Quick answer
Yes. In Justice K.S. Puttaswamy (Retd.) v. Union of India (24 August 2017), a nine-judge bench of the Supreme Court unanimously held that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as part of the freedoms guaranteed by Part III of the Constitution. The word "privacy" does not appear in the text, but the right flows from liberty and dignity. It is not absolute: a restriction must satisfy legality, a legitimate aim and proportionality.
The case
Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1, AIR 2017 SC 4161, Supreme Court of India, 24 August 2017. Nine judges: J.S. Khehar, CJI, J. Chelameswar, S.A. Bobde, R.K. Agrawal, R.F. Nariman, A.M. Sapre, D.Y. Chandrachud, S.K. Kaul and S. Abdul Nazeer, JJ. The lead judgment was delivered by Chandrachud, J for four judges; five judges wrote separate concurring judgments. The question arose in the challenge to the Aadhaar scheme, when the Attorney General argued that earlier benches had denied a constitutional right to privacy.
The order of the Court
- M.P. Sharma v. Satish Chandra (1954, eight judges), to the extent it held that privacy is not protected by the Constitution, stands overruled.
- Kharak Singh v. State of U.P. (1962, six judges), to the same extent, stands overruled.
- Privacy is protected under Article 21 and as part of the freedoms in Part III.
- Later decisions that recognised privacy after Kharak Singh state the correct law.
Key points
- What privacy covers: the lead judgment says privacy includes at its core personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation, and that informational privacy (control over personal data) is a facet of the right.
- Test for restrictions (lead judgment): an invasion of life or personal liberty must meet three requirements: (i) legality, meaning a law must exist; (ii) need, meaning a legitimate State aim; and (iii) proportionality, meaning a rational nexus between the objects and the means adopted. Proportionality means the State must not restrict a right more than its aim justifies.
- ADM Jabalpur: the lead judgment called the four majority opinions in ADM Jabalpur (1976) "seriously flawed" and said that case must be and is overruled. See ADM Jabalpur v. Shivkant Shukla (1976).
Privacy judgment (2017) versus Aadhaar judgment (2018)
| Point | Puttaswamy (2017) | Puttaswamy (Aadhaar) (2018) |
|---|---|---|
| Bench | Nine judges | Five judges |
| Question | Is privacy a fundamental right? | Is the Aadhaar Act valid? |
| Result | Yes, unanimously | Act largely upheld; the part of Section 57 letting a body corporate or individual seek Aadhaar authentication held unconstitutional, and Section 33(2) struck down |
A State education department orders every student, including Armaan, to upload his full medical history to a public portal so that colleges can "plan better". Applying Puttaswamy, a court would ask whether there is a law authorising this, whether the aim is legitimate, and whether publishing the whole record is necessary when a narrower step, such as sharing only relevant information with authorised staff, would do. Public upload of the entire file is likely to fail the proportionality test.
Exam point
Puttaswamy (2017, nine judges, unanimous): privacy is a fundamental right under Article 21 and Part III; M.P. Sharma and Kharak Singh overruled to that extent; restrictions must pass legality, legitimate aim and proportionality.
