“The right to privacy, in any event, will necessarily have to go through a process of a case-by-case development”- Lord Denning
The recent 9-judge bench judgment of the Supreme Court of India, making the right to privacy a constitutional right is a landmark judgment. It affirms that the scope of Article 21 of the Constitution does include privacy, overruling two previous of the Supreme Court judgment. The authority linked to the judgment sets the tone for all interpretations of ‘privacy’ in the legal as well as the legislative sphere. For instance, Section 377 of the Indian Penal Code 1860 which criminalizing homosexual relationships can also be questioned on the basis of the right to privacy.
However, it is important to realize that the transition from M. P. Sharma and Kharak Singh to the Puttaswamy judgment (recent 9-judge bench judgment) is not incidental but gradual. Like most other legal systems the Indian legal system has also taken its time in trying to clear the vagueness around this concept of Privacy that has always existed. It is interesting to note that in the discussions of Constituent Assembly K. S. Karimuddin had initiated an amendment on the lines of the US Constitutional Amendment, which however did not garner enough support to incorporate the right to privacy in the constitution.
In 1954, in the M.P. Sharma Case, the Supreme Court while deciding on the issue of ‘power of search and seizure’ held that they can not bring privacy as the fundament right because it is something alien to Indian Constitution and constitution maker does not bother about the right to privacy. This observation was upheld and reaffirmed in a number of other cases.
After this, in Kharak Singh Case, Supreme Court on the issue of surveillance under the U.P. Police Regulations is amounted to infringement of fundamental right, had denied the right to privacy as fundamental right and had concluded that “the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III”. However, the impugned Act was struck down under the provisions of Article 21 of the constitution. Subba Rao J., recognizing the value of privacy had noted in the judgment, “… but as civilizations advance the psychological restraints are more effective than physical ones”
Therefore, while there did exist a narrative over expanding the scope of personal liberty beyond a physical restriction, especially making ‘personal liberty’ means more than mere animal existence, the view to include privacy in it was absent. It was in the case of Govind v. State of Madhya Pradesh that the right to privacy was discussed and analyzed. However, the judges, in this case, could not ascertain the status of ‘Right to Privacy’ but passed on the burden of the same to the subsequent judgments. It is important to realize that the approach was not faulty since a developing a concept which is good in law has to be gradual, in order for it to be acceptable and not imposing. This case was helpful in the way that it interpreted the objectives of the makers of the Constitution and then broadened the scope of Article indicating that the right to privacy could fall under it. It was noted in the decision that:
“…. ‘Liberty against government’ a phrase coined by Professor Corwin expresses this idea forcefully. In this sense, many of the fundamental rights of citizens can be described as contributing to the right to privacy.”
In broadening the scope of Article 21, the case of Maneka Gandhi v Union of India played a very important role. The Supreme Court, in this case, held, that both the rights of personal security and personal liberty recognized by what Blackstone termed ‘natural law’ are embodied in Article 21. And Article 21 is of the widest amplitude and covers a variety of rights which go to constitute the personal liberty of man.
In the case of Neera Mathur v LIC, the Supreme Court held that declarations seeking disclosures from lady candidate regarding her personal problems (menstruation) are not only embarrassing and improper but lead to the violation of her right to privacy. In the case of Indian Express Newspaper (Bombay) Pvt. Ltd. v Union of India which was reaffirmed in the case of Life Insurance Corporation of India v Prof. Manubai D. Shah, the Supreme Court recognized that in a democratic society right to privacy should be recognized, even though the issues of these cases were not exclusively related to the right to privacy.
Further in the case of Unni Krishnan v. State of A.P. the Supreme Court included the right to privacy as a part of the twelve meaning of the right to life. In R. Rajagopal alias R. R. Gopal v State of Tamil Nadu,the Supreme Court went through the entire jurisprudence of right to privacy, its evolution and scope; and this fulfills gaps of Govind Case. The Court held that the right to privacy is implicit in the right to life and liberty guaranteed by Article 21.
In the case of People s Union for Civil Liberties (PUCL) v Union of India where the issue was related to phone tapping, Supreme Court held that conversations on the telephone are often of an intimate and confidential character and telephone-conversation is a part of modern man’s life and also said that whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case.
In State of Karnataka v. Krishnappa, Supreme Court linked the child rape to the right to privacy. In State of Karnataka v. S. Nagaraju and in Sudhansu Sekhar Sahoo v. State of Orissa, Supreme Court accepted the same thing. Supreme Court used the concept of the right to privacy to enhance the degree of punishment. Again in State Of Madhya Pradesh v. Babulal, Supreme Court again considered that Sexual violence apart from being a dehumanizing act is also an unlawful intrusion of the right to privacy and sanctity of a female.
In Directorate of Revenue v. Mohammed Nisar Holia, Supreme Court observed that although a statutory power to make a search and seizure by itself may not offend the right of privacy but in cases like the current one, the least that a court can do is to see that such a right is not unnecessarily infringed. It held that the right to be let alone (right to privacy) is recognized to be a right which would fall under Article 21 of the Constitution of India.
In Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat, Supreme Court held that “What one eats is one’s personal affair and it is a part of his right to privacy which is included in Article 21 of our Constitution as held by several decisions of this Court.”
Therefore, the evolution of the right to privacy has been gradual in a way that the concept of privacy and its inclusion in Article 21 has been discussed and analyzed in specific scenarios and in respect to other provisions as well.
 M.P. Sharma v. Satish Chandra, 1954 AIR 300.
Kharak Singh v. The State Of U. P. & Others, 1964 SCR (1) 332.
M.P. Sharma v. Satish Chandra, 1954 AIR 300.
Kharak Singh v. The State Of U. P. & Others, 1964 SCR (1) 332.
1950 AIR 27, 1950 SCR 88.
1975 AIR 1378.
 1978 AIR 597, 1978 SCR (2) 621.
1992 AIR 392, 1991.
1986 AIR 515.
1993 AIR 171, 1992 SCR (3) 595.
1993 AIR 2178, 1993 SCR (1) 594.
1995 AIR 264, 1994 SCC (6) 632.
AIR 1997 SC 568, JT 1997 (1) SC 288.
2000 CriLJ 1793, JT 2000 (3) SC 516.
2002 (2) ALD Cri 643, JT 2002 Suppl 1 SC 7.
2003 Crl.LJ 4920.
 2007 (12). SCR 795.
2007 (12) SCR 906, 2008 (2) SCC 370.