HOW INDIA’S JUDICIARY CARVED A FUNDAMENTAL RIGHT OUT OF “LIFE AND PERSONAL LIBERTY”
Author: Manan Jhamb, Chandigarh University
LinkedIn Profile: https://www.linkedin.com/in/manan-jhamb-441716288/
ABSTRACT
Privacy Privacy, which was viewed as a common-law notion borrowed in part by the tort jurisprudence, nowadays has risen to prominence as a constitutional right, in Art. 21 of the Constitution of India. This article provides a doctrinal journey of the right to privacy, starting with its uncertain origins in M.P. Sharma and Kharak Singh, the decision of the nine-judge bench, and the current-day application in data protection, bodily autonomy, and data surveillance. It is arranged in such a way that it provides the reader with a concise and accurate overview (to the point) after which a more extensive, and more doctrinally nuanced discussion using standard legal terminology (the proof) is presented, then a survey of the binding case law, and finally a conclusion on where we are in the law, and a series of frequently asked questions to offer practical clarity.
TO THE POINT
• Privacy is not directly said in the Constitution but has been interpreted by the judiciary into Article 21 of the Constitution that deals with Protection of Life and Personal Liberty.
• the 2017 decision of Puttaswamy, 2017, resoundingly and decisively states that privacy is a fundamental right by striking down the previously restrictive treatises of the 1954 case, M.P. Sharma, and the 1962 case of KharakSingh.
• The concept of privacy has come to be interpreted as the items of;**informational privacy, bodily autonomy and decisional privacy (family choices, marriage, sexuality and choices about life and personal life).
• the right is not absolute, but can be limited by a state action which meets the threefold test of legality, legitimate aim, and proportionality.
• The ruling provided the constitutional basis of the Digit-personal data protection act, 2023, the first comprehensive legislation on data protection in India.
INTRODUCTION: THE LEGAL LEGISLATION
The term of privacy is not mentioned anywhere in the Indian Constitution which was drafted in 1949. Such textual silence resulted in decades of confusion over whether someone could demand that the State not incite into her personal life. The early constitutional courts, who found themselves constrained within a system that placed great weight on the case of A.K. Gopalan v. State of Madras (1950), took a very strict and compartmentalised understanding of the basic rights, seeing each of the rights contained in Part III as a self-governing silo as opposed to a network of freedoms.
Only due to a gradual and deliberate application of interpretation, the feature of the so-called living constitution doctrine that is still prevalent among jurists, was the judiciary able to discern an implicit right to privacy in broad phrase of personal liberty in Article 21. This development is indicative of the greater conceptual jurisprudential metamorphosis in both favor of and in opposition to positivist textualism to substantive due process, which is re-conceptually indebted to American constitutional law but tailored to the socio-legal environment of India.
APPLICATION OF LEGAL TERMS: ANSWERING THE DOCTRINE FRAMEWORK
In order to value the richness of this right, some terms of art in law will have to be considered:
• Locus classicus the most authoritative and most cited case upon a topic – thus, in the case of privacy law, Puttaswamyis the locus classicus of privacy law.
• Ratio decidendi: The legal principle of a decision that is binding, not obiter dicta (observations not part of the decision).
• **Stare decisis** The precedence rule whereby courts are obliged by the decisions of past cases of benches of co-ordinate or larger benches.
• **per incuriam A decision made in disregard of a binding precedent or statute – the earlier decisions of M.P. Sharma and Kharak Singh are the ones that the bench in Puttaswamy described as having made.
• Substantive due process A doctrine that compels laws limiting fundamental rights to be both fair, just and reasonable in substance, and not enacted by simply having been enacted with due process.
• **Proportionality test: A four-prong test of constitutionality that any curtailment of a right (a) must have a legitimate purpose, (b) must be a reasonable means to the purpose, (c) must be necessary and there is no less restrictive alternative, and (d) must be a modest balance of the right and the state interest.
• Horizontal and vertical application A vertical application is a right which can be enforced against the State, a horizontal application merely transfers some rights to non-State actors, which remains a contentious part of the Indian privacy discussion, especially with respect to data fiduciaries.
This vocabulary is a key requirement of any practitioner who is filing a writ petition under either in the spirit of protecting the right to privacy; under either of the articles 32 or 226 respectively.
THE PROOF: CONSTITUTIONAL AND DOCTRINAL PROOF.
The evidence that privacy is a fundamental right lies on an argumentative basis of layers instead of just one provision of the constitution:
1. Textual anchor — Article 21, it is assured that no-one should be denied his life or personal liberty except as per the procedure laid down by the law. Several times, the Supreme Court has specifically said that life is not animal life but beyond that (then vice versa, said to be the majority doctrine established later) of life.
2. Structural inference Reading Articles 14 (equality), 19 (freedoms) and 21 (life and liberty) together – the so-called golden triangle – which was occasionally determined in Maneka Gandhi v. Union of India (1978) – the Court held that any law depriving a person of liberty could not be merely procedurally good, but had to be also just, fair, and reasonable.
3. Convincing international law support- article 51(c) in the Constitution instructs the State to promote a positive attitude towards international law. The Court relied on Article 12 of the Universal Declaration of Human rights and Article 17 of a document (the International Covenant on Civil and Political Rights) that specifically identifies privacy as a human right.
4. Comparative constitutionalism- The survey of privacy jurisprudence of the United States of America ( + Griswold v. Connecticut ), the United Kingdom, South Africa and Canada, confirms that privacy protection is a near-universal constitutional value.
Altogether, the four strands make the “proof” – a constitutional argument of a composite, but not isolated referencing.
CASE LAWS: THE COURT TRACK.
1. M.P. Sharma v. Satish Chandra(1954)
A panel of eight judges ruled that a right to privacy akin to the Fourth Amendment in America was not a right that was acknowledged in the Indian Constitution. This case was later conceded as per incuriam by the Puttaswamy bench.
2. Kharak Singh v. State of U.P.(1962)
A six-judge bench ruled not only nocturnal domiciliary visits by police to be violative of individual liberty, but declared that privacy was not a right of Citadel but a controversial one. The strong protest against the violation of privacy, by a Supreme Court judge, Justice Subba Rao, was later justified by history.
3. Govind v. State of M.P. (1975)
Carefully accepting the right to privacy, but on reasonable limitations created by compelling state interest, the Court drew inspiration to American jurisprudence.
4. State of Tamil Nadu v. R. Rajagopal (1994)
The case, commonly abbreviated as the Auto Shankar case, the Court decided that the right to privacy was an implicit right in Article 21 and provided a means of maintaining a person against unauthorised publicity of personal affairs with exceptions to the rule of making a record of the person and the actions of a public official in the performance of their duties.
5. PUCL v. Union of India (1997)
With regards to telephone tapping, the Court determined that right to privacy would be infringed upon through the tapping of telephonic conversations without adhering through just, fair and reasonable procedures; thus, intersecting the privacy with procedural safeguards.
CONCLUSION
The developmental trend between the unconditional dismissal of privacy by M.P. Sharma on the one hand, and the categorical assertion of privacy by Puttaswamy on the other highlights just how constitutional interpretation has junked power to change. It is no longer a peripheral or Borrowed Concept of Privacy is now deeply entrenched in the golden triangle of Articles 14, 19, and 21. This acknowledgement does have far-reaching implications – it supports the soundness of laws on data protection, holds back unreasonable state monitoring, and protects the most personal decisions that people make in regard to their body, relationships, and faith.
But the right is still a work of progress. The ambiguity in horizontal application in relation to private corporations, exact scope of the Digital Personal Data Protection Act, 2023 and the dualistic approach to national security and individual privacy in the age of mass surveillance are yet unresolved. The job of the judiciary in the future is to see that the doctrinal promise of Puttaswamy is followed by strong legislative and executive action – an undertaking which, in the constitutional meaning of the word, is yet to be carried out.
FREQUENTLY ASKED QUESTIONS (FAQ).
Q1. Does India have an absolute right to privacy?
No. It is open to reasonable restrictions which must meet the proportionality test – legality, legitimate state purpose, necessity and balancing.
Q2. Which was the initial case in India wherein privacy was declared as fundamental right?
Judged by a nine-judge Supreme Court bench, consisting of Justice K.S. Puttaswamy (Retd.) v. Union of India in 2017.
Q3. Does the right to privacy extend to include the State, as well as to private companies?
First of all, it is applicable vertically on the State. Nevertheless, laws such as the Digital Personal Data Protection Act, 2023 impose some privacy requirements on privacy fiduciaries (horizontally).
4. What is the relation of privacy to the Aadhaar scheme?
The Aadhaar-related petitions presented by Aadhaar to the court were the genesis of the litigation which was named the Puttaswamy. The Court subsequently affirmed Aadhaar regarding its welfare use but invalidated some of its compulsory connections, using the proportionality criterion.
Q5. What does the Indian constitutional law express as the golden triangle?
It is the joint, interventional reading of the Articles 14, 19 and 21 agreed in the case of Maneka Gandhi v. Union of India (1978) that acted as the foundation of reviewing the constitutionality of legislation dealing with the liberty of personal life, such as privacy.
