Right to Privacy And Its Journey In Post Independent India
Author: Nikhil Mathur
University of Delhi
Privacy is recognized as a right by almost entire countries explicitly under their constitution. However in India privacy was not explicitly recognized so the court in order to give a life to such an important right to found its source in some other fundamental right under the constitution. On 24th of August 2017 the honorable supreme court of India gave a landmark judgement in the Puttaswamy Case 1 where right to privacy was unanimously recognized as part of basic fundamental right under Article 21 of the “Right to Life and Personal Liberty” by a bench of 9 judges. The decision given by judges in the case not only speaks about recognition of right to privacy as a fundamental right but also of a very long journey of this fundamental right. Here we are going to discuss few cases in order to know the journey of the right to privacy in post independent India.
Before we move further and discuss about the journey of this right, we should first understand what privacy means. Right of privacy cannot be easily defined because it is not a single right but a group of rights like right to sleep, right against unauthorized monitoring, right against surveillance, data protection right and many more all comes within the ambit of right to privacy. In the case of Griswold vs Connecticut 2,right to privacy was held as a penumbral right by the Supreme Court of US. In simple language it can be said that it is that part of life where a person does not want other to interfere without his/her permission. It cannot be defined also because this right depends on many other aspects. It changes from person to person. What may be privacy infringement for one person may not be for other. Thus privacy infringement can be decided only case by case basis.
Journey of Right to Privacy
The first two important judgements where the question of privacy pop up was in M.P. Sharma case 3 and then in the case of Kharak Singh 4. These two cases actually became a major hindrance in establishing the right to privacy as a fundamental right in the constitution of India.
In the case of M.P Sharma the court observed 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 a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right by some process of strained construction. Nor is it legitimate to assume that the constitutional protection under Article 20(3) would be defeated by the statutory provisions for searches.” 5
In the second case of Kharak Singh 6, the right to privacy was again not considered as a fundamental right but what is important here is the dissenting judgment by Subba Rao,J which brings a ray of life to this right.
He draws the attention of the court to the famous judgment given by Frankfurter J., in Wolf v. Colorado 7, and concluded from his judgement that “privacy right against arbitrary intrusion by the police, have equal application to an Indian home as to an American one. Interference with privacy is always having a more dreadful effect on a person’s happiness and health. We would, therefore, define the right of personal liberty in Article 21 as a right of an individual to be free from restrictions or encroachments on his person, whether those restrictions or encroachments are directly imposed or indirectly brought about by calculated measures.” 8
He further opined that fundamental right under Article 21 and Article 19 are independent of each other, though there is some overlapping. There is nothing like one right being carved out of others. There are many colors of the fundamental right of life and personal liberty and some of them are found in Article 19. If any fundamental right under Artice 21 is infringed, and also violates the right under Article 19 the state cannot protect them by showing that action is taken under law. Such law must also satisfy the test of reasonable restriction laid down in Article 19(2).
After these two cases now the court has decided the case of Govind vs M.P 9. This is the first case where this Right To Privacy was recognized by the court.
What happened in this case is that the petitioner challenged the validity of Regulations 855 and 856 of the Madhya Pradesh Police Regulations made by the Government under the Police Act, 1961. These two regulations give the power of surveillance like domiciliary visits at both day and night even at irregular intervals if the District superintendent believes that an individual is leading a life of crime and shows determination to lead a life of crime.
Here the court observed that the objects of the act are to prevent the commission of crimes and therefore domiciliary visits are made to see if the individual is at home or go out of it for the commission of offences. “A very broad definition of privacy will raise serious questions about the propriety of judicial reliance on a right that is not explicit in the Constitution. Therefore the right to privacy necessarily has to go through a process of case by case development. Hence, assuming that the right to personal liberty, the right to move freely throughout India and the freedom of speech create an independent fundamental right of privacy as an emanation from them it could not be absolute. It must be subject to the restriction on the basis of compelling public interest. But the law infringing it must satisfy the compelling state interest test.” 10
The court here is not in the favour of giving a very wide interpretation of the regulation as such drastic change may negatively affect both fundamental rights and the right to privacy. As the regulations here have the force of law, the petitioner’s fundamental right under Article 21 is not violated. Surveillance by domiciliary visits would not always be an unreasonable restriction upon the right of privacy. It is applied only to a person leading a criminal life.
Then we have a landmark judgment given in the case of Maneka Gandhi 11
What happened, in this case, is that passport of Maneka Gandhi was impounded by the passport authority and when she asked for the reason for such action by the authority she was refused to be given any reason. The Supreme Court was once again tasked for the interpretation of the expression of personal liberty under Article 21 of the constitution of India.
A whole new way of interpretation of Article 21 was done by the court. A new concept of Golden Triangle was given to the people of India where a law depriving a person of personal liberty has to stand the test of both Article 14 and Article 19 apart from Article 21 of the constitution.
Again in the case of PUCL vs UOI 12 court held the Right to Privacy as part of the Right to life and personal liberty under Article 21 of the constitution and considered unauthorized telephone tapping as a violation of such right.
Many more cases came before this court even afterPUCL vs UOI and in every case, this right is considered as a basic fundamental right inherent under Article 21 of the right to life and personal liberty.
Now if everything is going correctly with post Govind vs State 13 cases and the court is referring right to privacy as a fundamental right then what was the problem before the court that again the question of right to privacy pop up.
The reason is that these judgments of accepting the right to privacy as a fundamental right under Article 21 of the constitution was given by a bench smaller than the bench in MP Sharma case in which the right to privacy was not accepted as a fundamental right. So the court decided that the question of whether the right to privacy is a fundamental right or not under the constitution of India would be decided by a bench larger than in MP Sharma case in order to set a good precedent in the eye of law and remove some clear unresolved contradiction in the law declared by the court. So accordingly a bench of 9 judges was set up to address this issue in the case Puttaswamy vs UOI.
Puttaswamy Case 14
In this case ratio of M.P Sharma case and Kharak Singh case is properly scrutinized and the jurisprudential correctness of the subsequent decisions of this Court where the right to privacy is either asserted or referred was examined by the court in order to remove some differences between them.
Supreme Court observed in this case that the M.P. Sharma case is concluded without any inquiry into the question of whether the right to privacy exists in our Constitution independently or not. It wrongly interpreted the United States Fourth Amendment which in itself is no more than limited protection against unlawful surveillance to be a comprehensive constitutional guarantee of privacy in that jurisdiction. Also, the case of Kharak Singh v. State of Uttar Pradesh does not furnish any basis to reach the decision that no constitutional right to privacy exists.
Supreme Court further opined that the “first and natural home for a right of privacy is in Article 21 at the very heart of ‘personal liberty’ and life itself. Liberty and privacy are integrally connected in a way that privacy is often the basic condition necessary for the exercise of the right of personal liberty. There are innumerable activities that are virtually incapable of being performed at all and in many cases with dignity unless an individual is left alone or is otherwise empowered to ensure his or her privacy. Birth and death are events when privacy is required for ensuring dignity amongst all civilized people. Privacy is thus one of those rights “instrumentally required if one is to enjoy” rights specified and enumerated in the constitutional text.” 15
Finally the Supreme Court set a precedent for all the courts in India that Right to Privacy is an integral part of “Right To Life and Personal liberty” under Article 21 of the constitution of India.
The right to privacy allows an individual to live a life in a way he wants. It gives protection against both state and non-state actors. The Supreme Court of India with the passage of time has been able to express that several fundamental rights including the right to privacy are part of Fundamental Rights under Article 21. Any infringement of this right has to pass the test of both Article 14 and 19. The right to privacy is, however, there is not a straitjacket formula to tackle the issue of the right to privacy and it will be decided on a case to case basis. Today we all are living in a world of technology and with the passage of time, we are coming closer to the online world where we share our personal data and information. We are at such a risk where a person can enter our house without our permission and even without our knowledge. Privacy which earlier pose only physical restriction on individual has changed. Therefore even after recognition of right to privacy in Puttaswamy case, the journey of right to privacy is not end here but started in this digital world where people are more prone to privacy breach than earlier.
1 Justice K.S. Puttaswamy (Retd) vs Union Of India And Ors (24 Aug., 2017), WRIT PETITION (CIVIL) NO 494 OF 2012
2 Griswold v. Connecticut, 381 U.S. 479 (7June, 1965)
3 M. P. Sharma And Others vs Satish Chandra, District … (15 Mar., 1954), 1954 AIR 300
4 Kharak Singh vs The State Of U. P. & Others (18 Dec., 1962), 1963 AIR 1295
5 M. P. Sharma And Others vs Satish Chandra, District … (15 Mar., 1954), 1954 AIR 300
6 Kharak Singh vs The State Of U. P. & Others (18 Dec., 1962), 1963 AIR 1295
7 Wolf v. Colorado, 338 U.S. 25 (26 June, 1949)
8 Kharak Singh vs The State Of U. P. & Others (18 Dec., 1962), 1963 AIR 1295
9 Govind vs State Of Madhya Pradesh & Anr (18 Mar., 1975), 1975 AIR 1378
11 Maneka Gandhi vs Union Of India (25 Jan., 1978), 1978 AIR 597
12 People’S Union Of Civil Liberties … vs Union Of India (Uoi) And Anr. (18 Dec., 1996), AIR 1997 SC 568
13 Govind vs State Of Madhya Pradesh & Anr (18 Mar., 1975), 1975 AIR 1378
14 Justice K.S. Puttaswamy (Retd) vs Union Of India And Ors (24 August, 2017), WRIT PETITION (CIVIL) NO 494 OF 2012