RIGHT TO PRIVACY: AN EMERGING CONSTITUTIONAL RIGHT

ABSTRACT

The right to privacy, though not directly mentioned in the Indian Constitution, but the courts has been recognized it as an essential fundamental right. It is important to mention that at first, there was initial denial in cases like M.P. Sharma vs Satish Chandra as well as Kharak Singh vs State of Uttar Pradesh. But later, in the important landmark case which was Justice K.S. Puttaswamy (Retd.) vs Union of India, in this case the Hon’ble Supreme Court clearly said that the right to privacy is a fundamental part of our life and personal liberty under Article 21 of the Indian Constitution. In today’s digital era, privacy is challenged by mass surveillance, exploitation of personal data and emerging technologies. In this Article examines the constitutional and statutory framework, important judicial pronouncement and resent legislative developments such as the Digital Personal Data Protection Act, 2023. It also examines the gaps in enforcement, suggests ways to reform them and compares India’s approach with foreign models to maintain a balance between individual liberty and state interests.

INTRODUCTION

Over the times, the Hon’ble Supreme Court, through evolving jurisprudence, has made it clear that the right to privacy is a part of Article 21 of the Constitution which protects people’s personal liberty, emphasizing dignity, as well as freedom from arbitrary intrusion and also it states that the privacy is important for living with dignity in the society. In the cases of early judgments, such as M.P. Sharma vs Satish Chandra and Kharak Singh vs State of U.P., the Court denied privacy as a constitutional right. [1]Over time period, cases such as PUCL vs Union of India, (1997), and in the case of Justice K.S. Puttaswamy (Retd.) vs Union of India, (2017), is recognized right to privacy as a fundamental right under these Article of the Indian Constitution.[2][3]

In today’s digital era, privacy is not just about protecting our physical space, but it also including our right to protecting our personal information, keep our online activity private and our right to make our own decisions freely. This Article looks at how explores the development of the idea of privacy laws in India. It examines how the court and explains the right to privacy along with the recent laws and policies such as the Digital Personal Data Protection Act, 2023 and discusses the highlights challenges problems we still face, including surveillance technologies, weak dada protection laws and cultural factors. It argues that even though privacy is recognized by the Constitution, its effective protection requires needs stronger laws and institutional safeguards.

RESEARCH METHODOLOGY

This article uses a legal researched method which is based on studying and analyzing existing laws. It refers to primary legal sources including the Constitution of India, Hon’ble Supreme Court Judgments, the executive notifications and the Digital Personal Data Protection Act, 2023. Secondary sources including things like scholarly articles, expert committee reports, media coverage and international instruments such as the Universal Declaration of the human Rights, 1948, as well as the International Covenant on Civil and Political Rights, 1966. The doctrinal method studies how privacy laws and court decisions have changed over the time. while the analytical approach examines where enforcement is gap, reviews policy measures and comparative perspectives from foreign jurisdictions.

LEGAL FRAMEWORK

In the Indian Constitution though not expressly mentioned the right to privacy. The judiciary has recognized this right is a part of Article 21- which protects life and personal liberty and also as implicit to the Article 19(1)(a) and 19(1)(d) which is concerning to the freedoms of expression and movement.

• Article 21: Expanded interpretation in the case of Maneka Gandhi vs Union of India, (1978), in this case held that it links privacy to dignity, bodily autonomy, and personal choice.[4]
• Article 19: Of the Constitution guarantees lays down that– Freedom of speech and movement which intersect with the right to privacy, especially regarding in the contexts such as surveillance and media regulation.
• International Influence: like Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights, basically which protect people from both of which prohibit arbitrary interference with an individual’s privacy.

 Statutory Law: Here, it mentioned The Information Technology Act, 2000 (under Section 43A, 72A) which offered limited protection against data misuse. The Digital Personal Data Protection Act, 2023, it was introduced of the rule that require consent for using personal data, set responsibilities for those handling the data and made ways for people to rise complaints. However, it still allows the government broad significant exemptions, which is concern.

Thus, India’s privacy framework is shaped by how the constitutional is interpretation, statutory safeguards and international commitments, with the judiciary playing a vital role in the recognition as well as the evolution of the right to privacy.[5]

JUDICIAL INTERPRETATION

Early Denial:

• P. Sharma vs Satish Chandra, (1954): In this case, the court held that the right to Privacy explicitly denied as a fundamental right under the constitution.
• Kharak Singh vs State of U.P. (1963): In this case, the court cancelled some parts of the Police surveillance but still did not right of privacy not recognized directly as a fundamental right in the Constitution.

Gradual Recognition:

• In the case of Gobind v. State of M.P., (1975): Here, the privacy acknowledged as implicit in Article 21.
• And the case of PUCL v. Union of India, (1997): Here, the telephone tapping recognized as infringing informational privacy; procedural safeguards mandated.

Landmark Recognition:

• In the case of Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017): Here in this case, nine-judge bench unanimously declared privacy a fundamental right under Article 21, encompassing bodily, informational, and decisional autonomy.

Post-Puttaswamy:

• In Aadhaar Case, (2019): In this case the affirmed privacy but allowed limited state intrusion for welfare programs with safeguards.
• In the case of Anuradha Bhasin v. Union of India, (2020): Here, the internet shutdowns violate privacy and freedom of expression; necessity and proportionality emphasized.[6][7]
• In this case, Navtej Singh Johar v. Union of India, (2018): The case held on Sexual orientation linked to privacy and dignity.

Here, it is noticed that the Trend- from initial denial, through gradual recognition, to eventual constitutional entrenchment. A progression from rejection to formal, lasting legal acceptance.[8]

CRITICAL ANALYSIS

Despite the landmark Puttaswamy judgment, privacy enforcement in India continues to face several challenges. Before it was introduced the Digital personal Data Protection Act, 2023 (DPDP), legal safeguards for data protection were fragmented and not well- organized, especially when compared to the more and stronger more structured rules in the European Union’s General Data Protection Regulation (GDPR). State surveillance is remains a serious concern, as shown by the Pegasus spyware case, which exposed that how much power extent of the government can use without proper checks. In the United States, where the Fourth Amendment ensure that they protect people from unreasonable searches and courts make sure the government follows the rule. In India’s surveillance system mainly controlled by the government itself, under laws such as under Section 5(2) of the Telegraph Act and Section 69 of the Information Technology Act, with minimal independent oversight or checks. Also, privacy in India is about the data or surveillance- it’s also connected to a strong cultural and personal life, intersecting with issues such as family life, sexuality, and the right to make personal choices. [9]This has been supported in the important court cases like Navtej Singh Johar (which decriminalized homosexuality) and Joseph Shine case (which struck down the adultery law).[10]

COMPARATIVE PERSPECTIVE

From a comparative perspective, the GDPR in the EU provides strong default protections, while the U.S. emphasizes judicial oversight, despite lacking a comprehensive federal data protection law. In contrast, India has constitutionally recognized the right to privacy, but continues to struggle with enforcement gaps, limited oversight, and the need for more rigorous statutory safeguards. [11]

RECENT DEVELOPMENTS

• DPDP Act, 2023: Introduces consent-based processing, fiduciary accountability, and grievance redressal. Broad government exemptions criticized by civil society.
• Pegasus Controversy (2021): Alleged surveillance of journalists and politicians, SC committee investigated; final report inconclusive.
• Internet Shutdowns: Repeated in Jammu & Kashmir, Anuradha Bhasin emphasized necessity/proportionality, but India still leads in shutdowns.
• AI & Emerging Tech: Facial recognition and predictive policing pose new risks; EU AI Act offers a model, India lacks regulation.
• Judicial Expansion: Privacy linked to sexual orientation (Navtej Singh Johar) and personal autonomy (Joseph Shine).

Public discourse emphasizes the need for stronger oversight, transparency, and civil participation in privacy regulation.

CONCLUSION

Privacy is a cornerstone of liberty and dignity in India. From denial in M.P. Sharma and Kharak Singh to recognition in Puttaswamy, jurisprudence reflects dynamic constitutional interpretation. However, enforcement gaps, surveillance overreach, weak statutory safeguards, and digital threats highlight the fragility of privacy. Comparative models, such as GDPR and U.S. judicial oversight, demonstrate the importance of independent institutions and robust legal frameworks. India must ensure privacy is a lived reality, balancing security with personal autonomy, as the nation deepens its digital engagement. Strong legislative, judicial, and civil society mechanisms are essential for privacy to remain a meaningful constitutional right

REFERENCE(S):

[1] M.P. Sharma v. Satish Chandra, AIR 1954 SC 300

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

[3] PUCL v. Union of India, (1997) 1 SCC 301.

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

[5] Information Technology Act, 2000, §§ 43A, 69, 72A (India).

[6] K.S. Puttaswamy v. Union of India (Aadhaar Case), (2019) 1 SCC 1.

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

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

[9] Digital Personal Data Protection Act, No. 22 of 2023, India Code (2023).

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

[11] Regulation (EU) 2016/679, General Data Protection Regulation & European Union Artificial Intelligence Act, 2023, COM/2021/206 final.