“Right to privacy is now fully recognized as a Fundamental Right in India”. Explain.

Question: “Right to privacy is now fully recognized as a Fundamental Right in India”. Explain. [UPJS 2006]

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Answer

In independent India, the issue of the right to privacy was first time discussed in the debate of the Constituent Assembly; however, it was not included as any right in the Constitution of India. The issue of whether the right to privacy is a fundamental right under the Constitution and as a common law right has been dealt with since the 1960s through various judicial cases.

For the first time, the issue raised in M.P. Sharma v. Satish Chandra [AIR 1954 SCR 1077] in which the 8-judge bench of the Supreme Court, while dealing with the power to search and seize documents from the Dalmia Group, held that right to privacy is not a fundamental right and it is alien to the Constitution of India.

Thereafter, in Kharak Singh v. State of Uttar Pradesh [AIR 1964(1) SCR 332], a six-Judge bench of the Supreme Court held that there is no fundamental right to privacy, but struck down the provision that allowed night visits, for violation of ‘personal liberty. However, Justice Subba Rao gave his dissenting view and stated that the right to privacy flows from the expression of personal liberty and is an essential component of personal liberty though it was not incorporated as a fundamental right in the Constitution of India. This minority judgment paved the path for further development.

After a period of almost 11 years, in Gobind v. State of Madhya Pradesh [1975(2) SCC 14], a three-judge bench of the Apex Court ruled the existence of a fundamental right to privacy within the ambit of the right of personal liberty under Article 21 of the Indian Constitution. Hence, for the first time, privacy gained some recognition under personal liberty under the Indian Constitution.

Further, in Lillu Rajesh and Anr v. State of Haryana, [(2013) 14 SCC 643] the Supreme Court held that Medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment and health should be of paramount consideration while dealing with gender-based violence. Proper measures should be taken to ensure their safety and there should be no arbitrary or unlawful interference with his privacy. Therefore, the court ruled that the two-finger test on rape victims violates her Right to Privacy.

Finally, in a 2017 judgment by the Supreme Court of India (SCI) in Justice K.S. Puttaswamy (Retd) v. Union of India(2017) was observed to be a resounding victory for privacy. The ruling is the outcome of a petition challenging the constitutional validity of the Indian biometric identity scheme Aadhaar. The nine-judge bench of the Supreme Court unanimously held that the right to privacy was a constitutionally protected right in India, and it was an intrinsic part of the right to life and personal liberty under Article 21. Therefore, we can say that the Right to privacy is now fully recognized as a Fundamental Right in India.

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