Right to Privacy as a Fundamental Right: Evolution and Challenges

Abstract

The recognition of the right to privacy as a fundamental right in India has been one of the most significant constitutional developments of the past decade. While the Constitution of India does not expressly enumerate privacy as a distinct fundamental right, the Supreme Court has consistently interpreted Articles 14, 19, and 21 to expand its scope and protect individual autonomy. From the early skepticism of M.P. Sharma v. Satish Chandra (1954) and Kharak Singh v. State of Uttar Pradesh (1962), to the transformative reading in Maneka Gandhi v. Union of India (1978), and culminating in the landmark Justice K.S. Puttaswamy v. Union of India (2017), the jurisprudence on privacy reflects the Court’s evolving understanding of dignity, liberty, and democracy. Yet, the recognition of this right has not eliminated the challenges associated with its enforcement. Contemporary issues such as state surveillance, data protection, digital profiling, artificial intelligence, and balancing national security with civil liberties present complex tensions. This article traces the constitutional journey of privacy in India, analyzes key judgments that shaped its trajectory, and critically examines the challenges of operationalizing this right in the digital age. In doing so, it argues that while privacy has been constitutionally entrenched, its future relevance depends on how courts, legislatures, and regulatory bodies address the realities of technology, governance, and individual freedoms in the twenty-first century.

Introduction

Privacy has long been described as the “right to be let alone.” While this idea can be traced back to the writings of Warren and Brandeis in the late nineteenth century, its constitutional recognition in India has been uneven and contested. Unlike rights such as equality, freedom of speech, or life and personal liberty, the word “privacy” does not appear anywhere in the Constitution of India. For decades, this absence allowed the state to claim that privacy was not a protected interest, and courts often upheld such claims.

However, constitutional rights are not static. They evolve with societal expectations, technological change, and judicial interpretation. In India, this evolution has been particularly visible in the journey of privacy. The recognition of privacy as a facet of dignity and liberty under Article 21 in Puttaswamy was not merely a legal milestone; it was a constitutional moment that affirmed India’s democratic identity in the digital age.

This article examines that journey. It begins with the early cases that rejected privacy, moves through the gradual shift toward individual liberty, and explores the Supreme Court’s categorical recognition of privacy in Puttaswamy. It then analyzes post-Puttaswamy developments, contemporary challenges in the digital era, and the path ahead.

Early Judicial Engagement with Privacy

The constitutional story of privacy begins with M.P. Sharma v. Satish Chandra (1954) [1]. In this case, the petitioners challenged search and seizure powers, arguing that such intrusions violated a fundamental right to privacy. The Supreme Court rejected the claim, holding that since the Constitution did not expressly recognize privacy, such a right could not be read into it. The Court also relied on American Fourth Amendment jurisprudence but distinguished India’s constitutional framework as not containing a comparable guarantee.

A similar stance was taken in Kharak Singh v. State of Uttar Pradesh (1962) [2]. Here, the issue concerned police surveillance on individuals suspected of criminal activities. The majority opinion held that the right to privacy was not guaranteed by the Constitution, though it did strike down domiciliary visits at night as a violation of personal liberty under Article 21. The minority opinion of Justice Subba Rao, however, took a more expansive view. He argued that privacy was essential to personal liberty and could not be separated from the dignity of the individual. Though a minority, his opinion planted the seeds for future developments.

These early cases reflected a formalist approach: unless explicitly stated, rights could not be judicially created. Privacy, therefore, remained in constitutional limbo until the 1970s.

The Shift: Gobind and Maneka Gandhi

The first significant move toward recognizing privacy came in Gobind v. State of Madhya Pradesh (1975) [3]. The Court upheld certain surveillance measures but observed that privacy is implicit in the concept of ordered liberty. Importantly, it noted that privacy could be recognized as a fundamental right subject to reasonable restrictions, opening the door for later expansions.

This shift was deepened in Maneka Gandhi v. Union of India (1978) [4], where the Court famously held that the “procedure established by law” under Article 21 must be just, fair, and reasonable. This expanded the scope of personal liberty and laid the foundation for privacy to be read into the Constitution. The judgment linked Articles 14, 19, and 21, creating a golden triangle of rights.

In subsequent cases such as R. Rajagopal v. State of Tamil Nadu (1994) [5], also known as the “Auto Shankar case,” the Court expressly recognized the right to privacy as part of Article 21. The Court held that the right to be left alone was a component of personal liberty, subject to exceptions such as public interest and national security.

By the mid-1990s, therefore, privacy had evolved from being judicially rejected to being tentatively recognized, though its contours remained unclear.

The Landmark: Justice K.S. Puttaswamy v. Union of India

The constitutional status of privacy was decisively settled in Justice K.S. Puttaswamy v. Union of India (2017) [6]. The case arose out of a challenge to the Aadhaar scheme, which required individuals to provide biometric data for identification. A nine-judge bench of the Supreme Court unanimously held that the right to privacy is a fundamental right protected under Part III of the Constitution.

The judgment was historic for several reasons. First, it explicitly overruled M.P. Sharma and Kharak Singh to the extent they denied privacy. Second, it located privacy within Articles 14, 19, and 21, emphasizing its multidimensional character. Third, it conceptualized privacy as intrinsic to dignity, autonomy, and democracy. The Court recognized various facets of privacy, including decisional autonomy, informational privacy, and bodily integrity.

Justice D.Y. Chandrachud’s plurality opinion stressed that privacy is not an elitist concern but a universal right central to liberty. Justice Kaul’s concurrence highlighted informational privacy in the digital age, underscoring the need for data protection frameworks. Collectively, the judgment established privacy as an inalienable part of constitutional morality.

Post-Puttaswamy Developments

The recognition of privacy as a fundamental right has influenced several subsequent judgments. In Navtej Singh Johar v. Union of India (2018) [7], the Court relied on Puttaswamy to strike down Section 377 of the Indian Penal Code to the extent it criminalized consensual same-sex relations, affirming sexual privacy and autonomy.

Similarly, in Joseph Shine v. Union of India (2018) [8], the Court decriminalized adultery, holding that laws based on patriarchal notions of control violated the dignity and privacy of individuals.

In Anuradha Bhasin v. Union of India (2020) [9], concerning internet restrictions in Jammu and Kashmir, the Court linked freedom of expression with informational privacy, holding that indefinite suspension of internet services was unconstitutional.

The Aadhaar scheme itself was reconsidered in Puttaswamy (Aadhaar-II) (2018) [10]. While the Court upheld Aadhaar for welfare schemes, it struck down provisions allowing private entities to demand Aadhaar data, emphasizing proportionality and data security.

These cases demonstrate that privacy has become a doctrinal touchstone for the Court in safeguarding dignity and liberty.

Privacy in the Digital Age

Despite constitutional recognition, enforcing privacy in practice remains a formidable challenge, especially in the digital age. The growth of social media, big data, artificial intelligence, and biometric technologies has created new threats to privacy.

One major concern is data protection. Unlike the European Union, which has the General Data Protection Regulation (GDPR), India has struggled to enact comprehensive data protection legislation. The Personal Data Protection Bill, first introduced in 2019, went through multiple revisions before culminating in the Digital Personal Data Protection Act, 2023. Critics argue that while the Act introduces important safeguards, it grants extensive exemptions to the state, undermining privacy.

Another concern is state surveillance. Revelations around the Pegasus spyware scandal raised questions about whether the government engaged in unlawful surveillance of journalists, activists, and opposition leaders [11]. Such incidents highlight the tension between national security and civil liberties, with privacy often the casualty.

Finally, corporate practices pose their own risks. Global tech companies collect vast amounts of personal data, often without meaningful consent. Algorithms profile individuals for advertising, employment, or law enforcement purposes, raising concerns about discrimination and loss of autonomy.

Contemporary Challenges

Even after Puttaswamy, privacy in India faces structural challenges.

• Weak legislative frameworks: Privacy is constitutionally protected, but the absence of a strong, independent data protection authority limits its enforcement.
• Broad national security exceptions: Courts have often deferred to the state when security is invoked, diluting privacy protections.
• Digital illiteracy and consent: Many citizens remain unaware of how their data is used, making informed consent largely illusory.
• Judicial inconsistency: While some benches have robustly enforced privacy, others have been more deferential to executive claims.

These challenges suggest that while privacy has strong normative force, its practical protection remains incomplete.

The Way Forward

For privacy to be meaningful, three steps are critical.

First, robust legislation must be enacted that balances state interests with individual rights. The Digital Personal Data Protection Act is a start, but its exemptions for the government must be narrowed.

Second, judicial vigilance must continue. Courts must apply the proportionality test consistently, ensuring that any restriction on privacy is necessary, legitimate, and least restrictive.

Third, public awareness and literacy must improve. Privacy cannot be protected by law alone; individuals must be conscious of their rights and vigilant about their exercise.

Conclusion

The right to privacy in India represents a remarkable constitutional journey—from outright rejection in M.P. Sharma and Kharak Singh, to tentative recognition in Gobind and Rajagopal, to emphatic affirmation in Puttaswamy. This evolution reflects not only judicial creativity but also the growing recognition that liberty and dignity cannot survive without privacy.

Yet, recognition is only the first step. The challenges of surveillance, data exploitation, and technological change demand constant vigilance. If democracy is to thrive in the twenty-first century, privacy must be treated not as a luxury, but as a core component of human freedom. The constitutional promise of privacy, therefore, must translate into practical safeguards that protect every individual in both physical and digital spaces.

References

[1] M.P. Sharma v. Satish Chandra, 1954 SCR 1077 (India).

[2] Kharak Singh v. State of U.P., AIR 1963 SC 1295 (India).

[3] Gobind v. State of M.P., (1975) 2 SCC 148 (India).

[4] Maneka Gandhi v. Union of India, (1978) 1 SCC 248 (India).

[5] R. Rajagopal v. State of T.N., (1994) 6 SCC 632 (India).

[6] Justice K.S. Puttaswamy v. Union of India (Puttaswamy I), (2017) 10 SCC 1 (India).

[7] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 (India).

[8] Joseph Shine v. Union of India, (2019) 3 SCC 39 (India).

[9] Anuradha Bhasin v. Union of India, (2020) 3 SCC 637 (India).

[10] K.S. Puttaswamy v. Union of India (Puttaswamy II), (2019) 1 SCC 1 (India).

[11] See The Pegasus Project: Exposing State Surveillance, The Wire (July 18, 2021), https://thewire.in/government/pegasus-project-surveillance.