21 Right to Privacy in India

Prof. Abhishek Sudhir

Table of Contents

1. Learning Outcomes

2. Introduction

3. Article 21 and the Right to Privacy

4. Components of the Right to Privacy

4.1 Telephone-tapping

4.2 Medical Examination and Evaluation

4.3 Black Money

5. Conclusion

1. Learning Outcomes

The purpose of this chapter is:

• To give the students an overview of the constitutionally recognized components of an individual’s right to a fair trial;
• To help the students understand the manner in which the scope of the right to a fair trial has been expanded by judicial interpretation.

2. Introduction

Much like the United States and United Kingdom, there is no explicit constitutional right of privacy. Thus, the development of the right to privacy fell to the judiciary and the Supreme Court has gladly accepted this responsibility. This module will chart how the right to privacy has been read into Article 21 of the Constitution. The module will then focus on the components of the right to privacy which have been expanded by judicial interpretation to cover cases of telephone-tapping among other things. Attention will also be paid to the inter-relationship between the right to privacy and the freedom of the press in India.

3. Article 21 and the Right to Privacy

The meaning of the word “life” and the expression “personal liberty” in Article 21 were elaborately considered by the Supreme Court in Kharak Singh’s case.

In that case, the Court considered the validity of police-regulations that authorised police personnel to maintain lists of ‘history-sheeters’ in addition to conducting surveillance activities, domiciliary visits and periodic inquiries about such persons. The intention was to monitor persons suspected or charged with offences in the past, with the aim of preventing criminal acts in the future. At the time, there was no statutory basis for these regulations and they had been framed in the exercise of administrative functions.

The majority opinion (delivered by Justice Ayyangar) held that these regulations did not violate ‘personal liberty’, except for those which permitted domiciliary visits. The other restraints such as surveillance activities and periodic inquiries about `history-sheeters’ were justified by observing, at Para. 20 that:

“…the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III.”

The minority of judges in that case read the “right to privacy” as being a part of the right to life under Article 21 of the Constitution. In doing so, they relied on the following quote from one of American judge Felix Frankfurter’s judgments:

“The security of one’s privacy against arbitrary intrusion by the police is basic to a free society. It is therefore implicit in ‘the concept of ordered liberty’.”

In the same case, Justice Murphy considered that such invasion was against “the very essence of a scheme of ordered liberty.”

The minority judges went on to hold that 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.” Justice Subba Rao of the minority held that the right to privacy ‘is an essential ingredient of personal liberty’ and that the right to ‘personal liberty’ is ‘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.’

The minority acknowledged that the right to privacy-by itself- had not been identified under the Constitution. “As a concept it may be too broad and moralistic to define it judicially. Whether the right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case” was the conclusion of the minority.

Kharak Singh’s case was considered was considered by Mathew, J. in his classic judgment in Gobind v. State of Madhya Pradesh, in which the origin of “right to privacy” was traced comprehensively.

In Gobind v. State of Madhya Pradesh the Supreme Court approved of some police-regulations that provided for surveillance activities, but this time the decision pointed out a clear statutory basis for these regulations. However, it was also held that the ‘right to privacy’ was not an absolute right:

“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.”

Thus, Justice Mathew made it clear in Gobind that the right to privacy was by no means absolute, but was a fundamental right nevertheless under Article 21, thereby overturning the majority decision in Kharak Singh’s case.

Following the judicial expansion of the idea of ‘personal liberty’, the status of the ‘right to privacy’ as a component of Article 21 has been recognised and reinforced. In R. Raj Gopal v. State of Tamil Nadu the Court dealt with a fact-situation where a convict intended to publish his autobiography which described the involvement of some politicians and businessmen in illegal activities. The publication of this work was challenged on grounds of invasion of privacy among others.

It was held that the right to privacy could be described as the “right to be let alone and a citizen has the right to safeguard the privacy of his family, marriage, procreation, motherhood, child-bearing and education among others. No one can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical.”

However, it was also held that exceptions may be made if a person voluntarily thrusts himself into a controversy or any of these matters becomes part of public records or relates to an action of a public official concerning the discharge of his or her official duties.

4. Components of the Right to Privacy

4.1 Telephone-tapping

In People’s Union for Civil Liberties v. Union of India, it was held that the unauthorised tapping of telephones by police personnel violated the ‘right to privacy’ as contemplated under Article 21. The Court explained the rationale behind this decision as follows:

“But the right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as “right to privacy”. Conversations on the telephone are often of an intimate and confidential character. Telephone-conversation is a part of modern man’s life. It is considered so important that more and more people are carrying mobile telephone instruments in their pockets. Telephone conversation is an important facet of a man’s private life. Right to privacy would certainly include telephone-conversation in the privacy of one’s home or office. Telephone-tapping would, thus, in fact Article 21 of the Constitution of India unless it is permitted under the procedure established by law.”

However, it was not stated that telephone-tapping by the police was absolutely prohibited, presumably because the same may be necessary in some circumstances to prevent criminal acts and in the course of investigation.

Hence, such intrusive practices are permissible if done under a proper legislative mandate that regulates their use. This intended balance between an individual’s ‘right to privacy’ and ‘compelling public interest’ has frequently occupied judicial attention. Such a compelling public interest can be identified with the need to prevent crimes and expedite investigations or to protect public health or morality.

4.2 Forcible Medical Examination and HIV

In X v. Hospital Z it was held that a person could not invoke his `right to privacy’ to prevent a doctor from disclosing his HIV-positive status to others. It was ruled that in respect of HIV-positive persons, the duty of confidentiality between the doctor and patient could be compromised in order to protect the health of other individuals. With respect to the facts in that case, Justice Saghir Ahmad held as follows:

“…When a patient was found to be HIV (+), its disclosure by the Doctor could not be violative of either the rule of confidentiality or the patient’s right of privacy as the lady with whom the patient was likely to be married was saved in time by such disclosure, or else, she too would have been infected with a dreadful disease if marriage had taken place and been consummated.

However, a three judge bench partly overruled this decision in a review petition and held that if an HIV-positive person contracted marriage with a willing partner, then the same would not constitute the offences defined by Sections 269 and 270 of the Indian Penal Code. [Section 269 of the IPC defines the offence of a ‘Negligent act likely to spread infection of disease dangerous to life’ and Section 270 contemplates a ‘Malignant act likely to spread infection of disease dangerous to life’.]

A similar question was addressed by the Andhra Pradesh High Court in M. Vijaya v. Chairman and Managing Director, Singareni Collieries Co. Ltd.:

“There is an apparent conflict between the right to privacy of a person suspected of HIV not to submit himself forcibly for medical examination and the power and duty of the State to identify HIV-infected persons for the purpose of stopping further transmission of the virus. In the interests of the general public, it is necessary for the State to identify HIV-positive cases and any action taken in that regard cannot be termed as unconstitutional as under Article 47 of the Constitution, the State was under an obligation to take all steps for the improvement of the public health. A law designed to achieve this object, if fair and reasonable, in our opinion, will not be in breach of Article 21 of the Constitution of India.”

In Selvi v. State of Karnataka, the Supreme Court stated that a distinction must be made between the character of restraints placed on the right to privacy. While the ordinary exercise of police powers contemplates restraints of a physical nature such as the extraction of bodily substances and the use of reasonable force for subjecting a person to a medical examination, it is not viable to extend these police powers to the forcible extraction of testimonial responses. In conceptualising the ‘right to privacy’ they sought to highlight the distinction between privacy in a physical sense and the privacy of one’s mental processes.

In Selvi, the Supreme Court held the use of narco analysis, brain-mapping and polygraph tests on accused, suspects and witnesses without their consent as unconstitutional and violation of the ‘right to privacy’. They explained the rationale for their decision in the following manner:

“So far, the judicial understanding of privacy in our country has mostly stressed on the protection of the body and physical spaces from intrusive actions by the State. While the scheme of criminal procedure as well as evidence law mandates interference with physical privacy through statutory provisions that enable arrest, detention, search and seizure among others, the same cannot be the basis for compelling a person to impart personal knowledge about a relevant fact …it is our considered opinion that subjecting a person to the impugned techniques in an involuntary manner violates the prescribed boundaries of privacy. Forcible interference with a person’s mental processes is not provided for under any statute and it most certainly comes into conflict with the ‘right against self-incrimination’.”

4.3 Black Money

In the case of Ram Jethmalani v. Union of India, the Supreme Court held that the revelation of details of bank accounts of individuals, without establishment of prima facie grounds to accuse them of wrong doing, would be a violation of their rights to privacy.

The Supreme Court explained the rationale for their decision as follows:

“Revelation of bank account details of individuals, without establishment of prima facie grounds to accuse them of wrong doing, would be a violation of their rights to privacy. State cannot compel citizens to reveal, or itself reveal details of their bank accounts to the public at large, either to receive benefits from the State or to facilitate investigations, and prosecutions of such individuals, unless the State itself has, through properly conducted investigations, within the four corners of constitutional permissibility.”

The Supreme Court emphatically stated that:

“The major problem, in the matters before us, has been the inaction of the State. This is so, both with regard to the specific instances of Hassan Ali Khan and the Tapurias, and also with respect to the issues regarding parallel economy, generation of black money etc. The failure is not of the Constitutional values or of the powers available to the State; the failure has been of human agency. The response cannot be the promotion of vigilantism, and thereby violate other constitutional values. The response has to necessarily be a more emphatic assertion of those values, both in terms of protection of an individual’s right to privacy and also the protection of individual’s right to petition this Court.”

In conclusion, the Supreme Court went so far as to say that the notion of fundamental rights, such as a right to privacy as part of right to life, is not merely that the State is enjoined from derogating from them. It also includes the responsibility of the State to protect the right to privacy against the actions of others in the society, even in the context of exercise of fundamental rights by those others.

5. Conclusion

India’s Supreme Court has recognised that the right to privacy is an integral part of right to life, a cherished constitutional value and it is important that human beings be allowed domains of freedom that are free of public scrutiny unless they act in an unlawful manner. This module has charted the evolution and development of the right to privacy through case law. In the digital age, the need for the judiciary to develop the contours of this right will become all the more acute.

The time perhaps has also come for Parliament to contemplate making the right to privacy an explicit fundamental right, much like the right to education has been recently. But with the Executive being guilty of invasions of privacy most often, it would appear that any such overt legislative and constitutional recognition of the right to privacy is unlikely.

Reference

• A. G. Noorani. Right to Privacy, Economic and Political Weekly, Vol. 40, No. 9 (Feb. 26 – Mar. 4, 2005), p. 802
• Right to Privacy under Indian Law by K. Deshta (Deep & Deep Publications, Year: 2012)
• Centre for Internet and Society http://cis-india.org/
• Right to Privacy: A Case-By-Case Development (http://www.ebc-india.com/lawyer/articles/96v3a2.htm)