Right to Privacy Is a Fundamental Right Under Article 21 and Part III: Supreme Court

While a three-Judge Bench heard challenges to the Aadhaar scheme, the Attorney General argued that a fundamental right to privacy was in doubt because of M P Sharma (eight Judges) and Kharak Singh (six Judges), which contained observations that the Constitution does not protect privacy (Chandrachud J., para 3). Smaller Benches had later recognised the right, in Gobind, Rajagopal and PUCL (para 4). On 11 August 2015 the Bench sought a larger Bench, and on 18 July 2017 a Constitution Bench placed the question before nine Judges (paras 4-5). The issues were whether privacy is constitutionally protected, its content, and the correctness of the earlier decisions (para 7).

Dr Chandrachud J., for himself, Khehar CJI, Agrawal J. and Nazeer J., held that M P Sharma decided only that a search and seizure is not testimonial compulsion under Article 20(3); its remark on privacy was "no more than a passing observation" (paras 25-26, 88). Kharak Singh struck down night domiciliary visits on reasoning grounded in privacy yet denied the right, an "internal inconsistency" (paras 27, 89). The basis of both, the Gopalan view of rights as separate compartments, had given way after Cooper and Maneka (para 24). Privacy is not a privilege for the few, nor merely a common law right (paras 157-158). The plurality also overruled ADM Jabalpur (para 121). Its conclusions (Part T) describe privacy as "the constitutional core of human dignity", not lost in a public place and not absolute: an invasion under Article 21 needs a law, a legitimate state aim and proportionality. Informational privacy is a facet of the right, and the Union was asked to put a robust data protection regime in place (Part T). Chelameswar, Bobde, Nariman, Sapre and Kaul JJ. delivered separate judgments, and all nine Judges signed the Order of the Court (Order of the Court, paras 1-2).