Page 1 of 12
European Journal of Business &
Social Sciences
Available at https://ejbss.org/
ISSN: 2235-767X
Volume 07 Issue 05
May 2019
Available online:https://ejbss.org/ P a g e | 1156
Right to Privacy under Indian Constitution:
A Critical Study
Ms. Raj Rani
LLM & NET, Research Scholar, Department of Law, M.D. University, Rohtak (HR)
Abstract: Human beings have a natural need to autonomy or control over confidential part
of their. This need is inherent in human behaviour and now this has been recognized as
fundamental right to privacy in various countries as USA, UK and India. In global era, various
International organisations UDHR, ICCPR, ECHR has adopted this right as fundamental Right.
At the starting of Internet age, digital world has brought forward far more new challenges.
One of the key challenges in the digital world is trying to protect your privacy, from the
deviltry eyes of the state and non-state entities. Hence, the relevance of privacy and its
protection becomes far more topical in the context of digital ecosystem in India.The
Supreme Court of India has asserted that in order to treat a right to privacy as a
fundamental right, it is not necessary that it should be expressly stated in the constitution as
a Fundamental Right. Political, social, and economic changes in the country encompass the
recognition of new rights. Law will change according to its social transformation. Right to
privacy is one amongst such right which has emerged after enlarge the area of Article 21.
However, such a right has been guaranteed by the Supreme Court under Art. 21 and several
other provisions of the constitution read with the Directive Principles of State Policy. The
study of right to life is indeed a study of the Supreme Court as a guardian of fundamental
human rights. Article 21 is the celebrity provision of the Indian Constitution and occupies a
unique place as a fundamental right. It is not only a right against physical restrains but it is
also a right against psychological restrain or encroachment of right. It guarantees right to
life and personal liberty to citizens and aliens and is enforceable against the State. The new
interpretation of Article 21 in Maneka Gandhi’s (1978) case has introduce oneself a new era
Page 2 of 12
European Journal of Business &
Social Sciences
Available at https://ejbss.org/
ISSN: 2235-767X
Volume 07 Issue 05
May 2019
Available online:https://ejbss.org/ P a g e | 1157
of amplitude of the horizons of right to life and personal liberty. The wide dimension given
to this right now covers various aspects which the founding fathers of the Constitution
might or might not have visualized.
Keywords: Constitution, Supreme Court, Right to Privacy, Human Rights.
Introduction: According to Black’s Law Dictionary ‘Right to Privacy’ means “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”. The right to privacy derives from an English Common Law maxim
which asserts that “Every man’s house is his castle1
”. “No person shall be deprived of his life
or personal liberty except according to procedure established by law2
”.Now-a-days, Right to
Privacy, becomes a burning issues regarding to concerns raised against government’s
initiatives to collect personal data from citizens, is not a fundamental right in the
Constitution of India but privacy now seen as an ingredient of personal liberty. Various
issues raised for the government’s initiatives such as Unique Identification Authority of India
(UIDAI), Digital Locker, and other digital services through Digital India Scheme. Due to
conflicting judgments of the SC in the past, the Aadhaar Bench referred this question before
a 9 judge bench of the SC (“Privacy Bench”) to finally determine whether there existed a
fundamental right to privacy. To quote the Aadhaar Bench:
“During the course of the hearing today, it seems that it has become essential for us to
determine whether there is any fundamental right of privacy under the Indian
Constitution. The determination of this question would essentially entail whether the
decision recorded by this Court in M.P. Sharma and Ors. vs. Satish Chandra, District
Magistrate, Delhi and Ors3
by an eight-Judge Constitution Bench, and also, in Kharak
Singh vs. The State of U.P. and Ors.4
by a six-Judge Constitution Bench, that there is no
1According to Cambridge Dictionary the term ‘castle’ defined as “a large strong building, built in the past by
a ruler or importantperson to protect the people inside from attack”
2Article 21 of The Indian Constitution- 1950
3
1950 SCR 1077
4
1962 (1) SCR 332
Page 3 of 12
European Journal of Business &
Social Sciences
Available at https://ejbss.org/
ISSN: 2235-767X
Volume 07 Issue 05
May 2019
Available online:https://ejbss.org/ P a g e | 1158
such fundamental right, is the correct expression of the constitutional position.
(emphasis as per Court order)”
The Privacy Bench unanimously held that the right to privacy is fundamental right protected
under the Constitution.5
It clearly shows how transparent Indian judiciary is and how time
and again it has broadened the scope of law for common people with the changing
circumstances. The journey of this article would start from the search of answer of issue
that whether the right to privacy is a fundamental right, through analysis of cases and some
pioneering work of scholars.
Significance of ‘Right to Privacy’ in Modern Digital Age:
The periodical focus on the right to privacy is based on some new realities of the digital
age. Personal spaces and safeties that were previously granted simply by physical
separation are no longer protected6
. According to an Internet and Mobile Association of
India in its Report 2016, India has around 400 million Internet users. This number took a
decade to reach 100 million from 10 million, three years to reach 200 million and just
another year to reach 300 million7
. The Internet is essentially a data ecosystem where
every node is engaged in generation, transmission, consumption and storage of data.
Massive amounts of information and data are being generated every day. Various
government schemes like Adhaar, digi locker and DBT are increasing the availability of
large-scale sensitive data online. But the situation is such that while we are generating
such high volumes of data, we do not have in place measures that safeguard the privacy
of this data, nor regulate data retention by platforms collecting it. As a result, ordinary
citizens are unaware of how their personally identifiable information is collected,
stored, used and shared. The Information Technology Act, with its limited scope to
penalize government agencies for breach of data privacy, is the only legal instrument
available to citizens against contravention of their privacy in the data ecosystem. This
leaves citizens exposed as in 2013, when the Maharashtra government simply lost the
5
“Supreme Court gives India a private life” by Amit Anand Choudhary and Dhananjay Mahapatra;published on
25 August, 2017
6
Parminder Jeet Singh, “Privacy in Digital Age” published on 8 August, 2017
7
Internet and Mobile Association of India’s report “Mobile Internet in 2016” published on 28.04.2017
