Kharak Singh, 1964 (1) SCR 332
- ByPravleen Kaur --
- 06 Jan 2025 --
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Kharak Singh, 1964 (1) SCR 332
- Ramlila Maidan Incident, In Re, [2012 (5) SCC 1] RELIED
- Gainda Ram v. MCD, (2010) 10 SCC 715 RELIED
- Mehmood Nayyar Azam v. State of Chattisgarh, (2012) 8 SCC 1 RELIED
- Delhi Jal Board vs National Campaign Etc.& Ors., (2011) 8 SCC 568 REFERRED
- Selvi & Ors vs State Of Karnataka & Anr., (2010) 7 SCC 263 RELIED
- Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694
- Suresh Kumar Koushal & Anr vs Naz Foundation & Ors., (2014) 1 SCC 1
Evolution of Right to Privacy as Fundamental Right
Introduction
Right to privacy refers to protection of one’s personal information from being public or used by other without permission. Privacy is defined as “absence or avoidance of publicity or display; the state or condition from being withdrawn from the society of others, or from public interest; seclusion” in New Oxford English Dictionary. Black’s Law Dictionary also refer 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”. If we see the traces of privacy law in India, it has been a very debatable topic that whether it should be treated as a fundamental right or a civil right but now by the recent judgment of Supreme Court, Right to privacy is a Fundamental Right has become a settled law of land.
Right To Privacy And Constitution of India
On August 24th, 2017, Supreme Court has given its verdict on Right to privacy inJustice K S Puttaswamy V Union of India, declaring it as a fundamental right of a citizen. This judgment has finally put an end to the long historical legal battle from the past 40-50 years.
In this Article, I am going to discuss how Indian judiciary has evolved with the concept of Right to privacy with time.
Since the 1960s, the Indian judiciary and the Supreme Court in particular, have dealt with the issue of privacy, both as a fundamental right under the constitution and as a common law right. The common thread through all these judgment by the supreme court of India has been to recognize a right to privacy either as a fundamental under the constitution or as a common law right, but to refrain from giving a specific definition before the recent landmark judgement. Instead court has decided to have it evolve on case to case basis. As Justice Mathew put it, “The right to privacy will, therefore, necessarily, have to go through a process of case by case development”.
1. Right to privacy in the context of surveillance by the state
The first case to lay down the basics of right to privacy in India, was the case of Kharak Singh v. State of Uttar Pradesh, where a seven judge bench of the Supreme Court was required to check the constitutionality of certain police regulations which allowed police to do domiciliary visit and surveillance of persons with criminal record. In the present case the petitioner challenges the constitutionality of such provisions on the ground of that they violated his fundamental right to privacy under clause ‘personal liberty ‘of article 21 of the constitution of India. In this particular case majority of the judges decline to interpret article 21 to include within its ambit the right the privacy, part of the majority expressed “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.” But however they did recognize it as a common law right to enjoy the liberty of their houses and approves an old age saying “man’s home was his castle” The majority therefore understood the term ‘personal liberty’ in Article 21 in the context of age old principles from common law while holding domiciliary visits to be unconstitutional. Two of the judges of the seven judge bench, however, saw the right to privacy as a part of Article 21, marking an early recognition of privacy as a fundamental right. Justice Subba Rao held “It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty.”
The question of privacy as a fundamental right presented itself once again to the Supreme Court a few years later in the case of Govind v. State of Madhya Pradesh. The petitioner in this case had challenged, as unconstitutional, certain police regulations on the grounds that the regulations violated his fundamental right to privacy. Although the issues were similar to the Kharak Singh case, the 3 judges hearing this particular case were more inclined to grant the right to privacy the status of a fundamental right. Justice Mathew stated: “Rights and freedoms of citizens are set forth in the Constitution in order to guarantee that the individual, his personality and those things stamped with his personality shall be free from official interference except where a reasonable basis for intrusion exists. ‘Liberty against government’ a phrase coined by Professor Corwin expresses this idea forcefully. In this sense, many of the fundamental rights of citizens can be described as contributing to the right to privacy.” This statement was however qualified with the disclaimer that this right was not an absolute right and that the same could be curtailed by the State provided it could establish a “compelling public interest” in this regard.
2. Right to Privacy against Right to Free Speech
Subsequent to the Govind judgment, the Supreme Court was required to balance the right of privacy against the right to free speech in the case of R. Rajagopal v. State of Tamil Nadu. In this case, the petitioner was a Tamil newsmagazine which had sought directions from the Court to restrain the respondent State of Tamil Nadu and its officers to not interfere in the publication of the autobiography of a death row convict–‘Auto Shankar’ which contained details about the nexus between criminals and police officers. The Supreme Court framed the questions in these terms: “Whether a citizen of this country can prevent another person from writing his life story or biography? Does such unauthorized writing infringe the citizen's right to privacy? Whether the freedom of press guaranteed by Article 19(1) (a) entitles the press to publish such unauthorized account of a citizen's life and activities and if so to what extent and in what circumstances?” While answering the above questions, a bench of two judges of the Supreme Court, for the first time, directly linked the right to privacy to Article 21 of the Constitution but at the same time excluded matters of public record from being protected under this ‘Right to Privacy’. The Supreme Court held: “(1) the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It 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. 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. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy. (2)The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others.”
3. The ‘Right to Privacy’ of HIV (‘ ’ve) Patients
In the case of Mr. ‘X’ v. Hospital ‘Z’, the Supreme Court was required to discuss the scope of a blood donor’s right to privacy of his medical records. The respondent hospital in this case had disclosed, without the permission of the blood donor, the fact that the blood donor was diagnosed as being a HIV patient. Due to this disclosure by the hospital, the lady who was to have been married to the blood donor had broken off her engagement and the donor was subject to social ostracism. Discussing the issue of privacy of medical records, the Supreme Court ruled that while medical records are considered to be private, doctors and hospitals could make exceptions in certain cases where the non-disclosure of medical information could endanger the lives of other citizens, in this case the wife.
4. Prior Judicial Sanction for Tapping of Telephones
In the case of PUCL v. Union of India, the petitioner organization had challenged the actions of the state in intercepting telephone calls. Recognizing procedural lapses that had occurred, the court set out procedural safeguards which would have to be followed, even as it did not strike down the provision relating to interception in the Telegraph Act 1885. In arriving at its decision, the court observed: “Telephone-tapping is a serious invasion of an individual's privacy. It is no doubt correct that every government, howsoever democratic, exercises some degree of sub rosa operation as a part of its intelligence outfit, but at the same time citizen's right to privacy has to be protected from being abused by the authorities of the day.” The court held: “Telephone tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law.” The Supreme Court placed restrictions on the class of bureaucrats who could authorize such surveillance and also ordered the creation of a ‘review committee’ which would review all surveillance measures authorized under the Act.
5. The ‘search and seizure’ Powers of Revenue Authorities
In 2005, the Supreme Court passed one of its most important privacy related judgments in the case of District Registrar v. Canara Bank. In this case the Supreme Court was required to determine the constitutionality of a provision of the A.P. Stamps Act which allowed the Collector or ‘any person’ authorized by the Collector to enter any premises to conduct an inspection of any records, registers, books, documents in the custody of any public officer, if such inspection would result in discovery of fraud or omission of any duty payable to the Government. The main issue, in the case, related to the privacy of a customer’s records stored by a financial institution such as a bank. The impugned provision was held to be unconstitutional by the Supreme Court on the grounds that it failed the tests of reasonableness enshrined in Articles 14, 19 and 21 of the Constitution. The Court held that any legislation intruding on the personal liberty of a citizen (in this case the privacy of a citizen’s financial records) must, in order to be constitutional, satisfy the triple test laid down by the Supreme Court in the case of Maneka Gandhi v. Union of India. This triple test requires any law intruding on the concept of ‘personal liberty’ under Art. 21, to meet certain standards:“(i) it must prescribe a procedure; (ii) the procedure must withstand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation; and (iii) it must also be liable to be tested with reference to Article 14.” The impugned provision was held to have failed this test. More importantly, the Court ruled that the concept of privacy related to the citizen and not the place. The implication of such a statement was that it did not matter that the financial records were stored in a citizen’s home or in a bank. As long as the financial records in question belonged to a citizen, those records would be protected under the citizen’s right to privacy.
6. Privacy in the context of Sexual Identities
In the case of Naz Foundation v. Union of India, the Delhi High Court ‘read down’ Section 377 of the Indian Penal Code, 1860 to decriminalize a class of sexual relations between consenting adults. One of the critical arguments accepted by the Court in this case was that the right to privacy of a citizen’s sexual relations, protected as it was under Article 21, could be intruded into by the State only if the State was able to establish a compelling interest for such interference. Since the State was unable to prove a compelling state interest to interfere in the sexual relations of its citizens, the provision was read down to decriminalize all consensual sexual relations.
Conclusion
Following the trend of these judgements, the concept of right to privacy has evolved and emerged, as a fundamental right. Our judiciary has tried in these various judgements interpret the meaning and the scope of right to privacy. Right to privacy is an essential component of right to life and personal liberty under Article 21. Right of privacy may, apart from contract, also arise out of a particular specific relationship, which may be commercial, matrimonial or even political. No doubt puttaswamy judgmentwill have a deep impact upon our legal and constitutional landscape for years to come. It will impact the interplay between privacy and transparency and between privacy and free speech; it will impact State surveillance, data collection, and data protection for sure.
Right To Privacy Under Article 21 and the Related Conflicts
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 a 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.
The Privacy Bill, 2011
The bill says, “every individual shall have a right to his privacy — confidentiality of communication made to, or, by him — including his personal correspondence, telephone conversations, telegraph messages, postal, electronic mail and other modes of communication; confidentiality of his private or his family life; protection of his honour and good name; protection from search, detention or exposure of lawful communication between and among individuals; privacy from surveillance; confidentiality of his banking and financial transactions, medical and legal information and protection of data relating to individual.”
The bill gives protection from a citizen's identity theft, including criminal identity theft (posing as another person when apprehended for a crime), financial identify theft (using another's identity to obtain credit, goods and services), etc.
The bill prohibits interception of communications except in certain cases with approval of Secretary-level officer. It mandates destruction of interception of the material within two months of discontinuance of interception.
The bill provides for constitution of a Central Communication Interception Review Committee to examine and review the interception orders passed and is empowered to render a finding that such interception contravened Section 5 of the Indian Telegraphs Act and that the intercepted material should be destroyed forthwith. It also prohibits surveillance either by following a person or closed circuit television or other electronic or by any other mode, except in certain cases as per the specified procedure.
As per the bill, no person who has a place of business in India but has data using equipment located in India, shall collect or processor use or disclose any data relating to individual to any person without consent of such individual.
The bill mandates the establishment of a Data Protection Authority of India, whose function is to monitor development in data processing and computer technology; to examine law and to evaluate its effect on data protection and to give recommendations and to receive representations from members of the public on any matter generally affecting data protection.
The Authority can investigate any data security breach and issue orders to safeguard the security interests of affected individuals in the personal data that has or is likely to have been compromised by such breach.
The bill makes contravention of the provisions on interception an offence punishable with imprisonment for a term that may extend up to five years or with fine, which may extend to Rs. 1 lakh or with both for each such interception. Similarly, disclosure of such information is a punishable offence with imprisonment up to three years and a fine of up to Rs. 50,000, or both.
Further, it says any persons who obtain any record of information concerning an individual from any officer of the government or agency under false pretext shall be punishable with a fine of up to Rs. 5 Lacs.
Right To Privacy And Search And Seizure
The right of privacy on one hand and power of the State of search and seizure on the other hand has been the subject matter of judgments not only in India but also in other countries as well. The Supreme Court referred to American case laws under the Fourth Amendment to the US Constitution. The Court also referred to Universal Declaration of Human Rights, European Convention of Human Rights, other treaties and constitutional provisions and held that the State cannot have unbridled right of search and seizure. In particular, it pointed out that all public records could always be inspected but it will not be open to Collector under the impugned amended Section 73 of the Indian Stamp Act, 1899 to direct the production of records held with banks. These records are copies of private documents. The right to privacy is to protect the documents which are with the banks. Unless there is reasonable cause or material to believe that such documents may lead to a discovery of fraud such documents cannot be inspected. The Court struck down S. 73 giving uncontrolled power to Collector to authorize “any person” to take notes or extracts from such documents. Even the rules framed under the Act did not provide sufficient guidelines or safeguards as to how this power could be exercised. The Supreme Court referred to US judgments on this subject. It preferred to follow the minority view in Miller’s case and took the view that majority decision was incorrect. It also referred to various articles and comments which have taken the view that majority judgement was wrong the Court held that documents or copies thereof given to the bank will continue to remain confidential. The fact that they are given to bank voluntarily will not mean that they cease to be private records as mentioned above.
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 Seekingto 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.
Prisoner’s Privacy Rights
The protection of Article 21 is available even to convicts in jail. The convicts are not by mere reason of their conviction deprived of all their fundamental rights which they otherwise possess. Following the conviction of a convict is put into a jail he may be deprived of fundamental freedoms like the right to move freely throughout the territory of India. But a convict is entitled to the precious right guaranteed under Article 21 and he shall not be deprived of his life and personal liberty except by a procedure established by law.
The question of the right to be let alone again came on the front in the case of R. Rajagopal vs. State of T.N also known popularly as the Auto Shankar Case. A prisoner had written his autobiography in jail describing the conditions there and the nexus between prisoners and several IAS and IPS officers. He had given the autobiography to his wife so that she may publish it in a particular magazine. However, the publication was restrained in various matters and the question arose whether anyone has the right to be let alone and particularly in jail.
In R. Rajagopal vs. State of T.N.,(1994) Right to Privacy held to be implicit in Article 21. “It is the right to be left alone”. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among many other matters. In this case right of a prisoner to privacy recognised.
Conflict Between: Right To Information
&
Right To Privacy
In India the Constitution does not expressly recognise the right to privacy. But after the case of Kharak Singh v. State of U.P the Supreme Court for the first time recognised the right to privacy which is implicit in the Constitution under Article 21. The Court held that the right to privacy is an integral part of the right to life, but without any clear cut laws, it still remains in the gray area. The view was based on the conclusion that the infringement of a fundamental right must be both direct as well as tangible that the freedom guaranteed u/a 19(1)(a)- a right to freedom of speech and expression was not infringed upon by a watch being kept over the movement of the suspect.
In R. Rajagopal v. State of T.N., the apex Court held that the right to privacy is a ‘right to let alone’. No one can publish anything concerning the above matters without his consent, whether truthful or otherwise 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 the action of damages.
In Mr. X v. Hospital Z, it was held that where there is a clash of two fundamental rights, as in the instant case, namely, the appellant’s right to privacy as a part of right to life and other person’s right to lead a healthy life which is her fundamental right u/a 21, the right which would advance the public morality or public interest, would alone be enforced through the process of Court, for the reason that moral consideration cannot be kept at bay and judges are not expected to sit as mute structures of clay as in Hail, known as Courtroom but have to be sensitive, “in the sense that they must keep their fingers firmly upon the pulse of the accepted morality of the day”.
Voicing concern over vexatious use of RTI Act, Prime Minister Manmohan Singh said the citizens’ to know should definitely be circumscribed if it encroaches on an individual’s privacy. He said “there is a fine balance required to be maintained between right to information and the right to privacy, which stems out of the fundamental right of life and liberty. The citizen’s right to know should definitely be circumscribed if disclosure of information encroaches upon someone’s personal privacy. But where to draw a line is a complicated question.”
Recently in one of the most controversial case Ratan Tata went to Supreme Court against the publication of intercepts of his conversation with Neera Radia who handles the corporate communication for the group. Tata holds that as Radia’s phones were tapped by government agencies especially for investigating a possible offence the recorded conversations should have been used for that purpose alone. Ratan Tata has submitted his petition before Supreme Court asking to protect his right to privacy. But given that freedom of information laws have at their core the purpose of disclosure, exemptions are strictly construed, and it has been said that the public right to know should prevail unless disclosure would publicise intimate details of a highly personal nature. The Radia tapes so far published public issues, but not personal life of Tata. These conversations would be available to every citizen under the RTI Act because the only objection that one could raise would be on the ground of 8(j) of RTI Act which says-information which relates to personal information, the disclosure of which has no relationship to any public activity on interest. It also says “or which would cause unwarranted invasion of the privacy of the individual unless the public authority is satisfied, unless the information officer is satisfied that the larger public interest justifies the disclosure of such an information.”
In that case a preliminary question that should be asked is whether Tata’s conversations would be revealed through an RTI, or whether his conversations would fall under the exemption of personal information found in section 8(j). It is interesting to note the structure of this exemption. By the use of word “or” the legislation suggests that unwarranted invasion of individual privacy may trigger the exemption, even if the information has a relationship to public activity or interest. But the added caveat says that the larger public interest could justify the release of even purely private information.
By the use of the word “or” the legislation suggests that unwarranted invasion of individual privacy may trigger the exemption, even if the information has a relationship to public activity or interest. But the added caveat says that the larger public interest could justify the release of even purely private information. In addition, what constitutes “personal” information has not been defined in the legislation.
However, according to expert legal opinion, the Supreme Court of India is well within its rights to allow disclosure of conversation details between Ratan Tata and Nira Radia.
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.
Conclusion
Right to privacy is an essential component of right to life and personal liberty under Article 21. Right of privacy may, apart from contract, also arise out of a particular specific relationship, which may be commercial, matrimonial or even political. Right to privacy is not an absolute right; it is subject to reasonable restrictions for prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others. Where there is a conflict between two derived rights, the right which advances public morality and public interest prevails.
Louis Brandeis J in a celebrated judgment has said that right to privacy is ‘the right most valued by civilized men.” Lord Hoffmann has observed in relation to the complaints against media that there is no logical ground for saying that a person should have less protection against a private individual than he would have against the state for the publication of personal information for which there is no justificatio.
Judges of the American Supreme Court have talked about the right to privacy as an aspect of the pursuit of happiness. The pursuit of happiness requires certain liberties that we are guaranteed by the state so that we may act in a fashion that we may deem fit, as long as it does not encroach upon the rights of others. Liberty is not a limited or quantifiable right. It is visible on the entire gamut of the legal spectrum.
If one looks at the earlier judgments of the apex court in its formative years, one can observe the desirability of the court to treat the Fundamental Rights as water-tight compartments. This was felt the most in the case of A.K Gopalan v. State of Madras and the relaxation of this stringent stand could be felt in the decision of Maneka Gandhi v. Union of India. The right to life was considered not to be the embodiment of a mere animal existence, but the guarantee of full and meaningful life.
Being part of a society often overrides the fact that we are individuals first. Each individual needs his/her private space for whichever activity (assuming here that it shall be legal). The state accordingly gives each individual that right to enjoy those private moments with those whom they want to without the prying eyes of the rest of the world. Clinton Rossiter has said that privacy is a special kind of independence which can be understood as an attempt to secure autonomy in at least a few personal and spiritual concerns. This autonomy is the most special thing that the person can enjoy. He is truly a free man there. This is not a right against the state, but against the world. The individual does not want to share his thoughts with the world and this right will help protect his interests.
In this day and age, this right is becoming more essential as every day passes. With all our lives being splattered over the media be it through social networking sites or the spy cameras, we need protection so that we can function in a way we want to and not think of others before our actions. After all, the only ones we owe an explanation to is ourselves, and not to the entire world.
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