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The Fundamental Right To Privacy

The judiciary in India has acquired a progressive, creative, and vibrant role over the decades in order to protect the integrity, individuality, and the Fundamental Rights of the Indian Citizens. One of the most crucial Fundamental rights is the ‘Right to life’ bestowed upon by the Indian Constitution under Article 21. According to it “No person shall be deprived of his life and personal liberty except according to the procedure established by law”. It is a liberally interpreted umbrella Article under which various penumbral fundamental rights have been encompassed. One such right is the Right to privacy.

What is Right to Privacy

According to Black’s Law Dictionary, it is the right of a person to be free from unwarranted publicity. In a nutshell, it is the right of an individual to withhold himself and his property from public scrutiny in case he wants to. ‘Warren and Brandeis’ have laid down that privacy is the "right to be let alone", and it is majorly focused on protecting the individuals.

International Provisions

Article 17 of the ICCPR states that “No one shall be subjected to any interference with his privacy, family, nor to unlawful attacks on his honor and reputation”. Article 12 of the UDHR 1948, states that “Everyone has the right to the protection of the law against such interference or attacks”. Both instruments highlight the right to privacy of the citizens and expect the signatory States to fulfill these rights.

Evolution of Right to Privacy in India

There has always been a divergence of opinion when it comes to the right to privacy as a fundamental right in India. However, the much debatable issue has now been settled by the Hon’ble Supreme court of India in its unanimous judgment by a nine-judge bench in the case of Justice K.S. Puttaswamy (Retd) vs Union of India (2017) 10 SCC. The court has expressly declared the Right to Privacy as a fundamental right marking a watershed moment in the history of India.

Previously, In MP Sharma vs Satish Chandra, and Kharak Singh vs State of Uttar Pradesh, it was had held that the Right to privacy was not a fundamental right. The eight-judge bench had to decide upon the validity of the power of search and seizure, wherein the court held that it cannot inculcate the Right to privacy as a fundamental right since this was not intended by the framers of the Constitution.

However, In Kharak Singh vs State of Uttar Pradesh, Justice Subbarao gave a dissenting opinion stating that although the right to privacy was initially not expressly provided as a fundamental right, it was undeniably a requisite ingredient of “personal liberty” enshrined under Article 21.

In 2012, a retired judge, Justice K.Y. Puttaswamy filed a petition in the Supreme Court challenging the validity of the Aadhar Project on the ground that it was a violation of the right to privacy which is not explicitly enshrined in the Indian Constitution. Aadhar is a 12-digit Unique Identity Number that utilizes biometric data such as fingerprints and eye scans to build a database of every Indian. UIDAI claims that it is an advanced method of identifying a person since there will be no chance of duplication as each individual will have only one identity. It was to support the identification of genuine beneficiaries for the successful implementation of the welfare programs of the Government. Linking the Aadhar card was made mandatory to avail of certain benefits and services.

Dr. D Y Chandrachud J held that the right to privacy is an incident of freedom and liberty. According to him, “Dignity cannot exist without privacy.  Both reside within the inalienable values of life, liberty, and freedom which the Constitution has recognized. Privacy is not only an ultimate expression of the sanctity of the individual but It is a constitutional value which protects for the individual a zone of choice and self-determination”

The court held that the right to privacy was a fundamental right which traces its origin from Article 21. This right can be classified into three categories- repose (freedom from unwarranted stimuli), sanctuary (protection from intrusive observation), and intimate decision (autonomy to make personal life decisions). However, it is not an absolute right and must meet the requirement of Legality; the need for a legitimate aim and proportionality. A person’s privacy interest can be overridden by “Compelling State interests”. Any restrictions on privacy will need to be tested based on the combination of rights being infringed.

The exact scope of the right has to be considered on case to case basis. The court upheld the validity of the Aadhar but struck down certain provisions of its mandatory linking with school admissions, bank accounts, and mobile phones.


Garvita Mehrotra, Student from Vivekananda Institute of Professional Studies, IP University

Editor: Vijayalakshmi Raju

You can contact the author at https://www.linkedin.com/mwlite/in/garvita-mehrotra-1628281a9

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