The debate over the right to privacy has been intensified following the argument put forward by the government in the UID case in which it questioned whether this was a fundamental right guaranteed by the constitution of India. Does this argument of the government in defence of Aadhar hold water? Does Indian constitution guarantee right to privacy? Will there be a closure to this debate?

Arguing before a threejudge bench of the Supreme Court of India in the UID case, the Attorney General of India on 22nd July 2015 challenged the constitutional guarantee of the right to privacy. The Attorney General said that the right to privacy was neither guaranteed under the Constitution of India nor made available to Indian citizens through any settled judicial pronouncement. He referred to two Constitution Bench judgments –M P Sharma and Others vs Satish Chandra (1954), an eight judge decision, and Kharak Singh vs State of Uttar Pradesh (1962), a six judge judgment –in support of his argument. He said that in view of these judgment the legal positions regarding the existence of the fundamental right to privacy is doubtful.

The three-judge bench of Justices J Chelameswar, S A Bobde and C Nagappan hearing the UID case has referred the matter to a five-judge constitution bench to determine whether citizen’s right to privacy qualified to be part of the fundamental right to life and also to define and determine its character and contours. However, expressing concern over the matter, the judges said, “We are of the opinion that the cases on hand raise far reaching questions of importance involving interpretation of the Constitution.What is at stake is the amplitude of the fundamental rights including that precious and inalienable right under Article 21. If the observations made in M P Sharma (1954) and Kharak Singh (1962) cases are to be read literally and accepted as the law of this country, the fundamental rights guaranteed under the Constitution of India and, more particularly, right to liberty under Article 21 would be denuded of vigour and vitality.”

Different judgments by the Hon’ble Supreme Court of India have touched upon the right to privacy and many experts have pointed out the fallacy of the stand of the government. Experts believe that this was a tactic adopted by the government so that the UAID matter could be deferred to an indefinite date (see interview for more). Some have pointed out that the evolving constitutional jurisprudence in India on privacy rights post M P Sharma and Others vs Satish Chandra judgment unambiguously affirms the right to privacy as an integral component of the right to life and personal liberty.

Let us talk briefly about the cases which are related to the question of the right to privacy. Let’s begin by first looking at the two cases AG referred to in his argument. In the case of MP Sharma Vs Satish Chandra, a search warrant under section 96 (1) of the Code of Criminal procedure was issued against M.P. Sharma — the petitioner — who filed a case against the District Magistrate (who issued the warrant), claiming that his right to privacy was violated. The court held that the power of search and seizure is an overriding power of the State, aimed at promoting social security and emanates from a law which is not subject to any constitutional limitations. “There is no justification for importing fundamental right to privacy” into such cases by “some process of strained construction”.

In the Kharak Singh case, the petitioner was caught by the police in a dacoity case and was released in the absence of any evidence. The police put him under surveillance as per regulation 236 of the UP Police Regulations. The police opened a history sheet for him and he was put under police surveillance which included secret picketing of his house by the police, domiciliary visits at nights and verification of his movements and activities.

The SC held that domiciliary visit of the policemen was an intrusion into the petitioner’s personal liberty. However, while quashing the regulations as unconstitutional, the court held that the “right to privacy is not a guaranteed right under our Constitution”. A majority of the judges refused to interpret Article 21 to include within its ambit the right to privacy. They stated “The right of privacy is not a guaranteed right under our Constitution, and therefore the attempt to ascertain the movements of an individual is merely a manner in which privacy is invaded and is not an infringement of a fundamental right guaranteed in Part III.”

Two of the judges of the seven judge bench, however, saw the right to privacy as a part of Article 21, Justice Subba Rao held “It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty.”

Many other judgments by the Hon’ble Supreme Court of India deliberated upon the right to privacy. After Kharak Singh vs State of UP, the Supreme Court, a few years later, had to deal with it in the case of Govind v. State of Madhya Pradesh (AIR 1975 SC 1378). In this case the petitioner had challenged the MP Police Regulations maintaining that it violated his fundamental right which were guaranteed in the Article 21. The SC held that since the Regulations of the police have the force of law hence it was valid. The judges said, “Rights and freedoms of citizens are set forth in the Constitution in order to guarantee that the individual, his personality and those things stamped with his personality shall be free from official interference except where a reasonable basis for intrusion exists. ‘Liberty against government’ a phrase coined by Professor Corwin expresses this idea forcefully. In this sense, many of the fundamental rights of citizens can be described as contributing to the right to privacy.”

In Meneka Gandhi v Union of India, the SC has given the widest possible interpretation to the personal liberty. In this case the petitioner’s passport was impounded by the government under Sec 10(3)(c) of the passport act 1967. The petitioner challenged the validity of the said order. The SC held that the government was not justified in withholding the reasons for impounding the passport from the petitioner.

The court said that the order in the instant case was not only in breach of law but also violation of the the rule of natural justice embodied in the maxim audi alteram partem. According to Usha Ramanatha, legal expert, “In the landmark case of Maneka Gandhi’s the idea of liberty was liberally construed, and where the interrelationship between the fundamental freedoms, the right against arbitrariness in state action, and the right to life and personal liberty was established.

The Supreme Court in the case of R. Rajagopal v. State of Tamil Nadu, popularly known as Auto Shankar case, was required to balance the right of privacy against the right to free speech. In this case, the petitioner was a Tamil news magazine which had sought directions from the Court to restrain the respondent State of Tamil Nadu and its officers to not interfere in the publication of the autobiography of a death row convict which contained details about the nexus between criminals and police officers.

The Supreme Court questioned whether a citizen of this country can prevent another person from writing his life story or biography and whether such unauthorised writing infringe the citizen’s right to privacy? A bench of two judges of the Supreme Court, for the first time, directly linked the right to privacy to Article 21 of the Constitution but at the same time excluded matters of public record from being protected under this ‘Right to Privacy’.

The Supreme Court held: “(1) the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a “right to be let alone”. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy. (2)The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others.”

In the case of District Registrar v. Canara Bank ((2005) 1 SCC 496) the Supreme Court in one of its most important privacy related judgments held that provision of the A.P. Stamps Act was unconstitutional on the grounds that it failed the tests of reasonableness enshrined in Articles 14, 19 and 21 of the Constitution. The Court held that any legislation intruding on the personal liberty of a citizen (in this case the privacy of a citizen’s financial records) must, in order to be constitutional, satisfy the triple test laid down by the Supreme Court in the case of Maneka Gandhi v. Union of India.

It is a fact that the Constitution does not mention the right to privacy explicitly anywhere and even the fundamental rights to speech and expression, life, movement etc. are subject to restrictions. However, in a plethora of judgment the SC has held that personal liberty in Article 21 of the Constitution covers a variety of rights, including the right to privacy. In State of Maharashtra v Madhulkar Narain, it has been held that the right to privacy is available even to women of easy virtue and no one can invade her privacy.

In the case of PUCL v. Union of India ((1997) 1 SCC 30) where the petitioner organisation had challenged the actions of the state in intercepting telephone calls, the court said that telephone-tapping was a serious invasion of an individual’s privacy. The court said that explicitly that citizen’s right to privacy had to be protected from being abused by the authorities of the day. The court held that the telephone-tapping would infringe Article 21 of the Constitution of India unless it is permitted under the procedure established by law.

Therefore, we see that the Court has expressed in no uncertain terms in so many cases that the right to privacy is a part of right to life and , hence, fundamental right it must protected by the state.