Right to Privacy: A Fundamental, but not an Absolute Right

Written by Palak Katta

First Year, BBA. LLB. Unitedworld School Of Law, Gujarat

Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.


Privacy is a fundamental human right that is central to human dignity and it forms the basis for a democratic society. There is no particular definition that defines the right to privacy. It is a generic term encompassing numerous freedoms accepted as implicit in the principle of ordered liberty, and this freedom prohibits government intervention in private/personal relationships or practices, such as the ability of people to make substantive decisions concerning themselves, their family and their relationships with others.

Nearly every country has recognized the privacy law explicitly in their constitution and in countries where privacy is not been explicitly recognized in their constitution, it has found its place in other provisions.

The Indian Constitution also encompasses the Right to Privacy under Article 21 [1], which is a requisite of right to life and personal liberty. Although the Right to privacy in itself has not been identified by the Constitution. As a concept, it is wide and moralistic to give a precise definition to define it judicially. Whether or not the right to privacy has been asserted or infringed upon in a particular case depends on the facts of that particular case.

The scope of Article 21 is too broad; criminal laws, property law as well as the law of torts have recognized the right to privacy.[2] Thus it can be inferred that the Right to Privacy is indeed a part of the protection guaranteed under Article 21.

How did it come about Right to Privacy?

The right to privacy is not a very recent concept but it gained its attention through the Aadhaar scheme of the government. Privacy deals with the intimate affair of one’s life which of course needed to be protected even before the landmark case of K.S. Puttaswamy v. Union of India(2017),[3] It was the case where the Aadhaar program (a form of uniform biometrics-based identity card) of the government was questioned. As in order to enjoy the various government schemes and benefits, it was made mandatory for the people to have Aadhaar for which biometrics and other important information were taken. The petitioner argued that this scheme was in clear violation of the right to privacy of an individual and indeed violated the fundamental right of the person under section Article 21. The court unanimously held that Right to Privacy is to be considered as a fundamental right under the wide ambit of Article 21 of the Indian Constitution and this was the first time it gained recognition under the Constitution by the Indian Courts.

The issue of the right to privacy was discussed for the first time in the constituent assembly debate in December 1946, but it did not get recognition at that time.[4] Privacy has been dealt with both as a fundamental right under the Constitution and as a common law since the 1960s [5]. Privacy was not deemed a constitutional right by the Supreme Court for the first time in 1954 in M.P. Sharma v. Satish Chandra [6] case.

The concept of privacy came again through the case of Kharak Singh v. State of Uttar Pradesh,[7] but it was a failed attempt and right to privacy was not upheld in this case too. It was held that it is not a fundamental right but for a change, the Supreme Court struck down the provision which allowed night visits as it was in violation of personal liberty. The court stated that privacy is an important element of personal liberty but still the provision was not declared as a fundamental right. There were numerous cases but none favoured privacy as being a fundamental right. But eventually, in the case of Gobind v. State of Madhya Pradesh [8] privacy gained a small recognition under personal liberty enshrined under Article 21 of the constitution.

Privacy had rooted in our fundamental rights. The landmark case of K.S. Puttaswamy v. Union of India(2017) grabbed the attention once again by giving proper recognition to the right of privacy under article 21 of the constitution. The decision in the cases of M.P. Sharma v. Satish Chandra and Kharak Singh v. State of Uttar Pradesh was overruled. After passing off the judgment in 2017, the right to privacy finally earned its position as the fundamental right linked to personal liberty. The Supreme Court has, however, clarified that like most other fundamental rights, the right to privacy is not an ‘absolute right’.

The Right to Privacy is not absolute

The right to privacy existed as a natural right, long before it was accepted as a fundamental freedom, and it would continue to exist until the very survival of life on this planet.

It has been recognized as a constitutional right, human right, and moral right in various constitutions and precedents. The fundamental rights are here to protect the citizens but these rights are limited to reasonable restrictions. The famous Aadhaar case was among the first cases to limit the application of privacy law after being recognized as a fundamental right by stating that the Right to privacy is not an absolute right.

An 'absolute right' is that right which has no restrictions or any governmental interference. But each right, whether it is a fundamental or human or a legal right are subjected to some reasonable restrictions. The term 'reasonable restriction' connotes that the restraint imposed on a person who enjoys a privilege should not be unreasonable or of an extreme nature, beyond what is appropriate in the public interest.

These restrictions must be made keeping in mind the general public interest. The public interest must be given paramount importance and the restrictions should not be arbitrary.


The right to privacy has multiple dimensions, and some of these elements definitely come under the framework of fundamental rights and thus stand recognized under the Constitution of India. It is a bundle of rights that supports and reinforces other rights, such as freedom of expression, information, and association. The right to privacy guarantees and reassures and individuality of a person. It’s all about himself, his emotions and feelings.[9] The infringement of such rights damages the inner self and undermines one’s confidence. However, the right to privacy is not absolute and is subject to reasonable restrictions for the prevention of crimes, public disorder, and for the protection of others. When the scope of this right stretches beyond limits, it can interfere with State governance or any other person's constitutional rights. Similarly, if the dimensions of the right are too limited it dilutes a person's own fundamental rights.

When we consider ourselves a member of society, we often disagree with the idea that we are the first individuals and that every person in this world needs their own private space. So, in order to provide each person that right, the State gives those private moments to appreciate it with whom he wishes without the eyes of the rest of the world on them. As every day progresses, the right is becoming increasingly important in the modern world. With all our lives being revealed to the media through social networking sites, protection should be provided to all and it should function in such a way that no one should even think of intruding any other individuals' right to privacy.

With the advancing technology and the dynamic environment, privacy will always remain at risk. It’s time that the right to privacy, which is already a part of the right to life and personal liberty under article 21, should be provided a separate status of Fundamental/constitutional rights. But it should be remembered, anything without any reasonable limits will consequently lead to harm. Freedom must always be subjected to reasonable restrictions for the betterment of society as a whole.


[1] India Const. art. 12 [2] Qwerty9729, Legal Analysis of Right To Privacy In India, Legal Service India (June 3, 2020, 6:35 PM), http://www.legalserviceindia.com/legal/article-676-legal-analysis-of-right-to-privacy-in-india.html [3] K. S. Puttaswamy v. Union of India, (2017) Writ Petition (Civil) No. 494 of 2012 (Sup. Ct. India Aug. 24, 2017) [4] Amber Sinha, The Fundamental Right to Privacy A Visual Guide, The Centre for Internet & Society (June 4, 2020, 3:20 PM) [5] Supra no. 2 [6] M.P. Sharma v. Satish Chandra, (1954) SCR 1077 (India) [7] Kharak Singh v. The State Of U. P. & Others, (1963) AIR 1295, 1964 SCR (1) 332 (India) [8] Gobind v. State of Madhya Pradesh, (1975) AIR 1378 (India) [9] Dr. PK Rana, Right to privacy in Indian perspective, Law Research Journal (June 3, 2020, 2:40 PM)