The Supreme Court’s Right to Privacy Judgment

Perhaps everyone in the courtroom was surprised when, on 11 August 2015, during the constitutional challenge to the Aadhaar scheme before a three-judge bench of the Supreme Court, the Attorney-General for India stood up and said that “the legal position regarding the existence of the fundamental right to privacy [under the Indian Constitution] is doubtful” (Puttaswamy v Union of India 2015: para 3). Admittedly, the constitutional text did not guarantee a fundamental right to privacy in so many words; and, of course, there were two old judgments of the Supreme Court, M P Sharma v Satish Chandra (1954) and Kharak Singh v State of UP (1964) that seemed to suggest that there was no fundamental right to privacy under the Constitution.

However, for the last 40 years, since the judgment in Gobind v State of MP (1975), the Supreme Court had consistently held that privacy was a fundamental right; it was an aspect (at the very least) of the right to life and personal liberty under Article 21 of the Constitution.¹ The right to privacy had been applied by the Supreme Court in the context of police surveillance (Gobind v State of MP 1975), phone tapping (PUCL v Union of India 1997), disclosure of bank records (District Registrar and Collector v Canara Bank 2005), disclosure of medical records (Mr X v Hospital Z 1998), publication of unauthorised biographies (R Rajagopal v State of Tamil Nadu 1994), invasive police interrogation (Selvi v State of Karnataka 2010), and followed by the high courts.² The jurisprudence was patchy and inconsistent at times (Bhatia 2014), but there was little controversy over the basic proposition that, whatever its scope, contours, or limitations, privacy was a fundamental right.