Privacy is not absolute, says Supreme Court

In news:

The Supreme Court observed that privacy is not absolute and cannot prevent the State from making laws imposing reasonable restrictions on citizens. It noted that ‘right to privacy’ was in fact too “amorphous” a term.


  • The court said to recognise privacy as a definite right, it had to first define it. But this would be nearly impossible as an element of privacy pervaded all the fundamental rights enshrined in the Constitution.
  • The court said that an attempt to define the right to privacy may cause more harm than good.
  • An exhaustive cataloguing by the court of what all constitutes privacy may limit the right itself, Justice Chandrachud observed.
  • But Justice Chandrachud observed that right to privacy cannot be linked to data protection. He said this is the age of “big data”, and instead of focussing on privacy, steps need to be taken to give statutory recognition to data protection.

Nine-judge bench

  • Justice Chandrachud is part of a nine-judge Constitution Bench, led by Chief Justice of India J.S. Khehar, examining a reference on the question whether privacy is sacred, fundamental and an inviolable right under the Constitution.
  • Attorney General K.K. Venugopal had submitted in the court that right to privacy is merely a common law right and the Constitution makers “consciously avoided” making it a part of the fundamental rights.
  • The decision of the nine-judge Bench on whether privacy is a fundamental right or not will be pivotal to the petitioners’ challenge that Aadhaar, which mandates citizens to part with their biometrics, is unconstitutional.

Earlier judgements:

The judges noted that two earlier judgements of the court — M P Sharma’s case in 1954 and Kharak Singh’s case in 1962 — had held that privacy was not a fundamental right.

M P Sharma & Others vs Satish Chandra, District Magistrate, Delhi & Others

March 15, 1954

The case: related to search and seizure of documents of some Dalmia group companies following investigations into the affairs of Ms Dalmia Jain Airways Ltd, a group concern, which was registered in July 1946 and went into liquidation in June 1952.

In its judgment dated March 15, 1954, the eight-judge Bench comprising the then Chief Justice Mehar Chand Mahajan and Justices B Jagannadhadas, Ghulam Hasan, Natwarlal H Bhagwati, T L Venkatarama Aiyyar, B K Mukherjea, Sudhi Ranjan Das and Vivian Bose held that “a power of search and seizure is, in any system of jurisprudence, an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of the fundamental right to privacy, analogous to the American Fourth Amendment, there is no justification for importing into it, a totally different fundamental right by some process of strained construction.”

Kharak Singh vs The State of U P & Others

December 18, 1962

Petitioner Kharak Singh was challaned in a case of dacoity, but was released as there was no evidence against him. Uttar Pradesh Police subsequently opened a “history sheet” against him and brought him under “surveillance”. This was done in exercise of the powers under Chapter XX of the Uttar Pradesh Police Regulations.

In his writ petition, Singh challenged the constitutional validity of Chapter XX, and the powers conferred upon police officials thereunder on the ground that they violated his fundamental rights under Articles 19(1)(d) — right to freedom of movement — and 21 — protection of life and personal liberty.

His petition was adjudicated by a six-judge Bench comprising the then Chief Justice Bhuvaneshwar P Sinha and Justices N Rajagopala Ayyangar, Syed Jaffer Imam, K Subbarao, J C Shah and J R Mudholkar. In the judgment delivered on December 18, 1962, the Bench struck down Clause (b) — domiciliary visits at night — of Regulation 236, but upheld the rest.

The Bench also held that “the right of privacy is not a guaranteed right under our Constitution, and therefore the attempt to ascertain the movements of an individual is merely a manner in which privacy is invaded and is not an infringement of a fundamental right guaranteed in Part III (fundamental rights)”.

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