The Right to Privacy in India after the Puttaswamy judgment

Privacy is a natural right that every human being requires. It includes so many prospects such as non disclosure of confidential information, sexual affairs, business secrets and non observance of the private matters of any person by others. In simple words, we can say that privacy is a state in which a person enjoys pure isolation and separation from others.

Editor’s note: This article was originally published in 2014, before the law on privacy in India was transformed. It has been updated to reflect the position today.

The legal protection of privacy differs from country to country, and in India it has changed dramatically. The Constitution does not mention privacy by name, but the Supreme Court has held that it is a fundamental right. In the landmark nine-judge decision in Justice K.S. Puttaswamy (Retd.) v. Union of India (2017), the Court ruled unanimously that the right to privacy is intrinsic to the right to life and personal liberty guaranteed by Article 21, and to the freedoms protected by Part III of the Constitution. India now also has a dedicated data-protection statute, the Digital Personal Data Protection Act, 2023, so privacy is no longer “legally unrecognised” — it is both a constitutional guarantee and the subject of express legislation.

The concept of privacy is found written in our old scriptures also which are called the law of The Dharam Shastraas. It has been well expounded in the commentaries of old age laws. Kautilya, one of the men of shrewd intellect ever born in Indian History, has also prescribed the procedures of privacy in greater details in his Arthshastra. But unfortunately, neither in the past law nor in the modern law, the concept has been properly defined.

But it sounds great to know that the new and modified constitutionalism completely justifies the need of laws on right to privacy. Besides, Article 12 of the universal declaration of the human rights, jurists and legal experts have advocated the need of laws on the issue of privacy saying that Right to Privacy is of paramount importance to human happiness.

One of the earliest cases to touch on privacy was M.P. Sharma v. Satish Chandra (1954), an eight-judge bench which observed that the Indian Constitution contained nothing comparable to the United States’ Fourth Amendment and therefore did not recognise a general right to privacy. That observation, and a later ruling in Kharak Singh v. State of U.P. (1962), were expressly overruled on the privacy point by the nine-judge bench in Puttaswamy (2017), which held that privacy is indeed a fundamental right. The earlier decisions no longer represent the law.

The gravity of the issue can never be ignored. There are countless reports of phone tapping, website and email hacking, and other unlawful surveillance, and instances where private detective agencies have been used to obtain people’s most personal details. Indian law now offers real protection against such intrusions. After Puttaswamy, any State action that interferes with privacy must satisfy a three-part test: it must rest on a valid law, pursue a legitimate State aim, and be proportionate to that aim. Alongside this constitutional safeguard, the Digital Personal Data Protection Act, 2023 regulates how organisations collect, store and use personal data, gives individuals rights over their own data, and provides for a Data Protection Board to enforce these obligations. Older provisions, such as Section 43A and Section 72A of the Information Technology Act, 2000, also remain relevant to data security and confidentiality. The framework is still maturing, but the right to privacy in India is now firmly recognised and increasingly enforceable.