Right to Privacy in India


Privacy in India is not new but innovative. Fighting the battle from 1954 were privacy was questioned we have climbed many ladders where it is recognized as a fully fledged fundamental rights which is in a scope of evolving its branches. Article 21 of the Indian Constitution says, “No one shall be deprived of his life or personal liberty except in accordance with the legal procedure.” Following the reading of Article 21, it was determined that “life” encompasses all facets of a man’s life that contribute to making it positive, complete, and worthwhile.

Any human activity has had a positive and negative aspect. We can’t be sure that what we believe has been known by a third party and technology has invaded every area of our lives, whether we liked it or not.

Understanding privacy as a right

(a) A basic human right is the right to secrecy.

The Supreme Court ruled that the right to privacy is a constitutional right that can be taken implicitly from Articles 14, 19, and 21 of the Indian Constitution. It is a fundamental right that is intertwined with the freedoms of life and liberty. It is a fundamental and inalienable right that attaches to a person and encompasses all knowledge about that person as well as his or her decisions. It protects people from government surveillance of their jobs, activities, reproductive preferences, marriages, and eating habits, among other things. As a result, any conduct by the government that violates the right to privacy will be contested in court.

(b) It is not an unrestricted right; fair limitations apply.

The Supreme Court was careful to point out that the right to privacy is not unconditional and can be limited under certain circumstances. In order to defend legitimate state interests, the state will limit the right to privacy, but only if it meets the three-pronged test outlined below:

1.The presence of a statute that justifies a breach of privacy;

2.A valid State goal or need that guarantees that the scope or substance of this law lies within the reasonableness zone and prohibits unconstitutional State action; and

3.The State’s means are equal to the things and needs that the law seeks to meet.

As a consequence, all federal policy that could affect privacy must now pass this three-part test. A variety of current projects, the most important of which is the Aadhaar identification scheme, will almost definitely be impacted. Inadvertent Consequences

This opinion has a slew of other implications that aren’t relevant to the Court’s main decision:

  • The decision is likely to have an impact on the Supreme Court’s pending petition on the decriminalization of homosexuality in India because it expressly recognizes an individual’s right to privacy over his sexual preferences.
  • The fact that the decision stated that the government cannot interfere with a person’s food preferences will have an impact on lawsuits challenging state-imposed beef bans.
  • The decision also made numerous observations on the complicated relationship between personal privacy and big data, particularly in terms of how the government can more effectively pursue its legitimate interests through judicious use of these technologies.
  • It has also recognized the impact of non-state actors on personal privacy, especially in the sense of online informational privacy. While constitutional rights are usually only applied against government actions, some analysts are concerned that, considering the judgment’s expansive language and the extent to which informational protection has been stated, these values will be applicable to the private sector as well.

Recognizing the relevance of both of these questions, the Court emphasized the need for strong privacy laws, noting that the government has already formed a committee to look into them, which is chaired by retired Justice BN Srikrishna.


The right to privacy is described in Hindu texts from the ancient Indian subcontinent. Family matters, worship, and sex must all be kept secret, according to Hitopadesh. Privacy was once synonymous with “true morality” in ancient times. However, this concept was hazy in ancient Indian texts.

During the Constituent Assembly debate, the right to privacy was discussed for the first time in modern India, but it was not included in the Indian Constitution. The right to privacy has been argued as both a constitutionally guaranteed and a common law right since the 1960s. In M.P.Sharma v. Satish Chandra [AIR 1954 SCR 1077], an eight-judge bench of the Supreme Court ruled that the right to privacy is not a constitutional right and is not recognized by the Indian Constitution.

Following that, a six-judge bench of the Supreme Court ruled in Kharak Singh v. State of Uttar Pradesh AIR 1964 that while there is no substantive right to privacy, the provision for night visits was unconstitutional because it violated one’s “personal liberty.” About the fact that the right to privacy is not recognized as a constitutional right in the Indian Constitution, Justice Subba Rao wrote a dissenting opinion in which he argued that it is an integral component of personal liberty.

After nearly 11 years, a three-judge bench of the Supreme Court affirmed the existence of a constitutional right to privacy under Article 21 of the Indian Constitution in Gobind v. State of Madhya Pradesh [1975(2) SCC 14]. As a result, for the first time in the Indian Constitution, privacy was given some respect under personal liberty. The Supreme Court viewed Article 21 broadly in Maneka Gandhi v. Union of India [1978 AIR 597, 1978]. Both the guarantees to personal protection and personal liberty acknowledged by “normal law” are enshrined in Article 21, according to the court. Right to Life has a broad meaning, which includes the right to privacy within its scope.

Phone tapping was the subject of People’s Union for Civil Liberties v. Union of India (1997). The Supreme Court ruled that telephone calls are often of a private nature, and that whether the right to privacy can be asserted or has been infringed in a particular case is dependent on the specifics of the case.

The right to privacy was unmistakably raised to the status of a constitutional right in a recent landmark ruling, K.S.Puttaswamy v. Union of India 2015, which will therefore remain part of the Golden Trinity of Article 14 (Right to Equality), Article 19 (Right to Freedom), and Article 21 (Right to Privacy) (Right to Life and personal liberty). In this verdict, the previous rulings of M.P.Sharma and Kharak Singh are also reversed.

Way Forward

The Indian legislature shall recognize the following main elements of the right to privacy before enacting privacy legislation:

  1. A legislation should be enacted to provide adequate safeguards from unreasonable and unequal activity by private and government agencies. The bill will make it illegal to use new technologies to violate people’s privacy rights and personal information.
  2. Relevant medical data must be secured and this information may be misused. Without the consent of the people concerned, such data cannot be obtained and then sold to researchers in the field of biomedical science.
  3. Person financial records must also be safeguarded from any abuse. The high number of fraud cases necessitates the implementation of special guidelines in this area. Unless the legal process is followed, individual financial data cannot be exchanged with banks and financial firms without the parties’ information and consent. Misuse of personal financial information can have a significant effect on the rate of increase in such crimes such as kidnapping and extortion.
  4. Excessive electronic surveillance of employees by their bosses is another major issue that requires robust regulation to address.


With the exponential advancement of technology in recent years, it has been more important than ever to ensure that the right to privacy is adequately secured. Since social networking has been so ubiquitous throughout our lives, it is important that everyone’s right to privacy be safeguarded. This privilege has gained much more meaning after the Supreme Court recognized it as a fundamental right.

Although privacy, like all fundamental rights, should be protected in all aspects, it is often subject to reasonable restrictions that the government may impose in some situations.

Author: Tanya Godre from NMIMS, Mumbai.

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