Privacy, though often considered a natural human right, was for long not expressly recognized in the Indian Constitution. The framers of the Constitution did not explicitly include it within the catalog of fundamental rights, leading to judicial debates on its existence and scope.
The landmark judgment in Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) finally settled the question, holding that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21, as well as other fundamental rights. Since then, Indian courts and legislatures have been shaping the contours of privacy in the digital age.
Privacy Before Puttaswamy: A Patchwork Doctrine
Earlier decisions reflected uncertainty:
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In M.P. Sharma v. Satish Chandra (1954), the Supreme Court rejected privacy as a fundamental right in the context of search and seizure.
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In Kharak Singh v. State of U.P. (1962), the majority again denied privacy as a right, though Justice Subba Rao’s dissent argued that liberty inherently includes privacy.
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Later cases, like Gobind v. State of M.P. (1975) and R. Rajagopal v. State of Tamil Nadu (1994), cautiously recognized aspects of privacy, but without a definitive constitutional foundation.
This doctrinal inconsistency led to the need for a clear pronouncement by a larger bench.
The Puttaswamy Judgment (2017): A Turning Point
A nine-judge bench of the Supreme Court unanimously held that:
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Right to Privacy is a Fundamental Right under Part III of the Constitution.
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Privacy is not absolute but subject to reasonable restrictions based on legitimate state interests.
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Any infringement of privacy must meet the three-fold test:
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Legality: Backed by law.
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Necessity: For a legitimate state aim.
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Proportionality: Extent of infringement must be proportionate to the need.
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The Court drew from international jurisprudence, including Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights.
Post-Puttaswamy Developments
1. Data Protection and Digital Privacy
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The judgment laid the foundation for India’s data protection regime.
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In response, the Digital Personal Data Protection Act, 2023 was enacted, providing individuals with rights over their personal data and placing obligations on data fiduciaries.
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Courts have since stressed data privacy in contexts like Aadhaar (see Puttaswamy II (2018), where Aadhaar was upheld but with restrictions on private use).
2. Surveillance and State Powers
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Privacy concerns arise with state surveillance mechanisms under the Telegraph Act, IT Act, and surveillance rules.
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In Anuradha Bhasin v. Union of India (2020), the Supreme Court held that restrictions on internet access must be necessary, proportionate, and temporary, linking privacy to freedom of speech and trade.
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Pending cases challenge the constitutional validity of mass surveillance and interception frameworks.
3. Privacy in Personal Choices
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The Court in Navtej Singh Johar v. Union of India (2018) decriminalized same-sex relations, citing privacy and dignity as fundamental to autonomy.
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In Joseph Shine v. Union of India (2018), adultery was decriminalized, reaffirming privacy in intimate personal relationships.
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Privacy has thus been central in strengthening individual autonomy in matters of sexuality, marriage, and family life.
4. Privacy vs. Public Interest
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The recognition of privacy has sparked debates about its limits when weighed against competing state interests such as security and transparency.
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For instance, in the Aadhaar case, while individual privacy was upheld, the Court permitted Aadhaar authentication for welfare schemes, highlighting the balance between privacy and social objectives.
Challenges and Unresolved Issues
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Comprehensive Data Protection Enforcement: Though the DPDP Act, 2023, is enacted, questions remain about enforcement, exemptions for state agencies, and independence of the Data Protection Board.
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State Surveillance: The extent of permissible surveillance in the name of national security remains undefined. Lack of transparent oversight mechanisms continues to threaten privacy rights.
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Technological Advances: With AI, facial recognition, and digital profiling, new privacy concerns arise that existing frameworks may not adequately cover.
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Balancing Competing Rights: Privacy often conflicts with transparency, public safety, and freedom of expression, requiring a nuanced, evolving approach.
Conclusion
The recognition of the right to privacy as a fundamental right in Puttaswamy marks a constitutional watershed in India. It has expanded the meaning of liberty and dignity under Article 21, reshaping areas from data protection to personal autonomy.
However, privacy remains a qualified right. Its true protection will depend not only on judicial vigilance but also on robust legislation, institutional safeguards, and public awareness in an era where technology enables both empowerment and intrusion.
In sum, Puttaswamy was not the end but the beginning of India’s privacy journey, one that will continue to evolve with changing societal values and technological realities.