Right to Privacy

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right to privacy

In this article Saloni Surana a student from D.E.S’s Shri Navalmal Firodia Law College, Pune discusses on the freedom of speech.

Introduction

Man’s house is a castle. The well-known proverb is now identified as a legally propounded definition of ‘Right to Privacy’. According to the English, privacy means the ability of an individual or group to seclude themselves, or information about themselves, and thereby express themselves selectively. However, the meaning of the word privacy slightly changes with legal aspect. In the words of RV Duarte, “Privacy may be defined as the right of the individual to determine when, how, and to what extent he or she will release personal information. A reasonable expectation of privacy demands that an individual may proceed on the assumption that the state may only violate this right by recording private communications on a clandestine basis when it has established to the satisfaction of a detached judicial officer that an offence has been or is being committed and that interception of private communications stands to afford evidence of the offence.”

The two major cases of Right to privacy includes M.P Sharma & Others vs Satish Chandra[1], dated March 15, 1954, the eight-judge Bench and Kharak Singh vs The State of U.P & Others[2] on December 18, 1962, the six-judge bench. The two were overruled in one of the most iconic cases of, Justice K.S. Puttaswamy v. The Union of India[3], the 9 judge bench, held that Right To Privacy is a fundamental right. Former Attorney General, Justice Soli Sorabjee, from the Petitioner’s side, stated that “Privacy is about the freedom of thought, conscience and individual autonomy and none of the fundamental rights can be exercised without assuming a certain sense of privacy”. On the other hand, Attorney General KK Venugopal from the Centre stated that “If privacy were to be declared a fundamental right, then it can be a qualified right.” He insisted that only some aspects of privacy are fundamental, not all, and it is a limited fundamental right that can be taken away in legitimate state interest and in developing countries, something as amorphous as privacy could not be a fundamental right, that other fundamental rights such as food, clothing, shelter etc. override the right to privacy.

However, all the 9 judges held the case against the centre, declaring Right To Privacy, a fundamental right residing in Article 19 to 21 of the Indian Constitution.

Pre Judgment Period

Before the Aadhaar case of Justice K.S. Puttaswamy v. The Union of India, the country witnessed two major cases in the history of ‘Right To Privacy’, namely, M.P Sharma & Others vs Satish Chandra and Kharak Singh vs The State of UP & Others.

M.P Sharma & Others vs Satish Chandra

The case was related to the seizure of documents of Dalmia group, a registered company in July 1946 and liquidated in 1952. The company was accused of malpractices within the company and concealing the true facts from the interested parties. An FIR was registered on November 19, 1953, and a search warrant against the company was requested. The District Magistrate further ordered a search warrant for about 34 premises belonging to the Dalmia Group. Voluminous records were seized which assured the conceal and malpractices.  The company, then filed a writ petition challenging the constitutional validity of the searches, stating that the fundamental rights, article 19(1)(f) right to acquire, hold and dispose of property — and 20(3) — protection against self-incrimination was violated.

In its judgment, on March 16, 1954, the eight-judge bench held that  “a power of search and seizure is, in any system of jurisprudence, an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of the fundamental right to privacy, analogous to the American Fourth Amendment, there is no justification for importing into it, a totally different fundamental right by some process of strained construction.”

Kharak Singh vs The State of UP & Others.

The case was when the petitioner, Kharak Singh was accused of Dacoity, on no evident grounds against him. The Uttar Pradesh police opened a charge sheet against him and brought him under surveillance and interrogated him on subsequent midnights. It was done under the ambit of exercising the legit powers under Chapter XX of the Uttar Pradesh Police Regulations. Regulation 236 authorized six measures of “surveillance”: (a) secret picketing of the house or approaches to the house of suspects; (b) domiciliary visits at night; (c) through periodic inquiries by officers not below the rank of Sub-Inspector into repute, habits, associations, income, expenses and occupation; (d) reporting by constables and chaukidars of movements and absence from home; (e) verification of movements and absences by means of inquiry slips; and (f) collection and record on a history sheet of all information bearing on conduct.

In his writ petition, he claimed that his fundamental rights Articles 19(1)(d) — the right to freedom of movement — and 21 — protection of life and personal liberty were violated.

His petition was adjudicated by a six-judge Bench, on December 18, 1962. Though, the Bench struck down Clause (b) — domiciliary visits at night — of Regulation 236, they 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)”.

Post Judgment Period

Justice K.S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors. is a landmark case by the Supreme Court of India, which holds that the right to privacy is protected under Article 21 and Part 3 of the Constitution. The nine-judge bench also mentioned that it won’t be an Absolute right and will have some reasonable restrictions in matters of national security and mutual interest of the citizens and the state.

The bench has overruled its decisions in M.P. Sharma v Satish Chandra, District Magistrate, Delhi (1954), rendered by a bench of eight judges and, in Kharak Singh v State of Uttar Pradesh (1962), rendered by a bench of six judges, which contained observations that the Indian constitution does not specifically protect the right to privacy.

On behalf of the Centre, attorney general K.K. Venugopal asserted that the concept of privacy is a notional one and not a fundamental right enshrined in the constitution. He claimed that privacy is too vague to qualify as a fundamental right.  He asserted that privacy is only a sociological notion, not a legal concept.  He asked the judges to state that only some aspects of privacy are fundamental, not all, and it is a limited fundamental right that can be taken away in legitimate state interest. He said that in developing countries, something as amorphous as privacy could not be a fundamental right, that other fundamental rights such as food, clothing, shelter etc. override the right to privacy. He concluded that “The government said Aadhaar would not fall under the right to privacy. We can’t say every encroachment of privacy is to be elevated to fundamental right. The claim to liberty has to subordinate itself to right to life of others,”

However, the arguments were rejected, as Justice D.Y. Chandrachud, while delivering the main judgment, on behalf of the bench, held that privacy is intrinsic to life, liberty, freedom and dignity and therefore, is an inalienable natural right.

It was further concluded that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.

In the beef ban case of, Shaikh Zahid Mukhtar vs The State Of Maharashtra[4], dated 6th May, 2016, it was held by the seven-judge bench that cow slaughter was banned. Further, after the Law of Privacy case of, Justice K.S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors, Senior Advocate Indira Jaisingh filed a review petition, requesting to tag all petitions relating to beef ban in Maharashtra and refer it to a nine-judge bench for hearing.

Right to privacy played a primitive role in the landmark case of Maneka Gandhi v. The Union of India[5], where Maneka Gandhi was denied the access to her own passport, because of ‘Public Interest’.

Law of Privacy in UK

English law considers that every individual has a legal right to privacy. The framers of law define it as, the protection of personal or private information from misuse or unauthorized disclosure.  The introduction of the Human Rights Act 1998 incorporated into English law the European Convention on Human Rights. Article 8.1 of the ECHR provided an explicit right to respect for a private life.

The earliest definition of Privacy in UK, was given by, Thomas M. Cooley who defined privacy in 1972 as ‘the right to be left alone.’ However, in 1990 the Calcutt Committee concluded that: “nowhere have we found a wholly satisfactory statutory definition of privacy”.

There is currently no freestanding right to privacy in common law. It is prevalent in the cases of Home Office v Wainwright[6] (a case involving a strip search undertaken on the plaintiff Alan Wainwright while visiting Armley prison) and Kaye v Robertson[7] (a case involving the journalists impersonated as hospital staff).

The key cases of the English Law in regard to the Law of Privacy also include-

In the absence of a common law right to privacy in English law, torts such as the breach of confidence or the torts linked to the intentional infliction of harm to the person and public law torts relating to the use of police powers have been used to fill a gap in the law.

Law of Privacy in USA

The law of Privacy covers several legal concepts, in the interest of the citizens of the country. Invasion of the personal rights or premises of an individual, calls for a suit against the doer. It can be the basis of a lawsuit for damages against a person or entity violating the right.   However, it agrees on the terms that the public figures are ensured with lesser privacy than the common people.

The provisions are included in the Fourth Amendment which explains the right to be free of unwarranted search or seizure being one of the most significant in the matter discussed,  the First Amendment explaining the right to free assembly, and the Fourteenth Amendment due process right, recognized by the Supreme Court as protecting a general right to privacy within family, marriage, motherhood, procreation, and child-rearing.

In the famous Privacy law case of, Griswold v. Connecticut[11], in the United States in which the Supreme Court of the United States ruled that the Constitution, through the Bill of Rights, implies a fundamental right to privacy. The case involved a ConnecticutComstock law” that prohibited any person from using “any drug, medicinal article or instrument for the purpose of preventing conception.”  In the nine-judge bench, with the majority of 7-2, the Supreme Court invalidated the law on the grounds that it violated the “right to marital privacy“, establishing the basis for the right to privacy with respect to intimate practices. This and other cases view the right to privacy as a right to protection from governmental intervention.

Law of Privacy in Germany

Germany is known to be one of the oldest countries to have implemented the Right to Privacy. It is the strictest and most detailed privacy law in the world, dated as long as in 1970.  The privacy law in Germany is stated in the Constitution of Germany, in Art. 2 para. 1, and Art. 1 para. 1.

A horrific history of Germany under the Nazi regime propounded by Hitler,  facing constant surveillance from the government, followed by persecution, has ensured that the country has emerged extremely cautious of the threat of administrative attempts at intruding into personal lives of individuals. Over time the Germans have ensured that privacy laws in the country evolved and remain updated to match with the social and technological necessities of the time.

Conclusion

The right to privacy is a universal, inviolable right, recognized by the international law.  It is inherent and an intrinsic part residing in Article 21 of the Indian Constitution. We live in a democratic country where all citizens are equal, independent and self-autonomous. Citizens can act according to their wishes and desires. The right to Privacy has no limit like any other fundamental right. Hence, the state does not hold the authority to dictate a man so as to how the life has to lead. The State cannot dictate to a man how a man should live his life, if the man breaks no law. The State also has no right to tell a man how private or public he should be in his actions. The State can only intrude on a person’s privacy under very strict conditions. A state can only impose restrictions on its citizens till it falls within the ambit of public interest and welfare. The restrictions imposed though, have to be valid, fair, reasonable and least restrictive in nature. Privacy is a stand-alone right.

The judgment of nine-judge bench in the  Justice K.S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors., display a rare unanimity recognizing privacy as a fundamental right. Coming generations will definitely benefit from it, only to be hoped when the judgment of the esteemed bench is taken in good spirit and acted upon.

 

 

[1] 1954 AIR 300, 1954 SCR 1077

[2] 1963 AIR 1295, 1964 SCR (1) 332

[3] WRIT PETITION (CIVIL) NO 494 OF 2012

[4] WRIT PETITION NO.5731 OF 2015

[5] 1978 AIR 597, 1978 SCR (2) 621

[6] [2003] UKHL 53; [2004] 2 AC 406

[7] [1991] FSR 62

[8] [2005] EWCA Civ 595

[9] [2008] EWHC 1777 (QB)

[10] [2015] EWCA Civ 311

[11] 381 U.S. 479 (1965)

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