Libertatem Magazine

Guaranteeing Right to privacy as a Fundamental Right

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Right to Privacy: Discerning the Elusive

In the past few weeks, there has been a furor over the legal quandary of recognition of Privacy as a Fundamental Right. The issue was resurrected when a petition was filed challenging the constitutional validity of the Aadhar Card Scheme. Within the confines of the Aadhaar Scheme, the government has been pushing for a 12-digit unique identification number which will help the citizens avail benefits of a plethora of social schemes. Simultaneously, the Schemes demands to the link of identity proofs such as Permanent Account Number (PAN) and driving license, with the Aadhar Card. Instead of dealing with the subject of privacy in light of Aadhar Card Scheme, the Supreme Court of India will adjudicate the matter with a 9- judge bench. The decision of this case will not only decide the fate of Aadhar Card Scheme but also have an enduring impact on our outlook on privacy.


Looking back

The subject of privacy is not a contemporary legal issue, for even the framers of the Constitution of India found themselves in this quandary. Before the enforcement of the Constitution, the Constituent Assembly debated on including Privacy as a Fundamental Right. Thus, the matter was not forsaken and the framers of the Constitution were not oblivious to the subject. After deliberation, the Constituent Assembly jettisoned the idea of recognizing Privacy as a fundamental right.

However, a perusal of the debates brings to light the fact that the understanding of privacy was very nascent at that stage. R. K. Sidhwa’s speech alluded to giving privacy in regards to the communication using telephones and telegrams between two parties. Additionally, the drafts of assembly members like K M Munshi and Dr. Ambedkar recognized the importance of privacy of persons in his/her home. A stark opposition was instituted, and the assembly abandoned the idea of including Privacy as a fundamental right. The underlying reason and rationale behind the decision were the fear that such rights would culminate into the formation of a weak State with restricted power. Privacy was deemed as a hindrance effective investigation of police and threat to the national security. The framers of the Constitution desired preclusion of any Right which would potentially obstruct police investigation which is evident from the following statements of Alladi Krishnaswami Ayyar:


In regard to secrecy of correspondence, I raised a point during the discussions that it need not find a place in a chapter on fundamental rights and that it had better be left to the protection afforded by the ordinary law of the land contained in the various enactments. There is no such right in the American Constitution…The result ….will be that every private correspondence will assume the rank of a State paper or, in the language of Sections 123 and 124 (of The Indian Evidence Act), a record relating to the affairs of the State. A clause like this may checkmate the prosecution in establishing any case of conspiracy or abetment in a criminal case and might defeat every action for civil conspiracy”.

Thus, they envisaged an all-powerful State, equipped with every possible precautionary measure to protect the national security.


One of the hindrances in recognizing Privacy as Fundamental Right is that Supreme Court cannot transgress the boundaries of the Constitution set by the framers. Thus, to overcome this hindrance, it is imperative to take into cognizance the context in which the framers arrived to decision. India was a newly Independent Nation, which was grappling with poverty, communal violence and witnessing a brutal partition. All these events placed India in an extremely vulnerable position. Instability and uncertainty of era were the driving force behind the decision. The ramifications of such a State were blatantly overlooked as protection and security of the Nation was prioritized.

The Genesis of Jurisprudence   

The commencement of the jurisprudence of Right to Privacy in India began soon after the perils of unfettered power of police machinery and lack of a nuanced jurisprudence on Privacy surfaced. A major thrust was impressed upon the Courts in India in 1963. It was in the case of Kharak Singh v. State of Uttar Pradesh, presided by 6-judge bench. This was a landmark case as the Supreme Court not only became privy to the downside of excess police power but also refined the understanding of Right to Privacy. The Supreme Court of India while adjudicating on this case recognized privacy as a Human Right. Then began a torrent of such cases, wherein the court recognized the importance of Right to Privacy. Using Kharak Singh Case as a precedent in cases of Gobind Singh v. State of Madhya Pradesh, Court qualified Right to Privacy as an important element of “personal liberty” under Article 21 of the Constitution. ‘Right to be left alone’ was accepted by Supreme Court of India in the case of R. Rajagopal v. State of Tamil Nadu. This case also laid down remedies for breach of privacy in public law.


Laws are now being analyzed from a novel perspective on bodily privacy. For instance, rape laws were now seen as a violation of a person’s right to his/her bodily privacy. The laws criminalizing homosexuality under section 377 of Indian Penal Code is also viewed as an infringement on the privacy of a person by State. Hence, the various facets of Privacy are acknowledged. Nevertheless, the Court has refrained and hesitated to declare privacy as a Fundamental Right under the Constitution. Thus, Right to privacy is not a fundamental right though it has been recognized as a human right by Indian Courts. International Conventions like The Universal Declaration of Human Rights (UDHR) in its Article 12 and The International Covenant on Civil and Political Rights (ICCPR) in its Article 17 have recognized Right to Privacy.

Need for Right to privacy as a Fundamental Right

The unprecedented influence of the internet and groundbreaking impact of the virtual world of social media and networking on the lives of the people has changed the dynamics of privacy. This is the current era wherein importance of Privacy not only extends to the physical world but also to the virtual world. All the laws guarding Right to Privacy are merely statutory rights. In other words, they are stipulated by the enactments of the parliament which can be amended. If in the near future, the Government in power implements a draconian law in the likes of USA’s Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT Act, 2001), the only redressal is available is in Article 21 of the Constitution. Indian citizens will have to prove to the Supreme Court how such interference effects their Right to Life and Liberty guaranteed under Article 21 of Constitution.

“Pssst! Wanna buy back your browser history?”

Privacy is not a uni-facet concept. It is not merely restricted to bodily and physical data but also personal data in the virtual world. With data mining, Big Data, data retention and mass surveillance on the rise, the laws need to harmonize with the fast-growing technology to protect the infringement of Right of its citizen.

Privacy as a Fundamental Right

Since the very inception, the debate reaches an impasse as soon as the privacy of an individual is juxtaposed to national security. Emphasis should be laid on the point that declaration of a Right as a Fundamental Right does not place the matter out of the ambit of governmental policies. We have Fundamental Right to Equality which has not hindered the State from implementing policies for the welfare of women and children. We have the freedom to life and liberty, which has not curtailed the power of the State to place a person in jail /detention in case of commission of criminal offenses or even award capital punishment in the rarest of the rare cases. Thus, declaring a Right as Fundamental Right does not make them inviolable and sacrosanct. The State still retains the ability to restrict these rights with a due procedure of law when public interest and national security is at stake. The trepidation that Right to Privacy will be detrimental to the national interest fails to hold water.



Indian Jurisprudence on privacy has come a long way in recognizing individual rights and curtailing state powers, however, it is need of the hour to elevate Right to Privacy as a Fundamental Right. For with emergence of Big Data, growing data mining by State and Non-state actors and wanton data collecting and retention by the Government, privacy of every individual is at stake. Every action of the state cannot be condoned in the name of national security and thus, to keep in check such policies of the State, it becomes imperative to empower the citizens by guaranteeing Right to Privacy as Fundamental Right.

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