RIGHT TO PRIVACY is now a Fundamental Right under Article 21 | Supreme Court’s Order

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  • Supreme Court recently passed a judgement declaring Right to Privacy as a Fundamental Right under Article 21.
  • This judgement was passed unanimously by a Constitutional Bench of 9 Judges with a 9:0 Verdict (all 9 Judges voting in favour)

“Right to Privacy is intrinsic to Right to Life & Personal Liberty granted under Article 21 of the Constitution” – Supreme Court

  • Supreme Court overruled the earlier eight-judge bench judgment in MP Sharma case (1954) and six-judge bench judgment in Kharak Singh case (1962) – both of which had ruled that privacy is not a Fundamental Right.
  • Privacy includes the reservation of personal intimacies, sanctity of family life, marriage, procreation, the home and sexual orientation
  • Privacy connotes a right to be left alone.
  • It safeguards, individual autonomy and recognises one’s ability to control vital aspects of his/her life.
  • Privacy is not an absolute right, but any invasion must be based on legality, need and proportionality.
  • Informational Privacy is a facet of this right. Dangers to this can originate from both state & non-state actors.
  • Government must put in place a robust regime for data protection. It must bring about a balance between individual interests and legitimate state concerns.


  • The order is based on an array of petitions that have challenged the mandatory use of Aadhaar cards which assign a unique 12-digit ID to every citizen. The Aadhaar database links iris scans and fingerprints to more than a billion people.
  • The contentious issue of privacy had emerged when the apex court was dealing with a batch of petitions challenging the government’s move to make biometric-based Aadhaar mandatory for availing the benefits of various social welfare schemes.
  • There were fears the data could be misused by a government that argues Indians have no right to privacy. There have been recurring reports of Aadhaar details being leaked. UIDAI has said that its data is secure.
  • The 5 Judge Bench hearing the Aadhar Case referred the issue of Right to Privacy to a 9 Judge Constitutional Bench as the earlier ruling on Right to Privacy was by a 8 Judge Bench and to overrule that Judgement, a numerically superior Bench was required.


  • The bench has decided in favour of a fundamental right to privacy existing under the Indian Constitution.
  • This bench did not decide the fate of Aadhaar; only the nature and status of the right to privacy under the constitution.
  • It does not comment on whether the government’s demand for Aadhar to be linked to all financial transactions amounts to an infringement of privacy.
  • That decision will be taken by a separate and smaller bench of the Supreme Court.

For beginners, it is important to have a quick recap of the Concepts of Fundamental Rights & Privacy. To understand Fundamental Rights in detail, Watch our Lecture Video on Fundamental Rights.


  • The Fundamental Rights are enshrined in Part-III of the Indian Constitution from Articles 12-35.
  • They are Justiciable in Nature i.e they are guaranteed by the Courts to all individuals equally.
  • They prevent the establishment of an authoritarian and despotic rule in the country, and protect the liberties and freedoms of the people against the invasion of the State.
  • They operate as limitations on the tyranny of the executive and arbitrary laws of the legislature.


  • Article 21 talks about Protection of life and personal liberty
  • It declares that no person shall be deprived of his life or personal liberty except according to procedure established by law.
  • This Right is available to both citizens & non-citizens.
  • The Supreme Court has re-affirmed in the Menaka case & subsequent cases that various other rights fall under Article 21.


  • A precise legal definition of ‘privacy’ doesn’t exist.
  • Some legal experts define privacy as a human right.
  • International charters, like the Article 12 of the Universal Declaration of Human Rights, protect persons against “arbitrary interference” with one’s privacy.
  • Privacy can mean a range of things: the right to be left alone, freedom to dissent or protection from state surveillance.


  • We live in an era where Right to Privacy is not absolute.
  • Everyday we use the Internet & other Technologies to great extent and all of us are part of the “Big Data” world.
  • Technological advancement is required to cater to the growing demand for social, economical & intellectual development of the society.
  • Technology cannot advance without involvement of it’s users. Hence, although Right to Privacy is a very important part of our lives and should protect us from data thefts & deliberate spying by the state but, there should be some basic regulations to help the technological community thrive.

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