A reserved its order on the petitions.

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main issue in the case was whether privacy is a fundamental right guaranteed
under the Constitution. Details on how the issue arose: As it so happened, that
the Attorney General of India had stood up during the time when the Aadhar
scheme was challenged, and had asserted that the Constitution did not guarantee
any Fundamental Right to Privacy. The three judges hearing the casereferred the
Constitutional question to a larger bench of five judges. The five-judge bench further
referred the case to a nine-judge bench. Hence, the question to be decided by the
nine-judge bench of the Supreme Court in the present case was whether right to
privacy was a fundamental right under the Indian Constitution.

three-judge bench on a series of petitions challenging the Aadhaar scheme as a
violation of privacy, had clarified that demands made by officials for Aadhaar
card was in clear violation of a prior Supreme Court’s interim order which
stated that Aadhaarscheme is voluntary. Thereafter, the Centre argued in the Court, that Constitution makers did not intend to
make right to privacy a fundamental right. The Centre argued thus, that there
was no fundamental right to privacy. And consequently, the Centre stated that
the petitions filed before the Court under article 32 should be dismissed. The
Centre had made two basic assertions- that Right to privacy is not absolute,
and that the Right to privacy is subject to restrictions in public interest.

three-judge Bench reserved its order on the petitions. The petitions had
basically challenged the Aadhaar card project, by stating that its bio-metric
registration process and linkage to basic and essential subsidies, was a
violation of the citizens’ right to privacy. The Centre thereafter sought a
larger bench to answer questions of law, primarily whether privacy is a
fundamental right guaranteed under the Constitution.

three-judge Bench held that “balance of interest” is better served if Aadhaar
is made neither mandatory nor a condition for accessing benefits one is already
entitled to. The lower court therefore clarified the interim order will remain
in force till a five-judge bench decided on the larger constitutional issue
whether the Aadhaar scheme, and its biometric mode of registration, amounts to
an intrusion into the privacy of a citizen.

Supreme Court referred to a Constitution Bench the question whether a person
can voluntarily shed his right to privacy by enrolling for Aadhaar to easily
access government welfare services. The Bench did not modify its earlier Order
restricting the use of Aadhaar cards to only public distribution system and LPG
connections. Instead, it left the order open for the Constitution Bench to
consider it and take a call.

Supreme Court under then Chief Justice of India H.L. Dattu decided to set up
another Constitution Bench to re-look the question in the light of controversy
that the Aadhaar card scheme is an invasion into citizen’s privacy. In October
2015, the Supreme Court extended the voluntary use of Aadhar card to the
Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA), all types of
pensions schemes, employee provident fund and the Prime Minister Jan
DhanYojana. The five-judge Constitution Bench led by Chief Justice of India H.L.
Dattu stated that the purely voluntary nature of the use of Aadhaar card to
access public service will continue till the court takes a final decision on
whether Aadhaar scheme is an invasion into the right to privacy of the citizen.




five-judge Bench of Chief Justice J.S. Khehar, Justices Chelameswar, Bobde,
D.Y. Chandrachud and S. Abdul Nazeerhad decided that a nine-judge Bench of the
Supreme Court should first decide the question whether privacy is a fundamental
right and part of the basic structure of the Indian Constitution. There were
two judgments of the Supreme Court on the subject — the M.P. Sharma case
verdict pronounced by an eight-judge Bench shortly after the Indian
Constitution came into force in 1950 and the Kharak Singh case
verdict of 1962 by a six-judge Bench. It was these two judgments that had
dominated the judicial dialogue on privacy since Independence. Both judgments
had concluded that privacy was not a fundamental or ‘guaranteed’ right. To
overcome these two precedents, a numerically superior Bench of nine judges, as
in the present case, was required.


Kharak Singh, the Supreme Court had considered the constitutionality of various
forms of police surveillance upon a “history-sheeter”. It had upheld reporting
requirements, travel-restrictions, shadowing and so on, but had struck-down a
tab on the nightly visits as being a violation of “ordered liberty”. Thus, the
court had actually allowed right to privacy on certain aspects, like keeping a
tab on a person who is on his nightly visits to other’s houses.


in the M.P Sharma case, the court had refused to accept privacy as a part of
fundamental right because the court had refused to find a similarity between
the American Fourth Amendment which relates to protecting “the right of the
people to be secure in their persons, houses, papers and effects, against
unreasonable searches and seizures” and Article 20(3) of the Constitution which
relates to the protection against self-incrimination.




decision in M.P Sharma case, which held that the right to privacy is not
protected by the Constitution, now stands overruled. Justice Nariman, Justice
Chelameshwar, Justice Bobde, and Justice Chandrachud held that the American
Fourth Amendment could not be incorporated into the guarantee against
self-incrimination in the Indian Constitution. However, the Fourth Amendment,
which was limited to protecting “the right of the people to be secure in their
persons, houses, papers and effects, against unreasonable searches and
seizures” was not, and had never been, exhaustive of the concept of the Right
to Privacy. Therefore, even if M.P Sharma was correct in refusing to find a
similarity with the Fourth Amendment in Article 20(3) of the Indian Constitution,
that was no warrant to hold that there was no Fundamental Right to Privacy.


court stated that Privacy is a much broader concept. In the words of Justice
Bobde, ” M.P Sharma is unconvincing not only because it arrived at it’s
conclusion without enquiry into whether a right to privacy could exist in our
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”.


decision in Kharak Singh case which held that the right to privacy is not
protected by the Constitution, also now stands overruled. In Kharak Singh, the
Supreme Court had considered the constitutionality of various forms of police
surveillance upon a “history-sheeter”. It had upheld reporting requirements,
travel-restrictions, shadowing and so on, but had struck-down a tab on the
nightly visits as being a violation of “ordered liberty”. The Court, while
rejecting Kharak Singh, said that the Kharak Singh judgment was internally
contradictory. On the one hand, the Kharak Singh judgment said that privacy is
not a fundamental right, and on the other hand, it strikes down a tab on the
nightly visits, which could only be done when the privacy was a part of the
Fundamental Rights. Justice Nariman had noted, “as the majority judgment
contradicts itself on certain vital aspects, it can be correct to say that it
cannot be given much value as a binding precedent”.


judgment of the court is path breaking. The court could have given it a narrow
cast and frame, or the court could have simply limited the right to privacy to
just being an aspect of dignity. The court may even have given the right to
privacy as a restrictive right as just being derived from Article 21. The
court, however, did entirely opposite. All nine judges agreed that privacy was
at the heart of individual self-determination, of dignity, autonomy and liberty,
and inseparable from the meaningful exercise of guaranteed freedoms such as
speech, dignity, association, movement, and personal liberty.This, in my view,
is the primary reason why this judgment deserves to be a landmark in
constitutional interpretation and practice. This judgment does not ignore the
world in which individuals struggle against coercive State power, and thus
includes a string of ideas that give it meaning and significance. The freedom
under Article 19 can be fulfilled only when an individual is entitled to decide
upon his or her preferences. Liberty enables the individual to have a choice of
preferences on various facets of life including how one will eat, the way one
will dress, the faith one will follow and many other matters on which autonomy
and self-determination require a choice to be made. The constitutional right to
freedom of religion under Article 25 has implicit within it the ability to
choose a faith and the freedom to express or not express it. These are some
illustrations of the manner in which the privacy facilitates freedom and is
intrinsic to the exercise of individual liberty. The Constitution does not
contain a separate article telling us that privacy is a fundamental right. It
is basically a constitutional value which moves across the spectrum of
fundamental rights and protects the individual of his choices and



is undoubtedly a historic and landmark verdict of recent times, and one of the
most important civil rights judgment delivered by the Supreme Court in its
history. Apart from affirming the existence of a fundamental right to privacy
under the Indian Constitution, the case will have a huge impact on our
historical and constitutional landscape for years to come. It will hugely
impact the interplay between privacy and the freedom of speech. It will also
impact the State surveillance, data collection and data protection, LGTB
rights, the legality of food bans, the legal framework for regulating
artificial intelligence, as well as many other issues which we cannot foresee
or anticipate. It has been very well said by many teachers and scholars on the
subject, that the full benefit of the judgment can only be ascertained when it
is applied to actual State actions that undermine privacy. Adherence to
constitutional principle is not just an academic exercise, but requires a
protection of real rights and liberties.

it can be said that the nine-judge bench has given us an outstanding foundation
for a progressive civil liberties jurisprudence, which is located in the ideals
of liberty, autonomy, dignity and privacy. In the times to come, citizens will
look to the Court to build on that foundation and carry it forward. In future,
the situations that come before the Court will no longer be abstract, and the
pressures will be real rather than just academic. And thus, it can be said in
conclusion that although the effects of the judgment for the future can only be
seen later as they cannot be anticipated, but the fact that the individuals
rights have been granted protection in the case against the State claims gives
us a good cause for celebrations.

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