🖥

Right to privacy
The refrain that the poor need no civil and political rights
and are concerned only with economic well-being has been
utilized through history to wreak the most egregious
violations of human rights." Justice Chandrachud, Justice
KS Puttaswamy Retd.) & Anr. v. Union of India & Ors

Introduction
Privacy is a matter which everyone presses on, Stephen king, in his book
Hearts in Atlantis said that, “Friends don’t spy; true friendship is about privacy,
too.” And the famous American actor, Marlon Brando, taking on the issue of
privacy said that, “Privacy is not something that I’m merely entitled to, it’s an
absolute prerequisite.” In this 21st century, Privacy, in its all aspects, is the
paramount concern. Fun fact: the website or the application you are reading
this article on, is also governed by a privacy policy which it has to, in any
case, adhere to. So what makes privacy such an important issue and what
laws we have to deal with it, especially in India. This article will analyse what
the term right to privacy means in the Indian legal regime, its journey as a right
and all the subsequent issues related to it.

WHAT IS PRIVACY !!!!!

Privacy is the right to be left alone or to be free from misuse or abuse of one’s
personality. The right of privacy is the right to be free from unwarranted
publicity, to live a life of seclusion, and to live without unwarranted
interference by the public in matters with which the public is not necessarily
concerned. 1 Strutner v Dispatch Printing Co., 2 Ohio App. 3d 377 Ohio Ct.
App., Franklin County 1982
And the activities that restrict the right to privacy, such as surveillance and
censorship, can only be justified when they are prescribed by law, necessary

Right to privacy 1
 to achieve a legitimate aim, and proportionate to the aim pursued.

2 Martin Scheinin, “Report of the Special Rapporteur on the promotion and

protection of human rights and fundamental freedoms while countering
terrorism,” 2009, A/ HRC/17/34.

OKAY BUT WHAT DOES INDIAN LAW SAY ABOUT RIGHT TO PRIVACY AND
PRIVACY IN GENERAL ?

The Constitution of india, as for now, does not have right to privacy as an
explicit fundamental right, rather it comes under the Article 21 of the
constitution, which deals with, “No person shall be deprived of his life or
personal liberty except according to procedure established by law.”

TRACING THE JOURNEY OF RIGHT TO PRIVACY

The journey of privacy as a right in the Indian constitution has been a very
protracted one.

In the case of, M. P. Sharma and Ors. v Satish Chandra, District Magistrate,
Delhi and Ors., the issue of ‘right to privacy’ as a fundamental right was first
considered. The warrant being issued for search and seizure under Section 94
and 96 1 of the Code of Criminal Procedure was challenged in the case. The
Hon’ble Supreme Court had held that the power of search and seizure was not
in contravention of any constitutional provision and Hon’ble court refrained
from giving recognition to right to privacy as a fundamental right by
observing: - “When the constitution makers have thought fit not to subject
such regulation to constitutional limitations by recognition of a fundamental
right to privacy, analogous to the Fourth Amendment, we have no justification
to import it, into a totally different fundamental right, by some process of
strained construction.”

M. P. Sharma and Ors. v Satish Chandra, District Magistrate, Delhi and Ors.,
1954 AIR 300,

(https://indiankanoon.org/doc/1306519/)

In the case of, Kharak Singh v State of Uttar Pradesh and Ors., the Hon’ble
Supreme Court held that the regulation 236(b) of the UP regulation, permitting
domicilary visits at night against an accused, is unconstitutional and also is a

Right to privacy 2
 contravention of Article 21. Although the majority judges went on hold to
considered right to privacy as a fundamental right, the minority opinion by
Hon’ble Justice Subha Rao, recognised as an important facet of personal
liberty and thus Article 21 of the constitution of India by observing: - “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.”

Kharak Singh v State of Uttar Pradesh and Ors., 1963 AIR 1295

(https://indiankanoon.org/doc/619152/)

In the case of, Gobind v State Of Madhya Pradesh And Anr., the Hon’ble
Supreme Court held that the police regulations regarding making domiciliary
surveillance, were not in compliance with spirit of personal freedom and
accepted right to privacy, partially, depending upon a process of case-by-
case basis and denied it to be absolute in nature, by observing : - “The right to
privacy in any event will necessarily have to go through a process of case-by-
case development. Therefore, even assuming that the right to personal liberty,
the right to move freely throughout the territory of India and the freedom of
speech create an independent right of privacy as an emanation from them
which one can characterize as a fundamental right, we do not think that the
right is absolute.”

Gobind v State Of Madhya Pradesh And Anr.,AIR 1975 SC 1378

(https://indiankanoon.org/doc/845196/)
In the case of,STATE THROUGH SUPDTT, CENTRAL JAIL,N.DELHI v Charulata
Joshi & Anr., The Hon’ble Supreme Court held that Article 19 1)(a) of the
Constitution of India which includes freedom of press, is not an absolute and
that the press should sought interviewee’s willingness and no court can pass
any order if the person does not do so.

STATE THROUGH SUPDTT, CENTRAL JAIL,N.DELHI v Charulata Joshi & Anr.,

1999 4 SCC 65

(https://indiankanoon.org/doc/113845/)

Right to privacy 3
 In the case of, Rajagopal and Anr. v State of Tamil Nadu, Justice B.P. Jeevan
Reddy observed that: - “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.”
Rajagopal and Anr. v State of Tamil Nadu, 1995 AIR 264

(https://indiankanoon.org/doc/501107/)

In the case of, People’s Union for Civil Liberties PUCL v Union of India And
Anr., whether telephone tapping infringed the fundamental rights of a person.
The Hon’ble Supreme Court held that under the telegraph act, telephone
tapping by the government is in contravention to Article 21 and right to
privacy is a part of life and personal liberty. The Hon’ble court observed: - “We
have, therefore, no hesitation in holding that right to privacy is a part of the
right to “life” and “personal liberty” enshrined under Article 21 of the
Constitution. Once the facts in a given case constitute a right to privacy,
Article 21 is attracted. The said right cannot be curtailed “except according to
procedure established by law”.
People’s Union for Civil Liberties PUCL v Union of India And Anr., AIR 1997
SC 568
(https://indiankanoon.org/doc/31276692/)

In the case of, Justice K.S.Puttaswamy(Retd) vs Union Of India, question was

whether the “ Aadhaar Card Scheme’ was an infringement on the right of
privacy of a person, embodied in Article 21. The arguments put forward by the
petitioners was that, right to privacy is a fundamental right coextensive with
the dignity and liberty of the person and found in the Articles 14, 19, 20, 21
and 25 of the constitution. The Government on the other hand said that,
privacy is a subjective and vague concept, it is difficult to define. Such vague
concept cannot be elevated to a fundamental right. If the sounding fathers
wanted to incorporate the ‘right to privacy’ as a fundamental right, the same

Right to privacy 4
 would have been included within the constitution and that ‘right to privacy’ is a
legitimate claim having sanction of common law, each such claim cannot be
elevated to fundamental right. On August 24, 2017, the nine-judge bench of the
Hon’ble Supreme Court, unanimously held that : - “The reference is disposed
of in the following terms:
(i) The decision in M P Sharma which holds that the right to privacy is not
protected by the Constitution stands over-ruled;
(ii) The decision in Kharak Singh to the extent that it holds that the right to
privacy is not protected by the Constitution stands over-ruled;
(iii) 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.
(iv) Decisions subsequent to Kharak Singh which have enunciated the position
in (iii) above lay down the correct position in law.”

Justice K.S.Puttaswamy(Retd) vs Union Of India, 2015 8 SCC 735

(https://indiankanoon.org/doc/127517806/)

The Hon’ble Supreme Court, yet again reiterated that, like the other rights
under the part III of the constitution of India, privacy is not an absolute right
and also touched upon the grounds upon which invasion of privacy can be
justified. The Hon’ble Justice D. Y. Chandrachud wrote in thhe judgement that:
-“In the context of Article 21 an invasion of privacy must be justified on the
basis of a law which stipulates a procedure which is fair, just and reasonable.
The law must also be valid with reference to the encroachment on life and
personal liberty under Article 21. An invasion of life or personal liberty must
meet the three-fold requirement of (i) legality, which postulates the existence
of law; (ii) need, defined in terms of a legitimate state aim; and (iii)
proportionality which ensures a rational nexus between the objects and the
means adopted to achieve them; and I Privacy has both positive and
negative content. The negative content restrains the state from committing an
intrusion upon the life and personal liberty of a citizen. Its positive content
imposes an obligation on the state to take all necessary measures to protect
the privacy of the individual.”
Thus, the constitutional protection of privacy may give rise to two inter-
related protections i.e. (i) against world at large, to be respected by all

Right to privacy 5
 including State: right to choose that what personal information is to be
released into the public space (ii) against the State: as necessary concomitant
of democratic values, limited government and limitation on power of State.

Right to privacy 6