INTRODUCTION
“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.
According to Justice Krishna Iyer, “Personal liberty makes for the worth of human person”. Hence, the notion of dignity and liberty are not independent of privacy. The concept of Privacy is not at all new and it does not need any; it just needs a legal recognition as it is as old as common law and is basically a result of the common laws. It is so deeply embedded with liberty and dignity of an individual that it cannot be denied the status of a fundamental right.
In the words of the Jurists like Arthur Miller it is difficult to define privacy because it is ephemeral. Whereas Jurists Aristotle and William Blackstone while trying to define privacy go on to differentiate between private wrong and public wrong. Public wrong means wrong against the society and private wrong means wrong against the individual. The Greeks were the first to recognize the relationship between an individual and a State and also gave an overview that how the relationship between the two is shaped. Privacy is such a right which is inalienable from the personality of the human beings and it primarily forms a part of the basic Human right. Right to privacy is a right which an individual possesses by birth. Privacy simply means the right of an individual to be left alone which is recognized by the common law.
It is essentially important to consider the other view as well and according to this view right to privacy is considered to be a natural right and such rights are those divine rights which are considered supreme to all other rights. The social contract theorists like John Locke in his book titled “Two Treatises on Civil Government” sowed the seeds of “right to privacy” by advocating the theory of natural rights which according to him were inviolable and inalienable. Thus, privacy finds its origin in the natural law theories.
There is now a question as whether the right to privacy act can co-exist with the current capabilities of intelligence agencies to access and analyse virtually every detail of an individual’s life. A major question is that whether or not the right to privacy needs to be forfeited as part of the social contract to bolster defence against supposed terrorist threats. In addition, threats of terrorism can be used as an excuse to spy on general population.
UNDERSTANDING NATURAL LAW
The natural law theory is stated to have existed without even the requirement of human understanding or any kind of political order or legislature. To be explained further, natural law incorporates the idea that humans understand the difference between “right” and “wrong” inherently. Essentially, it concludes that human beings are not taught natural law; they initiate it by making good and right decisions. Therefore, it is said to be discoverable through the exercise of reason.
The theory of natural law was known to the ancient Greeks but then elaborated by many philosophers. Some important philosophers who played a role in the development of natural law include Aristotle, Plato, and Thomas Aquinas.
Many difficulties and concerns have surrounded natural law theory. For example, some believe that natural law theory is too simple as a concept and that it breaks down in complicated scenarios. Throughout centuries, natural law theory has been expanded on, critiqued, and applied to philosophy theory and even existing legal and political structures.
It is important to underline that natural law is not to be confused with positive law as it does not involve any kind of judicial decisions or legislative enactments. Natural law highlights human behaviour involving ethical standards and ways of being inherent.
On the other hand, positive law involves human-made law that incorporates rules that can be applied to specific actions at certain times or places. Furthermore, positive law is enacted and adopted for the appropriate government of society, to protect the rights of individuals, resolve disputes, and maintain order and safety of society overall.[3]
RIGHT TO PRIVACY IN INDIA
As already discussed Article 21 of the Constitution of India states that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. The right to life enshrined in Article 21 has been liberally interpreted so as to mean something more than mere survival and mere existence or animal existence. It therefore includes all those aspects of life which makes a man’s life more meaningful, complete and worth living and right to privacy is one such right. The first time this topic was ever raised was in the case of Kharak Singh v. State of UP where the Supreme Court held that Regulation 236 of UP Police regulation was unconstitutional as it clashed with Article 21 of the Constitution. It was held by the Court that the right to privacy is a part of right to protection of life and personal liberty. Here, the Court had equated privacy to personal liberty.
In Govind v. State of Madhya Pradesh[4], Mathew, J. accepted the right to privacy as an emanation from Art. 19(a), (d) and 21, but right to privacy is not absolute right. “Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right, the fundamental right must be subject to restriction on the basis of compelling public interest”. Surveillance by domiciliary visits need not always be an unreasonable encroachment on the privacy of a person owing to the character and antecedents of the person subjected to surveillance as also the objects and the limitation under which the surveillance is made. The right to privacy deals with ‘persons not places’.
In Smt. Maneka Gandhi v. Union of India & Anr[5]., in this case SC 7 Judge Bench said ‘personal liberty’ in article 21 covers a variety of rights & some have status of fundamental rights and given additional protection u/a 19. Triple Test for any law interfering with personal liberty: (1) It must prescribe a procedure; (2) the procedure must withstand the test of one or more of the fundamental rights conferred u/a 19 which may be applicable in a given situation and (3) It must withstand test of Article 14. The law and procedure authorising interference with personal liberty and right of privacy must also be right just and fair and not arbitrary, fanciful or oppressive.
In Naz Foundation Case (2009) [6]Delhi HC gave the landmark decision on consensual homosexuality. In this case S. 377 IPC and Articles 14, 19 & 21 were examined. Right to privacy held to protect a “private space in which man may become and remain himself”. It was said individuals need a place of sanctuary where they can be free from societal control- where individuals can drop the mask, desist for a while from projecting on the world the image they want to be accepted as themselves, an image that may reflect the values of their peers rather than the realities of their nature.
It is now a settled position that right to life and liberty under article 21 includes right to privacy. Right to privacy is ‘a right to be let alone’. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. Any person publishing anything concerning the above matters except with the consent of the person would be liable in action for damages. Position however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.
Evolution After the Puttaswamy Judgment
The Supreme Court’s decision in Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) marked a turning point in Indian constitutional law. In this landmark case, a nine-judge bench unanimously affirmed that the right to privacy is an intrinsic component of the right to life and personal liberty under Article 21. The Court emphasized that privacy includes an individual’s autonomy, bodily integrity, and the right to control personal information.
This ruling shifted the discourse on privacy from a peripheral concern to a central constitutional value. It created a foundation for scrutinizing laws and state actions—such as Aadhaar-based identification systems and surveillance policies—that may undermine individual freedoms.
Privacy vs. National Security and State Surveillance
Although the Puttaswamy judgment strengthened privacy protections, tensions remain due to expanding state surveillance mechanisms. Systems like the Central Monitoring System (CMS), NATGRID, and facial recognition technologies have raised alarms about mass surveillance without adequate judicial oversight or transparency.
The 2021 Pegasus spyware controversy further exposed the vulnerabilities in India’s privacy regime. Allegations of unauthorized surveillance on journalists, opposition leaders, and civil society actors brought into question the government’s compliance with the privacy standards laid down by the Court. In the absence of strong data protection safeguards, such surveillance practices operate in a largely unregulated space.
The Digital Personal Data Protection Act, 2023
To address growing concerns around digital privacy, the Indian government enacted the Digital Personal Data Protection Act, 2023. While the Act aims to regulate the collection and use of personal data, it has been met with criticism for granting broad exemptions to the state and for lacking an independent oversight body.
Additionally, concepts like “deemed consent,” the lack of mandatory data localization, and the limited scope of user rights have led many to question whether the Act adequately protects individuals in the digital age. These shortcomings raise concerns about the effectiveness of the law in fulfilling the constitutional promise of privacy.
Comparative View: India and the European Union
In contrast to India, the European Union’s General Data Protection Regulation (GDPR) is widely regarded as a comprehensive and citizen-focused privacy framework. It enforces principles such as data minimization, informed consent, and transparency, and imposes strict penalties for violations.
India’s approach, however, often prioritizes state interests—particularly in the context of public order and national security—over individual data rights. This highlights a fundamental divergence: while the EU adopts a rights-based and privacy-forward stance, India’s framework continues to reflect a state-centric model, despite constitutional safeguards.
NATURAL LAW IN INDIA
Hindu legal system is perhaps the most ancient legal system of the world. They developed a very logical and comprehensive body of law at very early times. A sense of ‘Justice’ pervades the whole body of law. But the frequent changes in the political system and government and numerous foreign invasions, one after the other prevented its systematic and natural growth. Under the foreign rule no proper attention could be paid to the study of this legal system. Many theories and principles of it are still unknown, un-investigated. Whether there was any conception of ‘Natural Law’ or not, and if there was any, what was its authority and its relation with ‘Positive Law’ are the questions which cannot be answered with great certainty. However, some principles and provisions can be pointed out in this respect. According to the Hindu view, Law owes its existence to God. Law is given in ‘Shruti’ and ‘Smritis’. The king is simply to execute that law and he himself is bound by it and if goes against this law he should be disobeyed. Puranas are full of instances where the kings were dethroned and beheaded when they went against the established law.
Indian Constitution is based on the pillars of Natural Justice, which is a revised version of natural law. Although the Constitution does not specifically talk about the principle of natural justice/law, the provisions are embodied in this sense. Starting from the Preamble, the words Justice inclusive of social, economic and political and equality of status and though, etc. prove that natural law principles are there in the Indian Constitution.
Apart from the Preamble, Article 14 ensures equality before the law to all the citizens without any discrimination of any sort. Then there is an Article 21which guarantee Right to Life and Liberty, which is also the most comprehensive article of the whole constitution is based on the premises of natural justice. Article 14, 19 and 21 which is also the golden triangle of the constitution has drawn inspiration from natural law.
In Air India v. Nargis Mirza[7], the Supreme Court had struck down the Air India and Indian Airlines regulations on retirement and pregnancy bar on the services of air hostesses as unconstitutional on the ground that regulations were arbitrary and unreasonable under Article 14 of the Constitution.
In Maneka Gandhi v Union of India[8], the meaning of life and personal liberty under Article 21 came up for consideration and the Supreme Court held that the law established by the state should be just, fair and reasonable.
In A.D.M. Jabalpur v Shivakant Shukla[9], this was a case of Habeas Corpus petition. This was in the context of suspension of enforcement of Articles 14, 21 and 22 during the time of emergency. Court held that even in the absence of Article 21, the right to life and liberty of a person cannot be taken away.
INDIAN CONSTITUTION AND NATURAL LAW
Indian Constitution is based on the pillars of Natural Justice, which is a revised version of natural law. Although the Constitution does not specifically talk about the principle of natural justice/law, the provisions are embodied in this sense. Starting from the Preamble, the words Justice inclusive of social, economic and political and equality of status and though, etc. prove that natural law principles are there in the Indian Constitution.
Apart from the Preamble, Article 14 ensures equality before the law to all the citizens without any discrimination of any sort. Then there is an Article 21which guarantee Right to Life and Liberty, which is also the most comprehensive article of the whole constitution is based on the premises of natural justice. Article 14, 19 and 21 which is also the golden triangle of the constitution has drawn inspiration from natural law.
CONCLUSION
In this era of fast growing information technology, the privacy is required to be fundamental in nature and in this regard the judgment of the Hon’ble Supreme Court is correct in the sense that it provided for the Privacy to be a right under the ambit of Part III of the Constitution of the India. Also with the enactment of the Data Protection Act, which is likely to be enacted soon the right to privacy being fundamental in nature will play an important role and will help to provide protection to the online data and will provide for informational privacy as well. Jurisprudentially also, Bentham gave the pain and pleasure theories.
Hence, the Government must take into account the pleasure of larger number of people should try to inflict lesser pain. There must be regulation on the arbitrary use of power by the Government with respect to personal information of the people. Also when it comes to the conflict between the infringement of privacy and public interest, reasonable care must be taken to choose as to what is more important. Individual interest cannot override public interest. The maxim “salus populi est suprema lex”[10] which means public welfare is the highest law must be maintained in the democracy.
The concept of natural law has taken several forms. The idea began with ancient Greek’s conception of a universe that is governed by an unchanging, eternal law; the natural law had its importance in every period. Even when there was degradation of natural law in the 19th century, it was realized that natural law and not positivism is the panacea for all the problems.
Later, after the drastic consequences of the World Wars, there was the setting up of a natural law school. Post World War situation was the reason for the introduction of UDHR. There have been several theories on natural law, like some scholars believed that morality is essential for existence of a person in the society, while others gave it different names like Genomics or natural justice (let the other party be heard or nobody shall be a judge in his cause).
But an excess of everything is dangerous; even the natural law has committed excesses. The abstract principles of the natural law led to the development of some of the laws which were in conflict with different communities or sections of the society. Therefore, any law should be based on the mixture of natural law principles of morality and justice, and the positivistic principle of some fixed proposition, which is the law as it is and even a cue can be taken from the sociological or historical school.
About Author
Sai Bharanya, a 4th-year law student at KIIT School of Law, Bhubaneswar, is an aspiring legal scholar with a keen interest in International Law and Intellectual Property Rights. Driven by a passion for understanding the global legal framework and the protection of creative innovation, Sai actively engages in legal writing and research to contribute to contemporary legal discourse.