Right to privacy

Topic: Fundamental Rights and Constitutional Remedies · NCERT: Class 11, Ch 1 "Political Theory: An Introduction"; Class 11, Ch 5 "Rights"; Class 11, Ch 2 "Rights in the Indian Constitution"

Meaning

The right to privacy is a person's right to be left alone and to control their own body, choices, personal space and personal information. A nine-judge bench of the Supreme Court held unanimously that it is a fundamental right built into Article 21 (life and personal liberty), and that it also flows from the other freedoms in Part III (K.S. Puttaswamy v. Union of India, 24 August 2017).

It matters because no article of the Constitution names it. The courts read it into Article 21. It is now the base for rulings on Aadhaar, surveillance, sexual orientation and personal choice. It is also the test that data and surveillance laws must pass.

Explanation

How the right came into the Constitution

• Article 21 says no person shall lose life or personal liberty except by a procedure established by law.
• Judges have read "life" to mean a life with dignity, not just staying alive.
• Olga Tellis (1985) held that the right to livelihood (the right to earn a living) is part of Article 21. That case started the "life with dignity" line of thinking.

• The right to privacy grew out of the same reading.

• NCERT's point is that the meaning of rights grows through judicial interpretation (judges explaining what the words of the Constitution mean).

• South Africa's Constitution names a right to privacy directly.
• India's Constitution does not, so in India the right came through court rulings.

What privacy covers

• Personal intimacies, family life, marriage, procreation (having children) and the home.
• Sexual orientation, which is part of a person's identity.
• Control over personal information. This is the base for data protection and the right to be forgotten: the right to have old, wrong or private information about oneself removed, hidden or de-linked (cut off) from online search results.
• Privacy is also the base for autonomy, meaning a person's freedom to make their own choices. This covers:
• choice of partner;
• reproductive choice;
• a living will.

Limits: the three-part test

Privacy is not absolute. The State may limit it, but only if every limit passes all three parts of this test:

Test	Simple meaning
Legality	A law must allow the intrusion. An executive order alone is not enough.
Necessity / legitimate aim	The law must serve a valid State purpose, such as national security or stopping crime.
Proportionality	The intrusion must match the need. The State should choose the least harmful way, and there must be procedural safeguards (rules that prevent misuse).

• In the Pegasus case (Manohar Lal Sharma v. Union of India, 2021), the Court said a vague plea of "national security" does not end judicial review (the courts' power to check whether State action is lawful).

In the Constitution and practice

• Constitutional base: Article 21 and the freedoms in Part III. The right is not written in any article.
• Puttaswamy (2017): nine judges, unanimous. It overruled two earlier cases:
• M.P. Sharma (1954, eight judges), which had said the Constitution has no right to privacy.
• Kharak Singh (1962, six judges), which had found that privacy is not a guaranteed right.

• The plurality (the main opinion, signed by four judges) also rejected ADM Jabalpur (1976), the Emergency-era case that said Article 21 could be suspended.

• Aadhaar judgment (Puttaswamy II, 26 September 2018):

• The Aadhaar Act, 2016 was upheld for welfare delivery.

• Section 57, which let private companies use Aadhaar to check identity, was struck down.

• Pegasus case (2021): there were claims that spyware was used on citizens' phones. The Court set up an independent expert committee to look into them.

• Navtej Singh Johar (6 September 2018, five judges):
• IPC s.377 was read down (narrowed by the Court, not fully struck down). Consensual sex between adults of the same sex is no longer a crime.
• One of the grounds was privacy, because sexual orientation is part of identity (Puttaswamy).

• It overruled Suresh Kumar Koushal (2013).

• Other cases built on privacy, dignity and autonomy:

• Shafin Jahan (Hadiya case, 2018): choosing a partner is part of Article 21.
• Common Cause (2018): recognised the living will (a written instruction refusing life-prolonging treatment in advance).

• X v. Principal Secretary (2022): unmarried women may also seek abortion up to 24 weeks.

• Digital Personal Data Protection (DPDP) Act, 2023 (Act No. 22 of 2023):

• Section 12 gives a Data Principal (the person the data is about) the right to correction, completion, updating and erasure of personal data they had consented to share [3].
• Some erasure duties do not apply when the State or its bodies process data [3].

• None of the Data Principal's rights apply to processing for the prevention, investigation or prosecution of offences. Notified agencies can also be exempted for security, sovereignty or public order [2].

• Right to be forgotten:

• High Courts have recognised it case by case, for example in requests to hide names in old judgments. The Supreme Court has not yet laid down a general rule.

• It now has a statutory form as the right to erasure under DPDP s.12 [3].

• DPDP Rules, 2025:

• Notified on 14 November 2025, after 6,915 public comments [4].
• The Data Protection Board of India is fully digital and has four members [4].
• Duties of data fiduciaries (the bodies that handle personal data) take effect after an 18-month phase-in [4].

Don't confuse with

• Right to be forgotten / right to erasure: this is one part of privacy that deals only with removing or de-linking personal information. Privacy itself is wider: it covers the body, the home, choices and identity.
• Fundamental right to marry: Puttaswamy lists marriage within privacy. But in Supriyo Chakraborty (17 October 2023), the Court said there is no fundamental right to marry, because marriage is a legal status created by law. Recognising same-sex marriage was left to Parliament [5].
• Absolute right: privacy is not absolute. The State can limit it if the limit passes legality, necessity and proportionality.
• Express (written) right: in South Africa, privacy is written into the Constitution. In India it is implicit: the courts read it into Article 21 and Part III.

Prelims Hooks

• Puttaswamy (24 August 2017): nine judges, unanimous. It held privacy intrinsic to Article 21 and Part III.
• Overruled cases: M.P. Sharma (1954, eight judges) and Kharak Singh (1962, six judges). The plurality opinion also rejected ADM Jabalpur (1976).
• Trap: no article of the Constitution names privacy. "Article 21 expressly guarantees privacy" is wrong.
• Aadhaar (2018): the Act was upheld, but s.57 (private companies' use of Aadhaar) was struck down.
• DPDP Act 2023: the right to erasure is in s.12 [3]. The DPDP Rules were notified on 14 November 2025. The Data Protection Board has four members [4].
• Navtej (2018) used Puttaswamy's privacy reasoning to read down s.377 and overrule Koushal (2013).

Mains Points

• Privacy and State power:
• Puttaswamy requires legality, necessity and proportionality.
• The DPDP Act's broad exemptions for the State and for crime prevention [2], and incidents like Pegasus, raise a question: can executive agencies exempt themselves without independent oversight?

• Reform ideas: a surveillance law with judicial warrants, and a Data Protection Board with independent members.

• Privacy as the root of autonomy and dignity:

• From Puttaswamy came rulings on sexual orientation (Navtej), choice of partner (Hadiya), abortion (X v. Principal Secretary, 2022) and living wills (Common Cause).
• These rulings turn the State's role from "guardian" into "protector of choice".

• Supriyo (2023) shows the limit: rights that need a new legal status, such as marriage, are left to Parliament [5]. This is useful for answers on judicial activism versus judicial restraint.

• Rights by interpretation versus rights by text:

• India got privacy through judicial interpretation, while South Africa wrote it into its Constitution.
• The court route lets rights grow with the times. But it leaves gaps, such as the right to be forgotten, which High Courts decide case by case.
• Statute can fill these gaps, as DPDP s.12 now does for erasure [3].

Related concepts

• K.S. Puttaswamy case
• Right to be forgotten
• Navtej Singh Johar case
• Joseph Shine case
• Supriyo Chakraborty case
• Right to marry of one's choice
• Reproductive autonomy
• Passive euthanasia
• Living will
• Vishaka case

Read more

• Life and personal liberty II: privacy, autonomy and dignity