Right to Privacy: The Indian Perspective

“Man’s house is his castle.”

Above well-known proverb is now getting legal recognition as Right to Privacy. Human beings have a natural need to autonomy or control over confidential part of their. This need is inherent in human behaviour [1] and now this has been recognized as fundamental right to privacy. It is not a right against physical restrains but it is a right against psychological restrain or encroachment of right [2] . USA, UK, India, and at International level UDHR, ECHR, ICCPR has recognized this right as fundamental right. The scholars [3] and judges [4] have also found the necessity of this right. Warren and Brandeis were the some of them. Well known Lord Denning also found its necessity in modern life and also tried to trace out the root of right to privacy in the common law [5] .

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.

Research Question

How does the Right to Privacy develop in India?

Do the ICCPR and the UDHR have any impact on India perspective of Right to Privacy?

Chapter I: Journey of Evolution of the Right to Privacy

Feeling, emotions, psychological restrain are the subject matter of Privacy. But it was a quite difficult task to bring it in the sphere of cause of action. Samuel Warren and Louis Brandeis stated this discuss on the issue of Right to Privacy. Indian court also contributed to develop this right. The objective of this chapter is to trace the evolution of Right to Privacy.

Philosophy of Right to Privacy

In the 1890s, Samuel Warren and Louis Brandeis developed the concept of privacy; they identified the ‘injury to the feelings’ and recognized it as a legal injury [6] and through invasions upon his privacy, subjected him to mental pain and distress [7] . Their philosophy is spiritual rather than mundane or material [8] .To set up the philosophy ‘right to privacy’ they first try to establish it as a part of right to life [9] , and then they compare it with tort of defamation (damage to reputation) [10] , implied contract of not disclose [11] . They also found some exception to it [12] . Main focus of their research is to discuss the overstepping of press. Finally they come to conclusion that object of privacy is to protect ‘inviolate personality’ [13] ; and not mere to related to private property [14]

Evolution of Right to Privacy in India

The concept of privacy can be traced out in the ancient text of Hindus. If one look at the Hitopadesh it says that certain matter (worship, sex and family matters) should be protected from disclosure [15] . This not entirely alien to Indian Culture, but some jurist like Sheetal Asrani-Dann has doubts about the evolution in India [16] , in support of this she also explain Upendra Baxi view, “Everyday experiences in the Indian setting (from the manifestation of good neighborliness through constant surveillance by next-door neighbors, to unabated curiosity at other people’s illness or personality vicissitudes) suggest otherwise” [17] . But Upendra Baxi is clearly concerned with kindness, sympathy, humanity or gentleness, which is an unabated curiosity; it is not about ill-will. But Hitopadesh cannot be subject to ‘Positive Law’ [18] , even in ancient time it was related to ‘Positive Morality’ [19] ; so in this sense it can be said that in ancient Indian text there was vagueness about the right to privacy.

But in modern India first time the issue of right to privacy was discussed in debates of constituent assembly were K.S. Karimuddin moved an Amendement on the lines of the US Constitution, where B.R. Ambedkar gave it only reserved support, it did not secure the incorporation of the right to privacy in the constitution [20] .

In M.P. Sharma v Satish Chandra (here in after M.P. Sharma Case) [21] were Supreme Court 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 [22] . K.R. Suraj v The Excise Inspector Parappananqadi, [23] and in State Rep. by Inspector of Police v N.M.T. Joy Immaculate [24] refresh the point that in India right to privacy cannot used against the power of search seizure.

After M.P. Sharma Case in Kharak Singh Case Supreme Court on the issue of whether surveillance, defined under Regulation 236 of the U.P. Police Regulations is amount to infringement of fundamental right and whether right privacy is come under the purview of fundamental right; they denied the right to privacy as fundamental right and they concluded that “the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III” [25] ; but Justice Subba Rao understand the need of psychological restrain, which obviously an indication of recognition of the value of right to privacy and stated “… but as civilizations advances the psychological restraints are more effective than physical ones” [26] . They denied the right to privacy as concept of fundamental rights clearly; but the struck-down the said Act unconstitutional under Article 21 [27] (majority view) and also under Article 19 [28] (dissenting opinion). Judges are arguing that the personal liberty cannot be restricted only to mere physical restriction (as affirmed in the A.K. Gopalan v State of Madras [29] ), it should be broader [30] . While they were broadening the scope of Article 21 they somehow broadened the scope of Article 21 specially the meaning of ‘Personal Liberty’ to recognize the fact that Article 21 Right to Life is not about ‘merely the right to the continuance of a person’s animal existence’, but a right to the possession of each of his organs, arms, legs, etc. One thing should be taken into the account that without the Right to Privacy man is force down to live like an animal. It has already been noted earlier in this research the US and Germany consequences of encroachment of FBI and Gestapo to the individual sphere immensely [31] . Subba Rao, J., rightly pointed-out in the next privacy related case (Govind Case) that the Right to Privacy is an essential ingredient of Right to Life [32] .

The next case was the Govind v State of MP [33] , where the right to privacy was discussed in detailed. The issue was quite similar to the Kharak Singh v State of UP [34] , but this time the approach of judgment was rather different. They upheld the validity of Madhya Pradesh Police Regulations, 855 and 856, made under Section 46(2) (c) of Police Act, 1961, under the reasonable restriction. Judges were unable of deciding that whether the Right to Privacy is a fundamental right or not and they pass on the burden to the next cases through saying that the “The right to privacy in any event will necessarily have to go through a process of a case-by-case development” [35] . It is right one good concept of law cannot be developed through one case, because it is very hard to see the exceptions and consequences of that concept of law through one case. So Mathew, J., was surely an intelligent rather unable to recognize right to privacy. May be he thought that right to privacy is a foreign concept and Indian culture might face problem with that, or right to privacy has to be interpreted in an Indian way, which would obviously take time.

This case gave the very vague idea of the recognition of right to privacy. What they actually did was that they interpreted the objective of makers of Constitution of India and then broaden the scope of Article 21, so that the right to privacy can fall into it. They found that the objective of them is to ensure the conditions favorable to the pursuit of happiness, emotions and sensations. They accept the idea of Professor Crown, ‘liberty against government’ should be the basis of fundamental right.

In Maneka Gandhi v Union of India [36] , Supreme Court interpreted the Article 21 in 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. 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.

Unni Krishnan v State of A.P. [37] numbered the twelve meaning of right to life; and right to privacy was one of them [38] .

R. Rajagopal alias R. R. Gopal v State of Tamil Nadu [39] 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 fulfills 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 [40] .

People s Union for Civil Liberties (PUCL) v Union of India [41] is related to phone tapping and it discussed that whether telephone tapping is an infringement of right to privacy under Article 21. Supreme Court argued that conversations on the telephone are often of an intimate and 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 Mr. ‘X’ v Hospital ‘Z’ [42] it was decided that when the right to privacy clashes with the other fundamental right i.e. right of privacy one person and right to lead a healthy life of another (society), then the right which would advance public morality or public interest would alone be enforced. Samuel Warren and Louis Brandeis discussed the same thing; they stated that “The right to privacy does not prohibit any publication of matter which is of public or general interest” [43]

In State of Karnataka v Krishnappa [44] , 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 [45] and in Sudhansu Sekhar Sahoo v State of Orissa [46] , 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 [47] , 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 [48] .

In Sharda v Dharmpal [49] , 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 [50] , 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 [51] , 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 [52] ; 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 [53] .

In Anuj Garg v Hotel Association of India [54] , Parens Patriae power is subject to constitutional challenge on the ground of Right to Privacy also [55] , the main issue in this case was the Constitutional validity of Section 30 of the Punjab Excise Act, 1914, which prohibiting the employment of any man under the age of 25 years or any woman in any part of such premises in which liquor or intoxicating drug is consumed by the public. Supreme Court upheld the decision of Delhi High Court, which declared it to be ultra vires Articles 19(1)(g), 14 and 15 of the Constitution of India.

After observation of these entire cases one can say that Right to Privacy is related to individual’s personal liberty, which leads to be recognized as a Right to Life.

Chapter II: Indian Perspective about Right to Privacy and International Instruments

Article 17 of the International Covenant on Civil and Political Rights states about the right to privacy, it say “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, or correspondence, nor to unlawful attacks on his honour and reputation”. Whereas Article 12 of the Universal Declaration of Human Rights 1948, states “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks”. Both instruments provide the right to privacy to the citizen, and the states, who are signatory to it, are expected to fulfil these rights.

Since India is a signatory to the International Covenant on Civil and Political Rights and Universal Declaration of Human Rights, 1948, India has the obligation to enforce these rights.

In the lack of enabling legislation, the ICCPR can have the legal force as the other laws in India. And the UDHR is a mere declaration, and it does not have the legal force. But the courts has used provisions of ICCPR and UDHR to make its argument stronger; and also in order to make realized the government about his obligation toward it citizen and towards international instruments.

In the case of People’s Union of Civil Liberties v Union of India [56] Supreme Court cited the Article 17 of ICCPR and Article 12 of UDHR. Through these two international instruments, the court strengthened his contention and also to alert the government about his obligation towards its citizen.

Chapter III: Conclusion

This research project found that, in India, after the case of R. Rajagopal alias R. R. Gopal v State of Tamil Nadu [57] and People s Union for Civil Liberties (PUCL) v Union of India [58] , the right to privacy is well recognized as Right to Life. In the case of People s Union for Civil Liberties (PUCL) v Union of India (Telephone Taping Case) Supreme of India also observed Article 17 of ICCPR and Article 12 of UDHN.