Jurisprudence of Right to privacy in India

Submitted to : Mitul Dutta (Asst Proffessor)

Subject code : LW-2016
Submitted by : Vijay Misra
Roll No. 2082066
B. B.A L.L.B - B ( 2020-25 )
KIIT Deemed to be University
TABLE OF CONTENTS

RESEARCH METHODOLOGY
ABSTRACT
INTRODUCTION
OUTLINING PRIVACY
EVOLUTION OF RIGHT TO PRIVACY IN
INDIA
CONCLUSION
RESEARCH METHODOLOGY

Analytical Research: Researcher has to use facts on information already available and
then analyze them to make a critical evaluation of the present material. 

Case Study Method: Researcher has attempted to analyze the topic with the help of case
law available.

Researcher has also relied on external desk-based research involving online desk research to
the extent that is based on law- substantial as well as procedural, related article, reports,
working papers and related books and Journals are examined. Generally, secondary
sources of information have been used. Some of the materials are taken from internet, which
makes the study reliable on secondary sources. The secondary sources are Books
by eminent authors.
Abstract

The necessity for data privacy regulations and civil rights of privacy for every individual,
regardless of their sexual orientation, sparked the privacy debate in the twenty-first century
preference. Privacy is a fundamental aspect of life and liberty, as well as an inalienable
feature of the Constitution. In the Constitution, essential rights are enshrined. It exists in all
people in the same way. Regardless of social class, social strata, gender, or sexual orientation.
It has a tremendous impact on the environment. Personality, integrity, and dignity are all
things that may be developed. However, the lack of privacy is a concern. An invasion must be
founded on legality, need, and proportionality for it to be legal.This prized privilege must be
protected, and such an invasion must be legal. The study focuses on the jurisprudence of this
right's growth as a Fundamental right. Also, given that we live in an era of information, not all
of the information we have is necessary to be shared, and some limits and protections are
required for such information, the function of privacy becomes increasingly crucial. In this
technologically sophisticated period of the twenty-first century, the notion of protecting such
privacy in the form of information is the most important demand.

1. INTRODUCTION

"Personal liberty makes for the worth of a human individual," writes Justice Krishna Iyer. As
a result, privacy is inextricably linked to the concepts of dignity and liberty.The notion of
privacy is not new and does not require any; it only requires legal acknowledgement because
it dates back to common law and is essentially a product of common law. It is so strongly
intertwined with an individual's liberty and dignity that it cannot be denied the status of a
basic right. It is difficult to define privacy since it is fleeting, according to jurists such as
Arthur Miller. The Greeks were the first to understand the link between an individual and a
state, as well as to provide an outline of how that relationship is formed. Privacy is a
fundamental human right that is inextricably linked to one's unique identity. A person's right
to privacy is a natural right that they are born with. The right of an individual to be left alone,
as defined by the common law, is known as privacy.

It is crucial to analyse the opposing viewpoint, in which the right to privacy is seen as a
natural right, and such rights are those heavenly rights that are deemed superior over all other
rights. Theorists of the social contract, such as John Locke, who advocated the doctrine of
natural rights, which he believed were inviolable and inalienable, sowed the seeds of the
"right to privacy" in his work "Two Treatises on Civil Government." As a result, privacy may
be traced back to natural law doctrines.

2. OUTLINING PRIVACY

The right to privacy is defined as the ability to be left alone or to be free from the misuse or
abuse of one's identity.
The right to privacy is the right to be free from undue publicity, to live in isolation, and to be
free from unwarranted public intrusion in areas over which the public has no voice and is not
directly or indirectly engaged. It is a person's right to be free from intrusion into or public
disclosure of personal information. The right that governs the non-interference of hidden
monitoring and the privacy of an individual's data.

It is divided into four sections.

(1) Physical: An imposition in which another person is denied access to an individual or a

circumstance.
(2) Entity-specific: The application of a limitation that is only applicable to that entity.
(3) Informative: It prevents people from looking for information they don't know about.
(4) Dispositional: The act of preventing attempts to learn about a person's mental condition.

It is the condition of not being noticed or bothered by others, as well as the state of being free
from public scrutiny.

The right to privacy is not a brand-new concept. It's a common law notion, and an invasion of
privacy provides the victim the right to sue for tort damages. Semayne's Case was one of the
earliest cases on the subject (1604). The case concerned the Sheriff of London's access into a
residence in order to carry out a legitimate writ. Sir Edward Coke famously observed, "The
house of everyone belongs to him as his castle and fortress, as well for his protection against
danger and violence, as for his relaxation," while recognising a man's right to solitude. In the
nineteenth century, the notion of privacy was further developed in England, and it is now
firmly established around the world. In Campbell v. MGN, the court concluded that if "there
is an intrusion in a circumstance where a person might reasonably expect his private to be
respected," it is a violation of his right to privacy.
Unless the breach can be mitigated, the intrusion will be capable of causing responsibility.
"justification"

2.1 EVOLUTION OF THE RIGHT TO PRIVACY IN INDIA

Article 21 of the Indian Constitution reads, "No individual shall be deprived of his life or
personal liberty except pursuant to the procedure provided by law." Although the Indian
Constitution does not expressly acknowledge the 'right to privacy' as a basic right, it is
implied in the provisions of Article 21 of the Constitution, as evidenced by the court
judgments addressed below. The following is a list of legal decisions in which the phrase
"privacy" has been addressed repeatedly by the courts. The origin of the 'Right to Privacy' as
a Fundamental Right may be traced back to these legal rulings.
Whether the ‘right to privacy’ is a fundamental right was first considered by the Hon’ble
Supreme Court in the case of M. P. Sharma and Ors. v Satish Chandra, District
Magistrate, Delhi and Ors.4, wherein the warrant issued for search and seizure under
Sections 94 and 96 (1) of the Code of Criminal Procedure was challenged. The Hon’ble
Supreme Court had held that the power of search and seizure was not in contravention of
any constitutional provision. Further, the Hon’ble Supreme Court refrained from giving
recognition to the right to privacy as a fundamental right guaranteed by the Constitution of
India by observing as under

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 a
fundamental right to privacy, analogous to the Fourth
Amendment, we have no justification to import it, into a totally
different fundamental right, by some process of strained
construction. Nor is it legitimate to assume that the
constitutional protection under Article 20(3) would be defeated
by the statutory provisions for searches

However, the minority opinion by Hon’ble Mr Justice Subba Rao recognized privacy as an
important facet of personal liberty and thus Article 21 of the Constitution of India by
observing as under: -

28. In A.K. Gopalan case, it is described to mean liberty relating

to or concerning the person or body of the individual; and
personal liberty in this sense is the antithesis of physical restraint
or coercion.
The expression is wide enough to take in a right to be free from
restrictions placed on his movements. The expression
“coercion” in the modern age cannot be construed in a narrow
sense. In an uncivilized society where there are no inhibitions,
only physical restraints may detract from personal liberty, but as
civilization advances the psychological restraints are more
effective than physical ones. The scientific methods used to
condition a man's mind are in a real sense, the physical
restraints, for they engender physical fear channeling one's
actions through anticipated and expected grooves. So also the
creation of conditions which necessarily engender inhibitions
and fear complexes can be described as physical restraints.
Further, the right to personal liberty takes in not only a right to
be free from restrictions placed on his movements, but also free
from encroachments on his private life. It is true our Constitution
does not expressly declare a right to privacy as a fundamental
right, but the said right is an essential ingredient of personal
liberty. Every democratic country sanctifies domestic life; it is
expected to give him rest, physical happiness, peace of mind and
security. In the last resort, a person's house, where he lives with
his family, is his “castle”; it is his rampart against encroachment
on his personal liberty. The pregnant words of that famous
Judge, Frankfurter J.,
pointing out the importance of the security of one's privacy
against arbitrary intrusion by the police, could have no less
application to an Indian home as to an American one. If physical
restraints on a person's movements affect his personal liberty,
physical encroachments on his private life would affect it in a
larger degree. Indeed, nothing is more deleterious to a man's
physical happiness and health than a calculated interference
with his privacy.
We would, therefore, define the right of
personal liberty in Article 21 as a right of an individual to be
free from restrictions or encroachments on his person, whether
those restrictions or encroachments are directly imposed or
indirectly brought about by calculated measures. It so
understood, all the acts of surveillance under Regulation 236
infringe the fundamental right of the petitioner under Article 21
of the Constitution.”

Following that, in the case of Gobind v State of M.P.6, the police's power to conduct
domiciliary surveillance was challenged as being incompatible with the right to privacy
guaranteed by Article 21 of the Indian Constitution. The Hon'ble Supreme Court ruled that
the police regulations violated the essence of personal liberty, and while it recognised the
right to privacy as a fundamental right guaranteed by the Indian Constitution, it favoured the
evolution of the right to privacy on a case-by-case basis rather than treating it as absolute. The
Supreme Court made the following observations:

“28. The right to privacy in any event will necessarily have to go

through a process of case-by-case development. Therefore,even
assuming that the right to personal liberty, the right to move
freely throughout the territory of India and the freedom of speech
create an independent right of privacy as an emanation from
them which one can characterize as a fundamental right, we do
not think that the right is absolute.”

A similar proposition has been upheld by the Hon’ble Supreme Court in the case of R.
Rajagopal and Anr. v State of Tamil Nadu7, in the course of its summary of the decision,
as under

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 other matters.
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.”
Subsequently, in the case of People’s Union for Civil Liberties (PUCL) v Union of India,8
the Hon’ble Supreme Court clearly held that:-

“17. We have, therefore, no hesitation in holding that right to

privacy is a part of the right to “life” and “personal liberty”
enshrined under Article 21 of the Constitution. Once the facts in
a given case constitute a right to privacy, Article 21 is attracted.
The said right cannot be curtailed “except according to
procedure established by law”.

This issue was recently brought before the Supreme Court in the case of K. S. Puttaswamy
(Retd.) v Union of India9, in which the 'Aadhaar Card Scheme' was challenged was contested
on the basis that gathering and compiling demographic and biometric data The use of
personal data of nation citizens for diverse purposes is a violation of the law.

Article 21 of the Indian Constitution guarantees the right to privacy. Given the situation,
previous court precedents on the constitutional validity of the right to privacy, ambiguity
The dispute was submitted to a constitutional bench of nine judges by the Hon'ble Supreme
Court. (nine) judges are on the panel.

The Union of India, on the other hand, argued that the 'right to privacy' is not a basic right
protected by the Constitution. The Union of India's main defence was that I if the
Constitution's authors had wished to include the 'right to private' as a basic right, it would
have been expressly stated in the document; and (ii) privacy is fundamentally a subjective and
ambiguous term.
Privacy is a challenging notion to describe. Such a nebulous concept cannot be elevated to a
fundamental right; (ii) current laws already provide adequate protection to individuals against
invasions of privacy; and (iv) while the 'right to privacy' is a legitimate claim with common
law support, each such claim cannot be elevated to a fundamental right.

821. The reference is disposed of in the followingterms:

i. The decision in M P Sharma which holds that the right
to privacy is not protected by the Constitution stands

over-ruled;

ii. The decision in Kharak Singh to the extent that it holds that the right to privacy is not
protected by the Constitution stands over-ruled; 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.

iii. Decisions subsequent to Kharak Singh which have enunciated the position in (iii) above
lay down the correct position in law.”

Hon’ble Mr Justice D.Y. Chandrachud, clearly held that: -

“459. (A) Life and personal liberty are inalienable rights. These are rights which are
inseparable from a dignified human existence. The dignity of the individual, equality between
human beings and the quest for liberty are the foundational pillars of the Indian Constitution;
…

(C) Privacy is a constitutionally protected right which emerges

primarily from the guarantee of life and personal liberty in
Article 21 of the Constitution. Elements of privacy also arise in
varying contexts from the other facets of freedom and dignity
recognized and guaranteed by the fundamental rights contained
in Part III; …

(F) Privacy includes at its core the preservation of personal

intimacies, the sanctity of family life, marriage, procreation, the
home and sexual orientation. Privacy also connotes a right to be
left alone. Privacy safeguards individual autonomy and
recognizes the ability of the individual to control vital aspects of
his or her life. Personal choices governing a way of life are
intrinsic to privacy. Privacy protects heterogeneity and
recognizes the plurality and diversity of our culture. While the
legitimate expectation of privacy may vary from the intimate
zone to the private zone and from the private to the public
arenas, it is important to underscore that privacy is not lost or
surrendered merely because the individual is in a public place.
Privacy attaches to the person since it is an essential facet of the

dignity of the human being; …

Like other rights which form part of the fundamental freedoms
protected by Part III, including the right to life and personal
liberty under Article 21, privacy is not an absolute right. A law
which encroaches upon privacy will have to withstand the
touchstone of permissible restrictions on fundamental rights. In
the context of Article 21 an invasion of privacy must be justified
on the basis of a law which stipulates a procedure which is fair,
just and reasonable. The law must also be valid with reference
to the encroachment on life and personal liberty under Article

21. An invasion of life or personal liberty must meet the threefold requirement of
(i) legality, which postulates the existence of law;
(ii) need, defined in terms of a legitimate state aim; and
(iii) proportionality which ensures a rational nexus between the objects and the means
adopted to achieve them; and Privacy has both positive and negative content. The negative
content restrains the state from committing an intrusion upon the life and personal liberty of a
citizen. Its positive content imposes an obligation on the state to take all necessary measures
to protect the privacy of the individual.”

The Hon'ble Supreme Court dismissed the Union of India's arguments, and while examining
the nature of the right to privacy in terms of its origin11, the Hon'ble Supreme Court
The right to privacy is essential to and inseparable from a human element, according to the
court. The heart of human dignity is the human being12. As a result, it was determined that
privacy had both beneficial and negative aspects as well as negative content The bad content
works as a blockade to the State's ability to do business encroaching on a citizen's life and
personal liberty for the purpose of achieving a favourable outcome The state is obligated to
take all necessary measures to protect the material the individual's privacy.

As a result of this judgment, the right to privacy has become ‘more than mere common law
right’ and ‘more robust and sacrosanct’ than just any statutory right. Thus, now in the
context of Article 21 of the Constitution, an invasion of privacy must be justified on the
basis of ‘a law’ which stipulates a procedure which is fair, just and reasonable. It is to be
noted that since R.C. Cooper v Union of India, ‘procedure established by law’ in Article
21 has gained substantive due process element as well whereby even the contents of the
law can be challenged being not in accordance with requirements of a valid law. Therefore,
because of the right of privacy being recognized as a fundamental right, existing sectoral
legislation, if challenged, may now have to pass the rigours of the aforesaid test. Same
would not have been the position if privacy would have remained mere statutory or
common law right.

While discussing the right to information privacy in today’s world,

Hon’ble Dr Justice D.Y. Chandrachud concluded as under: -

“457. Informational privacy is a facet of the right to privacy. The

dangers to privacy in an age of information can originate not
only from the state but from non-state actors as well. We
commend to the Union Government the need to examine and put
into place a robust regime for data protection. The creation of
such a regime requires a careful and sensitive balance between
individual interests and legitimate concerns of the state. The
legitimate aims of the state would include for instance protecting
national security, preventing and investigating crime,
encouraging innovation and the spread of knowledge, and
preventing the dissipation of social welfare benefits. These are
matters of policy to be considered by the Union government
while designing a carefully structured regime for the protection
of the data. Since the Union government has informed the Court
that it has constituted a Committee chaired by Hon'ble Shri
Justice B.N. Srikrishna, former Judge of this Court, for that
purpose, the matter shall be dealt with appropriately by the
Union government having due regard to what has been set out
in this judgment.

746. We are in an information age. With the growth and

development of technology, more information is now easily
available. The information explosion has manifold advantages
but also some disadvantages. The access to information, which
an individual may not want to give, needs the protection of
privacy.

747. The right to privacy is claimed qua the State and non-State
actors. Recognition and enforcement of claims qua non-state

3. CONCLUSION

In this day of rapidly evolving information technology, privacy is necessary to be basic in

nature, and the Hon'ble Supreme Court's decision is justified in this regard in the sense that it
declared privacy to be a right under Part III of the Constitution. The Indian Constitution.
Also, with the passage of the Data Protection Act, which is already in effect, anticipated to be
adopted in the near future Because the right to privacy is inherent in nature, it shall be upheld
will play a significant role in ensuring the security of online data and will offer for

In addition, there is the issue of informational privacy. Bentham also established the pain and
pleasure theories in jurisprudence. As a result, the government must consider the pleasure of a
bigger number of people and attempt to inflict less suffering. The government's arbitrary use
of authority with regard to people's personal information has to be regulated. When a conflict
arises between the invasion of private and the public interest, reasonable care must be used to
determine which is more essential. Individual interests cannot trump the general good. In a
democracy, the adage "salus populi est suprema lex" (public welfare is the highest law) must
be upheld.