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Right to Privacy; A Jurisprudential Analysis.

PART – 1 

A Brief Introduction.

Recently, there was a landmark Judgement into place which held that every individual has a right to privacy under Article 21 of the Constitution of India and that the State could not violate such right on arbitrary basis and conditions. The right to privacy of an individual means the right to be let alone and the right of a person to be free from any unwarranted interference. First of a few landmark cases that need to be discussed when we discuss the right to privacy would be MP Sharma Case.[1] This landmark case is known for having rejected the argument that the right to privacy could be considered under Article 21 of the Constitution as a fundamental right. Next in the list of landmark cases on the right to privacy is “Kharak Singh v. State of Uttar Pradesh.”[2] The Supreme Court held that the right to privacy could not be said to be a fundamental right and did not come under the ambit of Article 21 of the Constitution. Justice Subba Rao in dissent had held that the right to privacy was still an essential component of personal liberty through such provision was not incorporated as well as declared specifically a fundamental right under the Indian constitution. 

The next case, which is renowned for the issue of the right to privacy is “Govind v. State of Madhya Pradesh.”[3] The Court, in this case, held that there is an existence of a fundamental right under Article 21. This was the landmark case from wherein there was some hope that in the near future, the right to privacy can hold some relevance under Article 21 of the Constitution. Let us now come to the recent 9-judge bench landmark case of K.S. Puttaswamy v. Union of India,[4] wherein the Court held that right to privacy, is an invaluable asset of Article 21 of the Indian Constitution. The Court, in this case, also specifically overruled MP Sharma and Kharak Singh in so far as these 2 cases expressly did not recognize the right to privacy as a fundamental right. Other landmark cases related to the right to privacy would be Navtej Singh Johar v. UOI,[5] where the Supreme Court of India declared section 377 of the IPC unconstitutional in so far as it criminalizes consensual sexual conduct between adults of the same sex. 

Right to Privacy; Meaning.

In the simplest of terms, the right to privacy can be said to be the very basic fundamental right of any person. By this, it is meant that the right to privacy is a person’s very basic tent in life. The place where he lives, the websites that he visits, the office that he goes to, the opportunities that he looks for in the world all of this are very basic tenets of the right to privacy. What also needs to be kept in mind here is that where in this time of technology when each and every application that we download is demanding a right to access from us, the Courts before K.S. Puttaswamy have been ignorant of the right to privacy. We have a catena of judgements like MP Sharma and Kharak Singh on the same lines. Leave apart Govind Singh’s case, we can hardly see the Indian Judiciary focussing upon the right to individual dignity of a person. In the Indian laws, the right to privacy post the Puttaswamy judgement can be found in Article 21 of the Indian Constitution. It states that no person shall be deprived of his life or personal liberty except according to procedure established by law. The right guaranteed under this Article has been said to be the very fundamental right as similar to rights such as the right to food, right to clean environment, right to shelter, right to human treatment and many such basic rights which a citizen should enjoy and the State should make sure that they enjoy them. 

Coming over to the recent technological developments, we come to a conclusion that the technology has a positive and negative side to it. This means that the technological advancements nowadays have ruined our life in such a manner that we are not able to protect our right to privacy despite of many attempts. Even before we realize what website we have visited nowadays, from the server a number of people get access to the same. In earlier times, what used to happen is that one person when he would commit trespass, the law would give him an injunction or compensation or any other physical remedy that is within the jurisdiction of the Court. But as the times have changed, the right to life has expanded in its scope and now comprises the right to be let alone. Today, it has become a very small facet of our lives.

PART – 2. 

Privacy as per International Framework.

The Universal Declaration of Human Rights contains the right to privacy as its fundamental facet. Article 12 of the UDHR states that no person shall be subjected to arbitrary interference with his privacy, family, home or correspondence not to attack upon his honour and reputation, meaning thereby that everyone has the right to protection of the law.[6] We also have the International Covenant of Civil and Political Rights[7] wherein Article 17 of the same state that no one shall be subjected to arbitrary or unlawful interference with his privacy, family , home and correspondence nor to unlawful attacks on his honour and reputation. Further, Article 8 of the European Convention on Human Rights states that everyone has the right to respect for his private and family life, his home and correspondence;[8] that there shall be no interference by a public authority except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety and the economic well-being of the country.

Right to Privacy in India.

As already discussed above, the right to privacy is enshrined under Article 21 of the Constitution of India and provides therein for the protection of the life and liberty of a person. Let us have a look at the evolution of the right to privacy in India. Let us talk firstly about the ancient times. So, in the ancient times in India, certain things were said to be protected from disclosure to the society. Some of them included worship, sex, family matters. The Ancient Indian culture was a very primitive one and in that there was a number of customs and traditions that were being followed. So as a result, the women never came out of the shackles of the concept of right to privacy. They were always tied to their family and in such a manner the concept of right to privacy was described. Coming over to the modern period, we can see that the definitions of privacy have far sighted changed. Now after the Supreme Court has a number of landmark judgements, it can be seen that the concept has entirely changed and today the right to privacy is recognized as the fundamental right clearly after Puttaswamy.

Various Aspects of the Right to Privacy.

Health and Privacy.

The landmark case of Mr X. v. Hospital Z[9] comes to one’s mind when we talk about the right to privacy and health. Before delving into the case, let us first understand the overlapping. So basically there has always been the debate whether the medical staff can provide the necessary information to the patient’s relatives (the parents, the wife and close blood relatives) about any disease which can spoil or break relations between the families. The question is whether the patient does not have the right to privacy. The question is whether it should be in the interest of the relative that the information should be told to him. A number of questions arise out of here that need to be addressed. Further, it can be stated that the right to life of a person is so important that it supersedes the right to privacy. A doctor is under an oath or under medical ethics for not disclosing any secret information about the patient as already explained that such a thing can always cause trouble to the patient’s family or relatives. Coming on to the case, it was held that the doctor-patient relationship is professionally a matter of confidence and therefore the ones acting in the medical profession are morally and ethically bound to maintain confidentiality.

Gender Rights and Privacy.

Another important aspect of the right to privacy is gender priority. That in India, the men and women should be given equal rights and that is the reason this aspect of the right to privacy comes into picture. Where on one hand the child marriages are taking place in India despite of the strict laws into place, on the other hand there is an increase in the violence against children, both of which take us to a conclusion that the women’s right to privacy has also to be kept upright along with that of a man. So, a woman also has the right to be treated in an equally respectful manner as a man. This brings us down to the case of Harvinder Kaur v. Harmander Singh[10] where the Delhi High Court held that though the sexual relation constitutes the most important attribute of the concept of marriage, they do not constitute its whole content. Sexual intercourse is a small part of the marriage, and not the entire marriage.

Phone Tapping and Privacy.

Phone tapping and privacy has been one of the primary concerns when it comes to the issue of the right to privacy. An important case that can be attributed herein is the landmark R M. Malkani case. The SC observed in this case that the Court will not tolerate safeguards for the protection of the citizen to be imperilled by permitting the police to proceed by unlawful or irregular methods. This obviously was in violation of one’s right to privacy under Article of the Constitution and of the right to freedom of speech and expression under Article 19(1)(a). Another important observation that was made in the case of PUCL v. UOI[11] was that the right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as right to privacy. The Apex Court held in this case that the telephonic conversations are private in nature and hence phone tapping amounts to violation of one’s own privacy.


State Surveillance and Right to Privacy.

A quite contentious issue, this has been considered as the most controversial issue amongst all of them. Recently, there was a debate on the issue of state surveillance and the right to privacy. So the most important case relating to the right to privacy was the Kharak Singh case where a 7 judge bench of the Supreme Court was required to check the constitutionality of certain police regulations that authorizes the police to do any domiciliary visit and surveillance of persons with criminal record. So when the constitutionality of the above provision was challenged before the Supreme Court, the court held that it was in violation of the term personal liberty under Article 21 of the Constitution.

Power to search and seizure, and the Right to Privacy.

The very famous case of Maneka Gandhi v. UOI[12] wherein the triple test was laid down reminds us of the power of search and seizure. The triple test says that: there must be a procedure prescribed, it should withstand one of the fundamental rights under Article 19, and that is must be tested in reference to Article 14.

Sexual Identities and Right to Privacy.

The Indian jurisprudence with regard to the sexual identities has been too liberal in the past few years. Looking at the landmark Naz Foundation case,[13] we can clearly see that the section was struck down by the Delhi High Court back then. Recently, the Apex court has held in Navtej Singh Johar that Section 377 of the IPC, 1860 insofar as it applied to consensual sexual conduct between adults in private is constitutional.

An analysis of Puttaswamy.

Kinds of Privacy.

The recent judgement by the Apex Court stating that the right to privacy is a fundamental right under Art.21 of the Indian Constitution has various facets attached to it. As per the judgement, there are numerous kinds of privacy rights. Some of them include the bodily privacy, one related to the physical body against violations and restraints of bodily movement, special privacy the privacy of space such as family, intellectual privacy one of the thought, mind, opinions and beliefs, informational privacy one where the person can decide for himself with whom and how to share the information amongst several others.

Positive and Negative privacy.

So the constitutional right to privacy can be given different meanings, and a small categorization that could be done is of the concept of positive and negative privacy. So as per the ruling of the supreme court, the constitutional right to privacy can be defined to protect the individual from unwanted intrusion into their private life including sexuality, religion, political affiliation (the negative freedom) and also can be defined as the obligation of the state to take and adopt suitable measures for the protection of an individual’s privacy by removing any obstructions in the way (the positive freedom).

Way Forward.

Justice Kaul in the Puttaswamy Judgement rightly stated that the State must ensure that any information of any individual should not be sued without the consent of users and it should only be used for the purpose that is already informed to him. The case mainly involved the protection of the data of an individual when it came to Aadhaar. This came also known as the Aadhaar linking case, was filed in the Apex Court as a number of petitions and it was claimed that the linking of the Aadhaar to a number of Identity proofs and mobile numbers would be a clear breach of privacy and that there was a need for the protection of the fundamental right to privacy of a person. Recently, there has been a debate regarding the same for the Aarogya setu app which the Government of India has asked every individual to download. There are also penal provisions made for those who do not abide by the orders of the Government. What can be best expected out of all this privacy debate is that the Government must take necessary steps for the protection of privacy of individuals. 


In conclusion, it could be said that the Indian jurisprudence with regards to the right to privacy has evolved so far and that the decision to put the right to privacy under the ambit of Article 21 was a much-needed step. In this technological era, where data privacy has become such a big concern, we couldn’t have asked more from the Supreme Court. That right to privacy is a very essential component of the right to life and it has to be given that much respect after the Puttaswamy judgement has specifically pointed it out That the right to privacy has many facets, and therefore in every condition possible, like the commercial, matrimonial, political, the right to privacy of a person should be respected should be taken care of.

 At some point of time, there have been numerous arguments stating that because the right to privacy is not a fundamental right, there are restrictions on the same and that they must be subjected to restrictions by the State. But here is where all the debate lies. For instance in the case of Aadhaar, where the government said that the data was being taken in state interest, the argument on the other hand was on the enquiry of the data as to for what purpose was the data being used. Not only in India, Judges in other states as well have linked the right to privacy as one of the essential aspects of human beings. Slowly and gradually, we could observe that in India, the right of privacy has been developed. We could see this by virtue of the fact that in from cases of MP Sharma to Kharak Singh to MR X. v Hospital Z to Puttaswamy, we have come a long way. Back then where the right to life was considered to be the embodiment of a mere animal existence today the right to life involves all basic necessities of life, which also includes the right to privacy. 
Being a part of the world means that we also have a right to be respected and that everyone living around us has the same right. Thus, it could be said that privacy is a special kind of privilege given to every person whom everyone should enjoy. But the, while exercising this right, we need to make sure that we do not interfere in the other person’s privacy. After all, we can happily exist only when mutually we respect each other’s rights. 


[1] M. P. Sharma v. Satish Chandra, 1954 AIR 300.
[2] Kharak Singh v. State of Uttar Pradesh AIR 1963 SC1295.
[3] Govind Singh v. State of M.P., 1975 AIR 1378.
[4] Justice K.S. Puttaswamy (Retd.) v. Union Of India, (2017) 10 SCC 1.
[5] Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.
[6] Universal Declaration of Human Rights, 1948.
[7] International Covenant of Civil and Political Rights, 1966.
[8] European Convention on Human Rights, 1950.
[9] Mr X. v. Hospital Z, A.I.R 1999 S.C. 501.
[10] Harvinder Kaur v. Harmander Singh, AIR 1984 Delhi 66.
[11] People’S Union Of Civil Liberties v. Union Of India And Anr. AIR 1997 SC 568.
[12] Maneka Gandhi v. UOI, 1978 AIR 597.
[13] Naz Foundation v. Govt. NCT of Delhi, 160 Delhi Law Times 277.

Author: Abhishek Naharia, Rajiv Gandhi National University of Law, Punjab

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