The emerging regime of new rights: Article 21, privacy and digital freedoms

1. The method: from Gopalan to Maneka

In A.K. Gopalan v. State of Madras (1950) the Court read Article 21 narrowly: “procedure established by law” meant any procedure enacted by a competent legislature, and each fundamental right was a separate code. Maneka Gandhi v. Union of India, 1978 INSC 16, (1978) 1 SCC 248 reversed both points. The procedure must be fair, just and reasonable, not arbitrary; Articles 14, 19 and 21 are interlinked (the “golden triangle”); and “personal liberty” is of the widest amplitude. R.C. Cooper v. Union of India (1970) had already rejected the separate-codes approach. From that point the Court derived new rights by asking what is necessary for a life with human dignity, often reading Directive Principles and international instruments into Article 21.

2. The families of new rights

3. Privacy and the proportionality test

A nine-judge Bench in Puttaswamy unanimously held that privacy is a fundamental right, intrinsic to life and liberty under Article 21 and to the freedoms in Part III, overruling M.P. Sharma (1954) and Kharak Singh (1962) to the extent they held otherwise. Privacy covers bodily integrity, informational privacy and decisional autonomy. The plurality opinion of Chandrachud J set a three-part test for any infringement: (i) legality, a law; (ii) a legitimate aim; and (iii) proportionality between the object and the means. Kaul J added procedural guarantees. The Aadhaar judgment (Puttaswamy II, 2018) applied a four-stage proportionality test, upheld the scheme for welfare delivery, and struck down its mandatory use by private entities (section 57).

Privacy has since been invoked for data protection, leading to the Digital Personal Data Protection Act, 2023, and against surveillance. In Manohar Lal Sharma v. Union of India (2021), on the Pegasus spyware allegations, the Court refused to accept a bare plea of national security and appointed a technical committee.

4. Speech and the digital sphere

• Shreya Singhal v. Union of India, 2015 INSC 257, (2015) 5 SCC 1: section 66A of the IT Act struck down as vague and overbroad. The Court distinguished discussion, advocacy and incitement, and held that only incitement could be restricted under Article 19(2). Section 79 intermediary liability was read down to require actual knowledge from a court order or government notification.
• Anuradha Bhasin: freedom of speech and the freedom to carry on trade through the internet are protected under Articles 19(1)(a) and 19(1)(g). Indefinite internet suspension is impermissible; orders must be published and must satisfy proportionality. The Court did not declare internet access itself a fundamental right.
• The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 have been challenged in several High Courts. In Kunal Kamra v. Union of India (2024) the Bombay High Court struck down the 2023 amendment creating a government fact-check unit.

5. Dignity, autonomy and equality

Navtej Singh Johar read down section 377 IPC to exclude consensual adult relations, holding that sexual orientation is an aspect of privacy, dignity and equality and invoking constitutional morality over popular morality. Joseph Shine struck down adultery (section 497 IPC) as treating the wife as the husband’s property. Common Cause recognised the right to die with dignity through passive euthanasia and advance directives. These cases, decided within a single year, mark the high point of autonomy-based reasoning.

6. Climate change

In M.K. Ranjitsinh, a case about power lines and the Great Indian Bustard, the Court recognised a right against the adverse effects of climate change, drawing on Articles 14 and 21. It referred to India’s commitments under the Paris Agreement and to decisions abroad such as the Dutch Urgenda case (2019). The right has no settled content yet and will be developed case by case.

7. The limits: the marriage equality case

In Supriyo v. Union of India, 2023 INSC 920, the Constitution Bench unanimously declined to read the Special Marriage Act, 1954 to permit same-sex marriage and held that there is no unqualified fundamental right to marry. By 3:2 it also declined to recognise a right to civil union, leaving the matter to Parliament. The minority (Chandrachud CJ and Kaul J) would have recognised a right to form a union. The case shows the Court drawing a line where a new right would require building a legal institution rather than removing a prohibition.

8. Strikes, hartals and bandhs

The syllabus places strikes and bandhs beside life and privacy because the cases turn on whose rights prevail: the protesters’ freedoms of speech and assembly under Article 19(1)(a) and (b), or the liberty, livelihood and movement of everyone else under Articles 19(1)(d), 19(1)(g) and 21.

• No fundamental right to strike. In All India Bank Employees’ Association v. National Industrial Tribunal (1961) the Court held that the freedom to form unions in Article 19(1)(c) does not carry a guaranteed right to strike. Kameshwar Prasad v. State of Bihar, 1962 INSC 67, drew the line within the service rules: a ban on all demonstrations by government servants was struck down, since a peaceful demonstration is a form of expression, but the ban on strikes stood. T.K. Rangarajan v. Government of Tamil Nadu, 2003 INSC 371, went further and said government employees have no fundamental, legal, moral or equitable right to strike. The breadth of that dictum is criticised, since industrial law has always recognised a regulated statutory right to strike, now in the Industrial Relations Code, 2020, which requires notice before a strike in any industrial establishment.
• Bandhs. In Communist Party of India (M) v. Bharat Kumar, 1997 INSC 726, the Court affirmed the Kerala High Court’s Full Bench: a bandh, which by threat compels everyone to stay at home and close business, violates the fundamental rights of the rest of the community and is unconstitutional, whereas a call for a hartal or general strike that leaves people free to decide is protected expression. James Martin v. State of Kerala, 2003 INSC 722, held that participants in a bandh or hartal have no licence to destroy property or obstruct others.
• Liability for damage. In re Destruction of Public and Private Properties, 2009 INSC 535, accepted the recommendations of the Thomas and Nariman committees: organisers of a protest that turns violent can be made liable for the damage, and High Courts may set up claims tribunals on their own motion.
• Assembly and public space. In re Ramlila Maidan Incident, 2012 INSC 103: the midnight eviction of a sleeping, peaceful gathering violated Articles 19 and 21. Mazdoor Kisan Shakti Sangathan v. Union of India, 2018 INSC 635: a total ban on protests at Jantar Mantar and the Boat Club was disproportionate; regulation, not prohibition, was required. Amit Sahni v. Commissioner of Police, 2020 INSC 579 (Shaheen Bagh): public ways cannot be occupied indefinitely, and protest must be in designated places.

Comparative point: Article 8(1)(d) of the International Covenant on Economic, Social and Cultural Rights recognises the right to strike in conformity with national law, and the ILO’s supervisory bodies treat it as part of freedom of association under Convention No. 87, which India has not ratified.

How this is examined

As a short note, take the method, five or six rights with cases, and the critique. As a long question (“Article 21 is the fountainhead of new rights. Discuss” or “Right to privacy after Puttaswamy”), develop sections 3 to 7 and use the comparative material. Section 8 answers a question or short note on strikes, hartals and bandhs. Reading directive principles and fundamental duties into fundamental rights has its own note in this unit.