Journal of ISSN: 2581-8155

Volume 4, Issue 1, 2021

Human Rights Law and Practice DOI (Journal):

10.37591/JHRLP

http://lawjournals.celnet.in/index.php/jhrlp/index

Case Report JHRLP

Right to Privacy: An Indian for its

Inherant Right
Shivam Singh1,*, Malobika Bose2

Abstract
It seems to be saddening that although India got its freedom back in 1947, it took 70 more years to
grant its citizens, the freedom of being alone. The Right to Privacy unlike in the U.S was not deemed
to be an absolute right and hence, there followed several cases in the Indian Courts until the year
2018, when the Hon’ble Supreme Court, in the Puttaswamy Judgment held privacy as an inviolable or
unassailable and non-negotiable right or secure from destruction.

Keywords: Privacy, Comparison of Privacy Laws, Preservation, Human Rights, Article 12.

INTRODUCTION
In the modern era, where people are conscious about their rights, the right to privacy is the ultimate
need of citizens which has been recently upheld by the Hon’ble Supreme Court after the series of
Judgments since the year 1954, in the case of M.P Sharma and ors. v. Satish Chandra, where the issue
of the constitutional validity of searches as a part of the right to privacy was discussed for the first
time. It was followed after the rejection of privacy as a fundamental right by the constitution-makers
to avoid privacy right as an obstruction in law enforcement and criminal prosecution [1]. Privacy right
basically refers to right against the intervention of secret surveillance and protection of an individual’s
information. It has also been defined by many philosophers as an inalienable right. India is also a
signatory of many international conventions that insists upon the importance of the right to privacy.
Still the concept of privacy is a bit complex as every country has its notion for privacy. In some
countries, the concept of privacy relates to data protection whereas, in some other countries, the idea
of privacy is associated with how much society can intrude into one’s personal affairs.

Initially, the idea of privacy as a right was taken from the United States, where this right has been
guaranteed to the citizens. But subsequently this idea was rejected to preserve societal peace, law, and
order. With time, increasing the sensitivity of people towards infringement of their rights and judicial
decisions has severally contributed to the
development of privacy as a fundamental right in
India [2].

*Author for Correspondence ORIGIN OF PRIVACY

Shivam Singh Concept of right to privacy through the not very
E-mail: [email protected]
old concept, its traces can be found several years
1
Student, Amity Law School, Amity University, Lucknow, ago. It is considered that Marbury v. Madison, is
Uttar Pradesh, India
2
Assistant Professor, Amity law school, Amity University,
the venerable ancestor of right to privacy when for
Lucknow, Uttar Pradesh, India the first time Supreme Court reached out of the
context of the constitution and adopted method of
Received Date: Month, Date, Year
Accepted Date: Month, Date, Year interpretation and hence precursor of constitutional
Published Date: Month, Date, Year protection of privacy [3]. The origin of concept
privacy can be traced back to the year 1859 when
Citation: Shivam Singh, Malobika Bose. Right to Privacy: An
for the first time, essay on the concept of liberty
Indian for its Inherant Right. Journal of Human Rights Law was written by John Stuart in which he wrote about
the importance of the right to privacy of the citizens of a country and its preservation to avoid any
and Practice. 2021; 4(1): 1–5p.

© Law Journals 2021. All Rights Reserved 1

Right To Privacy: An Indian for its Inherant Right Singh and Bose

external force from the state [4]. Later in the year 1890, Samuel D. Warren and Louis D. Brandeis
wrote on the concept of privacy as ‘Right to be let alone’, which was the need for individual freedom
in the modern world given upholding one’s right to personality concerning modern business practices
and invasive inventions. The doctrine of Privacy was first time laid down in the year 1965 in the case
of Griswold v. Connecticut in which, the court invalidated the statute that prohibited the usage of
contraceptive devices and hence upheld privacy of married couples. The unusual thing about privacy
cases that were brought initially before the courts were their orientation towards social institutions
surrounding sexual relationships as well as procreation. Hence, after that period, this inalienable right
was recognized as a fundamental right. In the late 1990s, the right to privacy evolved as a
fundamental right in the United States. In India, privacy rights were in debate since the formation of
the constitution. This right was discussed severally in many landmark judgments but was rejected.
Hence, it took almost 70 years for privacy to be evolved as a fundamental right in India.

ANALYSIS OF ROLE OF JUDICIARY IN DEVELOPMENT OF PRIVACY

The right to privacy as an inalienable right was severally discussed in the constituent assembly
debates. But to avoid the concept of due process of law and to avoid disturbance in the law and order,
Privacy on searches and seizures was avoided, and hence in totality, privacy as a fundamental right
was rejected. This was followed after referring to the U.S Constitution for the concept of Privacy. In
the U.S, the concept of privacy has not been mentioned explicitly in the constitution, but certain
provisions such as First, Fourth, and Fifth Amendment explicitly mention about right to privacy
especially the fourth amendment which prohibits unreasonable searches and seizures [5]. Hence, the
U.S legislature along with Judiciary played an important role in the development of the right to
privacy going beyond the strict interpretation of the U.S Constitution. In India, the right to privacy
was duly discussed for the first time by the Hon’ble Supreme Court in the year 1954 in the case
of M.P Sharma and ors. v. Satish Chandra where the case of validity of search and seizures was put
before the Court. It was held by the court that since the Indian Constitution does not have any such
amendment on the lines of the Fourth U.S Constitutional amendment, the right to privacy cannot be
questioned. But later in 1962, in the case of Kharak Singh v. State of U.P., several police acts based
on the Police regulation act was challenged in which question of the validity of domiciliary visits was
challenged. In this case, Kharak Singh, who was once convicted in a criminal case, was kept under
surveillance by the police using domiciliary night visits that caused mental stress and problem to him
and his family. The Supreme Court gave importance to order and peace in the society and hence held
the validity of regulations as privacy is not guaranteed under the constitution and hence Article 21
(Right to life and Personal liberty) could not be brought into application. Had a serious approach was
taken by the supreme court regarding the necessity of this natural right, the struggle for this right
would not have been so long. After these two landmark judgments, the idea of privacy remained
unchallenged for several years. Later after few years, the privacy concept was again challenged in the
case of Govind v. State of Madhya Pradesh, in which Justice Mathew accepted privacy as an
emanation from Article 19(a), (d) and Article 21 but it is not an absolute right, privacy can be
restricted based on compelling public interest. Moreover, Right to privacy was regarded as a right
dealing with persons and not places. The concept of the Right to privacy was sincerely expanded by in
the case of Smt. Maneka Gandhi v. Union of India & Anr. in the year 1978 in which 7 Judge bench
introduced a triple test to identify interference with the right to life and personal liberty. First, was
prescription of a specific procedure, which must withstand the test of one or more of fundamental
rights conferred under Article 19 that would be applicable in the given situation and lastly, that
procedure must withstand the test of Article 14 [6]. Further, In the case of R. Rajgopal v. State of
Tamil Nadu, it was held by Justice B.P Jeevan Reddy observed that intrusion in one’s life, family,
procreation, motherhood, education, etc. would amount to the right to privacy as implicit in the right
to life and personal liberty. Later, the ambit of privacy was widened in the case of the People’s Union
for Civil Liberties v. Union of India to include telephone tapping by the government under telegraph
act as a violation of Article 21, i.e. Right to life and personal liberty of a person. The concept of
privacy was extensively broadened in the case of Ram Jethmalani v. Union of India, in which the right

© Law Journals 2021. All Rights Reserved 2

Journal of Human Rights Law and Practice
Volume 4, Issue 1
ISSN: 2581-8155

to privacy was held as an integral part of the right to life. Though the right to privacy has not been
explicitly mentioned in our Constitution, the roots can be traced under the ambit of Article 21 and
telephonic conversation includes under the right to privacy and tapping of such confidential
information amounts to a breach of the right to privacy, which could only be taken away by the
procedure established by the law.

The evolution of the Right to privacy in India took a long time to shape its identity whereas it was
developed in the U.S much earlier. After the first case of the right to privacy in the U.S, another case
that was put before the U.S Supreme Court was regarding the constitutionality of Texas abortion law
in the case of Roe v. Wade in which the Court held right of privacy emerging from fourteenth U.S
constitutional amendment which deals with the right to personal liberty and restriction against state
action. Whereas it took almost 60 years in India after two landmark judgments, to interpret the
concept of privacy as a part of the right to personal liberty of a person under Art. 21.

INTERNATIONAL CONCEPT OF PRIVACY

There are many international conventions to which India is a signatory that provided for privacy as
a basic human right of which no person shall be devoid of. There are majorly four International
standards laid by the treaties for the protection of privacy universally. Universal Declaration of
Human Rights has Article 12 solely focusing upon the necessity of privacy [7]. Article 12 states that
‘No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence
or to attack upon his honor and reputation. Everyone has the right to protection of the law against such
interference or attacks.’’ Further Article 17 of International Covenant on civil and political rights
protects from unlawful and arbitrary interference with privacy, family, home, and correspondence as
well as from unlawful attacks on honor and reputation. Moreover, Article 16 of the Convention on the
rights of the child protects a child’s privacy and unlawful attacks against honor and reputation. Also,
Article 14 of the International Convention on the Protection of all Migrant Workers and members of
their families provides privacy and protection of the reputation of migrant workers and their families.
India is a member of many international conventions for the protection of Privacy always had an
obligation to recognize privacy as a right which has been now recognized after a struggle of almost 60
years.

These International conventions along with other regional conventions as well consider privacy
right as of supreme importance and a basic natural right that every human deserve. And hence, these
conventions to which India is a party laid down the importance of the right to privacy in India.

RIGHT TO PRIVACY AS A FUNDAMENTAL RIGHT

It took a long time for privacy to be recognized as a fundamental right in India. It was in the year
2017 in the landmark Judgement case of Justice K.S Puttaswamy v. Union of India when the right to
privacy was upheld by the Hon’ble Supreme Court. The issue particularly brought before the court
was to decide upon the validity of biometric identity based upon the Aadhar Scheme where the nine-
judge bench expanded the issue by deciding upon privacy as a fundamental right or not [8]. The
arguments given by the attorney general against the right to privacy were about the intent of
constitution-makers and accepting the right to privacy would amount to rewriting the constitution. But
the nine Judge Bench led by Retd. Chief Justice J.S. Khehar upheld the right to privacy and extended
the date for deciding upon the validity of aadhar scheme. Aadhar, the largest biometric system of the
world, was introduced in India for helping people to avail benefits of certain government schemes
such as availing Ration, etc., but due to its security breaches, the Aadhar had become the most unsafe
scheme containing sensitive data such as fingerprints, retina scan, and other personal information [9].
Moreover, the Information Technology Act, 2000 is the only source of protection of data in India and
hence, privacy had become more important in the Indian Context to avoid data breaches [10].

© Law Journals 2021. All Rights Reserved 3

Right To Privacy: An Indian for its Inherant Right Singh and Bose

Later deciding upon the validity of Aadhar for Privacy, the Supreme Court laid down a
proportionality test to determine whether a law is reasonable or not. For this, four aspects namely,
Legitimate goal, Rational Connection, Necessity, and balancing were laid down and applied them to
check the validity of Aadhar Case. Observing and analysing all the four aspects for reasonability of
Aadhar scheme, the Hon’ble Court only held validity of linking Aadhar with Pan Card but denied
proportionality of linking Aadhar with bank accounts and mobile numbers. Further, the Right to
privacy as it does not only indicate data privacy but also includes privacy from social intrusion; the
recent Judgement of decriminalization of section 377 has led to holding the law of the right to privacy
of LGBT groups in full spirit. This was also a result of the right to privacy Judgment.

ANALYSIS OF ROLE OF LEGISLATURE

There have been at least five privacy bills introduced in the parliament for seeking the privacy of
the Individual yet no law has been made to preserve the privacy of the citizens. In the year 2017, the
privacy bill draft was passed by BJD minister Bajiyant Panda, for introducing privacy laws. At
present in India, there is only one law for the protection of privacy of the people- Information
Technology Act, 2000. But the limited role of IT act is insufficient to fulfill the requirement stringent
data protection in the modern era where data leakages have become so common [11]. As privacy has
different facets, it has become important after privacy Judgement for the implementation and
introduction of laws strictly punishing for data leakages to preserve healthy privacy policy in India.

The role of the legislature in recognition of privacy as a fundamental right has not been much
appreciating. Unlike the U.S, the Parliament of India before the privacy Judgement has not passed any
such bill or amendment to support the privacy rights of the people. It was only Judiciary, who used its
power of judicial review to uphold the right to privacy as a fundamental right.

CONCLUSION
In the current scenario, after the Supreme Court judgment of privacy as a fundamental right, it has
changed the purview of privacy rights in India. Earlier when despite having several international
conferences on the importance of privacy rights, privacy right was rejected explicitly through
landmark judgments, it diminished hope of citizens for getting their basic inalienable right. Though
this right was required much before the present time, when it was introduced in the year 2017, it did
make huge changes. Aadhar which turned out to be a Problematic scheme through its sensitive data
leakages, right to privacy has made a linkage of Aadhar to phone numbers and bank accounts as
unconstitutional and hence preserving the privacy of millions of people. Moreover, the legalization of
gay rights as an aspect of privacy has shown the strength of the Judiciary in India. The only criticism
is that Judiciary has taken almost 60 years to uphold the right to privacy which was much more than
that of the U.S. This right could have been introduced earlier if a much serious approach was taken by
the Judiciary.

REFERENCES
1. V. Nayak, "Understanding the Right to Privacy," 2012. [Online]. Available:
https://cic.gov.in/sites/default/files/2012/R2PrivacyVenkatesh.pdf.
2. M. Prajapati, 2020. [Online]. Available: www.manupatra.com.
3. W. G. Merkel, "The Second Amendmend and the Constitutional Right to Self-Defence," 2013.
4. A. Sahu, "The Evolution of Right to Privacy in India," 15 January 2018. [Online]. Available:
https://www.legalbites.in/evolution-rightprivacy-india/.
5. T. E. o. Britannica, "Right to Privacy," [Online]. Available: https://www.britannica.com/
topic/rights-of-privacy.
6. N. Vishwanath, "The Supreme Court's Aadhar Judgement and the Right to Privacy," 11 October
2018. [Online]. Available: http://www.mondaq.com/india/x/744522/Data+Protection+Privacy/
The+Supreme+Courts+Aadhaar+Judgement+And+The+Right+To +Privacy.
7. D. Committee, "Universal Declaration of Human Rights," 1948.

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Journal of Human Rights Law and Practice
Volume 4, Issue 1
ISSN: 2581-8155

8. J. Pandey, "India's Supreme Court Upholds Right to Privacy as a Fundamental Right- And it's
about time," 28 August 2017. [Online]. Available: https://www.eff.org/deeplinks/2017/08/indias-
supreme-court-upholds-right-privacy-fundamental-right-and-its-about-time.
9. T. N. Staff, "Aadhar Security Breaches," [Online].
10. C. f. I. a. Society, "Aadhar Act and its compliance with data protection law in India," 14 April
2016. [Online]. Available: https://cis-india.org/internet-governance/blog/aadhar-act-and-its-non-
compliance-with-data-protection-law-in-india.
11. P. K. Dutta, "Right to Privacy: 5 Bill yet no law, how parliament has dealt with personal data
protection," 24 August 2017. [Online]. Available: https://www.indiatoday.in/india/story/right-to-
privacy-fundamental-right-parliament-1031136-2017-08-24.

© Law Journals 2021. All Rights Reserved 5