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Unfolding Development Of Right To Privacy In Indian Courts

Privacy is a fundamental human right, enshrined in numerous international human rights instruments[1]. Though privacy is a relatively new concept, is a well-battered topic in the history of the Indian Constitution. In India, the right to privacy has always been the highlight for various reasons starting with the fact that there is no express provision for Privacy in the Indian Constitution and has been subject to judicial interpretation in the constitution of India which bought it within the ambit of the fundamental right[2].

However, this hasn't stopped courts in serving justice in any sense over the past years through various judgments the Courts of the country have interpreted the other rights in the Constitution to be giving rise to a (limited) right to privacy primarily through Article 21 the right to life and liberty.

This article will attempt to trace the chronological judicial interpretations behind the present crystal clear status of the Right to Privacy as a fundamental right.

Beginning the journey from the year 1954 when in the case of M. P. Sharma vs. Satish Chandra[3], the Supreme Court held that the Right to Privacy is not a Fundamental Right.
The case related to the search and seizure of documents of some Dalmia group companies following investigations into its affairs. Following an FIR, the District Magistrate issued warrants, and searches were consequently conducted. In writ petitions before the Supreme Court, the constitutional validity of the searches was challenged on the grounds that they violated their fundamental rights under Articles 19(1) (f) and 20(3) � protection against self-incrimination.

The 8-judge bench of the Supreme Court held that the drafters of the Constitution did not intend to subject the power of search and seizure to a fundamental right of privacy. They opined 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, and the Constitution does not include language similar to the Fourth Amendment of the US Constitution, and found no justification to import the concept of a fundamental right to privacy in search-and-seizures, through what they called a 'strained construction'.

Then in the year 1962 came the Kharak Singh vs State of Uttar Pradesh[4] case in which the six-judge bench examined the issue of surveillance and regulations validity governing the Uttar Pradesh police. The main question was whether surveillance under the Uttar Pradesh police regulations constituted an infringement of the citizen's fundamental rights as guaranteed by the Constitution.

In a significant judgment, the court ruled that privacy was not a guaranteed constitutional right. It, however, held that Article 21 (right to life) was the repository of residuary personal rights and recognized the common law right to privacy. However, the provision allowing domiciliary visits was called unconstitutional. It pointed out that fundamental rights under privacy were mutually exclusive and self-contained.

Justice Subbarao was a dissenting voice who, however, said that even though the right to privacy was not recognized as a fundamental right, it was essential to personal liberty under Article 21. He also held all surveillance measures to be unconstitutional.

In both cases, the Supreme Court had stated that the right to privacy did not exist under the Indian Constitution.

The question of privacy as a fundamental right presented itself once again to the Supreme Court a few years later in the case of Govind v. State of Madhya Pradesh & Ors.[5]
It is one of the most significant Indian cases dealing with the right to privacy which has significantly helped in developing the rule regarding the right to privacy and its nature.

In this case, a three-Judge Bench of the Supreme Court for the first time extensively discussed the right to privacy under Articles 19(1)(d) and 21 of the Constitution in the context of police surveillance. The writ petition challenged the validity of Regulations 855 and 856 of the Madhya Pradesh Police Regulations made by the Government under the Police Act, 1961 (Police Act) that permitted domiciliary visits and other forms of surveillance of individuals with a criminal history.

The court stated that the right to privacy is not explicitly provided under the Constitution of India. It can be implied from Article 21 of the Indian Constitution and therefore is not absolute in its entirety. Thus, a reasonable restriction can be imposed on an individual's right to privacy and this is to be determined through a comprehensive analysis of the facts of the case and through the compelling state interest test.

The court in the case of R. Rajagopal & Ors. vs. State of Tamil Nadu & Ors.[6] was of the view that 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 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.

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.

Again the Supreme Court of India in the case of People's Union for Civil Liberties v. Union of India[7] held that Indian voters have a right under Article 19(1)(a) of the Indian Constitution to obtain information about political candidates. The People's Union of Civil Liberties (PUCL) challenged the validity of a 1951 law, which stated that political candidates were not bound to disclose any information not required under the law.

The Supreme Court of India reiterated that Article 19(1)(a) includes the right of voters to have basic information about electoral candidates. The Court reasoned that the availability of basic information about the candidates enables voters to make an informed decision and also paves the way for public debates on the merits and demerits of candidates.

Further, freedom of expression is not limited to oral or written expression, but also includes voting as a form of expression which is a part of the fundamental right of freedom of speech and expression under Article 19(1)(a).

The whole Right to privacy discussion took a 360-degree turn in the case of Naz Foundation v. Government of NCT of Delhi[8], in which the Court evaluated the constitutional validity of the impugned law, examining its compatibility with Articles 14, 15, 19, and 21. Having held that sexual preferences fall within the right to dignity and privacy of the individual, the court held that Section 377 constituted a direct infringement of the aforementioned right and as a consequence, violates the substance of Article 21

The Court located the rights to dignity and privacy within the right to life and liberty guaranteed by Article 21 (under the fundamental Right to Freedom charter) of the Constitution and held that criminalization of consensual gay sex violated these rights. From the celebrated American case of Roe v. Wade to landmark Indian judgments.

The judgment of the Delhi High Court is a landmark step in establishing the superiority of the individual's right to privacy and dignity over the collective morality of society. To that effect, we may assert that the propositions laid down by H.L.A.

These cases were known more famously as midnight surveillance cases. At a later stage, many other issues cropped up in relation to privacy. One such case is R. Rajagopal v. State of Tamil Nadu[9] laid down the foundation for balancing the right of freedom of speech and expression in relation to the right to privacy.

Similarly, Mr. 'X' v. Hospital 'Z'[10] laid down the rules of privacy available to an HIV+ patient. But in this case, what is more, relevant aspect to the case of Selvi v. State of Karnataka[11] is the aspect of search and seizure of police authority and to the extent, it can curtail the right to privacy of a citizen.

In the case of District Registrar and Collector v. Canara Bank[12], it was held that it is a right to let alone and every citizen has the right to safeguard the privacy of his own. Any right to privacy must encompass and protect personal intimacies at home.[13] It has been held that 'unreasonable search and seizure' amounted to a violation of the right to privacy especially when no guidelines are issued as to a person who may be authorized to search the place and under what circumstances and when there are laws that are sufficient to meet the requirement.[14]

With the judgment of Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors.[15] case a more reformed and well-established law formed regarding the right to privacy. This one of its kind cases is the cornerstone of the 'Right to Privacy' jurisprudence in India. The nine Judge Bench in this case unanimously reaffirmed the right to privacy as a fundamental right under the Constitution of India. The Court held that the right to privacy was integral to freedoms guaranteed across fundamental rights, and was an intrinsic aspect of dignity, autonomy, and liberty.

The case began with the question of whether the right to privacy was a fundamental right, which was raised in 2015 in the arguments concerning the legal validity of the Aadhaar database. The Attorney General appearing for the State argued that the existence of the right to privacy as a fundamental right was in doubt in view of the two decisions in the cases of M.P. Sharma vs. Satish Chandra, District Magistrate, Delhi, rendered by an eight Judge Bench, and Kharak Singh vs. State of Uttar Pradesh, rendered by a six Judge Bench. Both the cases, the State argued, contained observations that the Constitution did not specifically protect the right to privacy as a fundamental right.

At the same time, several subsequent judgments over the years had recognized the right to privacy as a fundamental right. However, these subsequent decisions that affirmed the existence of the right to privacy were rendered by benches of a smaller strength than M.P. Sharma and Kharak Singh. Due to issues relating to the precedential value of judgments and noting the far-reaching importance of the right to privacy, this case was referred to a nine Judge Bench of the Supreme Court.

The Bench unanimously held 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 doing so, it overruled previous judgments of the Supreme Court in M.P. Sharma and Kharak Singh, insofar as the latter held that the right to privacy was not recognized under the Indian Constitution.

In addition to cementing the place of the right to privacy as a fundamental right, this case also laid down the need for the implementation of a new law relating to data privacy, expanded the scope of privacy in personal spaces, and discussed privacy as an intrinsic value.

The Supreme Court, through various separate opinions, pronounced privacy to be a distinct and independent fundamental right under Article 21 of the Constitution. The crux of the decisions spelled out an expansive interpretation of the right to privacy - it was not a narrow right against physical invasion or a derivative right under Article 21, but one that covered the body and mind, including decisions, choices, information, and freedom. Privacy was held to be an overarching right of Part III of the Constitution which was enforceable and multifaceted. Details regarding the scope of the right were discussed in the multiple opinions.

  1. Universal Declaration of Human Rights Article 12, United Nations Convention on Migrant Workers Article 14, UN Convention of the Protection of the Child Article 16, International Covenant on Civil and Political Rights, International Covenant on Civil and Political Rights Article 17; regional conventions including Article 10 of the African Charter on the Rights and Welfare of the Child, Article 11 of the American Convention on Human Rights, Article 4 of the African Union Principles on Freedom of Expression, Article 5 of the American Declaration of the Rights and Duties of Man, Article 21 of the Arab Charter on Human Rights, and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; Johannesburg Principles on National Security, Free Expression and Access to Information, Camden Principles on Freedom of Expression and Equality.
  2. Human Rights Committee general comment No. 16 (1988) on the right to respect of privacy, family, home and correspondence, and protection of honor and reputation (art. 17) See: A/HRC/WG.6/13/MAR/3, para. 37.
  3. M. P. Sharma vs. Satish Chandra, 1954 AIR 300.
  4. Kharak Singh vs State of Uttar Pradesh AIR 1963 SC 1295.
  5. Govind vs. State of Madhya Pradesh & Ors., AIR 1975 SC 1378.
  6. R. Rajagopal & Ors. vs. State of Tamil Nadu & Ors., AIR 1995 SC 264.
  7. People's Union for Civil Liberties v. Union of India AIR 1991 SC 207
  8. Naz Foundation V. Government of NCT of Delhi, 160 Delhi Law Times 277.
  9. R. Rajagopal v. State of Tamil Nadu, 1994 SCC (6) 632.
  10. AIR 1999 SC 495.
  11. Selvi v. State of Karnataka, Criminal Appeal 1267 of; 2004 2010(7) SCC 263.
  12. District Registrar and Collector v. Canara Bank , AIR 2005 SC 186; Director of Revenue v. Mohammad Nissar Holia; (2008) 2 SCC 370.
  13. Lyunman v. Illionois; (1963) 372 US 528; Commentary on the Constitution of India by D.D. Basu.
  14. Stefanelli v. Minard; (1952) 342 US 117.
  15. Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors., AIR 2017 SC 4161.

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