The Historical Perspective in Indian Constitutional Law: Examining the Proposition that the Right to Privacy is Not a Fundamental Right

The Historical Perspective in Indian Constitutional Law: Examining the Proposition that the Right to Privacy is Not a Fundamental Right

Introduction

The discourse surrounding the right to privacy within the Indian constitutional framework has been marked by a significant evolutionary trajectory. While contemporary jurisprudence firmly establishes the right to privacy as a fundamental right, an examination of historical judicial pronouncements reveals a period where its status was considerably more ambiguous. This article delves into the legal reasoning and judicial interpretations, based on the provided reference materials, that supported the proposition that the right to privacy was not, in an explicit or standalone sense, a fundamental right under the Constitution of India. It explores the nuances of non-enumeration, judicial hesitancy, the concept of privacy as an inferred right, and explicit statements from various courts that questioned or limited its fundamental character prior to definitive clarifications by larger benches of the Supreme Court.

Early Judicial Stance: Non-Enumeration and Interpretative Hesitancy

A primary strand in the argument against privacy as a fundamental right stemmed from its conspicuous absence from the explicit enumeration of fundamental rights in Part III of the Constitution. Early judicial considerations reflected this textual reality, leading to cautious interpretations when privacy claims were raised.

The Shadow of M.P. Sharma and Kharak Singh

The Supreme Court's decision in M.P. Sharma v. Satish Chandra (AIR 1954 SC 300), as noted in later analyses, is considered one of the early cases that indicated a position contrary to recognizing privacy as a fundamental right (Central Public Information Officer, Supreme Court Of India (S) v. Subhash Chandra Agarwal (S), 2019). This set a particular tone for subsequent deliberations.

Following this, the majority opinion in Kharak Singh v. State Of U.P And Others (1963 SCC 0 1295) did not explicitly endorse a general fundamental right to privacy. While Regulation 236(b) of the Uttar Pradesh Police Regulations, authorizing domiciliary visits, was struck down as violative of personal liberty under Article 21, the majority did not ground this on a standalone right to privacy (Kharak Singh v. State Of U.P And Others, 1962, summary). The Court in Bhavesh Jayanti Lakhani v. State Of Maharashtra And Others (2009 SCC 9 551) observed that the "Right to privacy is not enumerated as a fundamental right either in terms of Article 21 of the Constitution of India or otherwise. It, however, by reason of an elaborate interpretation by this Court in Kharak Singh v. State of U.P... was held to be an essential ingredient of 'personal liberty'." This suggests that any recognition was derivative rather than direct. The minority view in Kharak Singh, articulated by Subba Rao, J., did opine that liberty in Article 21 was comprehensive enough to include privacy (Gobind v. State Of Madhya Pradesh And Another, 1975 SCC 2 148), but this remained a minority perspective at the time.

The "Emanation" Doctrine: Privacy as an Inferred, Not Explicit, Right

In the years following Kharak Singh, courts began to acknowledge privacy, but often as an emanation from other explicitly guaranteed fundamental rights, particularly Article 21 (right to life and personal liberty) and Article 19 (fundamental freedoms). This "emanation" theory, while progressive, inherently underscored that privacy was not a fundamental right in its own textual standing.

Gobind v. State of M.P.: A Cautious Acknowledgment

The Supreme Court in Gobind v. State Of Madhya Pradesh And Another (1975 SCC 2 148) engaged more deeply with the concept. However, it expressed caution, stating, "The question whether right to privacy is itself a fundamental right flowing from the other fundamental rights guaranteed to a citizen under Part III is not easy of solution." The Court further noted, "The right to privacy in any event will necessarily have to go through a process of case-by-case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterise as a fundamental right, we do not think that the right is absolute" (as quoted in Sunkara Satyanarayana v. State Of Andhra Pradesh, 1999 and Bhavesh Jayanti Lakhani v. State Of Maharashtra And Others, 2009). This language highlights both the derivative nature of the right and its qualified acceptance.

R. Rajagopal and PUCL: Privacy through Implication and Procedural Safeguards

The case of R. Rajagopal Alias R.R Gopal And Another v. State Of T.N And Others (1994 SCC 6 632) further developed this line of reasoning. The Court observed: "Right to privacy is not enumerated as a fundamental right in our Constitution but has been inferred from Article 21." While recognizing privacy, its basis remained inferential.

Similarly, in People'S Union For Civil Liberties (Pucl) v. Union Of India And Another (1997 SCC 1 301), concerning telephone tapping, the Supreme Court mandated procedural safeguards to protect privacy. However, a significant observation from this case, as highlighted in submissions before the Court in the *Puttaswamy* reference, was: “The right to privacy-by itself-has not been identified under the Constitution. As a concept it may be too broad and moralistic” (K.S. Puttaswamy And Another v. Union Of India And Others, 2017, referring to submissions on earlier case law). This indicates that even while offering protection, the Court was hesitant to declare privacy as an independent, identified fundamental right.

Judicial Observations Reinforcing Non-Fundamental or Qualified Status

Several High Court and Supreme Court judgments continued to reflect the view that the right to privacy was not explicitly fundamental or was, at best, a qualified right.

Explicit Statements on Non-Enumeration

In Thalappalam Service Cooperative Bank Limited And Others v. State Of Kerala And Others (Supreme Court Of India, 2013), the Court noted, "The right to privacy is also not expressly guaranteed under the Constitution of India." It acknowledged that various judgments had recognized it as "emanating from Article 21," but the lack of express guarantee was highlighted. The Madras High Court in High Court Of Madras v. A. Kanagaraj (2013) reiterated, "Right to privacy is not enumerated as a fundamental right in our constitution. But, it can be inferred from Article 21 of the Constitution of India, in our considered opinion."

The Supreme Court in Bhavesh Jayanti Lakhani v. State Of Maharashtra And Others (2009 SCC 9 551) made a particularly direct statement: "Right to privacy is not enumerated as a fundamental right either in terms of Article 21 of the Constitution of India or otherwise." This unequivocal assertion, made as late as 2009, underscores the persistence of the view that privacy lacked standalone fundamental status.

The Unsettled Question Leading to Puttaswamy

The very fact that the question of whether privacy is a fundamental right was referred to a nine-judge Bench in Justice K.S. Puttaswamy (Retd.) v. Union of India indicates that its status was considered unsettled. The order dated 18-7-2017 in that matter stated: “it has become essential for us to determine whether there is any fundamental right of privacy under the Indian Constitution” (K.S. Puttaswamy And Another v. Union Of India And Others, 2017 SCC 10 1). Submissions made before the Court during these proceedings also reflected arguments against reading a general fundamental right to privacy into Part III of the Constitution, citing its broad and moralistic nature and the earlier judicial stance (K.S. Puttaswamy And Another v. Union Of India And Others, 2017, referring to submissions). For instance, it was argued that "a general fundamental right to privacy should not be read into Part III of the Constitution" and that previous cases demonstrated that "privacy interests are not worthy of constitutional protection" or could be decided on alternate grounds.

The Non-Absolute Nature of Privacy Claims

Even in judicial pronouncements that acknowledged a right to privacy, its non-absolute character was consistently emphasized. This qualification was sometimes used to argue that if the right was so heavily subject to restrictions based on "compelling public interest" or "procedure established by law," its nature as a 'fundamental' right was distinct from other, more explicitly defined rights.

In Gobind v. State of M.P., the Court, while discussing the possibility of privacy as a fundamental right, immediately qualified it by stating it was not absolute and subject to reasonable restrictions (Bhavesh Jayanti Lakhani v. State Of Maharashtra And Others, 2009). The Delhi High Court in Peter Samuel Wallace v. Inspector General Of Police New Delhi & Others (1981) noted, "The right of privacy, however, is not absolute as no fundamental right is absolute." Similar observations regarding the permissibility of restrictions on privacy in the public interest, provided they are backed by law, were made in cases like Sunkara Satyanarayana v. State Of Andhra Pradesh (1999) and Harbans Singh Ranial v. State Of Jammu And Kashmir (1998), often referencing the reasoning in Gobind.

The Paradigm Shift: Justice K.S. Puttaswamy (Retd.) v. Union of India

It is crucial to acknowledge that the legal landscape regarding the right to privacy underwent a monumental transformation with the judgment of the nine-judge Bench of the Supreme Court in Justice K.S. Puttaswamy (Retd.) v. Union of India (2017 10 SCC 1). This landmark decision unequivocally declared that the right to privacy is a fundamental right, protected under Article 21 and as an intrinsic part of the rights guaranteed in Part III of the Constitution. The Court expressly overruled the contrary indications in M.P. Sharma and the majority view in Kharak Singh (Central Public Information Officer, Supreme Court Of India (S) v. Subhash Chandra Agarwal (S), 2019; Deepti Kapur v. Kunal Julka, 2020, quoting Puttaswamy).

However, the focus of this article has been to analyze the jurisprudential underpinnings of the proposition that the right to privacy was *not* considered a fundamental right during a significant period of India's constitutional history. The Puttaswamy judgment itself arose from the need to authoritatively settle this very question, which, as demonstrated, had been subject to varied and often restrictive interpretations previously.

Conclusion

For a considerable period in Indian legal history, the assertion that the right to privacy was not a fundamental right found support in several judicial pronouncements and legal interpretations. This perspective was rooted in the absence of an explicit constitutional provision for privacy, the cautious approach of early Supreme Court judgments, the characterization of privacy as an inferred or emanated right rather than a direct one, and explicit judicial statements questioning its fundamental status. While the Supreme Court in Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) has now definitively settled the position by affirming the right to privacy as a fundamental right, an understanding of the earlier judicial discourse is essential for a comprehensive appreciation of the evolution of this right in India. The historical contention that privacy was not a fundamental right reflects a distinct phase in India's constitutional dialogue, shaped by textual interpretations and evolving judicial philosophies that preceded the current, expansive understanding of personal liberty and privacy.

References