Knowledge nugget of the day: Right to Privacy

There were 22 petitioners in all but the lead

petitioner who challenged Aadhaar was Justice KS Puttaswamy.

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Knowledge Nugget: Right to Privacy

Subject: Polity

(Relevance: The right to privacy has been a prominent topic in the news, particularly regarding
digital rights and the expanding scope of fundamental rights. The UPSC has asked questions about
it in prelims and main exams. For instance, a question about the Right to Privacy appeared in the
2021 Prelims and the 2017 Mains.)

Why in the news?

Justice KS Puttaswamy, former Karnataka High Court judge and the lead petitioner in the seminal
‘right to privacy case’, passed away on October 28th, at the age of 98.

Justice Puttaswamy famously challenged the constitutional validity of the Aadhaar scheme, which
led to the Supreme Court recognising the right to privacy under the fundamental right to life under
Article 21 of the Constitution.

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 Born in 1926, at a village near Bengaluru,
Puttaswamy became a judge of the high court in the 1980s and was part of the Andhra Pradesh
Backward Classes Commission.

Key Takeaways :

1. In August, 2017, a nine-judge bench of the Supreme Court of India in K. Puttaswamy v

Union of India Case ruled unanimously that “the right to privacy is protected as an intrinsic
part of the right to life and personal liberty under Article 21 and as a part of the freedoms
guaranteed by Part III of the Constitution”.

2. There were 22 petitioners in all but the lead petitioner who challenged Aadhaar was Justice KS
Puttaswamy. The Supreme Court had addressed the issue of privacy in approximately 30 previous
judgments. However, the Government of India argued in this case that privacy is not a
fundamental right, stating that this had been determined in two judgments made by an eight-judge
and a six-judge Bench. As a result, the matter was first referred to a five-judge Bench and then, to
this nine-judge Bench.

Aadhaar
Aadhaar is a 12-digit unique identification number issued to Indian citizens by the Central
government. It is issued and managed by the Unique Identification Authority of India (UIDAI).
Aadhaar card is essentially an identification document issued by the UIDAI after it records and
verifies every resident Indian citizen’s details including biometric and demographic data.

Several petitioners had challenged Aadhaar claiming that since it is mandatory in all but name, it
goes against their right to privacy. The government argued that Indians don’t have a fundamental
right to privacy, which a nine-judge Bench disagreed, stating unanimously that all Indians do,
indeed, have a constitutionally protected fundamental right to privacy.

3. Former Attorney General K K Venugopal had argued that “the right of privacy may at best be a
common law right, but [it was] not a fundamental right guaranteed by the Constitution”. The court
said that “infusing a right with a constitutional element” gives it “a sense of immunity from popular
opinion and, as its reflection, from legislative annulment”, which a common law right would not
have.

4. SC in its verdict rejected all arguments of the Union government, overruled the court’s
judgments in M P Sharma (1954) and Kharak Singh, and approved the decisions of its smaller

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Benches, which had found the right to privacy implicit in the right to life and personal liberty.

Article 21 of Indian Constitution

Article 21 of Constitution of India guarantees the fundamental right to protection of life and
personal liberty. It ensures certain safeguards against arbitrary deprivation of life and liberty.

5. The Right to Privacy has emerged at the center of various controversies in recent years, yet its
explicit definition remains unclear in many cases.

Alok Prasanna Kumar writes-

Three elements are considered as the core to the right to privacy: Personal autonomy,
the freedom to make choices and the right to determine what happens with information
about oneself.

6. Aishwarya Giridhar, Nidhi Singh write- “The SC has explored principles of autonomy, dignity,
and identity in relation to privacy to strengthen the framework of constitutional rights. For
instance, it decriminalised all sexual relations between consenting adults, including adults of the
same sex, relying on the right to privacy linked with freedom of expression, equality, and non-
discrimination…The Court also examined the role of privacy in the context of end-of-life care and
reaffirmed the right to die with dignity. Since Puttaswamy, the SC has deliberated on and expanded
the ambit of the right to privacy.”

BEYOND THE NUGGET: How is the right to privacy protected in other

countries?

7. United States: The U.S. Constitution does not explicitly mention the right to privacy, the
Supreme Court has interpreted various amendments to imply that this right exists. In particular,
the Privacy Act of 1974 was enacted to protect citizens from arbitrary use of their records by federal
agencies. This law requires agencies to keep a record of disclosures of the information they
maintain. Additionally, there is a federal law that protects the privacy of Social Security numbers
from government inquiries, except in cases where information about tax payments must be
disclosed or in cases related to child support

Do you know?
Privacy is safeguarded by a strong international legal framework. Article 12 of the Universal
Declaration of Human Rights (1948) and Article 17 of the International Covenant on Civil and
Political Rights (ICCPR, 1966) protect individuals from “arbitrary interference” with their
privacy, family, home, correspondence, honor, and reputation.

8. Germany: Germany’s horrific history under the Nazi regime, characterized by constant
government surveillance, has led the country to be extremely cautious about administrative
intrusions into individuals’ personal lives. Over time, Germans have worked to evolve and update
privacy laws to meet the social and technological needs of the time. As a result, Germany has
become one of the strictest countries in terms of enforcing privacy laws.

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9. Sweden: Despite being one of the first countries of the world to give a personal identification
number to its citizens, required to be used in every interaction with the State, Sweden is also
one of the first countries to have a detailed statute on privacy laws online. The 1973
Data Act protected the privacy of personal data on computers. The right to protection of
personal data is also found in the Swedish constitution.

10. Canada: The privacy law in Canada, first implemented in 1977 as part of the Canadian Human
Rights Act, has evolved significantly over the years. Initially, it was designed to serve as a means of
data protection. In 1983, the law was expanded to include regulations on how the government can
access and disclose personal information.

11. European Union: Article 8 of the European Convention on Human Rights (ECHR) provides
a right to protection of one’s private and family life subject to certain restrictions. Also, the Data
Protection Directive adopted by the European Union in 1995 regulates the processing of personal
data within the European Union.

(Sources: Right to privacy in other countries, A to Z of Privacy,)

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