EVOLUTION OF RIGHT TO PRIVACY IN INDIA
Right to privacy is not explicitly recognized as Fundamental Right under the Constitution of India. After a long evolution, it has been recognized as Fundamental Right inherent in Article 21.
EXPANSION OF FUNDAMENTAL RIGHTS
The Supreme Court in A K Gopalan Vs State of Madras AIR (1950) SC 27 has taken a narrow view of Right to Life and Personal Liberty. The Supreme Court held in this case that personal liberty meant absence of bodily restraint. If a person is detained as per procedure established by law such detention cannot be challenged. The Supreme Court also held in this case that Fundamental Rights vested in different articles are distinct.
The view was further corroborated in Shivakant Shukla Vs ADM Jabalpur AIR 1976 SC 1207 wherein the Supreme Court held that detentions during proclamation of emergency was as per procedure established by law and cannot be challenged.
R C Cooper Vs Union of India (1970) AIR 564 was a landmark judgment wherein the Supreme Court held that Fundamental Rights vested under different articles are not distinct. They are interdependent.
Maneka Gandhi Vs Union of India (1978) AIR 597 was another landmark judgment wherein the Supreme Court held that not only there should be procedure established by law but such procedure should also be just, fair and reasonable.
Subsequently in several judgments, scope of Fundamental Rights particularly Article 21 has been expanded to include myriad of rights.
EVOLUTION OF RIGHT TO PRIVACY
Right to Privacy has not been explicitly mentioned under the Indian Constitution as is the case with the Constitution of the United States.
In M P Sharma Vs Satish Chandra 1954 AIR 300 the Supreme Court was concerned with whether search by police is in violation of Article 20 (3) of the Constitution. The Supreme Court observed that Right to Privacy has not been granted under Indian Constitution as is the case in the Constitution of USA.
In Kharak Singh Vs State of U.P. 1963 AIR 1295 extensive police surveillance including midnight knocks under UP Police regulations were challenged before the Supreme Court. The Supreme Court held that freedom to move through territory of India under Article 19 (1) (f) is not infringed by midnight knock as his locomotion is not impeded or prejudiced in any manner. The Supreme Court also observed that Right to Privacy is not guaranteed right under the Constitution of India.
In Gobind vs State of Madhya Pradesh 1975 AIR 1378 the Supreme Court held that even if there is right of privacy the same will not be absolute and subject to regulations made by state.
In R. Rajagopal Vs. State of Tamilnadu 1994 SCC (6) 632 the Supreme Court held that publication about one’s life without consent is in violation of Right to Privacy.
In State of Maharastra Vs Madhukar Narayan Mardikar AIR 1991 SC 207 the Supreme Court held that every woman has right to privacy.
PUTTASWAMY AND THEREAFTER
In light of conflicting judgments, Constitution Bench consisting of nine judges determined in Justice K. S, Puttaswamy Vs Union of India (2017) 10 SCC 1 whether Right to Privacy is fundamental right.
The Supreme noted the expansion of Fundamental Rights in R C Cooper, Maneka Gandhi and several other judgments and overruled decisions of M P Sharma and Kharak Singh.
The Supreme Court held that Right to Privacy is a constitutionally protected right mainly under Article 21 of the Constitution. Privacy is constitutional core of Human Dignity. Privacy includes preservation of personal intimacies, sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes right to be left alone. Privacy safeguards individual autonomy and choices. Privacy protects heterogeneity and recognizes the diversity and plurality of culture. Privacy is not lost when a person enters a public space.
Like other Fundamental Rights, Right to Privacy is not absolute right. Restrictions can be imposed by making law which stipulates a procedure which is just, fair and reasonable.
Right to Privacy has both negative and positive contents. The negative contents prohibit intrusion in Right to Privacy. The positive contents impose obligation to take measures to protect right to privacy.
The Supreme Court in Navtej Johar Vs Union of India AIR 2018 SC4321 relied on Puttaswamy while decriminalizing consensual sex among adults including homosexual sex.
The Supreme Court in Indian Young Lawyers Association Vs State of Kerala AIR 2018 SC 243 also relied on Puttaswamy while holding that exclusion of women from visiting temple is contrary to constitutional values.
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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.