On a plethora of cases that have flooded various Courts in the country challenging the imposition of Aadhaar on citizens as a mandatory identity proof and linking the unique ID to almost all personal identification documents including PAN, Phone Number, Social Welfare Schemes, etc. and with the impending proposal of the Law Commission to link Aadhaar with the Compulsory Registration of Marriage[i], today’s 9-bench Supreme Court decision on the matter bears great relevance to the notion of privacy in India. Before the Bench decides on the matter, let us take a peep into the backdrop of the situation and analyze the earlier stand taken by Indian courts towards privacy of its citizens.

The Right to Privacy in India

The Constitution of India does not contain any express provision for protecting privacy, but on several occasions the question has been addressed under the Right to Life[ii], and the possibility of including the right in the purview of a broadened concept of Right to Life. The Supreme Court considered the question in the case of M P Sharma v Satish Chandra[iii], where an 8-Judge bench decided that “….search and seizure is an overriding power of the State for the protection of social security… Constitution makers have thought fit  not  to  subject  such  regulation to constitutional limitations  by recognition  of the  fundamental  right  to privacy.. there is no justification  for  importing  into  it,  a  totally different  fundamental right by some  process of  strained construction..”. The decision did not allow Privacy to be incorporated into the available Fundamental Rights, and upheld the State’s power to monitor social security.

Further, in Kharak Singh v State of UP[iv] the Court ruled that “the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III”.

In Rajagopal v State of Tamil Nadu[v], the Supreme Court held that “…..Right to privacy is not enumerated as a fundamental right in our Constitution but has been inferred from Article 21.” The Court also went ahead to state that “…any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child-rearing”.

The Aadhaar Issue with Privacy

Justice K S Puttaswamy (Retd.) v Union of India[vi] bears great relevance in this regard, as the Aadhaar Scheme was challenged in several petitions claiming that collection of such biometric data is violative of the “right to privacy. In the said case, it was pleaded by Attorney General and the other Senior counsel that “…to settle the legal position, this batch of matters is required to be heard by a larger Bench of this Court as these matters throw up for debate important questions..”

The Court identified two questions that need to be considered in arriving at a decision on the matter:

  • Whether there is any “right to privacy” guaranteed under our Constitution.
  • If such a right exists, what is the source and what are the contours of such a right as there is no express provision in the Constitution adumbrating the right to privacy.


The Court in the case declared that “…the cases on hand raise far reaching questions of importance involving interpretation of the Constitution. …. pronouncement made by larger Benches of this Court cannot be ignored by the smaller Benches without appropriately explaining the reasons for not following the pronouncements made by such larger Benches. to give a quietus to the kind of controversy raised in this batch of cases once for all, it is better that the ratio decidendi of M.P. Sharma (supra) and Kharak Singh (supra) is scrutinized and the jurisprudential correctness of the subsequent decisions of this Court where the right to privacy is either asserted or referred be examined and authoritatively decided by a Bench of appropriate strength.”

Subsequent to the havoc caused by the outpour of challenges against Aadhaar, Chief Justice Mr. K.S. Khehar has formed a Bench of Nine Judges who will bring a final settlement on the question whether Right to Privacy is a Fundamental right or not, and if so, then the Constitutionality of collecting and storing biometric and social data by way of Aadhaar will be examined.



[i] 270th Report of the Law Commission of India

[ii] Art.21, Constitution of India

[iii] 1954 AIR 300

[iv] 1964 SCR (1) 332

[v] 1995 AIR 264



Categories: law

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