Privacy as a Fundamental Right

In one line

Nine judges held in 2017 that privacy is protected by the Constitution, and they did so because a technology had made the question impossible to avoid.

In the wording a student can write in an exam: in Justice K.S. Puttaswamy (Retd.) v. Union of India the Supreme Court, sitting in nine judges, over-ruled M P Sharma and, to the extent that it so held, Kharak Singh, and declared that 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.

Why the question arose when it did

Privacy had been argued in India for sixty years without being settled, and it was settled in 2017 for the reason this whole book is about: a technology was built, and the question could no longer be postponed.

Facts. A Bench of three judges hearing the challenge to the Aadhaar scheme recorded, by its order of 11 August 2015, that the norms for and the compilation of demographic and biometric data by the Government were being questioned as a violation of the right to privacy. The Attorney General argued that the existence of a fundamental right of privacy was itself in doubt, relying on observations in M P Sharma and Kharak Singh, decisions of eight and six judges. The petitioners answered that both rested on an approach later held not to be good law. Because the decisions that had since recognised privacy were given by smaller Benches, the question was referred upwards, and on 18 July 2017 a Constitution Bench directed that it be placed before nine judges.

Notice the shape of that. Nobody asked the Court an abstract question about privacy. A biometric identification programme was built, and the argument that there was no right for it to infringe made the anterior question unavoidable. That is the proposition of [How a Technology Becomes a Rights Question] happening in a courtroom.

What the Court decided

Held. Justice K.S. Puttaswamy (Retd.) v. Union of India, AIR 2017 SC 4161, decided on 24 August 2017 by nine judges, disposed of the reference in four terms. 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 stands over-ruled to the extent that it so holds. 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. Decisions subsequent to Kharak Singh which have enunciated that position lay down the correct position in law.