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Right to Privacy- The Judicial Evolution

In this blog, the author has discussed about the evolution of the Right to Privacy under Article 21 of the Constitution.

The right to privacy in a general sense means a person’s right to be left alone in matters that do not concern other people. To further elucidate this Merriam Webster’s Dictionary of Law defines right of privacy as the right of a person to be free from intrusion into or publicity concerning matters of a personal nature.[1] It is the most basic of human freedoms and any legal system that claims to be a protector of individual rights and liberty must have this right as an integral part of their system. In India there is no explicit right to privacy, but over the years through various judicial pronouncements this right has become an integral part of our legal system. This article tracks the evolution of this very important human right in the legal fabric of the Indian judiciary.

The right to privacy is an implicit right under the broad spectrum of article 21.[2] Article 21 of the constitution reads as “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Various judicial pronouncements have interpreted this article in a broad sense, and have made the right to privacy an integral part of liberty and personal freedom as guaranteed by the constitution.

The evolution of this right begins with the case of Kharak Singh vs State of Uttar Pradesh,[3] wherein it was held that the right to privacy is not a constitutional guarantee. The minority however held that while it maybe true that right to privacy is not expressly recognised as a fundamental right, but it is an important ingredient of personal liberty as envisaged under article 21. This judgement is significant because it was the first time in the Indian judicial setup that the right to privacy was recognised even though in a minority judgement.

Subsequently, came the case of Govind vs State of Madhya Pradesh,[4] wherein the supreme court confirmed that the right to privacy is indeed a fundamental right, but that it is not absolute and is subject to “compelling state interest”. It was held that for a law to infringe upon the right to privacy it would have to satisfy the test of compelling state interest. The test is to see if the state interest in question is of such importance that it would justify the infringement of the right.

The significance of this case cannot be understated. Not only did it recognize the right to privacy as a fundamental right, but it also presupposed a boundary for it. Moreover, it put forward a test to justify the infringement over such boundary. While this was truly a remarkable judgement it was the case that came after this pronouncement that would change Indian legal landscape forever.

This was the case that did the constitution justice by interpreting it in its truest essence[B1] . The case was Maneka Gandhi vs Union of India.[5] The apex court in this case held that the expression ‘personal liberty’ in article 21 was of the widest amplitude, and the attempt of the court should be to expand the reach and ambit of fundamental rights, rather than attenuate their meaning and significance by the process of judicial construction. Not only did this case broadened the scope of article 21, it also made it a judicial responsibility to expand the ambit of fundamental rights. This revolutionary case truly set the tone for the future in the context of India’s legal landscape. It interpreted the constitution in its truest sense, and paved the way for a liberal future.

Following this came the case of R.Rajagopal v. Union of India,[6] wherein the right to privacy was again upheld. In a more specific sense, it was held that a citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. No one can post anything about the above matter without his consent. Three exceptions to the above general principle were stated-

1- Where the matter is in public record

2- Where a person voluntarily gets involved in the controversy

3- In case of a public official with regard to his official duties

This judgement is important because it gets a little more specific as to what the right to privacy entails, and who may or may not claim its protection. This case is also significant because it established the fact that the right to privacy is available even to prisoners.

With a little leap, in 2007 came the landmark case that truly expressed the strength of right to privacy. This was the Naz Foundation Case.[7] In this case the legality of consensual homosexuality was examined. Framing the judgement in truly liberal contours the Delhi High Court held that consensual homosexuality is protected under the broad spectrum of right to privacy. The court held that a man needs a place of sanctuary where it can be free from societal control- where they can drop the mask. The court took down section 377 and decriminalized homosexuality. This was a truly liberal judgement of international stature. However, the judgement was overturned in the Supreme Court in Suresh Kumar Koushal v. Naz Foundation.[8]

Following the above arrived the remarkable case of Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors.,[9] wherein the judgement of Kharak Singh vs State of Madhya Pradesh[10] was explicitly overruled. In this case it was finally established that right to privacy is an intrinsic part of right to life and liberty under article 21. This case is considered remarkable because firstly, it explicitly overruled the judgements undermining the right to privacy. Secondly, it is considered to set the tone for the following landmark judgement.

After several curative petitions were filed against the judgement of the apex court in the Suresh Kumar Koushal v. Naz Foundation,[11] the court decided to revisit the case in 2017. It overruled its earlier judgement and restored the Delhi High court judgment which decriminalized homosexuality, and consequently all consensual sexual acts between adults.[12]

The above case truly encapsulates how far our legal landscape has come with regard to the right to privacy. From what was minority judgement in Kharak Singh vs State of Uttar Pradesh[13] has evolved into a right of such broad horizon that initiating the necessary social change is now within its ambit?


Through the journey of the Right to privacy, we have understood how the judicial process can gradually evolve rights and duties that aren’t explicitly mentioned in the constitution. As an interpreter of the Constitution it truly is the judicial duty to make explicit what is implicit in the constitution, because after all, that is the sole function of interpretation. We have seen how the right to privacy evolved and we have understood that the judiciary can slowly but surely bring about impactful social change. Not to mention, we have learned the value of a powerful dissenting judgement.

References: [1] Merriam Webster Dictionary of Law, 2016 edition [2] Constitution of India

[3] 1963 AIR 1295 [4] 1975 AIR 1378 [5] 1978 AIR 597 [6] 1995 AIR 264 [7] 160 Delhi Law Times 277 [8] Civil Appeal No. 10972 OF 2013 [9] WRIT PETITION (CIVIL) NO 494 OF 2012 [10] Supra Note 3 [11] Supra Note 8 [12] W. P. (Crl.) No. 76 of 2016 [13] Supra Note 2

Submitted by:

Ritik Jain,

Hidayatullah National Law University

(Images used for representative purpose only)


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