Malcolm Rivera
The right to privacy is a fundamental aspect of individual liberty and has gained prominence in the constitutional framework of modern democracies, including India. While the Indian Constitution does not explicitly mention the right to privacy, it has been inferred from the broader guarantees of life and personal liberty under Article 21, as well as the freedoms enshrined in Part III of the Indian Constitution. The Indian Supreme Court's landmark judgement in Justice K.S. Puttaswamy (Retd.) vs Union of India in 2017 unanimously affirmed that the right to privacy is an inherent part of the right to life and personal liberty guaranteed under Article 21. This judgement marked a watershed moment in the constitutional history of India, with the court adopting a liberal interpretation of fundamental rights to meet the challenges posed by the increasing digital age.
| Characteristics | Values |
|---|---|
| Date of Decision | 24 August 2017 |
| Decision Maker | Nine-judge Supreme Court panel led by Chief Justice J. S. Khehar |
| Decision | The right to privacy is a fundamental right for Indian citizens under the Indian Constitution |
| Article | 21 |
| Part | III |
| Rights Covered | Right to Life, Personal Liberty, Informational Privacy, Bodily Integrity, Decisional Autonomy |
| Rights Not Covered | Right to Privacy does not apply to private individuals' breaches of the right |
| Circumstances | The Right to Privacy can be limited in certain circumstances, such as in the interest of national security or public order |
| Previous Cases | M.P. Sharma, Kharak Singh, Gobind v. State of M.P., Rajagopal |
| Privacy Law | India does not have a dedicated privacy law |
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What You'll Learn
Privacy as a fundamental right
In 2017, the Supreme Court of India delivered a landmark judgment in the Justice K.S. Puttaswamy (Retd) vs Union of India case, unanimously recognising the right to privacy as a fundamental right guaranteed by the Constitution. This ruling marked a watershed moment in India's constitutional history, with all nine judges signing a one-page order declaring the intrinsic connection between privacy and the right to life and personal liberty under Article 21.
The judgment addressed the ambiguity surrounding the nature and scope of privacy rights in India, which had allowed the government to collect and compile demographic and biometric data through the Aadhaar scheme. The original justification for Aadhaar was to ensure that government benefits reached the intended recipients. However, its rapid expansion led to it becoming the world's largest biometric database, with over 1.25 billion Indians registered.
Prior to the 2017 ruling, the interpretation and scope of privacy as a right had evolved over time. Several cases, such as M.P. Sharma, Kharak Singh, Gobind v. State of M.P., and Rajagopal's case, contributed to the expansion of privacy rights. In the Kharak Singh case, for instance, the court invalidated a Police Regulation that permitted nightly domiciliary visits, recognising them as an "unauthorized intrusion" into an individual's home and a violation of ordered liberty. However, the court also upheld other clauses of the Regulation, stating that the right to privacy was not guaranteed under the Constitution and, therefore, Article 21 (right to life and personal liberty) did not apply.
The 2017 Supreme Court ruling expanded the scope of Article 21, asserting that the Right to Life and Liberty encompasses the right to privacy. As Article 21 falls under Part III of the Indian Constitution, which deals with fundamental rights, privacy was elevated to the status of a fundamental right. This judgment set a significant precedent, influencing various landmark judgments that followed, such as the Navtej Johar and Joseph Shine cases.
While the right to privacy is now recognised as a fundamental right in India, the country is yet to enact a comprehensive privacy law. However, the Indian Parliament has been discussing the Personal Data Protection Bill, which could pave the way for formal privacy legislation.
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Privacy in the digital age
The right to privacy in India has evolved through a series of decisions over the past 60 years. In 2017, the Supreme Court of India unanimously ruled that the right to privacy is a fundamental right, protected as an intrinsic part of the right to life and personal liberty under Article 21 of the Constitution. This ruling marked a watershed moment in the country's constitutional history, as it provided much-needed clarity on the nature and scope of privacy rights in the digital age.
The focus on privacy rights in India has become increasingly important due to the rapid advancement of technology and the growing digitization of data. With the rise of the internet and digital communication platforms, personal information is more accessible and vulnerable than ever before. As a result, individuals' privacy is constantly being challenged by both state and non-state actors, including corporations and journalists, who engage in data collection and surveillance.
To address these concerns, the Indian government has introduced several laws and regulations to protect citizens' privacy. For example, the Indian Telegraph Act of 1885 gives individuals the right to have telephonic conversations without intrusion, and the Information Technology Act of 2000 governs the collection, processing, and use of private information by corporate bodies. Additionally, the Personal Data Protection Bill, introduced in 2019, aims to protect individuals' privacy relating to their personal data and establish a Data Protection Authority in India.
However, despite these efforts, India still lacks comprehensive data protection and privacy legislation. The current laws are sectoral in nature, and there is a need for a clear constitutional definition and guarantee of the right to privacy, especially in the digital realm. The Supreme Court has recognized this need and is currently considering the issue.
In the digital age, the state must play a significant role in the data ecosystem to ensure that individuals' privacy rights are protected. This includes managing essential infrastructural social and economic databases and directing private corporations to act in the best interests of citizens. Additionally, the state should provide assistance to citizens in managing their personal data and navigating the complex world of digital services without sacrificing their privacy.
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Privacy and the right to life
Privacy is not explicitly mentioned in the Indian Constitution. However, in 2017, the Supreme Court of India unanimously agreed that the right to privacy is a fundamental right, protected as an intrinsic part of the right to life and personal liberty under Article 21 of the Constitution. This ruling came about as a result of a petition challenging the constitutional validity of the Indian biometric identity scheme, Aadhaar, and marked a watershed moment in the constitutional history of India.
The right to privacy in India has developed over the past 60 years through a series of decisions. Inconsistency in two early judgments, M.P. Sharma and Kharak Singh, created a divergence of opinion on whether the right to privacy is a fundamental right. In M.P. Sharma, the bench held that the drafters of the Constitution did not intend to subject the power of search and seizure to a fundamental right to privacy. They argued that the Indian Constitution contains no language similar to the Fourth Amendment of the US Constitution, and therefore questioned the existence of a protected right to privacy. However, Justice Subbarao's dissenting opinion in Kharak Singh clarified that, although not expressly recognised as a fundamental right, the right to privacy was an essential ingredient of personal liberty under Article 21.
Over the next 40 years, the interpretation and scope of privacy as a right expanded and was accepted as being constitutional in subsequent judgments. During the hearings of the Aadhaar challenge, the Attorney-General representing the Union of India questioned the foundations of the right to privacy. The Supreme Court's ruling in Justice K.S. Puttaswamy (Retd) vs Union of India overruled the two past judgments insofar as their observations on privacy were concerned. The ruling declared that the right to privacy is protected under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution, which deals with fundamental rights.
The right to privacy has also been recognised in other cases. In Confederation of Ex-servicemen Association v. Union of India, the right to get free and timely legal aid or facilities was not held as a fundamental right of ex-servicemen. In another case, the petitioner argued that a search and seizure operation carried out on his property violated the provision of the Right to Property, as mentioned in Article 19(1). The court rejected this argument, but mentioned the caveat of 'reasonable cause', which gives police the power to search and seize. In Kharak Singh v. The State of UP, the petitioner argued that nightly domiciliary visits by the police violated his right to move freely across India, as enshrined by Article 19. The court agreed that these visits violated the petitioner's right to live a dignified and free life, but also agreed that the right to privacy was not a fundamental right, and hence surveillance of his movements did not violate the Constitution.
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Privacy and personal liberty
In India, the right to privacy has evolved over the last 60 years through a series of court decisions. Initially, the right to privacy was recognised as an intrinsic part of the right to life and personal liberty guaranteed under Article 21 of the Constitution. However, in August 2017, the Supreme Court of India, in the landmark case of Justice K.S. Puttaswamy (Retd.) vs Union of India, unanimously ruled that the right to privacy is a fundamental right under the Constitution. This ruling marked a watershed moment in India's constitutional history, as it declared that the right to privacy is a standalone right, encompassing various facets such as informational privacy, bodily integrity, and decisional autonomy.
The Supreme Court's decision was influenced by the interpretation and expansion of privacy rights in previous judgements, such as Kharak Singh vs The State of UP, where nightly domiciliary visits by the police were deemed an "unauthorised intrusion" violating ordered liberty. The court's ruling in the Puttaswamy case clarified that individual liberty must extend to digital spaces, and that privacy and autonomy must be protected in the digital age, where individuals share vast amounts of personal data with various entities.
The right to privacy in India is also linked to the concept of "reasonable cause," which grants the police the power to search and seize with proper justification. Additionally, the Civil Society Organisation People's Union for Civil Liberties has challenged Section 5(2) of the Indian Telegraph Act, arguing that it gives the state excessive power to tap individuals' phones, infringing on their privacy.
The Indian government has enacted several laws to protect the right to privacy, and the Supreme Court has consistently objected to any violation of citizens' privacy rights. The right to privacy in India continues to evolve and adapt to the challenges posed by the increasing digitalisation of society.
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Privacy and surveillance
The Indian Supreme Court played a pivotal role in clarifying and upholding the right to privacy as a fundamental right. In the landmark case of K.S. Puttaswamy vs Union of India in 2017, the Supreme Court unanimously ruled that the right to privacy is a fundamental right, protected under Article 21 of the Constitution, which guarantees the right to life and personal liberty. This ruling marked a watershed moment in India's constitutional history, ending decades of inconsistency and divergence of opinion on the matter.
The court's decision in the Puttaswamy case was influenced by a series of previous judgments, including M.P. Sharma, Kharak Singh, Gobind v. State of M.P., and Rajagopal's case. In the Kharak Singh case, the court invalidated a Police Regulation that permitted nightly domiciliary visits, recognising them as an "unauthorised intrusion" and a violation of ordered liberty. However, the court also upheld other clauses of the Regulation, stating that the right to privacy was not guaranteed under the Constitution at the time.
The absence of explicit privacy protections in the Indian Constitution led to concerns about government surveillance and data collection. The Aadhaar scheme, for instance, became the world's largest biometric database, with over 1.25 billion Indians registered. The delay in forming a nine-judge bench to review the scheme allowed it to become an insidious part of Indian citizens' lives, linked to various essential and non-essential services.
To address these concerns, the Supreme Court, in its 2017 ruling, expanded the interpretation of Article 21, asserting that the right to life and liberty inherently included the right to privacy. This expansion ensured that the right to privacy became a fundamental right in India, providing legal protection against arbitrary interference in an individual's privacy, family, home, correspondence, honour, and reputation. The ruling also emphasised the need for procedural safeguards and fair practices in surveillance activities to prevent the curtailment of fundamental rights.
In conclusion, while India's Constitution did not initially cover privacy rights explicitly, the Supreme Court's 2017 ruling in the Puttaswamy case established privacy as a fundamental right, protected under Article 21. This decision addressed concerns about government surveillance and data collection, ensuring that Indian citizens' privacy and personal liberty are upheld in the digital age.
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Frequently asked questions
Yes, the Indian Supreme Court ruled on 24 August 2017 that the right to privacy is a fundamental right for Indian citizens under the Indian Constitution.
The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 of the Indian Constitution.
The right to privacy includes the right to be left alone, the right to be free from unwanted publicity, and the right to lead a peaceful and dignified life.
Yes, the right to privacy can be limited in certain circumstances, such as in the interest of national security or public order.
