Right To Privacy : A Fundamental Right

- Written by: Anushree Sutaone

A definite legal definition of ‘right to privacy’ is not given, but it can be defined as “The condition or the state of being free from public attention to intrusion into or interference with one’s acts or decisions; which means there is certain information regarding any individual which he or she would not like to disclose with anyone”. The Black’s Law Dictionary has defined Right to Privacy as “right to be left alone; right of a person to be free from unwarranted publicity; right to live freely from any unwarranted interference by public in matter with which public is not necessarily concerned”. Near about every country in the world recognizes a right to privacy expressly in their Constitution. However, the Right to Privacy is not expressly mentioned in the Constitution of India and the Indian Courts did not recognise Right to Privacy as a Fundamental Right. Nevertheless, the recent judgement dated 24th August 2017 given by a nine-judge Bench of the Supreme Court in Justice K.S Puttaswamy v Union of India1 has included the Right to Privacy as a Fundamental Right under Article 21 of the Constitution of India.

History Of Right To Privacy

The earliest idea about Right to Privacy is observed in the works of William Blackstone in his Commentaries on the Laws of England (1765)2 in which he has distinguished between public wrongs and private wrongs. While public wrongs concern the people at large, private wrongs are directed towards a particular individual. John Stuart Mill in his essay ‘On Liberty’ brings about a distinction between ‘self-regarding actions’ and ‘other-regarding actions’ and further states that “The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.”3 An Article written by attorneys Samuel D. Warren and Louis Brandeis in the Harvard Law Review’s issue of December 15, 1890 entitled ‘The Right to Privacy’ defined right to privacy as ‘right to be left alone’.4
Though many contemporary accounts attribute the modern conception of the ‘right to privacy’ to the Warren and Brandeis article, historical material indicates that it was Thomas Cooley who adopted the phrase “the right to be let alone”, in his Treatise on the Law of Torts. Discussing

1 K.S Puttaswamy v Union of India Writ Petition (Civil) No. 494 of 2012.
2 William Blackstone “Commentaries on the Laws of England” (1765).
3 John Stuart Mill, ‘On Liberty’, Batoche books (1859), at Page 13.
4 Warren and Brandeis, “The Right to Privacy”, Harvard Law Review (1890) Vol.4, No. 5, at page 193.

personal immunity, Cooley stated: “the right of one’s person may be said to be a right of complete immunity; the right to be alone”.5 Privacy is a natural and inalienable right of an individual as it cannot be separated from him. The American Declaration of Independence (1776) also embodies the concept of inalienable right as follows: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness”. In 1955, Edwin W Patterson in “A Pragmatist Look at Natural Law and Natural Rights” observed that rights which individuals while making a social compact to create a government, reserve to themselves are natural rights because they originate in a condition of nature and survive the social compact.6

History Of Right To Privacy In India

The history of Right to Privacy in India dates back to decision of 8-judge Bench of the Supreme Court in M.P Sharma v Satish Chandra7 in the year 1954. The Supreme Court in this case, while dealing with the power to search and seize the documents, dismissed the existence of a right to privacy on the basis that the makers of Constitution had not recognized a fundamental right to privacy similar to the 4th Amendment in the U.S which provides that “the right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”.
Again in 1964 in Kharak Singh v State of UP8 the 6-judge Bench had to consider the validity of Regulation 236 of the U.P Police Regulations as it was claimed to be violative of fundamental rights guaranteed under Articles 19 (1) (d) and 21 of the Constitution of India. The Court cast aside the argument of infringement of freedom guaranteed under Article 19 (1) (d) of the Constitution, and the attempt to check up on the movement of an individual was held not to be an infringement of any fundamental right. The minority judgement, however, emphasized the need for recognition of such right as it was an essential ingredient of personal liberty.

5 Thomas Cooley, Treatise on the Law of Torts (1888), 2nd edition, at page 29.
6 Edwin W. Patterson “A Pragmatist Look at Natural Law and Natural Rights”, in Arthur L. Harding ed.,
Natural Law and Natural Rights (1955), at pages 62-63.
7 M.P Sharma v Satish Chandra (1954) SCR 1077.
8 Kharak Singh v State of Uttar Pradesh (1964) 1 SCR 332.

In A.K Gopalan v State of Madras9, Chief Justice Kania construed that the relationship between Article 19 and Article 21 of the Constitution of India is that of mutual exclusion. Gopalan was detained under a preventive detention law. He moved the court saying that his detention was unlawful as it violated his right to personal liberty. The court held that the word used in Article 21 just meant procedural due process and since the preventive detention law under which Gopalan was detained was a valid law, Gopalan’s detention was lawful even though that law may have violated some of his other Fundamental Rights such as his Right to Freedom of Movement under Article 19.
ADM Jabalpur v Shivkant Shukla10 (Habeas Corpus case) was a case in which Supreme Court declared that under emergency provisions no one could seek the assistance of any Court in India to try and save his liberty, life or limb threatened to be taken away by the State. It was held that Article 32 of the Constitution of India i.e. the right to approach court to defend fundamental rights will remain suspended during emergency.
The case of Maneka Gandhi v Union of India11 played a significant role in changing the judicial view on Article 21 of Constitution of India. The decision in Maneka carried the constitutional principle of the over-lapping nature of fundamental rights to its logical conclusion. In this case, it was held by the Court that the letter from the Regional Passport Office to Maneka Gandhi asking her to submit her passport was violative of Fundamental Rights guaranteed under Articles 14 and 21 of the Constitution of India.
Subsequently in Gobind v State of Madhya Pradesh12 and PUCL v Union of India13 the Court acknowledged privacy as a constitutionally protected fundamental right. The former case, like Kharak Singh, involved domiciliary visits to the house of the history-sheeter. However, in this case it was found that the Regulations had a statutory backing. In the latter case, i.e. PUCL v Union of India14 the Supreme Court of India 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 a political candidate was not bound to disclose any information not required under the law. The court wrote that the availability of basic information about the candidates enables voters to

A.K Gopalan v State of Madras AIR 1950 SC 27.
10 ADM Jabalpur v Shivkant Shukla (1976) 2 SCC 52.
11 Maneka Gandhi v Union of India (1978) 1 SCC 248.
12 Gobind v State of Madhya Pradesh (1975) 2 SCC 148.
13 PUCL v Union of India (1997) 1 SCC 301.
14 Ibid.

make an informed decision and also paves the way for public debates on merits and demerits of candidates.
Another case, i.e., R. Rajagopal v State of Tamil Nadu15 raises the concern of freedom of press in relation to the right to privacy of the citizens. A prisoner (Auto Shankar) who was convicted of murder wrote an auto biography which described his relationship with a number of senior prison officers. He gave the autobiography to his wife, with the knowledge of the authorities, who then handed it over to the petitioners’ magazine to publish it. Inspector General of Prisons wrote to the petitioners claiming the autobiography was false, that publication was against prison rules and threatened legal action if they proceeded with publishing. R. Rajagopal, the editor, printer and publisher of Nakkeeran then filed a petition in the High Court against the State of Tamil Nadu, the Inspector General of Prisons and the Superintendent of Prisons (Tamil Nadu), seeking to restrain them from interfering in their continued publication of Shankar's life story. The High Court judge dismissed the writ, but Rajagopal then moved the Supreme Court, seeking relief under Article 32 of the Constitution which seeks "remedies for the enforcements of rights”. The Court held that the State or its officials did not have the authority to stop the publication of material it deemed defamatory of the State or its officials.

The Right To Privacy Judgement

A nine-judge Bench of Supreme Court, on 24th of August 2017 gave judgement in K.S Puttaswamy v Union of India16 also known as the Aadhaar Case, and subsequently included Right to Privacy as a Fundamental Right under Article 21 of the Constitution of India.

Background

This case arose subsequent to constitutional challenge to the ‘Aadhaar Project’ which aims to build a database of demographic and biometric information of every citizen of India. The data is collected by Unique Identification Authority of India (UIDAI) a statutory authority established in January 2009 by the Government of India. Registration for Aadhaar has now been made mandatory for opening bank accounts, filing taxes, securing loans etc. Justice K.S Puttaswamy (Retd.) in 2012 filed a writ petition in Supreme Court challenging the constitutionality of Aadhaar project on the basis that it violates the right to privacy. The Government contended that there exists no such constitutional right to privacy in view of the 15 R. Rajgopal v State of Tamil Nadu 1995 AIR 264, 1994 SCC (6) 632.
16 K.S Puttaswamy; supra note 1.
decisions given in M.P Sharma v Satish Chandra17 and Kharak Singh v State of Uttar Pradesh.18 The case first came before a three judge Bench which ordered it to be referred to a larger bench on 11th August 2015. A five judge Bench on 18th July 2017 ordered the matter to be heard by a nine judge Bench.

Judgement

The nine-judge Constitution Bench gave six separate judgements, unanimously upholding Right to Privacy as a Fundamental Right under Article 21 of Constitution of India which states that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. It is the longest reasoned judgement ever produced by a Court.
The leading judgement is given by Justice D.Y Chandrachud on behalf of a four judge Bench and covers 266 pages. This judgement deals with the nature of Constitutional Rights. It also describes the origin and evolution of privacy rights in India as well as in the world. It considers Comparative Law on Privacy in other countries of the world like England, the USA, South Africa, and Canada and also from the European Court of Human Right and the Inter-American Court of Human Rights. It includes various criticisms of the privacy doctrine by Thomson, Posner, Bork, MacKinnon and feminist critics.
Justice D.Y Chandrachud in this judgement overruled the judgement of his father Chandrachud CJ in ADM Jabalpur v Shivakant Shukla19 which held that Fundamental Rights could be suspended during emergency.
The judgement also deals with ‘Informational Privacy’ in this age of information and technology. The dangers to privacy in an age of information can originate not only from the state but from non-state actors as well. It was held that in today’s world of technology where most of the transaction such as bank transaction, buying and selling, etc. takes place on internet it is necessary to protect the information of an individual which is collected when and individual visits such site.
The other judgements were given by Justice Chelameswar, Justice S.A Bobde, Justice R.F Nariman, Justice Abhay M. Sapre and Justice Sanjay K. Kaul all of which concluded that an inalienable constitutional right to privacy inheres in Part III of the Constitution of India under

Article 21.

17 M.P Sharma; supra note 7.
18 Kharak Singh; supra note 8.
19 ADM Jabalpur; supra note 10.
The entire judgement is followed by an Order of the Court signed by all the nine judges. It is as follows:
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.

Aftermath Of The Judgement

There are certain supposable impacts of the judgement on Right to Privacy given by the ninejudge bench on 24th August 2017. The first and the foremost impact of the judgement will be on the validity of Aadhaar Project as any leakage of information collected for Aadhaar from the State’s custody will now amount to violation of fundamental right to privacy. This judgement has become a shaft of light for the LGBT community. By recognising an individual’s right to privacy with respect to his sexual orientation, it is likely to have an impact on the petition pending before the Supreme Court regarding de-criminalisation of homosexuality in India. It is also likely to affect to some extent the various cases of beef ban imposed by certain States as the judgement has moderately stated that the state cannot interfere with the food choices of an individual. The dangers to privacy in an age of information can originate not only from State but also from non-state actors. The judgement may have an effect on the challenge pending before the Court regarding the contract between WhatsApp and Facebook in 2016 to share user information.

Conclusion

The right to privacy judgement has opened up new gates for an individual to live freely and without unreasonable interference. But as every coin has two sides, the fundamental right of privacy will have its limitations as well. For instance, when infringement of privacy and public interest are in conflict, ordinarily the latter will be chosen to be more important as individual interest cannot override public interest. As regards to homosexuality, the right to privacy has opened new path of hope for the LGBT community considering privacy as a fundamental right cannot be made an exception to a particular community just because they have different traits. The right to privacy also gives freedom to individuals to make decisions about marriage, contraception as well as abortion without any interference. It also gives protection against telephone tapping as telephonic conversation is an important facet of a man’s personal life and any infringement of this right will attract the provisions of right to privacy under article 21 of the Constitution. Thus, to conclude, the right to privacy, though not explicitly mentioned in the Constitution of India, has been included under Article 21 of the Constitution but it will be constitutionally impermissible to declare each and every instance of privacy a fundamental right. If the SC has declared it a fundamental right, then it probably has to determine separately the various aspects of privacy and the extent of violation that could trigger a constitutional remedy.