Privacy is a fundamental human right, enshrined in numerous international
human rights instruments. Though privacy is a relatively new concept, is a
well-battered topic in the history of the Indian Constitution. In India, the
right to privacy has always been the highlight for various reasons starting with
the fact that there is no express provision for Privacy in the Indian
Constitution and has been subject to judicial interpretation in the constitution
of India which bought it within the ambit of the fundamental right.
However, this hasn't stopped courts in serving justice in any sense over the
past years through various judgments the Courts of the country have interpreted
the other rights in the Constitution to be giving rise to a (limited) right to
privacy primarily through Article 21
the right to life and liberty.
This article will attempt to trace the chronological judicial interpretations
behind the present crystal clear status of the Right to Privacy as a fundamental
Beginning the journey from the year 1954 when in the case of M. P. Sharma vs. Satish Chandra
, the Supreme Court held that the Right to Privacy is not a
The case related to the search and seizure of documents of some Dalmia group
companies following investigations into its affairs. Following an FIR, the
District Magistrate issued warrants, and searches were consequently conducted.
In writ petitions before the Supreme Court, the constitutional validity of the
searches was challenged on the grounds that they violated their fundamental
rights under Articles 19(1) (f) and 20(3) � protection against
The 8-judge bench of the Supreme Court held that the drafters of the
Constitution did not intend to subject the power of search and seizure to a
fundamental right of privacy. They opined that a power of search and seizure
is, in any system of jurisprudence, an overriding power of the State for the
protection of social security and that power is necessarily regulated by law.
When the Constitution makers have thought fit not to subject such regulation to
constitutional limitations by recognition of the fundamental right to privacy,
and the Constitution does not include language similar to the Fourth Amendment
of the US Constitution, and found no justification to import the concept of a
fundamental right to privacy in search-and-seizures, through what they called a
Then in the year 1962 came the Kharak Singh vs State of Uttar Pradesh case in
which the six-judge bench examined the issue of surveillance and regulations
validity governing the Uttar Pradesh police. The main question was whether
surveillance under the Uttar Pradesh police regulations constituted an
infringement of the citizen's fundamental rights as guaranteed by the
In a significant judgment, the court ruled that privacy was not a guaranteed
constitutional right. It, however, held that Article 21 (right to life) was the
repository of residuary personal rights and recognized the common law right to
privacy. However, the provision allowing domiciliary visits was called
unconstitutional. It pointed out that fundamental rights under privacy were
mutually exclusive and self-contained.
Justice Subbarao was a dissenting voice who, however, said that even though the
right to privacy was not recognized as a fundamental right, it was essential to
personal liberty under Article 21. He also held all surveillance measures to be
In both cases, the Supreme Court had stated that the right to privacy did not
exist under the Indian Constitution.
The question of privacy as a fundamental right presented itself once again to
the Supreme Court a few years later in the case of Govind v. State of Madhya
Pradesh & Ors
It is one of the most significant Indian cases dealing with the right to privacy
which has significantly helped in developing the rule regarding the right to
privacy and its nature.
In this case, a three-Judge Bench of the Supreme Court for the first time
extensively discussed the right to privacy under Articles 19(1)(d) and 21 of the
Constitution in the context of police surveillance. The writ petition challenged
the validity of Regulations 855 and 856 of the Madhya Pradesh Police Regulations
made by the Government under the Police Act, 1961 (Police Act) that permitted
domiciliary visits and other forms of surveillance of individuals with a
The court stated that the right to privacy is not explicitly provided under the
Constitution of India. It can be implied from Article 21 of the Indian
Constitution and therefore is not absolute in its entirety. Thus, a reasonable
restriction can be imposed on an individual's right to privacy and this is to be
determined through a comprehensive analysis of the facts of the case and through
the compelling state interest test.
The court in the case of R. Rajagopal & Ors. vs. State of Tamil Nadu & Ors
was of the view that The right to privacy is implicit in the right to life and
liberty guaranteed to the citizens of this country by Article 21. It is a "right
to be let alone". A citizen has a right to safeguard the privacy of his own, his
family, marriage, procreation, motherhood, child-bearing, and education among
None can publish anything concerning the above matters without
his consent- whether truthful or otherwise and whether laudatory or critical. If
he does so, he would be violating the right to privacy of the person concerned
and would be liable in an action for damages. Position may, however, be
different, if a person voluntarily thrusts himself into controversy or
voluntarily invites or raises a controversy.
Again the Supreme Court of India in the case of People's Union for Civil
Liberties v. Union of India
 held that Indian voters have a right under
Article 19(1)(a) of the Indian Constitution to obtain information about
political candidates. The People's Union of Civil Liberties (PUCL) challenged
the validity of a 1951 law, which stated that political candidates were not
bound to disclose any information not required under the law.
The Supreme Court of India reiterated that Article 19(1)(a) includes the right
of voters to have basic information about electoral candidates. The Court
reasoned that the availability of basic information about the candidates enables
voters to make an informed decision and also paves the way for public debates on
the merits and demerits of candidates.
Further, freedom of expression is not
limited to oral or written expression, but also includes voting as a form of
expression which is a part of the fundamental right of freedom of speech and
expression under Article 19(1)(a).
The whole Right to privacy discussion took a 360-degree turn in the case of Naz
Foundation v. Government of NCT of Delhi
, in which the Court evaluated the
constitutional validity of the impugned law, examining its compatibility with
Articles 14, 15, 19, and 21. Having held that sexual preferences fall within the
right to dignity and privacy of the individual, the court held that Section 377
constituted a direct infringement of the aforementioned right and as a
consequence, violates the substance of Article 21
The Court located the rights to dignity and privacy within the right to life and
liberty guaranteed by Article 21 (under the fundamental Right to
Freedom charter) of the Constitution and held that criminalization of consensual
gay sex violated these rights. From the celebrated American case of Roe v. Wade
to landmark Indian judgments.
The judgment of the Delhi High Court is a landmark step in establishing the
superiority of the individual's right to privacy and dignity over the collective
morality of society. To that effect, we may assert that the propositions laid
down by H.L.A.
These cases were known more famously as midnight surveillance cases. At a later
stage, many other issues cropped up in relation to privacy. One such case is R.
Rajagopal v. State of Tamil Nadu laid down the foundation for balancing the
right of freedom of speech and expression in relation to the right to privacy.
Similarly, Mr. 'X' v. Hospital 'Z'
 laid down the rules of privacy available
to an HIV+ patient. But in this case, what is more, relevant aspect to the case
of Selvi v. State of Karnataka is the aspect of search and seizure of police
authority and to the extent, it can curtail the right to privacy of a citizen.
In the case of District Registrar and Collector v. Canara Bank
, it was held
that it is a right to let alone and every citizen has the right to safeguard the
privacy of his own. Any right to privacy must encompass and protect personal
intimacies at home. It has been held that 'unreasonable search and seizure'
amounted to a violation of the right to privacy especially when no guidelines
are issued as to a person who may be authorized to search the place and under
what circumstances and when there are laws that are sufficient to meet the
With the judgment of Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India &
 case a more reformed and well-established law formed regarding the
right to privacy. This one of its kind cases is the cornerstone of the 'Right to
Privacy' jurisprudence in India. The nine Judge Bench in this case unanimously
reaffirmed the right to privacy as a fundamental right under the Constitution of
India. The Court held that the right to privacy was integral to freedoms
guaranteed across fundamental rights, and was an intrinsic aspect of dignity,
autonomy, and liberty.
The case began with the question of whether the right to privacy was a
fundamental right, which was raised in 2015 in the arguments concerning the
legal validity of the Aadhaar database. The Attorney General appearing for the
State argued that the existence of the right to privacy as a fundamental right
was in doubt in view of the two decisions in the cases of M.P. Sharma vs. Satish
Chandra, District Magistrate, Delhi
, rendered by an eight Judge Bench,
and Kharak Singh vs. State of Uttar Pradesh
, rendered by a six Judge Bench. Both
the cases, the State argued, contained observations that the Constitution did
not specifically protect the right to privacy as a fundamental right.
same time, several subsequent judgments over the years had recognized the right
to privacy as a fundamental right. However, these subsequent decisions that
affirmed the existence of the right to privacy were rendered by benches of a
smaller strength than M.P. Sharma and Kharak Singh. Due to issues relating to
the precedential value of judgments and noting the far-reaching importance of
the right to privacy, this case was referred to a nine Judge Bench of the
The Bench unanimously held 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. In doing so,
it overruled previous judgments of the Supreme Court in M.P. Sharma and Kharak
Singh, insofar as the latter held that the right to privacy was not recognized
under the Indian Constitution.
In addition to cementing the place of the right to privacy as a fundamental
right, this case also laid down the need for the implementation of a new law
relating to data privacy, expanded the scope of privacy in personal spaces, and
discussed privacy as an intrinsic value.
The Supreme Court, through various separate opinions, pronounced privacy to be a
distinct and independent fundamental right under Article 21 of the Constitution.
The crux of the decisions spelled out an expansive interpretation of the right
to privacy - it was not a narrow right against physical invasion or a derivative
right under Article 21, but one that covered the body and mind, including
decisions, choices, information, and freedom. Privacy was held to be an
overarching right of Part III of the Constitution which was enforceable and
multifaceted. Details regarding the scope of the right were discussed in the
- Universal Declaration of Human Rights Article 12, United Nations
Convention on Migrant Workers Article 14, UN Convention of the Protection of
the Child Article 16, International Covenant on Civil and Political Rights,
International Covenant on Civil and Political Rights Article 17; regional
conventions including Article 10 of the African Charter on the Rights and
Welfare of the Child, Article 11 of the American Convention on Human Rights,
Article 4 of the African Union Principles on Freedom of Expression, Article
5 of the American Declaration of the Rights and Duties of Man, Article 21 of
the Arab Charter on Human Rights, and Article 8 of the European Convention
for the Protection of Human Rights and Fundamental Freedoms; Johannesburg
Principles on National Security, Free Expression and Access to Information,
Camden Principles on Freedom of Expression and Equality.
- Human Rights Committee general comment No. 16 (1988) on the right to
respect of privacy, family, home and correspondence, and protection of honor
and reputation (art. 17) See: A/HRC/WG.6/13/MAR/3, para. 37.
- M. P. Sharma vs. Satish Chandra, 1954 AIR 300.
- Kharak Singh vs State of Uttar Pradesh AIR 1963 SC 1295.
- Govind vs. State of Madhya Pradesh & Ors., AIR 1975 SC 1378.
- R. Rajagopal & Ors. vs. State of Tamil Nadu & Ors., AIR 1995 SC 264.
- People's Union for Civil Liberties v. Union of India AIR 1991 SC 207
- Naz Foundation V. Government of NCT of Delhi, 160 Delhi Law Times 277.
- R. Rajagopal v. State of Tamil Nadu, 1994 SCC (6) 632.
- AIR 1999 SC 495.
- Selvi v. State of Karnataka, Criminal Appeal 1267 of; 2004 2010(7) SCC
- District Registrar and Collector v. Canara Bank , AIR 2005 SC 186; Director
of Revenue v. Mohammad Nissar Holia; (2008) 2 SCC 370.
- Lyunman v. Illionois; (1963) 372 US 528; Commentary on the Constitution of
India by D.D. Basu.
- Stefanelli v. Minard; (1952) 342 US 117.
- Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors., AIR 2017