December 4, 2022

Right to Privacy under state surveillance & Evolution

This Article is written by Sharayu Paranjape, LLM Nmims K.P.Mehta School of Law, Mumbai.


“Right to be let alone; right of a person to be free from unwarranted publicity; and right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned”[1]

Right to privacy evolved in recent years. The right to privacy is the need of every individual to protect their personal rights or their privacy from state surveillance and it’s a state duty to protect the liberty and dignity of the people which is enshrined in the constitution. this right is not at all new just needs legal recognition as old law and Kharak Singh case bring change in the legal status of this right. The privacy right particularly protects the dignity of individuals from state factors and also evolved through various cases. Right to privacy came into the limelight from the judgment of Puttaswamy case which is also known as Aadhar case which brings a change in data protection of the law. The right to privacy is also the most important fundamental right of the constitution. Thus, this paper focus on the evolution of this right as a fundamental right and how this right works through/with state surveillance.


Right to privacy protects the information, documents, and many other things of individuals that can’t share publically or without the permission of the person who is the owner of the things. Privacy is simply defined as ‘avoid publicity ‘the state or condition from being withdrawn from the society of others, or from public interest; seclusion”-mentioned in the oxford dictionary. The right to privacy in the Indian constitution is a very debatable subject as there is confusion about whether this right is to be treated as a fundamental right or the civil right. But now the confusion ends with the decision of the supreme court in the case of K.S. Puttaswamy vs. Union of India, that the right to privacy can be treated as the fundamental right under article 21 as it is related to liberty and dignity of the people. And now this right is settled as one of the laws of the land.[2]

For a very long time, the supreme court and the judiciary is confused about one question the right to privacy is whether come under a fundamental right or the treated as common law? Since 1960, various cases and the decisions of supreme courts on it are very confusing about the legal status of the right to privacy in judge was ready to give a particular definition of the right to privacy until the landmark judgment. But before that, the court decided to evolve on the basis of cases. As justice Mathew said, “The right to privacy will, therefore, necessarily, have to go through a process of case-by-case development”[3].

The supreme court of Indian stated that the right to privacy comes with certain limitations. Right to privacy primarily focuses on data protection and state surveillance.

Aim of the paper:

To study the concept of the right to privacy with its evolution in the Indian constitution and the right to privacy in the context of state surveillance.

Research objectives:

  1. to study the purpose and importance of the right to privacy in India.
  2. to study the right to privacy in the context of state surveillance.
  3. to study the evolution of this right through some landmark judgments.

Research questions:

  1. what is the legal status of the right to privacy before the constitution?
  2. what is the jurisprudence of the right to privacy in India and the doctrine of the third party?

Research method

Thus, the proposed research paper used the descriptive method of research and used secondary data as research sources like that included books, articles, newspapers, previous observations regarding the same subject, laws, and landmark cases. Websites and government records etc. descriptive research method is defined as research that focuses on the characteristics of the phenomenon.


Right to privacy: Meaning

According to justice Krishna Iyer, “personal liberty makes for the worth of the human”[4]. So, the concept of dignity and liberty which is also contained under article 21 is not independent of privacy.

There is no particular definition of privacy, but jurist Aristotle and Blackstone while explaining privacy goes into the difference between public wrong and private wrong. The relationship between individual and state regarding privacy is firstly discovered by the Greeks. Privacy is an absolute right of human beings that is related to their personality and daily life and possessed by birth. Privacy means ‘to be left alone which is recognized by common law’[5].

The social theorist john Locke in his book named “two treatises of civil government “mentioned the “right to privacy” for the first time by advocating the theory of natural rights which is inviolable according to him. Thus, the origin of the concept of privacy is found in natural law.[6] The right to privacy is to be left alone from interfering with the individual right. It gives the people to live life freely without the interference of others or the government, to live freely in speculation or free from unwanted public attention or the opinions of the public. Society has no right to interfere in someone’s life without their permission and into certain matters.

The right to privacy is not suddenly become the fundamental law or not accepted by the courts either. There is a lot of confusion about considering the right to privacy as a fundamental right or a common law particular definition of privacy is given by any judge and also the legal status of the right to privacy is declared. The status of the right to privacy is decided by the court as a fundamental right through various judgments from time to time. In a recent judgment, the right to privacy was recognized as a fundamental right and mentioned under article 21.

Evolution of the Right to Privacy

The concept of privacy is not new to Indians, we can find traces of these rights in ancient Hindu texts. The right to privacy mentioned in the “hitopadesha” also for certain subjects like sex, family matters, and worship should be done in privacy[7]. Hence it is proven that the right to privacy is not a new phenomenon but it was already in existence even before India got independence.[8]

Right to privacy in India before independence

  • Constitution of India bill,1895

The right to privacy and the interference of the state in the personal life of individuals is firstly expressed in the constitution bill,1895 but the identity of the author is not established. According to Annie Besant, the document of the bill is influenced by the thoughts of Bal Gangadhar tilak. He declared: “swaraj is my birthright”. It is only an attempt at the outline of the constitution, written in legal language and containing 110 articles. This document contained some individual rights such as freedom of speech, right to property, in violation of someone’s home, right to equality, etc., and also the concept of separation of powers and the basic structure of the constitution. The main text of the bill is “every citizen has in his house an inviolable asylum” which literally means for every man his home is his castle and the state shouldn’t interfere in it without rational and logical/legal reason. This is the first text regarding the protection of the privacy of the individual.

  • The commonwealth of India bill,1925

Even though the right to privacy got the legal status of a fundamental right through the recent judgment. The framework of this right and the demand for this right started from the 1895 bill and found traces of demand in the history of the constitution.

The bill of 1895 recognizes the protection of the house of every individual as the concept of privacy. later, under the chairman of sir Tej Bahadur Sapru and the committee members like Mahatma Gandhi, Mrs. Sarojini Naidu, and Bipin Chandra pal put this bill together which recognizes the protection of someone’s property with the interference of others without due process.

The bill stated that “Every person shall have the fundamental right to liberty of person and security of his dwelling and property.”

By this, we can see the expansion of this right towards personal liberty and from the protection of a just home to the protection of someone’s property.

  • Constituent assembly debates

The constitution assembly started drafting the constitution in 1946 and constituted a committee for preparing reports on various subjects on which the constitution would be drafted. Constituent assembly set up an advisory board for fundamental rights, especially under the chairmanship of Sardar Vallabhai Patel, and a sub-committee under the chairmanship of J.B.Kripalani.all the committees send their views on fundamental rights and why should be incorporated into the constitution.

In December 1946, K.T. Shah explained their view on the right to privacy, “Every citizen of India has and is hereby guaranteed security of his person, papers, property, house or effects against unreasonable searches or seizure

In 1947 The group members from the sub-committee insisted on the right to privacy and treated the right as a fundamental right.

Dr.B.R.Ambedkar: he extends the view of privacy by saying that, “the right of the person is to be secure in their person, house, papers, and effects against unreasonable searches and seizure, shall not be violated and no warrants shall issue, but on the probable cause, supported by oath or affirmation and particularly describing their place to be searched and the person or thing to be searched”. Dr.Ambedkar wants to explain this, as he wants the right to privacy as a safeguard for individuals’ privacy but with the state actions where the state needs the search and seizure under the guidance of the judiciary.

Later the advisory committee makes a proposal of considering the right to privacy as a fundamental right. As the right to property and protection of the person has mentioned in different articles of fundamental rights respectively in articles 19 and 21. But the general Narsingh Rau and Alladi Krishnaswamy Eyyar strongly opposed the proposal with the concern of interference with the right to privacy in the work of investigation agencies and the corned of justice Ayyar is about civil litigation effects because of the privacy policy of documents, as every individual can make each document private and it affects the civil litigation as well as states investigation process. They both succeed in canceling the proposal for privacy rights.

There are two separate attempts regarding privacy right in the report of the committee. later, Somnath Lahiri also makes a proposal about the right to correspondence considered a fundamental right, but his efforts failed. After a year Kazi Syed Karimuddin proposed the same and even realized the proposal of Dr. Ambedkar but his attempt also failed.

After Independence:

M.P. Sharma and ors. vs Satish Chandra, district magistrate, Delhi and ors

The right to privacy was firstly considered a fundamental right in this case on 15th march, 1954. The provision of section 94 and section 96(1) of search and seizure in the criminal procedure code was challenged. There is not the main issue of the right to privacy considered a fundamental right but the issue focus on the search warrant. As there is only one line about privacy right in the statement of the supreme court, “statement of a factual position that the right to privacy was not listed in the fundamental rights chapter in Part III of the Constitution. The word ‘privacy’ does not occur anywhere else in the entire judgment – either in the pleadings of the Petitioners or the opinion of the Court”.

The search warrant is issued by the magistrate of Delhi to the Delhi special police establishment (now the CBI) to investigate the case of misappropriation of funds in a private company and the associate company. They searched around 34 places and collect(seized) a lot of documents as evidence. But the petitioner challenged this search and seizure process through the petition filed in the supreme court under article 32 and alleging that their right to property under article 19(1)(f) and right to non-self-incrimination under article 20(3) which is fundamental rights are violated.

After scrutinizing the facts and the provision of CrPC, the 9 judges bench of the supreme court headed by chief justice M.C. Mahajan declared that search warrants were legal and no legally issued search warrants could violate the fundamental rights of the citizens. They have just put one line about privacy right in the whole judgment by saying that “The 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 a fundamental right to privacy, analogous to the Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction. Nor is it legitimate to assume that the constitutional protection under Article 20(3) would be defeated by the statutory provisions for searches”.

Hence, it is proven that issue of the search warrant is the judicial function of the magistrate. When the judicial function is like this between individuals and the authority officers regarding search and seizure, then there is no violation of the fundamental rights of the individual.

Kharak Singh vs State of UP and ors.

The second judgment passed by the court related to the right to privacy was in 1962 in the Kharak Singh vs the state of UP. The petitioner who was first convicted for the offense of dacoity but later acquitted by the court due to lack of evidence. He later filed a petition against the police of the UP and challenged the regulations of the Uttar Pradesh police under which police often visited his house at any hour of the day even at night and compelled him to go to the police station. Further, he alleges that, whenever he wants to go to the other village or another state, he has to give notice to the police about his journey and have to take permission from them, then police inform the police of the other state or village about his residence. After he claimed that, even though he is not a criminal or convicted of any crime then why does the police surveillance goes on and this surveillance violates his right to free movement which is a fundamental right given under article 19(1)(d) and the right to liberty under article 21.

Later, with the majority judgment of the constitution bench headed by CJ B P Sinha, justice Raj Gopal R Ayyangar declared that there is no violation of Article 19(1)(d) as the article refers to “something tangible and physical rather and not to the imponderable effect on the mind of a person which might guide his action in the matter of his movement or locomotion.” But, they are in the majority of violation of article 21 of the right to liberty by the Uttar Pradesh police regulation No.236(b) as it is not based on any law.

The Supreme Court held that “Having given the matter our best consideration we are clearly of the opinion that the freedom guaranteed by Article 19(1)(d) is not infringed by a watch being kept over the movements of the suspect. Nor do we consider that Article 21 has any relevance in the context as was sought to be suggested by learned Counsel for the petitioner. As already pointed out, the right to privacy is not a guaranteed right under our Constitution, and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III”.

Right to privacy as a fundamental right:

As we have known there is no particular definition of privacy declared by the court and so the right to privacy is not recognized as a fundamental right. Court decided the evolution of the privacy right is totally based on a series of cases and the right to privacy evolved through the cases like MP Sharma, Kharak Singh, A K Gopalan, PUCL case, Gobind vs state of MP, and many more. But the recent judgment of K.S. Puttaswamy gives recognition to the privacy right as a fundamental right. The privacy issue again raises in the K S Puttaswamy case also known as aadhar card case.[1] Puttaswamy is a retired judge who filed a petition complaining about aadhar card scheme and collecting the biometric and demographic data of the citizens of the nation would be used for any purpose or by anyone which is a violation of the privacy of the individual which is embodied in article 21. As there is a lot of confusion regarding the legal status of the right to privacy, the matter is sent to the 9 judges’ bench of the supreme court.

The petitioner states that the right to privacy is related to the liberty and dignity of the individual and is found in articles 19,20,21 and 25 of the constitution.

And on the contrary, the union of India states that the right to privacy is not a fundamental right guaranteed by the constitution. The defense of the Union of India was: 1] if the constitution maker wants to put the right to privacy as a fundamental right then they have put it specifically in the constitution.2] privacy is a very vague concept and difficult to define, so such a broad concept can’t be in the fundamental right.3] laws in existence are sufficient in protecting the privacy of the individual.4] right to privacy claiming legitimate sanction of common law, but each common law cannot become a fundamental right.

the Supreme court held that,

i. The decision in M P Sharma which holds that the right to privacy is not protected by the Constitution stands over-ruled;

ii. The decision in Kharak Singh to the extent that it holds that the right to privacy is not protected by the Constitution stands over-ruled; 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. iii. Decisions subsequent to Kharak Singh which have enunciated the position in (iii) above lay down the correct position in law.”

Right to privacy in the context of state surveillance

Gobind vs state of Madhya Pradesh

“Privacy is an inherent human right, and a requirement for maintaining the human condition with dignity and respect”- Bruce Schneir

There are many cases that are challenged by many petitions on the ground of the laws made by the legislation are in not accordance with the right to privacy. And the case of Gobind vs the state of MP is one of those landmark judgments.

Unlike in the Kharak Singh case, the court said that the police regulation has statutory backing and according to section 46(2)(c) of the police act they have the right to surveillance as prevention of offense. Before reaching the judgment and apart from various legal enactment there are various precedents cited.

Kharak Singh vs state of UP and Ors

It was held that the right to privacy is an inalienable part of human liberty and dignity and include all those right related to the liberty of the human. thus, including the right to privacy.

In the case of Gobind the state compelling interest test accept the narrow tailoring side of the test, on the constitutional validity of the police regulation and upheld the constitutional validity by reading them narrowly. “Regulation 855, in our view, empowers surveillance only of persons against whom reasonable materials exist to induce the opinion that they show a determination, to lead a life of crime – crime in this context being confined to such as involve public peace or security only and if they are dangerous security risks. Mere convictions in criminal cases where nothing gravely imperils the safety of society cannot be regarded as warranting surveillance under this Regulation. Similarly, domiciliary visits and picketing by the police should be reduced to the clearest cases of danger to community security and not routine follow-up at the end of a conviction or release from prison or at the whim of a police officer.”[9] But the grievance of the crime for surveillance is not referred to there and so it narrowly uphold the constitutional validity for the welfare of the people and for the minimum infringement of the privacy right.

The Third Party Doctrine

The third-party doctrine is the legal doctrine of the united states which clearly states that, people who gave their information to anyone voluntarily such as banks, social sites, phone companies, schools, colleges, etc. Have no expectation of privacy. And government can obtain information from third party as the lack of privacy protection and without search warrants.

The third-party doctrine is well applied in the case of Smith vs Maryland to the telephone records. As for the question of records, the person knowingly gives information to the telephone company, and he knows that his information must be recorded and stored. So there is no expectation of privacy by the consumers.

Court held in Selvi vs the State of Karnataka.

“There is absolutely no ambiguity on the status of principles such as the ‘right against self-incrimination and the various dimensions of ‘personal liberty. We have already pointed out that the rights guaranteed in Articles 20 and 21 of the Constitution of India have been given a non-derogable status and they are available to citizens as well as foreigners. It is not within the competence of the judiciary to create exceptions and limitations on the availability of these rights”.


In the 21st century, the right to privacy plays an important role and the evolution of this right is even more important as it widened and explains the scope of privacy our judiciary tries a lot to interpret privacy and define it well through the various case laws. The right to privacy is an inalienable part of human life and so it is contained under article 21 with the right to liberty and dignity.

The right to privacy plays an important role in the context of state surveillance and from this court declared that the state cannot interfere in the personal matters of an individual and also states a guideline for both the state as well as for the individuals regarding privacy. The maxim “salus populi est suprema lex” means public welfare is the highest law must be maintained in the democracy.

The judgment of the Puttaswamy case gives recognition to the privacy right as a fundamental right and has a deep impact on our constitution.

[1] Black law dictionary

[2] Evolution of Right to privacy as Fundamental right,

[3] Supra note at 2

[4] Maneka Gandhi vs Union of India, 1978 AIR 597, 1978 SCR (2) 621

[5] Kumar, Rahul, Jurisprudence of Right to Privacy in India (July 30, 2020). Available at SSRN: or

[6] 3 Jana Kalyan Das, Philosophical foundations of The Right to Privacy, privacy/

[7] Evolution of right to privacy in india,

[8] Legal Analysis of Right to Privacy in India,

[9] Gobind, (1975) 2 SCC 148, 158