Puttuswamy v Union of India (“Aadhaar case”) has been referred to a larger constitutional bench in order to decide whether right to privacy is a fundamental right guaranteed to Indian citizens. The Attorney General argued that in the MP Sharma case (eight judge bench) and Kharak Singh case (six judge bench), the Supreme Court had categorically refused to include the right to privacy as a fundamental right. In light of these two cases, he argued that subsequent Supreme Court decisions such as Gobind v State of MP and R.Rajagopal v State of Tamil Nadu, where privacy was read into Article 21, could not be relied upon. While the Court will decide the question, I will attempt to answer the same question in this paper by analysing available jurisprudence. Essentially, I have three arguments in favour of the research question.

Firstly, MP Sharma is not a valid precedent for this question. In the MP Sharma case, the question was whether the power of search and seizure under Code of Criminal Procedure given to the police violates Article 20(3) (right against self incrimination i.e. right of accused to not give evidence). Court answered the question in the negative while adopting the literal rule of interpretation and observed that right to privacy cannot be read into Article 20(3). It is arguably a mere observation and not part of the ratio as the question of whether right to privacy is part of fundamental rights was not posed before the Court.

Secondly, Kharak Singh in fact impliedly read right to privacy under Article 21 (right to life and personal liberty) and therefore, the reliance on it by the Attorney General is troublesome. In Kharak Singh v State of UP, a surveillance case, the judgment could be divided into a discussion of two issues. The first issue was that the provisions for shadowing a person with a criminal record were held to not violate Article 19(1)(d) (free movement) as the right to privacy was not guaranteed in the Constitution.

The second issue was whether the provision regarding domicile visits by the police was held to violate Article 21. Court held that personal liberty in Article 21 is comprehensive to include all varieties of rights which go to make up the personal liberty of a man other than those dealt with in Article 19(1) (d). Regarding personal liberty, the Court opined: Is then the word personal liberty to be construed as excluding from its purview an invasion on the part of the police of the sanctity of a man’s home and an intrusion into his personal security and his right to sleep which is the normal comfort and a dire necessity for existence even as an animal? It might not be inappropriate to refer here to the words of the preamble to the Constitution that it is designed to assure the dignity of the individual and therefore of those cherished human value as the means of ensuring his full development and evolution.

Additionally, the Court analysed American jurisprudence which dealt with the right to privacy. The Court quoted the following paragraph from Wolf v Colorado (1949) US 2:

“The security of one‘s privacy against arbitrary instruction by the police… is basic to a free society. It is therefore implicit in the concept of ordered liberty and as such enforceable against the States through the Due Process Clause.”

While the Court acknowledged that India does not have an equivalent of the Fourth Amendment (right to privacy in US), it ruled that an intrusion into a person’s home violates “an ultimate essential of ordered liberty, if not of the very concept of civilization.”

Court eventually struck down the provision regarding domicile visits as it was against the concept of personal liberty enshrined in Article 21 and held that no law could justify such a provision.

Based on the above paragraphs, one can thus argue that Court may have implicitly read the right to privacy under Article 21 while refusing to read it under Article 19 (1)(d). Moreover, the widely acclaimed minority opinion rendered by Justice Subba Rao categorically read right to privacy as an essential ingredient of personal liberty under Article 21.

This is probably what Supreme Court was implying in the PUCL case when it interpreted Kharak Singh in the following fashion.

Article 21 of the Constitution has, therefore, been interpreted by all the seven learned Judges in Kharak Singh’s case (majority and the minority opinions) to include that right to privacy is a part of the right to protection of life and personal liberty guaranteed under the said Article.

Thus, the Attorney General’s reading of the Kharak Singh judgment may not be correct.

Moreover, post Kharak Singh, there have been a slew of cases which have read right to privacy as part of Article 21. The first case to categorically do so is undoubtedly Gobind v State of MP. Nonetheless, Court had provided a qualifier that this right could be restricted by a compelling state interest.

Thirdly, the Supreme Court’s manner of interpreting fundamental rights has changed significantly from the 1950s and 1960s when MP Sharma and Kharak Singh were decided. In those days, the Court believed in compartmentalising fundamental rights and was of the view that these rights were mutually exclusive.

For instance, in Kharak Singh, the right to privacy was separately tested against Article 21 and Article 19(1)(d). However, in Maneka Gandhi v Union of India, a 1980s case, the Court held that Articles 14, 19 and 21 formed a golden triangle and were intrinsically linked with each other.

The right to privacy derives its strength from a number of fundamental rights and therefore, cannot be compartmentalised anymore. Both in MP Sharma and Kharak Singh, right to privacy could not be read into specific fundamental rights i.e. article 20(3) and Article 19(1)(d) respectively. However, post the Maneka Gandhi case, since compartmentalisation of these rights was done away with, the basis of these cases may have been diluted significantly.

If we apply the literal rule of interpretation to read Chapter III of our Constitution then the Attorney General’s argument would be undoubtedly correct as the right to privacy has not been included in the wording of this Chapter. However, the Constitution is not a mere statute but it is the foundation for societal norms in a country and therefore while interpreting it, it is important to look beyond the mere text.

Thus, a closer look at this Chapter will make us realise that the right to privacy is intrinsically linked to the other fundamental rights. The right to move freely, the right to freely express one’s opinion and personal liberty will only survive when the individual has got the right to privacy. For instance, let us assume that the State has a rigorous surveillance system where every move of the individual is being tracked. Then, naturally, the individual would be self censoring his speech, restrict his movement in order to avoid harassment and as a result his personal liberty would be threatened. Therefore, the failure to recognise the right to privacy as a fundamental right may render some of these other rights meaningless. This is precisely why the Supreme Court has over the years read this right as a fundamental right.

Therefore, in light of the three above arguments, in my humble opinion, the Attorney General’s argument that right to privacy is not a fundamental right poses a problem.

The writer is a fifth-year student of the West Bengal National University of Juridical Sciences, Kolkata.