The debate of privacy basically came into light in the 21st century with the need of data privacy laws and right to privacy of every individual irrespective of their caste, sex, place of origin etc. Right to privacy is not new, it has been a common law concept and an invasion of privacy gives rights to individuals to seek remedy for the same. It plays a significant role in one’s life in developing personality, integrity and dignity. However, it is not an absolute right, but an evasion of one’s privacy must be based on legality and such an invasion must be justified by law.
According to the Black’s Law Dictionary, privacy can be defined as – “right to be let alone; the right of a person to be free from unwarranted publicity; and the right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned.”. The concept of privacy is so deeply rooted with liberty and dignity of an individual that it cannot be denied the status of fundamental right. Privacy is such a right which is inherent from the personality of an individual and it primarily forms a basic part of human rights. Right to privacy is a basic right which an individual possesses by birth irrespective of sex, caste, race, place of origin etc.
Article 21 of the Constitution of India deals with the protection of life and personal liberty which reads as – “No person shall be deprived of his life or personal liberty except according to procedure established by law”. Here the expression “procedure established by law” means that the procedural law must be fair, just and reasonable.
Right to Privacy in India
Right to Privacy is enshrined under Article 21 of the Indian Constitution which provides protection of life and liberty of an individual. The Constitution of India does not precisely recognize the right to privacy as a fundamental right, it is, however, inherent in the provisions of Article 21 of the Constitution which is evident from judicial decisions, which we will be seeing below. The following are the judicial decisions taken by the courts from time to time where the term privacy has been dealt with. With these judicial decisions, the birth of ‘Right to Privacy’ as fundamental right can be traced.
Important Cases which gave birth to Right to Privacy as Fundamental Right
In the Supreme Court case of A.K. Gopalan Vs State of Madras, the 6 bench of judges interpreted the fundamental rights of the Constitution extensively. The Hon’ble Supreme Court dealt with the issues whether the Preventive Detention Act, 1950 is violative of Article 19 and 21 of the Constitution, whether ‘Procedure established by law’ under Article 21 of the Indian Constitution is same as ‘Due process of law’ under US Constitution and whether Article 19 and 21 are in relation or they are independent in nature. The facts of the case before the Hon’ble Supreme Court were that the petitioner was a communist leader who was detained under the Preventive Detention Act, 1950. The petitioner challenged the validity of the act on the ground that it is violating his right of movement under Article 19(1)(d) and right to personal liberty under Article 21 of the Constitution of India.
The majority bench held that ‘personal liberty’ which in enumerated under Article 21 is nothing but freedom of physical body, that is freedom from arrest and detention without the authority by law and protection under Article 19 can be availed against unreasonable restriction. Further it was held that the word ‘due’ is not in our Indian Constitution and the same cannot be interpreted, so the court interpreted ‘procedure established by law’. The Hon’ble Supreme Court dismissed the writ petition and held that the Preventive Detention Act, 1950 is made by the State Legislature therefore it does not violate Article 21 of the Constitution.
One of the darkest days of Indian democracy was seen when the Hon’ble Supreme Court gave the judgement in the case of ADM Jabalpur Vs Shivkant Shukla, ‘Habeas Corpus’ case, where the Court held that during a National Emergency, the right to life of a person cannot be enforced by the High Court under the Article 226 of the Constitution of India. The majority of the court upheld the Constitutional validity of Section 16A (9) of MISA Act. The judgement given by the Court was widely criticized as they favored the State instead of standing up for individual liberty. Later immediately after the end of the emergency the Hon’ble Supreme Court changed its stand by giving Article 21 a permanent character in addition to linking rights provided under Article 21 with rights provided under Article 14 and Article 19 of the Constitution of India.
In the Supreme Court case of Maneka Gandhi Vs Union of India, brief facts of the case were that the appellant’s passport was impounded for public interest by the passport authority and no reasonable explanation was given to her. The appellant filed a writ petition and argued that her right under Article 14, Article 19 and Article 21 of the Constitution are violated by the passport authority. The Hon’ble Supreme Court ruled in the favor of Appellant and held that the action of passport authority was unconstitutional as they went against the procedure established by law and violated appellant’s right under Article 14, Article 19 and Article 21 of the Constitution. This case overruled the ‘Habeas Corpus’ case and it was held that Article14, Article 19 and Article 21 are inclusive in nature, the ‘procedure established by law’ must be fair, just and reasonable and the law incorporated under Article 21 should follow the principle of ‘Natural Justice’.
After this case, the judiciary became the watchdog to protect the laws laid under the Constitution and safeguard the intention of the legislature who made it. The provision of Article 14, Article 19 and Article 21 was declared as inclusive in nature and was called the ‘Golden Triangle’. The judiciary mandated that any law which deprives a person from right to personal liberty should stand the test of Article 21 along with Article 14 and Article 19 of the Constitution. It was also held that the principles of ‘Natural Justice’ is protected under Article 21 and therefore, no person is deprived of his voice to be heard in the court.
One such historic judgement which was a turning point in expansion of the right to privacy was in R. Rajgopal Vs State of Tamil Nadu, a prisoner named auto Shankar was convicted of committing 6 murders, wrote an autobiography while in the prison and sent it to Petitioner’s magazine for publication. The government officials restricted the publication because the autobiography disclosed nexus with several high rank officers who were his partner in crime. The question raised was concerning the freedom of press along with the right to privacy of the citizen. The Hon’ble Supreme Court held that the government officials have no right to impose prior restriction, if they want to take action it can only be taken after the publication of the autobiography, if there is any defamatory statement. Further the Hon’ble Court held that though the right to privacy is not enumerated as a fundamental right in our Constitution, “…it 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.”
In the case of Mr. ‘X’ Vs Hospital ‘Z’ , the appellant was to marry her fiancé but she called off the marriage when she got to know from his doctor that he was HIV positive. The appellant argued that the doctor violated his right to privacy by sharing his personal information. The Hon’ble Court recognized that right to privacy is an essential component of right to life enumerated under Article 21, but also clarified that “the ‘right, however, is not absolute and may be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others.”
Finally, after this interesting journey filled with twists and turns, came the landmark judgment in Justice K.S. Puttaswami v Union of India, ‘Aadhar Card Scheme’ was challenged on the ground that collecting demographic and biometric data of residents of the country which will be used for various purposes was a breach of right to privacy enumerated under Article 21 of the Constitution. The Hon’ble Supreme Court referred the matter to a constitutional bench of nine (9) judges. The petitioner contended that right to privacy is a fundamental right and it is also indicated in Articles 14,19, 20, 21 and 25 of the Constitution of India and it can be seen with the liberty and dignity of the individual. On the contrary the Union of India argued that right to privacy is not a fundamental right under Article 21 of the Constitution of India.
In a unanimous judgement the Hon’ble Supreme Court held that Right to Privacy is a fundamental right. However, it is not an absolute right and it was subject to restriction, provided as- 1) the restriction is provided by law; 2) it corresponds to a legitimate aim of the state and; 3) it is proportionate to the objective it sought to achieve.
As a result of this judgement, Right to Privacy has become more than a mere common law right rather than just a statutory right.
 “Privacy” Black’s Law Dictionary.
 A.K. Gopalan Vs State of Madras, AIR 1950 SC 27
 ADM Jabalpur Vs Shivkant Shukla, (1976) 2 SCC 521
 Maneka Gandhi Vs Union of India, (1978) 1 SCC 248
 R. Rajgopal Vs State of Tamil Nadu, (1994) 6 SCC 632
 Mr. ‘X’ Vs Hospital ‘Z’, (1998) 8 SCC 296
 Justice K.S. Puttaswami v Union of India, (2017) 10 SCC 1
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