Introduction

Even though the word “Privacy” is not included in the Constitution of India, the Supreme Court of India has continually inferred Article 21 “No person shall be deprived of his life or personal liberty except according to procedure established by law” in a manner which implies that the right to privacy comes under the Right to Life.

Privacy is not merely about secrecy. Privacy implies autonomy, respect, bodily integrity, and the freedom from interference from others.

Early stage: Privacy was not a fundamental human right

  • M.P. Sharma v. Satish Chandra, AIR 1954 SC 300

The Supreme Court’s first dealing with privacy was in M.P. Sharma v. Satish Chandra, 1954, in the case of search and seizure of the Dalmia Group documents under Sec. 96 of the CrPC, challenging the provisions of Art.19(1)(f) and 20(3). An 8-judge bench held that the Indian Constitution does not guarantee any fundamental right to privacy unlike the US Constitution which view stood until it was finally overruled in Puttaswamy case in 2017.

  • Kharak Singh v. State of U.P., 1962 (AIR 1963 SC 1295)

In this case involved a petitioner who was being monitored under chapter 20 regulation 236 of the UP Police Regulations after having been acquitted in a case of dacoity. The petitioner challenged the regulation in accordance with Article 19(1)(d) and Article 21. The Supreme Court held that the said regulation which provided for night domiciliary visits was unconstitutional as it infringed Article 21. While the majority opined that privacy is not a fundamental right, Justice Subba Rao disagreed stating that privacy is an integral part of personal liberty as provided for in Article 21. This view of the Supreme Court was overruled in the case of Puttaswamy vs. Union of India (2017).

Evolving Stage: Privacy Acknowledged but not Definitive

  • Govind v. State of Madhya Pradesh, AIR 1975 SC 1378

The Supreme Court affirmed the right to privacy under Article 21 for the first time in history stating that privacy-dignity claims need consideration. Nonetheless, the court maintained that the right is not absolute and can be limited because of the overwhelming public interest.

  • Maneka Gandhi v. Union of India, AIR 1978 SC 597

The case established the fact that Article 21 must be interpreted to include ‘right to live with dignity’. This understanding of Article 21 subsequently gave rise to right to privacy

  • R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632

This is the first case dealing with the issue of informational privacy. The Supreme Court ruled that people have the right to protect their own personal information, including information about themselves, their family, marriage, motherhood, education, and so on.

  • People’s Union for Civil Liberties (PUCL) v. Union of India, AIR 1997 SC 568

In this case, the Supreme Court stated that wiretapping is a violation of the individual’s right to privacy. The Court also defined the scope of interception of telephone messages under the Telegraph Act, 1885.

Crucial Judgment: Recognition of Privacy as a Fundamental Right

  • Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1 – The Privacy Judgment

This is perhaps the most significant judgment delivered by the Supreme Court of India. A bench of nine judges of the Supreme Court has marked the overruling of the decision in M.P. Sharma and Kharak Singh, stating in the process:

“The Right to Privacy is an essential right under Article 21 and Part III of the Constitution.”

Key observation by the court

(a) The term ‘privacy’ is integral aspect of the right to life and personal freedom recognized by Article 21.

(b) The right to privacy is included in the right to free expression as mentioned in Article 19 (1) (a), in the right to freely move across the territories as stated in Article 19 (1) (d) and in Article 21.

(c) The right to privacy consists of three dimensions:

  • Bodily privacy – it refers to giving person his/her body rights.
  • Informational privacy – it implies the ability of a person to control his/her information.
  • Decisional autonomy – it refers to the ability of the person to make his/her own decisions regarding personal life, sexuality, family and religion.
  • In addition to that the right to privacy is part of fundamental rights and guarantees the dignity of the person stipulated in Article 21.
  • Although the government can introduce the limitations, these limitations must meet the three criteria:
  • Legality – there is a corresponding law.
  • Necessity – there must be the aim of the act.
  • Proportionality – means must be proportionate to the aim.

Consequences of Puttaswamy:

K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1 (Aadhaar Judgment)

The Aadhaar programme was upheld by a 5-judge bench, while Section 33(2), Section 47 and Section 57 were struck down as unconstitutional. The Court stated that Aadhaar did not violate the principle of privacy as long as the data is secured. However, private firms cannot ask for Aadhaar information.

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

Section 377 of IPC was decriminalized. The Court explained that sexual orientation is part of the right to privacy and of dignity guaranteed under Article 21.

Joseph Shine v. Union of India, AIR 2018 SC 4898

The court found against Section 497 IPC (Adultery) and declared that a woman’s right to sexual autonomy and privacy is not lost as a result of marriage.

WhatsApp Privacy Policy Case & Digital Personal Data Protection Act, 2023

Following the Puttaswamy ruling, India has enacted the Digital Personal Data Protection Act, 2023 in order to safeguard the right to informational privacy as it acknowledges the individual’s right to control personal data.

Conclusion

The evolution of the judiciary shows a shift from a restrictive to a more lenient perspective on Article 21. Moving from “Right to Life is only existing” to “Right to Life signifies living with respect” the Supreme Court has incorporated privacy into the field of freedom.

At present, the Right to Privacy as envisaged in Article 21 covers:

  • Right to solitude
  • Right to confidentiality of personal matters
  • Right to make intimate decisions
  • Right to bodily integrity
  • Right to be protected from government surveillance.

As pointed out by Justice Chandrachud in Puttaswamy, “Privacy is an integral part of human dignity.”

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Sources

A. Case Laws

1. M.P. Sharma v. Satish Chandra, AIR 1954 SC 300

2. Kharak Singh v. State of U.P., 1962 AIR 1963 SC 1295

3. Govind v. State of Madhya Pradesh, AIR 1975 SC 1378

4. Maneka Gandhi v. Union of India, AIR 1978 SC 597

5. R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632

6. People’s Union for Civil Liberties v. Union of India, AIR 1997 SC 568

7. Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1

8. K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1 (Aadhaar Judgment)

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

10. Joseph Shine v. Union of India, AIR 2018 SC 4898

11. WhatsApp Privacy Policy Case & Digital Personal Data Protection Act, 2023

B. Statutes:

1. Constitution of India, Article 19(1)(a), 19(1)(d), Article 21

2. Aadhaar (Targeted Delivery) Act, 2016 – Section 33(2), 47, 57

4. Digital Personal Data Protection Act, 2023

C. Books

1. M.P. Jain, Indian Constitutional Law, 8th Edition