The recent controversies regarding privacy and safety concerns of Zoom (video-conference enabling platform) and Arogya Setu (Government initiated health services application) have brought debates around issues relating to the right to privacy to the forefront. While the Constitution of India, 1950 did not explicitly confer the fundamental right to privacy, the Supreme Court in Justice K. S. Puttaswamy v. Union of India read this right within the right to life and personal liberty under Article 21. Even though the right to privacy was brought into the framework of fundamental rights only recently, were there demands for this right in the Indian Constitutional History?
In the late nineteenth and twentieth century, the idea of privacy was inextricably linked with that of inviolability of house or property. The Constitution of India Bill 1895, one of the foremost documents to project a constitutional imagination for India, stated: ‘Every citizen has in his house an inviolable asylum.’ Next, The Commonwealth of India Bill, 1925 protected unwarranted interference to one’s dwelling without due process. The Nehru Report (Motilal Nehru,1928), an outcome of the All Parties Conference, guaranteed a similar right.
Few years before the beginning of the formal constitution-making, the Constitution of Free India: A Draft (M.N. Roy, 1944), as endorsed by the Radical Democratic party, for the first time extended the right to privacy beyond the property to include private correspondence. Four years later the Draft Constitution of the Republic of India (Socialist Party, 1948) granted protection against unlawful entry into one’s dwelling except under the due process of law.
Privacy and the Constituent Assembly
The Constituent Assembly formally kick-started the process of drafting the Constitution in December 1946. It constituted several committees to prepare reports based on which the Drafting Committee would develop a draft Constitution.
At the Committee stages, a group of members from the Sub-committee on Fundamental Rights advocated for the right to privacy to be a fundamental right. KM Munshi sought to make the right to the inviolability of one’s home and the right to the secrecy of one’s correspondence a fundamental right. Dr BR Ambedkar in his States and Minorities Report advocated for 'the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures'.
There was strong opposition to these proposals. BN Rau (Adviser to the Constituent Assembly) and Alladi Krishnaswamy Ayyar, a Constituent Assembly member, disagreed with the inclusion of the right to privacy within fundamental rights. Rau was primarily concerned with the interference of the right to privacy with investigative powers of the police authorities. Whereas Ayyar believed that granting the right to privacy and secrecy in correspondence would be disastrous: it would elevate every private/civil communication to that of State papers. This would adversely affect civil litigation where documents form an essential part of the evidence.
Both Rau and Ayyar were successful in persuading the Advisory Committee to leave out provisions relating to the right to privacy. The final report of the Advisory Committee did not bear any mention of the right to privacy.
In the plenary sessions of the Constituent Assembly, one can find two separate attempts to introduce right to privacy provisions in the fundamental rights chapter.
On 30th April 1947, Somnath Lahiri proposed to make the right to privacy of correspondence a fundament right. However, his proposal did not receive any traction. A year later Kazi Syed Karimuddin moved to include the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures in Article 20 (Draft Article 14) of the Constitution. He cited examples of the American and Irish Constitution and reminded the Assembly of Ambedkar's similar proposal to the Sub-Committee of Fundamental Rights. Karimuddin was also motivated to secure the rights of the Muslim minority community from arbitrary searches. He pointed out that post-partition the State agencies, mired in prejudices, treated Muslims like ‘criminals’. This amendment was defeated in the Assembly.
All past attempts at making the right to privacy a part of the fundamental right had failed. After a series of cases, the Supreme Court, in 2017, finally declared the right to privacy as an integral component of the right to life and personal liberty.