DSNLU

Right to Privacy
Constitution Law -I

NARENDRA REDDY . K

201253
V Semester

INDEX
1. Introduction
2. What is Right to Privacy?
3. Right to Privacy in India
4. Right to Privacy - Permissible Restriction
5. The Privacy Bill, 2011
6. Right To Privacy And Search And Seizure
7. Tapping of Telephone
8. Prisoners Privacy Rights
9. Conflict Between: Right To Information and Right To Privacy
10. Conflict Between: Right To Information and Right To Privacy
11.Conclusion

Introduction
A very fascinating development in the Indian Constitutional jurisprudence is the
extended dimension given to Article 21 by the Supreme Court in post-Maneka era. The
Supreme Court has asserted that Art. 21 is the heart of the Fundamental Rights. Article 21 has
proved to be multi-dimensional. The extension in the dimensions of Art.21 has been made
possible by giving a extended meaning to the word life and liberty in Article 21. These two
words in Art.21 are not to be read narrowly. These are organic terms which are to be
construed meaningfully.
The Supreme Court has asserted that in order to treat a right as a fundamental right, it
is not necessary that it should be expressly stated in the constitution as a Fundamental Right.
Political, social, and economic changes in the country entail the recognition of new rights.
The law in its eternal youth grows to meet the demands of society.
Right to privacy is one such right which has come to its existence after widening up
the dimensions of Article 21. The constitution in specific doesnt grant any right to privacy as
such. However, such a right has been culled by the Supreme Court from Art. 21 and several
other provisions of the constitution read with the Directive Principles of State Policy. In this
paper we will be discussing over a new dimension of Art. 21 that is the Right to Privacy and
also the conflicts related to it.

What is Right to Privacy?

Before we get into a complete discussion of Right to Privacy first of all we need to
know what does the word Privacy mean. According to Blacks 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.1
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 2. After reading the
1 Black's Law Dictionary 8th ed. (West Group, 2004), Bryan A. Garner
2 Article 21, Indian Constitution

Article 21, it has been interpreted that the term life includes all those aspects of life which
go to make a mans life meaningful, complete and worth living.
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.

Right to Privacy in India

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 mans 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 3 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 personal liberty.
In Govind v. State of Madhya Pradesh4 , 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
3 1964 SCR (1) 332
4 1975 SCR (3) 946

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.5,(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 6 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 controlwhere 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.

5 1978 AIR 597

6 Naz Foundation v. Govt. of NCT of Delhi, 160 Delhi Law Times 277

Right to Privacy - Permissible Restriction

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--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 recognise 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.7

The Privacy Bill, 2011

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
individual.
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 services), etc.
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
7 http://www.legalservicesindia.com/article/article/right-to-privacy-underarticle-21-and-the-related-conflicts-1630-1.html (last visit 15-11-2014)

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.8
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 individual.
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
8 http://cis-india.org/internet-governance/blog/privacy/new-right-toprivacy-bill (last visit 14-11-2014)

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 Millers 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.9

Tapping of Telephone
Telephone tapping constitutes a serious invasion of an individuals right to privacy. Is
it constitutionally permissible in India? If so, within what limits and subject to what
safeguards?
The questions posed above have been fully considered by the Supreme Court in
Peoples Union for Civil Liberties v. Union of India 10. In this case Public Interest Litigation
was filed protesting rampant instances of phone tapping of politicians phones by CBI. The
court ruled that telephone conversation is an important facet of a mans private life. The
right to hold a telephone conversation in the privacy of ones home or office without
interference can certainly be claimed as right to privacy. So, tapping of telephone is a
serious invasion of privacy. This means that telephone tapping would infract Article 21 unless
it is permitted under the procedure established by law. The procedure has to be just, fair and
reasonable.
The Court laid down exhaustive guidelines to regulate the discretion vested in the
State under Section 5 of the Indian Telegraph Act for the purpose of telephone tapping and
interception of other messages so as to safeguard public interest against arbitrary and
unlawful exercise of power by the Government. Section 5(2) of the Act permits the
9 Basu, Durga Das; Shorter Constitution of India, 14th Ed., Volume 1, Lexis
Nexis Butterworths Wadhwa, Nagpur, 2010
10 2003) 4 SCC 399

interception of messages in accordance with the provisions of the Act. Occurrence of any
public emergency or in interest of public safety are the sine qua non for the application of
provisions under section 5(2) of the Act unless a public emergency has occurred or the
interest of public safety demands, the authorities have no jurisdiction to exercise the powers
under the said legislation. The Court said public emergency would mean the prevailing of
sudden condition or state of affairs affecting the people at large calling for immediate action.
The expression public safety means the state or condition of grave danger or risk for the
people at large. When either these two conditions are not in existence, the Court said, the
Central Government or the State Government or the authorised officers cannot resort to
telephone tapping even though there is satisfaction that it is necessary or expedient so to do in
the interest of sovereignty and integrity of the country. In other orders, even if the Central
Government is satisfied that it is necessary or expedient so to do in the interest of the
sovereignty or integrity of the country or the security of the State or friendly relations with
foreign States or public order or for preventing for incitements to the commission of an
offence it cannot intercept the message or resort to telephone tapping unless a public
emergency has occurred or the interest of public safety or the existence of the interest of
public safety requires.
The Court has laid down the following procedural safeguards for the exercise of
power under Section 5(2) of the Indian Telegraph Act An order for telephone tapping can be issued only by the Home Secretary of the
Central Government or the State Governments. In an urgent case, the power may be
delegated to an officer of the Home Department of the Central and the State Governments not
below the rank of Joint Secretary.
The copy of the order shall be sent to the Review Committee within one week of the
passing of order.
The order shall, unless renewed, cease to have effect at the end of two months from
the date of issue. The authority making the order may review before that period if it
considered that it is necessary to continue the order in terms of Section 5(2) of the Act.
The authority issuing the order shall maintain the record of intercepted
communications, the extent the material to be disclosed, number of persons, their identity to
whom the material is disclosed.11

11 Indian Telegraph Act, 1885

The use of intercepted material shall be limited to the minimum that is necessary in
terms of Section 5(2) the Act. 12
The Review Committee shall on its own, within two months, investigate whether
there is or has been a relevant order under section 5(2) of the Act.
If on investigation the Review Committee concludes that there has been a
contravention of the provisions of Section 5(2) of the Act, shall set aside the order. It can also
direct the destruction the copies of the intercepted material.
If on investigation the Review Committee comes to the conclusion that there has been
no contravention of the relevant provision of the Act, it shall record the finding to that effect.
The Court noted that with the growth of highly sophisticated communication
technology the right to hold telephone conversation in the privacy of ones home or office
without interference is increasingly susceptible to abuse. In view of this, the Courts ruling
laying down detailed guidelines for the exercise of power under the relevant Act is timely and
of historic importance.
Divorce Petition: Husband Tapping Conversation Of His Wife With Others Seeking to
Produce In Court, Violates Her Right To Privacy Under Article 21
In Rayala M. Bhuvneswari v. Nagaphomender Rayala the petitioner filed a divorce
petition in the Court against his wife and to substantiate his case sought to produce a hard
disc relating to the conversation of his wife recorded in U.S. with others. She denied some
portions of the conversation. The Court held that the act of tapping by the husband of
conversation of his wife with others without her knowledge was illegal and amounted to
infringement of her right to privacy under article 21 of the Constitution. These talks even if
true cannot be admissible in evidence. The wife cannot be forced to undergo voice test and
then asked the expert to compare portion denied by her with her admitted voice. The Court
observed that the purity of the relation between husband and wife is the basis of marriage.
The husband was recording her conversation on telephone with her friends and parents in
India without her knowledge. This is clear infringement of right to privacy of the wife. If
husband is of such a nature and has no faith in his wife even about her conversations to her
parents, then the institution of marriage itself becomes redundant.

12 Bakshi, P.M., The Constitution of India, 8th Edition, Universal Law

Publishing Co., Delhi, 2008 pg. 10

Prisoners Privacy Rights

The protection of Article 21 is available even to convicts in jail. The convicts are not
by mere reason of their conviction deprived of all their fundamental rights which they
otherwise possess. Following the conviction of a convict is put into a jail he may be deprived
of fundamental freedoms like the right to move freely throughout the territory of India. But a
convict is entitled to the precious right guaranteed under Article 21 and he shall not be
deprived of his life and personal liberty except by a procedure established by law.
The question of the right to be let alone again came on the front in the case of R.
Rajagopal vs. State of T.N 13 also known popularly as the Auto Shankar Case. A prisoner had
written his autobiography in jail describing the conditions there and the nexus between
prisoners and several IAS and IPS officers. He had given the autobiography to his wife so
that she may publish it in a particular magazine. However, the publication was restrained in
various matters and the question arose whether anyone has the right to be let alone and
particularly in jail.
In R. Rajagopal vs. State of T.N.14 ( Auto Shankar Case1994) Right to Privacy held to
be implicit in Article 21. It is the right to be left alone. A citizen has a right to safeguard the
privacy of his own, his family, marriage, procreation, motherhood, child bearing and
education among many other matters. In this case right of a prisoner to privacy recognised.

Conflict Between: Right To Information and Right To Privacy

In India the Constitution does not expressly recognise the right to privacy. But after
the case of Kharak Singh v. State of U.P 15 the Supreme Court for the first time recognised the
right to privacy which is implicit in the Constitution under Article 21. The Court held that the
right to privacy is an integral part of the right to life, but without any clear cut laws, it still
remains in the gray area. The view was based on the conclusion that the infringement of a
fundamental right must be both direct as well as tangible that the freedom guaranteed u/a
19(1)(a)- a right to freedom of speech and expression was not infringed upon by a watch
being kept over the movement of the suspect.
In R. Rajagopal v. State of T.N., the apex Court held that the right to privacy is a
right to let alone. No one can publish anything concerning the above matters without his
13 1994 SCC (6) 632
14 Ibid
15 1964 SCR (1) 332

consent, whether truthful or otherwise whether laudatory or critical. If he does so, he would
be violating the right to privacy of the person concerned and would be liable in the action of
damages.
In Mr. X v. Hospital Z, it was held that where there is a clash of two fundamental
rights, as in the instant case, namely, the appellants right to privacy as a part of right to life
and other persons right to lead a healthy life which is her fundamental right u/a 21, the right
which would advance the public morality or public interest, would alone be enforced through
the process of Court, for the reason that moral consideration cannot be kept at bay and judges
are not expected to sit as mute structures of clay as in Hail, known as Courtroom but have to
be sensitive, in the sense that they must keep their fingers firmly upon the pulse of the
accepted morality of the day16.
Voicing concern over vexatious use of RTI Act, Prime Minister Manmohan Singh said
the citizens to know should definitely be circumscribed if it encroaches on an individuals
privacy. He said there is a fine balance required to be maintained between right to
information and the right to privacy, which stems out of the fundamental right of life and
liberty. The citizens right to know should definitely be circumscribed if disclosure of
information encroaches upon someones personal privacy. But where to draw a line is a
complicated question.
Recently in one of the most controversial case Ratan Tata went to Supreme Court
against the publication of intercepts of his conversation with Neera Radia who handles the
corporate communication for the group. Tata holds that as Radias phones were tapped by
government agencies especially for investigating a possible offence the recorded
conversations should have been used for that purpose alone. Ratan Tata has submitted his
petition before Supreme Court asking to protect his right to privacy. But given that freedom
of information laws have at their core the purpose of disclosure, exemptions are strictly
construed, and it has been said that the public right to know should prevail unless disclosure
would publicise intimate details of a highly personal nature. The Radia tapes so far published
public issues, but not personal life of Tata. These conversations would be available to every
citizen under the RTI Act because the only objection that one could raise would be on the
ground of 8(j) of RTI Act which says-information which relates to personal information, the
disclosure of which has no relationship to any public activity on interest. It also says or
16 http://books.google.co.in/books?id= ( last visit 16-11-2014)

which would cause unwarranted invasion of the privacy of the individual unless the public
authority is satisfied, unless the information officer is satisfied that the larger public interest
justifies the disclosure of such an information.17
In that case a preliminary question that should be asked is whether Tatas
conversations would be revealed through an RTI, or whether his conversations would fall
under the exemption of personal information found in section 8(j). It is interesting to note the
structure of this exemption. By the use of word or the legislation suggests that unwarranted
invasion of individual privacy may trigger the exemption, even if the information has a
relationship to public activity or interest. But the added caveat says that the larger public
interest could justify the release of even purely private information.
By the use of the word or the legislation suggests that unwarranted invasion of
individual privacy may trigger the exemption, even if the information has a relationship to
public activity or interest. But the added caveat says that the larger public interest could
justify the release of even purely private information. In addition, what constitutes personal
information has not been defined in the legislation.
However, according to expert legal opinion, the Supreme Court of India is well within
its rights to allow disclosure of conversation details between Ratan Tata and Nira Radia.

Later Developments In Right To Privacy

Right to privacy, once incorporated as a fundamental right, is wide enough to
encroach into any sphere of activity. The conferment of such a right has become extremely
difficult with the advancement of technology and the social networking sites. But the other
side of the picture is that right to privacy of a person includes the right to seclude personal
information. The extent to which the realm of privacy of each person should remain is
subjective, which might differ from person to person. The recognition of right to privacy can
also be seen in the S.43 of Information Technology Act which makes unauthorised access into
a computer resource invoke liability.
Today, each person is a press, taking in view the emergence of blog spots and social
networking sites. Many a times, the right to privacy may come in conflict with the right to
17 http://www.thehindu.com/news/national/supreme-court-to-examine
( last visit 14-11-2014)

press the right to press is a right derived from Article 19 (1) (a) in particular. The right to
expression of a person may come in conflict with the right to privacy of another person. The
question, where there is a conflict, which should prevail over the other, is well explained by
bringing in the concept of public interest and public morality. The publication of personal
information of an individual without his consent or approval is justified if such information
forms part of public records including Court records. Each case is distinct and each right is
special.

Conclusion
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..
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.
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.

Bibliography
Books:
1 . Bakshi, P.M., The Constitution of India, 8th Edition, Universal Law Publishing Co.,
Delhi, 2008.
2. Basu, Durga Das; Shorter Constitution of India, 14th Ed., Volume 1, Lexis Nexis
Butterworths Wadhwa, Nagpur, 2010.
3. Gauba, OP., An Introduction to Political Theory, 4th Edition, Macmillan India Ltd.,
Delhi,2007.
4. Kumar, Narender, Constitutional Law of India, Allahabad Law Agency, 2008.
5. Myneni, SR., Political Science for Law Students, 2nd Ed., Allahabad Law Agency,
Allahabad, 2006.

Websites
1. http://www.nos.org/
2. http://dictionary.reference.com/
3. http://leagalserviceindia.com/
4.http://www.thehindu.com/news/national/bill-on-right-to-privacy-in-monsoon-sessionmoily/article2082643.ece