Advancement of Right to Privacy in Indian Jurisprudence




With the advent of the internet, data exchange for various services has proliferated. With the increase in the accumulation of personal data, the need to avert the harmful use of the same has become more urgent than ever before. Thus, it is essential to understand the legislature and judicial outlook toward citizens' right to privacy.


Constituent Assembly's View on the Right to Privacy

There was no complete consensus among the members of the Constituent Assembly on whether to regard privacy as a fundamental right or not. Members such as K.M. Munshi and Harman Singh were staunch advocates of the right to privacy. The citizens must have the right to inviolability of one's homes and secrecy of their correspondence. These members were cognizant of the British Government's use to intercept communication or conduct searches in the people's houses, thereby committing a gross violation of the right to privacy. Moreover, Article 12 of the Universal Declaration of Human Rights says that "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor attacks upon his honour and reputation." Thus, the right to privacy was already recognised by some countries when the Constituent Assembly started drafting our Constitution.

On the other hand, members like B.N. Rau and Krishnaswamy Ayyar did not favour the right to privacy of Indian citizens. They believed that granting the right to privacy would act as a bottleneck to law enforcement in the country as people would resist the investigation carried against them by the state agencies. Moreover, people would use privacy as an excuse not to submit documents needed to decide cases such as land disputes. These members believed that the right to privacy would be absolute, and eventually, the will of these members prevailed over the assembly, and the right to privacy was not recognised as a fundamental right when our Constitution came into force on 26th January 1950.


An Earlier View of the Supreme Court on the Right to Privacy

With the commencement of the Constitution, the Supreme Court was tasked with the onerous duty to interpret it and protect fundamental rights. The case of M.P. Sharma & Ors. v. Satish Chandra (1954) was the first landmark case where the court was asked to determine whether the people have the right to privacy or not. The petitioners argued that the search and seizure of the documents amounted to the forceful production of evidence. They claimed that by virtue of the Fourth Amendment of the U.S. Constitution, they should be entitled to relief from such disclosure of documents. However, the court held that the Fourth Amendment granted its citizens the right to privacy, and since the Constitution of India did not grant the right to privacy akin to the fourth amendment, the petitioners were not entitled to relief. Furthermore, in the case of Kharak Singh v. State of Uttar Pradesh (1962), the petitioner challenged the domiciliary visits to habitual criminals by the UP police at odd hours. The court held that the provisions for these domiciliary visits were unconstitutional. The court's ratio was that the right to life includes the right to dignity, not mere animal existence. The court also held that since the right to life is enshrined under Article 21, it can be restricted only by "procedure established by law", and the law can be made only by the legislature, not by the executive. Hence, the executive order empowering police to violate the right to life was unconstitutional. When the petitioner claimed that the shadowing of "history-sheeters" was an infringement of privacy, the majority of the judges declared that the petitioner could not claim breach of privacy as the right to privacy was not a fundamental right guaranteed under Part III of the Constitution. However, J. Subba Rao gave the dissenting judgement on this part of the case and recognised that the right to privacy is a fundamental right under Article 21 of the Constitution.


Evolution of the Right to Privacy in the Indian Constitution

Though the Hon'ble Apex Court, in the above two judgments, had underlined that the Constitution does not guarantee the right to privacy to the person, the issue of privacy does not end. The court again faced the issue of privacy in the landmark case of Govind v. State of Madhya Pradesh (1975). The petitioner challenged Regulations 855 and 856 of Madhya Pradesh Police Regulations. The petitioner contended that the regulations interfered with their enjoyment of rights enshrined under Article 19(1)d and 21 of the Constitution. Though the court dismissed the petition, it remarked that though the right to privacy is not explicitly stated in the Constitution, it could be construed as a facet of the Right to Life under Article 21 and thus, the right to privacy is subject to "procedure established by law".

Similarly, in the case of R. Rajagopal v. State of Madras (1994), the issue raised before the court was the publication of the details regarding the petitioner's life, who was convicted under section 304 of the Indian Penal Code. The petitioner approached the court, claiming that the publication of his information in the book violates his right to privacy. The court recognised the individual's right to privacy and remarked, "a citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing, education, among other matters. None can publish anything concerning the above matters without such person's consent – whether truthful or otherwise, whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned." However, the court emphasised that the information already available in the "public domain" does not come under the purview of the right to privacy.


Explicit Declaration of Right to Privacy as a Fundamental Right

It can be concluded that some judgments recognise and some do not recognise the right to privacy as a fundamental right. To clarify whether there is an existence of the right to privacy, the Supreme Court, while hearing the constitutionality of the Aadhaar Card, constituted a nine-judge bench to examine whether the right to privacy is protected under Part III of the Constitution. In this case, the bench unanimously declared that the right to privacy is a fundamental right enshrined under Article 21 of the Constitution. This right is available against both state and non-state actors. The court also held that the right to privacy is not absolute. The court clarified that the state must demonstrate the "compelling state interest" whenever the state breaches the individual's privacy. Moreover, the court also held that the procedure by which the privacy would be breached should satisfy the following conditions:

  1. The procedure should be established by law.

  2. The procedure should not be arbitrary, and the least intrusive measure must be taken to accomplish the object for which the individual's privacy is violated.

  3. The procedure should also be reasonable.

Hence, it is clear that the decision given in the M.P. Sharma case has been overruled. Thus, the right to privacy is a fundamental right under Article 21, subject to limitations.


Conclusion and Way Forward

The present position of the right to privacy in Indian Jurisprudence is akin to the view of Somnath Lahiri, a member of the Constituent Assembly. As per Lahiri, the people should have the privacy of correspondence, which may be violated according to the procedure provided by law. The only difference is that he wanted this right to be included under rights of freedom, i.e. Article 19, but the court has recognised the right to privacy under Article 21 of the Constitution.

With the tremendous rate at which the country's economy is shifting towards digitalisation, laws are needed to safeguard people's data. The proposed Protection of Personal Data Bill that is scheduled to be introduced in the winter session of the Parliament is the correct step to safeguard the people's data against the non-state actors that process such data for advertisements. Data protection will encourage people to indulge in online transactions as they will be assured of safety and no surveillance through a technique commonly known as Cookies.

Overall, the right to privacy is a fundamental right that should be granted to everyone so that they can exercise other freedoms in the virtual world uninhibited.



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