Journey of Right to Privacy in India


By Bharti Mishra from Surendranath Law College, Calcutta University


Every human being has certain confidential and surreptitious part of their life, which can’t be divulged at public domain. This right to privacy has gained momentum throughout the world and it has been recognized as a fundamental right to privacy. The deliberation on right to privacy commenced after the “Warren and Brandies” debate on right to privacy and this debate will be further elucidated in the research paper. Countries such as USA, UK, India, and international organizations such as UDHR, ICCPR, ECHR, have given valid recognition to right to privacy.

The constitution of India has not guaranteed the right to privacy as an explicit fundamental right to the citizens but nevertheless, the Supreme Court has construed the right to privacy as a part of life and personal liberty under article 21 of the Indian constitution and this right to privacy conundrum has been unravelled by the Indian judiciary in the recent judicial pronouncement in the case of Justice K.S Putthaswamy v. Union of India wherein right to privacy has been recognized as fundamental right [1]. Article 21 of the Indian constitution deals with right to life and personal liberty and justice Khanna has stated that human existence is not mere animal existence, every person deserves to live a dignified life and term privacy is the utmost significant factor regarding enjoyment of life.

Right to privacy has travelled a prolonged journey in order to attain the status of fundamental right in Indian constitution. There are abundance of cases dealing with acceptance and denial of this right henceforth all the aforesaid points will be elaborated further in order to have a categorical understanding about the evolution of “right to privacy” within Indian domain and the contribution of USA privacy laws since Indian judiciary heavily relied upon the American laws for providing unequivocal adjudication of privacy matters.

“Right to be forgotten” is another area that falls under the ambit of right to privacy. The development in the technology is the reason behind initiation of such right in Indian constitution and we all know that internet is accessible by everyone and certain sensitive and vulnerable information might be jeopardizing in nature, therefore it is necessary to protect such right.

Judicial Journey of Right to Privacy in India

Kharak Singh vs. State of UP [AIR1963SC1295]
In this case Kharak Singh was involved in Dacoity but acquitted because of lack of evidence. Police used to check his house at any time and followed his every movement to gather information and evidence. He challenged that this surveillance is against the fundamental rights. Article 19(1)(d) i.e. Right to move freely in the territory of India and Article 21 i.e. Right to life and personal liberty of the Constitution was challenged.

Court rejected that privacy can be challenged under Article 21 and observed that Article 21 examines the procedure established by law in regard to deprivation of life and liberty. Taking the view of RM Malkhani case it was said that the right of an innocent person will be protected like telephone tapping but not of a guilty person where police are taking efforts to safeguard the citizen even if the police is doing it by the unlawful method.[2]

R M Malkani vs. State of Maharashtra[2]
In this case, Court said that the when one person is allowing another person to record his call, then we cannot say he will damage or tamper the information or it is an act of coercion when he attaches a tape recorder to his telephone. Therefore it was held that Section 25 of the Indian Telegraph Act,1885.

Gobind vs. State of Madhya Pradesh[3]
In the case, Regulation 855 and 856 of UP State Police Regulations was in question where history sheet(any a record like the private record, criminal, medical record of a personal record of a person) was opened when the petitioner was in surveillance. The 3 judge bench favoured the judgement of Kharak Singh and validated Police regulation except visiting in the night.
During this case, law in the US had evolved and the Court took the reference of the case Griswold vs. Connecticut where the advice or information related to contraceptive methods was given to the married person and it was held invalid. In the case Jane Roe vs. Henry Wade, the court said that the right to abort a child by married women is a part of the right of personal privacy.

In the present case also court did not find the reference of Right to Privacy in the Constitution but pointed out that certain rights should be protected as fundamental privacy rights. The court said that privacy should be dealt with care and can only be denied when the superior show countervailing interest is important. The law infringing the fundamental rights must satisfy the compelling State interest test. The question can be raised that State interest is of that importance that it can justify the infringement of rights.

As the right to privacy was not explicitly mentioned in the Constitution, the Court tried to give it a broader view. It founded that right of privacy overlaps with liberty. Justice Mathew explained that  any right to privacy must encompass and protect the intimacies of the home , the family, marriage, mother hood , procreation and child rearing. Court further said that in any event, the right to privacy needs to go through case by case development. When we make the assumption that the right to personal liberty, right to move freely, freedom of speech develops the independent right of privacy which can be said as fundamental right still we cannot assume it is an absolute right.

Court further said that fundamental right must be subjected to restrictions on the basis of public interest. Therefore it held that fundamental right which was given under Article 21 was not violated in the present case as it says, no person shall be deprived of his life or personal liberty except by the procedure established by law. So the procedure is given in Regulation 853(c) and 857 is reasonable according to the Court.

Malak Singh vs. State of Punjab and Haryana [4]
In this case, Section 23 of the Punjab Police Rules was in question where Police have to maintain surveillance register of all the convicted person and reasonably believed to be a habitual offender. The Court said that the most important purpose of the Constitution is to prevent the crime. The court believed that the surveillance can be intrusive and it may encroach privacy of a person and can infringe Article 21 and Article 19(1)(d)which cannot be permitted. Court took the reference of European Convention of Human Rights where it was said that respect should be given to one’s private and family life.

Court further said that it is not unlawful to conduct surveillance by police for the purpose of preventing crime and confined to Rule 23.7. Court held that police cannot add the names of any person they wish to in the surveillance register, it should be according to the Rule 23.4 and it should not offend the dignity of the individual. The court will not hesitate to give protection to the person if there is excessive surveillance.

In this case court does not specifically consider privacy as a fundamental right but it indicated the serious encroachment on privacy have an effect upon personal liberty and the freedom of movement under Article 19(1)(d) and Article 21. The court said the kind of encroachment which takes away the dignity of a person would be the hindrance in the exercise of fundamental rights given by the Constitution.

State of Maharashtra vs. Madhukar Narayan Mardikar [5]
In this case, High Court observes that the victim was involved in the sexual activity because of which her character was in question. The court said that she accepted the dark side of her life and even with this virtue is entitled to privacy and nobody can take her privacy as he pleases. She is equally entitled to protect her privacy under the law and her evidence cannot be thrown on these grounds. The court made a strong point on the bodily integrity of women as an incident of her question.

Mr. X vs. Hospital Z [6]
In this case, the Appellant who was a doctor was accompanying a patient for surgery and he was found HIV+ when he was tested for blood donation. He that by disclosing this fact by the Hospital, he was excluded from the society and filed for damages before NCDRC saying that hospital cannot disclose this fact and it resulted in calling off his marriage and social exclusion.
The court said the rule of Confidentiality had an exception where public interest will override this duty.

The Court held that the right to privacy is not absolute and is subject to action lawfully taken to prevent crime or disorder or to protect the health, morals and the rights and freedoms of others. Court further held that public disclosure of even true facts may amount to an invasion of the right to privacy or the right to be let alone when a doctor breaches confidentiality. But this disclosure saved one woman from getting infected therefore it does not violate the right to privacy.

State of Karnataka v Krishnappa [7]
In this case, the eight-year-old child was rapped and the Court held sexual violence is a unfawful interference of the privacy of a person and his/her dignity.

Sudhansu Sekhar Sahoo v State of Orissa [8]

The court observed the same thing as in the case of Krishnappa.

District Registrar and Collector, Hyderabad v Canara Bank [9]

Section 73 of Indian Stamp Act, 1899 was in question in which the collector had the power to inspect registers, books and records, papers, documents and proceedings in the custody of any public officer for the discovery of fraud or omission. It was invalidated by the High Court by taking the reference from the evolution of privacy in US Court. Justice Lahoti considered the Judgement in Kharak Singh as the guidance on right to the privacy issue.

In the judgement, it was supported that right to privacy is guaranteed by Article 19 and 21 from the Constitution.
It also said that the foundation of this is not only coming from the judgements but also from India‘s international commitment like UDHR and ICCPR. Right to privacy is embedded in person; it cannot be lost as a result of confidential documents or information being parted with by the customer to the custody of the bank.

It also said that the power of Collector to access bank records cannot be delegated to a private person. When the information is given to the third person, it is reasonably expected that it will be only used for the purpose it is given. If it is taken for the legitimate aim of the State, then it is a duty to ensure that it will not be accessed to the private person or entity. It is an important case for informational privacy.

Chief Justice Balakrishnan held that according to Section 3, the reproductive choice of a woman should be respected. It is a part of personal liberty given in Article 21. Woman ‘s right to privacy, dignity, bodily integrity should be respected.

Woman have no restriction in making choices related to reproduction, refusing to take part in any sexual activity or in use of birth control methods. But in the present case, it was said State has a compelling interest in protecting the life of a child. so, the termination can be allowed only if the prescribed condition is fulfilled. Provision under MTP Act was considered a reasonable restriction which is placed on reproductive choices. There is a need for consent if the pregnant lady is a minor or mentally ill by her Guardian.

In this case, the court recognizes the constitutional right of a woman related to reproductive choice which is given under Article 21. However, Court degraded such right of a woman related to her privacy, dignity and integrity.

Bhavesh Jayanti Lakhani v State of Maharashtra [10]
In this case, Petitioner violated the interim custody order and returned to India with the child. Therefore, the US Court issued an arrest warrant and INTERPOL issued a red corner notice and it was challenged by the Petitioner. The Court does not accept the plea by the Petitioner that CBI with the INTERPOL breached the right to privacy. Court took the reference of Kharak Singh where it was held that  privacy is an essential ingredient of personal liberty and in the Gobind vs. State of M.P. where it was held reasonable restriction can be placed on Article 19.

Ram Jethmalani v Union of India [11]
In this case, PIL was for investigating the unaccounted money and to follow the money trail by appointing a Special Investigating Team for this. Court held that it will breach the privacy of an individual by checking the bank account details and that too without establishing a prima facie case against that person.

Court held that:
An inquisitorial order, where citizens’ fundamental right to privacy is breached by fellow citizens is destructive of social order. 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 uphold them against the actions of others in the society, even in the context of exercise of fundamental rights by those others.

Court further held that the State can access the bank account details of any citizen in relation to the investigation and to establish any crime but this power of State cannot be used by a private citizen to force any citizen to show the bank accounts to the public.

National Legal Services Authority vs. Union of India [12]
Petition was filed for the rights of transgender which was accepted by India in various International Conventions like UDHR and ICCPR where it was said that there should be no unlawful interference with anyone’s privacy or in his /her family. It was held that there should be harmony among International Obligation and fundamental rights given under Article 14,15,19 and 21 of the Constitution.

Supreme Court Advocates on Record Association v Union of India [13]
In this case question was raised on the disclosure of the name of the candidate for the appointment as a Supreme Court or High Court Judge. There is an issue on which right will supersede, right to privacy or right to know of the citizen. It struck down the 99th Constitutional Amendment on the ground that it violates basic structure. It was held that judicial primacy is compulsory according to the Constitution and it is a part of basic structure which cannot be amended. Independence of Judiciary is considered to be an integral part.

Justice K.S Puttaswamy & Another v. Union of India and others [14]
In this case, Aadhaar Card Scheme was challenged on the ground that collects and compiling the demographic and biometric data of the residents of the country to be used for various purposes is in breach of the fundamental right to privacy embodied in Article 21 of the Constitution of India. As there was no clarity or confusion in earlier judicial precedents related to the constitutionality of right to privacy, the Hon’ble Supreme Court referred the matter to a constitutional bench consisting of 9 (nine) judges.

It was contended by the Petitioners that the right to privacy is a fundamental right and it can be seen with the liberty and dignity of the person and it is also indicated in Articles 14, 19, 20, 21 and 25 of the Constitution read with many International Conventions in which India is a party. On the contrary, the Union of India contended that ‘right to privacy’ is not a fundamental right guaranteed under the Constitution.

It was unanimously held that:

The decision in M P Sharma which holds that the right to privacy is not protected by the Constitution stands over-ruled;

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;

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.

Decisions subsequent to Kharak Singh which has enunciated the position in (iii) above lay down the correct position in law.

It was held that the right to privacy is the fundamental right which is given under Article 21 of the Constitution It will be given the same protection as other fundamental rights under Part III of the Constitution.

[1] ]

[2] [ (1973)1SCC471]

[3] [(1975)2SCC148]

[4] [(1981)1SCC420]

[5] [(1991)1SCC57]

[6] [(1998)8SCC296]

[7] [(2000)4SCC75]

[8] [(2002)10SCC493]

[9] [(2005)1SCC496]

[10] [(2009)9SCC551]

[11] [(2011)8 SCC1]

[12] [(2014)5 SCC 438]

[13] [(2016)5 SCC 1]

[14] [(2014) 6 SCC 433]


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