National Law Institute University: Judicial Evolution of Right To Privacy in India

Download as pdf or txt
Download as pdf or txt
You are on page 1of 14

NATIONAL LAW INSTITUTE UNIVERSITY

HUMAN RIGHTS

A Project On:

Judicial Evolution of Right to Privacy in India

SUBMITTED BY:

SUBMITTED TO:

AKSHEY JOSE

DR. UDAY PRATAP SINGH

2013 B.A.LLB 39

PROFESSOR
Page | 1

TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 3
THE ROLE OF THE JUDICIARY ................................................................................................ 5
Kharak Singh v. State of Uttar Pradesh ...................................................................................... 5
Gobind v. State of Madhya Pradesh ........................................................................................... 5
State v. Charulata Joshi ............................................................................................................... 6
R. Rajagopal v. State of Tamil Nadu .......................................................................................... 6
Peoples Union for Civil Liberties v. Union of India ................................................................. 8
R. M. Malkani v. State of Maharashtra ....................................................................................... 8
Mr. X v. Hospital Z ............................................................................................................... 8
Sharda v. Dharmpal .................................................................................................................. 10
Naz Foundation v. Govt. of NCT of Delhi ............................................................................... 12
CONCLUSION ............................................................................................................................. 13
BIBLIOGRAPHY ......................................................................................................................... 14

Page | 2

INTRODUCTION

Of all the human rights in the international catalogue, privacy is perhaps the most difficult to
define and circumscribe. Definitions of privacy vary widely according to context and
environment. In many countries, the concept has been fused with data protection, which
interprets privacy in terms of management of personal information. Outside this rather strict
context, privacy protection is frequently seen as a way of drawing the line at how far society can
intrude into a person's affairs. It can be divided into the following facets:

Information Privacy, which involves the establishment of rules governing the collection
and handling of personal data such as credit information and medical records;

Bodily privacy, which concerns the protection of people's physical selves against
invasive procedures such as drug testing and cavity searches;

Privacy of communications, which covers the security and privacy of mail, telephones,
email and other forms of communication; and

Territorial privacy, which concerns the setting of limits on intrusion into the domestic
and other environments such as the workplace or public space.

The literal meaning of privacy, as defined in the New Oxford English Dictionary is the absence
or avoidance of publicity or display; the state or condition from being withdrawn from the
society of others, or from public interest; seclusion. The Blacks Law Dictionary refers to
privacy as the right to be let alone; the right of a person to be free from unwarranted publicity;
and the right to live without unwarranted interference by the public in matters with which the
public is not necessarily concerned. Therefore, the right to privacy, notwithstanding its
differing connotations, remains a private right of an individual.
The lack of a single definition should not imply that the issue lacks importance. Privacy can be
defined as a fundamental (though not an absolute) human right. In 1765, British Lord Camden,
striking down a warrant to enter a house and seize papers wrote, "We can safely say there is no
law in this country to justify the defendants in what they have done; if there was, it would destroy
all the comforts of society, for papers are often the dearest property any man can have." 1 British
1

Entick v. Carrington, 95 ER 807

Page | 3

parliamentarians went to the extent of saying; "The poorest man may in his cottage bid defiance
to all the force of the Crown. It may be frail; its roof may shake; the wind may blow though it;
the storms may enter; the rain may enter -- but the King of England cannot enter; all his forces
dare not cross the threshold of the ruined tenement."
The modern privacy benchmark at an international level can be found in the 1948 Universal
Declaration of Human Rights, which specifically protected territorial and communications
privacy. Article 12 states:
No-one should be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks on his honour or reputation. Everyone has the right to the
protection of the law against such interferences or attacks.
India is a party to the United Nation's International Covenant on Civil and Political Rights.
Article 17 of the Covenant states that no one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home or correspondence, nor to unlawful attacks on his
honour and reputation. Everyone has the right to the protection of the law against such
interference and attacks. India ratified the Covenant on March 27, 1979. The instrument of
ratification contains reservations to some of the other provisions of the Covenant, but not to
Article 17. This is a treaty obligation enforceable internationally through the Human Rights
Committee set up by the Covenant. India has to file periodic reports on its observance of the
Covenant and successive Attorneys General have been grilled by the Committee's members on
the pathetic state of India's reports.

Page | 4

THE ROLE OF THE JUDICIARY

Judicial activism has brought the Right to Privacy within the realm of Fundamental Rights.
Article 141 of the Constitution states that the law declared by the Supreme Court shall be
binding on all courts within the territory of India. Therefore, the decisions of The Supreme
Court of India become the Law of the Land.
The Supreme Court of India has come to the rescue of common citizen, time and again by
construing right to privacy as a part of the Fundamental Right to protection of life and
personal liberty under Article 21 of the Constitution, which states no person shall be deprived
of his life or personal liberty except according to procedures established by law. The Supreme
Court has reiterated the Right to Privacy in the following cases:
Kharak Singh v. State of Uttar Pradesh2
In this case the appellant was being harassed by police under Regulation 236(b) of UP Police
Regulation, which permits domiciliary visits at night. The Supreme Court held that the
Regulation 236 is unconstitutional and violative of Article 21. It concluded that the Article 21 of
the Constitution includes right to privacy as a part of the right to protection of life and
personal liberty. The Court equated personal liberty with privacy, and observed, that the
concept of liberty in Article 21 was comprehensive enough to include privacy and that a persons
house, where he lives with his family is his castle and that nothing is more deleterious to a
mans physical happiness and health than a calculated interference with his privacy.
Gobind v. State of Madhya Pradesh3
The case related to surveillance according to Regulations 855 and 856 of Madhya Pradesh Police
Regulations. The Court held that though the right to privacy existed, but its violation could be
sanctioned under law and it had not been violated since the procedure was required by law.
This is another case on domiciliary visits. The Supreme Court laid down that privacy-dignity
claims deserve to be examined with care and to be denied only when an important countervailing

2
3

AIR 1963 SC 1295


(1975) SCC (Cri) 468

Page | 5

interest is shown to be superior. If the Court does find that a claimed right is entitled to
protection as a fundamental privacy right, a law infringing it must satisfy the compelling State
interest test
State v. Charulata Joshi4
The Supreme Court held that the constitutional right to freedom of speech and expression
conferred by Article 19(1)(a) of the Constitution which includes the freedom of the press is not
an absolute right. The press must first obtain the willingness of the person sought to be
interviewed and no court can pass any order if the person to be interviewed expresses his
unwillingness.
R. Rajagopal v. State of Tamil Nadu5
In the present case the proposition which was raised concerned the freedom of press vis-a-vis the
right to privacy of the citizens of this country. It also followed the discussion as to the parameters
of the right of the press to criticize and comment on the acts and conduct of public officials. The
petitioner is the editor, printer and publisher of a Tamil weekly magazine 'Nakkheeran',
published from Madras. The petitioner sought issuance of an appropriate writ, order or direction
under Article 32 of the Constitution, restraining the respondents from interfering with the
publication of the autobiography of the condemned prisoner, Auto Shankar, in their magazine.
Shankar (Gauri Shankar, Auto Shankar) was charged and tried for as many as six murders.
The autobiography alleged, among other things, that public officials were implicated with the
author in criminal activities. In a free democratic society it is almost too obvious to need stating
that those who hold office in government and who are responsible for public administration must
always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political
censorship of the most insidious and objectionable kind. The law laid down in the United States
follows; Publication without consent of anything that concerns a persons private life, whether
truthful or not, will generally violate that persons right to privacy and lay the foundation for an
action for damages unless the person has voluntarily put him or herself in the public eye or the
publication is based upon public records, including court records except where such records

4
5

(1999) 4 SCC 65
AIR 1995 SC 264

Page | 6

relate to the naming of victims of offences such as sexual assault.6 The petitioners therefore,
had the right to publish without consent, those parts of Auto Shankers autobiography that
appeared from public records but, if they published any information that went beyond that
source, they may be liable for breaching his right to privacy. The respondents cannot take it upon
themselves to institute proceedings to protect Auto Shankers right to privacy in the absence of
any evidence that he requested or authorised them to do so.
The Supreme Court of India quoted at length from the landmark judgment of the US Supreme
Court in New York Times vs. Sullivan7, which concluded that a public official can only
recover damages for libel if a publication was false and made with a reckless disregard for the
truth. The Court next considered the judgment of the House of Lords in the United Kingdom in
Derbyshire County Council vs. Times Newspapers Ltd.8 The House of Lords ruled that not
only was there no public interest in allowing governmental institutions to sue for libel, but it was
even "contrary to the public interest because to admit such actions would place an undesirable
fetter on freedom of speech". The court came with an opinion that a public official bears the
burden of proving that a defamatory statement was both false and made with reckless disregard
for the truth. In defence, the media defendant needs only to show that he made a reasonable
effort to verify the facts. The concept of freedom of press is something which has gained
acceptance only in the recent past and which is still evolving.
The law says that privacy-dignity claims deserve to be examined with care and to be denied only
when an important countervailing interest is shown to be superior. If the Court does find that a
claimed right is entitled to protection as a fundamental privacy right, a law infringing it must
satisfy the compelling State interest test.
The Supreme Court held that the petitioners have a right to publish what they allege to be the
life-story/autobiography of Auto Shankar insofar as it appears from the public records, even
without his consent or Authorization. But if they go beyond that and publish his life story, they
may be invading his right to privacy, then, they will be liable for the consequences in accordance
with law. Similarly, the State or its officials cannot prevent or restraint the said publication. It

Cox Broadcasting Corp v Cohn, 420 US 469 (1975)


376 US 254 (1964)
8
1993 (2) W.L.R. 449
7

Page | 7

Stated that A citizen has a right to safeguard the privacy of his own, his family, marriage,
procreation, motherhood, child bearing and education among other matters. None can publish
anything concerning the above matters without his consent- whether truthful or otherwise and
whether laudatory or critical. If he does so, he would be violating the right to privacy of the
person concerned and would be liable in an action for damages.
Peoples Union for Civil Liberties v. Union of India9
The Supreme Court held that the telephone tapping by Government under section 5(2) of
Telegraph Act, 1885 amounts infraction of Article 21 of the Constitution of India. Right to
privacy is a part of the right to life and personal liberty enshrined under Article 21 of the
Constitution. The said right cannot be curtailed except according to procedure established by
law. The court in this case made two observations which would have a lasting impact on
privacy jurisprudence in India firstly, it rejected the contention that prior judicial scrutiny
should be mandated before any wiretapping could take place and accepted the contention that
administrative safeguards would be sufficient.
R. M. Malkani v. State of Maharashtra10
In 1972, the Supreme Court decided a case one of the first of its kind on wiretapping. The
petitioners voice had been recorded in the course of a telephonic conversation where he was
attempting blackmail. He asserted in his defence that his right to privacy under Article 21 had
been violated. The Supreme Court declined his plea holding that the telephonic conversation of
an innocent citizen will be protected by courts against wrongful or high handed interference by
tapping the conversation. The protection is not for the guilty citizen against the efforts of the
police to vindicate the law and prevent corruption of public servants.
Mr. X v. Hospital Z11
For the first time the Supreme Court articulated on sensitive data related to health. In this case,
the appellants blood test was conducted at the respondents hospital and he was found to be HIV
(+). His marriage, which was already settled, was called off after this revelation. Several persons
including the members of his family and those belonging to their community came to know of
9

(1997) 1 SCC 318


AIR 1973 SC 157
11
(1998) 8 SCC 296
10

Page | 8

his HIV (+) status and was ostracized by the community. He approached the National
Commission against the respondent hospital claiming damages from them for disclosing
information about his health, which, by norms of ethics, according to him, ought to have been
kept confidential.
The National Commission summarily dismissed his complaint. Consequently he moved the
Supreme Court by way of an appeal. The appellant argued that the principle of duty of care as
applicable to persons in medical profession also included the duty to maintain confidentiality and
that since this duty was violated by the respondents, they were liable to pay damages. Right of
privacy may, apart from contract, also arise out of a particular specific relationship, which may
be commercial, matrimonial, or even political. Doctor-patient relationship, though basically
commercial, is professionally, a matter of confidence and, therefore, doctors are morally and
ethically bound to maintain confidentiality. It however, held that although it was the basic
principle of jurisprudence that every right has a correlative duty and every duty has a correlative
right, the rule was not absolute and was subject to certain exceptions in the sense that a person
may have a right, but there may not be correlative duty, and the instant case fell within
exceptions. The court observed that even the Code of Medical Ethics carved out an exception to
the rule of confidentiality and permitted the disclosure in certain circumstances under which
public interest would override the duty of confidentiality particularly where there is an
immediate or future health risk to others. According to the court, the right to confidentiality, if
any, vested in the appellant was not enforceable in the present situation, as the proposed
marriage carried with it the health risk from being infected with the communicable disease from
which the appellant suffered. As regards the argument of the appellant that his right to privacy
had been infringed by the respondents by disclosing that he was HIV (+) and, therefore, they
were liable in damages, the Supreme Court observed that as one of the basic human rights, the
right of privacy was not treated as absolute and was subject to such action as may be lawfully
taken for the prevention of crime or disorder or protection of health or morals or protection of
rights and freedom of others.
If one follows the judgments given by the Honble Supreme Court, three themes emerge:

that the individuals right to privacy exists and any unlawful invasion of privacy would
make the offender liable for the consequences in accordance with law;
Page | 9

that there is constitutional recognition given to the right of privacy which protects
personal privacy against unlawful governmental invasion;

that the persons right to be let alone is not an absolute right and may be lawfully
restricted for the prevention of crime, disorder or protection of health or morals or
protection of rights and freedom of others.

The jurisprudential edifice of the distinction between a right as emanating from a named right
and a right as a facet of a named right is traced to the opinion expressed by Bhagwati, J, in the
Maneka Gandhi case12. Distinguishing between named rights and unnamed rights, Bhagwati
held that it was not enough that a right merely flowed from or emanated from a named right, i.e.
rights categorically mentioned in the text of the Constitution. Therefore, an unnamed right (rights
not mentioned in the text of the Constitution) to be a part of the named right, it must be integral
to the named right or must partake of the same basic nature or character of the named right. In
his opinion, each activity which facilitates the exercise of the named fundamental right is not
necessarily comprehended in that fundamental right. Since the right to privacy does not exist as a
named right, in order to become a part of the named right to personal liberty, this has to be
shown as being integral to personal liberty or partaking the same basic character as personal
liberty. The ruling in the Gobind case, concluding that the right to privacy is a fundamental
right, flowing and emanating as derivative and penumbral from the other named rights, cannot be
regarded to be good law as it does not satisfy the test of unnamed rights.
Sharda v. Dharmpal13
In the instant case a man filed for divorce on that grounds that his wife suffered from a mental
illness. In order to establish his case, he requested the court to direct his wife to submit herself to
a medical examination. The trial court and the high court both granted his application. On appeal
to the Supreme Court, the woman contested the order on grounds firstly, that compelling a
person to undergo a medical examination by an order of the court would be violative of her right
to 'personal liberty' guaranteed under Article 21 of the Constitution of India. Secondly, in
absence of a specific empowering provision, a court dealing with matrimonial cases cannot

12
13

(1978) 1 SCC 248


(2003) 4 SCC 493

Page | 10

subject a party to undergo medical examination against his her volition. The court could merely
draw an adverse inference.
The Supreme Court rejected these contentions holding that the right to privacy in India was not
absolute. If the respondent avoids such medical examination on the ground that it violates
his/her right to privacy or for a matter right to personal liberty as enshrined under Article 21 of
the Constitution of India, then it may in most of such cases become impossible to arrive at a
conclusion. It may render the very grounds on which divorce is permissible nugatory. The court
upheld the rights of matrimonial courts to order a person to undergo medical test. Such an order,
the court held, would not be in violation of the right to personal liberty under Article 21 of the
Constitution of India. However, this power could only be exercised if the applicant had a strong
prima facie case, and there was sufficient material before the court. Crucially, the court held that
if, despite the order of the court, the respondent refused to submit herself to medical
examination, the court would be entitled to draw an adverse inference against him.
Thus, oddly, one limitation on the right to privacy appears to be the statutory rights of others.
One is entitled to the privacy of ones body, to the extent that another person is not, thereby,
deprived of a statutory right as in this case, to divorce.
Rohit Shekhar v. Narayan Dutt Tiwari14
The Delhi High was called upon to determine whether a man had a right to subject the person he
named as his biological father to a DNA test. The court relied on international covenants to
affirm the right of the child to know of his biological antecedents irrespective of his
legitimacy. The court ruled:
There is of course the vital interest of child to not be branded illegitimate; yet the conclusiveness
of the presumption created by the law in this regard must not act detriment to the interests of the
child. If the interests of the child are best served by establishing paternity of someone who is not
the husband of his mother, the court should not shut that consideration altogether. The protective
cocoon of legitimacy, in such case, should not entomb the childs aspiration to learn the truth of
her or his paternity. The court went on to draw a distinction between legitimacy and paternity
that may both be accorded recognition under Indian law without prejudice to each other. While
14

IA No.4720/2008 in CS (OS) 700/2008

Page | 11

legitimacy may be established by a legal presumption [under section 112 of the Evidence Act],
paternity has to be established by science and other reliable evidence. The court, however,
reaffirmed that the same considerations would apply as was laid down in previous cases i.e.,
the plaintiff would have to establish a prima facie case and weigh the competing interests of
privacy and justice before it could order a DNA test. In this case, the petitioner was able to
produce DNA evidence that excluded the possibility that his legal father was his biological
father. In addition, photographic and testimonial evidence suggested that the respondent could be
his biological father. On these grounds the Delhi High Court ordered the respondent to undergo a
DNA test. This was upheld in an appeal to the Supreme Court.
Naz Foundation v. Govt. of NCT of Delhi15
In 2006, the National AIDS Control Organisation filed an affidavit stating that the enforcement
of Section 377 violates LGBT rights.[5] Subsequently, there was a significant intervention in the
case by a Delhi-based coalition of LGBT, women's and human rights activists called "Voices
Against 377", which supported the demand to "read down" section 377 to exclude adult
consensual sex from within its purview.
The Court located the rights to dignity and privacy within the right to life and liberty guaranteed
by Article 21 (under the fundamental Right to Freedom charter) of the Constitution, and held that
criminalization of consensual gay sex violated these rights.
The Court also held that Section 377 offends the guarantee of equality enshrined in Article 14
(under the fundamental Right to Equality charter) of the Constitution, because it creates an
unreasonable classification and targets homosexuals as a class. Public animus and disgust
towards a particular social group or vulnerable minority, it held, is not a valid ground for
classification under Article 14. Article 15 of the Constitution forbids discrimination based on
certain characteristics, including sex. The Court held that the word "sex" includes not only
biological sex but also sexual orientation, and therefore discrimination on the ground of sexual
orientation is not permissible under Article 15. The Court also noted that the right to life under
Article 21 includes the right to health, and concluded that Section 377 is an impediment to public
health because it hinders HIV-prevention efforts.

15

Page | 12

The Court did not strike down Section 377 as a whole. The section was declared unconstitutional
in so far it criminalises consensual sexual acts of adults in private. The judgment keeps intact the
provision insofar as it applies to non-consensual non-vaginal intercourse and intercourse with
minors. The court stated that the judgment would hold until Parliament chose to amend the law.

CONCLUSION
On the basis of a dispassionate perusal of the aforementioned judicial rulings, it is evident that
there is an implied but judicially evolved and recognized right to privacy under the Indian
Constitution. Although the rulings of the Supreme Court in the case of Kharak Singh denied the
existence of any right to privacy, smaller benches in the cases of Gobind, Rajagopal and PUCL
unmistakably indicate the existence of such a right. The shift in judicial interpretation is most
notably observed following the Maneka Gandhi case, wherein this right is recognized, subject to
legal restrictions satisfying the requirements as laid down in the Maneka Gandhi case. However,
if the courts were to address the issue of right to privacy under Article 21 afresh, there is little
doubt that it would conclude that there does exist a right to privacy. Such a statement will not be
valid law unless stated by a bench of more than six judges so as to effectively overrule Kharak
Singh. On a harmonious interpretation of the legal principles as laid down by the Supreme Court
at different points of time, it is sufficient to conclude the existence of right to privacy under Part
III of the Constitution.
The first principle was stated in Kharak Singh, which said that personal liberty used in Article
21 is a compendious term to include within itself all varieties of rights which go to make up the
personal liberty of man other than those dealt with in several clauses of Article 19(1). The
second and third principles were laid down in Maneka, which stated that any law interfering with
personal liberty must be just, fair and reasonable and that an unnamed right may be regarded as
part of a named fundamental right if it partakes of the same basic nature and character of the
named right.
Privacy is also a feature of the dignity of an individual that the preamble to the Constitution
assures every individual. Thus, the right is not merely a negative mandate upon the state not to
encroach upon the private space of the individual but is also a positive affirmation on the state to
create adequate institutions that would enable one to effectively protect his private life.
Page | 13

BIBLIOGRAPHY

Websites:

www.manupatra.com, 04.Sep.2015

www.delhihighcourt.nic.in, 04.Sep.2015

www.indiankanoon.com, 05.Sep.2015

www.cis-india.org, 05.Sep.2015

www.rtifoundationofindia.com/evolution-right-privacy-india, 04.Sep.2015

Articles referred:

Jean-Jacques and Debroy, B. eds. 2000. Some issues in law reform in India, Governance,
Decentralization and Reform in China, India and Russia, Dethier : Kluwer Academic
Publishers. Web. 04.Sep.2015

Warren, S and Brandeis, L.eds. 2000 The Right To Privacy, 4 Harvard Law Review 193
(1890) Web. 04.Sep.2015

Kumaraguru, I and Cranor, I. Privacy Perceptions in India and the United State: An
Interview Study, p. 9, www.cs.cmu.edu/~ponguru/tprc_2005_pk_lc_en.pdf
Web. 05.Sep.2015

Privacy & Human Rights, An international survey of privacy laws and developments,
Electronic Privacy Information Center, 2004, Web. 05.Sep.2015

Page | 14

You might also like