Privacy & Media Law

In her research, Sonal Makhija, a Bangalore-based lawyer, tries to delineate

the emerging privacy concerns in India and the existing media norms and
guidelines on the right to privacy. The research examines the existing media
norms (governed by Press Council of India, the Cable Television Networks
(Regulation) Act, 1995 and the Code of Ethics drafted by the News
Broadcasting Standard Authority), the constitutional protection guaranteed to
an individuals right to privacy upheld by the courts, and the reasons the State
employs to justify the invasion of privacy. The paper further records, both
domestic and international, inclusions and exceptions with respect to the
infringement of privacy.

Introduction
Last years satirical release, Peepli [Live], accurately captured what takes place in
media news rooms. The film revolves around a debt-ridden farmer whose
announcement to commit suicide ensue a media circus. Ironically, in the case of the
Radia tapes, the same journalists found themselves in the centre of the medias frenzyhungry, often intrusive and unverified style of reporting.[1] Exposs, such as, the Radia
tapes and Wikileaks have thrown open the conflict between the right to information, or
what has come to be called informational activism, and the right to privacy. Right to
information and the right to communicate the information via media is guaranteed under
Article 19(1) (a) of the Constitution of India. In State of Uttar Pradesh v Raj Narain,[2]
the Supreme Court of India held that Article 19(1) (a), in addition, to guaranteeing
freedom of speech and expression, guarantees the right to receive information on
matters concerning public interest. However, more recently concerns over balancing the
right to information with the right to privacy have been raised, especially, by
controversies like the Radia-tapes.
For instance, last year Ratan Tata filed a writ petition before the Supreme Court of India
alleging that the unauthorised publication of his private conversations with Nira Radia
was in violation of his right to privacy. The writ, filed by the industrialist, did not
challenge the action of the Directorate-General of Income Tax to record the private
conversations for the purpose of investigations. Instead, it was challenging the
publication of the private conversations that took place between the industrialist and
Nira Radia by the media. Whether the publication of those private conversations was in
the interest of the public has been widely debated. What the Tata episode brought into
focus was the need for a law protecting the right to privacy in India.

India, at present, does not have an independent statute protecting privacy; the right to
privacy is a deemed right under the Constitution. The right to privacy has to be
understood in the context of two fundamental rights: the right to freedom under Article
19 and the right to life under Article 21 of the Constitution.
The higher judiciary of the country has recognised the right to privacy as a right implicit
in the right to life and liberty guaranteed to the citizens of this country by Article 21. The
Indian law has made some exceptions to the rule of privacy in the interest of the public,
especially, subsequent to the enactment of the Right to Information Act, 2005 (RTI). The
RTI Act, makes an exception under section 8 (1) (j), which exempts disclosure of any
personal information which is not connected to any public activity or of public interest or
which would cause an unwarranted invasion of privacy of an individual. What
constitutes an unwarranted invasion of privacy is not defined. However, courts have
taken a positive stand on what constitutes privacy in different circumstances.
The purpose of this paper is to delineate the emerging privacy concerns in India and the
existing media norms and guidelines on the right to privacy. At present, the media is
governed by disparate norms outlined by self-governing media bodies, like the Press
Council of India, the Cable Television Networks (Regulation) Act, 1995 and the Code of
Ethics drafted by the News Broadcasting Standard Authority (NBSA). The paper
examines the existing media norms, constitutional protection guaranteed to an
individuals right to privacy and upheld by courts, and the reasons the State employs to
justify the invasion of privacy. The paper records, both domestic and international,
inclusions and exceptions with respect to the infringement of privacy.
The paper traces the implementation of media guidelines and the meanings accorded to
commonly used exceptions in reporting by the media, like, public interest and public
person. This paper is not an exhaustive attempt to capture all privacy and media
related debates. It does, however, capture debates within the media when incursion on
the right to privacy is considered justifiable. The questions that the paper seeks to
respond to are: When is the invasion on the right to privacy defensible? How the media
balances the right to privacy with the right to information? How is public interest
construed in day-to-day reporting? The questions raised are seen in the light of case
studies on the invasion of privacy in the media, the interviews conducted with print
journalists, the definition of the right to privacy under the Constitution of India and
medias code of ethics.

Constitutional Framework of Privacy

The right to privacy is recognised as a fundamental right under the Constitution of India.
It is guaranteed under the right to freedom (Article 19) and the right to life (Article 21) of
the Constitution. Article 19(1) (a) guarantees all citizens the right to freedom of speech
and expression. It is the right to freedom of speech and expression that gives the media
the right to publish any information. Reasonable restrictions on the exercise of the right
can be imposed by the State in the interests of sovereignty and integrity of the State,

the security of the State, friendly relations with foreign States, public order, decency or
morality, or in relation to contempt of court, defamation or incitement to an offence.
Article 21 of the Constitution provides, "No person shall be deprived of his life or
personal liberty except according to procedure established by law." Courts have
interpreted the right to privacy as implicit in the right to life. In R.Rajagopal v. State of
T.N.[3]; and PUCL v. UOI[4], the courts observed that the right to privacy is an essential
ingredient of the right to life.
For instance, in R. Rajagopal v State of Tamil Nadu, Auto Shankar who was
sentenced to death for committing six murders in his autobiography divulged his
relations with a few police officials. The Supreme Court in dealing with the question on
the right to privacy, observed, that the right to privacy is implicit in the right to life and
liberty guaranteed to the citizens of the country by Article 21. It is a 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 other matters. The
publication of any of the aforesaid personal information without the consent of the
person, whether accurate or inaccurate and whether laudatory or critical would be in
violation of the right to privacy of the person and liable for damages. The exception
being, when a person voluntarily invites controversy or such publication is based on
public records, then there is no violation of privacy.
In PUCL v. UOI,[5]which is popularly known as the wire-tapping case, the question
before the court was whether wire-tapping was an infringement of a citizens right to
privacy. The court held that an infringement on the right to privacy would depend on the
facts and circumstances of a case. It observed that, "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, infract Article 21 of the Constitution of India unless it is permitted
under the procedure established by law." It further observed that the right to privacy
also derives from Article 19 for "when a person is talking on telephone, he is
exercising his right to freedom of speech and expression."
In Kharak Singh v. State of U.P,[6] where police surveillance was being challenged on
account of violation of the right to privacy, the Supreme Court held that domiciliary night
visits were violative of Article 21 of the Constitution and the personal liberty of an
individual.
The court, therefore, has interpreted the right to privacy not as an absolute right, but as
a limited right to be considered on a case to case basis. It is the exceptions to the right
to privacy, like public interest, that are of particular interest to this paper.

International Conventions

Internationally the right to privacy has been protected in a number of conventions. For
instance, the Universal Declaration of Human Rights, 1948 (UDHR) under Article 12
provides that:
"No one shall be subjected to arbitrary interference with his privacy, family, home
or correspondence, or to attacks upon his honour and reputation. Everyone has
the right to the protection of the law against such interference or attacks."
The UDHR protects any arbitrary interference from the State to a persons right to
privacy. Similarly, International Covenant on Civil and Political Rights, 1976 (ICCPR)
under Article 17 imposes the State to ensure that individuals are protected by law
against arbitrary or unlawful interference with his privacy, family, home or
correspondence, nor to unlawful attacks on his honour and reputation. [7]
Thus, ensuring that States enact laws to protect individuals right to privacy. India has
ratified the above conventions. The ratification of the Conventions mandates the State
to take steps to enact laws to protect its citizens. Although, human right activists have
periodically demanded that the State take adequate measures to protect human rights
of the vulnerable in society, the right to privacy has received little attention.
Similarly, Article 16 of the Convention on the Rights of the Child (CRC) provides
protection to a minor from any unlawful interference to his/her right to privacy and
imposes a positive obligation on States who have ratified the convention to enact a law
protecting the same. India does have safeguards in place to protect identity of minors,
especially, juveniles and victims of abuse. However, there are exceptions when the law
on privacy does not apply even in case of a minor.
The right to privacy, therefore, is not an absolute right and does not apply uniformly to
all situations and all class of persons. For instance, privacy with respect to a certain
class of persons, like a person in public authority, affords different protection as
opposed to private individuals.

Public Person
In case of a representative of the public, such as a public person, the right to privacy
afforded to them is not of the same degree as that to a private person. The Press
Council of India (PCI) has laid down Norms of Journalistic Conduct, which address the
issue of privacy. The PCI Norms of Journalistic Conduct, recognises privacy as an
inviolable human right, but adds a caveat; that the degree of privacy depends on
circumstances and the person concerned.
In the landmark judges asset case, CPIO, Supreme Court of India vs Subhash Chandra
Agarwal,[8] the court recognised the tension between the right to information and the
right to privacy, especially, with respect to public persons. The case arose from an
application filed by a citizen who was seeking information under the RTI Act on whether
judges of high courts and Supreme Court were filing asset declarations in accordance

with full resolution of the Supreme Court. The court held that information concerning
private individuals held by public authority falls within the ambit of the RTI Act. It
remarked that whereas public persons are entitled to privacy like private persons, the
privacy afforded to private individuals is greater than that afforded to those in public
authority, especially in certain circumstances.
The court commented:
"A private citizen's privacy right is undoubtedly of the same nature and character as that
of a public servant. Therefore, it would be wrong to assume that the substantive rights
of the two differ. Yet, inherent in the situation of the latter is the premise that he acts for
the public good, in the discharge of his duties, and is accountable for them. The
character of protection, therefore, afforded to the two classes public servants and
private individuals, is to be viewed from this perspective. The nature of restriction on the
right to privacy is therefore, of a different order; in the case of private individuals, the
degree of protection afforded is greater; in the case of public servants, the degree of
protection can be lower, depending on what is at stake."
In testing whether certain information falls within the purview of the RTI Act, the court
said one should consider the following three tests:

whether the disclosure of the personal information is with the aim of providing
knowledge of the proper performance of the duties and tasks assigned to the public
servant in any specific case;

whether the information is deemed to comprise the individual's private details,

unrelated to his position in the organization, and,

whether the disclosure will furnish any information required to establish

accountability or transparency in the use of public resources.

Would this rule hold true for information on relatives/ friends of public persons? The rule
is that, unless, private information on relatives/friends of public persons impacts public
interest and accountability, the information should not be revealed.
In 2010, the media reported that Sunanda Pushkar, a close friend of the Minister of
State for External Affairs, Shashi Tharoor, holds a significant holding in the IPL Kochi
team. The media exposure led to the exit of Shashi Tharoor from the government. While
the medias questioning of Pushkars holdings was legitimate, the medias reporting on
her past relationships and how she dressed had no bearing on public interest or
accountability.[9] The media accused Pushkar of playing proxy for Tharoor in the Rs. 70
crore sweat equity deal. Much of the media attention focussed on her personal life, as
opposed to, how she attained such a large stake in the IPL Kochi team. It minutely
analysed her successes and failures, questioned her ability and accused her of having
unbridled ambition and greed for money and power.[10]

If one was to consider the rules of privacy set by the court in the judges assets case
much of the personal information published by the media on Tharoor and Pushkar,
failed to shed light on the IPL holdings or the establishment of the nexus between the
IPL holdings and the government involvement.
The tests delineated by the court in considering what personal information regarding a
public authority may be shared under the RTI Act, can be adopted by the media when
reporting on public officials. If personal information divulged by the media does not shed
light on the performance of a public official, which would be of public interest, then the
information revealed violates the standards of privacy. Personal details which have no
bearing on public resources or interests should not be published.
The media coverage of the Bombay terror attacks displayed the same lack of restraint,
where the minutest details of a persons last communication with his/her family were
repeatedly printed in the media. None of the information presented by the media
revealed anything new about the terror attack or emphasised the gravity of the attack.
A senior journalist, who talked off the record and reported on the Mumbai terror attacks,
agreed that the media overstepped their limits in the Mumbai terror attacks. As per her,
violation of privacy takes place at two stages: the first time, when you overstep your
boundaries and ask a question you should not have, and the second, when you publish
that information. Reflecting on her ten years of reporting experience, she said, Often
when you are covering a tragedy, there is little time to reflect on your reporting. Besides,
if you, on account of violating someones privacy, choose not to report a story, some
competing paper would surely carry that story. You would have to defend your decision
to not report the story to your boss. The competitiveness of reporting and getting a
story before your competitor, she agreed makes even the most seasoned journalists
ruthless sometimes. Besides, although PCI norms exist, not many read the PCI norms
or recall the journalistic ethics when they are reporting on the field.[11]
The PCI Norms reiterate that the media should not intrude "the privacy of an individual,
unless outweighed by genuine overriding public interest, not being a prurient or morbid
curiosity."[12] The well accepted rule, however, is that once a matter or information
comes in the public domain, it no longer falls within the sphere of the private. The media
has failed to make the distinction between what is warranted invasion of privacy and
what constitutes as an unwarranted invasion of privacy. For instance, identity of a rape
or kidnap victim that would further cause discrimination is often revealed by the media.

Safeguarding Identity of Children

The Juvenile Justice (Care and Protection of Children) Act lays down that the media
should not disclose the names, addresses or schools of juveniles in conflict with the law
or that of a child in need of care and protection, which would lead to their identification.
The exception, to identification of a juvenile or child in need of care and protection, is

when it is in the interest of the child. The media is prohibited from disclosing the identity
of the child in such situations.
Similarly, the Convention on the Rights of the Child (CRC) stipulates that:
Article 16
1.

No child shall be subjected to arbitrary or unlawful interference with his or her

privacy, family, or correspondence, nor to unlawful attacks on his or her honour and
reputation.

2.

The child has the right to the protection of the law against such interference or
attacks.

Article 40 of the Convention, states that the privacy of a child accused of infringing
penal law should be protected at all stages of the proceedings.
Almost all media, print and broadcast, fail to observe these guidelines. Prashant
Kulkarni[13] (name changed), who was a photographer with Reuters a few years ago,
said that in Reuters photographs taken by photojournalists could not be altered or
edited, to ensure authenticity.
As far as taking photographs of certain vulnerable persons is concerned, he admitted to
photographing street children who are drug addicts on the streets of Mumbai. The
photographs were published by Reuters. However, when he was on an assignment for
an NGO working with children, the NGO cautioned him about photographing children
who are drug addicts, to protect their identity. Similarly, identity of HIV and AIDS
patients, including children, should be protected and not revealed. Children affected
with HIV and AIDS should not be identified by name or photograph, even if consent has
been granted by the minors parents/guardian.
As a rule, Kulkarni said, he does not seek consent of individuals when he is taking their
photographs, if they are in a public place. If they do not object, the assumption is that
they are comfortable with being photographed. The PCI norms do not expressly provide
that consent of a person should be sought. But, journalists are expected to exercise
restraint in certain situations. Likewise, identifying juveniles in conflict with law is
restricted. This includes taking photographs of juveniles that would lead to their
identification.
Kulkarni, who extensively covered the Bombay train blasts in 2006, explains, "At the
time of the Bombay train explosions, I avoided taking pictures that were gory or where
dead people could be identified. However, I did take photographs of those injured in the
blast and were getting treated in government hospitals. I did not expressly seek their
consent. They were aware of being photographed. That is the rule I have applied, even
when I was on an assignment in West Africa. I have never been on an assignment in
Europe, so am not sure whether I would have applied the same rule of thumb.

Nonetheless, now as a seasoned photographer, I would refrain from taking pictures of

children who are drug addicts."

Safeguarding Identity of Rape Victims

Section 228A of the Indian Penal Code makes disclosure of the identity of a rape victim
punishable. In the recent Aarushi Talwar murder case and the rape of an international
student studying at the Tata Institute of Social Sciences (TISS) the media frenzy
compromised the privacy of the TISS victim and besmirched the character of the dead
person.[14] In the TISS case, the media did not reveal the name of the girl, but revealed
the name of the university and the course she was pursuing, which is in violation of the
PCI norms. In addition to revealing names of individuals, the PCI norms expressly
states that visual representation in moments of personal grief should be avoided. In the
Aarushi murder case, the media repeatedly violated this norm.
The media in both cases spent enough newsprint speculating about the crimes. Abhinav
Pandey[15] (name changed), a senior journalist reporting on crime, agrees that the
media crossed its boundaries in the TISS case by reporting sordid details of how the
rape took place. "Names of victims of sexual crime cannot be reported. In fact, in many
instances the place of stay and any college affiliation should also be avoided, as they
could be easily identified. Explicit details of the offence drawn from the statement given
by the victim to the police are irrelevant to the investigation or to the public at large.
Similarly, names of minors and pictures, including those of juveniles, have to be
safeguarded."
"Crime reporters receive most of their stories from the police. Therefore, one has to be
careful before publishing the story. At times in the rigour of competitive journalism, if you
decide to publish an unverified story, as a good journalist you should present a counterpoint. As a seasoned journalist it is easy to sense when a story is being planted by the
police. If you still want to carry the story, one has to be careful not to taint the character
of a person," he adds.
"For instance, in my reporting if I find that the information will not add to the
investigation, I will not include it in my copy. Last year, we had anonymous letters being
circulated among crime reporters which alleged corruption among senior IPS officers.
Instead of publishing the information contained in those letters with the names of the
IPS officers, we published a story on corruption and cronyism on IPS officers. In the
Faheem Ansari matter, who was an accused in the 26/11 trial, I had received his email
account password. Accessing his account also amounts to violation of privacy. But, we
only published the communication between him and some handlers in Pakistan, which
we knew would have an impact on the investigation. Our job requires us to share
information in the public domain, sometimes we would violate privacy. Nonetheless, one
has to be cautious."

Trial by Media & Media Victimisation

The PCI norms lay down the guidelines for reporting cases and avoiding trial by media.
The PCI warns journalists not to give excessive publicity to victims, witnesses, suspects
and accused as that amounts to invasion of privacy. Similarly, the identification of
witnesses may endanger the lives of witnesses and force them to turn hostile. Zaheera
Sheikh, who was a key witness in the Gujarat Best Bakery case, was a victim of
excessive media coverage and sympathy. Her turning hostile invited equal amount of
media speculation and wrath. Her excessive media exposure possibly endangered her
life. Instead, of focussing on the lack of a witness protection program in the country, the
media focussed on the twists and turns of the case and the 19 year olds conflicting
statements. The right of the suspect or the accused to privacy is recognised by the PCI
to guard against the trial by media.
Swati Deshpande,[16] a Senior Assistant Editor (Law) at the Times of India, Mumbai,
observes that, As a good journalist one will always have more information than
required, but whether you publish that information or exercise restraint is up to you. In a
span of 11 years of court reporting, as per her, there have been instances when she has
exercised the option of not reporting certain information that could be defamatory and
cannot be attributed. If an allegation is made in a court room, but is not supported by
evidence or facts, then it is advisable that it be dropped from the report.
"In the Bar Dancers case which was before the Bombay High Court, the petition made
allegations of all kinds against certain ministers. I did not report that, although I could
have justified it by saying it is part of the petition, and I was just doing my job. The
allegation was neither backed by facts nor was it of public interest. As a rule one should
report on undisputed facts. Then again, with court reporting one is treading on safer
grounds, as opposed to other beats."
"In cases of rape when facts are part of the judgement, you report facts that are relevant
to the judgement or give you an insight on why the court took a certain view and add
value to the copy. One should avoid a situation where facts revealed are offensive or
reveal the identity of the victim. The past history of both the victim and the accused
should not be reported."
She admitted, that "Media reporting often gives the impression that the accused has
committed the crime or the media through its independent investigation wing has found
a particular fact. When in fact, it has relied entirely on the information given by the police
and failed to question or verify the facts by an independent source. The result is that
most crime reporting is one-sided, because the information received from the police is
rarely questioned."
As per her, to a certain degree the publication of TataRadia conversations did violate
Tatas privacy. "Media needs to question itself prior to printing on how the information is

of public interest. Of course, as a journalist you do not want to lose out on a good story,
but there needs to be gate keeping, which is mostly absent in most of the media today."
In the Bofors pay-off case[17] the High Court of Delhi, observed that, The fairness of
trial is of paramount importance as without such protection there would be trial by media
which no civilised society can and should tolerate. The functions of the court in the
civilised society cannot be usurped by any other authority.[18] It further criticised the
trend of police or the CBI holding a press conference for the media when investigation
of a crime is still ongoing. The court agreed that media awareness creates awareness of
the crime, but the right to fair trial is as valuable as the right to information and freedom
of communication.
The 200th report of the Law Commission dealt with the issue of Trial by media: Free
Speech vs Fair Trial under Criminal Procedure. The report, focussed on the prejudicial coverage of a crime, accused and suspects, and how it impacts the
administration of justice. The Contempt of Courts Act, under section 2 defines criminal
contempt as:
"the publication, (whether by words, spoken or written or by signs, or by visible
representations, or otherwise), of any matter or the doing of any other act whatsoever
which
(i)
(ii) prejudices or interferes or tends to interfere with the due course
of any judicial proceedings; or
(iii) interferes or tends to interfere with or obstructs or tends to obstruct, the
administration of justice in any manner."
Section 3(1) of the Act exempts any publication and distribution of publication, "if the
publisher had no reasonable grounds for believing that the proceeding was pending. In
the event, the person is unaware of the pendency, any publication (whether by words
spoken or written or signs or visible representations) interferes or tends to interfere with
or obstructs the course of justice in connection with any civil or criminal proceeding
pending at the time of publication, if at that time he had no reasonable grounds for
believing that the proceeding was pending." The report emphasizes that publications
during the pre-trial stage by the media could affect the rights of the accused. An
evaluation of the accuseds character is likely to affect or prejudice a fair trial.
If the suspects pictures are shown in the media, identification parades of the accused
conducted under Code of Civil Procedure would be prejudiced. Under Contempt of
Court Act, publications that interfere with the administration of justice amount to
contempt. Further, the principles of natural justice emphasise fair trial and the
presumption of innocence until proven guilty. The rights of an accused are protected
under Article 21 of the Constitution, which guarantees the right to fair trial. This protects
the accused from the over-zealous media glare which can prejudice the case. Although,
in recent times the media has failed to observe restraint in covering high-profile murder

cases, much of which has been hailed as medias success in ensuring justice to the
common man.
For instance, in the Jessica Lal murder case, the media took great pride in acting as a
facilitator of justice. The media in the case whipped up public opinion against the
accused and held him guilty even when the trial court had acquitted the accused. The
media took on the responsibility of administering justice and ensuring the guilty are
punished, candle light vigils and opinion polls on the case were organised by the media.
Past history of the accused was raked up by the media, including photographs of the
accused in affluent bars and pubs in the city were published after he was acquitted. The
photographs of Manu Sharma in pubs insinuated how he was celebrating after his
acquittal.
The Apex Court observed that the freedom of speech has to be carefully and cautiously
used to avoid interference in the administration of justice. If trial by media hampers fair
investigation and prejudices the right of defence of the accused it would amount to
travesty of justice. The Court remarked that the media should not act as an agency of
the court.[19]
The Court, commented, "Presumption of innocence of an accused is a legal
presumption and should not be destroyed at the very threshold through the process of
media trial and that too when the investigation is pending."[20]

Sting Operations
On 30 August, 2007 Live India, a news channel conducted a sting operation on a Delhi
government school teacher forcing a girl student into prostitution. Subsequent to the
media expos, the teacher Uma Khurana[21] was attacked by a mob and was
suspended by the Directorate of Education, Government of Delhi. Later investigation
and reports by the media exposed that there was no truth to the sting operation. The girl
student who was allegedly being forced into prostitution was a journalist. The sting
operation was a stage managed operation. The police found no evidence against the
teacher to support allegations made by the sting operation of child prostitution. In this
case, the High Court of Delhi charged the journalist with impersonation, criminal
conspiracy and creating false evidence. The Ministry of Information and Broadcasting
sent a show cause notice to TV-Live India, alleging the telecast of the sting operation by
channel was defamatory, deliberate, containing false and suggestive innuendos and
half truths."[22]
Section 5 of the Cable Television Networks (Regulation) Act, 1995 and the Cable
Television Network Rules (hereafter the Cable Television Networks Act), stipulates that
no programme can be transmitted or retransmitted on any cable service which contains
anything obscene, defamatory, deliberate, false and suggestive innuendos and half
truths. The Rules prescribes a programming code to be followed by channels
responsible for transmission/re-transmission of any programme.

The programme code restricts airing of programmes that offend decency or good taste,
incite violence, contains anything obscene, defamatory, deliberate, false and suggestive
innuendos and half truths, criticises, maligns or slanders any individual in person or
certain groups, segments of social, public and moral life of the country and affects the
integrity of India, the President and the judiciary. The programme code provided by the
Rules is exhaustive. The Act empowers the government to restrict operation of any
cable network it thinks is necessary or expedient to do so in public interest.
The court observed that false and fabricated sting operations violate a persons right to
privacy. It further, observed, "Giving inducement to a person to commit an offence,
which he is otherwise not likely and inclined to commit, so as to make the same part of
the sting operation is deplorable and must be deprecated by all concerned including the
media. It commented that while sting operations showing acts and facts as they are
truly and actually happening may be necessary in public interest and as a tool for
justice, but a hidden camera cannot be allowed to depict something which is not true,
correct and is not happening but has happened because of inducement by entrapping a
person."[23]
The court criticised the role of the media in creating situations of entrapment and using
the inducement test. It remarked that such inducement tests infringe upon the
individual's right to privacy. It directed news channels to take steps to prohibit reporters
from producing or airing any programme which are based on entrapment and which are
fabricated, intrusive and sensitive.[24]
The court proposed a set of guidelines to be followed by news channels and electronic
media in carrying out sting operations. The guidelines direct a channel proposing to
telecast a sting operation to obtain a certificate from the person who recorded or
produced the same certifying that the operation is genuine to his knowledge. The
guidelines propose that the Ministry of Information and Broadcasting should set up a
committee which would have the powers to grant permission for telecasting sting
operations. The permission to telecast a sting operation should be granted by the
committee only if it is satisfied about the overriding public interest to telecast the sting
operation. The guidelines mandate that, in addition, to ensuring accuracy, the operation
should not violate a persons right to privacy, "unless there is an identifiable large public
interest for broadcasting or publishing the material. However, the court failed to define
what constitutes 'larger public interest'.
The PCI norms also lay down similar guidelines which require a newspaper reporting a
sting operation to obtain a certificate from the person involved in the sting to certify that
the operation is genuine and record in writing the various stages of the sting. The
decision to report the sting vests with the editor who merely needs to satisfy himself that
the sting operation is of public interest.
In addition, to the Cable Television Networks Act and the PCI norms, the News
Broadcasting Standard Authority (NBSA) was set up in 2008 as a self-regulatory body

by News Broadcasters Association.[25] The primary objective of the NBSA is to receive

complaints on broadcasts. The NBSA has drafted a Code of Ethics and Broadcasting
Standards governing broadcasters and television journalists. The Code of Ethics
provides guiding principles relating to privacy and sting operations that broadcasters
should follow.
With respect to privacy, the Code directs channels not to intrude into the private lives of
individuals unless there is a clearly established larger and identifiable public interest for
such a broadcast. Any information on private lives of persons should be warranted in
public interest. Similarly, for sting operations, the Code directs that they should be used
as a last resort by news channels and should be guided by larger public interest. They
should be used to gather conclusive evidence of criminality and should not edit/alter
visuals to misrepresent truth.
In a recent judgement on a supposed sting operation conducted by M/s. Associated
Broadcasting Company Pvt. Limited[26] on TV9 on Gay culture rampant in Hyderabad,
the NBA took suo motu notice of the violation of privacy of individuals with alternate
sexual orientation and misuse of the tool of sting operation. NBA in its judgement held
that the Broadcaster had violated clauses on privacy, sting operations and sex and
nudity of the Code of Ethics. It further, observed, that the Broadcaster and the story did
not reveal any justifiable public interest in using the sting operation and violating the
privacy of individuals. In this particular case, the Broadcaster had revealed the personal
information and faces of supposedly gay men in Hyderabad to report on the underbelly
of gay culture and life. However, the news report, as NBSA observed, did not prove any
criminality and was merely a sensational report of gay culture allegedly prevalent in
Hyderabad.
The PCI norms provide that the press should not tape-record conversations without the
persons express consent or knowledge, except where it is necessary to protect a
journalist in a legal action or for other compelling reason. What constitutes a
compelling reason is left to the discretion of the journalist.
It was in the 1980s, that the first sting operation on how women were being trafficked
was carried out by the Indian Express reporter Ashwin Sarin. As part of the sting, the
Express purchased a tribal girl called Kamla. Subsequently, in 2001, the sting operation
conducted by Tehelka exposed corruption in defence contracts using spy cams and
journalists posing as arms dealers. The expos on defence contracts led to the
resignation of the then defence minister George Fernandes. Sting operations gained
legitimacy in India, especially in the aftermath of the Tehelka operation, exposing
corruption within the government. The original purpose of a sting operation or an
undercover operation was to expose corruption. Stings were justifiable only when it
served a public interest. Subsequent to the Tehelka expos, stings have assumed the
status of investigative journalism, much of which has been questioned in recent times,
especially, with respect to ethics involved in conducting sting operations and the
methods of entrapment used by the media. Further, stings by Tehelka, where the

newspaper used sex workers to entrap politicians have brought to question the manner
in which stings are operated. Although, the overriding concern surrounding sting
operations has been its authenticity, as opposed to, the issue of personal privacy.
For instance, in March 2005 a television news channel carried out a sting operation
involving Bollywood actor Shakti Kapoor to expose the casting couch phenomenon in
the movie industry. The video showing Shakti Kapoor asking for sexual favours from an
aspiring actress, who was an undercover reporter, was received with public outrage.
Nonetheless, prominent members of the media questioned the manner in which the
sting was conducted. The sting was set up as an entrapment. The court has taken a
strong view against the use of entrapment in sting operations. In the case of the Shakti
Kapoor sting, privacy of the actor was clearly violated. The manner in which the sting
was conducted casts serious doubt on who was the victim.[27]
Additionally, the sting violated the PCI norms. It failed to provide a record of the various
stages of how the sting operation was conducted. In United Kingdom, the media when
violating privacy of a person has to demonstrate that it is in the interest of the public.

International Law on Media & Privacy Ethics

United Kingdom
The Press Complaints Commission (PCC), UK is a self-regulatory body similar to NBA.
The PCC has put down code of ethics to be followed by journalists. The PCC guidelines
provide that everyone has the right to privacy and editors must provide reason for
intrusions to a persons privacy. This includes photographing individuals in private
places without their consent. Interestingly, private places include public or private
property "where there is a reasonable expectation of privacy." In India however, as
Kulkarni pointed out, photographs are taken without the consent of an individual if
he/she is in a public space.
Like the PCI norms, the PCC Code lays down guidelines to follow when reporting on
minors (below 16 years of age) who have been victims of sexual assault. As per the
guidelines, the identity of the children should be protected. Further, relatives or friends
of persons convicted or accused of a crime should not be identified without their
consent, unless the information is relevant to the story. References to a persons race,
colour, sexual orientation and gender should be avoided. For instance, the media
reportage of the TISS rape case, which revealed the nationality and colour of the victim,
would be in violation of the PCC Code. In the TISS rape case, the information on the
nationality and colour of the victim was not only irrelevant to the story, but as amply
demonstrated by the media it reinforced prejudices against white women as loose or
amoral.[28]
As far as sting operations are concerned, the PCC lays down that the press must not
publish material acquired by hidden camera or clandestine devices by intercepting
private messages, emails or telephone calls without consent. However, revealing private

information in cases of public interest is an exception to the general rule to be followed

with respect to individual privacy. The PCC defines public interest to include, but it is not
restricted to:
"i) Detecting or exposing crime or serious impropriety
ii) Protecting public health and safety
iii) Preventing the public from being misled by an action or statement of an individual or
organisation"
It requires editors to amply demonstrate that a publication is of public interest. In case
the material is already in public domain the same rules of privacy do not apply.
However, in cases involving children below 16 years of age, editors must demonstrate
exceptional public interest that overrides the interest of the child. Tellingly, the PCC
recognises freedom of expression as public interest.
The PCC, to ensure that persons are not hounded by the media have started issuing
desist orders. The PCC issues a desist notice to editors to prevent the media from
contacting the person. Preventive pre-publication is when the PCC pre-empts a story
that may be pursued or published and attempts to either influence the reporting of the
story in a way that it is not in violation of a persons privacy or persuades the media
house not to publish the story. The PCC, however, does not have the powers to prevent
publication.
Further, United Kingdom is a member of the European Convention on Human Rights
(ECHR), which guarantees the right to privacy under Article 8 of the Convention:
"Everyone has the right to respect for his private and family life, his home and his
correspondence."
However, there is no independent law which recognises the right to privacy. The
judiciary however has protected the right to privacy in several occasions, like in the
famous J.K. Rowling case where the English Court held, that a minors photograph
without the consent of the parent or guardian, though not offensive, violates the childs
right to privacy.[29]

France
The French legal system protects the right to privacy under: Article 9 of the Civil Code.
Article 9 of the Civil Code states:
Everyone has the right to respect for his private life. Without prejudice to compensation
for injury suffered, the court may prescribe any measures, such as sequestration,
seizure and others, appropriate to prevent or put an end to an invasion of personal
privacy; in case of an emergency those measures may be provided for by an interim
order. The right to privacy allows anyone to oppose dissemination of his or her picture
without their express consent.

Article 9 covers both the public and private spheres, and includes not merely the
publication of information but also the method of gathering information. Also, in France
violation of ones privacy is a criminal offence. This includes recording or transmitting
private conversations or picture of a person in a private place without the persons
consent. This implies that privacy is not protected in a public place. Any picture taken of
a person dead or alive, without their prior permission, is prohibited. Buying of such
photographs where consent of a person also constitutes as an offence. Journalists,
however, are not disqualified from the profession if they have committed such an
offence.[30]
France has the Freedom of the Press of 29 July 1881 which protects minors from being
identified and violent and licentious publication which targets minors. It punishes
slander, publication of any information that would reveal the identity of a victim of a
sexual offence, information on witnesses and information on court proceedings which
include a persons private life.[31]

Sweden
Privacy is protected in Sweden under its Constitution. All the four fundamental laws of
the country: the Instrument of Government, the Act of Succession, the Freedom of the
Press Act, and the Fundamental Law on Freedom of Expression protect privacy. The
Instrument of Government Act of 1974 provides for the protection of individual privacy. It
states that freedom of expression is limited under Article 13 of the Constitution:
"Freedom of expression and freedom of information may be restricted having regard to
the security of the Realm, the national supply, public safety and order, the integrity of
the individual, the sanctity of private life, or the prevention and prosecution of crime.
Freedom of expression may also be restricted in economic activities. Freedom of
expression and freedom of information may otherwise be restricted only where
particularly important reasons so warrant."
Sweden has a Press Council which was established in 1916. The Council consists of
the Swedish Newspaper Publishers' Association, the Magazine Publishers' Association,
the Swedish Union of Journalists and the National Press Club. The Council consists of
"a judge, one representative from each of the above-mentioned press organisations and
three representatives of the general public who are not allowed to have any ties to the
newspaper business or to the press organisations."
Additionally, there is an office of the Press Ombudsman which was established in 1969.
Earlier the Swedish Press Council used to deal with complaints on violations of good
journalistic practice. After the setting up of the Press Ombudsman, the complaints are
first handled by the Press Ombudsman, who is empowered to take up matters suo
motu. "Any interested members of the public can lodge a complaint with the PO against
newspaper items that violate good journalistic practice. But, the person to whom the

article relates to must provide a written consent, if the complaint is to result in a formal
criticism of the newspaper."[33]
The Swedish Press Council reports that in the recent years, 350-400 complaints have
been registered annually, of which most concern coverage of criminal matters and
invasion of privacy.
Sweden, additionally, has a Code of Ethics which applies to press, radio and television.
The Code of Ethics was adopted by the Swedish Co-operation Council of the Press in
September 1995. The Code of Ethics for Press, Radio and Television in Sweden has
been drawn up by the Swedish Newspaper Publishers' Association, the Magazine
Publishers' Association, the Swedish Union of Journalists and the National Press Club.
The Code of Ethics lay down norms to be followed in respect of privacy. It states that
caution should be exercised when publishing information that:

Infringes on a persons privacy, unless it is obviously in public interest,

Information on suicides or attempted suicides

Information on victims of crime and accidents. This includes publication of

pictures or photographs[34]

Race, sex, nationality, occupation, political affiliation or religious persuasion in certain

cases, especially when such information is of no importance, should not be published.
One should exercise care in use of pictures, especially, retouching a picture by an
electronic method or formulating a caption to deceive the reader. In case a picture has
been retouched, it should be indicated below the photograph.
Further, the Code asks journalists to consider the harmful consequences that might
follow for persons if their names are published and names should be published only if it
is in the public interest. Similarly, if a persons name is not be revealed, the media
should refrain from publishing a picture or any particulars with respect to occupation,
title, age, nationality, sex of the person, which would enable identification of the person.
In case of court reporting or crime reporting, the Code states that the final judgement of
the Court should be reported and given emphasis, as opposed to conducting a media
trial. In addition, Sweden has incorporated the ECHR in 1994.

Japan
The Japan Newspaper Publishers & Editors Association or Nihon Shinbun Kyokai
(NSK),[35] was established in 1946 as an independent and voluntary organisation to
establish the standard of reporting, and protect and promote interests of the media. The
organisation as part of its mandate has developed the Canon of Journalism, which

provides for ethics and codes members of the body should follow. The Canon
recognises that with the easy availability of information, the media constantly has to
grapple with what information should be published and what should be held back. The
Code provides that journalists have a sense of responsibility and should not hinder
public interests. In addition, to ensuring accuracy and fairness, the Code states that
respect of human rights, includes respect for human dignity, individual honour and right
to privacy. Right to privacy is acknowledged as a human right.
Japan does not have an information ministry or organs like the PCC in the U.K. or the
Press Ombudsman in Sweden. Apart from the Canon, the NSK has a code for
marketing of newspapers, an advertising code and the Kisha club guidelines.[36]
Japan in 2003 formulated the Personal Information Protection Act, which regulates
public and private sector. The Act, which came into effect in 2005, aims to ensure that
all personal data collected by the public and private sector are handled with care. The
Act requires that the purpose of collecting personal information and its use should be
specified, information should be acquired by fair means, any information should not be
supplied to third parties without prior consent of the individual concerned.

Netherlands
The right to privacy is protected under Article 10 of the Netherlands Constitution.
Further, the Article also provides for the enactment of Rules for dissemination of
personal data and the right of persons to be informed when personal data is being
recorded.
Netherlands also has the Netherlands Press Council which keeps the media in check.
The Code of the International Federation of Journalists and the Code of Conduct for
Dutch Journalists was drafted by the Dutch Society of Editors-in-Chief to establish
media reporting standards. These guidelines can be disregarded by the media only in
cases involving social interest.
The Code recognises:

That a persons privacy should not be violated when there is no overriding social
interest;

In cases concerning public persons violation of privacy would take place, but they
have the right to be protected, especially, if that information is not of public interest;

The media should refrain from publishing pictures and images of persons without
prior permission of persons. Similarly, the media should not publish personal letters
and notes without the prior permission of those involved;

The media should refrain from publishing pictures and information of suspects
and accused; and

Details of criminal offence should be left out if they would add to the suffering of
the victim or his/her immediate family and if they are not needed to demonstrate the
nature and gravity of the offence or the consequences thereof.

Conclusion
The right to privacy in India has failed to acquire the status of an absolute right. The
right in comparison to other competing rights, like, the right to freedom of speech &
expression, the right of the State to impose restrictions on account of safety and
security of the State, and the right to information, is easily relinquished. The exceptions
to the right to privacy, such as, overriding public interest, safety and security of the
State, apply in most countries. Nonetheless, as the paper demonstrates, unwarranted
invasion of privacy by the media is widespread. For instance, in the UK, Sweden,
France and Netherlands, the right to photograph a person or retouching of any picture is
prohibited unlike, in India where press photographers do not expressly seek consent of
the person being photographed, if he/she is in a public space. In France, not only is the
publication of information is prohibited on account of the right to privacy, but the method
in which the information is procured also falls within the purview of the right to privacy
and could be violative. This includes information or photograph taken in both public and
private spaces. Privacy within public spaces is recognised, especially, where there is
reasonable expectation of privacy. The Indian norms or code of ethics in journalism fail
to make such a distinction between public and private space. Nor do the guidelines
impose any restrictions on photographing an individual without seeking express consent
of the individual.
The Indian media violates privacy in day-to-day reporting, like overlooking the issue of
privacy to satisfy morbid curiosity. The PCI norms prohibit such reporting, unless it is
outweighed by genuine overriding public interest. Almost all the above countries
prohibit publication of details that would hurt the feelings of the victim or his/her family.
Unlike the UK, where the PCC can pass desist orders, in India the family and/or
relatives of the victims are hounded by the media.
In India, the right to privacy is not a positive right. It comes into effect only in the event
of a violation. The law on privacy in India has primarily evolved through judicial
intervention. It has failed to keep pace with the technological advancement and the
burgeoning of the 24/7 media news channels. The prevalent right to privacy is easily
compromised for other competing rights of public good, public interest and State
security, much of what constitutes public interest or what is private is left to the
discretion of the media.

Research Scholar (Ph.D) in Law, NET & JRF ( Law School, Banaras Hindu
University)

24,079
Saturday, 23 March 2013

RIGHT TO PRIVACY IN INDIA: RECENT

TREND
BY- ADV.SHYAM SAHU
BA. LL.B. LL.M.
EMAIL -shyamnathsah@gmail.com

INTRODUCTION
The law of privacy is recognition of the individual's right to be let alone and
to have his personal space inviolate. The need for privacy and its recognition as a
right is a modern phenomenon. It is the product of an increasingly individualistic

society in which the focus has shifted from society to the individual. In early times,
the law afforded protection only against physical interference with a person or his
property. As civilization progressed, the personal, intellectual and spiritual facets of
the human personality gained recognition and the scope of the law expanded to
give protection to these needs.

The essence of the law derives from a right to privacy, defined broadly as
"the right to be let alone." It usually excludes personal matters or activities which
may reasonably be of public interest, like those of celebrities or participants in
newsworthy events. Invasion of the right to privacy can be the basis for a lawsuit for
damages against the person or entity violating the right.

Under the constitutional law, the right to privacy is implicit in the

fundamental right to life and liberty guaranteed by Article 21 of the Constitution.
[1] This has been interpreted to include the right to be let alone. The constitutional
right to privacy flowing from Article 21 must, however, be read together with the
constitutional right to publish any matter of public interest, subject to reasonable
restrictions.

Right to privacy is not enumerated as a fundamental right in the constitution.

However, such right has been culled by the Supreme Court from Art. 21 and several
other provisions of the constitution read with directive principle of state policy.

The movement towards the recognition of right to privacy in India started

withKharak

Singh v. State of Uttar Pradesh and Others[2] , wherein the apex court
observed that it is true that our constitution does not expressly declare a right to
privacy as fundamental right, but the said right is an essential ingredient of
personal liberty. After an elaborate appraisal of this right in Gobind v. State of
Madhya Pradesh and Another[3] , it has been fully incorporated under the
umbrella of right to life and personal liberty by the humanistic expansion of the
Article 21 of the Constitution.

In R. Rajagopal v. State of Tamil Nadu, the Supreme Court has asserted

that in recent times right to privacy has acquired constitutional status; it is implicit

in right to life and liberty guaranteed to citizens by Art. 21. It is Right to be let
alone. A citizen has a right to safe guard the privacy of his own, his family,
marriage, procreation, motherhood, child bearing and education among others
matters.

The right to privacy in India has derived itself from essentially two sources:
the common law of torts and the constitutional law[4] In common law, a private
action for damages for unlawful invasion of privacy is maintainable. The printer and
publisher of a journal, magazine or book are liable in damages if they publish any
matter concerning the private life of the individual[5] without such person's
consent. There are two exceptions to this rule: first, that the right to privacy does
not survive once the publication is a matter of public record and, second, when the
publication relates to the discharge of the official duties of a public servant, an
action is not maintainable unless the publication is proved to be false, malicious or
is in reckless disregard for truth.

Chapter I
MEANING AND DEFINITION OF PRIVACY

Privacy has
been
derived
from Latin word: privatus meaning
thereby "separated from the rest, deprived of something, esp. office, participation in
the government", in turnprivatus has been derived from term privo "to deprive".
Privacy is the ability of an individual or group to seclude themselves or information
about themselves and thereby reveal themselves selectively. The boundaries and
content of what is considered private differ among cultures and individuals, but
share basic common themes. Privacy is sometimes related to anonymity, the wish
to remain unnoticed or unidentified in the public realm. When something is private
to a person, it usually means there is something within them that is considered
inherently special or personally sensitive.

The concept of privacy rests on the promise that "a certain private sphere of
individual liberty will be kept largely beyond the reach of Government"[6] and it

embodies the acceptance of the "moral fact that a person belongs to himself and
not to others nor to society as a whole".

Gerety[7] defines privacy as "an autonomy or control over the intimacies of

personal identity". He identifies three broad concepts in the legal definition of
privacy-intimacy, identity and autonomy.[8] Bostwick[9] relies upon a threefold
classification of privacy: the privacy of repose, the privacy of sanctuary and the
privacy of intimate decision.

Solove[10] adopts a pragmatic approach and identifies necessary and

sufficient conditions for the right to privacy. He divides privacy into six
comprehensive (though not mutually exclusive) rights: (i) the right to be let alone;
(ii) limited access to the self-the ability to shield oneself from others; (iii) secrecyconcealing certain matters from others; (iv) control over personal information; (v)
personhood-the protection of one's personality, individuality and dignity; and (vi)
intimacy-control over or limiting access to intimate relationships.

If the Government interferes with my right to speak to an audience in an

open maidan, can it be said that my right to privacy has been infringed? The answer
is in the negative. In such cases, my right to the freedom of speech is interfered
with. However, if the Government interferes with my right to speak to my brother in
the confines of my home, can I say that my right to privacy has been intruded
upon? The answer must necessarily be in the affirmative. The right to privacy thus
emphasizes upon the place in which the act occurs. It was this principle that
prompted Douglas, J. to enunciate the repulsive notion of invading "marital
bedrooms" for telltale signs of crime.[11] 9

However, if I go to a bazaar and speak to my father, and the Government

prevents me from doing so, is my right to privacy infringed, in spite of the fact that
the communication was made in an open area? The answer once more is in the
affirmative. It thus appears that the right to privacy is hinged not only upon the
place, but more specifically, upon an arena which by its very nature is secluded
from access to the public. The nature of the act or the communication must be such
as is inherently personal and private. Extending privacy protection to the spheres of
marriage, procreation, contraception, family relationships, child-rearing and
education is thus justified.

An attempt at defining privacy is of no use if the levels of abstraction do not

translate into concrete specifics. Broadly speaking, privacy law deals with freedom
of thought, control over one's body, peace and solitude in one's home, control of
information regarding oneself, freedom from surveillance,[12] protection from
unreasonable search and seizure,[13] and protection of reputation.

Chapter II
TYPES OF PRIVACY

The

term "privacy" means many things in different contexts. Different

people, cultures, and nations have a wide variety of expectations about how much
privacy a person is entitled to or what constitutes an invasion of privacy.

Physical Privacy

Physical privacy could be defined as preventing "intrusions into one's physical

space or solitude. Physical privacy may be a matter of cultural sensitivity, personal
dignity, and/or shyness. There may also be concerns about safety, if for example
one is wary of becoming the victim of crime or stalking.[14] Civil inattention is a
process whereby individuals are able to maintain their privacy within a crowd.

Informational Privacy

Information or data privacy refers to the evolving relationship between

technology and the legal right to, or public expectation of privacy in the collection
and sharing of data about one's self.

Various types of personal information are often associated with privacy

concerns. For various reasons, individuals may object to personal information such

as their religion, sexual orientation, political affiliations, or personal activities being

revealed, perhaps to avoid discrimination, personal embarrassment, or damage to
their professional reputations.

Financial Privacy

Financial privacy, in which information about a person's financial transactions

is guarded, is important for the avoidance of fraud including identity theft.

Internet Privacy

Internet privacy is the ability to determine what information one reveals or

withholds about oneself over the Internet, who has access to such information, and
for what purposes one's information may or may not be used.

Medical Privacy

Medical privacy allows a person to withhold their medical records and other
information from others, perhaps because of fears that it might affect their
insurance coverage or employment, or to avoid the embarrassment caused by
revealing medical conditions or treatments. Medical information could also reveal
other aspects of one's personal life, such as sexual preferences or proclivity. A right
to sexual privacy enables individuals to acquire and use contraceptives without
family, community or legal sanctions.

Political Privacy

Political privacy has been a concern since voting systems emerged in ancient
times. The secret ballot helps to ensure that voters cannot be coerced into voting in
certain ways, since they can allocate their vote as they wish in the privacy and
security of the voting booth while maintaining the anonymity of the vote.

Organizational Privacy

Governments
agencies,
corporations,
groups/societies
and
other
organizations may desire to keep their activities or secrets from being revealed to
other organizations or individuals, adopting various security practices and controls
in order to prevent this. Organizations[15] may seek legal protection for their
secrets. For example, a government administration may be able to invoke executive
privilege or declares certain information to be classified, or a corporation might
attempt to protect valuable proprietary information astrade secrets.

Chapter IV
RIGHT TO PRIVACY

Under the constitutional law, the right to privacy is implicit in the

fundamental right to life and liberty guaranteed by Article 21 of the
Constitution[16] This has been interpreted to include the right to be let alone. The
constitutional right to privacy flowing from Article 21 must, however, be read
together with the constitutional right to publish any matter of public interest,
subject to reasonable restrictions.

Meaning and Definition

The law of privacy is a recognition of the individual's right to be let alone and
to have his personal space inviolate. The need for privacy and its recognition as a
right is a modern phenomenon. It is the product of an increasingly individualistic
society in which the focus has shifted from society to the individual. In early times,
the law afforded protection only against physical interference with a person or his
property. As civilization progressed, the personal, intellectual and spiritual facets of
the human personality gained recognition and the scope of the law expanded to
give protection to these needs.

In recent years there have been only few attempts to clearly and precisely
define a "right to privacy." Some experts assert that in fact the right to privacy
"should not be defined as a separate legal right" at all. By their reasoning, existing
laws relating to privacy in general should be sufficient[17] Other experts, such
as Dean Prosser, have attempted, but failed, to find a "common ground" between
the leading kinds of privacy cases in the court system, at least to formulate a
definition.[18] One law school treatise from Israel, however, on the subject of
"privacy in the digital environment," suggests that the "right to privacy should be
seen as an independent right that deserves legal protection in itself." It has
therefore proposed a working definition for a "right to privacy":

The right to privacy is our right to keep a domain around us, which
includes all those things that are part of us, such as our body, home,
thoughts, feelings, secrets and identity. The right to privacy gives us the
ability to choose which parts in this domain can be accessed by others,
and to control the extent, manner and timing of the use of those parts we
choose to disclose.

The right to privacy in India has derived itself from essentially two sources:
the common law of torts and the constitutional law[19] In common law, a private
action for damages for unlawful invasion of privacy is maintainable. The printer and
publisher of a journal, magazine or book are liable in damages if they publish any
matter concerning the private life of the individual[20] without such person's
consent. There are two exceptions to this rule: first, that the right to privacy does
not survive once the publication is a matter of public record and, second, when the
publication relates to the discharge of the official duties of a public servant, an
action is not maintainable unless the publication is proved to be false, malicious or
is in reckless disregard for truth.

Under the constitutional law, the right to privacy is implicit in the

fundamental right to life and liberty guaranteed by Article 21 of the
Constitution[21] This has been interpreted to include the right to be let alone. The
constitutional right to privacy flowing from Article 21 must, however, be read
together with the constitutional right to publish any matter of public interest,
subject to reasonable restrictions.

According to recommendations of Venkata Challiah Commission:

It is proposed that a new article, namely, article 21-B, should be inserted on the following lines:

21-B. (1)

Every person has a right to respect for his private and family life, his home and his

correspondence.

(2)

Nothing in clause (1) shall prevent the State from making any law imposing

reasonable restrictions on the exercise of the right conferred by clause (1), in the interests of
security of the State, public safety or for the prevention of disorder or crime, or for the protection
of health or morals, or for the protection of the rights and freedoms of others.

Unfortunately even after ten years of recommendation parliament could not dared to insert Art. 21
(B) as Right to Privacy and other tragedy is that even Right to Privacy has not been included in Art. 19
(2) as reasonable restriction to Art.19 (1).

Chapter V
RIGHT TO PRIVACY: COMPARATIVE OUTLOOK

To better understand the theme of right to privacy and development of it. We

should take

a slight visit of evolution of right to privacy in various other countries.

England

The American law on privacy has evolved faster than the law in England.
[22] One of the earliest cases in England, Albert v. Strange[23] involved the
unauthorized copying of etchings made by Queen Victoria and her husband for their
private amusement. The etchings, which represented members of the Royal family
and matters of personal interest, were entrusted to a printer for making
impressions. An employee of the printer made unauthorized copies and sold them
to the defendant who in turn proposed to exhibit them publicly. Prince Albert
succeeded in obtaining an injunction to prevent the exhibition. The court's
reasoning was based on both the enforcement of the Prince's property rights as well
as the employee's breach of confidence. This case is widely regarded as having
inspired the development of the law of privacy in the United States.

Even as late as 1991, the law in England was found to be inadequate in

protecting privacy. In that year, the Court of appeal decided Kaye v. Robertson.
[24] The case concerned a well-known actor who had to be hospitalized after
sustaining serious head injuries in a car accident. At a time when the actor was in
no condition to be interviewed, a reporter and a photographer from the Sunday
Sport newspaper unauthorized gained access to his hospital room, took
photographs and attempted to conduct an interview with the actor. An interlocutory
injunction was sought on behalf of the actor to prevent the paper from publishing
the article which claimed that Kaye had agreed to give an exclusive interview to the
paper. There being no right to privacy under the English law, the plaintiff could not
maintain an action for breach of privacy. In the absence of such a right, the claim
was based on other rights of action such as libel, malicious falsehood and trespass
to the person, in the hope that one or the other would help him protect his privacy.
Eventually, he was granted an injunction to restrain publication of the malicious
falsehood. The publication of the story and some less objectionable photographs
were, however, allowed on the condition that it was not claimed that the plaintiff
had given his consent. The remedy was clearly inadequate since it failed to protect
the plaintiff from preserving his personal space and from keeping his personal
circumstances away from public glare. The court expressed its inability to protect
the privacy of the individual and blamed the failure of common law and statute to
protect this right.[25]

U.S.A

In the U.S.A., the need for a law to protect privacy was articulated as early as
1890 when an article titled "The Right to Privacy" was published by Warren and
Brandeis[26]this article laid the intellectual foundations for the law on privacy.

"Recent inventions and business method call attention to the next step which
must be taken for the protection of the person, and for securing to the individual
what Judge Cooley calls 'the right to be let alone'. Instantaneous photographs and
newspaper enterprise have invaded the sacred precincts of the home ... private
devices threaten to make good the prediction that 'what is whispered in the closet
shall be proclaimed from the house tops'.... The press is overstepping in every
direction the obvious bounds of propriety and of decency. Gossip is no longer the
resource of the idle and of the vicious, but has become a trade, which is pursued
with industry as well as effrontery.... The intensity and complexity of life attendant
upon advancing civilization, have rendered necessary some retreat from the world,
and man, under the refining influence of culture, has become more sensitive to
publicity, so that solitude and privacy have become more essential to the individual;
but modern enterprise and invention have through invasions upon his privacy,
subjected him to mental pain and distress, far greater than could be inflicted by
bodily injury. It is our purpose to consider whether the existing law affords a
principle which can properly be invoked to protect the privacy of an individual; and,
if it does, what the nature and extent of such protection is...."

The
most
well-known
American
are Griswold v. Connecticut[27]and Roe v. Wade.

cases

on

privacy

The US Supreme Court has found the rights of marriage, procreation,

contraception, family relationships, child-rearing and education[28] to be
indefeasible fragments of the substantive right to privacy. The fundamental choice
of whether or not to beget a child forms the crux of this cluster of constitutionally
protected decisions as "decisions whether to accomplish or to prevent conception
are amongst the most private and sensitive".[29]The substantive right to privacy
has been described as a freedom in making certain kinds of intimate decisions.
[30] Protection has not only been extended to certain kinds of decisionsbut also to
certain kinds of places.[31]

The turning point came in Griswold v. Connecticut[32] where the US

Supreme Court considered the vires of a statute prohibiting the use of

contraceptives by married couples. Douglas, J. in his momentous pronouncement,

put forth the following proposition:

"Would we allow the police to search the sacred precincts of marital

bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive
to the notions of privacy surrounding the marriage relationship."[33]

In Eisenstadt v. Baird[34] a similar provision affecting unmarried couples

was rendered unconstitutional albeit under the equal protection clause, as the evil
would be identical and the under-inclusion invidious. The Court expounded, in its
equally renowned pronouncement, upon the concept of privacy thus:

"If the right of privacy means anything, it is the right of the individual,
married or single, to be free from unwarranted governmental intrusion into matters
so fundamentally affecting a person as the decision whether to bear or beget a
child."[35]

In Roe v. Wade[36] the US Supreme Court considered the constitutionality

of a statute criminalising abortion. The right to privacy was considered to be broad
enough to encompass a woman's right to terminate her pregnancy owing to the
intense emotional, mental, psychological and physical strain which it entails.[37] In
a
controversial
decision,
a
similar
provision
was
upheld
in Webster v. Reproductive Health Services.[38] However, the original position
was reaffirmed in Planned Parenthood v. Casey[39] where the Court elaborated
the consequences of abortion:

"Abortion is a unique act. It is an act fraught with consequences for others;

for the woman who must live with the implications of her decision; for the persons
who perform and assist in the procedure; for the spouse, family and society ... The
destiny of the woman must be shaped to a large extent on her own conception of
her spiritual imperatives and her place in society."[40]

Similarly, Ridder & Woll find that:

"When we talk about women's rights, we can get all the rights in the worldthe right to vote, the right to go to school-and none of them means a doggone thing
if we don't own the flesh we stand in, if we can't control what happens to us, if the
whole course of our lives can be changed by somebody else that can get us
pregnant by accident, or by deceit, or by force."[41]

In Loving v. Virginia[42] the US Supreme Court struck down a law which

prevented interracial marriages. However, the substantive right to privacy in the
context
of
marriage
suffered
a
substantial
setback
in Bowers v. Hardwick[43] where the US Supreme Court denied privacy
protection to homosexual activity. The decision was reversed in 2003,
in Lawrence v. Texas[44] where Kennedy, J. found homosexuals to have the same
rights as heterosexuals, beginning, in his eloquent judgment, with:

"Liberty protects the person from unwarranted government intrusions into a

dwelling or other private places. In our tradition the State is not omnipresent in the
home. And there are other spheres of our lives and existence, outside the home,
where the State should not be a dominant presence. Freedom extends beyond
spatial bounds. Liberty presumes an autonomy of self that includes freedom of
thought, belief, expression, and certain intimate conduct."[45]

In Skinner v. Oklahoma[46] the US Supreme Court struck down a statute

which called for the sterilization of "habitual criminals", thus ensuring their inherent
right of procreation, while in Stanley v. Georgia[47] the possession of obscene
material in a man's house was condoned for the reason:

"If the First Amendment means anything, it means that a State has no business telling a man,
sitting alone in his own house, what books he may read or what films he may watch. Our whole
constitutional[48] heritage rebels at the thought of giving Government the power to control men's
minds."[49]

India

After the delivery of landmark judgment known as Maneka Gandhi v. Union

of India,[50] the scope of Art. 21 was enormously increased so that this Art. could
include certain rights as fundamental rights. And Right to Privacy is one of those
rights which have been evolved by The Supreme Court of India and which is implicit
in Art. 21.

An attempt at defining privacy is of no use if the levels of abstraction do not

translate into concrete specifics. Broadly speaking, privacy law deals with freedom
of thought, control over one's body, peace and solitude in one's home, control of
information regarding oneself, freedom from surveillance,[51] protection from
unreasonable search and seizure,[52] and protection of reputation.[53] Indian
jurisprudence has extended the ambit of privacy to the following zones which,
though not mutually exclusive, can be analysed as follows:

1. Surveillance

The first privacy case in Indian jurisprudence was that of Kharak

Singh v. State of U.P.,[54] where the Supreme Court considered the
constitutionality of police regulations that permitted the police to keep a close
watch on would-be criminals. However, like all unfettered power, the provision was
misused. The aggrieved complained that the police would inter alia: (i) enter his
house; (ii) knock and shout at his door; (iii) wake him up during the night; (iv) ask
him to accompany them to the station; and (v) ask him to report his departure to
the local constable. The most inhumane of all regulations under challenge was
Regulation 236 which permitted the police to render domiciliary visits at night.

While Regulation 236 was struck down as being unconstitutional, Ayyangar,

J. speaking for the majority, observed: (AIR para 20)

"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."[55]

However, Subba Rao, J. while partly concurring with the majority, stated:
(AIR para 31)

"It is true our Constitution does not expressly declare a right to privacy as a
fundamental right, but the said right is an essential ingredient of personal liberty. ...
Indeed, nothing is more deleterious to a man's physical happiness and health than a
calculated interference with his privacy."[56]

Thereafter, in Gobind v. State of M.P.,[57] the aggrieved complained that

"his reputation had sunk low in the estimation of his neighbours"[58] as a result of
similar activity. Mathew, J. after reasoned deliberation, delivered a learned
judgment and observed that: (SCC paras 23-24)

"Privacy primarily concerns the individual. It therefore relates to and overlaps

with the concept of liberty. The most serious advocate of privacy must confess that
there are serious problems of defining the essence and scope of the right. Privacy
interest in autonomy must also be placed in the context of other rights and values.

Any right to privacy must encompass and protect the personal intimacies of
the home, the family, marriage, motherhood, procreation and child-rearing. This
catalogue approach to the question is obviously not as instructive as it does not
give an analytical picture of the distinctive characteristics of the right of privacy.
Perhaps, the only suggestion that can be offered as a unifying principle underlying
the concept has been the assertion that a claimed right must be a fundamental
right implicit in the concept of ordered liberty."[59]

However, the Court stated that the right to privacy was subject to
"restrictions on the basis of compelling State interest".[60] Thus, the regulations
were upheld since they applied to a limited class of citizens i.e. habitual criminals.

Similarly, in Malak Singh v. State of Punjab[61] surveillance was held to

be intrusive and an encroachment upon the right to privacy and in Sunil
Batra v. Delhi Admn.[62] the Supreme Court considered the question of whether
two individuals, sentenced to death, were entitled to privacy and human rights. The

Court found that though a minimum intrusion of privacy may have been inevitable,
the guards were under an obligation to ensure that human rights and privacy
standards were observed.

In People's Union for Civil Liberties v. Union of India (hereinafter the

first PUCL case)[63], the constitutionality of "telephone-tapping" was under
consideration. While recognizing that conversations on the telephone were of an
intimate and confidential character, the Court held that tapping into conversations
was unconstitutional unless brought about by a procedure established by law. The
Court also found the concept of privacy "too broad and moralistic" for serious
judicial consideration.[64]

2. Search and seizure: The Fourth Amendment

The Fourth Amendment of the US Constitution reads:

"The right of the people to be secure in their person, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated and no
warrants shall issue, but upon probable cause, supported by oath or affirmation,
and particularly describing the place to be searched, and the persons or things to be
seized."

The US Supreme Court had held unreasonable searches and seizures, without
the issuance of a warrant on probable cause, to vitiate the principle of selfincrimination inherent in the Fifth Amendment of the US Constitution.[65] A similar
argument was presented in M.P. Sharma v. Satish Chandra[66] with one sole
difference: the petitioners did not challenge unreasonable search and seizure, but
challenged the very process of search and seizure as derogatory to the principle of
self-incrimination enshrined in Article 20(3) of the Constitution. While striking down
this proposition,[67] the Supreme Court altogether deprecated the doctrine of the
Fourth Amendment privacy by finding that: (SCR pp. 1096-97)

"When the Constitution-makers have thought fit not to subject such

regulation to constitutional limitations by recognition of a fundamental right to
privacy, analogous to the (American) Fourth Amendment, we have no justification to
import it, into a totally different fundamental right, by some process of strained

construction. ... Therefore, issue of a search warrant is normally the judicial function
of the Magistrate. When such judicial function is interposed between the individual
and the officer's authority for search, no circumvention thereby of the fundamental
right is to be assumed."[68]

Fifty years later, the Supreme Court appropriately allowed fragments of the
Fourth Amendment privacy to percolate into the boundaries of constitutional
protection in District Registrar and Collector v. Canara Bank[69] where the
right of privacy was explored qua search and seizure. The Andhra Pradesh
amendment of the Stamp Act, 1899 was challenged on the grounds that it
permitted "any person" to "enter upon any premises", public or private, and "seize
and impound" documents.

The Court defined the limits of legitimate privacy intrusion and stated that
legislative intrusions could be tested using the doctrine of proportionality,
administrative/executive intrusions had to be reasonable, while judicial intrusions
were permissible upon the issuance of a judicial warrant on the premise of
"sufficient reason" and necessity.[70] It admonishingly observed that "under the
garb of the power conferred by Section 73 the person authorised may go on a
rampage searching house after house" and "any number of documents may be
inspected, may be seized and may be removed and at the end the whole exercise
may turn out to be an exercise in futility".[71] It was stated that: (SCC para 53)

"Unless there is some probable or reasonable cause or reasonable basis or

material before the Collector for reaching an opinion that the documents in the
possession of the bank tend to secure any duty or to prove or to lead to the
discovery of any fraud or omission in relation to any duty, the search or taking notes
or extracts therefore, cannot be valid. The above safeguards must necessarily be
read into the provision relating to search and inspection and seizure so as to save it
from any unconstitutionality."[72]

3. Disclosure of intimate details

Privacy cannot be the right to withhold all possible information regarding

one's self from all possible institutions at all possible times. Such a construction
would render nugatory the very concept of societal coexistence. Every day, we are
required to disclose some or the other information about ourselves, be it in a tax

return (where income is disclosed), in a university application (where marks are

disclosed) in an insurance application (where medical information is disclosed), to a
doctor (where intimate secrets are disclosed), etc. However, does the mere fact that
I have parted with my income information in a tax return permit the Income Tax
Department to disclose my income to the whole world? Or does the fact that I have
given medical information to insurance companies permit them to relay the
information to pharmaceutical companies?

The answer must necessarily be in the negative. Privacy is therefore not

merely the right to control what kind of information is disclosed, but also the right to
choose, control and limit to whom the disclosure is made. The fact of a disclosure to
an institution does not indicate the acquiescence of its disclosure to the general
public.

In addition, all individuals retain control over that aspect of their lives which
is intimate and personal by its very nature, and over which no member of the public
can have a legitimate claim. In contrast to the information given above (an income
tax return is mandatory) this information can only be disclosed voluntarily.

In Neera Mathur v. LIC[73] the Life Insurance Corporation of India required

married female candidates to disclose inter alia, in a form,[74] information
regarding menstrual cycles, conceptions and pregnancies and abortions. The
Supreme Court, without mentioning the right of privacy, found: (SCC para 13)

"The particulars to be furnished under columns (iii) to (viii) in the declaration

are indeed embarrassing if not humiliating. The modesty and self-respect may
perhaps preclude the disclosure of such personal problems like whether her
menstrual period is regular or painless, the number of conceptions taken place; how
many have gone full term, etc. The Corporation would do well to delete such
columns in the declaration."[75]

Similarly, forms regarding the disclosure of religion, caste, community should

not be made mandatory for admission into educational institutions, government
posts (except where such disclosure is necessary for an affirmative action), etc., for
these are personal matters, the compulsory disclosure of which tends to be
offensive.

However, in Sharda v. Dharmpal[76], the Supreme Court considered the

question of whether a party to a divorce proceeding could be compelled to take a
medical examination. While acknowledging the importance of privacy and
confidentiality, the Court found that the right to privacy was not absolute and a
party could be asked to take a medical examination since in a matrimonial
proceeding: (SCC para 76)

"If the respondent avoids such medical examination on the ground that it
violates his/her right to privacy or for that matter right to personal liberty as
enshrined under Article 21 of the Constitution, then it may in most of such cases
become impossible to arrive at a conclusion."[77]

This decision demonstrates that like all other fundamental rights, the right to
privacy too is subject to reasonable restrictions.

4. The all-pervasive "public eye"

In R. Rajagopal v. State of T.N.[78] the Supreme Court considered the

freedom of the press vis-a-vis the right to privacy of citizens. "Auto" Shankar,
convicted of six murders and sentenced to death, had written his biography which
he intended to get published in a Tamil weekly magazine entitled Nakheeran. In
300 pages thereof, he set out the close nexus between himself and several IAS, IPS
and other officers, some of whom were his partners in crime. The Court developed a
new test, modelled on the decisions of the US Supreme Court in New York
Times v. Sullivan[79] and Time Inc v. Hill[80] However, with regard to privacy,
the Court observed: (SCC para 26)

"26. (1) The right to privacy is implicit in the right to life and
liberty guaranteed to the citizens of this country by Article 21. It is 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. If he does
so, he would be violating the right to privacy of the person concerned and would be
liable in an action for damages. The position may, however, be different, if a person

voluntarily thrusts himself into controversy or voluntarily invites or raises a

controversy."[81]

The Court thus echoed its findings in Gobind v. State of M.P.,[82] with a
sole difference: the right to "family, marriage, procreation, motherhood,
childbearing and education among other matters"[83] was considered exclusively to
be a publishing or informational right. None can publish anything regarding these
matters. As long as information is not disclosed regarding these matters, no harm
was said to be done. However, does that then mean that the individual has no right
of independence of action regarding these matters? Can the State interfere with the
right of individuals in their personal matters as long as no information is disclosed?
Does it mean, for example, that the State can interfere with my decision as to what
higher education I should pursue (whether I study law, medicine or business), so
long as that information is not published?

Fortunately, the Supreme Court qualified its observations by stating that: "the
principles abovementioned are only the broad principles. They are neither
exhaustive nor all-comprehending; indeed no such enunciation is possible or
advisable. As rightly pointed out by Mathew, J. this right has to go through a caseby-case development."[84]

Nonetheless, endeavouring to enunciate the "broad principles" of privacy,

this decision tends to have the effect of excluding the principle of substantive
privacy from the ambit of constitutional protection.

In People's Union for Civil Liberties v. Union of India (hereinafter the

second PUCL case)[85] the validity of the Representation of the People
(Amendment) Ordinance, 2002 was under challenge. Shah, J. brought forth the
decision with a poignant question: (SCC p. 418, para 2)

"2. There was an era when a powerful or a rich or a strong or a dacoit aged
more than 60 years married a beautiful young girl despite her resistance. Except to
weep, she had no choice of selecting her mate. To a large extent, such situation
does not prevail today. Now, young persons are selecting mates of their choice after
verifying full details thereof. Should we not have such a situation in selecting a
candidate contesting elections? In a vibrant democracy-is it not required that a little

voter should know the biodata of his/her would-be rulers, law-makers or destinymakers of the nation?"

The conflict between the right to privacy of the official in the public eye and
the right of the citizen to information was said to end in favour of the citizen,
thereby serving the larger public interest.[86]

In People's
Union
for
Civil
Liberties v. Union
of
India[87] (hereinafter the third PUCL case) the constitutionality of various
provisions of the Prevention of Terrorism Act, 2002, were challenged. Once again the
Court found that: (SCC para 37)

"The criminal justice system cannot function without the cooperation of

people. Rather it is the duty of everybody to assist the State in the detection of the
crime and bringing criminals to justice. Withholding such information cannot be
traced to right to privacy, which itself is not an absolute right. Right to privacy is
subservient to that of security of State."[88]

Finally,
in People's
Union
for
Civil
Liberties v. Union
of
India. (hereinafter the fourth PUCL case) the appellants sought the disclosure of
information relating to safety violations in nuclear installations and power plants.
Privacy had hardly a part to play in the decision, but the Court recognized it as one
of the grounds on which the Government could withhold information.[89]

The cases that fall under this segment have further broadened the ambit of
the reasonable restrictions which apply to the right to privacy. While the "larger
public interest" and the "security of the State" were considered to be restrictions on
privacy, the right itself was interpreted in its informational context. The substantive
interpretation of privacy is yet to make a formal appearance in Indian legal
pronouncement.

5. Marriage

Marriage is an institution the continuance of which ensures the perpetuation

of society. It has been equated with the very concept of existence in Indian

jurisprudence.[90]The institution revolves around certain fundamental decisions

concerning when to marry,[91] whom to marry[92] and whether to marry at all.
[93] It facilitates (but does not enforce) the exercise of procreation, and the
questions of whether to have children at all,[94] andhow many children to
have[95] are, in themselves, fundamental choices.

Once the marriage bond is formed certain fundamental choices and

fundamental decisions are required to be made about the new units of the family
i.e. the children, when they cannot be said to make decisions for themselves.
Fundamental choices regarding children may include the education of children i.e.
which school the child should join, which courses the child should take, etc., [96] the
right to bring them up in their own manner, with the inculcation of desired values,
etc. Of particularly growing interest is the right to privacy of the child, especially
since the Constitution contains no "adults only" caveat.[97] Thus, the institution of
marriage is virtually the progenitor of the notion of substantive privacy.

The institution of marriage is based upon mutual consent and for such
consent to exist it is essential that both spouses are fully aware of each other's
medical conditions, which alone can legitimately affect the fundamental decisions
mentioned above.[98] This condition may be referred to as "informed mutual
consent". It follows that if any medical condition is withheld from a spouse, the
consent was obtained by fraud, and the marriage, in the least, is voidable.

These fundamental decisions associated with marriage are indefeasible

elements of inviolable selfhood, and cannot be interfered with except for the
reasonable restrictions appended below.[99] The right to marriage is therefore a
part of the fundamental right to privacy, subject, like any other fundamental right,
to reasonable restrictions.

In Mr 'X' v. Hospital 'Z[100] (hereinafter the first marriage case), on the

donation of blood, an individual, Mr 'X', was found to be HIV positive. This
information was relayed by the hospital to his spouse, Ms 'Y', as a result of which
the marriage was called off. The Supreme Court considered the right of privacy to
be subordinated inter alia to the protection of the health and morals of others.
[101] Without being fully aware of the medical condition of Mr 'X', Ms 'Y' would not
be able to fully exercise her fundamental decision of marriage. There was a danger
that Ms 'Y' too would contract the disease. That is not in the least to say that
individuals with diseases cannot marry, but it implies that the marriage, like any

other, must be based upon informed mutual consent. Thus, the Supreme Court
found that: (SCC para 38)

"If that person is suffering from any communicable venereal disease or is

impotent so that marriage would be a complete failure or that his wife would seek
divorce from him on that ground, that person is under a moral, as also legal duty, to
inform the woman with whom the marriage is proposed that he was not physically
healthy and that he was suffering from a disease which was likely to be
communicated to her."[102]

However, the Supreme Court went on to subordinate the right to marry of

individuals with communicable venereal diseases, even when such marriage was
based upon informed mutual consent. It thus stated: (SCC para 38)

"So long as the person is not cured of the communicable venereal disease or
impotency, the right to marry cannot be enforced through a court of law and shall
be treated to be a 'suspended right'."[103]

The effect of the right to marriage being held a "suspended right" did not
mean that individuals with communicable venereal diseases could not marry, but
worse still, it meant that if the State enacted a law preventing them from marrying,
it could not be subject to challenge under the fundamental right. It must also be
noted that if at all a fundamental right is to be suspended, the suspension must be
warranted by the Constitution and cannot be brought about by external
considerations.

This decision gravely affected the right to substantive privacy, affecting the right of individuals to
make fundamental decisions associated with marriage. The pronouncement therefore came under review
in Mr. 'X' v. Hospital 'Z'[104] (hereinafter the second marriage case), where the Court held that the
question of whether individuals with communicable venereal diseases could marry did not arise for
consideration, and the prior observations of the Supreme Court relating to the suspended right of
marriage were struck down to that effect.

Report of NCRWC precisely defined Right to Privacy in following words:

21-B. (1)

Every person has a right to respect for his private and family life, his home and his

correspondence.

(2)

Nothing in clause (1) shall prevent the State from making any law imposing

reasonable restrictions on the exercise of the right conferred by clause (1), in the interests of
security of the State, public safety or for the prevention of disorder or crime, or for the protection
of health or morals, or for the protection of the rights and freedoms of others.

International Conventions

Internationally the right to privacy has been protected in a number of

conventions. For instance, the Universal Declaration of Human Rights, 1948 (UDHR)
under Article 12provides that:

"No one shall be subjected to arbitrary interference with his privacy,

family, home or correspondence, or to attacks upon his honor and
reputation. Everyone has the right to the protection of the law against
such interference or attacks."

The UDHR protects any arbitrary interference from the State to a persons
right to privacy. Similarly, International Covenant on Civil and Political Rights, 1976
(ICCPR) under Article 17 imposes the State to ensure that individuals are protected
by law against arbitrary or unlawful interference with his privacy, family, home or
correspondence, nor to unlawful attacks on his honor and reputation.

Thus, ensuring that States enact laws to protect individuals right to privacy.
India has ratified the above conventions. The ratification of the Conventions
mandates the State to take steps to enact laws to protect its citizens. Although,
human right activists have periodically demanded that the State take adequate
measures to protect human rights of the vulnerable in society, the right to privacy
has received little attention.

Similarly, Article 16 of the Convention on the Rights of the Child (CRC) provides
protection to a minor from any unlawful interference to his/her right to privacy and
imposes a positive obligation on States who have ratified the convention to enact a
law protecting the same. India does have safeguards in place to protect identity of
minors, especially, juveniles and victims of abuse. However, there are exceptions
when the law on privacy does not apply even in case of a minor.

Article 8 of the European Convention on Human Rights reads as

follows:

(1) Everyone has the right to respect for his private and family life, his home
and his correspondence.

(2) There shall be no interference by a public authority with the exercise of

this right, except such as is in accordance with law and is necessary in a democratic
society in the interests of national security, public safety, for the prevention of
disorder and crime or for the protection of health or morals

The right to privacy, therefore, is not an absolute right and does not apply
uniformly to all situations and all class of persons. For instance, privacy with respect
to a certain class of persons, like a person in public authority, affords different
protection as opposed to private individuals.

Chapter VI
RIGHT TO PRIVACY: RECENT TREND

Right to privacy is basically recently developed phenomenon, in fact it is still

developing. Now right to privacy is passing through a most crucial era that is the
era of information and technology. Therefore I tried my best to bring about all that
factors which affecting this cherished right.

Modern media and privacy

The

development of the media in modern times has a special relevance to

the evolution of the law of privacy. The media has made it possible to bring the
private life of an individual into the public domain, thus exposing him to the risk of
an invasion of his space and his privacy. At a time when information was not so
easily accessible to the public, the risk of such an invasion was relatively remote. In
India, newspapers were, for many years, the primary source of information to the
public. Even they had a relatively limited impact, given that the vast majority of our
population was illiterate. This has changed with a growth in public consciousness, a
rise in literacy and perhaps most importantly, an explosion of visual and electronic
media which have facilitated an unprecedented information revolution. Advances in
computer technology and telecommunications have dramatically increased the
amount of information that can be stored, retrieved, accessed and collated almost
instantaneously. An enormous amount of personal information is held by various
bodies, both public and private - the police, the income tax department, banks,
insurance agencies, credit-rating agencies, stockbrokers, employers, doctors,
lawyers, marriage bureaus, detectives, airlines, hotels and so on. Till recently, this
information was held on paper; the sheer Vol. and a lack of centralization made it
hard to collate with the result that it was very difficult for one body or person to use
this information effectively. In the Internet age, information is so centralized and so
easily accessible that one tap on a button could throw up startling amounts of
information about an individual. This enables public authorities to keep a closer
watch over the individual.

It doesn't end with public authorities. There are other Big Brothers watching
everywhere.

Every time you log on to the Internet you leave behind an electronic trail. Websites
and advertising companies are able to track users as they travel on the Internet to
assess their personal preferences, habits and lifestyles. This information is used for
direct marketing campaigns that target the individual customer. Every time you use
your credit card you leave behind a trail of where you shopped and when, what you
bought, your brand preferences, your favorite restaurant.

Employee privacy is under siege: employers routinely use software to access their
employees' email and every move of the employee.

Field sales representatives have their movements tracked by the use of locationbased tracking systems in new wireless phones.

Technology blurs the traditional boundaries between systems. Techniques such

as data mining ensure that every bit of valuable information is extracted and
logged. Data matching enables linkages to be made between the contents of
previously uncorrelated databanks.

The move towards convergence will further blur traditional distinctions

between activities, technologies and regulatory schemes. Information obtained by
private agencies is used (and misused) not only by the private sector but is easily
accessed by public authorities. Police and tax authorities the world over are known
to rely on the private sector for information about suspects and tax evaders.
Seemingly innocuous information disclosed in a specific limited environment may be
collated and used in a completely unforeseen and startling context. 7 Coinciding with
this technological revolution is the imminent enactment of a law on freedom of
information. The Freedom of Information Bill, 1992 creates rights of access to
information relating to public affairs and proceeds on a presumption in favour of
openness. While the enactment of this Bill will provide for greater transparency in
public life, it will also bring into confrontation the right of the public to know and the
right of the individual to be left alone.
Technology and privacy
The law on privacy has not kept pace with technological development. Even
today, in no country does the right to privacy enjoy the status of a specific
constitutional right. Privacy law has evolved largely through judicial pronouncement.
As technology has advanced, the way in which privacy is protected and violated has changed
with it. In the case of some technologies, such as the printing press or the Internet, the increased ability to
share information can lead to new ways in which privacy can be breached.

The Internet has brought new concerns about privacy in an age where computers can
permanently store records of everything: "where every online photo, status update, Twitter post and blog
entry by and about us can be stored forever," writes law professor and author Jeffrey Rosen. [105]

This currently has an effect on employment. Microsoft reports that 75 percent of U.S. recruiters
and human-resource professionals now do online research about candidates, often using information
provided by search engines, social-networking sites, photo/video-sharing sites, personal web sites and
blogs, and Twitter. They also report that 70 percent of U.S. recruiters have rejected candidates based on
internet information.[106] This has created a need by many to control various online privacy settings in
addition to controlling their online reputations, both of which have led to legal suits against various sites
and employers.[107]

The ability to do online inquiries about individuals has expanded dramatically over the last
decade. Facebook for example, as of July 2010, was the largest social-networking site, with nearly
500 million members, or 22 percent of all Internet users, who upload over 25 billion pieces of
content each month. Twitter has more than 100 million registered users. The Library of
Congress recently announced that it will be acquiring and permanently storing the entire
archive of public Twitter posts since 2006, reports Rosen. [108]

According to some experts, many commonly used communication devices may be mapping every
move of their users. Senator Al Franken has noted the seriousness ofiPhones and iPads having the
ability to record and store users locations in unencrypted files, [109] although Apple denied doing so.

[110]

Andrew Grove, co-founder and former CEO of Intel Corporation, offered his thoughts on internet
privacy in an interview in 2000.[111]

Privacy is one of the biggest problems in this new electronic age. At the heart
of the Internet culture is a force that wants to find out everything about you. And
once it has found out everything about you and two hundred million others, that's a
very valuable asset, and people will be tempted to trade and do commerce with
that asset. This wasn't the information that people were thinking of when they
called this the information age.

Right to Information Act

The RTI Act was designed to promote transparency in government, not to

permit the invasion of the privacy of individuals who use government hospitals or
who altruistically participate in government-funded research. The Act generally does
not threaten the confidentiality of the doctor-patient or researcher-subject
relationship.

Under section 8(1) entitled "What is not open to disclosure", the Act says that
"(j) information which relates to personal information the disclosure of which has no
relationship to any public activity or interest, or which would cause unwarranted
invasion of the privacy of the individuals should not be disclosed." (7) In addition,
the same section stipulates that "(e) information available to a person in his
fiduciary relationship"-such as the relationship of a physician or researcher with a
patient or subject-should not be disclosed "unless a competent authority is satisfied
that the larger public interest warrants the disclosure of such information."

The Act does not grant others the right to request information about an individual that is
generated within fiduciary relationships, even if the doctor or researcher is a government employee and
the medical or research record is housed in a government institution, unless public interests outweigh the
individual`s interest in the privacy of the information. Thus, the degree to which the RTI Act threatens
patient or subject confidentiality depends greatly on what would count under the Act as a "public activity
or interest" and as an "unwarranted invasion" of privacy.

Sting Operations

Television channels have started a series of investigative attempts with

hidden cameras and other espionage devices. The advent of miniaturized audio and
video technology, specially the pinhole camera technology, enables one to
clandestinely make a video/audio recording of a conversation and actions of
individuals. Such equipment generally has four components-- the miniaturized
camera, often of a size of a 25 paisa coin or even smaller (pin top size), a miniature
video recording device, a cord to transmit the signals and a battery cell. The use of
the cord can be avoided through wireless transmissions.

In law enforcement, a sting operation is an operation designed to catch a

person committing a crime by means of deception. A typical sting will have a law-

enforcement officer or cooperative member of the public play a role as criminal

partner or potential victim and go along with a suspect's actions to gather evidence
of the suspect's wrongdoing. Now the moot question that arises is whether it is for
the media to act as the law enforcement agency!

The carrying out of a sting operation may be an expression of the right to free
press but it caries with it an indomitable duty to respect the privacy of others. The
individual who is the subject of a press or television item has his or her personality,
reputation or career dashed to the ground after the media exposure. He too has a
fundamental right to live with dignity and respect and a right to privacy guaranteed
to him under Article 21 of the Constitution.
Public Records on the Internet
Description of issue.
One of the hallmarks of our democracy is open government. Most
government agency and court records are considered "public" records, primarily so
"we the people" can monitor our government. In the past, individuals accessed
public records by traveling to the courthouse or to the government office and using
the records there, a time-consuming and often expensive task. In recent years,
however, a growing number of government agencies and court systems have made
these records available on the Internet.

Upon first consideration, it might be thought beneficial for government

records to be easily available to the public via the Internet. After all, our
government is supposed to be accessible to citizens.

But what happens when the full texts of divorce records are available to
anyone with an Internet connection, complete with sensitive financial data and
family histories?

What about access to an individual's criminal records of years gone by,

showing a crime for which the individual has long since paid his or her debt to
society, and which may have been legally expunged?

Will an employer have a forgiving attitude toward a 30-year-old whose

criminal record shows a conviction for shoplifting when the applicant was 19 years
of age?

Will an employer overlook a DUI conviction even after the individual has lived
free of alcohol for many years?

Is one's bankruptcy cause for negative value judgments by employers,

relatives and neighbors?

Should stalkers be able to locate their victims just because that person votes
or drives, thereby revealing the home addresses in public records?

Should identity thieves be able to pluck Social Security numbers, dates of

birth, and mothers' maiden names from public records posted on the Internet?

Looking ahead.

Unless we are somehow transformed into a tolerant society, our "transparent

society," to borrow a term from sci-fi writer David Brin, is going to pose significant
problems for a large number of individuals. The full texts of criminal and civil court
records, divorce decrees, bankruptcies, and more are slated to be available from
government and information broker websites. Employers are likely to use such
information to make adverse hiring decisions. Identity thieves will find their pot of
gold at the end of the rainbow simply by clicking a mouse. And neighbors and
relatives may learn more about us than we are comfortable with.

Georgetown University law professor Jeffrey Rosen wrote The Unwanted

Gazeabout just such a scenario. He explains the value of privacy protection as
follows:

Privacy protects us from being objectified and simplified and judged out of
context in a world of short attention spans, a world in which part of our identity can
be mistaken for the whole of our identity. (p.115)

There are several potential drawbacks for posting public records online,
especially the full texts of court records.

Fewer individuals will choose to participate in government in order to prevent

information about them from being posted on the Internet.

Many will choose not to seek justice through the court system. Justice will
only be available to those with the resources and know-how to seek private judicial
proceedings.

Individuals will experience shame and embarrassment, even discrimination,

when details of their personal lives are broadcast in court records available on the
Internet.

Reputations will be destroyed because of errors.

Data from electronic public records files will be used for secondary purposes
that stray far from the original public policy purposes for which they were first
created, that being government accountability.

A particularly troubling consequence of untrammeled access to electronic

public records is the loss of "social forgiveness." The 30 year-old who has turned his
life around might be judged harshly for his transgressions at age 19.

Our society will see a growing number of individuals who are disenfranchised
for life. Large numbers will not be able to find employment because of negative
information in court files - whether true or not - from years gone by. Or they will be
relegated to lower-paying jobs in the service industries.
The solution is not to ban public records altogether from the Internet. Instead,
records should be selectively redacted, for example, by removing Social Security
numbers and financial account data. Instead of publishing the full texts of sensitive
proceedings such as divorce cases, on the Internet, just the index information
should be published. Certain categories of case files, family court records for
example, should be available at the court house and not online. These and other
solutions must be sought in order to prevent the negative consequences of
publishing public records online, but without losing sight of the need for access to
public records in order to provide oversight of our government.

Financial Privacy

Description of issue.

As a result of the federal Financial Services Modernization Act, banks,

insurance companies, and brokerage firms are now able to affiliate with one another
under one corporate roof. This law, known as Gramm-Leach-Bliley (GLB) after its
sponsors, was implemented in 2001.

Credit card companies, banks, insurance companies, and brokerage firms

may share their respective databases with one another -- called affiliate sharing -but they cannot sell customer data to third parties without providing an opt-out
notice to their customers.

Looking ahead.

Unless legislation is passed at both the federal and state levels to strengthen
the Financial Services Modernization Act, the process of affiliate sharing will enable
these merged corporations to assemble customer data files of unprecedented
scope. Some financial institutions have more than 2,000 affiliates spanning a broad
array of businesses.

While "junk" mail, e-mail, and telemarketing solicitations are a likely result of
widespread affiliate sharing of customer data, privacy advocates are even more
concerned about the potential for harmful uses of data merging and data profiling:

Decisions on one's credit worthiness might hinge on medical information

gleaned from insurance company data.

A scam artist might use one's profile as a risk-taking investor to pitch getrich-quick schemes.

Elderly individuals with cash-rich portfolios could be vulnerable to fraud

artists' promises of lucrative returns on risky investments.
The GLB Act contains a provision that enables state legislatures to pass
stronger privacy provisions. Indeed, several states have debated privacy bills that
allow for an opt-in for third party data sharing, thereby setting the default at no
sharing unless the customer says "yes." In contrast, the GLB standard is opt-out.

The California legislature passed the Financial Information Privacy Act that
requires an opt in by customers before a financial institution can sell personal
information to third parties. Customers are given the ability to opt out of the
sharing
of
personal
information
with
company
affiliates.
Given the high percent of the population favoring strong privacy protection
-- 80% to 90% in most polls -- state legislatures and Congress are expected to
grapple with this issue for years to come. The financial services industry is likely to
exert considerable pressure on Congress to pass an amendment to GLB that
prohibits states from enacting stronger privacy measures.

Medical Records Confidentiality

Description of issue.

It is not an exaggeration to state that our video rental records have had more
privacy protection than our medical records in the past. The Clinton Administration's
Health and Human Services Department (HHS) attempted to rectify this situation by
developing privacy regulations as required by the passage of HIPAA, the Health
Insurance
Portability
and
Accountability
Act.
The HIPAA regulations, effective in April 2003, made significant strides for
American healthcare consumers, especially in requiring healthcare institutions to
give patients notice of their information practices, and in enabling individuals to
gain access to their own medical records. But some of the privacy provisions have
been rolled back due to pressure from the healthcare industry, in particular the
patient consent requirements. Consent is not required for information sharing
involved in treatment, payment, and operations.

During the first 5 years of HIPAA enforcement, HHS did not assess a single
civil penalty in response to well over 30,000 complaints. The agency claims to focus
on voluntary compliance and correction by covered entities.

In July 2008, for the first time since the privacy rules went into effect in 2003,
the HHS entered into a resolution agreement with a covered entity requiring the
organization to pay $100,000.

Looking ahead.

Most individuals consider their medical information to be among the most

sensitive of any information about them. And many are under the mistaken
impression that the Hippocratic oath still holds true today.

Whatsoever things I see or hear concerning the life of men, in my attendance

on the sick or even apart therefrom, which ought not be noised abroad, I will keep
silence thereon, counting such things to be as sacred secrets. Hippocrates,
4th Century B.C.

But in truth, one's medical information is an open book in our far-flung

healthcare system-from medical providers, to insurance companies, to self-insured
employers, to laboratories, and to payment companies, medical transcriptionists,
pharmacies and pharmacy benefits systems, government regulators, and more.

It remains to be seen whether HHS will depart from its current policy of
voluntary compliance and begin to take a more aggressive approach in enforcing
the HIPAA regulations.

Genetic Privacy

Description of issue.

Genetics is the science of differences and can be used to categorize people, stigmatize them, or
subject them to social or economic discrimination. Persons being tested aren't the only people with an
interest in the test results. Family members and potential mates, employers, insurers, the press and the
government all may desire information about a person's genetics. Hence, genetic information raises a
host of privacy issues.

The use of genetic data to discriminate in both employment and health insurance is of growing
concern to consumers, healthcare professionals, and policymakers alike. In 2001, U.S. News & World
Report reported that the railroad company Burlington Northern secretly conducted genetic tests on
employees who had filed worker's compensation claims for carpal tunnel syndrome. The company's
intention was presumably to be able to reject some claims because of genetic predisposition to the
condition, despite the fact that predisposition to this ailment is questionable. (Dana Hawkins, "The dark
side of genetic testing," U.S. News & World Report, Feb. 19, 2001).

Another key issue is determining when disclosure of genetic information should be permitted in
order to protect third parties from harm. For example, can a physician over a patient's objection reveal a
positive test result for an inherited disorder to the patient's children, on the ground that disclosure is
necessary to enable the children to protect themselves?

A number of states have enacted legislation to prohibit health insurers from collecting or using
certain types of genetic information, but this is not a complete solution. Most of these laws cover only
limited types of genetic information and apply only in limited settings. They also do not address the
problem of employment discrimination.

On the federal level, the Genetic Information Nondiscrimination Act of 2008 (GINA) was designed
to prohibit the improper use of genetic information for insurance and employment purposes. GINA
prohibits insurers from denying coverage to a healthy individual or charging that person higher premiums
based solely on a genetic disposition to developing a disease in the future. The legislation also bars
employers from using genetic information when making employment decisions. Unfortunately, the
legislation does not go far enough in enabling personal control over genetic testing results. For a more
detailed analysis of GINA.

Looking ahead.

Notwithstanding the potentially valuable information that genetic testing may provide, we must be
wary of the potential threat to our privacy. There are no simple solutions. As biotechnology and computer
technology advance, substantial privacy issues will continue to arise.

The challenge of protecting health information is compounded by the increasing reliance upon
digital data. Medical records are shifting from largely paper-based systems to electronic health records
(EHRs). Ultimately, a persons EHR may include all of their medical information from "cradle to grave." In
a paper-based system, privacy is mainly protected by fragmentation and chaos. Because the system is

fragmented, it can be difficult or impossible to compile an individuals records from multiple providers over
extended periods.

The number of genetic tests and the number of people taking them will increase significantly in
the coming years. EHRs will make it easier to disclose genetic information widely. As the U.S. and other
countries contemplate better ways to deal with genetic information, policymakers are seeing that
protecting privacy is neither cheap nor easy. Improved security measures can keep information from
being disclosed without authorization, but restricting the scope of authorized disclosures is equally
important. It is essential, and challenging, to decide which individuals and entities have a right to which
information and for what purposes.

Effective legislation should, at minimum, include four elements, according to experts. First, it
should address the underlying difficulties in gaining access to health insurance and carefully balance the
rights of employers and employees. Second, legislation should limit nonmedical uses of predictive health
information, including for life insurance, disability insurance and long-term care insurance. Third, any
legislation should limit the scope of disclosures, penalize wrongdoers and provide remedies for people
harmed by wrongful disclosures. And fourth, EHRs should be designed so that they can limit disclosures
to relevant health information. Tackling these matters will provide an effective first step toward shaping the
future of medical privacy. (Mark A. Rothstein, "Tougher Laws Needed to Protect Your Genetic Privacy",
Scientific American, August 19, 2008.

Chapter VII
RIGHT TO PRIVACY: RECENT CASES

Privacy-related issues have recently cropped up in a variety of cases, ranging from biographical
films to telephone-tapping to the right of confidentiality of an HIV-infected person.

Recent cases in India

In Kaleidoscope (India)(P) Ltd. v. Phoolan Devi[112] the trial Judge
restrained the exhibition of the controversial film Bandit Queen both in India and
abroad. The trial court reached a prima facie view that the film infringed the right to
privacy of Phoolan Devi, notwithstanding that she had assigned her copyright in her
writings to the film producers. This was upheld by the Division Bench. The Court
observed that even assuming that Phoolan Devi was a public figure whose private
life was exposed to the media, the question was to what extent private matters
relating to rape or the alleged murders committed by her could be commercially
exploited, and not just as news items or matters of public interest.

People's Union for Civil Liberties v. Union of India[113] involved a

challenge to Section 5(2) of the Telegraph Act, 1885 which permits the interception
of messages in cases of public emergency or in the interest of public safety. The
Supreme Court held that the right to privacy, which was part of the fundamental
right to life guaranteed under Article 21, included the right to hold a telephone
conversation in the privacy of one's home or office. It was held that telephonetapping, a form of "technological eavesdropping" infringed the right to privacy.
Finding that the Government had failed to lay down a proper procedure under
Section 7(2)(b) of the Act to ensure procedural safeguards against the misuse of the
power under Section 5(2), the Court prescribed stringent measures to protect the
individual's privacy to the extent possible.

Does the disclosure by a hospital of the medical condition of an AIDS patient

to his fianc amount to a breach of the patient's privacy? This question arose in Mr.
'X' v.Hospital 'Y'. The Supreme Court was confronted with the task of striking a
balance between two conflicting fundamental rights: the AIDS patient's right to life
which included his right to privacy and confidentiality of his medical condition, and
the right of the lady to whom he was engaged to lead a healthy life. The Supreme
Court concluded that since the life of the fiance would be endangered by her
marriage and consequent conjugal relations with the AIDS victim, she was entitled

to information regarding the medical condition of the man she was to marry. There
was, therefore, no infringement of the right to privacy.

This case may be compared with the English case, X v. Y[114], from the late eighties. A
newspaper reporter acquired information about two doctors practising in the National Health Service
despite having AIDS. The information was acquired from hospital records and was supplied by employees
of NHS. Despite the plaintiffs having obtained an injunction against the use of any confidential information
from hospital records, the second defendants, owners of a national newspaper published an article written
by the defendant reporter titled "Scandal of Docs with AIDS" and threatened to disclose the identity of the
doctors. While recognizing the public interest in having a free press and informed public debate, the Court
took the view that this was outweighed by the public interest that victims of AIDS should be able to resort
to hospitals without fear of disclosure and breach of confidence by employees of the hospital. The Court
felt that a breach of confidentiality would make patients reluctant to come forward for treatment and
counselling and this, in turn, would lead to a spread of the disease, which was contrary to public interest.
Even over ten years before the X v. Y[115]type of case arose before the Supreme Court in India, the
English Court showed far more zealousness in protecting the privacy of AIDS victims.

Most Recent Cases

IN THE SUPREME COURT OF INDIA

Decided On: 04.07.2011

Appellants: Ram Jethmalani and Ors.

Vs.
Respondent: Union of India (UOI) and Ors.[116]

Ratio Decidendi:

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. 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.

IN THE SUPREME COURT OF INDIA

Decided On: 11.05.2011

Appellants: Amar Singh

Vs.
Respondent: Union of India (UOI) and Ors.[117]

Case Note:

Constitution - Right to privacy - Respondent No. 7 was intercepted

Petitioner's conversation on phone by monitoring them and recording
them - Hence, this Petition - Whether, orders for interception was
unconstitutional - Held, affidavit filed by Petitioner in support of his
Petition, was not at all modeled either on order XIX Rule 3 of the Code of
Civil Procedure, or Order XI of the Supreme Court Rules, 1966 - Appellant
had to disclose his source of information so that other side got fair chance
to verify it - However, Appellants did not disclose any information on
which Appellants were founded - When matter had come up for contested

hearing, he withdrawn his allegations against Respondent No. 7 Moreover, Petitioner made statement that Anurag Singh edited and
tampered some of conversations of Petitioner - Petitioner also admitted
that he relied on information from same Anurag Singh to file detailed
affidavit in support of his Petition - Therefore, it appeared that Petitioner
was shifting his stand as per his convenience - It was no where mention
that Petitioner gave statement under Section 161 of Code of Criminal
Procedure in connection with investigation arising out of FIR lodged Therefore, it was clear that Petition was frivolous and was speculative in
character and it was attempt by Petitioner to mislead Court - Petition
dismissed.

Ratio Decidendi:

"Court shall protect right to privacy of individual only in accordance

with constitutional privileges."

RIGHT TO PRIVACY: AN ANALYTICAL OUTLOOK

As per my opinion right to privacy in existing society is a myth. Below
mentioned controversies are enough to establish that in this techno-friendly era this
right rarely survives.

Analysis of Right to Privacy Bill, 2011

The Government proposes to bring out a legislation that will provide
protection to individuals in case their privacy is breached through unlawful means.
For the purpose it is working on Right to Privacy Bill. The drafting of the legislation
is at a very preliminary stage and details of the legislation are yet to be finalized.
(Ministry of Personnel, Public Grievances & Pensions, Right to Privacy Bill, Release
ID: 74743)

 The full fledge analysis of Right to Privacy bill, 2011 is being provided in
the annexure attached to this project.

Ratan Tata and Neera Radia Controversy

Tata group chairman Ratan Tata moved the Supreme Court seeking to restrain
the broadcast and publication of purported conversations between him and lobbyist
Niira Radia who is under investigation in the 2G spectrum allocation case.

The petition, filed through corporate lawyer Ryan Karanjawala, said that the
tapes could be used for investigative purposes but should not be made public as it
infringed on his right to privacy.

This is possibly the first time a high-profile industrialist has moved the
Supreme Court seeking to protect his privacy. Actress Monica Bedi had earlier
moved the top court on this ground after her purported photographs in a prison
shower were published. The court had then restrained all publications from
publishing the photographs.

But in Tatas case, the tapes are already in public domain. At best, the court
can restrain any repeat publication of the transcripts of the tapes.

The tapes are part of the 5,851 calls intercepted allegedly by the income tax
department and the enforcement directorate as part of investigations into the 2G
scandal. Tatas petition may also prompt the government to take action to prevent
any more leaks. The government today ordered a probe to establish how the
contents of the tapes were leaked.

Tata has also demanded that the court direct the government to take action
against those who were responsible for the leaks.

The purported conversations give the impression that Tata was not too keen
on having DMK leader A. Raja as telecom minister, expressing his preference for
Dayanidhi Maran.

Tata Teleservices was one of the contenders for 2G licence and Radia handled
the companys public relations.

In his petition, Tata contended that intercepts of the conversations between

Radia and him violated his right to privacy.

The Supreme Court had earlier held that the right to privacy was part of the
right to life guaranteed by the Constitution. Tata said that the recorded
conversations should have been used for investigation alone and should not have
been published.

His petition said that he was not challenging the governments right to
investigate the 2G scam but only the unauthorized publication of the transcripts.

The Radia tapes feature purported conversations she had with several
journalists, politicians and industrialists, apparently trying to lobby for cabinet
berths for particular parties. The tapes have been circulating on the Web and have
been published by two magazines.

Raja has had to step down in the aftermath of the scam. The CBI has already
registered a case against unknown companies and individuals. However, the
Supreme Court has panned the agency for dragging its feet on the probe.

Reacting to Tatas petition, the counsel for the Centre for Public Interest
Litigation, an NGO that has called for court monitoring of the CBI probe, said he
would contest the Tata plea.

We are seriously considering filing an application in the Supreme Court to

ensure that there is no injunction against these tapes and these recordings are put
out in public domain, lawyer Prashant Bhushan said. These are not private
conversations. These are conversations between a lobbyist and her clients...
bureaucrats, journalists and ministers. These show glimpses of all kinds of fixing
and deal-making and show how the whole ruling establishment functions. There is

enormous public interest in putting these tapes out. It is absurd for Mr Tata to say
that this is an invasion of his privacy, he said.

Monika Bedi Controversy

The Supreme Court barred the possible telecast or publication of Bollywood

starlet Monica Bedi's photographs, allegedly shot surreptitiously during her stay in
the women's ward of Bhopal jail.

While banning the possible telecast of Bedi's "obscene" photographs, the

bench headed by Chief Justice K G Balakrishnan also directed the information and
broadcasting ministry to communicate the apex court order to various news
channels for compliance.

The bench, which included Justice Tarun Chatterjee and Justice R V

Raveendran, banned the possible publicising of Monica's photographs on her
petition, seeking court intervention to protect her right of privacy and right to life
with dignity.

The girlfriend of extradited mobster Abu Salem moved the apex court
through her counsel K T S Tulsi under Article 32 of the constitution, invoked when
the Fundamental Right of an individual is violated.

Bedi approached the court a day after Zee TV telecast her "objectionable and
obscene" photographs, which was released to the media by an opposition leader of
Madhya Pradesh.

A Congress leader of the state had released the photographs contending that
the security arrangement inside the Bhopal Jail was so fragile under the Bharatiya
Janata Party government in the state that one can even photographs women even
in the jail's bathroom.

Without acknowledging if Monica's photographs, allegedly shot in the jail with

hidden camera were genuine or morphed, Tulsi said that the possible telecast or
publication of these photographs would impinge upon his client's right to privacy
and her fundamental right to life which included the right to live with dignity.

In her petition, Bedi said that in case these photographs were found genuine
and were indeed shot with hidden camera, it called for a high level-probe into how it
was shot inside the jail.

"If the photographs are found to be genuine, the official responsible for the
security of the jail deserves to be dealt with sternly," Monica said in her petition.

She was acquitted by a Bhopal court in a passport forgery case on July 16 and
was released July 25 from a Hyderabad jail after getting bail from a court there in a
similar case.

Blackberry Controversy

Today BlackBerry caved in to the demands of the government and agreed to

install a server in India. It seems the Indian government is uncomfortable
with any kind of private communication. It wants to know everything and calls those
who disagree traitors.

Its shocking to see the support that the government has. Many have
congratulated the administration for being firm and not bowing down. As if
being an arrogant, overbearing jerk somehow validates your worth. This adolescent
prick waving by the government to show their strength only highlights its insecurity.
By telling me that everything I say and write has to be monitored, its asking me to
trust them completely. Is that even possible?

Its astounding how some people can criticize the government no end on one
hand, and at the same time demonstrate a touching degree of faith in Big Brother.
Hello split personality!

The Indian Supreme Court has ruled several times that privacy is a
Constitutional Right in India. Now were expected to believe that giving it up and
letting bureaucrats scan my life will bring me some sort of security. But will it? In
reality, the chances of me being killed in a terror attack are fifty time lesser
than being hit by lightning! So to prevent this miniscule number of deaths, the
citizens of a free country are expected to give up their right to confidential
communication? Its absurd on the very face of it.

Moreover, we should remind ourselves of Indias nature. Freedom comes with

risks. Im willing to take the risk of dying in a terrorist attack if Im allowed my civil
liberties. I dont want to hide away in closed rooms and have all my communications
monitored. Thats not life worth living. And when we became independent in 1947,
we decided to takethat risk.

India isnt a country for the feeble hearted. Its not a place where you can be
secure and get offended by every little thing. If you want foolproof security, go
to another country. Some ultra nationalists claim that the Indian government had
the right to demand concessions from BlackBerry because China and Saudi Arabia
had them. What a comparison! What proud company we keep

Lets remember the quote of Benjamin Franklin. One that has been
repeated very often these days and which is still ignored.

Those who would give up Essential Liberty to purchase a little

Temporary Safety, deserve neither Liberty nor Safety.

Naz Foundation Case[118]

The most significant development outside search and surveillance issues is

the new decision of the High Court of Delhi in the Naz Foundation Case (2 July
2009). The case was public interest litigation brought by the NGO, Naz Foundation

to challenge the constitutional validity of Section 377 of the Indian Penal Code, 1860
(IPC), which criminally penalizes what is described by the section heading as
unnatural offences (Whoever voluntarily has carnal intercourse against the order
of nature with any man, woman or animal ), therefore in the Courts
interpretation effectively criminalizing sex other than heterosexual penilevaginal.

The Delhi High Court initially dismissed the application as an academic

challenge, but was required by the Supreme Court in 2004 to re-examine the
matter.

The petitioners argued to the effect that the prohibition of certain private,
consensual sexual relations (homosexual) provided by Section 377 IPC
unreasonably abridges the right of privacy and dignity within the ambit of right to
life and liberty under Article 21 [which] can be abridged only for a compelling state
interest which, in its submission, is amiss here. As the Court noted A rather
peculiar feature of this case is that completely contradictory affidavits have been
filed by two wings of Union of India. The Ministry of Home Affairs (MHA) sought to
justify the retention of Section 377 IPC, whereas the Ministry of Health & Family
Welfare insisted that continuance of Section 377 IPC has hampered the HIV/AIDS
prevention efforts. The Court concluded that it is clear that the thrust of the
[MHAs] resistance to the claim in the petition is founded on the argument of public
morality. Though the MHA has referred to the issue of public health and healthy
environment, the affidavit has not set out elaborately the said defence.

The key passage in the Courts finding that Sec.377 breached the right of
privacy is:The sphere of privacy allows persons to develop human relations without
interference from the outside community or from the State. The exercise of
autonomy enables an individual to attain fulfillment, grow in self-esteem, build
relationships of his or her choice and fulfill all legitimate goals that he or she may
set. In the Indian Constitution, the right to live with dignity and the right of privacy
both are recognized as dimensions of Article 21. Section 377 IPC denies a person's
dignity and criminalizes his or her core identity solely on account of his or her
sexuality and thus violates Article 21 of the Constitution. As it stands, Section 377
IPC denies a gay person a right to full personhood which is implicit in notion of life
under Article 21 of the Constitution.

The Court then disposed of claims that this invasion of privacy was justified
within the

exception to Article 21: While it could be a compelling state interest to regulate by

law, the area for the protection of children and others incapable of giving a valid
consent or the area of

non-consensual sex, enforcement of public morality does not amount to a

compelling state interest to justify invasion of the zone of privacy of adult
homosexuals engaged in consensual sex in private without intending to cause harm
to each other or others.

it is not within the constitutional competence of the State to invade the

privacy of citizens lives or regulate conduct to which the citizen alone is concerned
solely on the basis of public morals. The criminalization of private sexual relations
between consenting adults absent any evidence of serious harm deems the
provision's objective both arbitrary and unreasonable. The state interest must be
legitimate and relevant for the legislation to be non-arbitrary and must be
proportionate towards achieving the state interest. If the objective is irrational,
unjust and unfair, necessarily classification will have to be held as unreasonable.

The nature of the provision of Section 377 IPC and its purpose is to
criminalize private conduct of consenting adults which causes no harm to anyone
else. It has no other purpose than to criminalize conduct which fails to conform with
the moral or religious views of a section of society. The discrimination severely
affects the rights and interests of homosexuals and deeply impairs their dignity.

In addition, the Court held that s377 violated Article 14 (equality before the
law) and its

more particular expression in Article 15 (prohibiting discrimination on the grounds of

sex). It found that sexual orientation is a ground analogous to sex, and that
discrimination on the grounds of sexual orientation violates Article 15. While some
constitutional rights are only of vertical application (against State actions), Article
15(2) incorporates the notion of horizontal application of rights. In other words, it
even prohibits discrimination of one citizen by another in matters of access to public
spaces. In our view, discrimination on the ground of sexual orientation is

impermissible even on the horizontal application of the right enshrined under Article
15.

The Court therefore held that s377 violated Articles 21, 14 and 15 of the
Constitution, insofar as it criminalizes consensual sexual acts of adults in private.
Because of the doctrine of

Severability, it will continue to govern non-consensual penile non-vaginal sex and

penile non-vaginal sex involving minors [under 18].

The Naz Foundation Case therefore takes the protection of privacy under the
Indian Constitution beyond issues of search and surveillance. The broadest
statement of the Delhi High Courts approach is where, following its review of Indian
case law to date on protection of privacy, it states The right to privacy thus has
been held to protect a private space in which man may become and remain
himself. The ability to do so is exercised in accordance with individual autonomy. If
such an expansive approach was adopted by the Indian Supreme Court, it is capable
of developing in the direction of something like the right to informational self
determination of the German Constitutional Court.

Recently chief minister of J&k taken the name of rape victim in the assembly
but before this matter get hyped he apologized .

conclusion
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.

The right to privacy in India has failed to acquire the status of an absolute
right. The right in comparison to other competing rights, like, the right to freedom of
speech & expression, the right of the State to impose restrictions on account of
safety and security of the State, and the right to information, is easily relinquished.
The exceptions to the right to privacy, such as, overriding public interest, safety and
security of the State, apply in most countries. Nonetheless, as the paper
demonstrates, unwarranted invasion of privacy by the media is widespread. For
instance, in the UK, Sweden, France and Netherlands, the right to photograph a
person or retouching of any picture is prohibited unlike, in India where press
photographers do not expressly seek consent of the person being photographed, if
he/she is in a public space. In France, not only is the publication of information is
prohibited on account of the right to privacy, but the method in which the
information is procured also falls within the purview of the right to privacy and could
be violative. This includes information or photograph taken in both public and
private spaces. Privacy within public spaces is recognized, especially, where there
is reasonable expectation of privacy. The Indian norms or code of ethics in
journalism fail to make such a distinction between public and private space. Nor do
the guidelines impose any restrictions on photographing an individual without
seeking express consent of the individual.

The Indian media violates privacy in day-to-day reporting, like overlooking the
issue of privacy to satisfy morbid curiosity. The PCI norms prohibit such reporting,
unless it is outweighed by genuine overriding public interest. Almost all the above
countries prohibit publication of details that would hurt the feelings of the victim or
his/her family. Unlike the UK, where the PCC can pass desist orders, in India the
family and/or relatives of the victims are hounded by the media.

In India, the right to privacy is not a positive right. It comes into effect only in
the event of a violation. The law on privacy in India has primarily evolved through
judicial intervention. It has failed to keep pace with the technological advancement
and the burgeoning of the 24/7 media news channels. The prevalent right to privacy
is easily compromised for other competing rights of public good, public interest
and State security, much of what constitutes public interest or what is private is
left to the discretion of the media

BIBLIOGRAPHY

BOOKS:

Seervai., H.M., Constitutional Law of India: A Critical Outlook, 3 rdEdition, Vol: 2,

2008.

Jain., M.P., Constitutional Law of India,6th Edn.,2010,Nagpur:lexis

nexis,butterwords.

Shukla., V.N., Constitution of India., 10 th Edition, Rd. by Singh., M.P.,ReprintMarch,2007, Eastern Book Company: Lucknow.

De., D.J., Interpretation and Enforcement of Fundamental Rights., Eastern Law

House: Kolkata, 2000.

ARTICLE:

THE SUBSTANTIVE RIGHT TO PRIVACY: TRACING THE DOCTRINAL SHADOWS OF

THE INDIAN CONSTITUTION by Abhinav Chandrachud

Cite as : (2006) 3 SCC (Jour) 31

THE RIGHT TO PRIVACY IN THE AGE OF INFORMATION AND COMMUNICATIONS

by Madhavi Divan

Cite as : (2002) 4 SCC (Jour) 1

PRIVACY AND THE RIGHT TO INFORMATION ACT, 2005 by N N Mishra, Lisa

Parker, L Nimgaonkar, S N Deshpande.

PRIVACY & MEDIA LAW

Posted by Prasad Krishna at Jul 19, 2011 05:35 PM | Permalink

Filed under: Publications, Internet Governance, Privacy

INTERNET:

http://www.google.co.in

http://www.wikipedia.com

http://www.practicallawyer.com

http://www.manupatra.com

---------

[1] (1994) 6 SCC 632, 649-50 R.Rajagopal v. State of Tamilnadu.

[2] AIR 1963 SC 1295
[3] (1975) 2 SCC 148
[4] There are also a few statutory provisions contained in the Code of Criminal Procedure
Section 327(1), the
Indecent Representation of Women (Prohibition) Act, 1980 (Sections 3
and 4), the Medical Termination of Pregnancy Act, 1971 Section 7(1)(c), the Hindu Marriage
Act, 1955 (Section 22), the Special Marriages Act, 1954 (Section 33), the Children Act, 1960
(Section 36), and the Juvenile Justice Act, 1986 (Section 36), all of which seek to protect
women and children from unwarranted publicity.
[5] This would include his family, marriage, procreation, motherhood, child-bearing,
education etc.
[6] Thornburgh v. American College of Obstetricians & Gynecologists, 476 US 747, 772
(1986).
[7] Gerety,
[8] Ibid.
[9] Bostwick,.
[10] Daniel J. Solove, "Conceptualizing Privacy", (2002) 90 CAL. L. REV. 1087, 1088
(hereinafter Solove).
[11] Griswold v. Connecticut, 381 US 479, 485 (1965)
[12] The early Indian privacy cases dealt exclusively with police surveillance of habitual
criminals. See e.g. Kharak Singh v. State of U.P., AIR 1963 SC 1295 (challenging Chapter XX
of the U.P. Police Regulations which placed possible criminals under
surveillance); Gobind v. State of M.P., (1975) 2 SCC 148 (challenging the validity of
Regulations 855 and 856 of the M.P. Police Regulations, which permitted the police to keep
an uncomfortable surveillance on individuals suspected of perpetrating crime).
[13] The Fourth Amendment of the US Constitution provides a safeguard from
unreasonable search and seizure, and no search can be carried out without a warrant issued
on probable cause. The Supreme Court has not allowed Fourth Amendment developments to
percolate into the Indian Constitution. See M.P. Sharma v. Satish Chandra, AIR 1954 SC 300
(rejecting the premise that search and seizure violates the principle of self-incrimination
embedded in Article 20(3) of the Constitution). But see District Registrar and
Collector v. Canara Bank, (2005) 1 SCC 496 (finding the Andhra Pradesh Amendment to
Section 73 of the Stamp Act, 1899, to be unconstitutional since it permitted search and
seizure on private premises). See infra I.B.2. Search and Seizure: The Fourth Amendment.
[14] Security Recommendations for Stalking Victims.
[15] Kyllo v US.,121 US 354 (2003).
[16] (1994) 6 SCC 632, 649-50.

[17] Privacy in the Digital Environment , Haifa Center of Law & Technology, (2005) pp. 1-12.
[18] Ibid.
[19] There are also a few statutory provisions contained in the Code of Criminal Procedure
Section 327(1), the Indecent Representation of Women (Prohibition) Act, 1980 (Sections 3
and 4), the Medical Termination of Pregnancy Act, 1971 Section 7(1)(c), the Hindu Marriage
Act, 1955 (Section 22), the Special Marriages Act, 1954 (Section 33), the Children Act, 1960
(Section 36), and the Juvenile Justice Act, 1986 (Section 36), all of which seek to protect
women and children from unwarranted publicity.
[20] This would include his family, marriage, procreation, motherhood, child-bearing,
education etc.
[21] (1994) 6 SCC 632, 649-50.
[22] Ironically, it was by borrowing from the English case-law and creatively interpreting it
that the law in America developed. And yet, the law of privacy in England has lagged far
behind, inviting serious criticism from commentators.
[23] (1849) 1 Mac & G 25 : 41 ER 1171
[24] (1991) FSR 62
[25] Hopefully, the Human Rights Act in 1998 which imposes a positive obligation to act in
accordance with the European Convention on Human Rights will have a positive effect on
the development of the law in the U.K.
[26] 4 Harv L Rev 193.
[27] 381 US 479 (1965)
[28] Roe v. Wade, 410 US 113 (1973).
[29] See Meyer v. Nebraska, 262 US 390 (1923); Pierce v. Society of Sisters, 268 US 510
(1925); Prince v. Massachusetts, 321 US 158 (1944).
[30] Carey v. Population Services International, 431 US 678, 685 (1977). See
also Washington v. Glucksberg, 521 US 702 (1997) (dealing with the question of autonomy
and suicide).
[31] See supra fn 14.
[32] Bowers v. Hardwick, 478 US 186, 204 (1986) (Blackmun, J. dissenting).
[33] 381 US 479 (1965)
[34] Ibid., at 485-86
[35] 405 US 438 (1972)
[36] Ibid., at 453

[37] 410 US 113 (1973)

[38] Ibid., at 153
[39] 492 US 490 (1989)
[40] 100 505 US 833 (1992)
[41] 101 Ibid., at 852
[42] Ridder & Woll, supra fn 88 and 78.
[43] 388 US 1 (1967)
[44] 478 US 186 (1986)
[45] 539 US 558 (2003)
[46] Ibid., at 562
[47] 316 US 535 (1942)

[48]

Ibid

[49] 394 US 557 (1969)

[50] AIR 1978 sc 597.
[51] The early Indian privacy cases dealt exclusively with police surveillance of habitual
criminals. See e.g. Kharak Singh v. State of U.P., AIR 1963 SC 1295 (challenging Chapter XX
of the U.P. Police Regulations which placed possible criminals under
surveillance); Gobind v. State of M.P., (1975) 2 SCC 148 (challenging the validity of
Regulations 855 and 856 of the M.P. Police Regulations, which permitted the police to keep
an uncomfortable surveillance on individuals suspected of perpetrating crime)
[52] The Fourth Amendment of the US Constitution provides a safeguard from
unreasonable search and seizure, and no search can be carried out without a warrant issued
on probable cause. The Supreme Court has not allowed Fourth Amendment developments to
percolate into the Indian Constitution. See M.P. Sharma v. Satish Chandra, AIR 1954 SC 300
(rejecting the premise that search and seizure violates the principle of self-incrimination
embedded in Article 20(3) of the Constitution). But see District Registrar and
Collector v. Canara Bank, (2005) 1 SCC 496 (finding the Andhra Pradesh Amendment to
Section 73 of the Stamp Act, 1899, to be unconstitutional since it permitted search and
seizure on private premises). See infra I.B.2. Search and Seizure: The Fourth Amendment
[53] Solove.
[54] AIR 1963 SC 1295
[55] Ibid., at 1303
[56] Ibid., at 1306

[57] (1975) 2 SCC 148

[58] Ibid., at 150
[59] Ibid., at 156.
[60] Ibid., at 157.
[61] (1981) 1 SCC 420
[62] (1978) 4 SCC 494. For more discussion on the topic, See Richard Gruner, "Government
Monitoring of International Electronic Communications: National Security Agency Watch List
Surveillance and the Fourth Amendment", (1978) 51 S. CAL. L. REV. 429; Mark Jonathon Blitz,
"Video Surveillance and the Constitution of Public Space: Fitting the Fourth Amendment to a
World that Tracks Image and Identity", (2004) 82 TEX. L. REV. 1349
[63] (1997) 1 SCC 301. It must be noted that surveillance does not merely refer to physical
surveillance. It has been defined as a "police investigative technique involving visual or
electronic observation or listening directed at a person or place". See Black's Law
Dictionary, (5th Edn., 1979) p. 1296. It therefore follows that "telephone-tapping" is a form
of surveillance. See also V.R. Krishna Iyer, Freedom of Information, (1990), p. 129
[64] Ibid., at 311. See also R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 471 (stating
that evidence obtained by telephone-tapping could be used in a court of law).
[65] "Nor shall (any person) be compelled in any criminal case to be a witness against
himself...." (sic). See generally Boyd v. United States, 116 US 616 (1886) (considering the
seizure of 35 cases of plate glass by the Collector); Weeks v. United States, 232 US 383
(1914) (considering the seizure of papers by the police, which showed the accused to have
sent lottery tickets through the mail); Olmstead v. United States, 277 US 438 (1928)
(Brandeis, J. dissenting that it would be a lesser evil for criminals to go free than for the
Government to "play an ignoble part" by tapping phone conversations); Katz v. United
States, 389 US 347 (1967) (finding that tapping into a telephone conversation would amount
to a search and seizure and all the Fourth Amendment safeguards would
apply); Terry v. Ohio, 392 US 1 (1968) (considering a confrontation on the street between a
policeman and citizens to amount to a search and seizure); Stanley v. Georgia, 394 US 557
(1969) (finding that the State had no business to tell a man what books to read in the
privacy of his home). However, a particular author finds these developments to be "initially
plausible but ultimately misguided": Akhil Reed Amar, "Fourth Amendment First Principles",
(1994) 107 HARV. L. REV. 757. See also Carol S. Steiker, "Second Thoughts About First
Principles", (1994) 107 HARV. L. REV. 820 (justifying the principles of the Fourth Amendment
on the grounds that "individual liberties entail social costs").
[66] 1954 SCR 1077 : AIR 1954 SC 300. See also R.M. Malkani v. State of Maharashtra, (1973) 1 SCC
471, supra fn 46

[67] Ibid., AIR at 304-06. The Supreme Court considered the decision of the US Supreme Court
in Boyd v. United States, 116 US 616 (1886), and found that (SCR p. 1091): "what that decision really
established was that the obtaining of incriminating evidence by illegal search and seizure is
tantamount to the violation of the Fifth Amendment"

[68]

Supra fn 48, AIR at 306

[69]

(2005) 1 SCC 496. See also ITO v. Seth Bros., (1969) 2 SCC 324 (dealing with a similar question regarding
Section 132 of the Income Tax Act, 1961).

[70]

Ibid., at 515

[71]

Ibid., at 525

[72]

Ibid., at 523

[73]

(1992) 1 SCC 286

[74]

Ibid., at 288. (a) Are you married-Yes (b) If so, please state: (i) Your husband's name in full and occupation;
(ii) State the number of children, if any, and their present ages; (iii) Have the menstrual periods always been regular
and painless and are they so now? (iv) How many conceptions have taken place? How many have gone full term?
(v) State the date of last menstruation; (vi) Are you pregnant now? (vii) State the date of last delivery; (viii) Have
you had any abortion or miscarriage?

[75]

Ibid., at 289

[76]

(2003) 4 SCC 493

[77]

Ibid., at 523

[78]

(1994) 6 SCC 632

[79] 376 US 255 (1964) (permitting the criticism of official conduct).

[80] 385 US 374 (1967) (finding no fault to lie as long as the statement was not made with
actual malice, with knowledge that it was false, or with reckless disregard of whether it was
false or not)
[81] (1994) 6 SCC 632, 649-50
[82] (1975) 2 SCC 148, (finding that "Any right to privacy must encompass and protect
the personal intimacies of the home, the family, marriage, motherhood, procreation and
child-rearing"). See supra I.B.1. Surveillance
[83] Incidentally, the US Supreme Court has defined the right as that of marriage,
procreation, contraception (as opposed to "motherhood"), family relationships, child
"rearing" as opposed to child "bearing" and education
[84] (1994) 6 SCC 632, 650
[85] (2003) 4 SCC 399. For a discussion on the first PUCL case see supra I.B.1. Surveillance
[86] Ibid., at 471
[87] (2004) 9 SCC 580
[88] Ibid., at 603
[89] (2004) 2 SCC 476

[90] Ibid., at 479

[91] Kesavananda Bharati v. Union of India, (1973) 4 SCC 225, 873 (Mathew, J.). For
definitions of marriage by the US Supreme Court, seeSkinner v. Oklahoma, 316 US 535, 541
(1942); Griswold v. Connecticut, 381 US 479, 486 (1965); Loving v. Virginia, 388 US 1, 12
(1967)
[92] This decision is subject to a minimum prescription imposed by the State.
[93] The State can enumerate prohibited relations, in order to prevent persons of the same
family from marrying one another. The decision cannot however be made on the
consideration of dowry.
[94] The State can impose a restriction on the number of persons one can marry,
depending upon the collective conscience of a society.
[95] This question cannot be based upon any considerations of the sex of the child,
particularly when the child in the womb is a female, in order to prevent manifestations of
female infanticide.
[96] The State can impose restrictions on the maximum number of children one can have
depending upon the population policy
[97] This decision should not be confused with whether to educate the child at all, which is
not in the hands of the parents, but rather, in the hands of the State as parens patriae. This
right is also subject to child labour laws.
[98] Susan P. Stuart, "Fun with Dick and Jane and Lawrence: A Primer on Education Privacy
as Constitutional Liberty", (2004) MARQ. L. REV. 563, 565
[99] While appearance, habits, income, personality, etc. may all be factors which determine
consent, medical ailments (e.g. whether a person is a lunatic, etc.) can fundamentally affect
this decision. The Hindu Marriage Act, 1955 states that when a person is unable to consent
to marriage, owing to lunacy, etc., no marriage can take place
[100] Supra fn 76-81
[101] (1998) 8 SCC 296.
[102] Ibid., at 306
[103] Ibid., at 308
[104] Ibid., at 308
[105] Rosen, Jeffrey. "The Web Means the End of Forgetting" New York Times, July 19, 2010
[106] Ibid.
[107] Ibid.
[108] Ibid.

[109] Popkin, Helen A.S., "Gov't officials want answers to secret iPhone tracking" MSNBC,
"Technology", April 21, 2011
[110] "Apple denies tracking iPhone users, but promises changes", Computerworld, April
27, 2011
[111] "What I've Learned: Andy Grove", Esquire magazine, May 1, 2000
[112] AIR 1995 Del 316
[113] (1997) 1 SCC 301

[114] Interestingly, although the identity of the parties was concealed, a law journal which
first reported the judgment disclosed the names of the parties. This was subsequently
rectified by the publication of an apology and the rectification of names. But the damage to
the privacy of those concerned had already been done.
[115] (1988) 2 All ER 648.

[116] MANU/SC/0711/2011.

[117]

MANU/SC/0596/2011.

[118]
Posted by SHYAM NATH SAH at 08:16

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