Right To Privacy As A Fundamental Right - Analyzing Developments Post-Puttaswamy Judgment

Author: LawSphereX

Category: Constitutional & Human Rights

Published: 2026-08-23T20:58:29.703555+00:00

Updated: 2026-08-26T17:09:37.075+00:00

RIGHT TO PRIVACY AS A FUNDAMENTAL RIGHT:

ANALYZING DEVELOPMENTS POST-PUTTASWAMY

JUDGMENT

Radhika Chachria, Symbiosis Law School, Noida

ABSTRACT

This Article discusses the Puttaswamy Judgment and its aftereffects, Right to Privacy got a significant recognition after this judgment, This judgment has overturned several previous judgments while recognizing the Right to Privacy, it established a three-pronged test for legitimate privacy intrusions: the principles of legality, necessity, and proportionality. In its broadest sense, the right to privacy has indeed influenced various areas of Indian law such as:

1. Data Protection: Following the Puttaswamy judgment, there has been a

development of a Data Protection Bill which seeks to govern the processing of personal information.

2. Women’s Rights: The judgment has been employed to advance women’s

reproductive autonomy and combustion of prejudice practices.

3. Rights of LGBTQ+ Community: It was instrumental in the process of

decriminalising homosexuality through the Navtej Singh Johar v. Union of India (2018). Therefore, the Puttaswamy judgment has indeed been a ruling of much rejoicing which has brought privacy rights a long way in India. But nonetheless there is still much work to be done but the above judgments have paved the way for further growth.

INTRODUCTION

The Puttaswamy Judgment was a 9-member bench Judgment, which laid the foundation of the ‘Right to Privacy’ as a Fundamental Right. The Right to Privacy was further questioned in “Vinit Kumar vs. Union of India”1, the court used the judgment of K. S. Puttaswamy vs. UOI to bring to light that the Right to Privacy can’t be infringed Arbitrarily. This decision reversed the judgment of “M. P. Sharma and Ors. vs Satish Chandra”2 and “Kharak Singh vs State of Uttar Pradesh”3 in which it was held that the Right to Privacy isn’t protected in the Constitution. There needs to be a test of Reasonability, and “The due process of Law” must be followed to do surveillance on one’s phone. The Judgment brought about the Proportionality test. 4 During the framing of the Constitution in the 1950s, the makers didn’t find it important to include the Privacy of an Individual as a Fundamental Right.

Several scandals occurred recently, such as the Cambridge Analytica scandal in 2018, the Facebook-WhatsApp data-sharing arrangement in 2014, the FBI vs Apple dispute over data access, Snowden’s leaks about governmental surveillance, etc. 5 This case dealt with the validity of the Aadhar Card, with which the Government asked for an individual's biometric information to provide certain benefits, subsidies, and equal opportunity to the citizens, and soon it became mandatory for filing Income Tax Returns. For this, In 2012, a writ petition was issued by K. S. Puttaswamy and challenged the constitutionality of the Aadhar Card as it violated the fundamental right to citizens' privacy. This judgment was passed on August 24, 2017, recognizing this essential right.

It was contended that The Aadhar Act of 2016, which asked for the disclosure of information from an individual, including his religion, would violate Article 256 of the Constitution. The court maintained that The intrusion of Privacy can only be done if it meets three necessities:

1 Vinit Kumar v. CBI, 2019 SCC OnLine Bom 3155

2 M.P. Sharma v. Satish Chandra, (1954)1 SCC 385

3 Kharak Singh v. State of U.P.,1962 SCC OnLine SC 10

4 Bharat Vasani, Ramgovind Kuruppath & Samiksha Pednekar, Surveillance in the Post-Puttaswamy

Era(Nov.11,2019), https://corporate.cyrilamarchandblogs.com/2019/11/surveillance-post-puttaswamy-era-rightto-privacy/ 5 Vrinda Bhandari & Renuka Sane, Protecting Citizens from the State Post Puttaswamy: Analysing the Privacy Implications of the Justice Srikrishna Committee Report and the Data Protection Bill, 2018, 14 SOCIO-LEGAL

REV. 143 (2018)

6 The Indian Constitution, Art. 25, 1950

1. Legality:

The Intrusion has to be sanctioned by Law, which should be just and not arbitrary; a legislative mandate is essential for intrusion, which can’t be arbitrarily infringed upon Legislative or administrative actions.

2. Necessity

The intrusion should only be there if there is a necessity, with the state having a legitimate interest and when it is in the Nation’s interest.

3. Proportionality

This test draws a connection between the objective and the means to achieve that particular objective. This principle states that the means used should be reasonable and not excessive. This project delves deeper into changes in the protection of the Privacy of an Individual concerning the Data Protection Bill, Changes in the protection of women's reproductive rights, and also opened the door for decriminalising same-sex Marriage after the Puttaswamy Judgment. The method of Research is secondary; several articles from HeinOnline, Jstor, Google Scholar, etc, have been used to make this project.

ANALYSIS

POST-PUTTASWAMY ERA

There hasn’t been a substantial change in the Post Puttaswamy world, which is evident with the Data leaks, increased Police Intrusion, Media Trials, Debates online on abusive subjects, etc.7 The underlying principles of Liberty, Dignity, and Autonomy were established in the Puttaswamy Judgment, which was without a doubt, this ruling has bolstered the women’s rights. They can directly approach the court for enforcement or violation of their rights. 7 Arya Ankit & Eeshaan Omkar, Analysis of the Right to Privacy Post Puttaswamy, 4 INDIAN J.L. & LEGAL

RSCH. 1 (2022)

EFFECT ON MARITAL RAPE

While this decision has proven to be of good consequence to women, ‘Marital Rape’ is one aspect that would be taken care of and would be duly recognized; At the same time, the IPC used to protect against Marital Rape, its decision has been overruled. The Right to Choose for women has been bolstered because of this Judgment. Justice Chelameswar’s statement, “The right to terminate the life of the fetus fits clearly within the scope of the right to privacy”8. This Judgment is a milestone for disadvantaged women by ensuring Gender Justice and challenging the patriarchy that restricts the freedom of Women because they now would have more control over their reproductive rights. Now, women would have privacy, which involves engaging in physical intimacy and bodily Autonomy. Also, as the court holds, the right to privacy isn’t absolute and can be intruded upon following certain procedures.

Therefore, the state has the power and responsibility to protect females from forceful sexual activities within their house. 9 The Puttaswamy judgment of 2017 established that reproductive rights are a part of the Right to Privacy; it maintained that it is the private matter of a woman to make decisions about her reproductive health, contraception, etc. While the Judiciary has recognized these rights of women but hasn’t directly challenged the penalization of Abortion. The Puttaswamy judgment marks the recognition of Privacy rights relating to reproduction amongst women. The Apex court cited its ruling in Suchita Srivastava that Article 2110, which talks about Personal liberty and includes a female’s right to make reproductive choices. Also, the court maintained one’s privacy fundamentally includes being able to keep one’s sexual orientation private.

11This aspect has been discussed further in a broader manner in the second section. Justice Chandrachud further reiterated that if privacy isn’t given to an Individual, he won’t be able to make private decisions, for, e. g. Whether or not to have an abortion. 12 Moreover, if the state is provided with unlimited access to data, women would access less medical help because 8 Manisha Rawat & Rajat Choudhary, Women's Right to Privacy: Post Justice K. S. Puttaswamy Case, 2 INDIAN J. INTEGRATED RSCH. L. 1 (2022).

9 Ibid

10 The Constitution of India, Art. 21, 1950

11 K.S. Puttaswamy v. Union of India, (2018) SCC OnLine SC 1642.

12Id. at 248 (Chandrachud, J.).

of social stigma around decisions of crucial medical health decisions due to lack of privacy and fear of leakage of data. 13 The Puttaswamy decision broadly transformed how the court comprehends and deciphers basic human rights. 14 The judgment can alter the structure as it mainly emphasizes bodily integrity and autonomy. Even Post Puttaswamy, there are still several restrictions in the framework of reproductive rights as the right to privacy is mainly rooted in “patriarchial views, women are restricted to the position of ‘natural’ carers”. 15 The Right to privacy is linked to the right to opt for what one wants to do with one's body, for that matter, Gender change or decisions about abortion. The Puttaswamy judgment was particularly cited in Sinha v. State of UP16 which observed that “the right to privacy cannot be understood as absolute.

” Privacy isn’t a strong right, so as a negative aspect, the government might still be able to restrict the time forward. The concept of privacy as the "right to be left alone" is more like a placeholder. A "sacrosanct sphere" is still left at the judges' discretion. 17 Also, due to judges' outdated and overprotective notions This opens the door for rights relating to Reproduction based on privacy to be susceptible to restrictions determined by the judges' paternalistic and conservative beliefs about gender roles. Without an equality analysis that understands policies that immoderately affect women are improper, the danger is that while privacy and choice may be upheld for nonmarginalized women, these s rights will be understood as justifiably encroached. Therefore, it is important to rethink whether a privacy-based rationale is enough to prop up a reproductive rights framework.

13 Id. at ¶ 141 (Chandrachud, J.)

14 Alok Prasanna Kumar, The Puttaswamy Judgment: Exploring Privacy Within and Without, 52 ECON. & POL.

WKLY. 34, 34 (2017)

15 Dipika Jain, Time to Rethink Criminalisation of Abortion? Towards a Gender Justice Approach, 12 N.U.J.S.L. REV. 2 (2019).

16 Ritesh Sinha v. State of U.P., (2019) 8 SCC 1

17 Pritam Baruah, Logic and Coherence in Naz Foundation: The Arguments of Non-Discrimination, Privacy, and Dignity, 2 N.U.J.S.L. REV. 505, 517 (2009)

One does find a turn in jurisprudence in the ruling of Johar, where an argument for equality was pressed into service by the Supreme Court to wash out marginalization and bias against the marginalized group involved. In this decision, the court gave a structure that could help understand how the rights to privacy, equality, and non-discrimination on sex and gender interplay. This judgment has primarily emanated from the K. S. Puttaswamy Judgment; states are obligated to repeal any legislation that perpetuates harmful gender stereotypes, particularly those that deal with sexual orientation. By touching their right to bodily autonomy of the women and taking away all their privileges of privacy and equality, restrictions on the right to an abortion marginalize them directly or indirectly. Hence, we can conclude from the above analysis that the K. S.

Puttaswamy Judgment plays a revolutionizing and pivotal role in the framework of reproductive rights in India.

IMPACT IN HOMOSEXUAL COMMUNITY

Homosexual activities are quite evident in the country, so many Pride parades, the Indian Gays falling in love, crossing cities to be with each other, etc. One’s sexual preference shouldn’t determine if they have the right to Privacy or not. A person’s sexual orientation is an essential component of their identity, which isn’t fulfilled when they are denied their right to Privacy and Dignity. A long-awaited judgment for LGBTQ+ rights was because of the philosophyreliant judgment of Puttaswamy. 18 In the Landmark Judgment of “Navtej Singh Johar vs Union of India”19, The Apex court legalized consensual sex between adults, irrespective of their Gender quotient, which was done by adopting a more liberal approach to interpret Section 37720, which earlier deemed such relations illegal.

This decision brings a stop to the struggle queer community was facing for their rights, and it is very evident that there is a progressive shift towards the inclusive and transformative approach to India’s constitutional Law. This judgment strongly emphasizes Personal Autonomy, Dignity, and Liberty as held in the Puttaswamy Judgment.

18 Supra( n 10)

19 Navtej Singh Johar vs Union of India, AIR 2018 SC 4321

20 The Indian Penal Code, 1860, § 377

The Puttaswamy Judgment of 2017 reopened the discussion of The Rights of LGBTQ+, highlighting the right to Privacy and the significance of safeguarding the rights of Minorities over Majoritarian views and opinions, establishing a foundation for the Johar judgment. 21 The Kaushal vs. Naz Foundation22 judgment was criticized for its misstep in upholding fundamental principles of the Constitution and its absence of compassion towards the Queer community. Their omission and lack of sympathy were criticized in the Judgments of Puttaswamy and Johar. The Hadiya Case23 was an important judgment in the context of queer rights, which dealt with the autonomy of a person and the right to make decisions of one’s own; it also highlighted the importance of Personal freedom and liberty in discussions regarding Constitutional Rights. The courts in Johar and Puttaswamy challenged Majoritarianism, i. e.

, the dominance of the majority’s views over the rights of the minorities. Puttaswamy’s judgment emphasizes the dignity of an individual, which helps safeguard and comprehend the rights of the LGBTQ+ community. It emphasizes an individual’s dignity and autonomy in Life, both in public and private areas. In the Puttaswamy case, the Apex court was compelled to address privacy as an “Elitist Value”. 24

DATA PROTECTION BILL

The Judgment of Puttaswamy struck down25 MP Sharma’s Judgment, holding that the Constitution doesn’t protect the Right to Privacy. In the pre-Puttaswamy era, the State, in the name of social security protection, conducted various searches and seizures while justifying that these measures were taken for the well-being of its citizens. But this was challenged, and the court emphasized that The Government can’t have an overriding power in the name of social security and must respect an Individual’s privacy and their inspection must be reasonable. After the Puttaswamy Judgment, there is an additional layer of Protection because

22 Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1

23 Shafin Jahan vs. Asokan K.M. and Ors., AIR 2018 SC 1933

24 Supra( n 10)

25Supra (n 10) [652.1] - [652.2]

now the government can’t rely on its own rules and regulations and has to ensure that there is no infringement of the fundamental Right to Privacy to carry on its Examinations and appropriations. 26 The judgment recognizes both Informational and Intellectual privacy as Fundamental. The Puttaswamy judgment keeps an individual and his rights at the center of its considerations and perceives the harm surveillance can cause to an individual. Puttaswamy’s robust conception of privacy clearly demonstrates surveillance impacts privacy, a facet of personal liberty under Article 21. The wording of Article 21 permits intrusion of liberty only through procedures “established by law”.

During the Puttaswamy case, To assess the Data protection norms in India, the state set up the Srikrishna Committee and released a “White Paper” on the protection of Data in 2017 and gave its final analysis with a draft law, The Personal Data Protection Bill, in 2018. Privacy concerns are not just about how the Government uses the data but also about the private sector; an Individual has higher expectations from the State than from a private entity because a state asks for consent, choice, and control, unlike the State, which has greater autonomy to use the data that too without consent. The Srikrishna committee made a public-private distinction. The Bill contains certain rules for when the user's consent is unnecessary to process the Data. It also enlists certain exceptions where these rules won’t apply.

One such key exception is for the Nation’s security, where to process the data, usual rules won’t have to be followed, but their action has to be authorized by law, and shouldn’t be arbitrary. These guidelines agree with the Apex court’s guidelines from the Puttaswamy case and are seen as a positive step towards protecting Privacy. 27 Several shortcomings in the bill passed, such as Section 42 of the Data Protection Bill28 exempting the government from disclosure and integrity measures, thus exempting from disclosure of surveillance operations, the amount of data collected, and its storage. 26 Vrinda Bhandari & Karan Lahiri, The Surveillance State, Privacy and Criminal Investigation in India: Possible Futures in a Post-Puttaswamy World, 2020 U. OXFORD HUM. RTS. HUB J. 15 (2020).

27 Supra( n,29)

28 Digital Personal Data Protection Act, 2013,§ 42

There have been several cases where evidence has been collected illegally, and the Law allows such evidence if it is relevant. The Bill remains silent on this issue, and because of this, Law enforcement authorities have no motivation whatsoever to adhere to Protocols. There is no distinction between what the state and private entities can do with our data because the state relies on private companies for surveillance tasks. The government increasingly relies on these private institutions to collect our Personal Data. Even after recognizing the danger of personal data being handled by private companies, a controversial part of the Bill is Section 40, which mandates that companies keep a specimen of personal data on their servers in India, which aims to protect them from any outside surveillance. Still, it raises concerns about potential large-scale governmental oversight.

The draft Bill offers strict protections for the data of a person, with special emphasis on protection from Private companies. There is a fine line between writing and enforcing regulations; the laws would only be effective if implemented effectively, which has historically been weak in India. While this Bill takes good steps toward regulating private entities, it must develop regulations to protect data from excessive governmental surveillance. Overall, the text of the Bill still has a regressive approach and does not align with The Puttaswamy Judgment.

CONCLUSION

The Judgment paved the way for the legalization of Homo-sexuality in the judgment of “Navtej Singh Johar vs Union of India”29 the judgment was given on the principles of liberty and autonomy of choice in both the Public and Private spheres of Life. The Puttaswamy case reinforces that privacy and dignity are fundamental rights. They’re critical in understanding and protecting personal autonomy, and this principle extends to various aspects of life, including gender and queer rights. The Judgment reassures the citizen’s trust in the Judiciary, which rectifies its errors of the past,

29 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1

thus assuring us the supremacy of the Rule of Law and that the government can’t use its powers irrationally. This judgment provides a basis for contesting existing oversight mechanisms endorsing Judicial scrutiny and enhanced security for personal rights and freedoms. 30 In the case of K. S. Puttaswamy vs UOI, liberty of an individual is held to be truly important, then the powers of the Houses of Parliament must be so divided that they protect the liberty of an Individual. Several changes need to be made concerning Privacy and its protection. The data protection Bill doesn't align with the Puttaswamy judgment, which confers upon citizens' Right to Privacy. Again, this law fails the proportionality test set by the Puttaswamy judgment.

As was envisaged after the Puttaswamy judgment, the court notes that the state should put in place a good data protection law that has to be formulated "by carefully balancing" individual privacy and legitimate concerns of the State. Clauses 7 and 8 of the Data Protection Bill set a low bar on the consent of the State, which is problematic. It's been 6 years since the privacy judgment was passed. Same-sex Relationships have now been liberalized after the advent of the Puttaswamy judgment; it was only after this judgment that Judges have the opinion that the Sexual orientation of an individual is a facet of his/her/their right to privacy. Thus, it is a fundamental right. The Puttaswamy judgment in India has been used to decriminalize not only homosexuality but also adultery and to boost the age of exemption for marital rape from 15 to 18 years.

Lastly, it depends on the implementation of privacy rules, and one also must have a liberalized approach to the same, including that of judges. Still, there is a long way to go to protect the privacy of an Individual. 30 Vrinda Bhandari & Karan Lahiri, The Surveillance State, Privacy and Criminal Investigation in India: Possible Futures in a Post-Puttaswamy World, 2020 U. OXFORD HUM. RTS. HUB J. 15(2020)