RIGHT TO PRIVACY AND ITS SOCIOLOGICAL IMPACT IN INDIA

SOCIOLOGY

Submitted by
Name: Uditanshu Misra
ID: SM0117057
2017-2018, Semester 3
Faculty Advisor: Ms. Preeti Priyam Sharma

National Law University, Assam

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 Content

1. Introduction……………………………………………………………...…………3
1.1 Objectives ……………………………………………………………………...4
1.2 Review of Literature……...………………………………...…………………..4
1.3 Research Questions………………………....……………….……………...…..4
1.4 Research Method………………………………………………………...……..5
2. Right to Privacy…………………………………………….………………………6
3. Sociological Development of Right to Privacy in India…………...………..……..9
4. Supreme Court Judgement on Right To Privacy……...….………………..............12
5. Conclusion…...…………………………………………….………………………14
6. Bibliography………...……………………………………….……………….…....15

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 CHAPTER ONE
INTRODUCTION

In the 1890s, Samuel Warren and Louis Brandeis developed the notion of privacy; they
identified the ‘injury to the feelings’ and recognized it’s a legal injury and through invasions
upon his privacy, subjected him to mental pain and distress.1

Right to Privacy is the right or special grant allowed to a person in order for him to protect
his own individual interest by keeping safe and secure his personal or private documents,
emotions, etc. It is a means of safeguarding one’s individual rights and personal space which
he does not expect to be breached by other members of society.

Privacy is interpreted differently in many different countries. In western countries,

particularly the UK and the USA it is seen as protection against the invasion of one's privacy
by the government, companies and other individuals. Some countries have incorporated these
rights into their privacy laws and constitutions.

Right to Privacy is not clear in the Constitution of India, so it is a subject of judicial

interpretation. The judicial interpretations of fundamental right bring it within the purview of
the fundamental right.

India is a country that is developing in all aspects, including the right to privacy of those in
the country. The country has had a harsh past in terms of judgements that blatantly breach the
right to privacy. However, a recent Supreme Court judgement on this topic has lit a lamp of
hope for all Indians, thus resulting in a study of the right to privacy, an overview of the past
court cases that have led to a judgement of including the right to privacy under the right to
life and personal liberty, along with it becoming a fundamental right.

This project studies in detail the true essence of the Right to Privacy, the development of this
right in India, and most importantly, the Supreme Court judgement on the Right to Privacy.

1
https://spectrumbooksonline.in

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 1.1 LITERATURE REVIEW

 For the Many and the Few: What a Fundamental Right to Privacy Means for
India by thewire.in:
The article is a brilliant report of the entire Supreme Court judgement on the
Right to Privacy, that took place on 24 th August, 2017. It covers all the facts of
the judgement in detail.

 www.lawteacher.net:
This article gives us a comprehensive and simple, but clear picture of the
Right to Privacy. It is a great article for people to understand the basic
meaning and components of this right. It explains the significance of the Right
to Privacy, it’s state in different countries and why it should be made a
fundamental right.

1.2 SCOPE AND OBJECTIVES

The objective of this project is the following:

1. To understand the meaning of Right to Privacy.

2. To trace the development of the Right to Privacy in India.
3. To study the Supreme Court judgement on Right to Privacy.

1.3 RESEARCH QUESTIONS

1. What is the meaning of Right to Privacy?

2. How did the Right to Privacy develop in India?
3. What is the Supreme Court’s judgement on Right to Privacy?

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 1.4 RESEARCH METHODOLOGY

The methodology used for this research is exploratory and descriptive as sources collected
were library based. Secondary data in the form of articles, web excerpts, and available books
were heavily relied upon in an attempt to arrive at plausible, explanatory answers. Primary
data was not collected.

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 CHAPTER TWO
RIGHT TO PRIVACY

Privacy is the right to control who knows what about a person, and under what conditions,
thereby controlling the intimacies of life. It is our right to keep a domain around us, which
includes all those things that are part of us, such as our body, home, property, thoughts,
feelings, secrets and identity. The right to privacy gives us the ability to choose which parts in
this domain can be accessed by others, and to control the extent, manner and timing of the
use of those parts we choose to disclose.2

For example, it is often claimed, particularly by those in the eye of the media, that their right
to privacy is violated when information about their private lives is reported in the press. The
point of view of the press, however, is that the general public have a right to know personal
information about those with status as a public figure. This distinction is encoded in most
legal traditions as an element of freedom of speech. Privacy helps to avoid unwanted and
potentially intrusive interference in an individual's personal affairs. However, in the wake of
the Snowden scandal, governments have claimed that there is an existential terrorist threat
that overrides the right to privacy.

The right to privacy is all about secrecy, and the right to determine for oneself if and to what
extent personal information is disseminated. The right to privacy is the protection against
having a society in which the government completely controls the people’s lives, and requires
the government to protect individuals from privacy invasion by other people. Right to privacy
ensures that personal emails, bank details and medical records are safe and secure. This is
essential to human dignity and autonomy in all societies around the globe.

Privacy is a broad concept relating to the protection of individual autonomy and the
relationship between an individual and society (including governments, companies, and other
individuals). Privacy is considered essential in protecting an individual’s ability to develop
ideas and personal relationships. Although it is often summarized as “the right to be left
alone,” it encompasses a wide range of rights—including protection from intrusions into
family and home life, control of sexual and reproductive rights, and communications secrecy.
It is commonly recognized as a core right that underpins human dignity and such other values
2
Privacy in the Digital Environment, Haifa Centre of Law and Technology (2005)

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as freedom of association and freedom of speech. 3 The definitions of privacy and what is
sensitive personal information vary among countries and individuals on the basis of past
experiences and cultural understandings.

Right to Privacy is not explicit in the Constitution of India, so it is a subject of judicial

interpretation. The judicial interpretations of fundamental right bring it within the purview of
fundamental right. The journey of this project would start from the search of answer of issue
that whether the right to privacy is a fundamental right, through analysis of cases and some
pioneering work of scholars.

If we talk in context with our country Right to Privacy is an integrated part of Article 21 of
the Constitution of India. The Supreme court has stated that Article 21 is the heart of the
Fundamental Rights provided in the part III of the constitution of India. The Constitution of
India does not specifically guarantee a “right to privacy”. However, through various
judgments, Indian courts have interpreted the other rights in the Constitution as giving rise to
a right to privacy primarily through Article 21, the right to life and liberty.

Privacy is a fundamental right and most governments around the world have sought to protect
their citizens in their beliefs, emotions, sensations and thoughts. A person has the right to
determine what kind of information is taken about them, and the purpose of that information.
This helps in protecting individuals from exploitation.

Right of privacy prevents unlawful revelation of personal information. People have to right to
review their information, ask for any necessary corrections and be informed on any
disclosures. This is significant as it contributes to the security of the involved persons.
Privacy provided by financial institutions to their customers helps on safeguarding the
information collected from their customer offering security to their finances.

Certain laws in different countries need to be in place to protect citizens’ private information.
The constitutions should protect people from unreasonable searches and seizures. The right to
privacy is most often guarded by constitutional law. For instance, In United States, the health
information portability and accountability act protects a person’s health information while the
federal trade commission guarantees the right to privacy in various private statements and
policies.

3
UN Human Rights Committee (1988); UN Human Rights Council (2009).

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The controversy on the extent of privacy protection has forced many governments to make
certain clarifications by amending the constitutions. These amendments have been used in
changeable degrees of achievement in determining the right to personal liberty. For example,
in United States, the principle underlying the fourth and the Fifth Amendment is the
protection against the invasion of the sanctity of a person’s home and the privacy of life.

Every human being should be protected from intrusion into private life by corporations and
governments. Privacy should be cherished by individuals, protected by the governments and
cherished by all corporations. It is imperative for the government as well as other people to
respect a person’s right to keep some things to themselves.4

CHAPTER THREE
SOCIOLOGICAL DEVELOPMENT OF RIGHT TO PRIVACY IN INDIA

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https://www.lawteacher.net

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The concept of privacy in India can be traced out in the ancient text of Hindus. According to
the Hitopadesa, certain matters like worship, sex and family matters should be protected from
disclosure. But the Hitopadesa did not prescribe laws for the country, but was merely a text
consisting of moral values. Thus, in this sense it can be said that in ancient Indian text there
was vagueness about the right to privacy.

But in modern India, the chronology of cases depicts the moulding of the fundamental right
to privacy, leading all the way up to the decision on 24th August, 2017.

The first time the issue of right to privacy was discussed was in debates of constituent
assembly were K.S. Karimuddin moved an Amendment to introduce the concept of right to
privacy.However, B.R. Ambedkar gave it only reserved support and it did not secure the
incorporation of the right to privacy in the constitution.

M.P. Sharma v Satish Chandra (here in after M.P. Sharma Case) was a Supreme Court case
on the issue of ‘power of search and seizure’ held that they cannot bring privacy as the
fundament right because it is something alien to Indian Constitution and constitution maker
does not bother about the right to privacy.

MP Sharma's case was related to the search of documents of Dalmia group companies

following investigations into the business of Dalmia Jain Airways Ltd. The group was
registered in July 1946 and liquidated in June 1952. An investigation revealed malpractices
within the company and highlighted attempts from shareholders to hide actual details
by submitting false balance sheets. An FIR was registered on 19 November, 1953, and the
district magistrate of Delhi received a request for search warrants. The main issue that was
considered was whether such procedures were violative of Article 19 (1) (f) (right to
property) and Article 20 (3) (right against self-incrimination) of the Constitution. 5 The judges
were to ascertain if there were any constitutional limitations to the government’s right to
search and seizure and if this would in any way breach the right to privacy. Since the concept
of privacy was relatively new, the bench did not focus much on details and the right to
privacy was breached by inspection of the documents.

A similar disregard for the right to privacy was evident in the Kharak Singh case which was a
case of dacoity. Singh was released as there was no evidence against him. Uttar Pradesh

5
http://www.firstpost.com

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Police subsequentlybrought him under “surveillance” which included the retrieval of personal
documents like reporting by constables and watchmen of movements and absence from
home.

In his writ petition, Singh challenged the constitutional validity and the powers conferred
upon police officials thereunder on the ground that they violated his fundamental rights under
Articles 19(1)(d) — right to freedom of movement and 21 — protection of life and personal
liberty. The Bench held that “the right of privacy is not a guaranteed right under our
Constitution, and therefore the attempt to ascertain the movements of an individual is merely
a manner in which privacy is invaded and is not an infringement of a fundamental right
guaranteed in Part III (fundamental rights)”.6

The above Supreme Court cases are highly significant in highlighting the lack of attention
given to the right to privacy.

In Maneka Gandhi v Union of India, Supreme Court interpreted the Article 21 in a broad
sense. They said that both the rights of personal security and personal liberty recognized by
what Blackstone termed 'natural law' are embodied in Article 21. The Maneka Gandhi Case
started the wide interpretation of Right to Life, which actually helped the Right to Privacy to
fall into to the scope of Right to Life.

R. R. Gopal v State of Tamil Nadu was the first case which explained the evolution and scope
of right to privacy in detail. In order to attain this question, Supreme Court went through the
entire jurisprudence of right to privacy, its evolution and scope; and this fulfils gaps of
Govind Case. To explain evolution, it mainly discussed the Govind Case and follows the
almost same approach. This Court held that the right to privacy is implicit in the right to life
and liberty guaranteed by Article 21. Reached on the conclusion, that right to privacy no
longer subsists in case of matter of public record.

Peoples Union for Civil Liberties (PUCL) v Union of India is related to phone tapping and it
discussed that whether telephone tapping is an infringement of right to privacy under Article
21.7 Supreme Court argued that conversations on the telephone are often of an intimate and

6
http://indianexpress.com
7
spectrumbooksonline.in

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confidential character and telephone-conversation is a part of modern man’s life. Supreme
Court also said that whether right to privacy can be claimed or has been infringed in a given
case would depend on the facts of the said case.

In State of Karnataka v Krishnappa, Supreme Court linked the child rape to the right to
privacy. Dr. A.S. Anand, CJI., affirmed that “Sexual violence apart from being a
dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female. It is
a serious blow to her supreme honour and offends her self-esteem and dignity-it degrades and
humiliates the victim and where the victim is a helpless innocent child, it leaves behind a
traumatic experience." In State of Karnataka v S. Nagaraju and in Sudhansu Sekhar Sahoo v
State of Orissa, Supreme Court accepted the same thing. Supreme Court used the concept of
right to privacy to enhance the degree of punishment. Again in State Of Madhya Pradesh Vs.
Babulal, Supreme Court again considered that Sexual violence apart from being a
dehumanizing act is also an unlawful intrusion of the right to privacy and sanctity of a
female.

In Sharda v Dharmpal, Supreme Court held that a matrimonial court has the power to direct a
party to undergo medical examination and passing of such an order would not be in violation
of right of privacy or personal liberty under Article 21 of the Constitution of India, in support
of this supreme court argued that information which is necessary for society should not
protected from the making known to other under right to privacy.

In People s Union for Civil Liberties (PUCL) v Union of India, Supreme Court upheld the
validity of various provisions of the Prevention of Terrorism Act, 2002 and said that Right to
privacy is subservient to that of security of State; and referring to the Sharda v Dharmpal they
said that holding information which is necessary for the security of state cannot be the subject
to security of state.

This is how the right to privacy has evolved with the passing time.

CHAPTER FOUR

SUPREME COURT JUDGEMENT ON RIGHT TO PRIVACY

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One particular judgement was made on 24th August, 2017, which is a milestone in the
advancement of the right to privacy. A Supreme Court judgement was made by nine judges.

The nine judges, through six concurring opinions held that privacy is a constitutionally
protected right that emerges from the right to life and liberty guaranteed by Article 21 of the
constitution, which is inseparable from the right to live with dignity. In doing so, it explicitly
overturned the prior Supreme Court rulings in MP Sharmaand Kharak Singh to the extent that
they were incompatible with this verdict.

In 2012, Justice Puttaswamy was one of the early petitioners against the move by the then
UPA government to introduce Aadhaar for access to government schemes. He realised that
the Aadhaar scheme was going to be implemented without the law being discussed in
Parliament. As a former judge, he felt the executive action was not right. I filed the petition
because I felt that my right was affected 

In Justice K.S. Puttaswamy (Retd.) v. Union of India holding that privacy is a constitutionally

protected right which not only emerges from the guarantee of life and personal liberty in
Article 21 of the constitution, but also arises in varying contexts from the other facets of
freedom and dignity recognised and guaranteed by the fundamental rights contained in Part
III of the Indian constitution. The bench, headed by Chief Justice J. S. Khehar, ruled that the
right to privacy is an intrinsic part of right to life and personal liberty under Article 21.

The judgment states:“Life and personal liberty are inalienable rights. These are rights which
are inseparable from a dignified human existence.  The dignity of the individual, equality
between human beings and the quest for liberty are the foundational pillars of the Indian
constitution. Life and personal liberty are not creations of the constitution. These rights are
recognised by the constitution as inhering in each individual as an intrinsic and inseparable
part of the human element which dwells within.

It was clarified that the judiciary did not create a new right in this case but merely granted
recognition to a right that already existed as the ‘constitutional core of human dignity,’
privacy, wrote Justice Chandrachud in the opinion authored by him and concurred to by
Justices Khehar, Nazeer and Agarwal, is essentially the reservation of a private space for an
individual founded on the autonomy of the individual. Of course, it stopped short of

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enumerating the variety of entitlements or interests that come within the umbrella of the right
to privacy. Instead, they left it for future judges to carve out such entitlements depending on
the needs of the time, given the nature of the constitution as a ‘living document.’

It did, however, clarify the threshold of invasiveness with respect to this right and adopted the
three-pronged test required for encroachment of any Article 21 right – legality-i.e. through
an existing law; necessity, in terms of a legitimate state objective and proportionality, that
ensures a rational nexus between the object of the invasion and the means adopted to achieve
that object. This clarification was crucial to prevent the dilution of the right in the future on
the whims and fancies of the government in power.

The judgment contradicts all the arguments raised against the concept of privacy. The
judgment makes it clear that privacy is “not an elitist construct”. The judgment has rejected
the argument of the attorney general that right to privacy must be forsaken in the interest of
welfare entitlements provided by the state.

The right to privacy judgment is one of the most landmark judgments of independent India. It
not only learns from the past, but also sets the wheel of liberty and freedom for future. The
Supreme Court of India has once again emerged as the sole guardian of the Indian
constitution.8

Thus, India is thus the world’s biggest democracy and with this ruling, it has joined United
States, Canada, South Africa, the European Union and the UK in recognizing this
fundamental right.

CHAPTER FIVE

CONCLUSION

8
https://thewire.in

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After a thorough analysis of the Right to Privacy, it has been inferred that privacy is a right
that is meant for each person in the world to safeguard individual interest. The Supreme
Court judgement that now makes the Right to Privacy a fundamental right in India is a
brilliant step towards a more secure society where each member respects the personal space
of the other.

The Right to Privacy was introduced in order to enable each person’s liberty to carry out
certain activities without being probed or questioned. After an analysis of the Right to
Privacy and its operation in India, it is clear that there was a disregard and carelessness in the
part of the law making and executing bodies while carrying out their functions without
considering their basic right to privacy.

However, the recent judgement by the Supreme Court has made up for the previous errors in
judgement by overturning the judgements of the MP Sharma and Kharak Singh cases among
various others.

Reformation has taken place in our country’s mindsets which has trickled into our judicial
systems as well, which is the need of the hour. The privacy of each person should be
respected, upheld and not interfered in.

CHAPTER SIX

BIBLIOGRAPHY

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 https://spectrumbooksonline.in
 https://www.lawteacher.net
 http://www.firstpost.com
 http://indianexpress.com
 https://thewire.in

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