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Right to Privacy is not Fundamental Right: But these cases set a precedent for India

As early as 1954, the apex court observed in a ruling that right to privacy is not a recognised right listed under Article 19 of the Constitution and held that it would not be possible to import the right by 'strained construction'. But this did not bind the court to restrict the scope of Article 21 (right to life and personal liberty).

Written by Sonakshi Awasthi | New Delhi | Published: July 17, 2017 1:42 pm
Right to privacy, Fundamental rights, Right to privacy in India, Supreme court, court cases, Fundamental rights cases, Aadhaar, IPC, CrPC, Nothing is more deleterious to a man’s physical happiness and health than a calculated interference with his privacy. (Representational photo)

The government’s move to make Aadhar mandatory for all citizens has once again triggered a debate around Right to Privacy. Critics have argued that making Aadhar mandatory will lead to breach in confidentiality of data collected through Aadhar. Right to Privacy does not find any mention in the Constitution. This right, however, has been culled from Article 19 and 21 which deals with right to life and liberty. In the absence of this clarity, a string of judgments starting from 1962 defined privacy and what it entails.

As early as 1954, the apex court observed in a ruling that right to privacy is not a recognised right listed under Article 19 of the Constitution and held that it would not be possible to import the right by ‘strained construction’. But this did not bind the court to restrict the scope of Article 21 (right to life and personal liberty).

Here are a few landmark judgments that laid the foundation of Right to Privacy in India:

1962: Kharak Singh vs. State of UP: Inclusion of ‘privacy’ under ‘personal liberty’

Kharak Singh, the petitioner, was charged under dacoity and was released due to lack of evidence. Ignoring the release of Singh, the Uttar Pradesh police put him under surveillance which involved secret picketing of his house, night visits at home, periodical inquiries by officers and monitoring and verifying movements of Singh. The petitioner filed a writ petition for violation of his fundamental rights (Article 32).

Extending the dimension of ‘personal liberty,’ the apex court for the first time declared right to privacy to fall under the purview of Article 21. The court held that at the end of the day, a person’s house is his ‘castle’ where he lives with his family and it is ‘his rampart against encroachment on his personal liberty.’

Nothing is more deleterious to a man’s physical happiness and health than a calculated interference with his privacy. We would, therefore, define the right of personal liberty in Art. 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.

1975: Govind vs. State of MP: ‘Right to privacy is not absolute’

Despite agreeing that right to privacy is the emanation of Article 19 and 21 of the Constitution, the top court held that right to privacy cannot be made an absolute right. Subject to reasonable restrictions, the right to privacy could be made valid.

Too broad a definition of privacy will raise serious questions about the propriety of judicial reliance on a right that is not explicit in the Constitution. The right to privacy will, therefore, necessarily, have to go through a process of case by case development.

Facts being similar to the Kharak Singh case, the court held that privacy and fundamental rights are present in Regulation 855 and 856 (surveillance) of the Madhya Pradesh Police, Regulations made by the Government under the Police Act, 1961, if read widely.

1995: Rajagopal vs. State of T.N: Conflict between right to information and privacy – ‘Right to be let alone’

Freedom of press was put in question vis-a-vis right to privacy when publishers of Tamil weekly magazine Nakkheeran decided to publish the story of Gauri Shankar alias Auto Shankar.

Auto Shankar was a prisoner in Madras convicted for six murders and sentenced to death by the Madras High Court in 1992. Shankar had become a popular figure at the time and had written an autobiography. Shankar wanted his story published and bagged Nakkheeran who showed their willingness to publish the same. The autobiography was a close nexus between a prisoner and IAS and IPS officers, several of whom were partners in the crimes the serial killer had committed. On gaining knowledge of such an autobiography ready to be published, the IAS and IPS officers mentioned in the book, cancelled the publishing making sure that Shankar backtracked from his writing the autobiography. Hence the publishers were not allowed to publish after receiving a letter from Shankar’s power of attorney forcing the publishers to approach the court.

Upholding the publisher’s stand, the court allowed the magazine to publish the autobiography as a work of fiction and defined privacy as part of Article 21 and as a right to be let alone.

A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing 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.

Further the court stated an exception in this case where a person voluntarily involves himself into a controversy or invites one, that person would not fall under the right to privacy.

2006: Naz Foundation vs. Govt. of NCT Delhi – Interference with personal liberty must follow a procedure

Naz Foundation, a Non-Profit Organization (NGO), filed a public litigation challenging the constitutional validity of Section 377 of Indian Penal Code, 1860 (IPC) which penalizes ‘unnatural offences’ as mentioned in the Act.

The top court cited Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights which define privacy as no arbitrary interference with home, family or honour and reputation. Relying on the above mentioned case laws and more, the apex court laid down three categories under which the term privacy must fall for an individual to avail the said right.

Any law interfering with personal liberty of a person must satisfy a triple test:

(i) it must prescribe a procedure;

(ii) the procedure must withstand a test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation; and

(iii) it must also be liable to be tested with reference to Article 14. As the test propounded by Article 14 pervades Article 21 as well, the law and procedure authorising interference with the personal liberty must also be right and just and fair and not arbitrary, fanciful or oppressive.

The court held that Section 377 of IPC discriminated a particular section of individuals solely based on their sexual orientation and condemned Section 377. But it did not decriminalise the provision stating that the power to amend or repeal the section lies with the Parliament and not the judiciary.

With recent developments in the online world, social media and numerous applications catering the needs of people, the changes come with a threat to individual’s personal information made available to the public.

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  1. M
    Malay Srivastava
    Sep 14, 2017 at 1:32 pm
    This is factually incorrect and is misrepresenting facts. In Kharak Singh, the apex court held that there existed NO RIGHT TO PRIVACY. Only Subba Rao, in a dissenting judgement, said the things that have been mentioned above. But the other five judges were against the right to privacy.
    1. N
      Nihit Kishore
      Sep 8, 2017 at 1:47 pm
      What you have posted about khadak singh judgement was minority view that doesn't hold water at all.
      1. R
        Jul 25, 2017 at 9:07 pm
        Justice Rohinton Nariman's view that Privacy is not Absolute says it all.If it was absolute then we do not need governing bodies.To govern and to provide citizens their fundamental rights the Cons ution has "Fundamental" duties too . Further "privacy" would include the portfolios of government which have evolved with time. Regarding the Aadhaar, the protection should be as of a Passport under the Passport Act. Privacy is not Absolute directs the arguing counsels to classify "privacy" and categorise which are absolute and which cannot be absolute. If made absolute it might lead to misleading the public and misuse of power by governing bodies under the garb of "privacy" When the country needs to fight corruption too it will not be out of place that privacy cannot be absolute ."Power tends to corrupt and absolute power corrupts absolutely " Lord Acton.
        1. Hemen Parekh
          Jul 19, 2017 at 11:33 am
          s: myblogepage. /2017/07/privacy-parish-thought