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(2017) 10 SCC 1




Justice J.S Khehar (CJI), Justice Jasti Chelameswar, Justice D Y Chandrachud, Justice Rohinton Nariman, Justice R K Agarwal, Justice Sanjay Kishan Kaul, Justice A Nazeer, Justice SA Bobde, Justice A M Sapre


Justice K.S. Puttaswamy (Retd.), a retired judge of the Madras High Court, challenged the constitutional validity of the Aadhaar scheme. He argued that the scheme violated the right to privacy. A three-judge bench held that a larger bench should determine whether the Constitution of India guarantees a right to privacy.  A nine-judge bench decided this case.


The Court considered whether the right to privacy is a part of the right to life and personal liberty under Article 21 of the Constitution.

The Rights Framework

The Court held that privacy is an attribute of human dignity. The right to privacy safeguards one’s freedom to make personal choices and control significant aspects of their life. In addition, it noted that personal intimacies (marriage, procreation and family), including sexual orientation, are at the core of an individual’s dignity.

Further, the Court described discrimination on the basis of sexual orientation as “deeply offensive to dignity and self-worth”. It noted that the right to privacy was at the intersection of Articles 15 and 21 of the constitution, by referring to its decision in NALSA which grants the right to self-recognition of gender. It stated that the right to privacy was an expression of individual autonomy, dignity, and identity.

Therefore, the right to privacy and sexual orientation is at the core of the right to equality, non-discrimination and life. The Court held that the identity of all individuals must be protected without discrimination because sexual orientation is an essential component of one’s identity.

The Court observed that the right to privacy is primarily derived from Article 21. However, it is also supplemented by the values enshrined in other fundamental rights. Therefore, it advocated for a holistic view of fundamental rights. 

Natural Rights

The Court acknowledged that certain rights are not bestowed by the State but are inhered by a person by virtue of being human. All individuals have natural rights, irrespective of their class, economic status, gender or sexual orientation. Significantly, the right to self-determine sexual orientation was also recognised as a natural right.

India’s International Obligations 

The Court urged India to adhere to the international human rights regime. This argument was based on Article 51 of the Constitution which requires the state to respect International Law. More specifically, the Court noted that the right to privacy was guaranteed under Article 12 of the Universal Declaration of Human Rights and Article 21 of the International Convention on Civil and Political Rights.

The Court also relied on NALSA, which applied the Yogyakarta Principles, to hold that in the absence of a specific prohibition, international principles which are aligned with the Constitution must be read into fundamental rights.

Striking down the decision in ‘Suresh Koushal v. Naz Foundation’

In Suresh Kumar Koushal vs. Naz Foundation, the Supreme Court had rejected a challenge to Section 377 of the Indian Penal Code. The case had argued that Section 377 violated the right to dignity and to privacy. Then, the Court had observed that Section 377 affected only a “minuscule fraction of the country’s population”. On this basis, it refused to strike down the provision.

In contrast, the Court held that majoritarian opinion could not determine the exercise of fundamental rights.  In other words, whether a law violated the right to privacy did not depend on the number of people affected by the law. Further, the Court argued that this standard was unsustainable and likely to amount to a grave violation of an individual’s right to equality.

Additionally, the Court held in Koushal, the use of “so-called rights of LGBT persons” had been inappropriate. It noted that LGBT  rights were founded on the right to life, privacy, and dignity, and were founded on sound Constitutional doctrine.

Not an Elitist Construct

The Court dismissed the argument that there must be a trade-off between the right to privacy and welfare entitlements provided by the State. It held that there is no substance in the argument that the right to privacy is “a privilege for the few”. Further, it argued against the claim that economic status was a priority, over civil and political rights, for socio-economically disadvantaged communities. The Court recognised the right of all individuals to privacy, autonomy and intimacy, irrespective of their socio-economic status.

The Court noted that the collection of information about a person gives power over them. Consequently, it observed that this would have a chilling effect not only on the expression of dissent but also on the exercise of fundamental rights.

Not an Absolute Right

The Court held that similar to the right to life and personal liberty, the right to privacy may be limited by a procedure established by law. The invasion of privacy must be through a fair, reasonable and just procedure. It must meet the three conditions of legality, the existence of a legitimate state aim and proportionality. Legitimate state aims would include national security concerns, preventing and investigating crime, and preventing the dissipation of social welfare benefits.


This judgement was the first time that the Supreme Court recognised the rights of the LGBT community in India. The judgement included the right to determine the sexual orientation and the right to privacy. By linking the privacy to LGBTI issues, this judgment fuelled the fire for the challenge to Section 377 of the Indian Penal Code, which came in the form of Navtej Singh Johar v. State of India in 2017