According to Black’s Law Dictionary “Right to be let alone; the
right of a person to be free from any unwarranted publicity; the right to live
without any unwarranted interference by the public in matters with which the
public is not necessarily concerned”.
of the Constitution of
India states that “No person shall be deprived of his life or personal liberty except
according to procedure established by law”. After reading the Article 21, it has been interpreted that
the term ‘life’ includes all those aspects of life which go to make a man’s
life meaningful, complete and worth living.
Like everything mankind has ever achieved, there has been a positive and a
negative side to it. Technology has invaded every part of our lives whether the
invasion was desired or not, we cannot be sure whether what we say has been
heard by a third party as well whether that was desired or not. The proverbial
Hindi saying of even walls having ears has never rung truer. The principle of
the world today can be: whatever you may do, the world will get to know before
In the earlier times in India, the law would give protection only from physical
dangers such as trespass from which the Right to Property emerged to secure his
house and cattle. This was considered to be the Right to Life. As the ever
changing common law grew to accommodate the problems faced by the people, it
was realized that not only was physical security required, but also security of
the spiritual self as well as of his feelings, intellect was required. Now the
Right to Life has expanded in its scope and comprises the right to be let alone
the right to liberty secures the exercise of extensive civil privileges; and
the term “property” has grown to comprise every form of possession —
intangible, as well as tangible.
The strategy adopted by the Supreme Court with a view to expand the ambit of
Art. 21 and to imply certain right there from, has been to interpret Art.21
along with international charters on Human Rights.
The Court has implied the right of privacy from Art.21 by interpreting it in
conformity with Art.12 of the Universal Declaration on Human Rights and Art.17
of the International Covenant on Civil and Political Rights, 1966. Both of
these international documents provide for the right of privacy.
Right to privacy is not enumerated as a Fundamental Right in the Constitution of
India. The scope of this right first came up for consideration in Kharak
Singh’s Case which was concerned with the validity of certain regulations that
permitted surveillance of suspects. In the context of Article 19(1) (d), the right to privacy
was again considered by the Supreme Court in 1975. In a detailed decision,
JEEVAN REDDY J. held that the right to privacy is implicit under Article 21. This right is the right to be
let alone. In the context of surveillance, it has been held that surveillance,
if intrusive and seriously encroaches on the privacy of citizen, can infringe
the freedom of movement, guaranteed by Articles 19(1)(d) and 21. Surveillance must be
to prevent crime and on the basis of material provided in the history sheet. In
the context of an anti-terrorism enactment, it was held that the right to
privacy was subservient to the security of the State and withholding
information relevant for the detention of crime can’t be nullified on the grounds
of right to privacy. The right to privacy in terms of Article 21 has been discussed in various
Right To Privacy In
As already discussed Article 21 of the Constitution of
India states that “No person shall be deprived of his life or personal liberty except
according to procedure established by law”. The right to life
enshrined in Article 21 has been liberally interpreted
so as to mean something more than mere survival and mere existence or animal
existence. It therefore includes all those aspects of life which makes a man’s
life more meaningful, complete and worth living and right to privacy is one
such right. The first time this topic was ever raised was in the case of Kharak
Singh v. State of UP where the Supreme Court held that Regulation 236 of UP
Police regulation was unconstitutional as it clashed with Article 21 of the Constitution. It
was held by the Court that the right to privacy is a part of right to
protection of life and personal liberty. Here, the Court had equated privacy to
In Govind v.
State of Madhya Pradesh , Mathew, J. accepted the right to
privacy as an emanation from Art. 19(a), (d) and 21, but right to privacy is
not absolute right. “Assuming that the fundamental rights explicitly guaranteed
to a citizen have penumbral zones and that the right to privacy is itself a
fundamental right, the fundamental right must be subject to restriction on the
basis of compelling public interest”. Surveillance by domiciliary visits need
not always be an unreasonable encroachment on the privacy of a person owing to
the character and antecedents of the person subjected to surveillance as also
the objects and the limitation under which the surveillance is made. The right
to privacy deals with ‘persons not places’.
In Smt. Maneka
Gandhi v. Union of India & Anr.,(1978) in this case SC 7
Judge Bench said ‘personal liberty’ in article 21 covers a variety of rights
& some have status of fundamental rights and given additional protection
u/a 19. Triple Test for any law interfering with personal liberty: (1) It must
prescribe a procedure; (2) the procedure must withstand the test of one or more
of the fundamental rights conferred u/a 19 which may be applicable in a given
situation and (3) It must withstand test of Article 14. The law and procedure
authorising interference with personal liberty and right of privacy must also
be right just and fair and not arbitrary, fanciful or oppressive.
In Naz Foundation
Case (2009) Delhi HC gave the landmark decision on
consensual homosexuality. In this case S. 377 IPC and Articles 14, 19 & 21 were examined. Right
to privacy held to protect a “private space in which man may become and remain
himself”. It was said individuals need a place of sanctuary where they can be
free from societal control- where individuals can drop the mask, desist for a
while from projecting on the world the image they want to be accepted as
themselves, an image that may reflect the values of their peers rather than the
realities of their nature.
It is now a settled position that right to life and liberty under article 21
includes right to privacy. Right to privacy is ‘a right to be let alone’. A
citizen has a right to safeguard the privacy of his own, his family, marriage,
procreation, motherhood, child-bearing and education among other matters. Any
person publishing anything concerning the above matters except with the consent
of the person would be liable in action for damages. Position however, be
different, if a person voluntarily thrusts himself into controversy or
voluntarily invites or raises a controversy.
Intrusion into privacy may be by- (1) Legislative Provision (2)
Administrative/Executive order (3) Judicial Orders. Legislative intrusion must
be tested on the touchstone of reasonableness as guaranteed by the Constitution and
for that purpose the Court can go into proportionality of the intrusion
vis-à-vis the purpose sought to be achieved. (2) So far as administrative or
executive action is concerned it has to be reasonable having regard to the
facts and circumstances of the case. (3) As to judicial warrants, the Court
must have sufficient reason to believe that the search or seizure is warranted
and it must keep in mind the extent of search or seizure necessary for
protection of the particular State interest. In addition, as stated earlier,
common law did recognize rare exceptions for conduct of warrantless searches
could be conducted but these had to be in good faith, intended to preserve
evidence or intended to prevent sudden anger to person or property.
The Privacy Bill,
The bill says, “every individual shall have a right to his privacy —
confidentiality of communication made to, or, by him — including his personal
correspondence, telephone conversations, telegraph messages, postal, electronic
mail and other modes of communication; confidentiality of his private or his
family life; protection of his honour and good name; protection from search,
detention or exposure of lawful communication between and among individuals;
privacy from surveillance; confidentiality of his banking and financial
transactions, medical and legal information and protection of data relating to
The bill gives protection from a citizen’s identity theft, including criminal
identity theft (posing as another person when apprehended for a crime),
financial identify theft (using another’s identity to obtain credit, goods and
The bill prohibits interception of communications except in certain cases with
approval of Secretary-level officer. It mandates destruction of interception of
the material within two months of discontinuance of interception.
The bill provides for constitution of a Central Communication Interception Review
Committee to examine and review the interception orders passed and is empowered
to render a finding that such interception contravened Section 5 of the Indian
Telegraphs Act and that the intercepted material should be destroyed forthwith.
It also prohibits surveillance either by following a person or closed circuit
television or other electronic or by any other mode, except in certain cases as
per the specified procedure.
As per the bill, no person who has a place of business in India but has data
using equipment located in India, shall collect or processor use or disclose
any data relating to individual to any person without consent of such
The bill mandates the establishment of a Data Protection Authority of India,
whose function is to monitor development in data processing and computer
technology; to examine law and to evaluate its effect on data protection and to
give recommendations and to receive representations from members of the public
on any matter generally affecting data protection.
The Authority can investigate any data security breach and issue orders to
safeguard the security interests of affected individuals in the personal data
that has or is likely to have been compromised by such breach.
The bill makes contravention of the provisions on interception an offence
punishable with imprisonment for a term that may extend up to five years or
with fine, which may extend to Rs. 1 lakh or with both for each such
interception. Similarly, disclosure of such information is a punishable offence
with imprisonment up to three years and a fine of up to Rs. 50,000, or both.
Further, it says any persons who obtain any record of information concerning an
individual from any officer of the government or agency under false pretext
shall be punishable with a fine of up to Rs. 5 Lacs.
Right To Privacy And
Search And Seizure
The right of privacy on one hand and power of the State of search and seizure
on the other hand has been the subject matter of judgments not only in India
but also in other countries as well. The Supreme Court referred to American
case laws under the Fourth Amendment to the US Constitution.
The Court also referred to Universal Declaration of Human Rights, European
Convention of Human Rights, other treaties and constitutional provisions and
held that the State cannot have unbridled right of search and seizure. In
particular, it pointed out that all public records could always be inspected
but it will not be open to Collector under the impugned amended Section 73 of
the Indian Stamp Act, 1899 to direct the production of records held with banks.
These records are copies of private documents. The right to privacy is to
protect the documents which are with the banks. Unless there is reasonable
cause or material to believe that such documents may lead to a discovery of
fraud such documents cannot be inspected. The Court struck down S. 73 giving
uncontrolled power to Collector to authorize “any person” to take notes or
extracts from such documents. Even the rules framed under the Act did not
provide sufficient guidelines or safeguards as to how this power could be
exercised. The Supreme Court referred to US judgments on this subject. It
preferred to follow the minority view in Miller’s case and took the view that
majority decision was incorrect. It also referred to various articles and
comments which have taken the view that majority judgement was wrong the Court
held that documents or copies thereof given to the bank will continue to remain
confidential. The fact that they are given to bank voluntarily will not mean
that they cease to be private records as mentioned above.
Right to privacy is an essential component of right to life and personal
liberty under Article 21. Right of privacy may, apart
from contract, also arise out of a particular specific relationship, which may
be commercial, matrimonial or even political. Right to privacy is not an
absolute right; it is subject to reasonable restrictions for prevention of
crime, disorder or protection of health or morals or protection of rights and
freedom of others. Where there is a conflict between two derived rights, the
right which advances public morality and public interest prevails.
Louis Brandeis J in a celebrated judgment has said that right to privacy is
‘the right most valued by civilized men.” Lord Hoffmann has observed in
relation to the complaints against media that there is no logical ground for
saying that a person should have less protection against a private individual
than he would have against the state for the publication of personal information
for which there is no justificatio.
Judges of the American Supreme Court have talked about the right to privacy as
an aspect of the pursuit of happiness. The pursuit of happiness requires
certain liberties that we are guaranteed by the state so that we may act in a
fashion that we may deem fit, as long as it does not encroach upon the rights
of others. Liberty is not a limited or quantifiable right. It is visible on the
entire gamut of the legal spectrum.
If one looks at the earlier judgments of the apex court in its formative years,
one can observe the desirability of the court to treat the Fundamental Rights
as water-tight compartments. This was felt the most in the case of A.K Gopalan
v. State of Madras and the relaxation of this stringent stand could be felt in
the decision of Maneka Gandhi v. Union of India. The right to life was
considered not to be the embodiment of a mere animal existence, but the
guarantee of full and meaningful life.
Being part of a society often overrides the fact that we are individuals first.
Each individual needs his/her private space for whichever activity (assuming
here that it shall be legal). The state accordingly gives each individual that
right to enjoy those private moments with those whom they want to without the
prying eyes of the rest of the world. Clinton Rossiter has said that privacy is
a special kind of independence which can be understood as an attempt to secure
autonomy in at least a few personal and spiritual concerns. This autonomy is
the most special thing that the person can enjoy. He is truly a free man there.
This is not a right against the state, but against the world. The individual
does not want to share his thoughts with the world and this right will help
protect his interests.
In this day and age, this right is becoming more essential as every day passes.
With all our lives being splattered over the media be it through social
networking sites or the spy cameras, we need protection so that we can function
in a way we want to and not think of others before our actions. After all, the
only ones we owe an explanation to is ourselves, and not to the entire world.