Status of Right to Privacy-Utopian Dream or an Achieved Reality?

Author: Akrity Parashar, IMS Law College, Noida

Editor: Meghansh Reddy, Jindal Global Law School


According to Article 21 of the Constitution of India states that “No person shall be deprived of his life or personal liberty except according to the procedure established by law”. After reading the Article 21, it has been interpreted that the term ‘life’ includes all those aspects of life which go to make a man’s life meaningful, complete and worth living, but The right to privacy is not listed as a fundamental right in the Constitution of India. The right to privacy is our right to keep a domain around us, which includes all those things that are parts of us, such as our body, home, property, thoughts, feelings, secrets and identity. The right to privacy gives us the ability to choose which parts in this domain can be accessed by others and to control the extent, manner and timing of the use of those parts we choose to disclose. Before we get into a complete discussion of Right to Privacy first of all we need to know what does the word Privacy mean.

What is right to privacy?

According to Black’s Law Dictionary “right to be let alone; the right of a person to be free from any unwarranted publicity; the right to live without any unwarranted interference by the public in matters with which the public is not necessarily concerned”.

Privacy is the ability of an individual or group to isolate or obtain information about themselves and, therefore, to express themselves selectively. When something is private to a person, it generally means that something is inherently special or sensitive to them. The privacy area partially overlaps with security, which may include concepts of appropriate use, as well as protection of information. Privacy can also take the form of bodily integrity. The right to be free from unauthorized invasions of privacy by government, companies, or individuals is part of the privacy laws of many countries and, in some cases, constitutions.

Evolution to Right to Privacy

The concept of privacy can also be pragmatic in ancient Hindu text. Seen Hitopadesh, indicating that certain matters such as worship, sex and family matters should be protected from revelation. The same concept is not completely unknown to Native American culture.

At present, the issue of the right to privacy has been debated for the first time in the Constituent Assembly debate, where KS Karimuddin proposed an amendment, where BR Ambedkar only gave him meagre support and the right to privacy were not involved to the Indian constitution. The issue of privacy has been treated as a fundamental right under the Constitution and as a common law right since the 1960s. Privacy was not considered a fundamental right. the first time by the Supreme Court in 1954 by a court of eight judges in M.P. Sharma v. Satish Chandra1 case.while dealing with the power to search and seize documents from the Dalmia Group, dismissed the existence of a right to privacy on the basis that the makers of Constitution.

Our desire for privacy returned after ten years (approximately) before a six-judge Supreme Court tribunal in Kharak Singh v. State of Uttar Pradesh2, it was only rejected again. The Supreme Court ruled that there was no fundamental right to privacy, but later repealed the provision that allowed night visits for violation of personal freedom. As a dissident judge Subba Rao, in which he stated that the right to privacy remains an essential component of personal liberty, although this provision has not been incorporated and declared as a fundamental right in the Constitution of India.

After eleven long years (or so), the Supreme Court, where a smaller of three judges faced a similar factual matrix in Gobind v. Madhya Pradesh3, confirmed the existence of a fundamental right. Privacy within the meaning of Article 21. Although Gobind lost, secrecy won for the first time and much less recognition was achieved under personal liberty under the Indian Constitution.

By then, privacy had taken hold of our fundamental rights. After the recent decision of 2017, it is clear that the right to privacy is a fundamental right and will not lose its position between the Golden Trinity of Article 14 (Right to Equality), Article 19 (Right to Freedom) and 21 (Right to Right) Life and personal freedom).

A Recent Landmark Case in relation to Right to Privacy

Landmark Case: Justice K.S. Puttaswamy v. Union of India4

Facts of the Case:-

This is a recent case on privacy rights which was brought before the nine-judge court by the retired High Court Judge Puttaswamy (91) of the High Court in Karnataka against the Union of India. It is the supreme right to determine whether the right to privacy is guaranteed as a fundamental right. Under the Constitution of India.

The case relates to a challenge to the government's Aadhaar program (a uniform identity card based on biometric data) in which the government ordered the use of government services and benefits. The case was brought before a tribunal comprising three judges of the Supreme Court on the ground that this rule violates the right to privacy. Consequently, a constitutional court was formed and it was concluded that a court of nine judges is required to determine whether a fundamental right to privacy exists within the meaning of section 21 of the Act.

The petitioner argued before the court that the right to privacy is a fundamental right and should be guaranteed as a right to life with dignity in terms of Article 21 of the Constitution. The defense argued that the constitution only recognizes personal liberty which may include the right of privacy to some extent.

The Decision of the Supreme Court:-

The Nine judges bench of the Supreme Court unanimously held that the Constitution guarantees the right to privacy as an intrinsic element of the right to life and personal liberty under 21. The court allowed MP Sharma and Kharak Singh to the extent that the latter's right to privacy was not explicitly recognized as a fundamental right.

Different aspects of the right to privacy:-

Phone Tapping and Right to Privacy:-In R.M. Malkani v. State of Maharashtra5, the Supreme Court observed that the Court will not tolerate safeguards for the protection of the citizen to be imperilled by permitting the police to proceed by unlawful or irregular methods.

According to the observation of Justice Kuldip Singh in People Union for Civil Liberties v. Union of India6, the right to have a telephone conversation in the privacy of a home or office without interference can certainly be claimed as a right to privacy. In that case, the Supreme Court ruled that telephone conversations are private in nature and therefore eavesdropping on telephones constitutes a violation of privacy.

Gender Priority on Privacy:- Another aspect of the right to privacy includes gender priority, which implies not only the prevention of misrepresentation of privacy but the right to prevent it from being portrayed in any way. Every woman has the right to privacy and no one has the right to enter her privacy. Every woman has the fundamental right to be treated with decency and dignity.

Health and Privacy:- The healthcare sector is a major issue of privacy protection and also one of the main aspects of the right to privacy. Medical information includes not only information about health or disability, but also information about the health services that one may receive. It is a human tendency that health information is considered very sensitive by many people. The right to life is so important that it replaces the right to privacy. A doctor is under oath or medical ethics not to reveal secret patient information, as disclosure will adversely affect or endanger the life of others.

In the case of Mr X v. Hospital7. It has been argued that the doctor-patient relationship, although primarily a business one, is a matter of professional trust and, therefore, physicians are morally and ethically bound to maintain confidentiality. Public disclosure of real facts in such a situation may lead to a person having the right to be left alone and the other the right to be informed.

Privacy in the context of Sexual Identities:-One of the aspects related to the right to privacy, which incorporated its space under article 21 of the Constitution of India, was read in the case Naz Foundation v. Union of India8, in which the Supreme Court of Delhi rejected section 377 of the Indian criminal law. Code of 1860, in order to decriminalize a group of consensual adult sexual relations and state intrusion only if the state can establish an overriding interest, was one of the critical arguments protected by article 21 of the Constitution. Indian.

In a recent case of Navtej Singh Johar v. Union of India9. The Supreme Court of India has ruled that Section 377 of the Indian Penal Code of 1860, which applies to private sexual relations between adults, is constitutional.


The right to privacy is a condition of the right to life and personal liberty under Article 21 of the Constitution of India. The right to privacy is not an absolute right; it may be subject to certain reasonable restrictions for the prevention of crime, public disorder and the protection of others, but it may, in addition to the contract, also result from a specific relationship that is commercial, marital. or even politically, and also in case of conflict between these two derivative rights, the one who promotes public morals and the public interest will prevail.

If you look at the previous rulings of the Apex court in its important years, you can see the stamp of the court to regard fundamental rights as water-tight compartments in the AK Gopalan case v. State of Madras10, which relaxes this strict position . In the Maneka Gandhi v. Union of India ruling11, the right to life is not seen as the epitome of mere animal existence, but as the guarantee of a unique and meaningful life. .

When we consider ourselves part of a society, we often answer that we are individuals in the first place and that every person or individual in this world needs their private space. To give everyone this right, the state gives these moments of privacy to live with those they love without the greedy eyes of the rest of the world.

As each day progresses, this right becomes increasingly essential. With our entire lives exposed to the media via social media sites or espionage cameras, protection must be provided to all and act in such a way that no one can think of infringing on people's privacy rights. . Privacy must be protected in all its aspects but is subject to reasonable restrictions under the Constitution of India and other applicable legal provisions. It must be understood that privacy must be taken into account and within limited limits that are not explained to the rest of the world.

1) [1954 AIR 300, 1954 SCR 1077] MP Sharma v. Satish Chandra

2) [ 1963 AIR 1295, 1964 SCR (1) 332] Kharak Singh v. State of UP

3) [AIR 1975 SC 1378, 1975 CriLJ 1111] Gobind v. State of MP

4) [ WRIT PETITION (CIVIL) NO 494 OF 2012] K Puttaswamy v. Union of India

5) [1973 AIR 157, 1973 SCR (2) 417] R M Malkani v. State of Maharasthra

6) [AIR 1997 SC 568] People’s Union of Civil Liberties v. Union of India

7) [MANU/SC/1121/2002] Mr X v. Hospital Z

8) [160 Delhi Law Times 277] Naz Foundation v. Govt. of NCT of Delhi

9) [WRIT PETITION (CRIMINAL) NO. 76 OF 2016 Navtej Singh Johar v. Union of India

10) [1950 AIR 27] AK Gopalan v. State of Madras

11) [1978 AIR 597] Maneka Gandhi v. Union of India

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