ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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The Supreme Court’s Right to Privacy Judgment

The decision of the nine-judge bench of the Supreme Court in Puttaswamy v Union of India, handed down in late August 2017, affirmed the existence of the fundamental right to privacy under the Constitution. This article examines some of the underlying themes and implications of the judgment: in particular, its affirmation of the individual as the basic normative unit of the Constitution, its elaboration of privacy in terms of bodily integrity, informational self-determination, and decisional autonomy, and the narrow framework within which the state may impose limitations upon it.

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.

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Updated On : 7th Nov, 2017

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