. Having thus B
grounded the right, the U.S. Supreme Court in a very significant passage
stated:
"At the very least, it would seem clear that the State's vital interest
in controlling the distribution of dangerous drugs would support a
decision to experiment with new techniques for control ...
c
... Appellees contend that the statute invades a constitutionally
protected "zone of privacy." The cases sometimes characterized
as protecting "privacy" have in fact involved at least two different
kinds of interests. One is the individual interest in avoiding D ...
disclosure of personal matters, and another is the interest in.
independence in making certain kinds of important decisions."
80. In fact, in the Constitution of South Africa of 1996, which
Constitution was framed after apartheid was thrown over by the South
African people, the right to privacy has been expressly declared a~ a E
fundamental freedom as follows:
"10: Huma~ dignity
Everyone has inherent dignity and the right fo have their dignity
respected and protected.
F
12. Freedom and security of tlie person
(1) Everyone has the right to freedom and security of the person,
which includes the right-
(a) notto be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial; G

(c) to be free from all forms of violence from either public or
private sources;
(d) not to be tortured in any way; and
H
904 SUPREME COURT REPORTS [2017] 10 S.C.R.

A (e) not to be treated or punished in a cruel, inhuman or degrading
way.
(2) Everyone has the right to bodily and psychological integrity,
which includes the right-
(a) to make decisions concerning reproduction;
B
(b) to security in and control over their body; and
(c) notto be subjected to medical or scientific experiments without
their informed consent.
14. Privacy
c Everyone has the right to privacy, which includes the right not to
have-
(a) their person or home searched;
(b) their property searched;
D (c) their possessions seized; or
(d) the privacy of their communications infringed."
The Constitutional Court of South Africa in NM & Ors. v. Smith
& Ors., 2007 (5) SA 250 (CC), had this to say about the fundamental
E right to privacy recognized by the South African Constitution:
"131. The right to privacy recognizes the importance of protecting
the sphere of our personal daily lives from the public. In so doing.
it highlights the inter-relationship between privacy. liberty and
dignity as the key constitutional rights which construct our
F understanding of what it means to be a human being. All these
rights are therefore inter-dependent and mutually reinforcing. We
value privacy for this reason at least - that the constitutional
conception of being a human being asserts and seeks to foster the
possibility of human beings choosing how to live their lives within
the overall framework of a broader community. The protection
G of this autonomy. which flows from our recognition of individual
human worth. presupposes personal space within which to live
this life.
132. This first reason for asserting the value of privacy therefore
lies in our constitutional understanding of what it means to be a
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA. 905
[R. F. NARIMAN; J.]

. human being. An implicit part of this aspect of privacy is the right A
to choose what personal information of ours is released into the
public space. The more intimate that information. the more
important it is in fostering privacy. dignity and autonomy that an
individual makes the primary decision whether to release the
information. That decision should not be made by others. This B
aspect of the right to privacy must be respected by all of us, not
only the state... "
. (Emphasis Supplied)
81. In the Indian context, a fundamental rightto privacy would ·
cover at least the following three aspects: C
• Privacy that involves the person i.e. when there is some invasion
by the State of a person's rights relatable to his physical body,
such as the right to move freely;
• Informational privacy which does not deal with a person's body
but deals with a person's mind, and therefore recognizes that P
·an individual may have control over the dissemination of
material that is personal to him. Unauthorised use of such
information may, therefore lead to infringement of this right;
and
• The privacy of choice, which protects an individual's autonomy E
over fundamental personal choices.
For instance,' we can· ground physical privacy or privacy relating
to the body in Articles 19(1)(d) and (e) read with Article 21; ground
personal information privacy und~r Article 21; and the privacy of choice
in Articles 19(1)(a) to (c), 20(3), 21 and 25. The argument based on F
'privacy'
.
being a vague and nebulous concept. need not, therefore, detain
us.
82. We have been referred to the Preamble of the Constitution,
which can be said to reflect core constitutional values. The core value
of the nation being democtatic, for example, would be hollow unless . G
persons in a democracy are able to develop fully in order to make
informed choices for themselves which affect their daily. lives and their
choice of how they are to be governed.
83. In his well-known thesis "On Liberty", John StuartMill, as far
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906 SUPREME COURT REPORTS [2017] 10 S.C.R.

A back as in 1859, had this to say:
" .... the sole end for which mankind are warranted. individually
or collectively. in interferin& with the liberty of action of any of
their number. is self-protection. That the only purpose for which
power can be rightfully exercised over any member of a civilised
B community. against his will, is to prevent harm to others. His own
good, either physical or moral, is not a sufficient warrant. He
cannot rightfully be compelled to do or forbear because it will be
better for him to do so. because it will make him happier. because.
in the o.pinions of others. to do so would be wise. or even right.
These are good reasons for remonstrating with him. or reasoning
c with him. or persuading him. or entreating him. but not for
compelling him. or visiting him with any evil in case he do otherwise.
To justify that, the conduct from which it is desired to deter him
must be calculated to produce evil to someone else. The only
part of the conduct of any one, for which he is amenable to society,
D is that which concerns others. In the part which merely concerns
himself. his independence is. of right. absolute. Over himself.
over his own body and mind. the individual is sovereign.
( ... )
This. then. is the appropriate region of human liberty. It comprises.
E first. the inward domain of consciousness: demanding liberty of
conscience in the most comprehensive sense; liberty of thought
and feeling: absolute freedom of o.pinion and sentiment on all
subjects. practical or speculative. scientific. moral. or theological.
The liberty of expressing and publishing opinions may seem to fall
F under a different principle, since it belongs to that part of the
conduct of an individual which concerns other people; but, being
almost of as much importance as the liberty of thought itself, and
resting in great part on the same reasons, is practically inseparable
from it. Secondly, the principle requires liberty of tastes and
pursuits: of framing the plan of our life to suit our own character:
G of doing as we like. subject to such consequences as may follow:
without impediment from our fellow creatures, so long as what
we do does not harm them, even though they should think our
conduct foolish, perverse, or wrong. Thirdly. from this liberty of
each individual. follows the liberty. within the same limits. of
H. combination among individuals: freedom to unite. for any purpose
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 907
[R. F. NARIMAN, J.]

not involving harm to others: the persons combining being supposed A
to be of full age, and not forced or deceived.·
No society in which these liberties are not. ori the whole. respected.
is free. whatever may be its form or government: and none is
completely free in which they do not exist absolute and unqualified.
The only freedom which deserves the name, is that of pursuing B
our own good in our own way, so Jong as we do not attempt to
deprive others of theirs, or impede their efforts to obtain it."
Noting the importance ofliberty to individuality, Mill wrote:
"It is not by wearing down into uniformity all that is individual In
themselves. but by cultivatii1g it. and calling it forth. within the C
l.imits imposed by the rights and interests of others. that human
beings become a noble and beautiful object of contemplation: and
as the works partake the character of those who do them. by the
same process human life also becomes rich. diversified. and
animating. furnishing more abundant aliment to high thoughts and D
elevating feelings. and strengthening the tie which binds every
individual to the race. by making the race infinitely better worth
belonging to. In proportion to the development of his individuality,
each person becomes more valuable to himself. and is therefore
capable of being more valuable to others. There is a greater
fullness of life about his own existence, and when there is more E
life in the units there is more in the mass which is composed of
them..... The means of development which the individual loses
by being prevented from gratifying his inclinations to the injury of .
others, are chiefly obtained at the expense of the development of
other people .... To be held to rigid rules of justice for the sake of F
others, develops the feelings and capacities which have the good
ofothers for theirobject. But to be restrained in things not affecting
their good, by their mere displeasure, develops nothing valuable,
except such force of character as may unfold itself in resisting
the restraint. .If acquiesced in, it dulls and blunts the whole nature.
To give any fair play to the nature of each. it is essential that G
different persons should be allowed to lead different lives."
(Emphasis Supplied)
84. "Liberty" in the Preamble to the Constitution, is said to be of
thought, expression, belief, faith and worship. This cardinal value can H
908 SUPREME COURT REPORTS [2017] 10 S.C.R.

j

A be found strewn all over the fundamental rights chapter. It can be found
in Articles 19(l)(a), 20,21, 25 and 26. As is well known, this cardinal
constitutional value has been borrowed from the Declaration of the Rights
of Man and of the Citizen of 1789, which defined "liberty" in Article 4 as
follows:
B "Liberty consists in being able to do anything that does not harm
others: thus, the exercise of the natural rights of every man has
no bounds other than those that ensure to the other members of
society the enjoyment of these same rights. These bounds may
be determined only by Law."
c Even in this limited sense, privacy begins where liberty ends -
when others are harmed, in one sense, -issues relatihg to reputation,
, restraints on physical locomotion etc. set in. It is. therefore, difficult to
accept the argument of Shri Gopal Subramanium that "liberty" and
"privacy" are interchangeable concepts. Equally, it is difficult to accept
the Respondents' submission that there. is no concept of "privacy'', but
D only the constitutional concept of "ordered liberty". Arguments of both
sides on this score must, therefore, be rejected.
85. But most important of all is the cardinal value of fraternity
which assures the dignity of the individual. 11 The dignity of the individual
encompasses the right of the individual to develop to the full extent of his
E 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 unauthorized
use of such information. It is clear that Article 21, more than any of the
other Articles in the fundamental rights chapter, reflects each of these
F constitutional values in full, and is to be read in consonance with these
"In 1834, Jacques-Charles Dupont de I' Eure associated the three terms liberty, equality
and fraternity together in the Revue Republicaine, which he edited, as follows:
"Any man aspires to liberty, to equality, but he. cannot achieve it without the assistance
of other men, without fraternity."
Many of our decisions recognize human dignity as being an essential part of the
fundamental rights chapter. For example, see Prem Shankar·Shukla v. Delhi
G Administration, (1980) 3 SCC 526 at paragraph 21, Frani:is Coralie Mullin v.
Administrator, Union Territory of Delhi & Ors., (1981) I SCC 608 at paragraphs 6,
7 and 8, Bandhua Mukti Morcha v. Union oflndia, (1984) 3 SCC 161 at paragraph
10, Maharashtra University of Health Sciences v. Satchikitsa Prasarak Manda!,
(2010) 3 SCC 786 at paragraph 37, Shabnam v. Union oflndia, (2015) 6 SCC 702 at
paragraphs 12.4 and 14 and Jeeja Ghosh v. Union of India, (2016) 7 SCC 761 at
H paragraph 37.
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 909
[R. F. NARIMAN, J.]

values and with the international covenants that we have referred to. In A
the ultimate analysis, 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 Article 21
by itself or in conjunction with other fundamental rights would get
attracted.
B
86. 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. For example, if the restraint on privacy is over
fundamental personal choices that an individual is to make, State action C
can be restrained under Article 21 read with Article 14 if it is arbitrary
and unreasonable; and under Article 21 read with Article 19(1) (a) only
if it relates to the subjects mentioned in Article 19(2) and the tests laid
down by this Court for such legislation or subordinate legislation to pass
muster under the said Article. Each of the tests evolved by this Court, D
qua legislation or executive action, under Article 21 read with Article 14;
or Article 21 read with A11icle 19(1)(a) in the aforesaid examples must
be met in order that State action pass muster. In the ultimate analysis,
the balancing act that is to be carried out between individual, societal
and State interests must be left to the training and expertise of the judicial
mind. E

87. It is important to advert to one other interesting argument
made on the side of the petitioner. According to the petitioners, even in
British India, the right to privacy was always legislatively recognized. F
We were referred to the Indian Telegraph Act of 1885, vintage and in
particular Section 5 thereof which reads as under:- ·
"5. (I) On the occurrence of any public emergency; or in the
interest of the public safety, the Governor General in Council or a
Local Government, or any officer specially authorized in this behalf G
by the Governor General in Council, may-
( a) take temporary possession of any telegraph established,
maimained or Worked by any person licensed under this Act;
or
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910 SUPREME COURT REPORTS (2017] 10 S.C.R.

A (b) order that any message or Class of messages to or from any
person or class of persons, or relating to any particular subject,
brought for transmission by or transmitted or received by any
telegraph. shall not be transmitted, or shall be intercepted or
detained, or shall be disclosed to the Government or an officer
thereof mentioned in the order.
B
(2) If any doubt arises as to the existence of a public emergency,
or whether any act done under sub-section ( 1) was in the interest
of the public safety, a certificate signed by a Secretary to the
Government of India or to the Local Government shall be
. conclusive proofon the point."
c
We were also referred to Section 26 of the Indian Pqst Office
Act, 1898 for the same purpose.
"26. Power to intercept postal articles for public good.-
(1) On the occurrence of any public emergency, or in the interest
D of the public safety or tranquility, the Central Government, or a
- State Government, or any officer specially authorized in this
behalfby the Central or the State Government may, by order in
writing, direct that any postal 'article or class or description of
postal articles in course of transmission by post shall be intercepted
or detained, or shall be disposed of in such manner as the authority
E issuing the order may direct.
(2) If any doubt arises as to the existence of a public emergency,
or as to whether any act done under sub-section (I) was in the
interest of the public safety· or tranquility, a certificate of the Central
Government or, as the case may be, of the State Government
F. shall be conclusive proof on the point."
88. Coming to more recent times, the Right to Information Act,
2005 in Section 8(1 )(j) states as follows:-
"8. Exemption from disclosure of information.-
- (l) Notwithstanding anything contained in this Act, there shall be
G
no obligation to give any citizen,-

(a) to (i) xxx xxx xxx
(j) information which relates to personal information the disclosure
of which has not relationship to any public activity or interest, or
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 911
[R. F. NARIMAN, J.]

which would cause unwarranted invasion of the privacy of the A
individual unless the Central Public Infonnation Officer or the
State PubliC Information Officer or the appellate authority, as the
case may be, is satisfied that the larger public interest justifies the
disclosure of such infonnation:
Provided that the infonnation, which cannot be denied to the B
Parliament or a State Legislature shall not be denied to any person."
It will be noticed that in this statutory provision, the expression
"privacy of the individual" is specifically mentioned. In an illuminating
judgment, reported as Thalappalam Service Co-operative Bank
Limited & Ors., v. State of Kerala & Ors., (2013) 16 SCC 82, this C
Court d.ealt with the right to infonnation as a facet of the freedom of
speech guaranteed to every individual. In certain instructive passages,
this Court held:
"57. The right to privacy is also not expressly guaranteed under
the Constitution oflndia. However, the Privacy Bill, 2011 to provide · D
for the right to privacy to citizens of India and to regulate the
collection, maintenance and dissemination of their personal
infonnation and for penalization for violation of such rights and
matters connected therewith, is pending. In several judgments
including Kharak Singh l~ State of U.P. (AIR 1963 SC 1295 :
(1963) 2 Cri LJ 329), R. Rajagopal 11. State of T.N. (1994) 6 E
SCC 632, People's Union for Ci11il Liberties v. Union of India
(1997) 1 SCC 301 and State of Maharashtra 11. Bharat Shanti
Lal Slzah (2008) 13 SCC 5, this Court has recognized the right to
· privacy as a fundamental right emanating from Article 21 of the
Constitution oflndia. F
58. The right to privacy is also recognized as a basic human right
under Article 12 of the Universal Declaration of Human Rights
Act, 1948, wl1ich states as follows:
"12. No one shall be subjected to arbitrary interference with
his privacy, family, home or correspondence, not to attack upon G
his honour and reputation. Everyone has the right to the -
protection of the law against such interference or attacks ....
59. Article 17 of the International Covenant on Civil and Political
Rights Act, 1966, to which India is a party also protects that right
H
912 SUPREME COURT REPORTS (2017] IO S.C.R.

A and states as follows:
''17. (I) No one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home and correspondence
nor to unlawful attacks on his honour and reputation."
60. This Court in R. Rajagopal, (1994) 6 SCC 632 held as follows:
B (SCC pp. 649-50, para 26)
"(!) ... The right to privacy is implicit in the right to life and
liberty guaranteed to the citizens of this country by Article 21. It
is a 'right to be let alone'. A citizen has a right to safeguard the
privacy of his own. his family, marriage, procreation,
c motherhood, child bearing and education among other matters."
62. The public authority also is not legally obliged to give or provide
information even if it is held, orunder its control, if that infonnation
falls under clause (j) of sub-section (I) of Section 8. Section
8(1)0) is of considerable importance so far as this case is
D concerned, hence given below, for ready reference:-
"8. Exemption from disclosure of information - (I)
Notwithstanding anything contained in this Act, there shall be
no obligation to give any citizen -
(a) to (i) xxx xxx xxx
E
(j) information which relates to personal information the
disclosure of which has no relationship to any public activity or
interest, or which would cause unwarranted invasion of the
privacy of the individual unless the Central Public Information
Officer or the State Public Information Officer or the appellate
F
authority, as the case may be, is satisfied that the larger public
interest justifies the disclosure of such information:
Provided that the information which cannot be denied to
Parliament or a State Legislature shall not be denied to any
person."
63. Section 8 begins with a non obstante clause, which gives that
section an overriding effect, in case of conflict, over the other
provisions of the Act. Even if, there is any indication to the contrary,
still there is no obligation on the public authority to give information
to any citizen of what has been mentioned in clauses (a) to (j).
H
JUSTICE K S PUTIASWAMY (RETD.) v. UNION OF INDIA 913
[R. F. NARIMAN, J.]
I

The public authority, as already indicated, canrot access all the A
information from a private individual, but only those information
which he is legally obliged to pass on to a public.authority by law;
and also only tho,se information to which the public authority can
have access in accordance with law. Even those information. if
personal in nature, can be made available only subject to the B
limitations provided in Section 8(j) of the RTIAct. Right to be left
alone, as propounded in Olmstead v. United States [72 L Ed 944
: 277 US 438 (1-928)], is the most comprehensive of the rights and
most valued by civilized man.
-
64. Recognizing the fact that the right to privacy is a sacrosanct C
facet of Article 21 of the Constitution, the legislation has put a Jot
, of safeguards to protect the rights under Section 8(j), as already.
indicated. If the information sought for is personal and has no
relationship with any imblic activity or interest or it will not subserve
larger public interest, the public authority or the officer concerned
is not legally obliged to provide those information. Reference may D
·be made to a recent judgment of this Court in Girish Ramchandra
Deshpande v. Central Information Commissioner (2013) I SCC
212, wherein this Court held that since there is no bona fide public
interest in seeking information, the disclosure of said information
would cause unwarranted invasion of privacy of the individual
under Section 8( 1)(j) of the Act. Further, if the authority finds that E
information sought for can be made available in the larger public
interest, then the officer should record his reasons in writing before
providing the information, because the person from whom
information is sought for, has also a right to privacy guaranteed
under Article 2 l of the Constitution." F
(at page 112-114)
89. There can be no doubt that counsel for the petitioners are
right in their submission that the legislature has also recognized the
.fundamental right of privacy and, therefore, it is too late in the day to go
.back on this. Mu~h water has indeed flowed under the bridge sin~e the G
decisions in M.P. Sharma (supra) and Kharak Singh (supra).
The Inalienable Nature of the Right to Privacy
90. Learned counsel for the petitioners also referred to another
important aspect of the right of privacy. According lo learned counsel H
914 SUPREME COURT REPORTS [2017] JO S.C.R.

A for the petitioner this right is a natural Jaw right which is inalienable.
Indeed, the reference order itself, in paragraph 12, refers to this aspect
of the fundamental right contained. It was. therefore, argued before us
that given the international conventions referred to hereinabove and the
fact that this right inheres in every individual by virtue of his befog a
human being, such right is not conferred by the Constitution but is only
B
recognized and given the status of being fundamental. There is no doubt
that the petitioners are correct in this submission. However, one important
road block in the way needs to be got over.
91. In Additional District Magistrate, Jabalpur v. S.S. Shukla,
( 1976) 2 SCC 521, a Constitution Bench of this Court arrived at the
c conclusion (by majority) that Article 21 is the sole repository of all rights
to life and personal liberty, and, when suspended, takes away those rights
altogether.
A remarkable dissent was that of Khanna,J. 12
D The learned Judge held:-
"525. The effect of the suspension of the right to move any court
for the enforcement of the right conferred by Article 21, in my
12Khanna, J. was in line to be Chief Justice oflndia but was superseded because of this
dissenting judgment. Nani Palkhivala in an article written on this great Judge's
E supersession ended with a poignant sentence, "To the stature of such a man, the Chief
Justiceship oflndia can add nothing." Seervai, in his monumental treatise "Constitutional
Law of India" had to this to say:
"53. If in this Appendix the dissenting judgment of Khanna J. has not been
considered in detail, it is not for lack of admiration for the judgment, or the
courage which he showed in delivering it regardless of the cost and
consequences to himself. It cost him the Chief Justiceship of India, but it
F gained for him universal esteem not only for his courage but also for his
inflexible judicial independence. If his judgment is not considered in detail it
is because under the theory of precedents which we have adopted, a dissenting
judgment, however valuable, does not lay down the law and the object of a
critical examination of the majority judgments in this Appendix was to show
that those judgments are untenable in law, productive of grave public mischief
and ought to be overruled at the earliest opportunity. The conclusion which
G
Justice Khanna has reached on the effect of the suspension of Article 21 is
correct. His reminder that the rule of law did not merely mean giving effect to
an enacted law was timely, and was reinforced by his reference to the mass
murders of millions of Jews in Nazi concentration camps under an enacted
law. However, the legal analysis in this Chapter confirms his conclusion
though on different grounds from those which he has given." (at Appendix
H pg. 2229).
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 915
[R. F. NARIMAN, J.]

,. opinion, is that when a petition is filed in a comt, the court would A,
have to proceed upon the basis that no reliance can be placed
upon that article for obtaining relief from the court during the
period of emergency. Question then arises as to whether the rule
that no one shall be deprived of his life or personal liberty without
the authority oflaw still survives during the period of emergency
B
despite the Presidential Order suspending the right to move any
court for the enforcement of the right contained in Article 21. The
answer to this question is linked with the answer to the question
as to whether Article 21 is the sole repository of the right to life
and personal liberty. After giving the matter my earnest
consideration, I am of the opinion that Article 21 cannot be C
considered to be the sole repository of the right to life and personal
liberty. The right to life and personal liberty is the most precious
right of human beings in civilised societies governed by the rule of
law. Many modern Constitutions incorporate certain fundamental
rights, including the one relating to personal freedom. According D
to Blackstone, the absolute rights of Englishmen were the rights
of personal security, personal liberty and private property. The
American Declaration oflndependence (1776) states that all men
are created equal, and among their inalienable rights are life, liberty,
and the pursuit of happiness. The Second Amendment to the US
Constitution refers inter alia to security of person, while the Fifth E
Amendment prohibits inter alia deprivation of life and liberty
without due process, oflaw. The different Declarations of Human
Rights and fundamental freedoms have all laid stress upon the
sanctity of life and liberty. They have also given expression in
varying words to the principle that no one shall be derived of his
F
life or liberty without the authority of law. The International
Commission of Jurists, which is affiliated to UNESCO, has been
attempting with, considerable success to give material content to
"the rule oflaw", an expression used in the Universal Declaration
of Human Rights. One of its most notable achievements was the
Declaration of Delhi, 1959.. This resulted from a Congress held G
in.New Delhi attended by jurists from more than 50 countries,
and was based on a questionnaire circulated to 75,000 lawyers.
"Respect for the supreme value of human personality" was stated
to be the basis of all law (see page 21 of the Constitutionaf'and
Adininlstrative Law by 0. Hood Phillips, 3rd Ed.).
H
916 SUPREME COURT REPORTS [2017] IO S.C.R.

A 531. I am unable to subscribe to the view that when right to enforce
the right under Article 21 is suspended, the result would be that
there would be no remedy against deprivation ofa person's life or
liberty by the State even though such deprivation is without the
authority of law or even in flagrant violation of the provisions of
law. The right not to be deprived of one's life or liberty without
B
the authority oflaw was not the creation of the Constitution. Such
right existed before the Constitution came into force. The fact
that the framers of the Constitution made an aspect of such right
a part of the fundamental rights did not have the effect of
exterminating the independent identity of such right and of making
c Article 21 to be the sole repository of that right. Its real effect
was to ensure that a law under which a person can be deprived of
his life or personal liberty should prescribe a procedure for such
deprivation or, according to the dictum laid down by Mukherjea,
J. in Gopalan scase, such law should be a valid law not violative
of fundamental right~ guaranteed by Part Ill of the Constitution.
D
Recognition as fundamental right of one aspect of the pre-
constitutional right cannot have the effect of making things less
favourable so far as the sanctity of life and personal liberty is
concerned compared to the position if an aspect of such right had
not been recognised as fundamental right because of the
E vulnerability of fundamental rights accruing from Article 359. I
am also unable to agree that in view of the Presidential Order in
the matter of sanctity oflife and liberty, things would be worse off
compared to the state -0f law as it existed before the coming into
force of the Constitution."
F (at pages 747 and 751)
92. According to us this is a correct enunciation of the law for the
following reasons:
(i) It is clear that the international covenants and declarations to
which India was a party, namely, the 1948 Declaration and the
G 1966 Covenant both spoke of the right to life and liberty as
being "inalienable". Given the fact that this has to be read as
being part of Article 21 by virtue of the judgments referred to
supra, it is clear that Article 21 would, therefore, not be the
sole repository of these human rights but only reflect the fact
H
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 917
[R. F. NARIMAN, J.]

that they were "inalienable"; that they inhere in every human A
being by virtue of the person being a human being;
(ii) Secondly, developments after this judgment have also made it
clear that the majority judgments are no longer good law and
that Khanna, J. 's dissent is the correct version of the law.
_Section 2(1 )(d) of the Protection of Human Rights Act, 1993 B
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. In I.R. Coelho
(supra), this Court noticed in paragraph 29 that; "The decision C
in ADM Jabalpur, (1976) 2 SCC 521, about the restrictive
reading of the right to life.and liberty stood impliedly overruled
by various subsequent decisions.", and expressly held that these
rights are natural rights that inhere in human beings thus:-
"61. The approach in the interpretation of fundamental rights has D
been evidenced in a Tecent case M. Nagaraj v. Union of lndia,
(2006) 8 SCC 212, in which the Court noted:
"20. This principle of interpretation is particularly apposite
to the inte171retation of fundamental rights. 'ft is a fallacy to
regard fundamental rights as a giftfrom the State to its citizens. E
Individuals possess basic human rights independently of any
constitution by reason of the basic fact that they are members
of the human race. These fundamental rights are important
as they possess intrinsic value. Part Ill of ihe Constitution
does not confer fundamental rights. It confinns their existence F
and gives them protection. Its purpose is to withdraw certain
subjects from the area of politicaj controversy to place them
beyond the reach of majorities and officials and to establish
them as legal principles to be applied by the courts. Every
right has a_ content. Every foundational value is put in Part
Ill as afimdamental right as it has intrinsic value. The c9nverse G
does not apply. A right becomes a fimdamental right because
it has foundational value. Apart from the principles, one has
also to see the structure of the article in which the fimdamental
value is incorporated. Fundamental right is a limitation on
H
918 SUPREME COURT REPORTS [2017] IO S.C.R.

A the power of the State. A Constitution, and in particular that of it
which protects and which entrenches fundamental rights and
freedoms to which all persons in the State are to be entitled is to
be given a generous and purposive construction. In Sakal Papers
(P) Ltd. v. Union of India [AIR 1962 SC 305 : (1962) 3 SCR
842], this Court has held that while considering the nature and
B
content of fundamental rights. the Court must not be too astute to
interpret the language in a literal sense so as to whittle them down.
The Court must interpret the Constitution in a manner which would
enable the citizens to enjoy the rights guaranteed by it in the fullest
measure. An instance of literal and narrow interpretation of a
c vital fundamental right in the Indian Constitution is the early decision
of the Supreme Court in A.K. Gopalan v. State of Madras [AIR
1950 SC 27 : 1950 SCR 88 : 1950 Cri LJ 1383]. Article 21 of the
Constitution provides that no person shall be deprived of his life
and personal liberty except according to procedure established by
Jaw. The Supreme Court by a majority held that 'procedure
D
established by law' means any procedure established by law made
by the Parliament or the legislatures of the State. The Supreme
Court refused to infuse the procedure with principles of natural
justice. It concentrated solely upon the existence of enacted law.
After three decades, the Supreme Court overruled its previous
E decision in A.K. Gopalan [A.K. Gopalan v. State of Madras
(AIR 1950 SC 27: 1950 SCR 88 : 1950 Cri LJ 1383)] and
held in its landmark judgment in Maneka Gandhi v. U11ion of
India, (1978) 1 sec 248, that the procedure co11templated by
Article 21 must answer the test of reasonableness. The Court
further held that the procedure should also be i11 conformity
F
with the principles of naturatjustice. This example is given to
demonstrate an instance of expansive interpretation of a
fundamental right. The expression 'life' in Article 21 does not
connote merely physical or animal existence. The right to life
includes right to live with human dignity. This Court has in
G numerous cases deduced fundamental features which are not
specifically mentioned in Part Ill on the principle that certain
unarticulated rights are implicit in the enumerated guarantees."
(at pages 85-86)

H
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 919
[R. F. NARIMAN, J.]

(iii) Seervai in a trenchant criticism of the majority judgment states A
as follows:
"30. The· result of our discussion so far may be stated thus: Article
21 does not confer a right to life or personal liberty: Article 21
assumes or recognizes the fact that those rights exist and affords
protection against the deprivation of thoserights to the extent · B
there provided. The expres.sion "procedure established by law''
does not- mean merely a procedural law but must also include
substantive laws. The word "law" must mean a vaiid law, that is,
a law within the legislative competence of the legislature enacth1g
it, which law does not violate the limitations imposed on legislative C
power by fundamental rights. "Personal liberty'" means the liberty
of the person from external restraint or coercion. Thus A11icle 21
protects life and personal liberty by putting restrictions on legislative
power, which under Articles 245 and 246 is subject to the provisions
of"this Constitution", and therefore subject to fundamental rights.
The precise_ nature of this protection is difficult to state, first because D
among other things, such protection is dependent on reading Article
21 along with other Articles conferring fundamental rights, such
as Articles 14, 20 and 22(1) and (2); and, secondly, because
fundamental rights from their very nature refer to ordinarx laws
which deal with the subject matter of those rights.
E
31. The right to life and personal liberty which inheres in the body
of a living person is recognized and protected not merely by Article
21 but by the civil and criminal laws oflndia, and it is unfortunate
that in the Habeas Corpus Case this aspect of the matter did not
receive the attention which it deserved. Neither the Constitution
nor any law confers the right to life. That right arises from the F
existence of a living human body. The most famous remedy for
securing personal liberty, the writ of habeas corpus, requires the
production before the court of the body of the person :Hleged to
be illegally detained. The Constitution gives protection against
the deprivation of life and persomil liberty; so do the civil and G
criminal laws in force in India ... "
(See, Seervai, Constitutional Law oflndia (4'h Edition) Appendix
pg. 2219).

H
920 SUPREME COURT REPORTS [2017] 10 S.C.R.

A We are of the view that the aforesaid statement made by the
learned author reflects the correct position in constitutional law. We,
therefore, expressly overrule the majority judgments in ADM Jahalpur
(supra).
93. Before parting with this subject, we may only indicate that the
B majority opinion was done away with by the Constitution's 44'h
Amendment two years after the judgment was delivered. By that
Amendment, Article 359 was amended to state that where a proclamation
of emergency is in operation, the President may by order declare that
the right to move any Court for the enforcement of rights conferred by
Part III of the Constitution may remain suspended for the period during
c which such proclamation is in force, excepting Articles 20 and 21. On
this score also, it is clear that the right of privacy is an inalienable human
right which inheres in every person by virtue of the fact that he or she is
a human being.
Conclusion
D
94. This reference is answered by stating that the inalienable
fundamental right to privacy resides in Article 21 and other fundamental
freedoms contained in Part III of the Constitution ofindia. M.P. Sharma
(supra) and the majority in Kharak Singh (supra), to the extent that
they i'ndicate to the contrary, stand overruled. The later judgments of
E this Court recognizing privacy as a fundamental right do not need to be
revisited. These cases are, therefore, sent back for adjudication on merits
to the original Bench of 3 honourable Judges of this Court in light of the
judgment just delivered by us.

F
CHELAMESWAR, J.
1. I have had the advantage of reading the opinion of my learned
brothers Justice Nariman and Justice Chandrachud. Both of them in
depth dealt with various questions that are required to be examined by
G this Bench, to answer the reference. The factual background in which
these questions arise and the history of the instant litigation is set out in
the judgments of my learned brothers. There is no need to repeat. Having
regard to the importance of the matter, I am unable to desist recording
few of my views regarding the various questions which were debated in
this matter.
H
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 921
[CHELAMESWAR. J.]

2. The following tJi:ee questions, in my opinion, constitute the A·
crux of the enquiry; .
(i) Is there any Fundamental Right to Privacy under the Constitution
~~~ .. . .

(ii) If it exists, where is it located?
(iii) What are the contours of such Right? B
3. These questions arose because Union oflndia and some of the
respondents took a stand that, in view of two larger bench judgments of
this Court', no fundamental right of privacy is guaranteed under the
Constitution.
4. Therefore, at the outset, it is necessary to examine whether it C
is the ratio decidendi of M.P. Sharma and Kharak Singh that under
our Constitution there is no Fundamental Right of Privacy; and if that be·
indeed the ratio of either of the two rulings whether they were rightly
decided? The issue which fell for the consideration of this Court in M.P.
Sharma was - whether seizure of documents from the custody of a
person accused of an offence would amount to "testimonial compulsion" D
prohibited under Article 20(3) of our Constitution?
5. The rule against the "testimonial compulsion" is contained in
Article 20(3) 2 of our Constitution. The expression "testimonial
compulsion" is not found in that provision. The mandate contained in .
Article 20(3) came to be described as the rule against testimonial E
compulsion. The rule against self-incrimination owes its origin to the
revulsion against the inquisitorial methods adopted by the Star Chamber
of England 3 and the same was incorporated in th~ Fifth Amendment of
1
M.P. Sharma & Others v. Salish Chandra & Others, AIR 1954 SC 300 and Kharak
Singh v. State of U.P. & Others, AIR 1963 SC 1295, (both decisions of Constitution F
Bench of Eiglit and Six Judges respectively).
2
"Article 20(3) of the Constitution of India: "No person accused of any offence shall
be compelled to be a witness against himself."
3
"In English law, this principle of protection against self-incrimination had a historical ·
origin. It resulted from a feeling of revulsion against the inquisi!Orial methods adopted
and the barbarous sentences imposed, by the Court of Star Chamber, in the exercise of
.its criminal jurisdiction. This came to a head in the case of Jolin Lilburn, 3 State Trjals G
1315, which brought about the abolition of the Star Chamber and the firm recognition
·of the principle that the accused should not be put on oath and that no evidence should .
be taken from him. This principle, in course of time, developed into its logical extensions,
by way of privilege of witnesses against self-incrimination, when called for giving oral
testimony or for production of documents. A change was introduced by the Criminal
Evidence Act of 1898 by making an accused a competent witness on his own behalf, if he
H
922 SUPREME COURT REPORTS (2017] 10 S.C.R.

A the American Constitution. 4
6. Does the rule against "testimonial compulsion", entrenched as
a fundamental right under our Constitution create a right of privacy? - is
a question not examined in M.P. Sharma. It was argued in M.P. Sharma
"that a search to obtain documents for investigation into an offence is a
B compulsory procuring of incriminatory evidence from the accused himself
and is, therefore, hit by Article 20(3) ... "by necessary implication flowing
from "certain canons of liberal construction". Originally the rule was
invoked only against oral evidence. But the judgment in Boyd v. United
States5, extended the rule even to documents procured during the course
of a constitutionally impermissible search 6•
c
This Court refused to read the principle enunciated in Boyd into
Article 20(3) on the ground: "we have nothing in our Constitution
corresponding to the Fourth Amendment".
This Court held that the power of search and seizure is "an
D overriding power of the State for the protection of social security". It
further held that such power (I) "is necessarily regulated by law"; and
(2) Since the Constitution makers have not made any provision "analogous
to the American Fourth Amendment'', such a requirement could not be
read into Article 20(3).
It was in the said context that this Court referred to the right of
E
privacy:
"A power of search and seizure is in any system of jurisprudence
an overriding powerof the State for the protection of social security
applied for it. But so far as the oral testimony of witnesses and the production of
documents are concerned, the protection against self-incrimination continued as before.
F (See Phipson on Evidence, 9'" Edition, pages 215 and 474).
These principles, as they were before the statutory change in 1898, were carried
into the American legal system and became part of its common law. (See Wigmore on
Evidence, Vol.VIII, pages 301 to 303). This was later on incorporated into their
Constitution by virtue of the Fifth Amendment thereof."
'"Amendment Vofthe American Constitution: "No person ........ shall be compelled
G in any criminal case to be a witnes,: against himself, nor be deprived of life. liberty, or
property, withom due process of law ... "
'116US616
6 A search in violation of the safeguards provided under the Fourth Amendment- "The

right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue,
but 11po11probab/e cause, s11ppo11ed by Oath orajfimwtion, and par.ticularly describing
H the place to be searched, and the persons or things to be seized."
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 923
[CHELAMESWAR, J.]

and that power is necessarily regulated by faw. When the A
Constitution makers have thought fit not to subject such regulation
a
to Constitutional limitations by recognition of fundamental right
to privacy, analogous to the American Fourth Amendment,
we have no justification to import it, into a totally different
fundamental right, by some process of strained construction."
B
7. I see no warrant for a conclusion (which is absolute) that their
lordships held that there is no right of privacy under our Constitution. All
that, in my opinion, their Lordships me,antto say was that contents of the
U.S. Fourth Amendment cannot be imported into our Constitution, while
interpreting Article 20(3). That is the boundary of M.P. Singh 's ratio.
Such a conclusion, in my opinion, requires a further examination in an
c
appropriate case since it is now too well settled that the text of the.
Constitution is only the primary source for understanding the
Constitution and the silences of the Constitution are also to be
ascertained· to understand the Constitution. Even according to the
. American Supreme Court, the Fourth Amendment is not the sole D
repository of the right to privacy 7 • Therefore, values other than those
informing the Fourth Amendment can ground a right of privacy if such
values are a part of the Indian Constitutional framework, and M.P.
Sharma does not contemplate this possibility nor was there an occasion,
therefore as the case was concerned with Article 20(3). Especially so
as the Gopalan eracompartmentalizaVon ruled the roost during the time E
of the M.P. Sharma ruling and there was no Maneka Gandhi
interpretation of Part III as a cohesive and fused code as is presently.
Whether the right of privacy is implied in any other fundamental
right guaranteed under Articles 21, 14, 19 or 25 etc. was not examined in
M.P Sharma. The question whether a fundamental right of privacy is F
implied from these Articles, is therefore, res integra and M.P. Sharma
is no authority on that aspect. I am, therefore, of the opinion that M.P.
Sharma is not an authority for an absolute proposit'ion that there is no
right of privacy under our Constitution; and such is not the ratio of that
judgment. G
7
In Griswold v. Connecticut, 381 US 479, Douglas, J. who delivered the opinion of the
c·ourt opined that the I, II, IV, V and IX Amendments creates zones of privacy. Goldberg,
J. opined that even the XIV Amendment creates a zone of privacy. This undoubtedly'
grounds a right of privacy beyond the IV amendment. Even after Griswold, other cases
like Roe v. Wade, 410 U.S. I 13 (1973) have made this point amply clear by sourcing a
constitutional right of privacy from sources other than the IV amendment.
H
924 SUPREME COURT REPORTS [2017] 10 S.C.R.

A 8. The issue in Kharak Singh was the constitutionality of police
regulations of UP which inter alia provided for 'surveillance' of certain
categories of people by various methods, such as, domiciliary visits at
night', 'verification of movements and absences' etc. Two judgments
(4:2) were delivered. Majority took the view that the impugned regulation
insofar as it provided for 'domiciliary visits at night' is unconstitutional
B
whereas the minority opined the impugned regulation is in its entirety
unconstitutional.
The Court was invited to examine whether the impugned
regulations violated the fundamental rights of Kharak Singh guaranteed
under Articles 21 and 19(1 )(d). In that context, this Court examined the
c scope of the expression 'personal liberty' guaranteed under Article 21.
Majority declared that the expression "personal liberty" occurring under
Article 21: "is used in the Article as compendious term to include
within itself all the varieties of rights which go to make up the
"personal liberties" of man other than those dealt with in several clauses
D of Article 19(1)". In other words, while Article 19(1) deals with particular
species or attributes of that freedom, personal liberty in Article 21 takes
in and comprises the residue."
9. The Kharak Singh majority opined that the impugned regulation
insofar as it provided for 'domiciliary visits' is plainly "violative of Article
E 21". The majority took note of the American decision in Wolf v. Colorado,
338 US 25 wherein it was held that State lacks the authority to sanction
"incursion into privacy" of citizens. Such a power would run counter to
the guarantee of the Fourteenth Amendment8 and against the "very
essence of a scheme of ordered liberty".9 The majority judgment in
Kharak Singh noticed that the conclusion recorded in Wolf 1c Colorado
F is based on the prohibition contained in the Fourth Amendment of the
U.S. Constitution, and a corresponding provision is absent in our
Constitution. Nonetheless, their Lordships concluded that the impugned
regulation insofar as it sanctioned domiciliary visits is plainly violative of
Article 21. For this conclusion, their Lordships relied upon the English
G Common Law maxim that "every· man's house is his castle" 10 • In
substance domiciliary visits violate liberty guaranteed under Article 21.
The twin conclusions recorded, viz., that Article 21 takes within
its sweep various rights other than mere freedom from physical restraint;
8 Frankfurter, J.

•Murphy, J.
H 10 See (1604) 5 Coke 91.:.. Semayne's case
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OFJNDIA 925
[CHELAMESWAR, J.]

and domiciliary visits by police violate the right of Kharak Singh · A
guaranteed·under Article 21, are a grea(leap from the law declared by
this Court in Gopalan 11 - much before R.C. Cooper12 and Maneka
Gandhi13 cases.·. The logical inconsistency in the judgment is that while
on the one hand their Lordships opined that the maxim "every man's
house is his castle" is a part of the liberty under Article 21, concluded on B
the other, that absence of a provision akin to the U.S. FourthAmendment
would negate the claim to the right of privacy. Both statements are
logically inconsistent. In the earlier part of the judgment their Lordships
noticed 14 that it is the English Common Law which formed the basis of
the U.S. Fourth Amendment and is required to be read into Article 21;
but nevertheless declined to read the right of privacy into Article 21. C
This is the incongruence.
10. Interestingly as observed by Justice Nariman, when it came
to the constitutionality of the other provisions impugned in Kharak Singh,
their Lordships held that such provisions are not violative of Article 21
since there is no right to privacy under our Constitution 15• I completely · D
endorse the view of my learned brother Nariman in this regard.
11. I now proceed to examine the salient feaiures of the minority
view.
(i) Disagreement with the majority onthe conclusion thatArticle
21 contains those aspects of personal liberty excluding those E
enumerated under Article 19(1);
(ii) after noticing that Gopalan held that the expression "personal
liberty" occurring under Article 21 is only the antithesis of
physical restraint or coercion, opined that in modern world·
coercion need not only be physicafcoercion but can also take
the form of psychological coercion; F
(iii) "further the right to personal liberty takes in not only a right to
be free from restrictions placed on his movements, but also
free from encroachments on his private life.";
11
· AX Gopalan Vs. State of Madras AIR 1950 SC 27
" RC Cooper Vs. Union of India (1970) 1 SCC 248 G
13
Maneka Gandhi Vs. Union of India (1978) 1 SCC 248
14
See F/N 3 (supra)
15 Nor do we consider that Article 21 has any relevance in the context as was sought to

be suggested by learned Counsel for the petitioner. As already pointed out. the right of
privacy is not a guaranteed right under our Constitution a.nd therefore the attempt to
ascertain the movements of an individual which is merely a manner in which privacy is
invaded is. not an infringement of a fundamental right guaranteed by Part III. H
926 SUPREME COURT REPORTS [2017] 10 S.C.R.

A (iv) Though "our Constitution does not expressly declare the right
to privacy as a fundamental right", "the said right is an essential
ingredient of personal liberty".
In substance Kharak Singh declared that the expression "personal
liberty" in Article 21 takes within its sweep a bundle of rights. Both the
B majority and minority are ad idem on that conclusion. The only point of
divergence is that the minority opined that one of the rights in the bundle
is the right of privacy. In the opinion of the minority the right to privacy
is "an essential ingredient of personal liberty". Whereas the majority
opined that "the right of privacy is not a guaranteed right under our
c Constitution", and therefore the same cannot be read into Article 21 .16
12. I am of the opinion that the approach adopted by the majority
is illogical and against settled principles of interpretation of even an
ordinary statute; and wholly unwarranted in the context of constitutional
interpretation. If a right is recognised by the express language of a
D statute, no question of implying such a right from some provision of such
statute arises. Implications are logical extensions of stipulations in the
express language of the statute and arise only when a statute is silent on
certain aspects. Implications are the product of the interpretative process,
of silences of a Statute. It is by now well settled that there are
implications even in written Constitutions. 17 The scope and amplitude of
E implications are to be ascertained in the light of the scheme and purpose
sought to be achieved by a statute. The purpose of the statute is to be
ascertained from the overall scheme of the statute. Constitution is the
fundamental law adumbrating the powers and duties of the various organs

16
F Kharak Singh v. The State ofU.P. & Others, (1962) I SCR 332 at page 351
" ... Nor do we consider that Article 21 has any relevance in the context as was
sought to be suggested by learned Counsel for the petitioner. As already pointed
out, the right of privacy is not a guaranteed right under our Constitution and
therefore the attempt to ascertain the movements of an individual which is merely
a manner in which privacy is invaded is not an infringement of a fundamental right
guaranteed by Part III."
17 (1947) 74 CLR 31 - Tlze Melbourne Corporation v. T/ze Co111mo11wealtlz
G
" ... Thus, the purpose of the Constitution, and the scheme by which it is intended
to be given effect, necessarily give rise to implications as to the manner in which the
Commonwealth and the States respectively may exercise their powers, vis-a-vis
each other."
Also see: His Holiness Kesavananda Blzarati Sripadagalvar11 v. Stale of Kera/a &
Anotlzer, ( 1973) 4 SCC 225
H
JUSTICE K S f'UTTASWAMY (RETD.) v. UNION OF INDIA 927
[CHELAMESWAR, J.]

of the State and rights of the SUBJECTS 18 and limitations thereon, of A
the State. In my opinion, provisions purportedly conferring power on the
State are in fact limitations on the State power to infringe on the liberty
of SUBJECTS. In the context of the interpretation of a Constitution the
intensity of analysis to ascertain the purpose is required to be more
profound. 19
B
The implications arising from the scheme of the Constitution
are "Constitution's dark matter" and are as important as the express
stipulations in its text. The principle laid down by this Court in
Kesvananda 20 , that the basic structure of the Constitution cannot be
abrogated is the most outstanding and brilliant exposition of the 'dark
. matter' and is a part of our Constitution, though there is nothing in the
c
" Citizens and non-citizens who are amenable to the Constitutional authority of the
State
19
Two categories of Constitutional interpretation - textualist and living constitutionalist
approach are well known. The former, as is illustrated by the Gopalan case, focuses on
the text at hand i.e. the language of the relevant provision. The text and the intent of the
original framers are determinative under the textualist approach. The living D
constill1tionalist approach, while acknowledging the importance of the text, takes into
account a variety of factors as aids to interpret the text. Depending on the nature of
factor used, academics have added further nuance to the this approach of interpretation
· (For instance, in his book titled 'Constitutional Interpretation' (which builds on his
earlier work titled 'Constitutional Fate'), Philip Bobbitt categorizes the six approaches
to interpretation of Constitutions as historical; textual, prudential, doctrinal, structural,
and ethical. The latter four approaches treat the text as less determinative than the E
former two approaches).
This court has progressively adopted a living constitutionalist approach. Varyingly, it
has interpreted the Constitutional text by reference to Constitutional values (liberal
democratic ideals which form the bedrock on which our text sits); a mix of cuJtural,
social, political and historical ethos which surround our Constitutional text; a structuralist
technique typified by looking at the structural divisions of power within the Constitution
F
· and interpreting it as an integrated whole etc. This court need not. in the abstract, fit a
particular interpretative technique within specific pigeonholes ofa living constitutionalist
.interpretation. Depending on which particular source is most useful and what the
matter at hand warrants, the court can resort to variants of a living constitutionalist
interpretation. This lack of rigidity allows for an enduring constitution.
The important criticisms against the living constitutionalist approach are that of
uncertainty and that it can lead to arbitrary exercise of judicial power. The living G
constitutionalist approach in my view is preferable despite these criticisms, for two
reasons. First, adaptability cannot be equated to lack of discipline in judicial reasoning.
Second, it is still the text of the constitution which acquires the requisite interpretative
hues and therefore, it is not as if there is violence being perpetrated upon the text if one
resorts to the living constitutionalist approach.
20
His Holiness Kesavananda Bharati Sripadagalvaru & Others. v. State of Kem/a
& Another (1973) 4 SCC 225 H
928 SUPREME COURT REPORTS [2017] 10 S.C.R.

A text suggesting that principle. The necessity of probing seriously and
respectfully into the invisible portion of the Constitution cannot be ignored
without being disrespectful to the hard earned political freedom and the
declared aspirations of the liberty of 'we the people oflndia'. The text
of enumerated fundamental right5 is "only the primary source of expressed
information" as to what is meant by liberty proclaimed by the preamble
B
of the Constitution.
13. To embrace a rule that the text of the Constitution is the only
material to be looked at to understand the purpose and scheme of the
Constitution would not only be detrimental to liberties of SUBJECTS but
could also render the administration of the State unduly cumbersome.
c Fortunately, this Court did not adopt such a rule of interpretation barring
exceptions like Gopulan (supra) and ADM Jabalpur 1• Else, this Court
could not have found the freedom of press under Article 19(1)(a) and
the other rights22 which were held to be flowing from the guarantee
under Article 21. Romesh Thappar-' and Sakal Papers (supra) are
D the earliest acknowledgment by this Court of the existence of
Constitution's dark matter. The series of cases in which this Court
subsequently perceived various rights in the expression 'life' in Article
21 is a resounding confirmation of such acknowledgment.

21 ADM Jabalpur Vs. S.S. Shukla AIR 1976 SC 1207
E " Sakal Papers (P) Ltd. & Others etc. v. Union of India, AIR 1962 SC 305 at page 311
"Para 28. H must be borne in mind that the Constitution must be interpreted in a
broad way and not in a narrow and pedantic sense. Certain rights have been enshrined
in our Constitution as fundamental and, therefore, while considering the nature and
content of those rights the Court must not be too astute to interpret the language of
the Constitution in so literal a sense as to whittle them down. On the other hand the
F Court must interpret the Constitution in a manner which would enable the citizen
to enjoy the rights guaranteed by it in the fullest measure subject, of course, to
permissible restrictions. Bearing this principle in mind it would be clear that the
right to freedom of speech and expression carries with it the right to publish and
circulate one's ideas, opinions and views with complete freedom and by resorting
to any available means of publication, subject again to such restrictions as could be
legitimately imposed under clause (2) of Article 19. The first decision of this Court
G in which this was recognized is Romeslt Thapar v. State of Madras, AIR 1950 SC
124 .. There, this Court held that freedom of speech and expression includes freedom
of propagation of ideas and that this freedom is ensured by the freedom of circulation.
In that case this Court has also pointed out that freedom of speech and expression
are the foundation of all democratic organisations and are essential for the·proper
functioning of the processes of democracy.... " ·
23 Romesh Thappar Vs. State of Madras AIR 1950 SC 124

H
JUSTICE K S PUTIASWAMY (RETD.) v. UNION OF INDIA 929
[CHELAMESWAR, J.]

14. The U.S. VIth Amendment confers a "right to speedy and A
public trial" to the accused, the right "to be informed of the nature and
cause of the accusation", the right to have the "assistance of counsel for
his defence" etc. None of those rights are expressed in the text of our
Constitution. Nonetheless, this Court declared these rights as implicit in
the text of Articles 14 or 21. The VIIIth Amendment24 of the American
B
Constitution contains stipulations prohibiting excessive bails, fines, cruel
and unusual punishments etc. Cruel punishments were not unknown to
this country. They were in vogue in the middle ages. Flaying a man
alive was one of the favoured punishments of some of the Rulers .of
those days. I only hope that this Court would have no occasion to hear
an argument that the Parliament or State legislatures would be c
constitutionally competent to prescribe cruel punishments like amputation
or blinding or flaying alive of convicts merely an account of a prescription
akin to the VIIIth Amendment being absent in our Constitution. 25
15. This C_ourt by an interpretive process read the right to earn a
livelihood26 , the right to education 27 , the right to speedy trial28, the right D
to protect one's reputation2Y and the right to have an environment free
of pollution 30 in the expression 'life' under Article 21 of the Indian
Constitution.
Similarly, the right to go abroad31 and the rightto speedy trial of
criminal cases 32 were read into the expression liberty occurring under E
Article 21. This court found delayed execution of capital punishment
violated both the rights oflife and 'liberty' guaranteed tinder Article 21 33
24
"VIII Amendment to the American Constitution:
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and .
unusual punishments inflicted."
25 Mithu Etc. V.5. State of Ptmjab Etc. Etc., AIR 1983 SC473 - "/fa law were to provide F
t~tat the offence oftheft will be punishable with the penalty ofthe cutting ofhands, the law
will be bad as violating Article 21. A savage sentence is anathema to the civilized
jurisprudence ofArticle 21."
26 Olga Tellis Vs. Bombay Municipal Corporation (1985) 3 SCC 545
27 Mohini Jain Vs. State ofKarnataka (1992) 3 SCC 666, Unnikrishnan J.P. Vs. State

of Andllra Pradesh (1993) I SCC 645
"Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (l997) 7 SCC 622 G
"'State ofBihar Vs. Lal Krishna Advani (2003) 8 SCC 361
"'Shantistar Builders Vs. Narayan Khimalal Totame (1990) I SCC 520, M.C. Mehta .
Vs. Kamal Nath (2000) 6 SCC 2013
31 Satwant Singh Sawhney Vs. Asst. Passport Officer 1967 (3) SCR 525,
32
In Re. Hussainara Khatoon & Ors. Vs. Home Secretary, Home Secretary, Bihar
· (1980) I SCC81
33 Vatheeswaran, T.V Vs. State ofT.N. (1983) 2 SCC 68 H
930 SUPREME COURT REPORTS [2017] IO S.C.R.

A and also perceived reproductive rights and the individual's autonomy
regarding sterilization to being inherent in the rights of life and liberty
under Art. 2134 •
16. None of the above-mentioned rights are to be found anywhere
in the text of the Constitution.
B 17. To sanctify an argument that whatever is not found in the text
of the Constitution cannot become a part of the Constitution would be
too primitive an understanding of the Constitution and contrary to settled
cannons of constitutional interpretation. Such an approach regarding the
rights and liberties of citizens would be an affront to the collective wisdom
c of our people and the wisdom of the members of the Constituent
Assembly. The fact that some of the members opined during the course
of debates in that Assembly, that the right of privacy need not find an
express mention in the Constitution, would not necessarily lead to the
conclusion that they were oblivious to the importance of the right to
privacy. Constituent Assembly was not a seminar on the right to privacy
D and its amplitude. A close scrutiny of the debates reveals that the
Assembly only considered whether there should be an express provision
guaranteeing the right of privacy in the limited context of 'searches' and
'secrecy of correspondence'. Dimensions of the right of privacy are
much larger and were not fully examined. The question whether the
E expression 'liberty' in Article 21 takes within its sweep the various
aspects of the right of privacy was also not debated. The submissions
before us revolve around these questions. Petitioners assert that the
right to privacy is a part of the rights guaranteed under Article 19 and 21
and other Articles.
F 18. The Constitution of any country reflects the aspirations and
goals of the people of that country voiced through the language of the
few chosen individuals entrusted with the responsibility of framing its
Constitution. Such aspirations and goals depend upon the history of that
society. History invariably is a product of various forces emanating
from religious, economic and political events 35 • The degree of refinement
G of the Constitution depends upon the wisdom of the people entrusted
34 Devika Biswas Vs. Union of India (2016) 10 SCC 726

" However, various forces which go into the making of history are dynamic. Those
who are entrusted with the responsibility of the working of the Constitution must
necessarily keep track of the dynamics of such forces. Evolution of science and growth
of technology is another major factor in the modern world which is equally a factor to
H be kept in mind to successfully work the constitution.
JUSTICE K S PUITASWAMY (RETD.) v. UNION OF INDIA 931
[CHELAMESWAR. J.]

with the responsibility of framing the Constitution. Constitution is not A
merely a document signed by 284 members of the Constituent Assembly.
. It is a politically sacred instrument created by men and women who
risked lives and sacrificed their liberties to fight alien rulers and secured
freedom for our people, not only of their generation but generations to
follow. The Constitution cannot be seen as a document written in ink to
B
replace one legal regime by another. It is a testament created for securing
the goals professed in the Preamble 36 • Part-III of the Constitution is
incorporated to ensure achievement of the objects contained in the
Preamble.37 'We the People' of this country are the intended
beneficiaries38 of the Constitution. It must be seen as a document written
in the blood of innumerable martyrs of Jalianwala Bagh and the like. c
Man is not a creature of the State. Life and liberty are not granted by
.the Constitution. Constitution only stipulates the limitations on the power
of the State to interfere with our life and liberty. Law is essential to
·enjoy the fruits ofliberty; it is not the source ofliberty and emphatically
not the exclusive source.
D
19. To comprehend whether the right to privacy is a Fundamental
Right falling within the sweep of any of the Articles of Part-III, it is
necessary to understand what "fundamental right" and the "right of
privacy" mean conceptually. Rights arise out of custom, contract or
legislation, including a written Constitution. The distinction between an
ordinary legislation and an enacted Constitution is that the latter is believed E

36 Kesavananda Bharati (supra)
"Para 91 .... Our Preamble outlines the objectives of the whole constitution. It
expresses ;'what we had thought or dreamt for so long•·."
37 In re, The Kera/a Education Bill, 1957, AIR 1958 SC 956

" ... To implement and ~ortify these supreme purposes set forth in ttie Preamble, F
Part III of our Constitution has provided for us certain fundamental rights."
38
Bidi Supply Co. v. Union ofllldia & Otliers,·AIR 1956 SC 479 at page 487
"Para 23. After all, for whose benefit was the Constitution enacted? What was the
point of making all this other about fundamental rights? I am clear that the
Constitution is not for the exclusive benefit gover~~1ents and States; it is not only
for lawyers and politicians and officials and those highly placed. It also exists for .
the common man, for the poor and the humble, for those who have businesses at 0
stake, for the "butcher, the baker and the candlestick maker". It Jays down for this
land "a rule oflaw" as understood in the free democracies of the world. It constitutes
India into a Sovereign Republic and guarantees in every page rights and.freedom to
the side by side and consistent with the overriding power of the State to act for the
common good of all.
H
932 SUPREME COURT REPORTS [2017] 10 S.C.R.

A and expected to be a relatively permanent piece of legislation which
cannot be abrogated by a simple majority of representatives elected for
a limited tenure to legislative bodies created thereby. 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, the powers of the executive
B
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.
c 20. The Constitution of India is one such piece of legislation.
Comparable are constitutions of United States of America, Canada and
Australia to mention only some. All such Constitutions apart from
containing provisions for administration of the State, contain provisions
specifying or identifying certain rights of citizens and even some of the
D rights of non-citizens (both the classes of persons could be collectively
referred to as SUBJECTS for the sake of convenience). Such rights
came to be described as "basic", "primordial", "inalienable" or
"fundamental" rights. Such rights are a protective wall against State's
power to destroy the liberty of the SUBJECTS.
E Irrespective of the nomenclature adopted in different countries,
such rights are believed in all democratic countries 39 to be rights which
cannot be abridged or curtailed totally by ordinary legislation and unless
it is established that it is so necessary to abridge or curtail those rights in
the larger interest of the society. Several Constitutions contain provisions
stipulating various attendant conditions which any legislation intending to
F abridge such (fundamental) rights is required to comply with.
21. Provisions of any written Constitution create rights and
obligations, belonging either to individuals or the body politic as such.
For example, the rights which are described as fundamental rights in

G " Bidi Supply Co. v. U11ion of llldia & Others, AIR 1956 SC 479
Para 24. I make no apology for turning to older democracies and drawing inspiration
from them, for though our law is an amalgam drawn from many sources, its firmest
foundations are rooted in the freedoms of other lands where men are free in the democratic
sense of the term. England has no fundamental rights as such and its Parliament is
supreme but the liberty of the subject is guarded there as jealously as the supremacy of
Parliament."
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 933
[CHELAMESWAR, J.]
/

Chapter-III of our Constitution are right5 of individuals whereas provisions A
of dealing with elections to legislative bodies create rights collectively in
the body politic mandating periodic elections. They also create rights in
favour of individuals to participate in such electoral process either as an
elector or to become an elected representative of the people/voters.
22. Though each of the rights created by a Constitution is of great B
importance for sustenance of a democratic form of Government chosen
by us for achieving certain objectives declared in the Preamble, the
framers of our Constitution believed that some of the rights enshrined in.
the Constitution are more crucial to the pursuit of happiness of the people
of India and, therefore, called them fundamental rights. The belief is C
based on the study of human history and the Constitution of other nations
which in turn are products of historical events.
T:he scheme of our Constitution is that the power of the State is
· divided along a vertical axis between the Union and the States and along
the horizontal axis between the three great branches of governance, the
legislative, the executive and the ju,diciary. Such division of power is D
believed to be conducive to preserving the liberties of the people of
a
India. The very purpose of creating written Constitution is to secure
'
justice, liberty and equality to the people of India. Framers of the .
Constitution believed that certain freedoms are essential to enjoy the
fruits of liberty and that the State shall not be permitted to trample upon E
those freedoms except for achieving certain important and specified
objectives in the larger interests of society. Therefore, the authority of
the State for making a law inconsistent with fundamental rights, is cabined
within constitutionally proclaimed limitations.
23. Provisions akin to the Fundamental Rights guaranteed under F
our Constitution exist in American Constitution also40 • They are anterior ·
to our Constitution:
' 24. The inter-relationship of various fundamental rights guaranteed
under Part III of the Constitution and more specifically between Articles
14, 19 and 21 of the Constitution has been a matter of great deal of G
judicial discourse starting from A.K. Gopalan. The march of the law in
this regard is recorded by Justices Nariman and Chandrachud in detail.
25. R.C. Cooper and Maneka Gandhi gave a different orientation
to the topic. Justice Bhagwati in Maneka Gandhi speaking for the
40
The first 8 amendments to the Constitution are some of them. ·
H
934 SUPREME COURT REPORTS [2017] IO S.C.R.

A majority opined41 that in view of the later decision of this Court in R. C.
Cooper, the minority view (in Kharak Singh) must be regarded as
correct and the majority view must be held to be overruled.
Consequently, it was held that any law which deprives any person of the
liberty guaranteed under Article 21 must not only be just, fair and
reasonable, but must also satisfy that it does not at the same time violate
B
one or some of the other fundamental rights enumerated under Article
19, by demonstrating that the law is strictly in compliance with one of
the corresponding clauses 2 to 6 of Article 19.42
41 5.....It was in Kharak Singh v. State ofU.P. & Ors. that the question as to the, proper

scope and meaning of the expression personal liberty' came up pointedly for consideration
c for the first time before this Court. The majority of the Judges took the view "that
personal liberty' is used in the article as a compendious term to include within itself all
the varieties of rights which go to make up the 'personal liberties' of man other than
those dealt with in the several clauses of Article 19(1). In other words, while Article
19(1) deals with particular species or attributes of that freedom, 'personal liberty'
in Article 21 takes in and comprises the residue''. The minority judges, however,
disagreed with this view taken by the majority and explained their position in the
D following words : "No doubt the expression 'personal liberty' is a comprehensive one
and the right to move freely is an attribute of personal liberty. It is said that the freedom
to move freely is carved out of personal liberty and, therefore, the expression 'personal
liberty' in Article 21 excludes that attribute. In our view, this is not a correct approach.
Both are independent fundamental rights, though there is overlapping. There is no
question ofonc being carved out of another. The fundamental right of lifc and personal
liberty has many attributes and some of them are found in Article 19. If a person's
E fundamental right under Article 21 is infringed, the State can rely upon a law to sustain
the action, but that cannot be a complete answer unless the said law satisfies the test
laid down in Article 19(2) so far as the attributes covered by A1ticlc 19(1) arc concerned".
There can be no doubt that in view of the decision of this Court in R. C. Cooper v.
Union of India(2) the minority view must be regarded as correct and the majority view
must be held to have been overruled .......
42 6...... The law, must, therefore, now be taken to be well settled that Article 21 docs
F
not exclude Article 19 and that even ifthere is a law prescribing a procedure for depriving
a person of 'personal liberty' and there is consequently no infringement of the
fundamental right conferred by Article 21, such law, in so far as it abridges or takes
away any fundamental right under Article 19 would have to meet the challenge of that
article. This proposition can no longer be disputed after the decisions in R. C. Cooper's
case, Shambhu Nath Sarkar's case and Haradhan Saha's case. Now. if a law depriving a
G person of 'personal liberty' and prescribing a procedure for that purpose within the
meaning of Article 21 has to stand the test of one or more o(Jhe fundamental rights
conferred under Article 19 which may be applicable in a given $ituation, ex hypothesi it
must also be liable to be tested with reference to Article 14. This was in fact not
disputed by the learned Attorney General and indeed he could not do so in view of the
clear and categorical statement made by Mukhaijea, J., in A. K. Gopalan's case
that Article 21 "presupposes that the law is a valid and binding law under the provisions
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 935
[CHELAMESWAR, J.]

26. In Kharak Singh, Ayyangar, J. speaking for the majority held A
that the expression 'personal liberty' used in Article 21 is a "compendious
term to include within itself all varieties of rights which" constitute the
"personal liberties of a man other than those specified in the several
clauses of Article 19(1)." In other words, Article 19(1) deals with
particular "species or attributes of p,ersonal liberty" mentioned in Article
B
21. "Article 21 takes in and comprises the residue." Such a construction
was not accepted by the minority. The minority opined that both Articles
19 and 21 are independent fundamental rights but they are overlapping. 43
27. An analysis of Kharak Singh reveals that the minority opined
that the right to move freely is an attribute of personal liberty. Minority
only disputed the correctness of the proposition that by enumerating c
certain freedoms in Article 19(1), the makers of the Constitution excluded
those freedoms from the expression liberty in Article 21. The minority
opined that both the freedoms enumerated in Article 19(1) and 21 are
independent fundamental rights, though there is "overlapping".
The expression 'liberty' is capable of taking within its sweep not D
only the right to move freely, guaranteed under Article 19(1 )(d); but also
each one of the other freedoms mentioned under Article 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 E
of the expression liberty is the freedom of an individual to do what he
pleases. But the idea of liberty is more complex than that. Abraham
Lincoln's statement44 that our nation "was conceived in liberty" is equally
relevant in the context of the proclamation contained in our Preamble;
and as evocatively expressed in the words of Justice Brandies;
F
"Those who won our independence believed that the final end of
the State was to make men free to develop their faculties; and
that in its government the deliberative forces should prevail over
of the Constitution having regard to the competence of ttie legislature and the subject it
relates to and docs not infringe any of the fundamental rights which tj1e Constitution
provides for", including Article 14 ..... G
• 3 No doubt the expression "personal liberty" is a comprehensive one and the right to
move freely is< an attribute of personal liberty. ·rt is said that the freedom to move
freely is carved out of personal liberty and, therefore, the expression "personal liberty"
in Art. 21 excludes that attribute. In our view. this is not a con-ect approach. Both are
independent fundamental rights. though there is overlapping.
" Gettysburg Speech
H
936 SUPREME COURT REPORTS [2017] JO S.C.R.

A the arbitrary. They valued liberty both as an end and as a means.
They believed liberty to be the secret of happiness and courage to
be the secret of liberty."
- Whitney v. California, 274 U.S. 357, 375
28. The question now arises as to what is the purpose the framers
B of the Constitution sought to achieve by specifically enumerating some
of the freedoms which otherwise would form part of the expression
'liberty'. To my mind the answer is that the Constituent Assembly thought
it fit that some aspects of liberty require a more emphatic declaration so
as to restrict the authority of the State to abridge or curtail them. The
c need for such an emphatic declaration arose from the history of this
nation. In my opinion, the purpose sought to be achieved is two-fold.
Firstly, to place the expression 'liberty' beyond the argumentative
process 45 of ascertaining the meaning of the expression liberty, and
secondly, to restrict the authority of the State to abridge those enumerated
freedoms only to achieve the purposes indicated in the corresponding
D clauses (2) to (6) of Article 19.46 It must be remembered that the authority
45
That was exactly the State's submission in A.K. Gopalan's case which unfortunately
found favour with this Court.
46
(2) Nothing in sub clause (a) of clause (I) shall affect the operation of any existing
law, or prevent the State from making any law, in so far as such law imposes reasonable
restrictions on the exercise of the right conferred by the said sub clause in the interests
E of the sovereignty and integrity of India, the security of the State, friendly relations
with foreign States, public order, decency or morality or in relation to contempt of
court, defamation or incitement to an offence
(3) Nothing in sub clause (b) of the said clause shall affect the operation of any existing
law in so far as it imposes, or prevent the State from making any law imposing, in the
interests of the sovereignty and integrity oflndia or public order, reasonabl.e restrictions
on the exercise of the right conferred by the said sub clause
F (4) Nothing in sub clause (c) of the said clause shall affect the operation of any existing
law in so far as it imposes, or prevent the State from making any law imposing, in the
interests of the sovereignty and integrity of India or public order or morality, reasonable
restrictions on the exercise of the right conferred by the said sub clause
(5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation ofany
existing law in so far as it imposes, or prevent the State from making any law imposing,
reasonable restrictions on the exercise of any of the rights conferred by the said sub
G
clauses either in the interests of the general public or for the protection of the interests
of any Scheduled Tribe
(6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing
law in so far as it imposes, or prevent the State from making any law imposing, in the
interests of the general public. reasonable restrictions on the exercise of the right
conferred by the said sub clause. and, in particular, nothing in the said sub clause shall
H· affect the operation of any exist.ing law in so far as it relates to, or prevent the State
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 937
[CHELAMESWAR, J.]

of the State to-deprive any person of the fundamental right of liberty is A
· textually unlimited as the only requirement to enable the State to achieve
that result is to make a 'law'. When it comes to deprivation of the
freedoms under Article 19(1 ), the requirement is: (a) that there must not
only be a law but such law must be tailored to achieve the purposes
indicated in the corresponding sub-Article 47 ; and (b) to declare that the
B
various facets of liberty enumerated _in Article 19(1) are available only
to the citizens of the country but not all SUBJECTS. 48 As it is now
clearly held by this Court that the rights guaranteed under Articles 14
and 21 are not confined only to citizens but available even to non-citizens
aliens or incorporated bodies even if they are incorporated in India etc.
29. The inter-relationship of Article 19 and 21, if understood as c
stated in para 28, the authority of the State to deprive any person of his
liberty is circumscribed by certain factors;
(I) It can only be done under the authority of law
(2) 'law' in the context means a valid 1egislati?n. D
(3) If the person whose liberty is sought to be deprived is a citizen
and that liberty happens to be one of the freedoms enumerated in
Article 19(1 ), such a law is required to be a reasonable within the
parameters stipulated in clauses (2) to (6) of Article 19, relevant
to the nature of the entrenched freedom/s, such law seeks to E
abridge.
from making any law imposing, in the interests of the general public, reasonable
restrictions on the exercise of the right conferred by the said sub clause, and, in particular,
nothing in the said sub clause shall affect the operation of any existing law in so faras
it relates to, or prevent the State from making any law relating to,
(i) the professional or technical qualifications necessary for practising any
profession or carrying on any occupation, trade or business, or F
(ii) the carrying on by the State, or by a corporation owned or controlled by the
State, of any trade, business, industry or service, whether to the exclusion,
complete or partial, of citizens or otherwise
47
That was exactly the State's submission in A.K. Gopalan's case which unfortunately
found favour with this Court.
48
See Ham Muller of N11reub11rg Vs. Superintendent, Presidency Jail, Calrntta and
G
Ot/1ers AIR 1955 SC 367, (Paras 34 and 38)
State Trading Corporation ofIndia Ltd. Vs. The Commercial Tclx Officer and Others,
AIR 1963 SC 1811, Para 20
lndo-China Steam Navigation Co. Ltd. Vs. Jasjit Singh, Additional Collector of
Customs, Ca/rntta and Othen, AIR 1964 SC 1140, (Para 35)
Charles Sobraj Vs. Supdt. Central Jail, Tihw; New Delhi, AIR 1978 SC 104, (Para 16)
Louis De Raedt Vs. Union of India and Others, (1991) 3 SCC 554, (Para 13) H
938 SUPREME COURT REPORTS [2017] 10 S.C.R.

A (4) If the person whose liberty is sought to be deprived of is a
non-citizen or even if a citizen is with respect to any freedom
other than those specified in Articles 19(1 ), the law should be just,
fair and reasonable.
30. My endeavour qua the aforesaid analysis is only to establish
B that the expression liberty in Article 21 is wide enough to take in not only
the various freedoms enumerated in Article 19(1) but also many others
which are not enumerated. I am of the opinion that a better view of the
whole scheme of the chapter on fundamental rights is to look at each
one of the guaranteed fundamental rights not as a series of isolated
points, but as a rational continuum of the legal concept of liberty i.e.
c freedom from all substantial, arbitrary encroachments and purposeless
restraints sought to be made by the State. Deprivation of liberty could
lead to curtailment of one or more of freedoms which a human being
possesses, but for interference by the State.
31. Whether it is possible to arrive at a coherent, integrated and
D structured statement explaining the right of privacy is a question that has
been troubling scholars and judges in various jurisdictions fordecades. 49
Considerable amount ofliterature both academic and judicial came into
existence. In this regard various taxonomies 50 have been proposed
suggesting that there are a number of interests and values into which the
E right to privacy could be dissected.
32. Claims for protection of privacy interest~ can arise against
the State and its instrumentalities and against non-State entities - such
as, individuals acting in their private capacity and bodies corporate or
unincorporated associations etc., without any element of State
F participation. Apart from academic literature, different claims based on
different asserted privacy interests have also found judicial support. Cases
arose in various jurisdictions in the context of privacy interests based on
(i) Common Law; (ii) statutory recognition; and (iii) constitutionally
protected claims of the right of privacy.
G 33. I am of the opinion that for answering the present reference,
this Court is only concerned with the question whether SUBJECTS who
"Gobilld v. State of Madhya Pradesh & Another, (1975) 2 SCC 148
"Para 23. . .. The most serious advocate of privacy must confess that there are
serious problems of defining the essence and scope of the right. ... "
so For a detailed account of the taxonomy of the constitutional right to privacy in India
see, Mariyam Kami!, 'The Structure of the Right to Privacy in India' (MPhil thesis,
H University of Oxford, 2015).
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA .939
[CHELAMESWAR, J.]

are amenable to the laws of this country have a Fundamental Right of A
Privacy against the State51 • The text of the Constitution is silent in this
regard. Therefore, it is required to examine whether such a right is
. implied in any one or more of the Fundamental Rights in the text of the
Constitution.
34. To answer the above question, it is necessary to understand B
conceptually identify the nature of the right to privacy.
35. My learned brothers have discussed various earlier decisions
of this Court and of the Courts of other countries, dealing with the claims
of the Right of Privacy. International Treaties and Conventions have
been referred to to establish the existence and recognition of the right to c
privacy in the various parts of the world, and have opined that they are
to be read into our Constitution in order to conclude that there exists a
Fundamental Right to privacy under our Constitutio_n. While Justice
Nariman opined - ·
"94. This reference is ~nswered by stating that the inalienable D
fundamental right to privacy resides in Article 21 and other
fundamental freedoms contained in Part III of the Constitution of
India. M.P. Sharma (supra) and the majority in Kharak Singh
(supra), to the extent that they indicate to the· contrary; stand
overruled. The later judgments of this Court recognizing privacy
as a fundamental right do not need to be revisited. These cases E
are, therefore, sent back for adjudication on merits to the original
Bench of 3 honourable Judges of this Court in light of the judgment
just delivered by us."
Justice Chandrachud held :
F
"(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;" ·
G
36. One of the earliest cases where the constitutionality ofState's
action allegedly infringing the right of privacy fell for the con~ideration
of the US Supreme Court is Griswold et al v. Connecticut, 381 US
479. The Supreme Court of the United States sustained a claim of a
" It is a settled principle oflaw that some of the Fundamental Rights like 14 and 29 are
guaranteed even to non-citizens H
940 SUPREME COURT REPORTS [2017] IO S.C.R.

A privacy interest on the theory that the Constitution itself creates certain
zones of privacy - 'repose' and 'intimate decision. 52 Building on this
framework, Bostwick53 suggested that there are in fact, three aspects
of privacy - "repose'', "sanctuary" and "intimate decision". "Repose"
refers to freedom from unwarranted stimuli, "sanctuary" to protection
against intrusive observation, and "intimate decision'' to autonomy with
B
respect to the most personal life choices. Whether any other facet of
the right of privacy exists cannot be divined now. In my opinion, there
is no need to resolve all definitional concerns at an abstract level to
understand the nature of the right to privacy. The ever growing possibilities
of technological and psychological intrusions by the State into the liberty
c of SUBJECTS must leave some doubt in this context. Definitional
uncertainty is no reason to not recognize the existence of the right of
privacy. For the purpose of this case, it is sufficient to go by the
understanding that 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 I see no reason to doubt that the right to
D
privacy is part of the liberty guaranteed by our Constitution.
37. History abounds with examples of attempts by governments
to shape the minds of SUBJECTS. In other words, conditioning the
thought process by prescribing what to read or not to read; what forms
of art alone are required to be appreciated leading to the conditioning of
E beliefs; interfering with the choice of people regarding the kind of
literature, music or art which an individual would prefer to enjoy. 54 Such
conditioning is sought to be achieved by screening the source of
information or prescribing penalties for making choices which
governments do not approve. 55 Insofar as religious beliefs are concerned,
F a good deal of the misery our species suffer owes its existence to and
centres around competing claims of the right to propagate religion.
Constitution oflndia protects the lib_erty of all .SUBJECTS guaranteeing56
"Griswold v Co111iectic11t 381 US 479 (1965) 487.
"Gary Bostwick, 'A Taxonomy of Privacy: Repose, Sanctuary, and Intimate Decision'
(1976) 64 California Law Review 1447.
'"'Stanley Vs. Georgia, 394 U.S. 557 (1969) ··that the mere private possession of
G
obscene matter cannot constitutionally be made a crime ....
.. ... . St~te has no business telling a man, sitting alone in his own house, what books he
may read or what films he may watch. Our whole constitutional heritage rebels at the
thought of giving government the power to control men's minds.
" (1986) 3 SCC 615, Bijoe Emmanuel & Ors vs State OfKcrala & Others
' 6 25. Freedom of conscience and free profession, practice and propagation of religion.·

H (I) Subject to public order, morality and health and to the other provisions of this Part,
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 941
[CHELAMESWAR, J.]

the freedom of conscience and right to freely profess, practice and A
propagate religion. While the right to freely "profess, practice and
propagate religion" may be a facet of free speech guaranteed under
Article 19(1 )(a), the freedom of the belief or faith in any religion is a
matter of conscience falling within the zone of purely private thought
process and is an aspect of liberty. There are areas other than religious
B
beliefs which form part of the individual's freedom of conscience such
as political belief etc. which form part of the liberty under Article 21.
38. Concerns of privacy arise when the State seeks to intrude
into the body ofSUBJECTS. 57 Corporeal punishments were not unknown
to India, their abolition is of a recent vintage. Forced feeding of certain
persons by the State raises concerns of privacy. An individual's rights to c
refuse life prolonging medical treatment or terminate his life is another
freedom which fall within the zone of the right of privacy. I am conscious
of the fact that the issue is pending before this Court. But in various
other jurisdictions, there is a huge debate on those issues though it is still
a grey area. 58 A woman's freedom of cl)oice whether to b~ar a child or D
abort her pregnancy are areas which fall in the realm of privacy.
Similarly, the freedom to choose either to work or not and the
freedom to choose the nature of the work are areas of private decision
making process. The right to travel freely within the country or go abroad
is an area falling within the right of privacy. The text of our Constitution E
all persons are equally entitled to freedom of conscience and the right freely to profess,
practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the
State from making any law-
(a) regulating or restricting any economic, financial, political or other secular activity
. which may be associated with religious practice; F
(b) providing for social welfare arid reform or the throwing open of Hindu religious
institutions of a public character to all.classes and sections of Hindus.
Explanation I.- The wearing and carrying ofkirpans shall be deemed to be included in
the profession of the Sikh religion.
Explanation II.- In sub-clause (b) of clause {2), the reference to Hindus shall be construed
as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and
the reference to Hindu religious institutions shall be construed accordingly.\ G
51 Ski1111erVs. Oklahoma, 316 U.S. 535 (1942)-There are limits to the extent to which

a legislatively represented majority may conduct biological experiments at the expense
a
of the dignity and personality and natural powers of minority- even those who have
been guilty of what the majority defines as crimes - Jackson, J.
"For the legal debate in this area in US, See Chapter 15.11 of the American Constitutional
'Law by Laurence H. Tribe - 2"' Edition.
H
942 SUPREME COURT REPORTS [2017] IO S.C.R.

A recognised the freedom to travel throughout the country under Article
19(1)(d). This Court has already recognised that such a right takes within
its sweep the right to travel abroad. 59 A person's freedom to choose the
pla~e of his residence once again is a part of his right of privacy 60
recognised by the Constitution oflndia under Article 19(1 )(e) though the
pre-dominant purpose of enumerating the above mentioned two freedoms
B
in Article 19(1) is to disable both the federal and State Governments
from creating barriers which are incompatible with the federal nature of
our country and its Constitution. The choice of appearance and apparel
are also aspects of the right of privacy. The freedom of certain groups
of SUBJECTS to determine their appearance and apparel (such as
C keeping long hair and wearing a turban) are protected not as a part of
the right of privacy but as a part of theirreligious belief. Such a freedom
need not necessarily be based on religious beliefs falling under Article
25. Informational traces are also an area which is the subject matter of
huge debate in various jurisdictions falling within the realm of the right of
D privacy, such data is as personal as that of the choice of appearance and
apparel. Telephone tappings and internet hacking by State, of personal
data is another area which falls within the realm of privacy. The instant
reference arises out of such an attempt by the Union of India to collect
bio-metric data regarding all the residents of this country.
The above-mentioned are some of the areas where some interest
E of privi1cy exists. The examples given above indicate to some extent the
nature and scope of the right of privacy.
40. I do not think that anybody in this country would like to have
the officers of the State intruding into their homes or private property at
will or soldiers quartered in their houses without their consent. I do not
.F think that anybody would like to be told by the State as to what they
should eat or how they should dress or whom they should be associated
with either in their personal, social or political life. Freedom of social and
political association is guaranteed to citizens under Article 19(1 )( c).
Personal association is still a doubtful area. 61 The decision making process
G "Maneka Gandhi Vs. Union of India, (1978) 1SCC248
w Williams Vs. Fears, 179 U.S. 270 (1900)- Undoubtedly the right of locomotion, the
right to remove from one place to another according to inclination, is an attribute of
personal liberty, ..... :.
61 The High Court of AP held that Article 19(l)(c) would take within its sweep the

matrimonial association in T. Sareetha Vs. T. Venkata Subbaiah, AIR 1983 AP 356.
However, this case was later overruled by this Court in Saroj Rani Vs. Sudarshcm
H Kwnar Chadha, AIR 1984 SC 1562
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 943
[CHELAMESWAR, J.]

regarding the freedom of association, freedoms of travel and residence A
are purely private and fall within the realm of the right of privacy. It is
one of the most intimate decisions.
All liberal democracies believe that the State should not have
unqualified authority to intrude into certain aspects of human life and
that the authority should be limited by parameters constitutionai'ly fixed. B
Fundamental rights are the only constitutional firewall to prevent State's
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 ofliberty within the meaning of that expression
in Article 21.
c
41. I am in complete agreement with the conclusions recorded by
my learned brothers in this regard.
42. It goes without saying that no legal right can be absolute.
Every right has limitations. This aspect of the matter is conceded at the
bar. Therefore, even a fundamental right to privacy has limitations. The D
limitations are to be identified on case to case basis depending upon the
nature of the privacy interest claimed. There are different standards of
review to test infractions of fundamental rights. While the concept of
reasonableness overarches Part III, it operates differently acro!ls Articles
(even if only slightly differently across some of them). Having emphatically
interpreted the Constitution's liberty guarantee to contain a fundamental E
right of privacy, it is necessary for me to outline the manner in which
such a right to privacy can be limited. I only do this to indicate the direction
of the debate as the nature of limitation is not at issue here.
43. To begin with, the options canvassed for limiting the right to
privacy include an Article 14 type reasonableness enquiry 62 ; limitation F
as per the express provisions of Article 19; a just, fair and reasonable
basis (that is, substantive due process) for limitation per Article 21; and
finally, a just, fair and reasonable standard per Article 21 plus the
amorphous standard of 'compelling state interest'. The last of these

62
G
Achallenge under Article 14 can be made ifthere is an unreasonable classification and/
or if the impugned measure is arbitrary. The classification is unreasonable if there is no
intelligible differentiajustifying the classification and if the classification has no rational
nexus with the objective sought to be achieved. Arbitrariness, which was first expla'ined
at para 85 of E.P. Royappa v. State of Tamil Nadu. AIR' 1974 SC 555, is very simply
the lack ohny reasoning:
H
944 SUPREME COURT REPORTS [2017] 10 S.C.R.

A four options is the highest standard of scrutiny 63 that a court can adopt.
It is from this menu that a standard of review for limiting the right of
privacy needs to be chosen.
44. At the very outset, if a privacy claim specifically flows only
from one of the expressly enumerated provisions under Article 19, then
the standard of review would be as expressly provided under Article 19.
B
However, the possibility of a privacy claim being entirely traceable to
rights other than Art. 21 is bleak. Without discounting that possibility, it
needs to be noted that Art. 21 is the bedrock of the privacy guarantee. If
the spirit ofliberty permeates every claim of privacy, it is difficult if not
impossible to imagine that any standard oflimitation, other than the one
c under Article 21 applies. It is for this reason that I will restrict the available
options to the latter two from the above described four.
45. The just, fair and reasonable standard of review under Article
21 needs no elaboration. It has also most commonly been used in cases
dealing with a privacy claim hitherto.M Gobindresorted to the compelling
state interest standard in addition to the Article 21 reasonableness enquiry.
D
From the United States where the terminology of 'compelling state
interest' originated, a strict standard of scrutiny comprises two things- a
'compelling state interest' and a requirement of 'narrow tailoring' (narrow
tailoring means that the law must be narrowly framed to achieve the
objective). As a term, compelling state interest does not have definite
E contours in the US. Hence, it is critical that this standard be adopted
with some clarity as to when and in what types of privacy claiim it is
to be used. Only in privacy claims which deserve the strictest scrutiny is
the standard of compelling State interest to be used. As for others, the
just, fair and reasonable standard under Article 21 will apply. When the
compelling State interest standard is to be employed must depend upon
F
the context of concrete cases. However, this discussion sets the ground
rules within which a limitation for the right of privacy is to be found.

S. A. BOBDE, J.
The Orie;in of the Reference
G
I. This reference calls on us to answer questions that would go to.
"-'A tiered level of scrutiny was indicated in what came to be known as the most famous
footnote in Constitutional law that is Footnote Four in United States v. Carotene
Products, 304 U.S. 144 (1938). Depending on the graveness of the right at stake, the
court adopts a correspondingly rigorous standard of scrutiny.
61 District Registrar & Collector, Hyderabad v Canara Bank AIR 2005 SC 186; State of
H Maharashtra v Bharat Shanti Lal Shah (2008) 13 SCC 5.
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 945
[S. A. BOBDE, J.]

the very heart of the liberty and freedom protected by the Constitution A
of India. It arises in the context of a constitutional challenge to the
Aadhaar project. which aims to build a database of personal identity and
biometric information covering every Indian - the world's largest
endeavour of its kind. To the Petitioners' argument therein that Aadhaar
would violate the right to privacy, the Union oflndia, through its Attorney
B
General, raised the objection that Indians could claim no constitutional
right of privacy in view of a unanimous decision of 8 Judges of this
Court in M.P. Sharma v. Satish Chandra' and a decision by a majority
of 4 Judges in Kharak Singh J( State of Uttar Pradeslz2•
2. The question, which was framed by a Bench of three of us and
travels to us from a Bench of five, was the following: c
"12. We are of the opinion that the cases on hand raise far-reaching
questions of importance involving interpretation of the Constitution.
What is at stake is the amplitude of the fundamental rights including
that precious and inalienable right under Article 21. If the
observations made in MP Sharma and Klwrak Singh are to be D
read literally and accepted as the law of this country, the
fundamental rights guaranteed under the Constitution oflndia and
more paiticularly right to liberty under Article 21. would be denuded
of vigour and vitality. At the same time, we are also of the opinion
that the institutional integrity and judicial discipline require that
E
pronouncements made by larger Benches of this Court cannot be
ignored by smaller Benches without appropriately explaining the
reasons for not following the pronouncements made by such larger
Benches. With due respect to all the learned Judges who rendered
subsequent judgments - where right to privacy is asserted or
referred to their Lordships concern for the liberty of human beings, F
we are of the humble opinion that there appears to be certain
amount of apparent unresolved contradiction in the law declared
by this Court.
13. Therefore, in our opinion to give quietus to the kind of ·
controversy raised in this batch of cases once and for all, it is G
better that the ratio decidendi of MP Sharma and Klwrak Singh
is scrutinized and the jurisprudential correctness of the subsequent
decisions of this Court where the right to privacy is either asserted
1 MP Sharma v. Satish Chandra, 1954 SCR 1077
2
Kharak Singh v. State of UttarPradesh, AIR 1963 SC 1295
H
946 SUPREME COURT REPORTS [2017] IO S.C.R.

A or referred be examined and authoritatively decided by a Bench
of appropriate strengthl."
3. We have had the benefit of submissions from Shri Soli Sorabjee,
Shri Gopal Subramanium, Shri Shyam Divan, Shri Arvind Datar, Shri
Anand Grover, Shri Sajan Poovayya, Ms. Meenakshi Arora, Shri Kapil
B Sibal, Shri P.V. Surendranath and Ms. Aishwarya Bhati for the Petitioners,
and Shri K.K. Venugopal. learned Attorney General for the Union of
India, Shri Tushar Mehta, learned Additional Solicitor General for the
Union, Shri Aryama Sundaram for the State of Maharashtra, Shri Rakesh
Dwivedi for the State of Gujarat, Shri Arghya Sengupta for the State of
Haryana, Shri J ugal Ki shore for the State of Chattisgarh and Shri Gopal
c Sankaranarayanan for an intervenor supporting the Respondents. We
would like to record our appreciation for their able assistance in a matter
of such great import as the case before us.
The Effect of M.P. Sharma and Klzarak Singh

D 4. The question of whether Article 21 encompasses a fundamental
right to privacy did not fall for consideration before the 8 Judges in the
M.P. Sharma Court. Rather, the question was whether an improper
search and seizure operation undertaken against a company and its
directors would violate the constitutional bar against testimonial
compulsioi1 contained in Article 20(3) of the Constitution. This Court
E held that such a search did not violate Article 20(3). Its reasoning
proceeded on the footing that the absence of a fundamental right to
privacy analogous to the Fourth Amendment to the United States'
constitution in our own constitution suggested that the Constituent
Assembly chose not to subject laws providing for search and seizure to
F constitutional limitations. Consequently, this Court had no defensible
ground on which to import such a right into Article 20(3), which was, at
any event, a totally different right.
5. M.P. Sharma is unconvincing not only because it arrived at its
conclusion without enquiry into whether a privacy right could exist in our
G Constitution on an independent footing or not, but because it wrongly
took the United States Fourth Amendment - which in itself is no more
than a limited protection against unlawful surveillance - to be a
comprehensive constitutional guarantee of privacy in that jurisdiction.
3 Justice KS Puttaswmny (Retd.) v. Union ofIndia, W.P. (Civil) No. 494 of2012, Order
dated II August 2015
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 947
[S. A. BOBDE, J.]

6. Neither does. the 4:2 majority In Kharak Singh v. State of A
Uttar Pradesh (supra) furnish a basis for the proposition that no
constitutional right to privacy exist~. Ayyangar, J.'s opinion for the majority
found that Regulation 236 (b) of the Uttar Pradesh Police Regulations,
which imer alia enabled the police to make domiciliary visits at night
was "plainly violative of Article 21 "4• In reasoning towards this B
conclusion, the Coutt impliedly acknowledged a constitutional right to
privacy. In particular, it began by finding that though India has no like
guarantee to the Fourth Amendment, "an unauthorised intrusion into
a persons home and the disturbance caused to him thereby, is as it
were the violation of a common law right of a. man - an ultimate
essential of ordered liberty, if not of the very concept of civilization"5• c
It proceeded to affirm that the statement in Semayne '.v case6 that "tile
house of everyone is to him as his castle and fortress as well as for
his defence against injury and violence as for his repose" articulated
an "abiding principle which transcends mere protection of property
rights and expounds a concept of "personal liberty." Thus far, the
Kharak Singh majority makes out the case of the Attorney General. D·
But, in it~ final conclusion, striking down Regulation 236 (b) bei11g violative
of Article 21 could not have been arrived at without allowing that a right
of privacy .was covered by that guanintee.
7. The M.P. Sharma Court did not have the benefit of two
interpretative devices that have subsequently become indispensable tools E
in this Court's approach to adjudicating constitutional cases. The first of
these devices derives from R.C. Cooper v. Union of lndia 7 and its
progeny - including Manefdi Gandhi'' Union of lndia8 .~ which require
us to read Part Ill's guarantees of rights together. Unlike AK Gopalan
I'. State of Madras 9 which held the field in M.P. Sharma s time, rights F
demand to be read as overlapping rather than in silos, so that Part III is
now conceived as a constellation of harmonious and mutually reinforcing
guarantees. Part III does not attempt to delineate rights specifically. I
take the right to privacy, an indispensable part of personal liberty, to
have this character. Such a view would have been wholly untenable in
G
4
. Id.,at p. 350
' Id., at p. 349
6 (1604) 5 Coke 91

'0 970) 1 sec 248
'(1978) 1 sec 248
9 AIR 1950 SC 27
H
948 SUPREME COURT REPORTS (2017] 10 S.C.R.

A the AK Gopalan era.
8. M.P. Sharma also predates the practice of the judicial
enumeration of rights implicit in a guarantee instantiated in the
constitutional text. As counsel for the Petitioners correctly submitted,
there is a whole host of rights that this court has derived from Article 21
B to evidence that enumeration is a well-embedded interpretative practice
in constitutional law. Article 21 's guarantee to the right to 'life' is home
to such varied rights as the right to go abroad (Maneka Gandhi v.
Union of India). the right to livelihood (Olga Tellis 11. Bombay
Municipal C01poration 10 ) and the right to medical care (Paramanand
Katara 11. Union of lndia 11 ).
c
9. Therefore, nothing in M.P. Sharma and Kharak Singh supports
the conclusion that there is no fundamental right to privacy in our
Constitution. These two decisions and their inconclusiveness on the
question before the Court today have been discussed in great detail in
the opinions ofChelameswar J., Nariman J., and Chandrachud J., I agree
D with their conclusion in this regard. To the extent that stray observations
taken out of their context may suggest otherwise, the shift in our
understanding of the nature and location of various fundamental rights in
Part III brought about by R.C. Cooper and Maneka Gandhi has
removed the foundations of M.P. Sharma and Kharak Singh.
E 10. Petitioners submitted that decisions numbering atleast 30 -
beginning with Mathews, J. 's full-throated acknowledgement of the
existence and value of a legal concept of privacy in Gobind v. State of
M.P. 12 - form an unbroken line of cases that affirms the existence of a
constitutional right to privacy. In view of the foregoing, this view should
F be accepted as correct.
The Form of the Privacy Rii:ht
11. It was argued for the Union by Mr. K.K. Venugopal, learned
Attorney General that the right of privacy may at best be a common law
right, but not a fundamental right guaranteed by the Constitution. This
G submission is difficult to accept. In order to properly appreciate the
argument, an exposition of the first principles concerning the nature and
evolution ofrights is necessary.
'° (1985) 3 sec 545
sec 286
11 (1989) 4

"(1975) 2 sec 148
H
. JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 949
[S. A. BOBDE, J.]

12. According to Salmond, rights are interests protected by 'rules A
of right', i.e., by moral or legal rules 13 • When interests are worth
protecting on moral grounds. irrespective of the existence of a legal
system or the operation of law, they are given the name of a natural
right. Accordingly, Roscoe Pound refers to natural law as a theory of
moral qualities inherent in human beings, and to natural rights as deductions
B
demonstrated by reason from human nature 14 • He defines natural rights.
and distinguishes them from legal rights (whether at common law or
under constitutions) in the following way:
"Natural rights mean simply interests which we think ought to
be secured demands which human beings may make which
we think ought to be satisfied. It is perfectly true that neither C
law nor state creates them. But it is fatal to all sound thinking
. to treat them as legal conceptions. For legal rights, the devices
which law employs to secure such of these i11terest.1· as it is
expedient to recognize, are the work of the law and in that
sense the work of the state. " 15 D
Privacy; with which we are here concerned, eminently qualities
as an inalienable natural right, intimately connected to two values whose
protection is a matter of universal moral agreement: the innate dignity
and autonomy of man.
13. Legal systems, which in India as in England, began as E
monarchies, concentrated the power of the government in the person of
the king. English common law, whether it is expressed in the laws of the
monarch and her Parliament, or in the decisions of the Courts, is the
source of what the Attorney General correctly takes to be our own
common law;.. Semayne'.1· case 16, in which it was affirmed that a man's F
home is his castle and that even the law may only enter it with warrant,
clearly shows that elements of the natural right of privacy began to be
received into the common law as early as in 1604. Where a natural law
right could not have been enforced at law, the common Jaw right is
evidently an instrument by which invasions into the valued interest in
question by one's fellow man can be addressed. On the very .same G
rationale as Seymayne, Chapter 17 of the Indian Penal Code, 1860,
13 PJ FITZGERALD, SALMOND ON JURISPRUDENCE 217 (Twelfth Edition, 1966)

" Rosco£ PoUND, THE SPIRIT OF THE COMMON LAW 88 ( 1921)
" fd., at p. 92
16 (1604) 5 Coke 91
H
950 SUPREME COURT REPORTS [2017] 10 S.C.R.

A treats trespass against property as a criminal offence 17 •
14. With the advent of democracy and of limited constitutional
gov,ernment came the state, a new actor with an unprecedented capacity
to lnterfere with natural and common law rights alike. The state differs
in two material ways from the monarch, the previous site in which
B governmental power (including the power to compel compliance through
penal laws) was vested. First, the state is an abstract and diffuse entity,
while the monarch was a tangible, single entity. Second, the advent of
the state came with a critical transformation in the status of the governed
from being subjects under the monarch to becoming citizens, and
themselves becoming agents of political power qua the state. Constitutions
c like our own are means by which individuals - the Preambular 'people
oflndia' -create 'the state', a new entity to serve their interests and be
accountable to them, and transfer a part of their sovereignty to it. The
cumulative effect of both these circumstances is that individuals governed
by constitutions have the new advantage of a governing entity that draws
D its power from and is accountable to them, but they face the new peril of
a diffuse and formless entity against whom existing remedies at common
law are no longer efficacious.
15. Constitutions address the rise of the new political hegemon
that they create by providing for a means by which to guard against its
E capacity for invading the liberties available and guaranteed to all civilized
peoples. Under our constitutional scheme, these means - declared to be
fundamental rights - reside in Part Ill, and are made effective by the
power of this Court and the High Courts under Articles 32 and 226
respectively. This narrative of the progressive expansion of the types of
rights available to individuals seeking to defend their liberties from invasion
F - from natural rights to common law rights and finally to fundamental
11Several other pre-constitutional enactments which codify the common law also
acknowledge a right to privacy, both as between the individuals and the government, as
well as between individuals illfer se. These include:
I. S. 126-9, The Indian Evidence Act, 1872 (protecting certain classes of
communication as privileged)
G 2. S. 4, The Indian Easements Act, 1882 (defining 'easements' as the right to
choose how to use and enjoy a given piece of land)
3. S. 5(2), The Indian Telegraph Act, 1885 (specifying the permissible grounds
for the Government to order the interception of messages)
4. S. 5 and 6, The Bankers Books (Evidence)Act, 1891 (mandating a court order
for the production and inspection of bank records)
5. S. 25 and 26, The Indian Post Office Act, 1898 (specifying the permissible
H grounds for the interception of postal articles)
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 951
[S. A. BOBDE, J.]

rights - is consistent with the account of the development ofrights that A
important strands in constitutional theory present 18 •
16. This comt has already recognized the capacity of constitutions.
to be the means by which to declare recognized natural rights as applicable
qua the state, and of constitutional courts to enforce these declarations.
In Kesavananda Bharati v. State of Kerala 19, Mathew, J. borrows B
from Roscoe Pound to explain this idea in the following terms:
"While dealing with natural rights, Roscoe Pound states on p. 500
of Vol. I of his Jurisprudence:
"Perhaps nothing contributed so much to create and foster hostility
to courts and law and constitutions as this conception of the c
courts as guardians of individual natural rights against the
State and against society; this conceiving of the law as a final
and absolute body of doctrine declaring these individual natural
rights; this theory of constitutions as declaratory of common law
principles, which are also natural-law principles. anterior to the D
State and of superior validity to enactments by the authority of
the state; this theory of Constitutions as having for their
purpose to guarantee and maintain the natural rights of
individuals against the Government and all its agencies.In
effect, it set up the received traditional social, political. and
economic ideals of the legal profession as a super-constitution, E
beyond the reach of any agency but judicial decision." (Emphasis
. supplied) ·
This Court also recognizes the true nature of the relation between
the citizen and the state as well as the true character and utility of Part
Ill. Accordingly, in People'.v Union of Civil Liberties '" Union of F
India 20, it has recently been affirmed that the objective of Pait III is to
place citizens at centre stage and make the state accountable to them.
In Society for Unaided Private Schools of Rajilsthan v. Union of
India 21 , it was held that "[f]u11dame11tal rights have two aspects,
firstly, they act as fetter 011 plenm)' legislative powers, and secondly, 0
they provide conditions for fuller development of our people
including their individual dignity." ·
18 MARTIN LOUGHLIN, THE FOUNDATIONS OF PUBLIC LAW 344-46 (2010)
19
(1973) 4 sec 225, 1461 at p. 783
20 (2005) 2 sec 436
21
(2012) 6 SCC I at 27
H
952 SUPREME COURT REPORTS [2017] 10 S.C.R.

A 17. Once we have arrived at this understanding of the nature of
fundamental rights, we can dismantle a core assumption of the Union's
· argunwnt: that a right must either be a common law right or a fundamental
right. The only material distinctions between the two classes of right-
of which the nature and content may be the same - lie in the incidence
of the duty to respect the right and in the forum in which a failure to do
B
so can be redressed. Common law rights are horizontal in their operation
when they are violated by one's fellow man, he can be named and
proceeded against in an ordinary court of law. Constitutional and
fundamental right~, on the other hand, provide remedy against the violation
of a valued interest by the 'state', as an abstract entity, whether through
C legislation or otherwise, as well as by identifiable public officials, being
individuals clothed with the powers of the state. It is perfectly possible
for an interest to simultaneously be recognized as a common Jaw right
and a fundamental right. Where the interference with a recognized
interest is by the state or any other like entity recognized by Article 12, a
D claim for the violation of a fundamental right would lie. Where the author
of an identical interference is a non-state actor, an action at common
law would lie in an ordinary court.
18. Privacy has the nature of being both a common law right as
well as a fundamental right. Its content, in both forms, is identical. All
that differs is the incidence of burden and the forum for enforcement for
E each form.
The Content of the Rieht of Privacy
19. It might be broadly necessary to determine the nature and
content of privacy in order to consider the extent of its constitutional
F protection. As in the case of 'life' under Article 21, a precise definition
of the term 'privacy' may not be possible. This difficulty need not detain
us. Definitional and boundary-setting challenges are not unique to the
rights guaranteed in Article 21. This feature is integral to many core
rights, such as the right to equality. Evidently, the expansive character
of any right central to constitutional democracies like ours has nowhere
G stood in the way of recognizing a right and treating it as fundamental
where there are strong constitutional grounds on which to do so.
20. The existence of zones of privacy is felt instinctively by all
civilized people, without exception. The best evidence for this proposition
lies in the panoply of activities through which we all express claims to
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 953 .
[S. A. BOBDE, J.]

privacy in our daily lives. We lock our doors, clothe our bodies and set A
passwords to our computers and phones to signal that we intend for our
places, persons and virtual lives to be private. An early case iri the
Supreme Court of Georgia in the United States describes the natural
and instinctive recognition of the need for privacy in the following terms:
"The right of privacy has its foundation in the instincts of nature. B
It is recognized intuitively, consciousness being the witness that
can be called to establish its. existence, Any person whose intellect
is in a normal condition recognizes at once that as to each individual
member of society there are matters private and there are matters
public so far as .the individual is concerned. Each individual as.
instinctively resents any encroachment by the public upon his rights
c
which are of a private nature as he does the withdrawal of those
of his rights which are of a public nature 22 ".
The same instinctive resentment is evident in the present day.as
well. For instance, the non-consensual revelation of personal information
·such as the state of one's health', ·finances; place of residence, location, D
daily routines and so on efface one's sense of personal and financial _.
security. In District Registrar lind Collector v. Canara BanF1, this
Comt observed what the jarring reality of a lack of privacy may entail:
" .. .If the right is to be held to be not attached to the person, then
"we would not shield our account balances, income figures and E
personal telephone and address books from the public eye, but
· might instead go about with the information written on our
'foreheads or our bumper stickers'. '' ·
21. 'Privacy' is "[t]he condition or state of being free.from
public atlention to intrusiori into or interference with one'.v acts or F.
decisions" 24 • The right to be in.this condition has been described as 'the
right to be let alone' 25 • What seems lo be essentiai to privacy is the.
power to seclude oneself and keep others from intruding it in any way.
These intrusions may be physical or visual, and may take any of several
forms including peeping over one's shoulder to eavesdropping directly
G
22
Pav~sich v. New E11gla11d Life Insurance co. ef al., 50 S.E. 68 {Supreme CourCof
Georgia)
" (2005) 1- sec 496 at 48
"BLACK'S LAW DICTIONARY (Bryan Gamer, ed.) 3783 (2004) -
"Samuel D. Warren and Louis D. Brandeis, The Right To Privacy, 4 HARV. L REV. 193
(1890) ' ..
H.
954 SUPREME COURT REPORTS [2017) 10 S.C.R.

A or through instruments. devices or technological aids.
22. Every individual is entitled to perform his actions in private. In
other words. she is entitled to be in a state of repose and to work without
being disturbed, or otherwise observed or spied upon. The entitlement to
such a condition is not confined only to intimate spaces such as the
B bedroom or the washroom but goes with a person wherever he is, even
in a public place. 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. It is in
this sense of an individual's liberty to do things privately that a group of
c individuals, however large, is entitled to seclude itself from others and be
private. In fact, a conglomeration of individuals in a space to which the
rights of admission are reserved - as in a hotel or a cinema hall -must
be regarded as private. Nor is the right to privacy Jost when a person
moves about in public. The law requires a specific authorization for search
D of a person even where there is suspicion26 • Privacy must also mean the
effective guarantee of a zone of internal freedom in which to think. The
disconcerting effect of having another peer over one's shoulder while
reading or writing explains why individuals would choose to retain their
privacy even in public. It is important to be able to keep one's work
without publishing it in a condition which may be described as private.
E The vigour and vitality of the various expressive freedoms guaranteed
by the Constitution depends on the existence of a corresponding guarantee
of cognitive freedom.
23. Even in the ancient and religious texts oflndia, a well-developed
sense of privacy is evident. A woman ought not to be seen by a male
F stranger seems to be a well-established rule in the Ramayana. Grihya
Suiras prescribe the manner in which one ought to build one's house in
order to protect the privacy of its inmates and preserve its sanctity during
the performance of religious rites, or when studying the Vedas or taking
meals. The Artlwslwstra prohibits entry into another's house. without
the owner's consent27 • There is still a denomination known as the
G Ramanuj Sampradaya in southern India, members of which continue
to observe the practice of not eating and drinking in the presence of
anyone else. Similarly in Islam, peeping into others' houses is strictly
prohibited28 • Just as the United States Fourth Amendment guarantees
26 Narcotic Drugs and Psychotropic Substances Act, 1985, s. 42
27 KAUTILYA'S ARTHASHASTRA 189-90 (R. Shamasastri, trans., 1915)
H 28 AA MAUDUDI, HUMAN RIGHTS IN ISLAM 27 (1982)
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 955
[S. A. BOBDE, J.]

privacy in one's papers and personal effects, the Hadith makes'it A
reprehensible to read correspondence between others. In Christianity,
we find the aspiration to live without interfering in the affairs of others in
the text of the Bible29 • Confession of one's sins is a: private act3°. Religious
and social customs affirming privacy also find acknowledgement in our
laws, for example, in the Civil Procedure Code's exemption of a B
pardanashin lady's appearance in Court31 •
24. Privacy, that is to say, the condition arrived at after excluding·
other persons, is a basic pre-requisite for exercising the liberty and the
freedom to perform that activity. The inability to create a condition of
selective seclusion virtually denies an individual the freedom to exercise
that particular liberty or freedom necessary to do that activity. c
25. It is not possible to truncate or isolate the basic freedom to do
an activity in seclusion from the freedom to do the activity itself. The
right to claim a basic condition like privacy in which guaranteed
fundamental rights can be exercised must itself be regarded as a
fundamental right. Privacy, thus, constitutes the basic, irreducible condition D
necessary for the exercise of 'personal liberty' and freedoms guaranteed
by the Constitution. It is the inarticulate major premise in Part III of the
Constitution.
Privacy's Connection to Dignity and Liberty
E
26. Undoubtedly, privacy exists, as the foregoing demonstrates,
as a verifiable fact in all civilized societies. But privacy does not stop at
being merely a descriptive claim. It also embodies a normative one. The
normative case for privacy is intuitively simple. Nature has clothed man,
amongst other things, with d\gnity and liberty so that he may be free to
do what he will consistent with the freedom of another and to develop F
his faculties to the fullest measure necessary to Jive in happiness and.
peace. The Constitution, through its Part Ill, enumerates many of these
freedoms and their corresponding rights as fundamental rights. Privacy
is an essential condition for the exercise of most of these freedoms. Ex
facie, every right which is integral to the constitutional rights to dignity,
G
life, personal liberty and freedom, as indeed the right to privacy is, must
itself be regarded as a fundamental right.
27. Though he did not use the name of 'privacy', it is clear that it
29 Thcssalonians 4: 11 THE BIBLE
30 James 5: 16 Tl!E BIBLE
31 Code of Civil Procedure, 1989, S. 132 H
956 SUPREME COURT REPORTS [2017] 10 S.C.R.

A is whatJ.S. Mill took to be indispensable to the existence of the general
reservoir of liberty that democracies are expected to reserve to their
citizens. In 'the introduction to his seminal On Liberty (1859), he
characterized freedom in the following way:
"This, then, is the appropriate region of human liberty. It
B comprises, first, the inward domain of consciousness;
demanding liberty of conscience, in the most
comprehensive sense; liberty of thought and feeling;
absolute freedom of opinion and sentiment on all subjects,
practical or speculative, scientific, moral, or theological.
The liberty ofexpressing and publishing opinions may seem to fall
c under a different principle, since it belongs to that part of the ·
conduct of an individual which concerns other people; but, being
almost of as much importance as the liberty of thought itself, and
resting ii1 great parton the same reasons, is practically inseparable
from it. Secondly, the principle requires liberty of tastes and
D pursuits; of framing the plan of our life to suit our own
character; of doing as we like, subject to such consequences as
may follow: without impediment from our fellow-creatures, so
long as what we do does not harm them, even though they should
think our conduct foolish, perverse, or wrong. Thirdly; from this
liberty of each individual, follows the liberty, within the same limits,
E of combination among individuals; freedom to unite, for any puipose
not involving harm to others: the persons combining being supposed
to be of full age, and not forced or deceived.
No society in which these liberties are not, on the whole,
respected, is free, whatever may be its form of government;
.F and none is completely free in which they do not exist
absolute and unqualified. The only freedom which deserves
the name, is that of pursuing our own good in our own way,
so long as we do not attempt to deprive others of theirs, or
impede their efforts to obtain it. Each is the proper guardian
G of his own health, whether bodily, or mental and spiritual.
Mankind are greater gainers by suffering each other to live as
seems good to themselves, than by compelling each to live as
seems good to the rest.
Though this doctrine is anything but new, and, to some persons,
H may have the air of a truism, there is no doctrine which stands
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA ·957
[S. A. BOBDE, J.]

moi·e direct! y opposed to the general tendency of existing opinion A
and practice. Society has expended fully as much effort in the
attempt (according to its lights) to compel people to conform to its
notions of personal, as of social excellence." 32 (Emphasis
supplied) · .
28. The first and natural home for a right of privacy is in Article B
2 l atthe 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 perso'nal liberty. There are
innumerable activities which are virtually incapable·ofbeing performed
at all and in many cases with dignity unless an individual is left alone or
is otherwise empowered to ensure his or her privacy. Birth and death C
are events when privacy is required for ensuring dignity anio1igst all
civilized people. Privacy is thus one of those right~ "instrumentally required
if one is to enjoy"33 rights specified and enumerated in the constitutional
text.
29. This Court has endorsed the view that 'life' must mean D
"something more than mere animal existertce" 34 on a number of
occasions, beginning with the Constitution Bench in Sunil Batra (/) v.
Delhi Administration35• Sunil Batra connec;ted this view of Article 21
In
to the constitutional value of dignity. numerous cases, including Francis
Coralie Mullin v. Administrator, U11i0n Territory of DelhP6, this Court E ·
has viewed liberty as closely linked to dignity. Their relationship to the
effect of taking into the protection of 'life' the protection of"faculties of
thiOking and feeling", and of temporary and permanent impairments to
·those faculties. In Francis Coralie Mullin, Bhagwati, J. opined as
follows 37 :
F
"Now obviously, the right to life enshrined in Article 21 cannot be
restricted to mere animal existence. It means something much
more than just physical survival. In Kharak Singh v. State of Uttar
)2 JoHN STUART MILL, ON LIBERTY AND OTHER ESSAYS 15-16 (Stefan Collini ed., 1989)
(1859) G
JJLaurence H. Tribe and Michael C. Dorf, Levels OfGe11emlity In The Deji11itio11 Of .
Rights, 57 U. Cm. L. REv. 1057 (1990) at 1068
" Munn v. Illinois, (I 877) 94 US 113 (Per Field, J.) as cited In Kharak Singh at
p. 347-8
"0978) 4 sec 494
,. (1981) 1 sec 608
37
Francis Coralie M11/li1~at 7 H
958 SUPREME COURT REPORTS [2017] IO S.C.R.

A Pradesh, Subba Rao J. quoted with approval the following passage
from the judgment of Field J. in Munn v. Illinois to emphasize
the quality of life covered by Article 21:
"By the term "life" as here used something more is meant than
mere animal existence. The inhibition against its deprivation
B extends to all those limbs and faculties by which life is enjoyed.
The provision equally prohibits the mutilation of the body or
amputation of an arm or leg or the putting out of an eye or
the destruction of any other organ of the body through which
the soul communicates with the outer world. "

c and this passage was again accepted as laying down the correct
law by the Constitution Bench of this Court in the first Sunil Batra
case (supra). Every limb or faculty through which life is
enjoyed is thus protected by Article 21 and a fortiori, this
would include the faculties of thinking and feeling. Now
deprivation which is inhibited by Article 21 may be total or partial,
D neither any limb or faculty can be totally destroyed nor can it be
partially damaged. Moreover it is every kind of deprivation that is
hit by Article 21, whether such deprivation be permanent or
temporary and, furthermore, deprivation is not an act which is
complete once and for all: it is a continuing act and so long as it
E lasts, it must be in accordance with procedure established by law.
It is therefore clear that any act which damages or injures or
interferes with the use of, any limb or faculty of a person,
either permanently or even temporarily, would be within
the inhibition of Article 21."

F (Emphasis supplied)
Privacy is therefore necessary in both its mental and physical
aspects as an enabler of guaranteed freedoms.
30. It is difficult to see how dignity - whose constitutional
significance is acknowledged both by the Preamble and by this Court in
G its exposition of Article 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 part of both 'life' and 'personal
H liberty' under Article 21, and is intended to enable the rights bearer to
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 959
[S. A. BOBDE, J.]

develop her potential to the fullest extent made possible only in consonance A
with the const,itutional values expressed in the Preamble as well as across
Part III.
Privacy as :i Travelling Right
31. l have already shown that the right of privacy is as inalienable
as the right to perfonn any constitutionally permissible act. Privacy in all B
its aspects constitutes the springboard for the exercise of the freedoms
guaranteed by Article 19( I). Freedom of speech and expression is always
dependent on the capacity to think, read and write in private and is often
exercised in a state of privacy, to the exclusion of those not intended to
be spoken to or communicated with. A peaceful assembly requires the c
exclusion of elements who may not be peaceful or who may have a
different agenda. The freedom to associate must necessarily be t~e
freedom to associate with those of one's choice and those with common
objectives. The requirement of privacy in matters concerning residence
and settlement is too well-known to require elaboration. Finally, it is not
possible to coi1ceive of an individual being able to practice a profession D
or carry on trade, business or occupation without the right to privacy in
practical terms and without the right and power to keep others away
from his work.
32. Ex facie, privacy is essential to the exercise of freedom of
conscience and the right to profess, practice and propagate religion vide E
Article 25. The further right of every religious denomination to maintain
institutions for religious_ and charitable purposes, to manage its own affairs
a,nd to mvn and administer property acquired for such purposes vide
Article 26 also requires privacy, in the sense of non-interference from
the state. Article 28(3) expressly recognizes the right of a student attending F
an educational institution recognized by the state, to be left alone. Such
a student cannot be compelled to take· part in any religious instruction
imparted in any such institution unless his guardian has consented to it.
33. The right of privacy is also integral to the cultural and
educational rights whereby a group having a distinct language, script or G
culture shall have the right to conserve the same. It has also always
been an integral part of the right to own property and has been treated
as such in civil law as well as in criminal law vide all the offences and
torts of trespass known to law.
34. Therefore, privacy is the necessary condition precedent to H
960 SUPREME COURT REPORTS [2017) 10 S.C.R.

A the.enjoyment of any of the guarantees in Pai1 ill. As a result, when it is
claimed by rights bearers before constitutional courts, a right to privacy
may be situated not only in Article 21, but also simultaneously in any of
the other guarantees in Part III. In the current state of things, Articles
19(1),20(3), 25, 28 and 29 are all rights helped up and made meaningful
by the exercise of privacy. This is not an exhaustive list. Future
B
developments in technology and social ordering may well reveal that
there are yet more constitutional sites in which a privacy right inheres
that are not at present evident to us .
•Judicial Enumeration of the Fundamental Ri~ht to Privacy
c 35. There is nothing unusual in the judicial enumeration of one
right on the basis of another under the Constitution. In the case of Article
21 's guarantee of 'personal liberty', this practice is only natural if
Salmond's formulation ofliberty as "incipient rights" 38 is correct. By the
process of enumeration, constitutional courts merely give a name and
specify the core of guarantees already present in the residue of
D constitutional liberty. Over time, the Supreme Court has been able to
·imply by its interpretative process, that several fundamental rights
including the right to privacy emerge out of expressly stated Fundamental
Rights. In Un11i Krishnan, J.P. v. State of A.P. 39, a Constitution Bench
of this Court held that "several unenumerated rights fall within Article
E 21 since personal liberty is of widest amplitude" 40 on the way to
affirming the existence of a right to education. It went on to supply the
following indicative list of such rights, which included the right to privacy:
"30. The following rights are held to be covered under Article 21:
I". The right to go abroad. Satwant Singh v. D. Ramarathnam
F A.P. 0., New Delhi (1967) 3 SCR 525.
2. The right to privacy. Gobind v. State of M.P.., (1975)2 SCC
148. In this case reliance was placed on the American decision in
Griswold v. Connecticut, 381 US 479 at 510.
3. The right against solitary confinement. Sunil Batra v. Delhi
G
Administration, (1978) 4 SCC 494 at 545.
4. The right against bar fetters. Charles Sobhraj v. Supdt.
(Central JailO, (1978)4 SCR 104
38 SALMOND, at p. 228

,. 0 993) sec 1 645
H 40 Id. at 29
JUSTICE KS PUTIASWAMY (RETD.) v. UNION OF INDIA 961
[S. A. BOBDE, J.]

5. The. right to legal aid. MH Hoskot v. State of Maharashtra, A
(1978) 3 sec 544.
6_. The right to speedy trial. Hussainara Khatooi1 v. Hoqe Secy,
~tate of Bihar, ·(1980)1 SCC81

7. The right against hand cuffing. Prem Shankar v. Delhi
Administration (1980) 3 SCC 526 B
8. The right against delayed execution. TV Vatheeswaran v. State
of Tamil Nadu, (1983) 2 SCC 68.
9. The right against custodial violence . Sheela Barse v. State of
Maharashtra, (1983) 2 sec 96. c
10. The Right against public hanging. A.G of India v. Lachmadevi,
(1989) Supp. 1 SCC264
. .
1l. Doctor's Assistance. Parama11anda Katra v. Union of
India, ( 1989) 4 sec 286.
12. Shelter. Santistar Builder v. N.Kl. Totame, (1990) l .SCC D
520"
In the case of privacy, the case for judicial enumeration is
especially strong. It is no doubt a fair implication from Article 21, but ·
also more. Privacy is be a right or condition, "logically presupposed"41
by rights expressly recorded in the constitutional text, if they are to make E
sense. As a result, privacy is inore than merely a derivative constitutional
right. It is the necessary and unavoidable logical entailment of rights
guaranteed in thetext of the constitution.
36. Not recognizing character of privacy as a fundiimental right is
likely to erode the very sub-stratum of the personal liberty guarimteed F
by the constitution. The decided cases clearly demonstrate that particular
fundamental rights could not have been exercised w!thout the recognition
of the -right of privacy as a fundamental right. Any derecognition or
diminution in the importance of the right of privacy will weaken the
. fundamental rights which have been expressly conferred. G
37. Before proceeding to the question of how constitutional courts
are to review whether. a violation of privacy is unconstitutional,
.
three
Laurence H. Tribe And Michael C. Dorf, Levels Of Generality In The Definition Of
41

Rights, 57 U. CHt. L. REV. 1057 (1990) at p. 1068
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962 SUPREME COURT REPORTS [2017] IO S.C.R.

A arguments from the Union and the states deserve to be dealt with
expressly.
38. The Learned Attorney General relied on cases holding that
there is no fundamental right to trade in liquor to submit by analogy that
there can be no absolute right to privacy. Apprehensions that the
B recognition of privacy would create complications for the state in its
exercise of powers is not well-founded. The declaration of a right cannot
be avoided where there is good constitutional ground for doing so. It is
only after acknowledging that the right of privacy is a fundamental right,
that we can consider how it affects the plenary powers of the state. In
any event, the state can always legislate a reasonable restriction to protect
c and effectuate a compelling state interest, like it may while restricting
any other fundamental right. There is no warrant for the assumption or
for the conclusion that the fundamental right to privacy is an absolute .
right which cannot be reasonably restricted given a sufficiently compelling
state interest.
D 39. Learned Additional Solicitor General, Shri Tushar Mehta listed
innumerable statutes which protect the right of privacy wherever
necessary and urged that it is neither necessary nor appropriate to
recognize privacy as a fundamental right. This argument cannot be
accepted any more in the context of a fundamental right to privacy than
E in the context of any other fundamental right. Several legislations protect
and advance fundamental rights, but their existence does not make the
existence of a corresponding fundamental right redundant. This is
obviously so because legislations are alterable and even repealable unlike
fundamental rights, which, by design, endure.
F 40. Shri Rakesh Dwivedi, appearing for the State of Gujarat, while
referring to several judgments of the Supreme Comt of the United States,
submitted that only those privacy claims which involve a 'reasonable
expectation of privacy' be recognized as protected by the fundamental
right. It is not necessary for the purpose of this case to deal with the
particular instances of privacy claims which are to be recognized as
G implicating a fundamental right. Indeed, it would be premature to do.
The scope and ambit of a constitutional protection of privacy can only
be revealed to us on a case-by-case basis.
The Test for Privacy
41. One way of determining what a core constitutional idea is,
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 963
[S. A. BOBDE, J.]

could be by considering its opposite, which shows what it is not. A
Accordingly, we understand justice as the absence of injustice, and
freedom as the absence of restraint. So too privacy may be understood
as the antonym of publicity. In law, the distinction between what is
considered a private trust as opposed to a public trust illuminates what I
take to be core and irreducible attributes of priv:icy. In Deoki Nandan B
v. Murlidhar" 2; four judges of this Court articulated the distinction in
the following terms:
"The distinction between a private trust and a public trust is that
whereas in the former the beneficiaries are specific individuals, in
the latter they are the general public or a class thereof. While in
the former the beneficiaries are persons who are ascertained or
c
capable of being ascertained, in the latter they constitute a body·
which is incapable of ascertainment.''
This same feature, namely the right of a member of public as
such to enter upon or use such property, distinguishes private property
from public property and private ways from public roads. D
42. Privacy is always connected, whether directly or through its
effect on the actions which are sought to be s~cured from interference,
to the act of associating with others. In this sense, privacy is usually best
understood as a relational right, even as its content frequently concerns
the exclusion of others from one's society. E

43. The trusts illustration also offers us a workable test for ·
determining when a constitutionally cognizable privacy claim has been
made, and the basis for acknowledging that the existence of such a
claim is context-dependent. To exercise one's right to privacy is to choose
and specify on two levels. It is to choose which of the various activities F
that are taken in by the general residue of liberty available to her she
would like to perform, and to specify whom to include in one's circle
when performing them. It is also autonomy in the negative, and takes in
the choice and specification of which activities not to perform and which
persons to exclude from one's circle. Exercising privacy is the signaling 0
of one's intent to these specified others - whether they are one's co-
participants or simply one's audience - as well ·as to society at large, to
claim and exerci~e the right. To check for the existence of an actionable·
42
(I 956) SCR 756
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964 SUPREME COURT REPORTS [2017] 10 S.C.R.

A claim to privacy, all .that needs to be considered is if such an intent to
choose and specify exists, whether directly in its manifestation in the
rights bearer's actions, or otherwise.
44. Such a fonnulation would exclude three recurring red herrings
in the Respondents' arguments before us. Firstly. it would not admit of
B arguments that privacy is limited to property or places. So, for extimple,
taking one or more persons aside to converse at a whisper even in a
public place would clearly signal a claim to privacy, just as broadcasting
one's words by a loudspeaker would signal the opposite intent. Secondly,
this fonnulation would not reduce privacy to solitude. Reserving the rights
to admission at a large gathering place, such as a Cinema hall or club,
c would signal a claim to privacy. Finally, neither would such a formulation
require us to hold that private information must be information. that is
inaccessible to all others ..
Standards of Review of Privacy Violations
D 45. There is no doubt that privacy is integral to the several
fundamental rights recognized by Part III of the Constitution and must
be regarded as a fundamental right itself. The relationship between the
right of privacy and the patticular fundamental right (or rights) involved
would depend on the action interdicted by a particular law. At a minimum,
since privacy is always integrated with personal liberty, the constitutionality
E of the law which is alleged to have invaded into a rights bearer's privacy
must be tested by the same standards by which a law which invades
personal liberty under Article 21 is liable to be tested. Under Article 21,
the standard test at present is the rationality review expressed in Maneka
Gandhi's case. This requires that any procedure by which the state
F interferes with an Article 21 right to be "fair; just and reasonable, not
fanciful, oppressive or arbitrary" 43 •
46. Once it is established that privacy imbues every constitutional
freedom with its efficacy and that it can be located in each of them, it
must follow that interference with it by the state must be tested against
G whichever one or more Part III guarantees whose enjoyment is curtailed.
As a result, privacy violations will usually have to answer to tests in
addition to the one applicable to Article 21. Such a view would be wholly
consistent with R.C. Cooper v. Union of India.

"Maneka Gandhi v. Union of India ( 1978) I SCC 248 at para 48
H
JUSTICE K S PUTIASWAMY (RETD.) v. UNION OF INDIA 965
[S. A. BOBDE, J.]

. Conclusion A
47. In view of the foregoing, I answer the reference before us in
the following terms:
a. The ineluctable conclusion must be that an inalienable
constitutional righno privacy inheres in Part III of the Constitution.
M.P. Sharma and the majority opinion in Kharak Singh must B
stand overruled to the extent that they indicate to the contrary.
b. The right to privacy is inextricably bound up with all exercises
ofhuman liberty - both as it is specifically enumerated across
Part III, and as it is guaranteed in the residue under Article 21. It
. . . ·c
is distributed across the various articles in Part III and, mutati.'i
mutandis, takes the form of whichever of their enjoyment its
violation curtails.
c. Any .interference with privacy by an entity covered by Article
12',s description of the 'state' must satisfy the tests applicable to
whichever one or more of the Part III freedoms the interference D
affects.

ABHAY MANOHAR SAPRE, J.
1. I have had the benefit of reading the scholarly opinions of my E
esteemed learned brothers, Justice J. Chelameswar, Justice S.A. Bobde, ·
. Justice Rohinton Pali Nariman and Dr. Justice D. Y. Chandrachud. Having
· read them carefully, I have nothing more useful to add to the reasoning
·and the conclusion arrived at by my esteemed brothers in their respective
opinions. F .
2. However, keeping in view the importance of the· questions
referred to this Bench, J wish to add only few words of concurrence of
my.own.
3. In substance, two questions were referred to this Nine Judge
Bench, first, whetherthe law laid down in the case ofM.P.Sharma and a
others vs. Satish Chandra, District Magistrate Delhi & Ors., AIR
1954 SC 300 and Kharak Singh vs. State of Uttar Pradesh & Ors.
AIR 1963 SC 1295 insofar as it relates to the "right to privacy of an
individual" is correct and second, whether "right to privacy" is a
fundamental right under Part III of the Constitution of India?_
H
966 SUPREME COURT REPORTS [2017] IO S.C.R.

A 4. Before I examine these two questions, it is apposite to take
note of the Preamble to the Constitution, which, in my view, has bearing
on the questions referred.
5. The Preamble to the Constitution reads as under:-
"WE, THE PEOPLE OF INDIA, having solemnly resolved
B to constitute India into a SOVEREIGN SOCIALIST
SECULAR DEMOCRATIC REPUBLIC and to secure to
all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
c EQUALITY of status and of opportunity;
And to promote among them all
FRATERNITY assuring the dignity of the individual and
the unity and integrity of the Nation;"
D 6. Perusal of the words in the Preamble would go to show that
every word used therein was cautiously chosen by the founding fathers
and then these words were arranged and accordingly placed in a proper
order. Every word incorporated in the Preamble has significance and
proper meaning.
7. The most important place of pride was given to the "People of
E India" by using the expression, WE, THE PEOPLE OF INDIA, in the
beginning of the Preamble. The Constitution was accordingly adopted,
enacted and then given to ourselves.
8. The keynote of the Preamble was to lay emphasis on two
positive aspects-one, "the Unity ofthe Nation" and the second "Dignity
F of the individuar'. The expression "Dignity" carried with it moral and
spiritual imports. It also implied an obligation on the part of the Union to
respect the personality of every citizen and create the conditions in which
every citizen would be left free to find himself/herself and attain self-
fulfillment.
G 9. The incorporation of expression "Dignity of the individuaf'
in the Preamble was aimed essentially to show explicit repudiation of
what people of this Country had inherited from the past. Dignity of the
individual was, therefore, always considered the prime constituent of
the fraternity, which assures the dignity to every individual. Both
expressions are interdependent and intertwined.
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 967
[ABHAY MANOHAR SAPRE, J.]

10. In my view, unity and integrity of the Nation cannot survive A
unless the dignity of every individual citizen is guaranteed. It is
inconceivable to think of unity and integration without the assurance to
an individual to preserve his dignity. In other words, regard and respect
by every individual for the dignity of the other one brings the unity and
integrity of the Nation.
B
11. 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. They, in
fact, form a union. If these expressions are divorced from each other, it
will defeat the very purpose of democracy.
c
12. In other words, liberty cannot be divorced from equality so
also equality cannot be divorced from liberty and nor can liberty and
equality be divorced from fraternity. The meaning assigned to these
expressions has to be given due weightage while interpreting Articles of
Part III of the Constitution. D
13. It is, therefore, the duty of the Courts and especially this Court
as sentinel on the qui vive to strike a balance between the changing
needs of the Society and the protection of the rights of the citizens as
and when the issue relating to the infringement of the rights of the citizen
comes up for consideration. Such a balance can be achieved only through E
securing and protecting liberty, equality and fraternity with social and
political justice to all the citizens under rule of law (see-S.S. Bola &
Ors. vs. B.D. Sardana & Ors. 1997 .(8) SCC 522).
14. Our Constitution has recognized certain existing cherished
rights of an individual. These rights are incorporated in different Articles F
of Part III of the Constitution under the heading-Fundamental Rights.
In so doing, some rights were incorporated and those, which were not.
incorporated, were read in Part III by process of judicial interpretation
depending upon the nature of right asserted by the citizens on case-to-
case basis.
G
15. It was not possible for the framers of the Constitution to
incorporate each and every right be that a natural or common law right
of an individual in Part III of the Constitution. Indeed, as we can see
whenever occasion arose in the last 50 years to decide as to whether

H
968 SUPREME COURT REPORTS [2017) 10 S.C.R.

A any particular right alleged by the citizen is a fundamental right or not,
this Court with the process of judicial interpretation recognized with
remarkable clarity several existing natural and common law rights of an
individual as fundamental rights falling in Part III though not defined in
the Constitution. It was done keeping in view the fact that the Constitution
is a sacred living document and, hence, susceptible to appropriate
B
interpretation of its provisions based on changing needs of "We, the
People" and other well defined parameters.
16. Article 21 is perhaps the smallest Article in tenns of words
(18) in the Con~titution. It is the heart of the Constitution as was said by
Dr. B. R. Ambedkar. It reads as under: -
c
"No person shall be deprived of his life or personal liberty
except according to procedure established by law."
17. This Article is in Part III of the Constitution and deals with
Fundamental rights of the citizens. It has been the subject matter of
D judicial interpretation by this Court along with other Articles of Part III
in several landmark c;1ses beginning from A.K.Gopalan vs. State of
Madras, AIR 1950 SC 27 up to Mohd Arif @ Ashfaq vs. Registrar,
Supreme Court of Iodia (2014) 9 SCC 737. In between this period,
several landmark judgments were rendered by this Court.

E 18. Part III of the Constitution and the true meaning of the
expression "personal liberty" in Article 21 and what it encompasses
was being debated all along in these cases. The great Judges of this
Court with their vast knowledge, matured thoughts, learning and with
their inimitable style of writing coupled with the able assistance of great
lawyers gradually went on to expand the meaning of the golden words
F (personal liberty) with remarkable clarity and precision.
19. The learned Judges endeavored and expanded the width of
the fundamental rights and preserved the freedom of the citizens. In the
process of the judicial evolution, the law laid down in some earlier cases
was either overruled or their correctness doubted.
G
20. It is a settled rule of interpretation as held in the case of
Rustom Cavasjee Cooper vs. Union of India, (1970) 1 SCC 248
that the Court should always make attempt to expand the reach and
ambit of the fundamental rights rather than to attenuate their meaning
and the content by process of judicial construction. Similarly, it is also a
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 969
[ABHAY MANOHAR SAPRE. J.]

settled principle of law laid down in His Holiness Kesavananda A
Bharati Sripadagalvaru vs. State of Kerala & Anr., (1973) 4 SCC
225 that the Preamble is a part of the Constitution and, therefore. while
interpreting any provision of the Constitution or examining any
constitutional issue or while determining the width or reach of any
provision or when any ambiguity or obscurity is noticed in any provision, B
which needs to be clarified, or when the language admits of meaning
more than one, 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 be.
21. In my considered opinion, the two questions referred herein
along with few incidental questions arising therefrom need to be examined
c
carefully in the light of law laid down by this Court in several decided
cases. Indeed, the answer to the questions can be found in the law laid
down in the decided cases of this Court alone and one may not require
taking the help of the law laid down by the American Courts.
22. It is true that while interpreting our laws, the English decisions D
do guide us in reaching to a particular conclusion arising for consideration.
The law reports also bear the testimony that this Court especially in its
formative years has taken the help of English cases for interpreting the
provisions of our Constitution and other laws. ·
23. However, in the last seven decades, this Court has interpreted E
our Constitution keeping in view the socio, economic and political
conditions of the Indian Society, felt need of, We, the People of this
Country and the Country in general in comparison to the conditions
prevailing in other Countries.
24. Indeed, it may not be out of place to state that this Court while F
interpreting the provisions oflndian Companies Act, which is modeled
on English Company's Act has cautioned that the Indian Courts wiH
have to adjust and adapt, limit or extend, the principles derived from
English decisions, entitled as they are to great respect, suiting the
conditions to the Indian society as a whole. (See - Hind Overseas (P) 0
Ltd. vs. Raghunath Prasad Jhunjhunwala & Anr. (1976) 3 SCC
259). The questions referred need examination in the light of these
principles.
25. In my considered opinion, "right to pril'(lcy ofany individuar'
is essentially a natural right, which inheres in every human being by H
970 SUPREME COURT REPORTS [2017] IO S.C.R.

A birth. Such right remains with the human being till he/she breathes last.
It is indeed inseparable and inalienable from human being. In other words,
it is born with the human being and extinguish with human being.
26. One cannot conceive an individual enjoying meaningful life
with dignity without such right. Indeed, it is one of those cherished right~,
B which every civilized society governed by rule oflaw always recognizes
in every human being and is under obligation to recognize such rights in
order to maintain and preserve the dignity of an individual regardless of
gender, race, religion, caste and creed. It is, of course, subject to imposing
certain reasonable restrictions keeping in view the social, moral and
compelling public interest, which the State is entitled to impose by law.
.c
27. "Right to privacy" is not defined in law except in the
dictionaries. The Courts, however, by process of judicial interpretation,
has assigned meaning to this right in the context of specific issues involved
on case-to-case basis.
D 28. The most popular meaning of "right to privacy" is - "the
right to be let alone''. In Gobind vs. State of Madhya Pradesh &
Anr., (1975) 2 SCC 148, K.K.Mathew, J. noticed multiple facets of this
right (Para 21-25) and then gave a rule of caution while examining the
contours of such right on case-to-case basis.
E 29. In my considered view, the answer to the questions can. be
found in the law laid down by this Court in the cases beginning from
Rustom Cavasjee Cooper (supra) followed by Maneka Gandhi vs.
Union of India & Anr. ( 1978) I SCC 248, People's Union for Civil
Liberties (PUCL) vs. Union of India & Anr., (1997) 1 SCC 301,
Gobind's case (supra), Mr. "X" vs. Hospital 'Z' (1998) 8 SCC 296,
F District Registrar & Collector, Hyderabad & Anr. vs. Canara Bank
& Ors., (2005) 1 SCC 496 and lastly in Thalappalam Service Coop.
Bank Ltd. & Ors. vs. State of Kerala & Ors., (2013) 16 SCC 82.
30. It is in these cases and especially the two - namely,
Gobind(supra) and District Registrar(supra), their Lordships very
G succinctly examined in great detail the issue in relation to "right to
privacy" in the light of Indian and American case law and various
international conventions.
31. In Gobind' case, the learned Judge, K.K.Mathew J. speaking
for the Bench held and indeed rightly in Para 28 as under:
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 971
[ABHAY MANOHAR SAPRE, J.]

"28. The right to privacy in any event will necessarily have A
to go through a process of case-by-case development.
Therefore, even assuming that the right to personal liberty,
the right to move freely throughout the territory of India
and the freedom of speech create an independent right of
privacy as an emanation from them which one can B
characterize as a fundamental right, we do not think that
the right is absolute."
32. Similarly in the case of District Registrar(supra), the learned
Chief Justice R.C.Lahoti (as His Lordship then was) speaking for the
Bench with his distinctive style of writing concluded in Para 39 as under:
c
"39. We have referred in detail to the reasons given by
Mathew, J. in Gobi11d to show that, the right to privacy has
been implied in Articles 19(1)(a) and (d) and Article 21;
that, the right is not absolute and that· any State intrusion
can be a reasonable restriction only if it has reaso11able basis
or reaso11able materials to support it." D
33. In all the aforementioned cases, the question of "right to
privacy" was examined in the context of specific grievances made by
the citizens wherein their Lordships, inter alia, ruled that firstly, "right
to privacy" has multiple facets and though such right can be classified
as a part of fundamental right emanating from Article 19( I )(a) and (d) E
and Article 21, yet it is not absolute and secondly, it is always subject to
certain reasonable restrictions on the basis of compelling social, moral
and public interest and lastly, any such right when asserted by the citizen
in the Court of law then it has to go through a process of case-to-case
development. F
34. I, therefore, do not find any difficulty in tracing the "right to
privacy" emanating from the two expressions of the Preamble namely,
"liberty of thought, expression, belief, faith and worship" and "Fraternity
assuring the dignity of the individual" and also emanating from Article
19 (1 )(a) which gives to every citizen "a freedom of speech and 0
expression" and further emanating from Article 19(1 )(d) which gives to
every citizen "a right to move freely throughout the territory oflndia"
and lastly, emanating from the expression "personal liberty" under Article
21. Indeed, the right to privacy is inbuilt in these expressions and flows
from each of them and in juxtaposition.
H
972 SUPREME COURT REPORTS [2017] 10 S.C.R.

A 35. In view of foregoing discussion, my answer to question No. 2
is that "right to privacy" is a part of fundamental right of a citizen
guaranteed under Part III of the Constitution. However, it is nor 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.
B
36. Similarly, I also hold that the "right to privacy" has multiple
facets, and, therefore, the same has to go through a process of case-to-
case development as and when any citizen raises his grievance
complaining of infringement of his alleged right in accordance with law.
c 37. My esteemed learned brothers, Justice J. Chelameswar, Justice
S.A. Bobde, Justice Rohinton Fali Nariman and Dr. Justice D.Y.
Chandrachud have extensively dealt with question No. 1 in the context
oflndian and American Case law on the subject succinctly. They have
also dealt with in detail the various submissions of the learned senior
counsel appearing for all the parties.
D
38. I entirely agree with their reasoning and the conclusion on
question No. I and hence do not wish to add anything to what they have
said in their respective scholarly opinions.
39. Some learned senior counsel appearing for the petitioners,
E however, argued that the law laid down by this Court in some earlier
decided cases though not referred for consideration be also overruled
while answering the questions referred to this Bench whereas some
senior counsel also made attempts to attack the legality and correctness
of Aadhar Scheme in their submissions.
F 40. These submissions, in my view, cannot be entertained in this
case. It is for thC' reason that firstly, this Bench is constituted to answer
only spccifi., 4uestions; secondly, the submissions pressed in service are
not referred to this Bench and lastly, it is ·a settled principle of law that
the reference Court cannot travel beyond the reference made and is
confined to answer only those questions that are referred. (See - Naresh
G Shridhar Mirajkar & Ors. vs. State of Maharashtra & Anr. ( 1966)
3 SCR 744 at page 753).
41. Suffice it to say that as and when any of these questions arise
in any case, the appropriate Bench will examine such questions on its
merits in accordance with law.
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDJA 973
[ABHAY MANOHAR SAPRE. J.]

42. Before I part, I wish to place on record that it was pleasure A
hearing the erudite arguments addressed by all the learned counsel. Every
counsel argued with brevity, lucidity and with remarkable clarity. The
hard work done by each counsel was phenomenal and deserves to be
complimented. Needless to say, but for their able assistance both iri terms
of oral argument as well as written briefs (containing thorough B
submissions, variety of case law and the literature on the subject), it was
well nigh impossible to express the views.

SANJAY KISHAN KAUL, .J ..
I. I have had the benefit of reading the exhaustive and erudite C
opinions ofRohinton F. Nariman. J, and Dr. D.Y. Chandrachud, J. The
conclusion is the same, answering the reference that privacy is not just
a common law right, but a fundamental right falling in Part III of the
Constitution oflndia. I agree with this conclusion as privacy is a primal,
natural right which is inherent to an individual. However, I am tempted D
to set out my perspective on the issue of privacy as a right, which to my
mind, is an important core of any individual existence. -
2. A human being, from an individual existence, evolved into a
social animal. Society thus envisaged a collective living beyond the
individual as a unit to what came to be known as the family. This, in turn,
imposed duties and obligations towards the society. The right to "do as E·
you please" became circumscribed by norms commonly acceptable to
the larger social group. In time, the acceptable norms evolved into formal
legal principles.
3. "The right to be", though not extinguished for an individual, as
the society evolved, became hedged in by the complexity of the norms. F
There has been a growing concern of the impact of technology which
breaches this "right to be", or privacy- by whatever name we may call
it.
4. The importance of privacy may vary from person to person
dependent on his/her approach to society and his concern for being left G
alone or not. That some people do not attach importance to their privacy
cannot be the basis for denying recognition to the right to privacy as a
basic human right.
5. It is not India alone, but the world that recognises the right of
privacy as a basic human right. The Universal Declaration of Human
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974 SUPREME COURT REPORTS [2017] 10 S.C.R.

A Rights to which India is a signatory, recognises privacy as an international
human right.
6. The importance of this right to privacy cannot be diluted and
the significance of this is that the legal conundrum was debated and is to
be settled in the present reference by a nine-Judges Constitution Bench.
B 7. This reference has arisen from the challenge to what is called
the 'Aadhar Card Scheme'. On account of earlier judicial
pronouncements, there was a cleavage of opinions and to reconcile this
divergence of views, it became necessary for the reference to be made
to a nine-Judges Bench.
c 8. It is nobody's case that privacy is not a valuable right, but the
moot point is whether it is only a common law right or achieves the
status of a fundamental right under the Grundnorm - the Indian
Constitution. We have been ably assisted by various senior counsels
both for and against the proposition as to whether privacy is a
D Constitutional right or not.
PRIVACY
9. In the words of Lord Action:
"the sacred rights of mankind are not to be rummaged for among
old parchments of musty records. They are written, as with a
E
sunbeam, in the whole volume of human nature, by the hand of
Divinity itself, and can never be obscured by mortal power 1."
10. Privacy is an inherent right. It is thus not given, but already
exists. It is about respecting an individual and it is undesirable to ignore
a person's wishes without a compelling reason to do so.
F
11. The right to privacy may have different aspects starting from
'the right to be Jet alone' in the famous article by Samuel Warren and
Louis D. Brandeis2 • One such aspect is an individual's right to control
dissemination of his personal information. There is nothing wrong in
individuals limiting access and their ability to shield from unwanted access.
G This aspect of the right to privacy has assumed particular significance in
this information age and in view of technological improvements. A person-
hood would be a protection ofone's personality, individuality and dignity. 3
'The History of Freedom and Other Essays (1907), p 587
2 The Right to Privacy 4 HLR 193
3
Daniel Solovc. '10 Reasons Why Privacy Matters' published on January 20, 2014
H https://www.teachprivacy.com/10-reasons-privacy-matters/
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 975
[SANJAY KISHAN KAUL, J.]

However, no right is unbridled and so is it with privacy. We live in a A
society/ community. Hence, restrictions arise from the interests of the
community, state and from those of others. Thus, it would be subject to
certain restrictions which I will revert to later.
PRIVACY & TECHNOLOGY
12. We are in an information age. With the growth and development B
of technology, more information is now easily available. The infonnation
explosion has manifold advantages but also some disadvantages. The
access to information, which an individual may not want to give, needs
the protection of privacy.
The right to privacy is claimed qua the State and non-State actors.. C
Recognition and enforcement of claims qua non-state actors may require
legislative intervention by the State.
A. Privacy Concerns Aeainst The State
13. The growth and development of technology has created new D
instruments for the possible invasion of privacy by the State, including
through surveillance, profiling and data collection and processing.
Surveillance is not new, but technology has permitted surveillance in
ways that are unimaginable. Edward Snowden shocked the world with
his disclosures about global surveillance. States are utilizing technology
in the most imaginative ways particularly in view of increasing global. E
terrorist attacks and heightened public safety concerns. One sucli
technique being adopted by States is 'profiling'. The European Union
Regulation of 20164 on data privacy defines 'Profiling' as any form of
automated processing of personal data consisting of the use of personal
data to evaluate certain personal aspects relating to a natural person, in F
particular to analyse or predict aspects CQnceming that natural person's
performance at work, economic situation, health, personal preferences,
interests, reliability, behaviour, location or movements5 • Such profiling
can result in discrimination based on religion, ethnicity and caste. However,
'Regulation (EU) 2016/679 of the European Parliament and of the Council of27 April
2016 on the protection of natural persons with regard to the processing of personal G
data and on the free movement of such data, and repealing Directive 95/46/EC (General
Data Protection Regulation)
'Regulation (EU) 2016/679 of the European Parliament and of the Council of27 April
2016 on the protection of natural persons with regard to the processing of personal
data and on the free movement of such data, and repealing Directive 95/46/EC (General
Data Protection Regulation)
H
976 SUPREME COURT REPORTS (2017] 10 S.C.R.

A 'profiling' can also be used to further public interest and for the benefit
ofnational security.
14. The security environment. not only in our country, but throughout
the world makes the safety of persons and the State a matter to be
balanced against this right to privacy.
B B. Privacy Concerns Ai:ainst Non-State Actors
15. The capacity of non-State actors to invade the home and
privacy has also been enhanced. Technological development has
facilitated journalism that is more intrusive than ever before.

c 16. Further, in this digital age, individuals are constantly generating
valuable data which can be used by non-State actors to track their moves,
choices and preferences. Data is generated not just by active sharing of
information, but also passively. with every click on the 'world wide web'.
We are stated to be creating an equal amount of information every other
day, as humanity created from the beginning of recorded history to the
D year 2003- enabled by the 'world wide web'. 6
17. Recently, it was pointed out that "'Uber', the world's largest
taxi company, owns no vehicles. 'Facebook', the world's most popular
media owner, creates no content. 'Alibaba', the most valuable retailer,
has no inventory. And 'Airbnb', the world's largest accommodation
E provider, owns no real estate. Something interesting is happcning." 7
'Uber' knows our whereabouts and the places we frequent. 'Facebook'
at the least, knows who we are friends with. 'Alibaba' knows our shopping
habits. 'Airbnb' knows where we are travelling to. Sm:ial networks
providers, search engines, e-mail service providers, messaging
F
applications are all further examples of non-state actors that have
extensive knowledge of our movements, financial transactions,
conversations - both personal and professional, health, mental state,
interest, travel locations, fares and shopping habits. As we move towards
becoming a digital economy and increase our reliance on internet based
services, we are creating deeper and deeper digital footprints- passively
G and actively.

18. These digital footprints and extensive data can be analyzed
6
Michael L. Rustad, SannaKulevska, Reconceptualizing the right to be forgotten to
enable transatlantic data flow, 28 Harv. J.L. & Tech. 349
7
https ://tcchcrunch .com/20 1S/03/03/ i n-thc-agc-o f-dis intermediation-the-bait le-is-a 11-
H for-the-customer-interface/ Tom Goodwin 'The Battle is for Customer Interface'
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 977
[SANJAY KISHAN KAUL, J.]

computationally to reveal patterns, trends, and associations, especially A
relating to human behavior and interactions and hence, is valuable
information. This is the age of 'big data'. The advancement in technology
has created not just new forms of data, but also new methods of analysing
the data and has Jed to the discovery of new uses for data. The algorithms
are more effective and the computational power has magnified
B
exponentially. A large number of people would like to keep such search
history private, but it rarely remains private, and is collected, sold and
analysed for purposes such as targeted advertising. Of course, 'big data'
can also be used to further public interest. There may be cases where
collection and processing of big data is legitimate and proportionate,
despite being invasive of privacy otherwise. c
19. Knowledge about a person gives a power over that person.
The personal data collected is capable of effecting representations,
influencing decision making processes and shaping behaviour. It can be
used as a tool to exercise control over us like the 'big brother' State
exercised. This can have a stultifying effect on the expression of dissent D
and difference of opinion, which no democracy can afford.
20. Thus, th~re is an unprecedented need for regulation regarding
the extent to which such information can be stored, processed and used
by non-state actors. There is also a need for protection of such
information from the State. Our G1.,vcrnment was successful in E
compelling Blackberry to give to it the ability to intercept data sent over
Blackberry devices. While such interception may be desirable and
permissible in order to ensure national security, it cannot be unregulated. 8
21. The concept of 'invasion of privacy' is not the early
conventional thought process of 'poking ones nose in another person's F
affairs'. It is not so simplistic. In today's world, privacy is a limit on the
government's power as well as the power of private sector entities.''
22. George Orwell created a fictional State in 'Nineteen
Eighty-Four.' Today, it can be a reality. The technological development
today can enable not only the state, but also big corporations and private 0
entities to be the 'big brother'.
8 Kadhim Shubber, Blackberry gives Indian Government ability to intercept messages

published ·by Wired on 11 July, 2013 http://www.wired.eo.uk/article/blackberry-
india
'Daniel Solove, '10 Reasons Why Privacy Matters' published on January 20, 2014
https://www.teachprivacy.com/10-reasons-privacy-matters/ H
978 SUPREME <:;OURT REPORTS [2017) I0 S.C.R.

A The Constitution of India • A Living Document
23. The Constitutional jurisprudence of all democracit:s in the
world, in some way or the other, refer to 'the brooding spirit of the law',
'the collective conscience', 'the intelligence of a future day', 'the heaven
of freedom', etc. The spirit is justice for all, being the cherished value.
B 24. This spirit displays many qualities, and has myriad ways of
expressing herself- at times she was liberty, at times dignity. She was
equality, she was fraternity, reasonableness and fairness. She was in
Athens during the formative years of the demoscratos and she manifested
herself in England as the Magna Carta. Her presence was felt in France
c during the Revolution, in America when it was being founded and in
South Africa during the times of Mandela.
25. In our country, she inspired our founding fathers - The
Sovereign, Socialist, Secular Democratic Republic oflndia was founded
on her very spirit.
D 26. During the times of the Constituent Assembly, the great
intellectuals of the day sought to give this brooding spirit a form, and
sought to invoke her in a manner that they felt could be understood,
applied and interpreted - they drafted the Indian Constitution.
27. In it they poured her essence, and gave to her a grand throne
E in Part III of the Indian Constitution.
28. The document that they created had her everlasting blessings,
every part of the Constitution resonates with the spirit of Justice and
what it stands for: 'peacefal, harmonious and orderly social living'.
.The Constitution stands as a codified representation of the great spirit of
F Justice itself. It is because it represents that Supreme Goodness that it
has been conferred the status of the Grundnorm, that it is the Supreme
Legal Document in the country.
29. The Constitution was not drafted for a specific time period or
for a certain generation, it was drafted to stand firm, for eternity. It
G sought to create a Montesquian framework that would endear in both
war time and in peace time and in Ambedkar's famous words, "if things
go wrong under the new Constitution the reason will not be that we
had a bad Constitution. What we will have to say is that Man was
Vile. n/U
10 Dhananjay Keer. Dr.Ambedkar: Life and Mission, Bombay: Popular Prakashan,
H 1971 (1954], p.410.)
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 979
[SANJAY KISHAN KAUL, J.]

30. lt has already outlived its makers, and will continue to outlive A
our generation, because it contains within its core. a set of undefinable
values and ideals that are eternal in nature. It is because it houses these
values so cherished by mankind that it lives for eternity, as a Divine
Chiranjeevi.
31. The Constitution. importantly, was also drafted for the purpose B
of assisting and at all times supporting this 'peaceful, harmonious and
orderly social living'. The Constitution thus lives for the people. Its deepest
wishes are that civil society flourishes and there is a peaceful .social
order. Any change in the sentiments of the people are recognised by it.
It seeks to incorporate within its fold all possible civil rights which existed
in the past, and those rights which may appear on the horizon of the c
future. It endears. The Constitution was never intended to serve as a
means to stifle the protection of the valuable rights of its citizens. Its aim
and purpose was completely the opposite.
'
32. The founders of the Constitution,,.were aware of the fact that
the Constitution would need alteration to keep up with the mores and D
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 20 under Article 368. The very incorporation of such
i1 plenary power in a separate part altogether is prima facie proof that
the Constitution, even during the times of its making was intended to be E
a timeless document, eternal in nature, organic and living.
33. Therefore, the theory of original intent itself supports the
stand that the original intention of the makers of the Constitutional was
to ensure that it does not get weighed down by the originalist
interpretations/remain static/fossilised, but changes and evolves to suit F
the felt need of the times. The origi1rnl intention theory itself contemplates
. a Constitution which is organic in nature.
34. The then Chief Justice oflndia, Patanjali Sastri. in the State of
West Bengal vs. Anwar Ali Sarkar 11 observed as follows:
"90. I find it impossible to read these portions of the Constitution G
· without regard to the background out of which they arose. I cannot
· blot out their history and omit from consideration the brooding
spirit of the times. They are not just dull, lifeless words static and.
hide-bound as in some mummified manuscript, but, Ii ving flames
II AIR 1952 SCR 284 H
980 SUPREME COURT REPORTS [2017] 10 S.C.R.

A intended to give life to a great nation and order its being, tongues
of dynamic fire, potent to mould the future as well as guide the
present. The Constitution must. in my judgment. be left elastic
enough to meet from time to time the altering conditions of a
changing world with its shifting emphasis and differing needs."
B 35. How the Constitution should be read and interpreted is best
found in the words of Khanna.I., in Kesavananda Bharati v. State of
Kentla 12 as follows:
"1437..... A Constitution is essentially different from pleadings
filed in Court of litigating parties. Pleadings contain claim and
c counter-claim of private parties engaged in litigation, while a
Constitution provides for the framework of the different organs
of the State viz. the executive, the legislature and the judiciary. A
Constitution also reflects the hopes and aspirations of a people.
Besides laying down the norms for the functioning of different
organs a Constitution encompasses within itself the broad
D indications as to how the nation is to march forward in times to
come. A Constitution cannot be regarded as a mere legal document
to be read as a will or an agreement nor is Constitution like a
plaint or written statement filed in a suit between two litigants. A
Constitution must of necessity be the vehicle of the life of a nation.
E It has also to be borne in mind that a Constitution is not a gate but
a road. Beneath the drafting of a Constitution is the awareness
that things do not stand still but move on, that life of a progressive
nation, as of an individual, is not static and stagnant but dynamic
and dashful. A Constitution must therefore contain ample provision
for experiment and trial in the task of administration.
F
A Constitution, it needs to be emphasised, is not a document for
fastidious dialectics but the means of ordering the Iife of a people.
It had (~ic) its roots in the past. its continuity is reflected in
the present and it is intended for the 1111know11 foture. The
words of Holmes while dealing with the U.S. Constitution have
G equal relevance for our Constitution. Said the great Judge:
" ... the provisions of the Constitution are not mathematical
formulas having their essence in their form; they arc organic living
institutions transplanted from English soil. Their significance is
12
(1973) 4 sec 22s
H
JUSTICE KS PUTTASWAMY (RETD.) v. UNION OF INDIA 981
[SANJAY KISHAN KAUL, J.]

vital not formal; it is to be gathered not simply by taking the words A
and a dictionary, but by considering their origin and the line of
their growth." [See Gompers v. United States, 233 U.S. 604, 610
(1914)].
It is necessary to keep in view Marshall's great premises that "It
is a Constitution we are expounding". To quote the words of Felix B
Frankfurter in his tribute to Holmes:
"Whether the Constitution is treated primarily as a text for
interpretation or as an instrument of Government may make all
the difference in the word. The fate of cases, and thereby of
legislation, will tum on whether the meaning of the document is c
derived from itself or from one's conception of the country, its
development, its needs, its place in a civilized society." (See Mr
Justice Holmes edited by Felix Frankfurter, p. 58). (Emphasis
supplied)
36. In the same judgment, K.K. Mathew, J., observed : D
1563_... That the Constitution is a framework of great
governmental powers to be exercised for great public ends in the
future, is not a pale intellectual concept but a dynamic idea which
must dominate in any consideration of the width of the amending
power. No existing Constitution has reached its final form and E
shape and become, as it were a fixed thing incapable of further
growth. Human societies keep changing; needs emerge, first
vaguely felt and unexpressed, imperceptibly gathering strength,
steadily becoming more and more exigent, generating a force
which, if left unheeded and denied response so as to satisfy the
impulse behind it, may burst forthwith an intensity that exacts F
more than reasonable satisfaction. [See Felix Frankfurter, of Law
and Men, p 35] As Wilson said, a living Constitution must be
Darwinian in structure and practice. [See Constitutional
Government in The United States, p 251 The Constitution of a
nation is the outward and visible manifestation of the life of the G
people and it must respond to the deep pulsation for change within.
"A Constitution is an experiment as all life is an experiment."
[See Justice Holmes in Abrams v United States, 250 US 616] ... "
37. In the context of the necessity of the doctrine of flexibility
H
982 SUPREME COURT REPORTS [2017] IO S.C.R.

A while dealing with the Constitution, it was observed in Union of.India vs.
Naveen Jindal 1' :
''39. Constitution being a living organ, its ongoing interpretation is
permissible. 111e supremacy of the Constitution is essential to bring
social changes in the national polity evolved with the passage of
B time.
40. Interpretation of the Constitution is a difficult task. While doing
so, the Constitutional courts are not only required to take into
consideratiori their own experience over the time, the international
treaties and covenants but also.keeping the doctrine of flexibility
c in mind. This Court times without number has extended the scope
and extent of the provisions of the fundamental rights, having regard
to several factors including the intent and purport of the
Constitution-makers as reflected in Parts IV and IV-A of the
Constitution of India."

D 38. The document itself, though inked in a parched paper of timeless
value, never grows old. Its ideals and values forever stay young and
energetic, forever changing with the times. It represents the pulse and
soul of the nation and like a phoenix, grows and evolves, but at the same
time remains young and malleable.

E 39. The notions of goodness, fairness, equality and dignity can
never be satisfactorily defined, they can only be experienced. They are
felt. They were let abstract for the reason that these rights, by their very
nature, are not static. They can never be certainly defined or applied, for
they change not only with time, but also with situations. The same concept
can be differently understood, applied and interpreted and therein lies
F their beauty and their importance. This multiplicity of interpretation and
application is the very core which allows them to be differently understood
and applied in changing social and cultural situations.
40. Therefore, these core values, these core principles, are all
various facets of the spirit that pervades our Constitution and they apply
G and read differently in various scenarios. They manifest themselves
differently in different ages, situatiom and conditions. Though being
rooted in ancient Constitutional principles, they find mention and
applicability as different rights and social privileges. They appear

" (2004) 2 secs 1o
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 983
. [SANJAY KISHAN .KAUL, J.]

differently, based on the factual•circumstance. Privacy, for example is A
nothing but a forin of dignity, which itself is a subset of liberty.
41. Thus, from the one great tree, there are branches, and from
these branches there are sub-branches and leaves. Every one of these
leaves are rights, all tracing back to the tree of justice. They are all
equally important and of equal need in the great social order. They B
together form part of that 'great brooding spirit'. Denial of one of
them is the denial of the whole, for these rights, in manner of speaking,
fertilise and nurture each other.
42. What is beautiful in this biological, organic growth is this: While
the tree appears to be great and magnificent, apparently incapable of c
further growth, there are ;ilways new branches appearing, new· leaves
and buds growing. These new rights, are the rights of future generations
that evolve over the passage of time to suit and facilitate the civility of
posterity. They are equally part of this tree of rights and equally trace
their origins to those natural rights which we are all born with. These
!_eaves; sprout and grow with the passage of time, just as certain rights D
may get weeded out due to natural evolution.
43. At this juncture of time, we are incapable and it is nigh
impossible to anticipate and foresee what these new buds may be. There
can be no certainty in making this preqiction. However, what remains
certain is that there will indeed be a continual growth of the great tree E
that we call the Constitution. This beautiful a:~pect of the document is
what makes it organic, dynamic, young and everlasting. And it is
important that the tree grows further, for the Republic finds a shade
under its branches.
. 44. The challenges to protect privacy have increased manifold. F
The observations made in the context of th~ need for law to change, by
Bhagwati, J., as he then was, in National Textile Workers Union Vs.
P.R. Rarnakrishnan 14 would equally apply to the requirements of
interpretation of the Constitution in the present context:
"We cannot·allow the dead hand-of the past to stifle the growth of G
the living present. Law cannot stand still; it must change with the
changing social concepts and values. If the bark that protects the
tree fails to grow and expand along with the tree, it will either
choke the tree or if it is a living tree, it will shed that bark and
" (1983) 1 sec 228
H
984 SUPREME COURT REPORTS [2017] IO S.C.R.

A grow a new living bark for it~elf. Similarly, if the law fails to respond
to the needs of changing society, then either it will stifle the growth
of the society" and choke its progress or if the society is vigorous
enough, it will cast away the law which stands in the way of its
growth. Law must therefore constantly be on the move adapting
itself to the fast-changing society and not lag behind."
B
45. It is wrong to consider that the concept of the supervening
spirit of justice manifesting in different forms to cure the evils of a new
age is unknown to Indian history. Lord Shri Krishna declared in Chapter
4 Text 8 of The Bhagavad Gita thus:
c

46. The meaning .of this profound statement, when viewed after
D . a thousand generations is this: That each age and each generation
brings with it the challenges and tribulations of the times. But that Supreme
spirit of Justice manifests itself in different eras, in different continents
and in different social situations, as different values to ensure that there
always exists the protection and preservation of certain eternally cherished
rights and ideals. It is :neflection of this divine 'Brooding spirit of the
E law', 'the collective conscience', 'the intelligence of a future day' that
has found mention in the ideals enshrined in inter- alia, Article 14 and
21, which together serve as the heart stones of the Constitution. The
spirit that finds enshrinement in these articles manifests and reincarnates
itself In ways and forms that protect the needs of the society in various
F ages, as the values of liberty, equality, fraternity, dignity, and various
other Constitutional values, Constitutional principles. It always grows
stronger and covers within its sweep the great needs of the times. This
spirit can neither remain dormant nor static and can never be allowed to
fossilise.
G 47. 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 not only as a valuable right, but as a right Fundamental in
Constitutional jurisprudence.
48. There are sure to be times in the future, similar to our experience
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 985
[SANJAY KISHAN KAUL, J.]

. today, perhaps as close as 10 years from today or as far off as a 100 A
years, when we will debate and deliberate whether a certain right is
fundamental or not. At that time it must be understood that the Constitution
· was always meant to be an accommodative and all-encompassing
document, framed to cover in its fold all those rights that are mostdeeply
cherished and required for a 'peaceful, harmonious and orderly sqcial B
living.
49. The Constitution and its all~encompassing spirit forever grows,
but never ages.
Privacy is essential to liberty and dignity
50. Rohinton F. Nariman, J., and Dr. D.Y. Chandrachud J., have C
emphasized the importance of the protection of privacy to ensure
protection of liberty and dignity. I agree with them arid seek to refer to
some legal observations in this regard:
In Robertson and Nicol on Media Law 15 it was observed:
D
"'Individuals have a psychological need t9 preserve an ii;itrusion-
free zone for their personality and family and suffer anguish arid
stress when that zone is violated. Democratic societies must
protect privacy as part of their facilitation of individual freedom,
and offer some legal support for the individual choice as to what
aspects of intimate personal life the citizen is prepared-to share E
with others. This freedom in other words springs from the same
soQrce as freedom of expression: a liberty that enhances individual
life in a democratic community."
51. Lord Nicholls and Lord Hoffmann in their opinion in Naomi
Campbell's case 16 recognized the importance of the protection of privacy. F
Lord Hoffman opined as under:
"50. What humwi rights law has done is to identify private
information as something worth protectiizg as a11 aspect of·.
human autonomy and dignity. And this recognition has raised ·
inescapably the question of why it should be worth protecting G
agai11st the state but not against a private pe1'son. There may
of course be justifications for the publication of private

" Geoffrey Robertson, QC and Andrew Nicol, QC, Media Law fifth edi.tion p. 265
16 Campbell V. MGN Ltd.2004 UKHL 22 .
H
986 SUPREME COURT REPORTS [2017] 10 S.C.R.

A information by private persons which would not be available
to the state - I have particularly in mind the position of the
media, to which I shall return in a moment - but l can see no
logical ground for saying that a person should have less
protection against a private individual than he would have
against the state for the publication of personal information
B
for which there is no justification. Nor, it appears, have any
of the other judges who have considered the matter.
51. The result of these developments has been a shift in the
centre of gravity of the action for breach of confidence when
it is used as a remedy for the unjustified publication of
c personal information . .... Instead of the cause of action being
based upon the duty of good faith applicable to confidential
personal information and trade secrets alike, it focuses upon
the protection of human autonomy and dignity - the right to
control the dissemination of information about one~· private
D life and the right to the esteem mu/ respect of other people."
Lord Nicholls opined as under:
"12. The present case ·concerns one aspect of invasion of
privacy: wrongful disclosure of private information. The case
involves the familiar competition between freedom of
E expression and respect for an individual's privacy. Both are
vitally important rights. Neither has precedence over the other.
The importance of freedom of expression has been stressed
often and eloquently, the importance of privacy less so. But
it, too, lies at the heart of liberty in a modem state. A proper
F degree of privacy is essential for the well-being and
development of an indil'idual. And restraints imposed on
government to pry into the ti \!es of the citizen go to the essence
of a democratic state: see La Forest J i11 R v Dymont [ 1988]
2 SCR 417, 426."

G 52. Privacy is also the key to freedom of thought. A person has a
right to think. The thoughts are sometimes translated into speech but
confined to the person to whom it is made. For example, one may want
to criticize someone but not share the criticism with the world.
Privacv - Rieht To Control Information
H 53. I had earlier adverted to an aspect of privacy - the right to
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 987
[SANJAY KISHAN KAUL, J.]

control dissemination of personal information. The boundaries that people A
· establish from others in society are not only physical but also infonnational.
There are different kinds of boundaries in respect to different relations .
. Privacy assists in preventing awkward social situations and reducing
social frictions. Most of the information about individuals can fall under
the phrase "none of your business". On information being shared
· voluntarily, the same may be said to be in confidence and any breach of B
confidentiality is a breach of the trust. This is more so in the professional
relationships such as with doctors and lawyers which requires an element
of candor in disclosure of information. An individual has the right to
control one's life while submitting personal data for various facilities and
services. It is but essential that the individual knows as to what the data C
is being used for with the ability to correct and amend it. The hallmark of
freedom in a democracy is having the autonomy and control over our
lives which becomes impossible, if important decisions are made in secret
. ,- without our awareness or participation. 17 •
54. Dr. D.Y. Chandrachud, J., notes that recognizing a zone of D
privacy is but an acknowledgement tlu1t each individual must be entitled
to chart and pursue the course of development of their personality.
Roh inton F. N ariman,J., recognizes informational privacy which recognizes
that an individual may have control over the dissemination of material
which is personal to him. Recognized thus, from the right to privacy in
this modern age emanate certain other rights such as the right of E
individuals to exclusively commercially exploit their identity and personal
information, to control the information that is available about them on the ·
'world wide web' and to disseminate certain personal information f9r
limited purposes alone.
55. Samuel Warren· and Louis Brandeis in 1890 yxpressed the F
belief that an individual should control the degree and type of private -
personal information thatis made public: ·
"The common law secures to each individual the riglit of
determining, ordinarily, to what extent his thoughts,
sentiments, and emotions shall be communicated to others .... G
It is immaterial whether it be by word or by- signs, in painting,
by sculpture, or in music.... 1n every St(Ch case the individual

11 Daniel So love, 'JO Reasons Why Privacy Matters' published on January 20, 2014

https://www.teachprivacy.com/10-reasons-privacy-n1attcrs/
H
988 SUPREME COURT REPORTS [2017] 10 S.C.R.

A is entitled to decide whether that which is his shall be given
to the public. "
This formulation of the right to privacy has particular relevance in
today's information and digital age.
56. An individual has a right to protect his reputation from being
B unfairly harmed and such protection ofreputation needs to exist not only
against falsehood but also certain truths. It cannot be said that a more
accurate judgment about people can be facilitated by knowing private
details about their lives - people judge us badly, they judge us in haste,
they judge out of context, they judge without hearing the whole story
and they judge with hypocrisy. Privacy lets people protect themselves
C from these troublesome judgments 18 •
57. There is no justification for making all truthful information
available to the public. The public does not have an interest in knowing
all information that is true. Which celebrity has had sexual relationships
· with whom might be of interest to the public but has no element of public
D interest and may therefore be a breach of privacy. 19 Thus, truthful
information that breaches privacy may also require protection.
58. Every individual should have a right to be able to exercise
control over his/her own life and image as portrayed to the world and to
control commercial use of his/her identity. This also means that an
E individual may be permitted to prevent others from using his image, name
and other aspects of his/her personal life and identity for commercial
purposes without his/her consent. 20
59. Aside from the economic justifications for such a right, it is
also justified as protecting individual autonomy and personal dignity. The
F right protects an individual's free, personal conception of the 'self.' The
right of publicity implicates a person's interest in autonomous self-
definition, which prevents others from interfering with the meanings and
values that the public associates with her. 21
18
Daniel Solove, '10 Reasons Why Privacy Matters' published on January 20. 2014
https :I/www.teachprivacy.com/ I0-reasons-pri vacy-matters/
G 19
The UK Courts granted in super-injunctions to protect privacy of ce1tain celebrities
by tabloids which meant that not only could the private information not be published
but the very fact of existence of that case & injunction could also not be published.
20
The Second Circuit's decision in Haelan Laboratories v. Topps Chewing Gum. 202
F.2d 866 (2d Cir. 1953) penned by Judge Jerome Frank defined the right to publicity
as "tile right to grant the exclusive privilege ofpublishing his picture".
21 Mark P. McKenna, The Right of Publicity and Autonomous Self-Definition, 67 U.
H PITT. L. REV. 225, 282 (2005).
JUSTICE K S PUTIASWAMY (RETD.) v. UNION OF INDIA 989
[SANJAY KISHAN KAUL, J.]

60. Prosser categorized the invasion of privacy into four separate A
~~: .. . .
. I) Unreasonable intrusion upon the seclusion of another;
2) Approp.riation of another's name or likeness;
3) Unreasonable publicity given to the other's private life; and . B:
4) Publicity that unre<jsonably places the other in a false light
. before the public .
From the second tort, the U.S. h.as adopted a right to publicity. 23 .
61. In the poetic words of Felicia Lamport mentioned in the book C·
"The Assault on Privacy 24" :
"DEPRIVACY
Although we feel unknown, ignored·
As unrecorded blanks,
Take heart! Our vital selves are sfored D
In giant data banks,

Our childhoods and maturities,
Efficiently compiled,
Our Stocks and insecurities, E
All permanently filed,

Our tastes and our proclivities,
In gross and' in particular,
Our incomes, our activities
F.
Both extra-and curricular..

And such will be our happy state
Until the day we die
When we'll be snatched up by the great
G
Computer in the Sky".
INFORMATIONAL PRIVACY
62. The right of an individual to exercise control over his personal
William L. Prosser, Privacy, 48 CAL. L. REV. 383 (1960)
• 22
23 the scope of the right to publicity varies across States in the U.S.

24 Arthur R. Miller, The University of Michigan Press · H
990. SUPREME COURT REPORTS [2017] 10 S.C.R.

A data and to be able to control his/her own life would also encompass his
right to control his existence on the internet. Needless to say that this
would not be an absolute right.The existence of such a right does not
imply that a criminal can obliterate his past, but that there are variant
degrees of mistakes, small and big, and it cannot be said that a person
should be profiled to the nth extent for all and sundry to know.
B
63. A high school teacher was fired after posting on her Facebook
page that she was "so not looking forward to another [school] year"
since that the school district's residents were "arrogant and snobby". A
flight attended was fired for posting suggestive photos of herself in the
company's uniform. 25 In the pre-digital era, such incidents would have
C never occurred. People could then make mistakes and embarrass
themselves, with the comfort that the information will be typically
forgotten over time.
64. The impact of the digital age results in information on the
internet being permanent. Humans forget, but the internet does not forget
D and does not let humans forget. Any endeavour to remove infonnation
from the internet does not result in its absolute obliteration. The foot
prints remain. It is thus, said that in the digital world preservation is the
norm and forgetting a struggle26 •
65. The technology results almost in a sort of a permanent storage
E in some way or the other making it difficult to begin life again giving up
past mistakes. People are not static, they change and grow through
their lives. They evolve. They make mistakes. But they are entitled to
re-invent themselves and reform and correct their mistakes. It is privacy
which nurtures this ability and removes the shackles ofunadvisable things
F which may have been done in the past.
66. Children around the world create perpetual digital footprints
on social network websites on a 2417 basis as they learn their 'ABCs':
Apple, Bluetooth, and Chat followed by Download, E-Mail, Facebook,
Google, Hotmail, and Instagram. 27 They should not be subjected to the
G consequences of their childish mistakes and naivety, their entire life.
"Patricia Sanchez Abril, Blurred Boundaries: Social Media Privacy and the Twe11ty-
First-Ce11t11ry Employee, 49 AM. BUS. L.J. 63, 69 (2012).
26 Ravi Antani, THE RESISTANCE OF MEMORY : COULD THE EUROPEAN

UNION'S RIGHT TO BE FORGOTTEN EXIST IN THE UNITED STATES?
"Michael L. Rustad, Sanna Kulevska, Reconceptualizing the right to be forgotten to
enable 1ransatlantic data flow, 28 Harv. J.L. & Tech. 349
H
JUSTICE K S PUTIASWAMY (RETD.) v. UNION OF INDIA 991
[SANJAY KISHAN KAUL, J.]

Privacy of children will require special protecti_on not just in the context A
of the virtual world, but also the real world.
67. People change and an individual should be able to determine
the path of his life and not be stuck only on a path of which he/she
treaded initially. An individual should have the capacity to change his/her
beliefs and evolve as a person. Individuals should not live in fear that the B
views they expressed. will forever be associated with them and thm;
refrain from expressing themselves.
68. Whereas this right to control dissemination of personal
information in the physical and virtual space should not amount to a right
of total eraser of history, this right, as a part of the larger right of privacy, c
has to be balanced against other fundamental rights like the freedom of
expressiop, or freedom of media, fundamental to a democratic society.
69. Thus, The European Union Regulation of2011528 has recognized
what has been termed as .'the right to be forgotten'. This does not mean
that all aspects of earlier existence are to be obliterated, as some may D
have a social ramification. If we were to recognize a similar right, it.
would only mean that an individual who is no longer desirous of his.
personal data to be· processed or stored, should be able to remove it
from the system where the personal data/ information is no longer
necessary, relevant, or is incorrect and serves no legitimate interest.
Such a right cannot be exercised where the informatioril data is necessary, E
for exercising the right of freedom of expression and infonnation, for
complfance with legal obligations, for the performance of a task carried
out in public interest, on the grounds of public interest in the area of -
public health, for archiving purposes in the public interest, scientific or
historical research purposes or statistical purposes, or for the F
establishment, exercise or defence of legal claims. Such justifications
would be valid in all cases of breach of privacy, including breaches of
data privacy. ·
Data Reeulation
70. I agree with Dr. D.Y. Chandrachud,'J.; that formulation of G
data protection is a complex exercise which needs to be undertaken by
the State after a careful balancing of privacy concerns and legitimate
State interests, including public benefit arising frorn scientific and historical
research based on data collected and processed. The European Union
" Supra
H
992 SUPREME COURT REPORTS [2017] .10 S.C.R.

A Regulation of201629 ofthe European Parliament and of the Council of
27 April 2016 on the protection of natural persons with regard to the
processing of personal data and on the free movement of such data may
provide useful guidance in this regard. The State must ensure that
information is not used without the consent of users and that it is used
for the purpose and to the extent it was disclosed. Thus, for e.g. , if the
B
posting on social media websites is meant only for a certain audience,
which is possible as per tools available, then it cannot be said that all and
sundry in public have a right to somehow access that information and
make use of it.
Test: Principle of Proportionality and Le~itimacy
c
71. The concerns expressed on behalf of the petitioners arising
from the possibility of the State infringing the right to privacy can be met
by the test suggested for limiting the discretion of the State:
"(i) The action must be sanctioned by Jaw;
D (ii) The proposed action must be necessary in a democratic society
for a legitimate aim;
(iii) The extent of such interference must be proportionate to the
need for such interference;
(iv) There must be procedural guarantees against abuse of such
E
interference."
The Restrictions
72. The right to privacy as already observed is not absolute. The
right to privacy as falling in part III of the Constitution may, depending
F on its variable facts, vest in one part or the other, and would thus be
subject to the restrictions of exercise of that particular fundamental right.
National security would thus be an obvious restriction, so would the
provisos to different fundamental rights, dependent on where the right to
privacy would arise. The Public interest element would be another aspect.
G 73. It would be useful to turn to The European Union Regulation
of 2016 30 • Restrictions of the right to privacy may be justifiable in the
following circumstances subject to the principle of proportionality:
(a) Other fundamental rights: The right to privacy must be
29 Supra

H "'Supra
JUSTICE K S PUTIASWAMY (RETD.) v. UNION OF INDIA • 993
[SANJAY KISHAN KAUL, J.] -

considered in relation to its function in society and be balanced A
against other fundamental rights.
(b) Legitimate national security interest
. (c) Public interest including scientific or historical research purposes
or statistical purposes
B
(d) Criminal Offences: the need of the competent authorities for
prevention investigation, prosecution of criminal offences
including safeguards against threat to public security;
(e) The unidentifiable .data: the information.
does not relate to
. identifiedor identifiable natural person but remains anonymous. c
The European Union Regulation of 2016 31 refers to
· 'pseudonymisation' which means the proc.essing of personal
data in such a manner that the personal data can no longer be
attributed to a specific data subject without the use of additional
information, provided that such additional information is kept
separately and is subject fo technical and organisational D
measures to ensure that the personal data are not attributed to
an identified or identifiable natural person;
(f)The tax etc: the regulatory framework of tax and working of
financial institutions, market~ may require disclosure of private
information. But then this would not entitle the disclosure of - E
the information to all and -sundry and there should be data
protection rules according to the objectives of the processing.
There may however, be processing which is compatible for
the purposes for which it is initially collected.
Report of Group of Experts on Privacy F
74. It is not as if the aspect of privacy has not met with concerns.
The Planning Commission oflndia constituted the Group of Experts on
Privacy under the Chairmanship of Justice A.P. Shah, which submitted
a report on 16 October, 2012. The five salient features, in his own
words, are as follows: G
"1. Technological Neutrality and Interoperability with
International Standards: The Group agreed that any proposed
framework for privacy legislation must be technologically neutral
and interoperable with international standards. Specifically the · ·
31
Supra H
994 SUPREME COURT REPORTS [2017] 10 S.C.R.

A Privacy Act should not make any reference to specific technologies
and must be generic enough such that the principles and
enforcement mechanisms remain adaptable to changes in society,
the marketplace, technology, and the government. To do this it is
important to closely harmonise the right to privacy with multiple
international regimes, create trust and facilitate co-operation
B
between national and international stakeholders and provide equal
and adequate levels of protection to data processed inside India
as well as outside it. In doing so, the framework should recognise
that data has economic value, and that global data flows generate
value for the individual as data creator, and for businesses that
c collect and process such data. Thus, one of the focuses of the
framework should be on inspiring the trust of global clients and
their end users, without compromising the interests of domestic
customers in enhancing their privacy protection.
2. Multi-Dimensional Privacy: This report recognises the right
D to privacy in its multiple dimensions. A framework on the right to
privacy in India must include privacy-related concerns around
data protection on the internet and challenges emerging therefrom,
appropriate protection from unauthorised interception, audio and
video surveillance, use of personal identifiers, bodily privacy
including DNA as well as physical privacy, which are crucial in
E establishing a national ethos for privacy protection, though the
specific fonns such protection will take must remain flexible to
address new and emerging concerns.
3. Horizontal Applicability: The Group agreed that any proposed
privacy legislation must apply both to the government as well as
F to the private sector. Given that the international trend is towards
· a set of unified noims governing both the private and public sector,
and both sectors process large amounts of data in India, it is
imperative to bring both within the purview of the proposed
legislation.
G 4. Conformity with Privacy Principles: This report
recommends nine fundamental Privacy Principles to form the
bedrock of the proposed Privacy Act in India. These principles,
drawn from best practices internationally, and adapted suitably to
·an Indian context, are intended to provide the baseline level of
H privacy protection to all individual data subjects. The fundamental
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 995
[SANJAY KISHAN KAUL, J.]

philosophy underlining the principles is the need to hold the data A
controller accountable for the collection, processing and use to
which the data is put thereby ensuring that the privacy of the data
subject is guaranteed. \j . ·
5. Co-Regulatory Enforcement Regime: This report
recommends the establishment of the office of the Privacy B
Commissioner, both at the central and regional levels. The Privacy
Commissioners shall be the primary authority for enforcement of
the prov i's ions of the Act. However, rather than prescribe a pure .
top-down approach to enforcement, this report recommends a
system of co-regulation, with equal emphasis on Self-Regulating
Organisations (SROs) being vested with the responsibility of C
autonomously ensuring compliance with the Act, subject to regular·
oversight by the Privacy Commissioners. The SROs, apart from
possessing industry-specific knowledge, will also be better placed
to create awareness about the right to privacy and explaining the .
sensitivities of privacy protection both within industry as well as D
to the public in respective sectors. This recommendation of a co-
regulatory regime will not derogate from the powers of courts
which will be available as a forum oflast resort in case of persistent
and unresolved violations of the Privacy Act."
75. The enactment of a law on the subject is still awaited. This E
was preceded by the Privacy Bill of the year of2005 but there appears
to have been little progress. It was only in the course of the hearing that
we were presented with an office memorandum of the Ministry of
Electronics and Information Technology dated 31.7.2017, through which
a Committee of Experts had been constituted to deliberate ·on a data
protection framework for India, under the Chairmanship of Mr. Justice F
B.N. Srikrishna, former Judge of the Supreme Court oflndia, in orderto
identify key data protection issues in India and recommend methods of
. addressing them: So there is hope! ·
76. The aforesaid aspect has been referred to for purposes that
the concerns about privacy have been left unattended for quite some G
time and thus an infringement of the right of privacy cannot be left to be
formulated by the legislature. It is a primal natural right which is only
being recognized as a fundamental right falling in part III of the
Constitution of India.
H
996 SUPREME COURT REPORTS [2017] 10 S.C.R.

A CONCLUSION
77. The 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.
B 78. It was rightly expressed on behalf of the petitioners that the
technology has made it possible to enter a citizen's house without knocking
at his/her door and this is equally possible both by the State and non-
State actors. It is an individual's choice as to who enters his house, how
he lives and in what relationship. The privacy of the home must protect
c the family, marriage, procreation and sexual orientation which are all
important aspects of dignity.
79. 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 harm the other individual or affect his or her rights.
D 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 country like ours which prides itself on its diversity, privacy is one of
the most important rights to be protected both against State and non-
State actors and be recognized as a fundamental right. How it thereafter
woiks out in its inter-play with other fundamental rights and when such
E restrictions would become necessary would depend on the factual matrix
of each case. That it may give rise to more litigation can hardly be the
reason not to recognize this important, natural, primordial right as a
fundamental right.
80. There are two aspects of the opinion of Dr. D. Y.
F Chandrachud,J ., one of which is common to the opinion of Rohinton F.
Nariman,J., needing specific mention. While considering the evolution
of Constitutional jurisprudence on the right of privacy he has referred to
the judgment in Suresh Kumar Koushal Vs. Naz Foundation. 32 In the
challenge laid to Section 377 of the Indian Penal Code before the Delhi
G High Court, one of the grounds of challenge was that the said provision
amounted to an infringement of the right to dignity and privacy. The
Delhi High Court, inter alia, observed that the right to live with dignity
and the right of privacy both are recognized as dimensions of Article 21
of the Constitution of India. The view of the High Court, however did
"(2014) 1 sec 1
H
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 997
[SANJAY KISHAN KAUL, J.]

not find favour with the Supreme Court and it was observed that only a A
miniscule fraction of the country's population constitutes lesbians, gays,
bisexuals or transgenders and thus, there carn:iot be any basis for dec~aring
the .Section ultra virus of provisions of Articles 14, 1.5 and 21 of the
. Constitution. The matter did not rest at this, as the issue of privacy and
dignity discussed by the High Court was also observed upon. The sexual
B
orientation even within the four walls of the house thus became an aspect
of debate. I am in agreement with the view of Dr. D.Y. Chandrachud,
J., who in paragraphs 123 & 124 of his judgment, states that the right of
privacy cannot be denied, even if there is a miniscule fraction of the
population which is affected. The majoritarian concept does not apply
to Constit~tional rights and the Courts are often called up Oil to take c
what may be categorized as a non-majoritarian view, in the check and
balance of power envisaged under the Constitution oflndia; Ones sexual
orientation is undoubtedly an attribute of privacy. The observations made
·in Mosley vs. News Group Papers Ltd. 33 , in abroader concept may be.
usefully referred to: ·
D
"130 ... It is not simply a matter of personal privacy versus the
·public interest. The modem perception is that there is a public_
interest in respecting personal privacy. It is thus a question of
taking account of conflicting public interest considerations and
evaluatirig them according to increasingly well recognized criteria.
E
131. When the courts identify an infringement of a person's
Article 8 rights, and in particular in the context of his freedo.m to
coJtduct his sex life and persona_l relationships as he wishes, it is
right to afford a remedy and to vindicate that· right. The only
permitted exception is where there is a countervailing public
interest which in the particular circumstances is strong enough to F
outweigh it; that is to say, because one at least of the established
"limiting principles" comes into play. Was it necessary and
proportionate for the intrusion to take place, for example, in order
to expose illegal activity or to prevent the public from being
. significantly misled by public claims hitherto made by the individual G
concerned (as with Naomi Campbell's public denials of drug-
taking)? Or- was it necessary because the information, i11 the
words of the Strasbourg court in Von Hannover at (60) and (76),
would make a contribution to ''a debate of general interest"? That
33 (2008) EWHS 1777 (QB)
H
998 SUPREME COURT REPORTS [2017) 10 S.C.R.

A is, of course, a very high test, it is yet to be determined how far
that doctrine will be taken in the courts of this jurisdiction in relation
to photography in public places. If taken literally, it would mean a
very significant change in what is permitted. It would have a
profound effect on the tabloid and celebrity culture to which we
have become accustomed in recent years."
B
81. It is not necessary to delve into this issue further, other than in
the context of privacy as that would be an issue to be debated before the
appropriate Bench, the matter having been referred to a larger Bench.
82. The second aspect is the discussion in respect of the majority
c judgment in the case of ADM Jabalpur vs. Shivkant Shukla34 in both the
opinions. In LR. Coelho Vs. The State of Tamil Nadu 35 it was observed
that the ADM Jabalpur case has been impliedly overruled and that the
supervening event was the 44'h Amendment to the Constitution, amending
Article 359 of the Constitution. I fully agree with the view expressly
overruling the ADM Jabalpur case which was an aberration in the
D constitutional jurisprudence of our country and the desirability of burying
the majority opinion ten fathom deep, with no chance of resurrection.
83. Let the right of privacy, an inherent right, be unequivocally a
fundamental right.embedded in part-Ill of the Constitution ofindia, but
subject to the restrictions specified, relatable to that part. This is the call
E of today. The old order changeth yielding place to new.

ORDER OF THE COURT
I. The judgment on behalfofthe Hon'ble ChiefJustice Shri Justice
F Jagdish Singh Khehar, Shri Justice R K Agrawal, Shri Justic~ S Abdul
Nazeer and Dr Justice DY Chandrachud was delivered by Dr Justice
DY Chandrachud. Shri Justice J Chelameswar, Shri Justice S ABobde,
Shri Justice Abhay Manohar Sapre, Shri Justice Rohinton Fali Nariman
and Shri Justice Sanjay Kishan Kaul delivered separate judgments.
2. The reference is disposed of in the following terms:
G (i) The decision in M P Sharma which holds that the right to
privacy is not protected by the Constitution stands over-ruled;
(ii) The decision in Kharak Singh to the extent that it holds that
the right to privacy is not protected by the Constitution stands
,.. (1976) 2 sec s21
H " (2001>2 sec 1
JUSTICE K S PUTTASWAMY (RETD.) v. UNION OF INDIA 999

over-ruled; A
(iii)The right to privacy is protected as an intrinsic part of the right
to Iife 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 (iii) above lay down the correct position in law. B

Devika Guj ral Referred issue answered.

;.