SCHOOL OF LAW

NAME: Sarthak Sharma

SEMESTER: IX

Roll No.: 151BLLCLB003

Course: Comparative Constitution

TOPIC: Right to Privacy in India

FACULTY COORDINATOR: Mr. Shashi

Yadav
Introduction
The recent unanimous judgment by the Supreme Court of India (SCI) in Justice K.S.
Puttaswamy (Retd) vs Union of India is a resounding victory for privacy. The ruling is the
outcome of a petition challenging the constitutional validity of the Indian biometric identity
scheme Aadhaar. The judgment's ringing endorsement of the right to privacy as a fundamental
right marks a watershed moment in the constitutional history of India. The one-page order
signed by all nine judges declares:

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.

The right to privacy in India has developed through a series of decisions over the past 60 years.
Over the years, inconsistency from two early judgments created a divergence of opinion on
whether the right to privacy is a fundamental right. Last week's judgment reconciles those
different interpretations to unequivocally declare that it is. Moreover, constitutional provisions
must be read and interpreted in a manner which would enhance their conformity with
international human rights instruments ratified by India. The judgment also concludes that
privacy is a necessary condition for the meaningful exercise of other guaranteed freedoms.

The judgment, in which the judges state the reasons behind the one-page order, spans 547 pages
and includes opinions from six judges, creating a legal framework for privacy protections in
India. The opinions cover a wide range of issues in clarifying that privacy is a fundamental
inalienable right, intrinsic to human dignity and liberty.

The decision is especially timely given the rapid roll-out of Aahaar. In fact, the privacy ruling
arose from a pending challenge to India's biometric identity scheme. We have previously
covered the privacy and surveillance risks associated with that scheme. Ambiguity on the
nature and scope of privacy as a right in India allowed the government to collect and compile
both demographic and biometric data of residents. The original justification for introducing
Aadhaar was to ensure government benefits reached the intended recipients. Following a rapid
roll-out and expansion, it is the largest biometric database in the world, with over 1.25 billion
Indians registered. The government's push for Aadhaar has led to its wide acceptance as proof
of identity, and as an instrument for restructuring and facilitating government services.
The Two Cases That Casted Doubts on the Right to Privacy

In 2012, Justice K.S. Puttaswamy (Retired) filed a petition in the Supreme Court challenging
the constitutionality of Aadhaar on the grounds that it violates the right to privacy. During the
hearings, the Central government opposed the classification of privacy as a fundamental right.
The government's opposition to the right relied on two early decisions—MP Sharma vs Satish
Chandra in 1954, and Kharak Singh vs State of Uttar Pradesh in 1962—which had held that
privacy was not 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 of privacy. They argued that the Indian
Constitution does not include any language similar to the Fourth Amendment of the US
Constitution, and therefore, questioned the existence of a protected right to privacy. The
Supreme Court made clear that M.P Sharma did not decide other questions, such as “whether
a constitutional right to privacy is protected by other provisions contained in the fundamental
rights including among them, the right to life and personal liberty under Article 21.”

In Kharak Singh, the decision invalidated a Police Regulation that provided for nightly
domiciliary visits, calling them an “unauthorized intrusion into a person’s home and a violation
of ordered liberty.” However, it also upheld other clauses of the Regulation on the ground that
the right of privacy was not guaranteed under the Constitution, and hence Article 21 of the
Indian Constitution (the right to life and personal liberty) had no application. Justice Subbarao's
dissenting opinion clarified that, although the right to privacy was not expressly recognized as
a fundamental right, it 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 (AG) representing the Union of India questioned the
foundations of the right to privacy. The AG argued that the Constitution’s framers never
intended to incorporate a right to privacy, and therefore, to read such a right as intrinsic to the
right to life and personal liberty under Article 21, or to the rights to various freedoms (such as
the freedom of expression) guaranteed under Article 19, would amount to rewriting the
Constitution. The government also pleaded that privacy was “too amorphous” for a precise
definition and an elitist concept which should not be elevated to that of a fundamental right.

The AG based his claims on the M.P. Sharma and Kharak Singh judgments, arguing that since
a larger bench had found privacy was not a fundamental right, subsequent smaller benches
upholding the right were not applicable. Sensing the need for reconciliation of the divergence
of opinions on privacy, the Court referred this technical clarification on constitutionality of the
right to a larger bench. The bench would determine whether the reasoning applied in M.P.
Sharma and Kharak Singh were correct and still relevant in present day. The bench was set up
not to not look into the constitutional validity of Aadhaar, but to consider a much larger
question: whether right to privacy is a fundamental right and can be traced in the rights to life
and personal liberty.
Journey of Evolution of the Right to Privacy

Feelings, emotions, psychological restrain are the subject matter of Privacy. But it was a quite
difficult task to bring it in the sphere of cause of action. Samuel Warren and Louis Brandeis
stated this discuss on the issue of Right to Privacy. Indian court also contributed to develop this
right. The objective of this chapter is to trace the evolution of Right to Privacy.

Philosophy of Right to Privacy

In the 1890s, Samuel Warren and Louis Brandeis developed the concept of privacy; they
identified the ‘injury to the feelings’ and recognized it as a legal injury and through invasions
upon his privacy, subjected him to mental pain and distress. Their philosophy is spiritual rather
than mundane or material .To set up the philosophy ‘right to privacy’ they first try to establish
it as a part of right to life , and then they compare it with tort of defamation (damage to
reputation) , implied contract of not disclose . They also found some exception to it. Main
focus of their research is to discuss the overstepping of press. Finally they come to conclusion
that object of privacy is to protect ‘inviolate personality’; and not mere to related to private
property.

Evolution of Right to Privacy in India

The concept of privacy can be traced out in the ancient text of Hindus. If one look at the
Hitopadesh it says that certain matter (worship, sex and family matters) should be protected
from disclosure. This not entirely alien to Indian Culture, but some jurist like Sheetal Asrani-
Dann has doubts about the evolution in India , in support of this she also explain Upendra Baxi
view, “Everyday experiences in the Indian setting (from the manifestation of good
neighbourliness through constant surveillance by next-door neighbours, to unabated curiosity
at other people’s illness or personality vicissitudes) suggest otherwise" . But Upendra Baxi is
clearly concerned with kindness, sympathy, humanity or gentleness, which is an unabated
curiosity; it is not about ill-will. But Hitopadesh cannot be subject to ‘Positive Law’, even in
ancient time it was related to ‘Positive Morality’; so in this sense it can be said that in ancient
Indian text there was vagueness about the right to privacy.

But in modern India first time the issue of right to privacy was discussed in debates of
constituent assembly were K.S. Karimuddin moved an Amendment on the lines of the US
Constitution, where B.R. Ambedkar gave it only reserved support, it did not secure the
incorporation of the right to privacy in the constitution.
In M.P. Sharma v Satish Chandra (here in after M.P. Sharma Case) were Supreme Court on the
issue of ‘power of search and seizure’ held that they cannot bring privacy as the fundament
right because it is something alien to Indian Constitution and constitution maker does not
bother about the right to privacy . K.R. Suraj v The Excise Inspector Parappananqadi, and in
State Rep. by Inspector of Police v N.M.T. Joy Immaculate refresh the point that in India right
to privacy cannot used against the power of search seizure.

After M.P. Sharma Case in Kharak Singh Case Supreme Court on the issue of whether
surveillance, defined under Regulation 236 of the U.P. Police Regulations is amount to
infringement of fundamental right and whether right privacy is come under the purview of
fundamental right; they denied the right to privacy as fundamental right and they concluded
that “the right of privacy is not a guaranteed right under our Constitution and therefore the
attempt to ascertain the movements of an individual which is merely a manner in which privacy
is invaded is not an infringement of a fundamental right guaranteed by Part III" ; but Justice
Subba Rao understand the need of psychological restrain, which obviously an indication of
recognition of the value of right to privacy and stated “… but as civilizations advances the
psychological restraints are more effective than physical ones" . They denied the right to
privacy as concept of fundamental rights clearly; but the struck-down the said Act
unconstitutional under Article 21 (majority view) and also under Article 19 (dissenting
opinion). Judges are arguing that the personal liberty cannot be restricted only to mere physical
restriction (as affirmed in the A.K. Gopalan v State of Madras), it should be broader. While
they were broadening the scope of Article 21 they somehow broadened the scope of Article 21
specially the meaning of ‘Personal Liberty’ to recognize the fact that Article 21 Right to Life
is not about ‘merely the right to the continuance of a person's animal existence’, but a right to
the possession of each of his organs, arms, legs, etc. One thing should be taken into the account
that without the Right to Privacy man is force down to live like an animal. It has already been
noted earlier in this research the US and Germany consequences of encroachment of FBI and
Gestapo to the individual sphere immensely. Subba Rao, J., rightly pointed-out in the next
privacy related case (Govind Case) that the Right to Privacy is an essential ingredient of Right
to Life.

The next case was the Govind v State of MP, where the right to privacy was discussed in
detailed. The issue was quite similar to the Kharak Singh v State of UP, but this time the
approach of judgment was rather different. They upheld the validity of Madhya Pradesh Police
Regulations, 855 and 856, made under Section 46(2) (c) of Police Act, 1961, under the
reasonable restriction. Judges were unable of deciding that whether the Right to Privacy is a
fundamental right or not and they pass on the burden to the next cases through saying that the
“The right to privacy in any event will necessarily have to go through a process of a case-by-
case development”. It is right one good concept of law cannot be developed through one case,
because it is very hard to see the exceptions and consequences of that concept of law through
one case. So Mathew, J., was surely an intelligent rather unable to recognize right to privacy.
May be he thought that right to privacy is a foreign concept and Indian culture might face
problem with that, or right to privacy has to be interpreted in an Indian way, which would
obviously take time.

This case gave the very vague idea of the recognition of right to privacy. What they actually
did was that they interpreted the objective of makers of Constitution of India and then broaden
the scope of Article 21, so that the right to privacy can fall into it. They found that the objective
of them is to ensure the conditions favourable to the pursuit of happiness, emotions and
sensations. They accept the idea of Professor Crown, ‘liberty against government’ should be
the basis of fundamental right.

In Maneka Gandhi v Union of India, Supreme Court interpreted the Article 21 in broad sense.
They said that both the rights of personal security and personal liberty recognized by what
Blackstone termed 'natural law' are embodied in Article 21. Maneka Gandhi Case started the
wide interpretation of Right to Life, which actually helped the Right to Privacy to fall into to
the scope of Right to Life.

Unni Krishnan v State of A.P. Numbered the twelve meanings of right to life; and right to
privacy was one of them.

R. Rajagopal alias R. R. Gopal v State of Tamil Nadu was the first case which explained the
evolution and scope of right to privacy in detail. In order to attain this question, Supreme Court
went through the entire jurisprudence of right to privacy, its evolution and scope; and this fulfils
gaps of Govind Case. To explain evolution it mainly discussed the Govind Case and follows
the almost same approach. This Court held that the right to privacy is implicit in the right to
life and liberty guaranteed by Article 21. Reached on the conclusion, that right to privacy no
longer subsists in case of matter of public record.

People s Union for Civil Liberties (PUCL) v Union of India is related to phone tapping and it
discussed that whether telephone tapping is an infringement of right to privacy under Article
21. Supreme Court argued that conversations on the telephone are often of an intimate and
confidential character and telephone-conversation is a part of modern man’s life. Supreme
Court also said that whether right to privacy can be claimed or has been infringed in a given
case would depend on the facts of the said case.

In Mr. ‘X’ v Hospital ‘Z’ it was decided that when the right to privacy clashes with the other
fundamental right i.e. right of privacy one person and right to lead a healthy life of another
(society), then the right which would advance public morality or public interest would alone
be enforced. Samuel Warren and Louis Brandeis discussed the same thing; they stated that
“The right to privacy does not prohibit any publication of matter which is of public or general
interest"

In State of Karnataka v Krishnappa, Supreme Court linked the child rape to the right to privacy.
Dr. A.S. Anand, CJI. affirmed that “Sexual violence apart from being a dehumanizing act is an
unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her
supreme honour and offends her self-esteem and dignity-it degrades and humiliates the victim
and where the victim is a helpless innocent child, it leaves behind a traumatic experience." In
State of Karnataka v S. Nagaraju and in Sudhansu Sekhar Sahoo v State of Orissa, Supreme
Court accepted the same thing. Supreme Court used the concept of right to privacy to enhance
the degree of punishment. Again in State Of Madhya Pradesh Vs. Babulal, Supreme Court
again considered that Sexual violence apart from being a dehumanizing act is also an unlawful
intrusion of the right to privacy and sanctity of a female.

In Sharda v Dharmpal, Supreme Court held that a matrimonial court has the power to direct a
party to undergo medical examination and passing of such an order would not be in violation
of right of privacy or personal liberty under Article 21 of the Constitution of India, in support
of this supreme court argued that information which is necessary for society should not
protected from the making known to other under right to privacy.

In People s Union for Civil Liberties (PUCL) v Union of India, Supreme Court upheld the
validity of various provisions of the Prevention of Terrorism Act, 2002 and said that Right to
privacy is subservient to that of security of State; and referring to the Sharda v Dharmpal they
said that holding information which is necessary for the security of state cannot be the subject
to security of state.

In Anuj Garg v Hotel Association of India, Parens Patriae power is subject to constitutional
challenge on the ground of Right to Privacy also], the main issue in this case was the
Constitutional validity of Section 30 of the Punjab Excise Act, 1914, which prohibiting the
employment of any man under the age of 25 years or any woman in any part of such premises
in which liquor or intoxicating drug is consumed by the public.

Supreme Court upheld the decision of Delhi High Court, which declared it to be ultra vires
Articles 19(1) (g), 14 and 15 of the Constitution of India.

After observation of these entire cases one can say that Right to Privacy is related to
individual’s personal liberty, which leads to be recognized as a Right to Life.

On the 24th of August 2017, a nine-judge bench of the Supreme Court delivered its verdict
in Justice K.S. Puttaswamy vs Union of India, unanimously affirming that the right to privacy
is a fundamental right under the Indian Constitution. The verdict brought to an end a
constitutional battle that had begun almost exactly two years ago, on August 11, 2015, when
the Attorney-General for India had stood up during the challenge to the Aadhaar Scheme and
declared that the Constitution did not guarantee any fundamental right to privacy. The three
judges hearing the case referred the constitutional question to a larger bench of five judges
which in turn, referred it further to a nine-judge bench .The case was argued over six days in
the month of July, during which the Union of India, with many supporting state governments,
the UIDAI and TRAI, repeated the Attorney-General’s 2015 claim – a claim which, as we see,
was decisively rejected.

Implications for Future Case and Statute Law

The lead judgment calls for the government to create a data protection regime to protect the
privacy of the individual. It recommends a robust regime which balances individual interests
and legitimate concerns of the state. Justice Chandrachud notes, "Formulation of a regime for
data protection is a complex exercise that needs to be undertaken by the state after a careful
balancing of requirements of privacy coupled with other values which the protection of data
subserves together with the legitimate concerns of the state." For example, the court observes,
"government could mine data to ensure resources reached intended beneficiaries." However,
the bench restrains itself from providing guidance on the issues, confining its opinion to the
clarification of the constitutionality of the right to privacy.

The judgment will also have ramifications for a number of contemporary issues pending before
the Supreme Court. In particular, two proceedings—on Aadhaar and on WhatsApp-Facebook
data sharing—will be test grounds for the application and contours of the right to privacy in
India. For now, what is certain is that the right to privacy has been unequivocally articulated
by the highest Court. There is much reason to celebrate this long-due victory for privacy rights
in India. But it is only the first step, as the real test of the strength of the right will in how it is
understood and applied in subsequent challenges.