Life and personal liberty II: privacy, autonomy and dignity

Detail

1. Why Art. 21 keeps growing

• Art. 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. Through this reading, Art. 21 now covers privacy, choice of partner, control over one's body and dying with dignity.
• NCERT's lesson: the meaning of rights has grown through judicial interpretation (judges explaining what the words of the Constitution mean). Some newer constitutions write these rights in directly. For example, South Africa's Constitution names a right to privacy. India's Constitution does not, so the right came through court rulings.
• Earlier link: Olga Tellis (1985) held that the right to livelihood (the right to earn a living) is part of Art. 21. That case started the "life with dignity" line of thinking.

2. K.S. Puttaswamy (Privacy) case, 2017

• Right to privacy: a person's right to be left alone and to control their own body, choices, personal space and personal information.
• Judgment: 24 August 2017. Nine judges, unanimous. Privacy is intrinsic (built into) Art. 21 and also flows from the freedoms in Part III.
• Cases overruled:
• M.P. Sharma (1954), eight judges: it had said the Constitution has no right to privacy.
• Kharak Singh (1962), six judges: its finding that privacy is not a guaranteed right was rejected.

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

• What privacy covers: personal intimacies, family life, marriage, procreation (having children), the home and sexual orientation. Privacy is not absolute. Any limit must pass a proportionality test.

• Three-part test for any intrusion on privacy:

Test	Simple meaning
Legality	There must be a law that allows 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 against misuse.

3. Follow-on cases and laws

• Aadhaar judgment (Puttaswamy II, 26 September 2018):
• The Aadhaar Act, 2016 was upheld for welfare delivery.

• Section 57 was struck down. It had let private companies use Aadhaar to check identity.

• Pegasus case (Manohar Lal Sharma v. Union of India, 2021): there were claims that spyware was used on citizens' phones. The Court said a vague plea of "national security" does not end judicial review. It set up an independent expert committee to look into the claims.

• 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].
• State exemption: when the State or its bodies process data, some erasure duties do not apply. These are s.12(3), s.8(7), and s.12(2) where the data is not used for a decision about the person [3].
• None of the rights of Data Principals apply to processing for the prevention, investigation or prosecution of offences. Notified agencies can be exempted for security, sovereignty or public order. Research, archiving and statistics are also exempt [2].

• Critics say these broad State exemptions weaken the three-part Puttaswamy test [2].

• DPDP Rules, 2025:

• The Rules were notified on 14 November 2025, after 6,915 public comments [4].
• Rules on the Data Protection Board of India took effect at once. The Board is fully digital and has four members [4].
• Duties of data fiduciaries take effect after an 18-month phase-in [4].
• Consent Managers (bodies that help people give and withdraw consent) must be Indian companies [4].

• (NCERT-based note: "Rules — verify current". The Rules have now been notified.)

• Right to be forgotten: the right to have old, wrong or private information about oneself removed, hidden or de-linked from online search results.

• High Courts have recognised it case by case, for example in requests to hide names in old judgments or acquittals. 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].

4. Sexual autonomy and equality

• NALSA v. Union of India (2014):
• It recognised transgender persons as a "third gender".

• Their rights to equality, expression and dignity apply. It also held that a person can identify their own gender.

• Navtej Singh Johar v. Union of India (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.
• s.377 still applied to non-consensual acts, minors and bestiality.
• It overruled Suresh Kumar Koushal (2013), which had brought back s.377 in full.

• Grounds:

  • dignity;
  • privacy, where sexual orientation is part of identity (Puttaswamy);
  • equality under Arts. 14 and 15;
  • constitutional morality: the values of the Constitution, not the majority's social morals, must guide the courts.

• Joseph Shine v. Union of India (27 September 2018, five judges):

• Adultery (IPC s.497) was struck down. That section punished only the man, and only if the husband had not consented. It treated the wife as the husband's property.
• The Court called it manifestly arbitrary (clearly unreasonable, so it violates Art. 14).
• It also held the law against women's dignity and equality under Arts. 14, 15 and 21.

• The Bharatiya Nyaya Sanhita (BNS), 2023, which replaced the IPC, has no adultery offence.

• Supriyo Chakraborty v. Union of India (17 October 2023, five judges) [5]:

• There is no fundamental right to marry. Marriage is a legal status created by statute.
• Recognising same-sex marriage is for Parliament. The Court did not change the Special Marriage Act, 1954.
• A 3:2 majority declined to recognise civil unions (a legal status for couples, with some of the rights of marriage).
• It recorded the Union's offer to form a committee to look at entitlements of queer couples, such as ration cards, bank nominations and medical decisions.
• It affirmed the right of queer persons to form relationships and to protection from harassment by police and family.
• (Review petitions — verify current status.)

5. Choice of partner

• Right to marry a person of one's choice: the freedom of an adult to choose their own life partner, whatever their caste or religion, without interference from family or community.
• Lata Singh v. State of U.P. (2006): an adult woman may marry anyone. The Court ordered police to protect inter-caste couples from harassment.
• Shafin Jahan v. Asokan K.M. (Hadiya case, 2018): the Kerala High Court had annulled an adult woman's marriage. The Supreme Court set that order aside. Choosing a partner is part of Art. 21 and of personal liberty.

• Shakti Vahini v. Union of India (2018): khap panchayats (unelected caste or clan councils) cannot stop such marriages or punish couples. "Honour killings" are illegal. The Court set preventive, remedial and punitive guidelines for police and district officials.

• NCERT link (keps202): NCERT's chapter gives a case study of a caste panchayat punishing a couple for an inter-caste marriage. It asks which rights were violated (Art. 21, Art. 14 and Art. 15). These cases are the legal answer.

6. Reproductive autonomy

• Reproductive autonomy: a woman's right to decide whether, when and how to have children, including the choice of abortion. This is part of Art. 21.
• Suchita Srivastava v. Chandigarh Administration (2009): a woman's reproductive choice is part of personal liberty under Art. 21. A woman with a mild intellectual disability could not be forced to end her pregnancy.
• MTP (Amendment) Act, 2021:
• It changed the Medical Termination of Pregnancy Act, 1971.
• The upper limit for abortion was raised from 20 to 24 weeks for special groups of women, such as rape survivors and minors.

• In the clause on contraceptive failure, "married woman or her husband" became "woman or her partner".

• X v. Principal Secretary, Health & Family Welfare Dept., Govt. of NCT of Delhi (2022):

• Unmarried women may also seek abortion up to 24 weeks. Treating them differently from married women breaks Arts. 14 and 21.
• For abortion under the MTP Act only, "rape" includes marital rape.

7. End of life

• Gian Kaur v. State of Punjab (1996, five judges): Art. 21 does not include a right to die. Suicide-related offences were upheld. The Court did say that the right to life includes dying with dignity at the natural end of life.
• Passive euthanasia: letting a terminally ill or permanently unconscious patient die by withdrawing or withholding life support, such as a ventilator or feeding tube.

• Active euthanasia is different: it means giving a lethal substance to end life. It is still illegal in India.

• Aruna Shanbaug v. Union of India (2011): passive euthanasia was allowed for the first time, with High Court approval in each case. Aruna's own request was refused.

• Common Cause v. Union of India (2018, five judges):
• The right to die with dignity is part of Art. 21.

• It recognised the living will (also called an advance medical directive). This is a written instruction by an adult of sound mind refusing life-prolonging treatment in advance, for a time when they can no longer decide.

• 2023 change (Common Cause modification): the Court simplified the steps. A notary or gazetted officer can attest the living will, in place of a magistrate. Hospital medical boards must decide within fixed time limits.

8. Dignity at the workplace

• Vishaka v. State of Rajasthan (13 August 1997):
• This was a PIL (public interest litigation: a case filed for the public good) by women's groups.
• It followed the gang rape of Bhanwari Devi, a Rajasthan government social worker, who was attacked for trying to stop a child marriage.
• There was no law on sexual harassment at work. The Court framed binding guidelines based on Arts. 14, 15, 19(1)(g) (right to practise any profession) and 21.

• It read these rights together with CEDAW (the UN Convention on the Elimination of All Forms of Discrimination Against Women, which India ratified in 1993). Under Art. 51(c) and Art. 253, international law can fill gaps where Indian law is silent.

• How the guidelines became law:

• Vishaka guidelines (1997) → Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) → the Act took effect on 9 December 2013 [7].
• Internal Committee (IC): every workplace with 10 or more workers must set one up. At least half its members must be women. One member must come from an NGO or be familiar with sexual harassment issues [6][7].
• Local Committee (LC): the District Officer sets one up for workplaces with fewer than 10 workers, or when the complaint is against the employer [6].

• A complaint must be made within three months of the incident, or of the last incident in a series [6].

• Aureliano Fernandes v. State of Goa (2023): the Court found serious gaps in setting up ICs. It ordered the Union, the states and public bodies to form ICs and publish their details.

• Judicial law-making: Vishaka is the classic case of courts making rules when the legislature has not acted (a legislative vacuum). It is praised as activism that protects rights. It is criticised for crossing the separation of powers. The full debate is covered under the judiciary.

Prelims Hooks

• Puttaswamy (2017): nine judges, unanimous. It overruled M.P. Sharma (1954, eight judges) and Kharak Singh (1962, six judges). Trap: privacy is not written in any article. Courts read it into Art. 21 and Part III.
• Aadhaar (2018): the Act was upheld, but s.57 (private use of Aadhaar) was struck down.
• Navtej (2018) overruled Koushal (2013). s.377 was read down, not fully struck down. Joseph Shine (2018) struck down s.497 using Arts. 14, 15 and 21. The BNS 2023 has no adultery offence.
• Supriyo (17 October 2023): no fundamental right to marry. Civil unions were rejected 3:2. Same-sex marriage was left to Parliament.
• DPDP Act 2023: the right to erasure is in s.12. The DPDP Rules were notified on 14 November 2025. The Data Protection Board has four members [3][4].
• Gian Kaur (1996): no right to die. Aruna Shanbaug (2011): passive euthanasia allowed. Common Cause (2018): living wills recognised, procedure simplified in 2023. Active euthanasia is still illegal.
• X v. Principal Secretary (2022): the 24-week abortion limit applies to unmarried women too, and marital rape counts as rape for MTP purposes.
• Vishaka (1997): Arts. 14, 15, 19(1)(g) and 21 with CEDAW, leading to the POSH Act 2013. An IC is required for 10 or more workers, and complaints are due within 3 months [6].
• Shakti Vahini (2018): khap panchayats and honour killings. Shafin Jahan (2018): the Hadiya case, where an adult chose her own partner.

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; a Data Protection Board with independent members.

• Constitutional morality and majority morality:

• Navtej and Joseph Shine protect individual dignity against social disapproval.
• Supriyo shows the limit of the courts: rights that need new legal status, such as marriage, are left to Parliament.

• This is useful for GS-II answers on judicial activism versus judicial restraint.

• Autonomy as the common thread:

• Choice of partner, abortion, a living will and sexual orientation all turn the State's role from "guardian" into "protector of choice".

• The gaps remain: access to abortion in rural areas, a complex living-will procedure despite the 2023 change, and khap violence that continues despite Shakti Vahini.

• Judicial guidelines to statute:

• The path from Vishaka to the POSH Act shows courts filling a legislative vacuum.
• Weak implementation shows that court guidelines alone are not enough without enforcement: Internal Committees are often not set up (Aureliano Fernandes, 2023), and informal-sector workers depend on Local Committees.