Constitutional, cases brief

IS RIGHT TO PRIVACY A FUNDAMENTAL RIGHT UNDER INDIAN CONSTITUTION?

CASES RELATED TO THE PRIVACY FROM 1952 TO 2018.

A. K. Gopalan v. State of Madras, 1952

"Personal liberty" would primarily mean liberty of the physical body.

M.P Sharma vs Satish Chandra, 1954

This post-independence case involved a challenge to the constitutionality of search and seizure of documents
from a person against whom a first information report (FIR) has been lodged. The main issue that came up for
consideration was whether such procedures were violative of Article 19 (1) (f) (right to property) and Article 20
(3) (right against self- incrimination) of the Constitution. The judges were to ascertain if there were any
constitutional limitations to the government’s right to search and seizure and if this would in any way breach
the right to privacy. A majority decision by an eight-judge Constitution bench held that the right to privacy was
not a fundamental right under the Indian Constitution. At this point in time, the question of privacy was
relatively new and the bench did not go into it in much detail. Its interpretation and scope as a right was
broadened in subsequent years. The ruling recognized a search and seizure process as a “temporary interference
for which statutory recognition was unnecessary”. It was considered to be a reasonable restriction of the

Kharak Singh vs State of Uttar Pradesh, 1962

The issue of state surveillance as against the right to privacy was brought to the court when Kharak Singh, who
was let off in a dacoity case due to lack of evidence challenged regular surveillance by police authorities on the
grounds of infringement of his constitutionally guaranteed fundamental rights.
Provisions of the Uttar Pradesh police regulations allowed secret picketing of Singh’s house, domiciliary visits
at night, periodic inquiries by officers and tracking/verifying his movement. Claiming that this was an
infringement of his fundamental rights, Singh filed a writ petition before the Supreme Court.
A six-judge Constitution bench examined the issue of surveillance and validity of regulations governing the
Uttar Pradesh police in the context of the scope of such powers being in violation of the freedoms guaranteed to
citizens under the Constitution. The fundamental rights referred to in the challenge were Article 19(1)(d) (Right
to move freely through the territory of India) and 21 (Right to life and personal liberty) of the Constitution. The
main question for consideration before the bench was whether surveillance under the impugned Uttar Pradesh
police regulations constituted an infringement of the citizen’s fundamental rights as guaranteed by the
Constitution. Police authorities took the stand that the regulations did not infringe upon fundamental freedoms
and even if they did, they served as reasonable restrictions in the interest of the general public and to enable the
police to discharge its duty in a more efficient way. In a majority judgment, the court ruled that “privacy was
not a guaranteed constitutional right”. It however, held that Article 21 (right to life) was the repository of
residuary personal rights and recognized the common law right to privacy. The provision allowing domiciliary
visits was however struck down as unconstitutional. It also noted that the bundle of fundamental rights under
the were self-contained and mutually exclusive.
Dissenting judge Justice Subbarao, however, said that even though the right to privacy was not expressly
recognized as a fundamental right, it was an essential ingredient of personal liberty under Article 21. He also
held all surveillance measures to be unconstitutional. Later on in Maneka Gandhi v. UNION OF INDIA it
became the opinion of the majority.
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Maneka Gandhi v. UNION OF INDIA, 1978

The Supreme Court in this present case had adopted the widest possible interpretation of the right to life and
personal liberty, guaranteed under Article 21 of the Constitution. Bhagwati, J. observed, “The expression
‘personal liberty’ in Article 21 is of widest amplitude and it covers a variety of rights which go to constitute the
personal liberty of man and some of them have raised to the status of distinct fundamental rights and given
additional protection under Article 19.” This case overruled A. K. Gopalan v. State of Madras, 1952.

Justice K. S. Puttaswamy v. Union of India, 2017

It is a landmark judgement of the Supreme Court of India, which holds that the right to privacy is protected as a
fundamental constitutional right under Articles 14, 19 and 21 of the Constitution of India. The judgement of the
9-judge bench contains six concurring opinions affirming the right to privacy of Indian citizens.
In 2012, Justice K.S. Puttaswamy (Retired) filed a petition in the Supreme Court challenging the
constitutionality of Aadhaar on the grounds that it violates the right to privacy.The case came before a three
judge Bench of the Court which, on 11 August 2015, ordered that the matter should be referred to a larger
Bench of the Court. On 18 July 2017, a five judge Constitution Bench ordered the matter to be heard by a nine
judge Bench. The Government argued that there was no constitutional right of privacy in view of a unanimous
decision of eight judges in M.P. Sharma v. Satish Chandra, 1954 and a decision by a majority of four judges in
Kharak Singh v. State of Uttar Pradesh, 1964.
It is held that privacy is a constitutionally protected right which emerges, primarily, from Article 21 of the
Constitution. Elements of privacy also arise in varying contexts from the other facets of freedom and dignity
recognised and guaranteed by the fundamental rights contained in Part III. Privacy includes at its core the
preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual
orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and
recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a
way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of
our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone
and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered
merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of
the dignity of the human being. An invasion of life or personal liberty must meet the three-fold requirement of
(i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate state aim; and (iii)
proportionality which ensures a rational nexus between the objects and the means adopted to achieve them; and
Privacy has both positive and negative content. The negative content restrains the state from committing an
intrusion upon the life and personal liberty of a citizen. Its positive content imposes an obligation on the state to
take all necessary measures to protect the privacy of the individual.

AADHAR Judgement – Chandrachud’s dissent

Justice Chandrachud’s dissent starts from the legislative process that kick-started the Aadhaar Act, 2016. “The
passing Aadhaar Act as money bill is a fraud on the constitution,” he said, while adding that the decision made
by the Lok Sabha speaker to classify it as a money bill could be subject to judicial review. Chandrachud has
sharply differed on Section 7 of the Aadhaar Act, which makes the biometric authentication programme
mandatory for obtaining state subsidies. He stated, “Mandating Aadhaar for benefits and services under
Constitutional, cases brief

Section 7 would lead to a situation in which citizens will not be able to live without Aadhaar”.(for further
reading on aadhar as money bill refer to the word documents enclosed)
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