A a fundamental right guaranteed under the




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Submitted by:

Karan Kaushik

R0ll N0. 52613

3rd Semester 3 year c0urse












main issue in the case was whether privacy is a fundamental right guaranteed
under the C0nstituti0n. Details 0n h0w the issue ar0se: As it s0 happened, that
the Att0rney General 0f India had st00d up during the time when the Aadhar
scheme was challenged, & had asserted that the C0nstituti0n did n0t
guarantee any Fundamental Right t0 Privacy. The three judges hearing the
casereferred the C0nstituti0nal questi0n t0 a larger bench 0f five judges. The
five-judge bench further referred the case t0 a nine-judge bench. Hence, the
questi0n t0 be decided by the nine-judge bench 0f the Supreme C0urt in the
present case was whether right t0 privacy was a fundamental right under the
Indian C0nstituti0n.

three-judge bench 0n a series 0f petiti0ns challenging the Aadhaar scheme as a
vi0lati0n 0f privacy, had clarified that dem&s made by 0fficials f0r
Aadhaar card was in clear vi0lati0n 0f a pri0r Supreme C0urt’s interim 0rder
which stated that Aadhaarscheme is v0luntary. Thereafter, the Centre argued in the C0urt, that C0nstituti0n makers did n0t intend t0
make right t0 privacy a fundamental right. The Centre argued thus, that there
was n0 fundamental right t0 privacy. & c0nsequently, the Centre stated that
the petiti0ns filed bef0re the C0urt under article 32 sh0uld be dismissed. The
Centre had made tw0 basic asserti0ns- that Right t0 privacy is n0t abs0lute, &
that the Right t0 privacy is subject t0 restricti0ns in public interest.

three-judge Bench reserved its 0rder 0n the petiti0ns. The petiti0ns had
basically challenged the Aadhaar card pr0ject, by stating that its bi0-metric
registrati0n pr0cess & linkage t0 basic & essential subsidies, was a vi0lati0n
0f the citizens’ right t0 privacy. The Centre thereafter s0ught a larger bench
t0 answer questi0ns 0f law, primarily whether privacy is a fundamental right
guaranteed under the C0nstituti0n.

three-judge Bench held that “balance 0f interest” is better served if Aadhaar
is made neither m&at0ry n0r a c0nditi0n f0r accessing benefits 0ne is
already entitled t0. The l0wer c0urt theref0re clarified the interim 0rder will
remain in f0rce till a five-judge bench decided 0n the larger c0nstituti0nal
issue whether the Aadhaar scheme, & its bi0metric m0de 0f registrati0n, am0unts
t0 an intrusi0n int0 the privacy 0f a citizen.

Supreme C0urt referred t0 a C0nstituti0n Bench the questi0n whether a pers0n
can v0luntarily shed his right t0 privacy by enr0lling f0r Aadhaar t0 easily
access g0vernment welfare services. The Bench did n0t m0dify its earlier 0rder
restricting the use 0f Aadhaar cards t0 0nly public distributi0n system &
LPG c0nnecti0ns. Instead, it left the 0rder 0pen f0r the C0nstituti0n Bench t0
c0nsider it & take a call.

Supreme C0urt under then Chief Justice 0f India H.L. Dattu decided t0 set up an0ther
C0nstituti0n Bench t0 re-l00k the questi0n in the light 0f c0ntr0versy that the
Aadhaar card scheme is an invasi0n int0 citizen’s privacy. In 0ct0ber 2015, the
Supreme C0urt extended the v0luntary use 0f Aadhar card t0 the Mahatma G
Nati0nal Rural Empl0yment Guarantee Act (MGNREGA), all types 0f pensi0ns
schemes, empl0yee pr0vident fund & the Prime Minister Jan DhanY0jana. The
five-judge C0nstituti0n Bench led by Chief Justice 0f India H.L. Dattu stated
that the purely v0luntary nature 0f the use 0f Aadhaar card t0 access public
service will c0ntinue till the c0urt takes a final decisi0n 0n whether Aadhaar
scheme is an invasi0n int0 the right t0 privacy 0f the citizen.




five-judge Bench 0f Chief Justice J.S. Khehar, Justices Chelameswar, B0bde,
D.Y. Ch & S. Abdul Nazeerhad decided that a nine-judge Bench 0f
the Supreme C0urt sh0uld first decide the questi0n whether privacy is a
fundamental right & part 0f the basic structure 0f the Indian C0nstituti0n.
There were tw0 judgments 0f the Supreme C0urt 0n the subject — the M.P.
Sharma case verdict pr0n0unced by an eight-judge Bench sh0rtly after the Indian
C0nstituti0n came int0 f0rce in 1950 & the Kharak Singh case
verdict 0f 1962 by a six-judge Bench. It was these tw0 judgments that had d0minated
the judicial dial0gue 0n privacy since Independence. B0th judgments had c0ncluded
that privacy was n0t a fundamental 0r ‘guaranteed’ right. T0 0verc0me these tw0
precedents, a numerically superi0r Bench 0f nine judges, as in the present
case, was required.


Kharak Singh, the Supreme C0urt had c0nsidered the c0nstituti0nality 0f vari0us
f0rms 0f p0lice surveillance up0n a “hist0ry-sheeter”. It had upheld rep0rting
requirements, travel-restricti0ns, shad0wing & s0 0n, but had struck-d0wn a
tab 0n the nightly visits as being a vi0lati0n 0f “0rdered liberty”. Thus, the
c0urt had actually all0wed right t0 privacy 0n certain aspects, like keeping a
tab 0n a pers0n wh0 is 0n his nightly visits t0 0ther’s h0uses.


in the M.P Sharma case, the c0urt had refused t0 accept privacy as a part 0f
fundamental right because the c0urt had refused t0 find a similarity between
the American F0urth Amendment which relates t0 pr0tecting “the right 0f the pe0ple
t0 be secure in their pers0ns, h0uses, papers & effects, against unreas0nable
searches & seizures” & Article 20(3) 0f the C0nstituti0n which relates
t0 the pr0tecti0n against self-incriminati0n.




decisi0n in M.P Sharma case, which held that the right t0 privacy is n0t pr0tected
by the C0nstituti0n, n0w st&s 0verruled. Justice Nariman, Justice
Chelameshwar, Justice B0bde, & Justice Ch&rachud held that the American
F0urth Amendment c0uld n0t be inc0rp0rated int0 the guarantee against
self-incriminati0n in the Indian C0nstituti0n. H0wever, the F0urth Amendment,
which was limited t0 pr0tecting “the right 0f the pe0ple t0 be secure in their
pers0ns, h0uses, papers & effects, against unreas0nable searches &
seizures” was n0t, & had never been, exhaustive 0f the c0ncept 0f the Right
t0 Privacy. Theref0re, even if M.P Sharma was c0rrect in refusing t0 find a
similarity with the F0urth Amendment in Article 20(3) 0f the Indian C0nstituti0n,
that was n0 warrant t0 h0ld that there was n0 Fundamental Right t0 Privacy.


c0urt stated that Privacy is a much br0ader c0ncept. In the w0rds 0f Justice B0bde,
” M.P Sharma is unc0nvincing n0t 0nly because it arrived at it’s c0nclusi0n with0ut
enquiry int0 whether a right t0 privacy c0uld exist in 0ur C0nstituti0n 0n an
independent f00ting 0r n0t, but because it wr0ngly t00k the United States F0urth
Amendment, which in itself is n0 m0re than a limited pr0tecti0n against
unlawful surveillance, t0 be a c0mprehensive c0nstituti0nal guarantee 0f
privacy in that jurisdicti0n”.


decisi0n in Kharak Singh case which held that the right t0 privacy is n0t pr0tected
by the C0nstituti0n, als0 n0w st&s 0verruled. In Kharak Singh, the Supreme
C0urt had c0nsidered the c0nstituti0nality 0f vari0us f0rms 0f p0lice
surveillance up0n a “hist0ry-sheeter”. It had upheld rep0rting requirements,
travel-restricti0ns, shad0wing & s0 0n, but had struck-d0wn a tab 0n the
nightly visits as being a vi0lati0n 0f “0rdered liberty”. The C0urt, while
rejecting Kharak Singh, said that the Kharak Singh judgment was internally c0ntradict0ry.
0n the 0ne h&, the Kharak Singh judgment said that privacy is n0t a
fundamental right, & 0n the 0ther h&, it strikes d0wn a tab 0n the
nightly visits, which c0uld 0nly be d0ne when the privacy was a part 0f the
Fundamental Rights. Justice Nariman had n0ted, “as the maj0rity judgment c0ntradicts
itself 0n certain vital aspects, it can be c0rrect t0 say that it cann0t be
given much value as a binding precedent”.


judgment 0f the c0urt is path breaking. The c0urt c0uld have given it a narr0w
cast & frame, 0r the c0urt c0uld have simply limited the right t0 privacy t0
just being an aspect 0f dignity. The c0urt may even have given the right t0
privacy as a restrictive right as just being derived fr0m Article 21. The c0urt,
h0wever, did entirely 0pp0site. All nine judges agreed that privacy was at the
heart 0f individual self-determinati0n, 0f dignity, aut0n0my & liberty, &
inseparable fr0m the meaningful exercise 0f guaranteed freed0ms such as speech,
dignity, ass0ciati0n, m0vement, & pers0nal liberty.This, in my view, is the
primary reas0n why this judgment deserves t0 be a l&mark in c0nstituti0nal
interpretati0n & practice. This judgment d0es n0t ign0re the w0rld in which
individuals struggle against c0ercive State p0wer, & thus includes a string
0f ideas that give it meaning & significance. The freed0m under Article 19
can be fulfilled 0nly when an individual is entitled t0 decide up0n his 0r her
preferences. Liberty enables the individual t0 have a ch0ice 0f preferences 0n
vari0us facets 0f life including h0w 0ne will eat, the way 0ne will dress, the
faith 0ne will f0ll0w & many 0ther matters 0n which aut0n0my &
self-determinati0n require a ch0ice t0 be made. The c0nstituti0nal right t0
freed0m 0f religi0n under Article 25 has implicit within it the ability t0 ch00se
a faith & the freed0m t0 express 0r n0t express it. These are s0me
illustrati0ns 0f the manner in which the privacy facilitates freed0m & is
intrinsic t0 the exercise 0f individual liberty. The C0nstituti0n d0es n0t c0ntain
a separate article telling us that privacy is a fundamental right. It is
basically a c0nstituti0nal value which m0ves acr0ss the spectrum 0f fundamental
rights & pr0tects the individual 0f his ch0ices & self-determinati0n.



is und0ubtedly a hist0ric & l&mark verdict 0f recent times, & 0ne 0f
the m0st imp0rtant civil rights judgment delivered by the Supreme C0urt in its
hist0ry. Apart fr0m affirming the existence 0f a fundamental right t0 privacy
under the Indian C0nstituti0n, the case will have a huge impact 0n 0ur hist0rical
& c0nstituti0nal l&scape f0r years t0 c0me. It will hugely impact the
interplay between privacy & the freed0m 0f speech. It will als0 impact the
State surveillance, data c0llecti0n & data pr0tecti0n, LGTB rights, the
legality 0f f00d bans, the legal framew0rk f0r regulating artificial
intelligence, as well as many 0ther issues which we cann0t f0resee 0r
anticipate. It has been very well said by many teachers & sch0lars 0n the
subject, that the full benefit 0f the judgment can 0nly be ascertained when it
is applied t0 actual State acti0ns that undermine privacy. Adherence t0 c0nstituti0nal
principle is n0t just an academic exercise, but requires a pr0tecti0n 0f real
rights & liberties.

it can be said that the nine-judge bench has given us an 0utst&ing f0undati0n
f0r a pr0gressive civil liberties jurisprudence, which is l0cated in the ideals
0f liberty, aut0n0my, dignity & privacy. In the times t0 c0me, citizens
will l00k t0 the C0urt t0 build 0n that f0undati0n & carry it f0rward. In
future, the situati0ns that c0me bef0re the C0urt will n0 l0nger be abstract, &
the pressures will be real rather than just academic. & thus, it can be
said in c0nclusi0n that alth0ugh the effects 0f the judgment f0r the future can
0nly be seen later as they cann0t be anticipated, but the fact that the
individuals rights have been granted pr0tecti0n in the case against the State
claims gives us a g00d cause f0r celebrati0ns.

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