Right to privacy in India-legality and it’s Controversy

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Meaning – As per our general understanding the term privacy means a personal space life, which permission only. But it would be clearer after referring to some dictionary meaning of the term, which is as follows: – 

After discussing the meaning in short the next part will be dealing specifically with the current status of privacy in India by totally focusing on SC’s judgment. 

Thisright was first recorded in 1800s when an English Court supported a Pardanashin woman’s right to access to her balcony freely. Its jurisprudence has finally evolved ever since and is now recognized as a fundamental right. Right to privacy u/Art 21 is a requisite of right to life and personal liberty. Basically it means means right to be left alone and to be free from any unjustified interference. Privacy is a dynamic concept, which needs to be explained. There are a lot of cases on privacy but none were considering it as a fundamental right before K.S. Puttaswamy v Union of India in 2017 whereby it gained the status of a fundamental right.

It has been admitted in several other countries as well, under different conventions. Right to privacy is contained under provisions of  different legislations, embracing various aspects. The desire of ours of private life came back after 9 years before a 6 bench of SC in Kharak Singh v State of UP in which Kharak Singh, an accused dacoit, was subjected to covert picketing of his home, nighttime inspections, periodic questions, and mobility tracking. The SC said:

proclaim it as a fundamental right, it wasessential to personal liberty. 

Intrusion in his privacy thereby acknowledging presence of this right in the constitution of India after the independence. After 12 years, the SC albeit a smaller3 judge bench, when faced a factual matrix in Gobind v State of MP, created by law upheld constitutionality of it however subject to restrictions like in other rights. Though Gobind lost, privacy won. Privacy was then strengthened after the liberalization era. In R. Rajagopal v State of TN, the SC tackled a dispute among press’ freedom and privacy as a right and held that the latter had a place in nation’s Constitution. Years down the line, in PUCL case, the court challenged the govt’s telephonic tapping of major lawmakers and demanded that the state follow stringent telephone call taping regulations. The provisions of the Telegraph Act of 1885 dealing with interception are based on Supreme Court recommendations given in PUCL  v union of India case.

Till here in our basic rights jurisprudence, privacy had taken on an intrinsic function that allowed us to live a meaningful life without fear of being watched. It has never faced a stronger test in its 54-year history than the one it is facing now before a nine-judge panel investigating whether the judgments in M.P.Sharma and Kharak Singh constitute sound legal precedent.

Security is the protected center of human nobility. Protection has regularizing and explaining capacity. Atregulating strata protection sub serves those unceasing qualities whereupon the assurances of life, freedom and opportunity are established. At an enlightening level, security proposes a heap of qualifications and interests, which lie at the establishment of requested freedom. Protection keeps at its mid the safeguarding of personal emotions, sacredness of family, marriage, reproduction, and home and sexual orientation.

While actual wish for protection might change from personal level to 

gave up just due to the fact that person is in an open area.


As we all know that the basic characteristics that make us human are liberty, freedom and intellectual capabilities. Liberty and freedom of a man are his prized possessions. Hence it is the duty of a state to strive for its protection. Technology and cyber space advancements the world has shrunken to a large extent. Also apart from the developments at bigger level there are various new issues cropping up at individual level. Privacy is most essential part of human life. This right and its protection from outsiders is a tedious and responsible task that needs to be performed majorly by the government. That being said, it is pertinent to discuss in brief the definition and meaning of privacy in its literal sense. This part of the project will deal with the present state of privacy laws in India with special reference to the landmark judgment in this regards given by SC. 

development of concept of privacy in India took about 60 years to become a fundamental right. The judgments overruled by the final verdict of the Supreme Court had a huge impact on the final decision. 

The following analysis will describe the chain that was followed and what finally led to the remarkable judgment. 

MP Sharma v Satish Chandra3


RESPONDENT: Satish Chandra, DM, Delhi

AIR 1954 SC 300.

BENCH  : The then Chief Justice Mehar Chand Mahajan and Justices B

Jagannadhadas, Ghulam Hasan, Natwarlal H Bhagwati, T L Venkatarama Aiyyar, B K Mukherjae, Sudhi Ranjan Das and Vivian Bose.


The Dalmia Jain Airways Ltd. was registered on 9th July 1946, with authorized capital of Rs. 10 crores. After surviving for about six years, it went into liquidation on 13th June, 1952. Almost two years after the liquidation, an FIR was logged on 19th November, 1953, requesting search warrants, to Delhi’s DM. It informed the authority of the wrongdoings undertaken by the group.

The investigation revealed corporate fraud and efforts to hide information from stockholders about company’s total state of affairs by filing fraudulent identities.

 An investigation into its affairs started under the Companies Act. The police in the process of unveiling the truth, ransacked a total of 34 establishments owned by M/s Dalmia Jain Airways Ltd.. The search busted out several records of fraudulent transactions showing false accounts with fictitious entries wherein money had been transferred and other escapes where the company was not being transparent to the stakeholders, violating their right to information and making fallacious of their money.


In a writ petition to  SC, the parties involved questioned the constitutionality of the search. They said that taking away of their private records was violating their fundamental rights, which included – Right to property [1] and protection against self-incrimination[2]

Here, judges had to determine whether there were any restrictions imposed by Constitution to privacy.


Here, judges had to establish if there were any constitutional limitations to the searching the premises, seizing materials and that if it would infringe on someone’s privacy in any manner. But, they turned down the defendant and said that; no The state has to protect and socially secure its citizens and so the challenge was rejected. The court only addressed if Article 20 (3) was breached or not. Finally, it was decided that a probe or arrest does not violate constitutional right to privacy.


PETITIONER: Kharak Singh


BENCH: Justices N. Rajagopala Ayyangar, J.C. Shah , Syed Jaffer Imam, K. Subba Rao, J.R. Mudholkar and Chief Justice B.P. Sinha.


 The petitionerwas charged with dacoity. Because of less evidence and after being challaned, the police released him. But, under the UPPR, a history sheet was opened in its name. Regulations provided power of regular surveillance, which included home visits for people who are likely to become offenders or are already habituated. Based on these provisions, the police would enter the house of the petitioner at any time of the day and even night to wake him up and also made him visit the police stations every now and then. Periodic inquiries by the officers were held and they also used to track the petitioner’s movement.


Kharak Singh claimed that all these acts by the police were infringing his constitutional rights. The 6 judge bench then analyzed Uttar Pradesh Police Regulations and surveillance’s validity in the context of power like these violating the freedoms of a citizen under the Indian Constitution. The petitioner put forth the point that these rules were infringing on his right to a dignified existence[4], which includes privacy rights. He also added violation of his personal liberties[5] .  


The 6 judge bench of SC stroke down concerned provision of Uttar Pradesh Police Regulations and declared them as unconstitutional. It said



RESPONDENT:  The State of Karnataka

BENCH: Justices R.V. Raveendran, J.M Panchal and Chief Justice of India K.G.



The case revolves around selvi and her daughter Kavita, Kavita married a man names Shiva kumar against the wishes of her family as the man was of different caste. Owing to caste differences, Shivakumar was brutally murdered in 2004, and Selvi was the main suspect, along with two others. Because the prosecution’s case was solely based on speculation, the court was asked to allow polygraphy and brain mapping tests on the three main suspects. The tests were carried out after the court granted authorization. When the polygraphy test revealed evidence of deceit, the prosecution asked the court for permission to conduct narcoanalysis on the three people. The court ordered that all three be subjected to narcoanalysis. All of them appealed the judgment to the Karnataka HC, but received no redress. They then proceeded to the SC to file an appeal.


In a notable departure from its simple approach, the SC ruled that mandatory brain mapping, polygraph testing, and narcoanalysis were in violation of Articles 20(3) and 21.

When deciding Selvi’s case, with 10 same type of cases, the SC Bench said that Narcs-analysis would not be an issue in case, which was determined by a 3 judge bench led by Justice V.R. Krishna Iyer, since it was not being used as an investigative technique at time.


The key sentence of the judgment: 

Our considerations in constitutionalism aren’t limited to facts, but also include consequences of our judgment for entire population along with future generations.”

The court’s first question was whether forced exposure to these methods violated the Constitution’s protection from self-incrimination (Article 20(3)). There were two sub-issues. :

  1. Is there a risk of incrimination for the subject if the contested methods are used in the investigation?
  2. Is it possible that the outcomes of the contested method amount to testimonial coercion, triggering Art. 20 (3)?

First issue

On a broad canvas, the tribunal dealt with the first problem. It first created the interrelationship between self-incrimination and right to a fair trial, placing it inside human rights sphere. Based on Maneka Gandhi’s case[7], it opined that Art. 20(3) of the Indian constitution must be analyzed with due consideration for mutual link among freedoms.

For tribunal, the right referred to in Art20(3) must be perceived with respect to various aspects of freedom u/Art 21, including the right to privacy. Infusion of values of constitution in all fields of law, including procedural fields, should be strategy and enforcement of such legislation must take into consideration the fulfillment of due process allegations. Ultimately, it is discovered that involuntary administration violates Art 20(3) and 21.

Second issue

The second issue was if investigative usage of methods might lead to self incrimination, whether the admissibility of outcomes leads to testimonial obligation, if protection is merely accessible to accused and also to witnesses. Most of these problems have been put to rest by Satish Sharma[8] and Nadini Satpathy vs PL Dani[9].It was opined that Art. 20(3) extends to the investigative phase and to all accused persons along with  those who think that their responses might expose them to charges in situation under inquiry or some other situation. 3 uses of custody statements are categorized by the tribunal;

  • Data will be shared, which leads to the discovery of new substances.
  • When information is found to be relevant in instances other than the one being investigated, it is called transaction use.
  • identification and confirmation when assertions are utilised for identification and confirmation, such as handwriting, body specimens, and so on.

The test is “responses that might support a belief are confessions, but responses that have a sensible inclination to point out that guilt is incriminatory.” It explains that “if the declaration includes self-exculpatory matter, it ceases to be confession. Article 20(3) affects confession and self-incrimination and leaves other appropriate factors untouched.”. The important issue that is answered in the negative is if derivative usage is consistent with Art 20(3). The issue that must be addressed by examining if mandatory test administration meets due process criteria for putting restrictions on personal freedom. Because these investigation approaches fail tests, they also fail Article 21 touchstone.


PETITIONER: Nandani Satpathy

RESPONDENT:  Dani (P.L.) and Anr.

BENCH: Justices Jaswant Singh, V.D. Tulzapurkar and V.R. Krishna Iyer.


Nandini Satpathy, former Orissa CM, was asked to come at Vigilance Police Station, Cuttack, regarding a vigilance case filed on her. She was presented with a large number of written inquiries regarding her suspected purchase of assets that were out of line to her recognized income sources. She continued to refuse to respond to questions, citing her right u/Art 20(3). No one accused of a crime can be forced to testify against themselves, according to Article 20(3).The DSP, Vigilance, Cuttack, filed a complaint  u/s 179 IPC before the Sub Divisional Judicial Magistrate, Cuttack. 


When she was issued a summon by the magistrate so as to appear before HC, she stated that Article 20(3) and Section 161(2) CrPC were enough to make her stance stand in the refusal. Section 161(2) states that a person is not obligated to answer inquiries if the answers have the potential to subject the individual to a criminal accusation, punishment, or forfeiture. When HC did not adhere to her claim, Nandini Satpathy appealed to SC. J Iyer was the judge said that directing a lady to a police station in contravention of Sec 160(1) may create stress and undermine consent. Furthermore, several of the relevant questions to her were likely to be self-incriminating.


The Supreme Court ruled in this instance that restrictive scope of Art 20(3) extended back to police inquiry.J Iyer ruled that an individual had all the rights to keep his or her mouth closed if response even has a probable chance of exposing his guilt. However, when there was no apparent inclination to criminate, Justice Iyer stated that an accused was obligated to answer. He also believed that granting accused right to contact a lawyer of choice was the greatest way to ensure that the right against self-incrimination was respected.

The SC, in its May 5 decision, reconsidered the concerns raised in Nandini Satpathy case in light of  challenge to e unintentional administering of narcoanalysis, polygraph examinations, and Brain Electrical Activation Profile (BEAP) tests for improving investigative attempts.

 In Narcoanalysis test a person is administered sodium pentothal, a drug that lowers one’s feeling that makes him/ her self conscious and allows them to talk freely. Examples and practical studies suggest that the revelations made by the subject need not be true as revelation and it is also a contention that these can easily be duped. The aim of a polygraph examination and the BEAP tests is to detect falsehoods and determine the subject’s familiarity with material related to a crime. These methods are fundamentally confirmatory in nature, since they draw conclusions from the subject’s physiological reactions. Their validity has been called into doubt in many empirical investigations. The trustworthiness of scientific evidence has a causal relationship with many aspects of the right to a fair trial in criminal proceedings, including the need of establishing guilt beyond a reasonable doubt and the right of the accused to offer a defense.


In India, the right to privacy has evolved through time as a result of a number of judgments. The following judgment, wherein a legal framework for privacy protection is formed spans over 547 pages. The judgments presented cover a broad variety of topics in order to demonstrate that privacy is a basic right that is inextricably linked to human dignity and liberty.

Justice K. S. Puttaswamy. v UOI

PETITIONER: Justice K. S. Puttaswamy (Retd.).


BENCH: Justices J. S. Khehar , J. Chelameswar , S. A. Bobde , R. K. Agrawal , R. F.

Nariman , A. M. Sapre , Dr. D. Y. Chandrachud , S. K. Kaul and S. A. Nazeer.


The case was filed by K S Puttaswamy, a 91-year-old retired HC Judge, against GOI before a 9 judge SC bench, which had been set up on the recommendation of Constitution Bench to decide the matter decided which Access to governmental benefits would be made obligatory, according to the administration’s proposal. The case was brought before a 3-judge SC panel on the claims that the plan infringed on right to privacy. On behalf of  GOI, the AG contended that Constitution doesn’t provide explicit protection for this right. He observations were based upon M.P. Sharma v. Satish Chandra15 and Kharak Singh v. UP.16

The dissenting position in Kharak Singh was upheld by a later eleven-judge panel, which ruled that basic rights were not to be interpreted as separate, unconnected rights. Later judgments by smaller Supreme Court benches that explicitly acknowledged the right to privacy were based on this precedent.

In this context, a Constitution Bench was established, with the conclusion that a nine-judge bench was required to decide whether the Constitution included a basic right to privacy.17


The primary question was if right to privacy comesu/Art 21. The 9 judge bench decided the case and answered above-said question in affirmative. Laying down a historical judgment the Bench has beautifully jotted down the reasons and conclusions for declaring right to privacy as a constitutional right.  

The Court has been questioned about a variety of privacy issues, including

: –  (i)Is there a reasonable expectation of privacy that is guaranteed by Constitution?; 

  • If a legally guaranteed right exists, it must be determined if it is an independent basic right or derives from  existing assurances of constitutional protections such as life and personal liberty.;
  • the theological underpinnings of privacy claim;
  • Components of privacy; and
  • character of state’s legislative oversight.[11]

Justice Chandrachud said: -In its most basic form, privacy enables each human being to be alone in an inviolable core. However, the individual’s autonomy is influenced by her interactions with the rest of society. Those connections may, and frequently do, call into question one’s autonomy and freedom of choice. The presence of state and non-state organizations overarchingly controls elements of social life that affect individual liberty. The maintenance of constitutional liberty is a labor in progress, in a sense. Existing issues must be addressed with challenges. In terms of a constitutional conception of where liberty puts a person in the framework of a social order, new problems must also be addressed. This case, in which the dispute over privacy is examined in the context of a global information-based society, exemplifies the development of new problems. The challenge before the Court is to provide constitutional meaning to individual liberty in an interconnected world in an era when digital technology controls almost every aspect of our lives. While we consider whether our constitution guarantees privacy as a fundamental concept, the Court must consider the requirements of, as well as the possibilities and risks to liberty presented by digital labor. 19 He said that when a person enters the public realm, their privacy is not completely lost.

It also held that the right to privacy included both the negative right against state intervention, such as when homosexuality was criminalized, and the positive right to be protected by the state. The Judges concluded that India needed to implement a data protection framework on this basis.

Court gave following observations regarding all the above issues: – 

  1. Privacyas a fundamental right: -The Supreme Court reaffirmed that right to privacy is a basic right that may be inferred from Articles 14, 19, and 21 of the Indian Constitution without having to be defined separately.It is a natural right, inextricably linked to the rights to life and liberty. It is a fundamental and inherent right that pertains to the individual and covers all information about that person and the decisions he or she makes. It shields an individual from the State’s inspection in their house, of their movements, and of their reproductive decisions, among other things. As a consequence, every action taken by the state that violates right to privacy is open to scrutiny in courts.
  • Subject to Restrictions – The SC clarified that right to privacy is not absolute and will always be subject to reasonable restrictions. It held that the State can impose restrictions on the right to privacy to protect legitimate State interests but it can only do so by following the three-pronged test summarized below:
  • The existence of a legislation that authorizes a breach of privacy.

ii.A valid State goal or necessity that guarantees that the type or substance of this legislation is reasonable and functions to prevent arbitrary State action; and

iii.The methods chosen by the State are proportionate to  objects and needs intended to be achieved by law.

As a result, every State activity that may have an effect on privacy must now be evaluated against this three-pronged test. This is expected to have an effect on a number of current initiatives, most notably the Aadhaar identification project.

Conclusion: – 

Privacy is a constitutionally guaranteed right that stems mainly from Article 21’s protection of life and personal liberty. Elements of privacy also emerge in different circumstances from the other aspects of freedom and dignity recognized and protected by the basic rights included in Part III of the Indian Constitution.

Supreme Court did remarkable job by giving such an exhaustive and elaborate judgment on right to privacy. Now the society has grown drastically from a primitive one to a technologically advanced and sound one and hence there is dire need to mend and make laws accordingly. Man’s life and liberty are one of the

precious possessions of him and hence they need to be protected. Supreme Court by protecting privacy has ensured the dynamic nature of law and faith of people in judiciary. Privacy as being one of the inherent part of daily lives can not be

ignored and therefore needs security. Privacy is not only related to personal relations but to each and every part of day to day life. Honorable Court accepted all these facts, changed the outdated law and embraced privacy as part and parcel of human life and existence. 


The controversies related to right to privacy is not a new concept but is something which has been holding hands of the said right since the emergence of the mere thought. 

The basic points over the issue for not recognizing it as a fundamental right are mentioned below:

  • The right has zero value as it was not found explicitly anywhere in constitution.
  • When citizens have little to conceal, why do they object to giving up their privacy for the public good?
  • Instead of being labeled as a violation of privacy, the efforts should be seen as the government’s sincere attempt to better understand its people, which is necessary for the effective distribution of limited resources to the needy population in a varied nation like India.

 Arguments against these said points made by the retaliators are:

The right to privacy is clearly an intrinsic element of Article 21  i.e. the right to life. Furthermore, India is a signatory to UDHR, which includes this right also.

fide, the lower level bureaucracy may misuse the data for petty gains. Parties never showed sign to back out from the fight so, over the years apart from making this controversy grow nothing happened.Talking about the case most controversial case in recent years is regarding Aadhar, the intresting as well obvious issue was that the challenges against Aadhaar began even before Aadhaar legislation was enacted in 2016. The main issue was regarding security of personal data and authenticity of it as an identity of an individual, so in order to check its The Aadhaar database, which includes the fingerprints and personal information of over one billion Indians, was hacked by a software patch that disables key security elements of the program, according to HuffPost India. When a French security expert, Elliot Alderson, questioned UIDAI why its toll-free hotline number is stored in everyone’s phonebooks by default, thousands of smartphone users in India were perplexed. TRAI chairman RS Sharma tweeted his 12-digit Aadhaar number and challenged ethical hacker Elliot Alderson to demonstrate how simple knowledge of the number might be abused. After a few hours, all of his personal information was made public. When the UIDAI revealed plans to establish a social media branch to “neutralize negative emotions” about Aadhaar, it sparked outrage. It said that the private firm will “watch Aadhaar-related internet discussions.” The Supreme Court questioned UIDAI on why it required to gather “metadata” on personal transactions of individuals who use Aadhaar to get services and benefits. UIDAI was pulled into yet another scandal as a result of the biometric mixtures.

UIDAI officials had once agreed that around 1 to 1.5 per cent, enrolments of nearly made in the past seven years have mixed biometrics. Indian cybersecurity researcher Kodali Srinivas flagged the leak of Adhaar details of The affected After such issues came in light the question came on the constitutional validity of the aadhaar scheme so, the final judgement came in last week of september 2018 in the 547 page judgement removes the fight of it being a fundamental right or not, which was started by the inconsistencies of two earlier judgements (mentioned in the cases section): 

  1. M.P Sharma v Satish Chandra

Turned down the plea of making this rightas a fundamental right by stating that Constitution drafters had never intended to subject the power of search and seizure to a fundamental right of privacy,they went on to arguethat the Indian Constitution does not include any language similar to the Fourth Amendment of the US Constitution, and therefore, the existence of this right was under question.

  • Khadak Singh v State of U.P

Hereby it was held that ths right is not a part of Article 21’s inclusive jurisprudence.

Hence the dispute was addressed in the K.S Puttaswamy case which said thatArticle 21 protects the right to privacy as an inherent element of the right to life and personal liberty, as well as as one of the freedoms granted by Part III of the Constitution. .[12]

Apart from this, judges went on to say that privacy is an essential prerequisite for the effective enjoyment of other protected freedoms, and the constitutional provisions must be read and construed in a way that improves their compliance with international human rights treaties signed by India. so that it country will save itself from not only being a contradicting state but it will also help the state to maintain its position firmly on what it says.

Finally, the question comes up that whether the controversy has been resolved or not after the landmark judgement and aadhaar act? The answer to the question remains unanswered as some scholars still believe that state should while many say that  state should not violate the basic rights of an individual no matter what.  


Right to privacy is a fundamental right intrinsic to Article 21. However, it is liable to have been subjected to some obvious and sensible restrictions which are necessary in order to maintain law and order and prevent the misuse of this right. The right to privacy has often come at cross roads with other fundamental rights like the right to health in the current era of Covid-19. Every individual needs his or her private space. It is from this basic need that this right comes out.




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20Barriers%20through%20the%20Bench.pdfhttp://www.legalblog.in/2011/05/narco-analysis-polygraphtests.htmlhttps://www.thehindu.com/migration_catalog/article16297234.e ce/BINARY/Supreme%20Court%20judgement%20on%20nar co-analysis%20test%20(833%20Kb)http://www.newindianexpress.com/nation/2018/sep/26/here-areseven-interesting-stories-on-aadhaar-controversies-1877343.html

[1] Article 19 (1) (f) Omitted by the Constitution (Forty-fourth Amendment) Act, 1978 , (w.e.f. 206-1979). Prior to omission it read as:

[2] 5 The Constitution of India 1950, Article 20 (3).

[3]  [1963] AIR 1295.

[4]  Constitution of India, Article 21.

[5]  Constitution of India, Article 19.

[6]  [2010] 7 SCC 263.

[7] [1978] AIR 597.

[8] [1954] SCR 1077.

[9] [1978] 2 SCC 424.

[10] [1978] 2 SCC 424.

[11] ibid.

19 Writ Petition (Civil) No. 494 of 2012.

[12]  Constitution of India, 1950.

Author: Vedant Sharma, Kirit P Mehta School of Law, NMIMS Mumbai

Editor: Kanishka VaishSenior Editor, LexLife India.

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