RIGHT TO PRIVACY
Abstract
A very fascinating development in the Indian Constitutional jurisprudence is the extended
dimension given to Article 21 by the Supreme Court in post-Maneka era. The Supreme Court
has asserted that Art. 21 is the heart of the Fundamental Rights. Article 21 has proved to be
multi-dimensional. The extension in the dimensions of Art.21 has been made possible by
giving an extended meaning to the word ‘life’ and ‘liberty’ in Article 21. These two words in
Art.21 are not to be read narrowly. These are organic terms which are to be construed
meaningfully.
The Supreme Court has asserted that in order to treat a right as a fundamental right, it is not
necessary that it should be expressly stated in the constitution as a Fundamental Right.
Political, social, and economic changes in the country entail the recognition of new rights.
The law in its eternal youth grows to meet the demands of society.
Right to privacy is one such right which has come to its existence after widening up the
dimensions of Article 21. The constitution in specific doesn’t grant any right to privacy as
such. However, such a right has been culled by the Supreme Court from Art. 21 and several
other provisions of the constitution read with the Directive Principles of State Policy. In this
paper we will be discussing over a new dimension of Art. 21 that is the Right to Privacy and
also the conflicts related to it.
Introduction
Before we get into a complete discussion of Right to Privacy first of all we need to know
what does the word Privacy mean. According to Black’s Law Dictionary “right to be let
alone; the right of a person to be free from any unwarranted publicity; the right to live
without any unwarranted interference by the public in matters with which the public is not
necessarily concerned”.
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”. After reading the Article
21, it has been interpreted that the term ‘life’ includes all those aspects of life which go to
make a man’s life meaningful, complete and worth living.
Like everything mankind has ever achieved, there has been a positive and a negative side to
it. Technology has invaded every part of our lives whether the invasion was desired or not,
we cannot be sure whether what we say has been heard by a third party as well whether that
was desired or not. The proverbial Hindi saying of even walls having ears has never rung
truer. The principle of the world today can be: whatever you may do, the world will get to
know before you realize, ask a certain Tiger Woods about it.
In the earlier times in India, the law would give protection only from physical dangers such
as trespass from which the Right to Property emerged to secure his house and cattle. This was
considered to be the Right to Life. As the ever-changing common law grew to accommodate
the problems faced by the people, it was realized that not only was physical security required,
but also security of the spiritual self as well as of his feelings, intellect was required. Now the
Right to Life has expanded in its scope and comprises the right to be let alone the right to
liberty secures the exercise of extensive civil privileges; and the term “property” has grown to
comprise every form of possession — intangible, as well as tangible.
The strategy adopted by the Supreme Court with a view to expand the ambit of Art. 21 and to
imply certain right there from, has been to interpret Art.21 along with international charters
on Human Rights.
The Court has implied the right of privacy from Art.21 by interpreting it in conformity with
Art.12 of the Universal Declaration on Human Rights and Art.17 of the International
Covenant on Civil and Political Rights, 1966. Both of these international documents provide
for the right of privacy.
Right to privacy is not enumerated as a Fundamental Right in the Constitution of India. The
scope of this right first came up for consideration in Kharak Singh’s Case which was
concerned with the validity of certain regulations that permitted surveillance of suspects. The
minority decision of SUBBA RAO J. deals with this light. In the context of Article 19(1) (d),
the right to privacy was again considered by the Supreme Court in 1975. In a detailed
decision, JEEVAN REDDY J. held that the right to privacy is implicit under Article 21. This
right is the right to be let alone. In the context of surveillance, it has been held that
surveillance, if intrusive and seriously encroaches on the privacy of citizen, can infringe the
freedom of movement, guaranteed by Articles 19(1)(d) and 21. Surveillance must be to
prevent crime and on the basis of material provided in the history sheet. In the context of an
anti-terrorism enactment, it was held that the right to privacy was subservient to the security
of the State and withholding information relevant for the detention of crime can’t be nullified
on the grounds of right to privacy. The right to privacy in terms of Article 21 has been
discussed in various cases.
International Concepts of Privacy
Article 12 of Universal Declaration of Human Rights (1948) states that “No one shall be
subjected to arbitrary interference with his privacy, family, home or correspondence nor to
attack upon his honour and reputation. Everyone has the right to protection of the law against
such interference or attacks.”
Article 17 of International Covenant of Civil and Political Rights (to which India is a party)
states “No one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home and correspondence, nor to unlawful attacks on his honour and reputation”
Article 8 of European Convention on Human Rights states “Everyone has the right to respect
for his private and family life, his home and his correspondence; there shall be no
interference by a public authority except such as is in accordance with law and is necessary in
a democratic society in the interests of national security, public safety or the economic well-
being of the country, for the protection of health or morals or for the protection of the rights
and freedoms of others.”
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 , 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.,(1978) 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) 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.
Right To Privacy-Permissible Restriction
Intrusion into privacy may be by- (1) Legislative Provision (2) Administrative/Executive
order (3) Judicial Orders. Legislative intrusion must be tested on the touchstone of
reasonableness as guaranteed by the Constitution and for that purpose the Court can go into
proportionality of the intrusion vis-à-vis the purpose sought to be achieved. (2) So far as
administrative or executive action is concerned it has to be reasonable having regard to the
facts and circumstances of the case. (3) As to judicial warrants, the Court must have
sufficient reason to believe that the search or seizure is warranted and it must keep in mind
the extent of search or seizure necessary for protection of the particular State interest. In
addition, as stated earlier, common law did recognise rare exceptions for conduct of
warrantless searches could be conducted but these had to be in good faith, intended to
preserve evidence or intended to prevent sudden anger to person or property.
Tapping of Telephone
Telephone tapping constitutes a serious invasion of an individual’s right to privacy. Is it
constitutionally permissible in India? If so, within what limits and subject to what
safeguards?
The questions posed above have been fully considered by the Supreme Court in People’s
Union for Civil Liberties v. Union of India. In this case Public Interest Litigation was filed
protesting rampant instances of phone tapping of politician’s phones by CBI. The court ruled
that ‘telephone conversation is an important facet of a man’s private life’. The right to hold a
telephone conversation in the privacy of one’s home or office without interference can
certainly be claimed as “right to privacy”. So, tapping of telephone is a serious invasion of
privacy. This means that telephone tapping would infract Article 21 unless it is permitted
under the procedure established by law. The procedure has to be “just, fair and reasonable”.
The Court laid down exhaustive guidelines to regulate the discretion vested in the State under
Section 5 of the Indian Telegraph Act for the purpose of telephone tapping and interception
of other messages so as to safeguard public interest against arbitrary and unlawful exercise of
power by the Government. Section 5(2) of the Act permits the interception of messages in
accordance with the provisions of the Act. “Occurrence of any public emergency” or in
interest of public safety” are the sine qua non “for the application of provisions under section
5(2) of the Act unless a public emergency has occurred or the interest of public safety
demands, the authorities have no jurisdiction to exercise the powers under the said
legislation. The Court said public emergency would mean the prevailing of sudden condition
or state of affairs affecting the people at large calling for immediate action. The expression
‘public safety’ means the state or condition of grave danger or risk for the people at large.
When either these two conditions are not in existence, the Court said, the Central
Government or the State Government or the authorised officers cannot resort to telephone
tapping even though there is satisfaction that it is necessary or expedient so to do in the
interest of sovereignty and integrity of the country. In other orders, even if the Central
Government is satisfied that it is necessary or expedient so to do in the interest of the
sovereignty or integrity of the country or the security of the State or friendly relations with
foreign States or public order or for preventing for incitements to the commission of an
offence it cannot intercept the message or resort to telephone tapping unless a public
emergency has occurred or the interest of public safety or the existence of the interest of
public safety requires.
The Court has laid down the following procedural safeguards for the exercise of power under
Section 5(2) of the Indian Telegraph Act-
· An order for telephone tapping can be issued only by the Home Secretary of the Central
Government or the State Governments. In an urgent case, the power may be delegated to an
officer of the Home Department of the Central and the State Governments not below the rank
of Joint Secretary.
· The copy of the order shall be sent to the Review Committee within one week of the passing
of order.
· The order shall, unless renewed, cease to have effect at the end of two months from the date
of issue. The authority making the order may review before that period if it considered that it
is necessary to continue the order in terms of Section 5(2) of the Act.
· The authority issuing the order shall maintain the record of intercepted communications, the
extent the material to be disclosed, number of persons, their identity to whom the material is
disclosed.
· The use of intercepted material shall be limited to the minimum that is necessary in terms of
Section 5(2) the Act.
· The Review Committee shall on its own, within two months, investigate whether there is or
has been a relevant order under section 5(2) of the Act.
· If on investigation the Review Committee concludes that there has been a contravention of
the provisions of Section 5(2) of the Act, shall set aside the order. It can also direct the
destruction the copies of the intercepted material.
· If on investigation the Review Committee comes to the conclusion that there has been no
contravention of the relevant provision of the Act, it shall record the finding to that effect.
The Court noted that with the growth of highly sophisticated communication technology the
right to hold telephone conversation in the privacy of one’s home or office without
interference is increasingly susceptible to abuse. In view of this, the Court’s ruling laying
down detailed guidelines for the exercise of power under the relevant Act is timely and of
historic importance.
Divorce Petition: Husband Tapping Conversation Of His Wife With Others Seeking to
Produce In Court, Violates Her Right To Privacy Under Article 21
In Rayala M. Bhuvneswari v. Nagaphomender Rayala the petitioner filed a divorce
petition in the Court against his wife and to substantiate his case sought to produce a hard
disc relating to the conversation of his wife recorded in U.S. with others. She denied some
portions of the conversation. The Court held that the act of tapping by the husband of
conversation of his wife with others without her knowledge was illegal and amounted to
infringement of her right to privacy under article 21 of the Constitution. These talks even if
true cannot be admissible in evidence. The wife cannot be forced to undergo voice test and
then asked the expert to compare portion denied by her with her admitted voice. The Court
observed that the purity of the relation between husband and wife is the basis of marriage.
The husband was recording her conversation on telephone with her friends and parents in
India without her knowledge. This is clear infringement of right to privacy of the wife. If
husband is of such a nature and has no faith in his wife even about her conversations to her
parents, then the institution of marriage itself becomes redundant.
Later Developments In Right To Privacy
Right to privacy, once incorporated as a fundamental right, is wide enough to encroach into
any sphere of activity. The conferment of such a right has become extremely difficult with
the advancement of technology and the social networking sites. But the other side of the
picture is that right to privacy of a person includes the right to seclude personal information.
The extent to which the realm of privacy of each person should remain is subjective, which
might differ from person to person. The recognition of right to privacy can also be seen in the
S. 43 of Information Technology Act which makes unauthorised access into a computer
resource invoke liability.
Today, each person is a press, taking in view the emergence of blog spots and social
networking sites. Many a times, the right to privacy may come in conflict with the right to
press the right to press is a right derived from Article 19 (1) (a) in particular. The right to
expression of a person may come in conflict with the right to privacy of another person. The
question, where there is a conflict, which should prevail over the other, is well explained by
bringing in the concept of ‘public interest’ and ‘public morality’. The publication of personal
information of an individual without his consent or approval is justified if such information
forms part of public records including Court records. Each case is distinct and each right is
special.
Any right derived from Article 19 can be derived from Article 21 too, under the wide
interpretation of ‘personal liberty’. Though the Court generally applies the test of ‘public
interest’ or ‘public morality’ in case of conflict between two derived rights, another
interpretation is also possible. A right derived under Article 21 is superior to a right derived
under Article 19, since the state enacting law in contravention of such right can be saved
under the reasonable restrictions under 19(2) to (5). The position was different in the Pre-
Maneka era, when Article 21 was not a source of substantive right.
The right to privacy may come in conflict with the investigation of police in several aspects.
Narco-analysis, polygraph test and brain mapping tests, in application, make unwarranted
intrusion into the right to privacy of a person. The Supreme Court was acknowledging the
individual right to privacy by declaring these tests inhuman and unconstitutional. The
Supreme Court in Directorate of Revenue and Anr v. Mohammed Nisar Holia cited the US
Supreme Court judgement which held ‘thermal imaging’, a sophisticated sense enhancing
technology which when kept outside the residential house of a person can detect whether the
inmate has kept narcotic substance within as infringement on the right to privacy of the said
person. The Court discouraged the unnecessary infringement of the right to privacy of a
persons and held that no authority shall be given untrammelled power to infringe the right to
privacy of a person, the Court held while reversing the conviction for non-compliance of
statutory requirement of search and seizure. Although a statutory power to make a search and
seizure by itself may not offend the right of privacy but in case of this nature, the least that a
Court can do is-to see that such right is not unnecessarily infringed.
