IMS UNISON UNIVERSITY

RIGHT TO PRIVACY

SUBMITTED TO: Ms. ANANDITA JOSHI, FACULTY OF LAW

SUBMITTED BY: ABRAHAM ROHAN SAM B..ALLB(HONS)
VI SEMESTER
 CONTENTS:
1. INTRODUCTION

2. MEANING OF RIGHT TO PRIVACY

3. EVOLUTION OF RIGHT TO PRIVACY IN INDIA

4. RIGHT TO PRIVAY ENFORCEABLE AS A FUNDAMENTAL RIGHT

5. ARTICLE 21 AND RIGHT TO PRIVACY

6. CONCLUSION
 INTRODUCTION

A definite legal definition of ‘privacy’ is not available. Some legal experts tend to define privacy
as a human right enjoyed by every human being by virtue of his or her existence. It depends on
no instrument or charter. Privacy can also extend to other aspects, including bodily integrity,
personal autonomy, informational self-determination, protection from state surveillance, dignity,
confidentiality, compelled speech and freedom to dissent or move or think. In short, the right to
privacy has to be determined on a case-by-case basis. Privacy enjoys a robust legal framework
internationally. Article 12 of the Universal Declaration of Human Rights, 1948 and Article 17 of
the International Covenant on Civil and Political Rights (ICCPR), 1966, legally protect persons
against “arbitrary interference” with one’s privacy, family, home, correspondence, honor and
reputation. India signed and ratified the ICCPR on April 10, 1979, without reservation. Article 7
and 8 of the Charter of Fundamental Rights of the European Union, 2012, recognizes the respect
for private and family life, home and communications. Article 8 mandates protection of personal
data and its collection for a specified legitimate purpose. Human rights are those minimal rights
individuals need to have against the state of other public authority by virtue of their being members of the
human family, irrespective of any other consideration. The concept of human rights is founded on the
ancient doctrine of natural rights based on natural is founded on the ancient doctrine of natural rights
based on natural law. Ever since the beginning of civilized life in a political society, the shortcomings and
tyranny and ruing powers have led people to seek higher laws. The concept of higher law binding human
authorities was evolved and it came to be asserted that there were certain rights anterior to society. These
were superior to rights created by human authorities, were universally applicable to have existed prior to
the development political societies. These rights were mere ideologies and there was no agreed catalogue
of them and no machinery for their enforcement until they were codified into national constitutions, as a
judicially enforceable Bill of rights.1

1
Chairanjivi J. Nirmal, Human Rights in India, “Historical, Social and Political Perspective”, New Delhi: Oxford
University Press, 2002, p.l
 MEANING OF RIGHT TO PRIVACY

Human rights are universal, inviolable and inherent in every human being. ‘Privacy’, as the most valuable
human right of all, is protected in several important national, regional and international instruments. It has
several dimensions, including but not limited to privacy of a person, personal communications, personal
data and territorial privacy. The right to privacy which is the highly essential part of one’s life and
personal liberty plays a significant role in the development of one’s personality, integrity and dignity.
However, certain practices such as bugging, telephone tapping and interception pose threats to the
confidentiality of communications.2 Right to privacy is a facet of right to life and personal liberty
enshrined under article 21 of the Indian constitution and right to privacy has been recognized as
fundamental right in the recent judicial pronouncement in Justice K.S Putthaswamy v. Union of India.
This research paper will deal with USA privacy laws in elaborative manner because India relied on
American laws for the purpose of interpreting the privacy matters in Indian domain. Apart from
discussion on American laws, author will elaborate the entire journey of right to privacy along with
various aspects and dimensions of privacy. The main purpose behind touching upon various areas of
privacy, is providing an unambiguous and unequivocal idea about the said right and we all have a
rudimentary idea that right to privacy can be considered as an umbrella under numerous areas related with
different field are covered. Therefore it is essential to explicate all such concept for providing better
understanding to the reader. The author will be providing an explication about "right to be forgotten as
well since various petitions are pending in supreme court and arguments are being raised for bringing
right to be forgotten under the purview of right to privacy, so all the mentioned areas will be explained in
elucidatory form for the basic understanding of the concept.

"Man's house is his castle", the mentioned saying implies about inherited "Right to privacy" in human
being. Every human being has certain confidential and surreptitious part of their life, which can't be
divulged at public domain. This right to privacy has gained momentum throughout the world and it has
been recognized as a fundamental right to privacy. The deliberation on right to privacy commenced after
the "Warren and Brandies" debate on right to privacy and this debate will be further elucidated in the
research paper. Countries such as USA, UK, India, and international organizations such as UDHR,
ICCPR, ECHR, have given valid recognition to right to privacy.

The constitution of India has not guaranteed the right to privacy as an explicit fundamental right to the
citizens but nevertheless, the Supreme Court has construed the right to privacy as a part of life and
personal liberty under article 21 of the Indian constitution and this right to privacy conundrum has been

2
R. Revathi, “Pervasive Technology, Invasive Privacy and Lucrative Piracy ”, vol 51:3, JILI2009,p.368.
unraveled by the Indian judiciary in the recent judicial pronouncement in the case of Justice K.S
Putthaswamy v. Union of India wherein right to privacy has been recognized as fundamental
right.3Article 21 of the Indian constitution deals with right to life and personal liberty and justice Khanna
has stated that human existence is not mere animal existence, every person deserves to live a dignified life
and term privacy is the utmost significant factor regarding enjoyment of life.

Right to privacy has travelled a prolonged journey in order to attain the status of fundamental right in
Indian constitution. There are abundance of cases dealing with acceptance and denial of this right
henceforth all the aforesaid points will be elaborated further in order to have a categorical understanding
about the evolution of "right to privacy" within Indian domain and the contribution of USA privacy laws
since Indian judiciary heavily relied upon the American laws for providing unequivocal adjudication of
privacy matters.

"Right to be forgotten" is another area that falls under the ambit of right to privacy. The development in
the technology is the reason behind initiation of such right in Indian constitution and we all know that
internet is accessible by everyone and certain sensitive and vulnerable information might be jeopardizing
in nature, therefore it is necessary to protect such right.

INDIAN ASPECT OF RIGHT TO PRIVACY

Fundamental rights are basic rights inherent in human being and such rights should be entrusted to every
citizen of the country along with proper remedial mechanisms. "Right to privacy" has travelled a
prolonged journey for the obtainment of status of fundamental right under Indian constitution and how
this privacy right attained the status of fundamental right then elucidation of certain prominent case laws
is mandatory for substantiating the discussion and for providing a clear and unambiguous idea about right
to privacy.

Right to privacy was derived from "protection of life and personal liberty" enshrined under article 21 of
the Indian constitution and the discussion on case laws is essential for better understanding of this utmost
significant right in the present scenario. In the case Kharak Singh v. State of Uttar Pradesh4 where the
appellant was being harassed by police under regulation 236(b) of the UP regulation, which permits for

3
http://supremecourtofindia.nic.in/supremecourt/2012/35071/35071_2012_Judgement_24-Aug-2017.pdf
4
AIR 1963 SC 1295
domiciliary, visits at night. The Supreme Court held that the regulation 236 is unconstitutional and
violative of article 21. The court concluded by saying that article 21 of the constitution to include “rights
to privacy" as a part of right to "protection of life and personal liberty". Justice Subba Rao equated
personal liberty with privacy and he observed that concept of liberty in article 21 was comprehensive
enough to include privacy and that a person's house, where he lives with his family is his castle and that
nothing is more deleterious to a man's physical happiness and health than a calculated interference with
his right to privacy.

In the case of Govind v. State of Madhya Pradesh5 the court observed that domiciliary visits by the
police should be reduced to the clearest cases of danger to the community security and not routine follow
up at the end of a conviction or release from prison or at whim of a police officer. In truth legality apart,
these regulations ill-record with the essence of personal freedoms and the state will do well to revise these
old police regulations verging perilously near unconstitutionality.

In the case of State v. Charulata Joshi6, the supreme court held that the constitutional right to freedom
of speech and expression conferred by article 19(1)(a) of the constitution which includes the freedom of
press is not an absolute right. The press must first obtain the willingness of a person sought to be
interviewed and no court can pass any order if the person to be interviewed expresses his unwillingness
In People's Union for Civil Liberties v. Union of India7,The court held that telephone tapping by the
government under telegraph act amounts to violation of article 21 and once the mentioned facts in a given
case attracts the facet of privacy, article 21 can be invoked since privacy is a part of right to life and
personal liberty and this right can be deprived of only by the procedure established by law.

Right to privacy is not mentioned in the Indian constitution but the roots of the privacy can be traced
under article 21 and telephonic conversation is a part of confidential information and tapping such private
communications is a contravention of right to privacy and this right can be taken away only by the
procedure established by law.8

Right to privacy is a broader concept and it consists of several dimensions of right to life and personal
liberties, yet another dimension was added in right to privacy in the case of Mr. X v. Hospital Z 9,where

5
(1975) 2 SCC 148
6
(1999) 4 SCC 65 see also Prabha Dutt v. Union of India, AIR 1982 SC 6 Sheela Barse v. State of Maharashtra
7
(1997) 1 SCC 301
8
ibid
9
(1998) 8 SCC 296
the appellant's blood was to transfused to another but he was tested HIV(+) at the respondent's hospital
and on the account of such information, appellant's marriage was called off and moreover he was
severally castigated in the society. The appellant approached the Supreme Court and contended that the
principle of "duty of care" includes the duty to maintain the confidential information between the patient
and the doctor and such duty of care had correlative right vested in the patient and whatsoever
confidential information comes to the knowledge of the doctor, will not be divulged at public domain.
The appellant added his contention by saying that respondent has violated the duty of care as well as right
to privacy of the appellant, hence liable to pay damages.

The Supreme Court rejected the contention of appellant and held that right of privacy may arise out of a
particular specific relationship, which may be matrimonial, commercial and political as well. Doctor-
patient relationship, though basically commercial yet a matter of confidence and therefore doctors are
orally and ethically responsible to maintain the confidentiality of such existing relationship. In such
situation, revelation of confidential information will result in invasion in privacy right which may
sometimes clash with another person's right to be informed. This right however is not absolute and may
be lawfully restricted for the prevention of crime, disorder, health, morals and rights of others.10

The utmost important observation which was observed in the aforesaid case, wherein the court held
pronounced that where there is a clash between 2 fundamental rights, as in this case, right to privacy of an
appellant and right to lead a healthy life of another party which is also a fundamental right. In such
situation right which is of public interest and morality will alone be enforced.11

In Sharda v. Dharmpal12,the supreme court held that right to privacy is not an absolute right and
whenever there is clash between 2 fundamental rights, the right which advances public interest and
morality will prevail.
In State of Maharashtra v. Madhukar Narayan Mardikar,13 the court protected the right to privacy of a
prostitute. It was held that even a women of easy virtue is entitled to her privacy and no one can invade
her privacy.

In Malak Singh v. State of Punjab and Haryana, Wherein the application was filed by the applicant for

10
ibid
11
ibid
12
(2003) 4 SCC 493

13
(1991) 1 SCC 57
removing his name from the surveillance register maintained by the Punjab police rules and Supreme
Court held that surveillance should be conducted as per rules enshrined therein.

The supreme court has elaborated the concept of privacy in the case of Ram Jethmalani v. Union of
India,wherein it was held that " Right to privacy is an integral part of right to life. This is a cherished
constitutional value, and it is important than human beings should be allowed domains of freedom that are
free of public scrutiny unless they act in an unlawful manner. The solution for the problem of abrogation
of one zone of constitutional values can't be the creation of another zone of abrogation of constitutional
values, the notion of fundamental rights, such as a right to privacy is a part of right to life, is not merely
that the state is enjoined from derogating form them against the actions of others in the society, even in
the context of exercise of fundamental rights by those others."

Right to privacy took completely different turn during "Aadhaar case" and the question was raised about
fundamental status of right to privacy in Indian constitution. In this case , a scheme propounded by the
government of India popularly known as "Aadhaar Card Scheme" and under this scheme government was
accumulating the personal information related with biometric and demographic data and such confidential
information was about to be used for various beneficial purposes provided by the government.

This scheme was challenged through bunch of petitions and it was contended that collection of private
information of individuals, is a violation of right to privacy since government had all personal
information of every citizen of this country and there was a suspicion about misuse of such covert
information by the government. This case attained immense attention because of raising the significant
question about the fundamental status of right to privacy.

The nine-judge bench of the Supreme Court has unanimously delivered its judgment 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 recognized and guaranteed by the
fundamental rights contained in Part III of the Indian constitution.14

Judgment can be concluded by mentioning that "Privacy includes at its core the preservation of personal
intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also
connotes a right to be left alone. Privacy safeguards individual autonomy and recognizes the ability of the

14
https://thewire.in/171325/justice-chandrachud-judgment-right-to-privacy/
individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic
to privacy. Privacy protects heterogeneity and recognizes the plurality and diversity of our culture. While
the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the
private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely
because the individual is in a public place. Privacy attaches to the person since it is an essential facet of
the dignity of the human being."15.

RIGHT TO PRIVACY A FUNDAMENTAL RIGHT

“Gradually the scope of legal rights broadened; and now the right to life has come to mean the right to
enjoy life – the right to be let alone.” – Louis Brandeis, J. (1890)

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.

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 or to attack upon his honor 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”

15
ibid
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.”

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.”16

Husband Tapping Conversation of His Wife With Others Seeking to 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.

There exists in India an impending need to frame a model statute which safeguards the Right to Privacy of
an individual, especially given the emergence of customer service corporate entities which gather
extensive personal information relating to it's customers. It's evident that despite the presence of adequate
non-mandatory, ethical arguments and precedents established by the Supreme court of India; in the
absence of an explicit privacy statute, the right to privacy remains a de facto right, enforced through a
circuitous mode of reasoning and derived from an expansive interpretation of either Constitutional law or

16
https://indiankanoon.org/doc/12577154
tort law 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.
The right to respect for private and family life
The right to respect for privacy mirrors the liberal concept of the individual’s freedom as a self-governing
being as long as his/her actions do not interfere with the rights and freedoms of others. The right to
privacy is the right to individual autonomy that is violated when states interfere with, penalise, or prohibit
actions that essentially only concern the individual, such as not wearing safety equipment at work or
committing suicide. States justify such interferences with the social costs of the actions prohibited, for
instance to the health care system. The right to privacy encompasses the right to protect a person’s
intimacy, identity, name, gender, honour, dignity, appearance, feelings and sexual orientation. The right
to privacy may be limited in the interests of others, under specific conditions, provided that the
interference is not arbitrary or unlawful. People cannot be forced to change their appearance or name, for
instance, nor can they be prohibited from changing their name or sex; however, in the interests of the
rights of others they may, for example, be compelled to give biological samples for the determination of
paternity. Another exception could be lawful counter-terrorism surveillance that necessarily operates in
breach of privacy rights. Such a breach is acceptable as long as it accords with judicial and parliamentary
oversight. The right to privacy extends to the home, the family and correspondence. The term family
relates, for example, to blood ties, economic ties, marriage and adoption. The right to the respect for
privacy of the home has been interpreted to include place of business. A common interference with the
privacy of correspondence has to do with secret surveillance and censorship of the correspondence of
prisoners.

What is virginity?
"Virginity is the state of a person who has never engaged in a sexual intercourse".

What is virginity test?

A 'Virginity test' is the practice and process of determining whether a girl or woman is a virgin; i.e,
whether she has never engaged in sexual intercourse.

The test typically involves a check for the presence of an intact hymen, on the assumption that it can only
be torn as a result of sexual intercourse.

There is ' two finger test' A doctor performs the test by inserting a finger into the female's vagina to check
the level of vaginal laxity, which is used to determine if she is "habituated to sexual intercourse".
The Supreme Court of India has held that the two-finger test' on a rape victim violates her right to
privacy, and asked the Indian government to provide better medical procedures to confirm sexual assault.

CASE LAW
In Surajit Singh Thind vs Kanwaljit kaur
Punjab and Haryana high court has held that allowing medical examination of a woman for her virginity
amounts to violation of her right to privacy and personal liberty enshrined under article 21 of the
Constitution.

Fact -
In this case the wife has filed a petition for a decree of nullity of marriage on the ground that the marriage
has never been consummated because the husband was impotent. The husband had taken the defence that
the marriage was constructed and he was not impotent. In order to prove that the wife was not virgin the
husband filed an application for her medical (virginity test) examination.

Held –
The court held that allowing the medical examination of a woman's virginity violets her right privacy
under article 21 of the Constitution. Such an order would amount to Roving enquiry against a female who
is vulnerable even otherwise. The virginity test cannot constitute in Sole basis, to prove the
consummation of marriage.
Right to health and right to privacy
Where there is a conflict between two derived rights, the right which advances public morality or public
interest should alone be enforced by a process of court. The right to privacy of the appellant and the right
to lead a healthy life of another person were clashed, both of it having its origin in Article 21. The
disclosure of confidential information regarding the appellant would invariably result in saving an
innocent person from contracting a deadly disease like AIDS. The disclosure of such information is
sensitive and might lead to social ostracism and cannot be done except with an overwhelming
consideration of public morality and public health. AIDS patients deserve all respect as human beings and
no person shall be denied any opportunity or government jobs or service on the ground of disease, but
having ‘sex’ with them shall be avoided as the same would lead to the communication of a dreadful
disease and the court shall not assist the person in achieving that object. Hence, in case of a conflict
between right to privacy and right to health of another, the latter prevails, upon greater considerations of
public morality.
Privacy Obligations under Specific Relationships
There are instances of specific inter-personal relationships wherein one party might be obligated to
maintain a certain measure of confidentiality. A doctor-patient, husband-wife, customer-insurance
company or an attorney-client relationship; are instances where there exists a strong ethical obligation on
the part of one party to protect the privacy of information relating to an individual which may expose him
to social humiliation and/or ridicule. The above principle also receives legal recognition in Ss. 123-126 of
the Indian Evidence Act, 1871.

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 prevail.