The issue of whether Right of Privacy is a fundamental right under the Constitution is being heard by a nine-judge Constitution Bench of the Supreme Court of India and has a direct bearing on the Court’s mandate to examine the Constitutional validity of the Aadhaar scheme.

The definition of Right to Privacy varies according to the perceptions and contexts in which it is used; however, its simplest definition is the right to be left alone. Its diverse manifestations include protection of one’s honour, reputation, not to be eavesdropped, one’s home being one’s castle, personal belongings and data being inviolable, personal choice in all aspects of living, a protective arc against arbitrary intrusions and so on.

Although the Right to Privacy is not explicit in the Constitution of India, it is a subject matter of judicial interpretation. In the United States, courts did not protect this right until the end of the 19th century. Samuel Warren and Louis Brandeis (1890) developed the concept of privacy; and wrote that privacy is the "right to be let alone". Many cases related to right to privacy came before the Courts in the United States for adjudication and the first American Court to deal with this right was the New York Appellate Court in Roberson v. Rochester Folding Box Co. (1902).

Chief Justice Parker ruled that the defendants had invaded the Plaintiff’s right coined as “right to privacy”. In modern India, the first time the issue of right to privacy was discussed and debated in the Constituent Assembly was by K.S. Karimuddin who moved an Amendment on the lines of the US Constitution which eventually failed. The concept of privacy can be traced back to the ancient Hindu texts.

According to Hitopadesha, certain matters like worship, sex and family matters etc. should be protected from disclosure. Ancient Indian law-givers declared “Sarve sve sve grihe raja” (Every man is a king in his own house). In the Mahabharata, Draupadi was the common wife of the five Pandavas and they accorded utmost priority to privacy by framing a rule to avoid embarrassment – if by chance, any of them happened to see Draupadi in company of any brother he would have to undergo banishment for 12 years in the forest as a ‘Bramhachari’.

Right to privacy is an amorphous and protean concept that emerges from values and principles evolved by the Courts in the form of case laws over so many years. The Supreme Court, through a catena of judgments, has asserted that Article 21 is the heart of the fundamental rights and is multi-dimensional.

A combined reading of the observations by Constitutional Benches of the Supreme Court in M.P. Sharma v. Satish Chandra (1954) and Kharak Singh v. State of U.P (1963) can lead to the conclusion that no fundamental right to privacy exists in our Constitution. But through later judgments in Gobind (1975) and Maneka Gandhi (seven judges, 1978), the Apex Court has enunciated that right to privacy is embedded in our jurisprudential foundation. Following these two path breaking judgments, many judicial pronouncements have iterated the existence of the right to privacy under PartIII of the Constitution.

These include Malak (1981), Rajagopal (1994), PUCL(1997), District Registrar (2005), Suchita ( 2009), Selvi (2010) and Nalsa(2014). In the year 2002, the National Commission to Review the Working of the Constitution recommended amending the Constitution to include a slew of new rights including the Right to Privacy which would be numbered Article 21-B and would read as follows: “21-B. (1) every person has a right to respect for his private and family life, his home and his correspondence. (2) Nothing in clause (1) shall prevent the State from making any law imposing reasonable restrictions on the exercise of the right conferred by clause (1), in the interests of security of the State, public safety or for the prevention of disorder or crime, or for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Thus the Right to Privacy, although not expressly found in the Constitution, is deeply engrained in Part III of the Constitution and detraction from the same is constitutionally impermissible. Unlike the Constitution which has not expressly recognised Right to Privacy, the said right has been acknowledged in various statues, both pre- and post Constitutional, which maintain that the right to privacy is sacrosanct and special procedures have been established in such laws to create any curb or fetter on any aspect of the right to privacy.

Reference is made to the Indian Post Office Act, 1898, the Indian Telegraph Act, 1885, Information Technology Act, 2005 to name a few. Presently, India does not have a sui-generis statute that safeguards privacy horizontally. In 2011, the UPA government finalised a draft Bill on privacy, and set up a Committee of Experts headed by Justice AP Shah to, among other things, “study the privacy laws and related Bills promulgated by various countries” and “to make specific suggestions for consideration of the Government”.

The panel recommended a new law to protect privacy and personal data in the private and public spheres, and the appointment of privacy commissioners at the Centre and in states. It listed nine principles of privacy, as also certain exceptions to the right to privacy – such as national security, public order, disclosure in public interest, prevention, detection, investigation and prosecution of criminal offences and protection of the rights of freedom of others. The Government of India, speaking through its Attorney-General, has reiterated its position that Indian citizens have no constitutional right of privacy.

The poor, who are the beneficiaries of so many government welfare schemes including continuance of subsidy payments and other benefits, must be prepared to surrender their right of privacy, if any, in order to receive the benefits. But India needs to resolve the Aadhaar controversy by recognising the importance of Aadhaar for efficient and honest delivery of welfare schemes without compromising the right to privacy of the citizens.

Most modern democratic nations are constantly striving to strike a fine balance between personal privacy and public safety.

There is a misplaced apprehension and flawed logic in Government’s position on this issue that if the right to privacy is elevated to the status of Fundamental Rights, the government will be impotent and the said right would make the citizens inviolable and invincible. India is waiting for an unequivocal and a definitive clarity on this vital aspect which is still in the legal womb.

(The writer is a Supreme Court Advocate.)