In a landmark judgment, the High Court of Kerala has declared that the right to access the internet is a fundamental right forming part of the right to privacy under Article 21 of the Constitution of India.
- The declaration was given by a single bench of Justice P V Asha while allowing a petition filed by a student challenging restrictions on usage of mobile and Internet access to women students at night.
- The court observed that the use of cell phones had become connected to living with “dignity and freedom”.
- The verdict comes at a time Jammu and Kashmir have been facing an unprecedented Internet and mobile phone blockade since the state’s special status was canceled more than a month ago.
- Article 21 states that “No person shall be deprived of his life or personal liberty except according to the procedure established by law.”
- Article 21 can only be claimed when a person is deprived of his “life” or “personal liberty” by the “State” as defined in Article 12.
- Violation of the right by private individuals is not within the preview of Article 21.
- Article 21 secures two rights:
- Right to life, and
- Right to personal liberty.
Evolution of Right to Privacy in India
- The Article prohibits the deprivation of the above rights except according to a procedure established by law.
- Article 21 applies to natural persons, i.e. the right is available to every person, citizen or alien. Thus, even a foreigner can claim this right.
- M.P Sharma vs Satish Chandra (1954)
- This post-independence case involved a challenge to the constitutionality of search and seizure of documents from a person against whom a first information report (FIR) has been lodged.
- A majority decision by an eight-judge Constitution bench held that the right to privacy was not a fundamental right under the Indian Constitution.
- Kharak Singh vs State of Uttar Pradesh (1962)
- The issue of state surveillance as against the right to privacy was brought to the court when Kharak Singh, who was let off in a dacoity case due to lack of evidence challenged regular surveillance by police authorities on the grounds of infringement of his constitutionally guaranteed fundamental rights.
- In a majority judgment, the court ruled that “privacy was not a guaranteed constitutional right".
- Govind vs State of M.P (1975)
- The Supreme Court was faced with a similar question in Govind vs State of Madhya Pradesh wherein it held the existence of a fundamental right to privacy under Article 21.
- Though Gobind lost, privacy won for the first time and gained a small recognition under personal liberty under the Indian Constitution.
- K.S Puttaswamy v UOI, 2017
https://www.thehindu.com/sci-tech/technology/internet/access-to-internet-is-a-basic-right-says-kerala-high-court/article29462339.ece http://www.simplydecoded.com/2016/12/20/article-21-constitution-of-india/ https://www.livemint.com/Politics/7oHGx6UJfLD0uIDXFwV9CL/Is-privacy-a-fundamental-right-Two-cases-that-Supreme-Court.html Read Also: Right To Information (Amendment) Bill, 2019
- The nine-judge bench in the case of K.S. Puttaswamy v. Union of India in 2017 overruled the decisions of M.P. Sharma and Kharak Singh.
- After the passing of the landmark judgment in 2017, it is clear that right to privacy is a fundamental right and it will not lose its status amongst the Golden Trinity of Article 14 (Right to Equality), Article 19 (Right to Freedom) and Article 21 (Right to Life and Personal Liberty).