The earliest recordings of 'right to privacy' in Indian jurisprudence were in the late 1800s when a local British court upheld privacy of a pardanashin woman to access her balcony without the fear of the neighborhood gaze. The jurisprudence has evolved ever since and the right to privacy was read into ‘Article 21’ of our Constitution by the Supreme Court as an integral part of ‘personal liberty’. Like most freedom, we took it for granted, until last year our government told us that privacy is not a fundamental right after all.
That privacy is not a fundamental right was first told to us by the Supreme Court in the year 1954. An eight-judge bench in M.P. Sharma v. Satish Chandra case, while dealing with the power to search and seize documents from the Dalmia Group, dismissed the existence of a right to privacy on the basis that the makers of Constitution had not envisaged a fundamental right to privacy similar to the 4th Amendment in the U.S.
Our desire for a private life made a comeback after nine years before a six-judge bench of the Supreme Court in the case of Kharak Singh v. State of Uttar Pradesh, only to be rejected again. Kharak Singh, an alleged dacoit, was subjected to surveillance and secret picketing of the house, visits at nights, periodical inquiries and verification of movements. The Supreme Court refused to budge and held that there is no fundamental right to privacy but went on to strike down the provision which allowed night visits for violation of ‘personal liberty’. The silver lining was Justice Subba Rao’s dissent, wherein he said even though the Constitution did not declare the right to privacy to be a fundamental right, it was still an essential ingredient of personal liberty. He went on to say "…nothing is more deleterious to a man's physical happiness and health than a calculated interference with his privacy," thereby recording the existence of this right in our post-independence jurisprudence.
Twelve long years later, the Supreme Court, albeit a smaller three-judge bench, when faced with a similar factual matrix in Gobind v. State of Madhya Pradesh, upheld the existence of a fundamental right to privacy under Article 21. However, the right was not absolute and could be interfered with by a procedure established by law. Though Gobind lost, privacy won for the first time!
Privacy jurisprudence was further strengthened in the post-liberalisation era. In the case of the infamous gangster from Bangalore, "Auto Shanker" (R. Rajagopal v. State of Tamil Nadu), the Supreme Court dealt with a conflict between the freedom of press and the right to privacy and held that the latter had acquired a Constitutional status. A couple of year later in the PUCL case, the court questioned the telephone tapping of prominent politicians and asked the government to comply with strict guidelines for tapping telephonic conversations. The provisions under the Telegraph Act, 1885, and Information Technology Act, 2000, that deals with interception are based on the guidelines issued by the Supreme Court in the PUCL case.
By this time, privacy had assumed an inherent role in our fundamental rights jurisprudence that helped us lead a dignified life without fearing surveillance. It never faced such a strong challenge in the last 54 years of its existence as it is currently facing before the nine-judge bench which is looking into whether the decisions in M.P. Sharma and Kharak Singh are good law.
So, what happens if tomorrow we are told that the right to privacy is not a fundamental right? The right to privacy will lose its status amongst the Golden Trinity of Article 14 (Equality), Article 19 (Fundamental Rights) and Article 21 (Right to Life). These rights can only be taken away from us by a just and reasonable law, which is the paramount protection that our Constitution offers us. If privacy is not a fundamental right, this intrinsic right can be taken away by our legal system. In the Aadhaar era, where our right to life and liberty is liked to our identity in the form of Aadhaar, the consequences could be disconcerting, to say the least.
(Nikhil Narendran is a partner at Trilegal. The views expressed here are personal and not of the firm)
