Right to privacy case analysis

A bench of constituent assembly reveals that right to privacy is of great importance. Right to
privacy is not expressly mentioned in Indian Constitution is an inborn right under article 21 of
Indian Constitution. When right to privacy was declared as fundamental right it creates a positive
impact on the some of existing laws like homosexuality under Article 377 of Indian Penal Code.

Right to privacy is a right which should be come into existence since birth. Right to privacy
should be considered as a natural right.

A nine Constitution bench of Supreme Court said that right to privacy is a fundamental right.
There are various cases where right to privacy has been recognized.

The question of right to privacy arose in kharak Singh v. State of U.P. AIR 1963 SC 1295
wherein Justice Subbarao gave his opinion in minority that right to privacy though not expressly
mentioned in Indian Constitution, it should be mentioned in the Indian Constitution and it is an
essential ingredient of personal liberty. In this case it was held that an unauthorized intrusion into
any persons home and disturbance caused to him thereby, is it as it was the violation of right to
privacy under Article 21 of Indian Constitution. A six judge bench examined the issue of
surveillance and regulations validity governing the police of Uttar Pradesh.

 Govind v. State of M.P

In this case Supreme Court held that right to privacy comes under personal liability which is
guaranteed under Indian Constitution. It is further recognized that right to privacy can be both an
actionable claim and also a fundamental right.

 Right to privacy is also available to woman of easy of virtues it was stated in the case of
State of Maharashtra v. Madhulkar Narain
In this case it was held that right to privacy is also available to the woman of easy virtues and no
one has a right to harm her privacy. In this case a police inspector visited the house of Banubai in
uniform and said he wanted to have sexual intercourse with her. When she refused to do with
him he applied force on her. She cried loudly and shouted. When the police man was prosecuted
he said that he is a lady of easy virtue and therefore her evidence was not be relied . The court
rejected the argument of applicant and held him liable under Article 21 of Indian Constitution for
Violating her right to privacy.

It was held in case of Surjit Singh Thind v. Kanwaljit Kaur that virginity test violated right to
privacy under Article 21 of Indian Constitution. In this case Punjab and Haryana High Court has
held that if a medical examination of a woman is allowed for her virginity test then it amounts to
violation of right to privacy and personal liberty mentioned under Constitution of India. In this
case wife filed petition for a decree of nullity of marriage as marriage has not been consumated
because husband was impotent. The husband has taken the defence that marriage was
consumated and he was not impotent at that time. In order to prove that his wife was not virgin
he filed an application for medical examination. The court held that allowing for medical
examination in order to test woman's virginity violates article 21 of Indian Constitution and her
right to privacy. It was held that virginity test cannot be considered as sole basis to prove
consumation of marriage.

 District Registrar and Collector, Hyderabad and another v. Canara Bank and another,
2004
"After an exhaustive analysis of privacy laws across the world, and in India, the Supreme
Court held that in the absence of any safeguards as to probable or reasonable cause or
reasonable basis, this provision was violative of the constitutionally guaranteed right to
privacy “both of the house and of the person”.

 Selvi v. State of Karnataka

In this case Supreme Court pointed out the difference between physical privacy and mental
privacy. The case also established a connection of the right to privacy with Article 20(3) (self-
incrimination). the Supreme Court directed that no individual should be forcibly subjected to any
of the techniques in question, whether in the context of investigation in criminal cases or
otherwise. Doing so would amount to unwarranted intrusion into personal liberty.

 Unique Identification Authority of India & Anr. v. Central Bureau of Investigation

(2014).
 In this case, for the purpose of Investigating a criminal offence the central bureau of
investigation sought access to the large amount of database which is attached by the
unique identity authority of India. The SC held that the UIDAI(Unique Identification
Authority of India) was not allowed to transfer any biometrics without the consent of the
concerned person.

R. Rajagopal v. State of T.N.

This case is also popularly known as 'Auto Shanker Case'. In this case Supreme Court clearly
held the concept of Right of Privacy, or right to be free of unsanctioned intrusion is guaranteed
under Article 21 of Indian Constitution. It is the responsibility of every citizen to protect the
privacy of his own family, own marriage, procreation, motherhood, childbearing and education
in all other related matters. No person has got a right to publish anything concerning the matters
mentioned above without the person's consent. Whether the publication is truth or otherwise or
whether complimentary or judgemental. If a person does the act then he would be violating the
concerned persons right and would be liable for damages.

The above rule is subject to an exception that if publication is of any public record it also
includes court record then it can't be objectionable. A person cannot raise any objection on such
publication. It becomes a valid comment by press and media among all others if a matter
becomes of a public record and in such circumstances the right to privacy do not exist.

 People's Union for civil liberties v. Union f India

In this case court held that ' they have no hesitation in considering right to privacy under Article
21 of Indian Constitution that is under life and personal liberty. If the facts of the case contains
right to privacy then Article 21 is automatically attracted. The said right can't be reduced or cut
down except according to procedure established by law.

 Justice K.S. Puttoswamy v. Union of Indian and others.

In this case the unique identify scheme was discussed with the right to privacy. The question was
arosed before Supreme Court that whether such right has been guaranteed under Constitution or
not.
FACTS- The government of India decided to provide to all its citizens a unique identity called
Aadhar which is card containing 12 digit Aadhar number. The registration for this card was made
mandatory so as to enable the people to file tax returns, opening bank accounts etc. However, the
registration procedure for such card required the citizens to give their biometrics such as
fingerprints, iris scans etc. Retired judge justice K.S Puttaswamy filed a petition challenging the
constitutional validity of this Aadhar project contending that there was a violation of right to
privacy of the citizens since, the registration for Aadhar is made mandatory. As a result of which
all those who don’t even want to register themselves, are not left with any option. Moreover,
there is a lack of data protection laws in India and hence, there are chances that the private
information of the people may be leaked if proper care is not taken. This will lead to violation of
right to privacy of the individuals.

JUDGMENT AND ANALYSIS

The Judgment of the Apex Court that Right to privacy is a fundamental right is correct.
However, it is true that privacy cannot be an absolute right. For instance, surveillance is
important to prevent crime in the society. An individual cannot simply argue that his privacy is
being violated if larger public interest requires keeping him/her under the surveillance. The
major question is that the Supreme Court of India, unlike the USA, has still not recognized the
doctrine of waiver, which facilitates that an individual can waive off the fundamental rights if
larger public interest requires so. The reason behind this being that it would defeat the purpose of
the Constitution which implies that fundamental rights are absolute. So, how can privacy be a
fundamental right if it is not absolute? As already mentioned above, privacy is not only a right, it
is a natural and inalienable right. It cannot be denied the status of a fundamental right because
liberty without privacy and dignity would be of no use.