Does our Constitution guarantee the Right to Privacy as a Fundamental Right?

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Black’s Law Dictionary says that “right to be let alone; the right of a person to be free from any unwarranted publicity; the right to live without any unwarranted interference by the public in matters with which the public is not necessarily concerned.” This means keeping personal information such as professional activities, electronic communication, sexual orientation as well as feelings private. The Constitution of India provides a fundamental right, the right to privacy, under Article 21 which is not only about one’s personal information but extends to individual autonomy, freedom to move, physical integrity, freedom to think, and right to speech. Privacy is essential not only for humanitarian reasons but also from a legal perspective.

Earlier, there was no term in law to give protection to physical dangers such as trespass in society which lead to the emergence of right to property under right to life. Further, it was analyzed that there is a requirement of safeguarding one’s feelings because of which the scope of the right to life was expanded. Initially, the right to privacy was not guaranteed as a fundamental right in the Constitution of India but various litigations shed light on its importance and necessity. This article plays a significant role in describing the evolution of the “Right to Privacy” through litigations. 

Evolution of the Right to Privacy through litigation

In the Constitution of India, the Right to privacy is not enumerated as a Fundamental Right whereas certain cases shed light on the importance and need of the right to privacy. 

M.P. Sharma vs Satish Chandra (1954) 

This case is related to the search and seizure of documents of a company named Dalmia group on suspicion of malpractice. District Magistrate issued search and seizure warrants following an FIR registered against the company regarding malpractices. Due to this, searches were conducted consequently; therefore, the company filed a writ petition challenging the Constitutional validity of the searches stating that their “right to acquire, hold and dispose of property” is violated. The case was held by an eight-judge bench of the Supreme Court. The bench highlighted that the Indian Constitution does not consider search and seizure as a fundamental right of privacy. Further added that the power of search and seizure is a necessity for social security as it is an overriding power of the State.

Kharak Singh vs. the State of Uttar Pradesh (1962)

Surveillance Case

In this case, Kharak Singh was accused of dacoity and was under Police custody but due to lack of evidence, he was then released. Despite this, he was brought under surveillance by the UP police under UP Police Regulations in which every individual visiting him was considered a suspect, domiciliary visits, and tracking. He challenged the Constitutional validity of all the clauses of Regulation 236 as it violated his fundamental rights, the Right to freedom of movement and protection of life and personal liberty guaranteed under Articles 19(1)(d) and 21 respectively. In this context, the respondent argued that the Regulations did not violate any fundamental rights; therefore, they were not unconstitutional. They also claimed that even if they violated the rights, they are qualified as reasonable restrictions because the Regulations were framed in the interest of public order. This case was held by a six-judge bench of the Supreme Court stating that except for domiciliary visits at night (unconstitutional), other regulations were supported or verified. The majority of the bench also highlighted that “the Right to Privacy is not guaranteed under the Constitution of India.” A dissenting opinion was given by one of the judges, Justice Subha Rao regarding the Right to privacy being guaranteed as a fundamental right. This opinion gave an important insight into the existence of the Right to privacy.

Govind vs. State of Madhya Pradesh (1975)

In 1975, the right to privacy was again addressed as well as interpreted in this case in association with Article 19 (1)(d) of the Indian Constitution. Govind was accused of a number of crimes and he contends some of them to be false. In 1962, he was convicted of trespass and served two months of imprisonment as well as a fine of Rs. 100 as a punishment. Further, he was convicted of breaking into the house and served one month of imprisonment as well as a fine of Rs. 501. In this case, the accused (Govind) alleged that on the basis of false accusations, the MP Police had put him under surveillance and challenged the validity of the MP Police Regulations 855 and 856 (surveillance) as of the Kharak Singh case. These actions of the police were addressed to be violative of fundamental rights under Articles 21 and 19 (1)(d) of the Constitution. The three-judge bench of the top Court here advised reforming the regulations as well as stated that “Any right to privacy must encompass and protect the personal intimacy of the home, the family marriage, motherhood, procreation, and child-rearing.” The Court also observed that MP Police Regulations were “verging perilously near unconstitutionality”. Herein, the Apex Court made a strong case related to the existence of a right to privacy under Articles 19 (1)(d) and 21. Also, the case illustrated that privacy is an important aspect of the enjoyment of constitutional liberties and freedoms. 

PUCL (People’s Union of Civil Liberties) vs. Union of India (1996)

TelePhone-tapping or Wire-tapping Case

In this case, the Constitutionality of Section 5 (2) of the Indian Telegraph Act, 1885 was confronted by PUCL in the form of PIL (Public Interest Litigation) for the violation of the Right to privacy. The petition was filed in the wake of the report presented by CBI (Central Bureau of Investigation) regarding the ‘Tapping of politicians' phones’. The petitioner (PUCL) argued that the “right to privacy was a fundamental right guaranteed under Articles 19(1)(d) and 21 of the Constitution.” They also contended that for saving Section 5(2) from being declared unconstitutional, it is important to understand and read all the provisions to safeguard the right to privacy. To this, the respondents (Union of India) stated that the striking down of the section will impact the public interests as well as jeopardize the security of the state. They further denied the allegations of misuse of power as they declared that phone tapping can be performed only after receiving an order from an authorized officer of the State or Central Government. Moreover, the respondents highlighted that the party was not informed about their phone being tapped as it affects the purpose of phone tapping. While hearing this case, the top Court stated that “the right to hold a telephone conversation without interference in one’s home or office can be claimed as ‘right to privacy’” Also, illustrated that telephone tapping violates Article 21 unless permitted under a ‘procedure established by law’. Through this case, it was clear that the Right to privacy comes under Article 21 of the Indian Constitution along with the Right to life and personal liberty. 

In a similar context, a plethora of cases was addressed determining the existence of the Right to Privacy under Article 21 of the constitution of India but the one case that guaranteed the existence of the right to privacy as a Fundamental right under the Indian Constitution is K.S. Puttaswamy which is discussed below.

Justice K. S. Puttaswamy (Retd.) & Anr. vs Union Of India & Ors. (2017)

Aadhaar Case or Aadhar Judgment

In this case, a writ petition was filed in the Supreme Court by retired Justice K.S. Puttaswamy challenging the Government over making Aadhaar mandatory as well as the Constitutional validity of the Aadhaar-based biometric system. Justice K.S. Puttaswamy is a retired judge of the High Court of Karnataka who was enrolled in 1952 as an advocate and appointed as Karnataka High Court judge in 1977. The Aadhaar case is mainly focused on assuring “Whether the right to privacy was a fundamental right under the Constitution of India”? While addressing the case, It was identified that respondents mainly relied on the judgments delivered in the previous case related to the right to privacy including M.P. Sharma vs Satish Chandra and Kharak Singh vs the State of UP. In both judgments, the top Court declared that the Right to Privacy is not guaranteed as a fundamental right under the Constitution of India. Eight-judge and six-judge benches delivered this judgment in M.P. Sharma and Kharak Singh cases respectively. Herein, various arguments were addressed, raised in 2015, regarding the legal validity of the Aadhaar database. Due to the far-reaching importance of the ‘right to privacy’ and dissented views of the judges in previous cases, a nine-judge bench of the Supreme Court heard Justice K.S. Puttaswamy's case. During the hearing, the Attorney General (AG) stated that the existence of a right to privacy in the Constitution of India was in doubt due to judgments delivered in MP Sharma and Kharak Singh's case. The bench gave the unanimous decision reaffirming the right to privacy as a fundamental right in the Indian Constitution. The SC bench stated that “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.” This statement overruled the orders and judgments delivered by the top Court in previous cases related to the right to privacy including Kharak Singh and MP Sharma. 

Conclusion

Right to privacy is pivotal for right to life and personal liberty under Article 21 of the Indian Constitution. Protection of privacy ensures safety, self-determination, and human dignity as well as it allows a person to develop his own personality freely. Chief Justice of India DY Chandrachud during the proceedings of Justice K.S. Puttaswamy's case stated that “it has been determined that privacy if construed as a protected constitutional value, would redefine the concept of liberty and entitlements that flow out of its protection in significant ways.” 

In a nutshell, the right to privacy is an essential fundamental right that not only gives security to personal information but also provides us with the right to freedom of speech. In various other judgments, the top Court of India has approached the right to privacy with a liberal approach. The Constitution has recently opened its arms to homosexuality by striking down parts of Section 377 as in Navtej Singh Johar vs. Union of India which criminalized ‘carnal intercourse against the order of nature’. However, reasonable constraints on private activities are required to ensure a healthier society.