On 24 August 2017, all nine judges of a specially constituted Constitution Bench agreed on one proposition: privacy is a fundamental right protected by the Indian Constitution. The ruling in Justice K S Puttaswamy (Retd.) v. Union of India, [2017] 10 S.C.R. 569, settled a question that had been left open — and answered incorrectly — since the 1950s. Two earlier eight-judge benches, M P Sharma v. Satish Chandra and the majority in Kharak Singh v. State of Uttar Pradesh, had held that no free-standing right to privacy existed under the Constitution. Both decisions were overruled.

The bench — Chief Justice Jagdish Singh Khehar, Justice J. Chelameswar, Justice S. A. Bobde, Justice R. K. Agrawal, Justice R. F. Nariman, Justice Abhay Manohar Sapre, Justice Dr. D. Y. Chandrachud, Justice Sanjay Kishan Kaul, and Justice S. Abdul Nazeer — delivered six separate but concurring opinions. The lead judgment on behalf of Chief Justice Khehar, Justice Agrawal, Justice Nazeer, and Justice Chandrachud was authored by Justice Chandrachud. Each of the remaining five judges wrote individually. All nine reached the same operative conclusion.

How the Reference Arose

The petition — Writ Petition (Civil) No. 494 of 2012 — challenged the Aadhaar scheme, which required biometric enrolment as a condition for accessing government benefits. The Union of India's defence rested partly on the submission that no fundamental right to privacy existed in Indian constitutional law, and that recognising such a right would require a constitutional amendment rather than judicial interpretation. That preliminary issue was referred to the nine-judge bench.

The government's argument had a textual hook: the Constitution, unlike the Fourth Amendment to the United States Constitution, contains no express privacy clause. M P Sharma had used precisely that absence to hold that the framers did not intend to protect privacy. The bench rejected this reading comprehensively.

Overruling M P Sharma and Kharak Singh

Justice Chandrachud's lead opinion examined M P Sharma and found it analytically narrow. That eight-judge bench had asked only whether the absence of a Fourth Amendment equivalent meant privacy could not be read into Article 20(3). It never examined whether privacy arose from Article 21 or any other provision of Part III. The failure to ask the right question meant the answer could not be authoritative on the broader issue. M P Sharma was overruled to the extent it suggested privacy was not constitutionally protected.

The treatment of Kharak Singh was more surgical. The majority in that case had struck down provisions allowing domiciliary visits at night — finding they violated what it called "ordered liberty" — while simultaneously declaring that privacy was not a guaranteed right. Justice Chandrachud identified the internal contradiction: the majority had implicitly recognised privacy when it struck down the night visits, then explicitly denied its existence in the same breath. The first part of Kharak Singh was affirmed; the second was overruled.

Justice Chelameswar was equally direct about the Kharak Singh majority's logic: the approach of recognising an interest as constitutionally protected in its outcome while denying it in doctrine was, in his assessment, "illogical and against settled principles of interpretation."

The Constitutional Location of Privacy

All six opinions agreed that privacy resides in Article 21, but the reasoning differed in texture and emphasis — and the differences matter for how the right will be applied.

Justice Chandrachud grounded privacy in dignity. The Preamble's commitment to fraternity, which assures the dignity of the individual, runs through the whole of Part III. Dignity is not a free-floating aspiration; it has constitutional weight. Privacy, in this framework, is the condition that makes dignity possible: it secures the inner recesses of the human personality from unwanted intrusion and recognises the autonomy of the individual to make choices that define the course of a life. Without privacy, the liberty guaranteed by Article 21 would be formal rather than substantive.

Justice Chandrachud also addressed the government's submission that recognition of a privacy right required constitutional amendment. He rejected it as resting on a false premise — the assumption that privacy is independent of the liberties already in Part III.

"Privacy recognises the autonomy of the individual and the right of every person to make essential choices."

Justice Nariman located privacy in the inalienability of the rights to life and liberty. India ratified both the 1948 Universal Declaration of Human Rights and the 1966 International Covenant on Civil and Political Rights, both of which describe these rights as inalienable. Section 2(1)(d) of the Protection of Human Rights Act, 1993 treats rights referable to international covenants and enforceable by Indian courts as "human rights." On this reading, Article 21 does not create privacy — it reflects a right that pre-exists the Constitution and inheres in persons by virtue of their humanity.

Justice Chelameswar analysed the word "liberty" in Article 21 and concluded it was wide enough to encompass not only the freedoms enumerated in Article 19(1) but also others not listed. He identified three facets of privacy — repose, sanctuary, and intimate decision — and held that each was so essential to human liberty that there was no basis for doubting their constitutional status. Fundamental rights, in his formulation, are the only constitutional firewall against State interference with the core freedoms that constitute liberty.

Justice Bobde held that privacy is the necessary condition precedent to the enjoyment of any of the guarantees in Part III. A right to privacy may therefore be situated not only in Article 21 but simultaneously in other provisions depending on which freedom its violation curtails. Any interference with privacy by an entity covered by Article 12's description of the "State" must satisfy the tests applicable to whichever Part III freedom is affected.

Justice Sapre emphasised privacy's natural law character: it is an inalienable natural right that inheres in every human being at birth and cannot be separated from the individual. Justice Kaul characterised privacy as not merely a common law right but a fundamental right — and observed that the Constitution, as a living document, must evolve to meet contemporary challenges, including those posed by surveillance technology.

Privacy Is Not Absolute: The Three-Part Test

Recognition as a fundamental right does not mean the right is unlimited. All six opinions were clear on this. The Court laid down a three-part test, drawn from the requirements of Article 21 read with Article 14, for assessing whether a State interference with privacy is constitutionally permissible.

An invasion of privacy must satisfy: first, legality — the interference must be authorised by law; second, legitimate aim — the State must pursue a goal that the law recognises as a valid objective, such as national security, crime prevention, or the equitable delivery of welfare benefits; and third, proportionality — there must be a rational nexus between the objective and the means used to achieve it, and the means must not go beyond what is necessary.

The procedure authorised by the law must itself be fair, just, and reasonable. Article 14's guarantee against arbitrariness infuses Article 21: a law that satisfies the procedural requirements of Article 21 but is arbitrary in its content will not pass constitutional muster.

Justice Chelameswar added a further option at the outer edge: for the most serious intrusions, the State may need to demonstrate a "compelling State interest" — a standard that sets a higher bar than mere legitimate aim.

Informational Privacy and the Data Protection Mandate

The Court went beyond the abstract constitutional question to address what it called informational privacy — the right to control personal data. Justice Chandrachud held that the dangers to privacy in an information age can originate from non-State actors as well as the State, and that this demanded a legislative response. The Union Government was directed to put in place a robust data protection regime. Such a regime would require a careful balance between individual interests and legitimate State concerns, including national security, the prevention of crime, and the prevention of welfare fraud.

Justice Kaul was equally direct: the State must ensure that information is not used without the consent of users and that it is used only for the purpose and to the extent it was disclosed. This was not a passing observation — it was framed as a constitutional obligation.

This portion of the judgment provided much of the legal foundation for the subsequent drafting of what became the Digital Personal Data Protection Act, 2023, though that legislation post-dates the judgment and the source material does not address it.

Sexual Orientation, Majoritarianism, and Discrete Minorities

Both Justice Chandrachud and Justice Kaul addressed the relationship between privacy and sexual orientation, in the context of the challenge to Section 377 IPC that was then pending before a separate bench. The treatment was brief but consequential.

Justice Chandrachud articulated the anti-majoritarian principle:

"The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion."

Discrete and insular minorities face heightened risks of discrimination because their views, beliefs, or way of life do not conform to the mainstream. Constitutional rights exist precisely to protect them. Justice Kaul agreed, adding that the right of privacy cannot be denied even if the group affected is a miniscule fraction of the population. Sexual orientation, he held, is undoubtedly an attribute of privacy.

These observations set the doctrinal stage for the eventual decision in Navtej Singh Johar v. Union of India, which read down Section 377 the following year.

ADM Jabalpur Finally Buried

Justice Kaul's opinion also addressed the shadow cast by ADM Jabalpur v. Shivkant Shukla (1976) 2 SCC 521 — the Emergency-era ruling in which the Supreme Court held that the right to life could be suspended during a Proclamation of Emergency. He endorsed the view, expressed in Justice Chandrachud's opinion and elsewhere, that ADM Jabalpur had been an aberration in constitutional jurisprudence and that the majority opinion deserved to be buried, with no prospect of revival. Justice Chandrachud's opinion went further: even in the absence of Article 21, it would not have been permissible for the State to deprive a person of life and liberty without the authority of law, because these rights pre-exist the Constitution.

Order

The Court disposed of the reference in four operative directions. First, the decision in M P Sharma which holds that the right to privacy is not protected by the Constitution stands overruled. Second, the decision in Kharak Singh to the extent that it holds that the right to privacy is not protected by the Constitution stands overruled. Third, 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. Fourth, subsequent decisions that had recognised privacy as a fundamental right lay down the correct position in law. The cases were sent back to a three-judge bench for adjudication on merits in light of the judgment.