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Intrusion upon privacy is gradually becoming the order of the day.

It has therefore
become a matter of great concern. Human urge is to keep things, which are private,
away from the public gaze. There is a right to live, but is there a right to privacy? If
there is, what is the scope and parameters of this right? What do we do about it in
case there is breach thereof?
Though it is true that the Indian Constitution does not explicitly guarantee this
right as a fundamental right certainly the right to privacy or, the right to be left
alone, should be accepted as an individual right. The courts' treatment of this right
is a matter of paramount importance because of growing invasions of this right in
areas that remained away from the purview of courts. It also assumes importance
because of frequent violation of this right by the State on grounds which are not
bona fide.
Lord Denning has forcefully argued for the recognition of a right to privacy thus:

"English law should recognise a right to privacy. Any infringement of it should


give a cause of action for damages or an injunction as the case may require. It
should also recognise a right of confidence for all correspondence and
communications which expressly or impliedly are given in confidence. None of
these rights is absolute. Each is subject to exceptions. These exceptions are to be
allowed whenever the public interest in openness outweighs the public interest in
privacy or confidentiality. In every instance it is a balancing exercise for the
Courts. As each case is decided, it will form a precedent for others. So a body of
case-law will be established."
It 1963 in the case of Kharak Singh v. State of U.P. the Supreme Court had the
occasion to consider the ambit and scope of this right when the power of
surveillance conferred on the police by the provisions of the U.P. Police
Regulations came to be challenged as being violative of Articles 19(1)(d) and
Article 21 of the Constitution. The Court repelled the argument of infringement of
freedom guaranteed under Article 19(1)(d) of the Constitution, and the attempt to
ascertain the movements of an individual was held not to be an infringement of any
fundamental right. The minority judgment, however, emphasized the need for
recognition of such a right as it was an essential ingredient of personal liberty.
2

Near about a decade later the Supreme Court seems to have realised the need for
recognising the right to privacy in Govindv. State of M.P. wherein Mathew, J. as
Lord Denning indicated envisaged its gradual development thus:
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"The right to privacy in any event will necessarily have to go through a process of
a case-by-case development"
4

Even in countries other than India where privacy has been considered essential to
human existence and personal liberty, the concept of privacy as a right started
generating new thinking with a view to according it legal recognition so that its
breach could be remedied by the courts. Privacy was being given wider and wider
field of operation including therein matters pertaining to health, personal
communications, family, personal relations and a right to be free from harassment
and molestation. This development was the result of frequent violations of right to
privacy of notable personalities and the consequent public concern for upholding
this right.
The scope and ambit of the right of privacy or right to be left alone came up for
consideration before the Supreme Court inR. Rajagopal v. State of T.N. during
1994.
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In this case the right of privacy of a condemned prisoner was in issue. One Auto
Shankar, a condemned prisoner, wrote his autobiography while confined in jail and
handed it over to his wife for being delivered to an advocate to ensure its
publication in a certain magazine edited, printed and published by the petitioner.
This autobiography allegedly set out close nexus between the prisoner and several
officers including those belonging to IAS and IPS some of whom were indeed his
partners in several crimes. The publication of this autobiography was restrained in
more than one manner.
It was on these facts that the petitioner challenged the restrictions imposed on the
publication before the Supreme Court.
B.P. Jeevan Reddy, J. on an interpretation of the relevant articles of the
Constitution, in the context of an analysis of case-law from other common law
countries like UK and USA, held that though the right to privacy is not enumerated
as a fundamental right it can certainly be inferred from Article 21 of the
Constitution. The Court in conclusion held thus: (SCC pp. 649-51, para 26)
(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 left 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. We
are, however, of the opinion that in the interests of decency Article 19(2) an
exception must be carved out to this rule, viz., a female who is the victim of a
sexual assault, kidnapping, abduction or a like offence should not further be
subjected to the indignity of her name and the incident being publicised in the
press/media.
(3) There is yet another exception to the rule in (1) above - indeed, this is not an
exception but an independent rule. In the case of public officials, it is obvious,
right to privacy, or for that matter, the remedy of action for damages is simply not
available with respect to their acts and conduct relevant to the discharge of their
official duties. This is so even where the publication is based upon facts and
statements which are not true, unless the official establishes that the publication
was made (by the defendant) with reckless disregard for truth. In such a case, it
would be enough for the defendant (member of the press or media) to prove that he
acted after a reasonable verification of the facts; it is not necessary for him to prove
that what he has written is true. Of course, where the publication is proved to be
false and actuated by malice or personal animosity, the defendant would have no
defence and would be liable for damages. It is equally obvious that in matters not
relevant to the discharge of his duties, the public official enjoys the same
protection as any other citizen, as explained in (1) and (2) above. It needs no
reiteration that judiciary, which is protected by the power to punish for contempt of
court and the Parliament and legislatures protected as their privileges are by
Articles 105 and 104 respectively of the Constitution of India, represent exceptions
to this rule.
(4) So far as the Government, local authority and other organs and institutions
exercising governmental power are concerned, they cannot maintain a suit for
damages for defaming them.
(5) Rules 3 and 4 do not, however, mean that Official Secrets Act, 1923, or any
similar enactment or provision having the force of law does not bind the press or
media.
(6) There is no law empowering the State or its officials to prohibit, or to impose a
prior restraint upon the press/media.
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It may be noted that the Court has cautioned that the above principles are not
exhaustive. It has also not examined the impact of Article 19(1)(d) read with
Sections 499(2) and 500 IPC. Here again the court preferred to leave the contours
of this right to develop through a case-by-case method.
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In formulating the broad principles the Court has not only dealt with various
remedies that should be available against the violation of this right but also the

limitations of these remedies. For to give an unqualified absolute right to seek


remedy in the Court against any person having committed the breach irrespective
of the nature of State functions being discharged by that official would render the
very grant of this right a meaning which would be detrimental to public interest.
The need for balancing individual interest and public interest in giving effect to
this right appears to have been in the mind of the judge while laying down the
principles.
It may also be worthy to note that as a consequence to the Supreme Court's
granting the right of privacy the status of a fundamental right, petitions both in the
High Court and Supreme Court would become maintainable and a person need not
necessarily resort to the dilatory procedure of filing a suit in a competent civil court
where the delay in decision will itself render the remedy of no meaning in many a
case.
The law thus declared by the Supreme Court that right to privacy - a right to be left
alone - is implicit in the right to life and personal liberty guaranteed under Article
21 of the Constitution - is a signpost in the future development of this right.
* Senior Advocate, Supreme Court, New Delhi (formerly Judge, High Court,
Allahabad). Return to Text

1. Lord Denning, 'What Next in Law' Return to Text


2. AIR 1963 SC 1295: (1963) 2 Cri LJ 329 Return to Text
3. (1975) 2 SCC 148: 1975 SCC (Cri) 468 Return to Text
4. Id. at 157 (para 28) Return to Text
5. (1994) 6 SCC 632 Return to Text
6. Id. at 649-651 Return to Text
7. Id. 651 Return to Text