Fundamental Right to Privacy: Does it exist?

Right to privacy debate

Whether citizens of India have a fundamental right of privacy?

The controversy about right to privacy has been argued in a larger constitution bench of nine judges and judgement has been reserved. But what exactly is the controversy?

The fourth Amendment in the Constitution of USA provide following clause:

The right of the people to be secure in their persons, 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.

Constitution of India has no such clause but in some of the cases the right to privacy has been read into the right to life because the life means a meaningful life and not merely an animal existence. Thus to make life more than animal existence, privacy is held to be part of right to life guaranteed by article 21 o Constitution of India, which is as under:

No person shall be deprived of his life or personal liberty except according to procedure established by law.

In 1950’s allegations were made against management of a company that it had siphoned out large funds from the company and thereafter threw it into liquidation. Criminal cases were registered. Affairs of company were investigated and a search and seizure operation was carried out. This search and seizure was challenged in Supreme Court on various grounds. Infringement of article 19(1)(f) (now article 300-A) relating to right to hold property was out rightly dismissed by the 8 Judges Constitutional Bench. As regards search and seizure, it was observed:

“It is, therefore, impossible to derive from Boyd’s case (116 U.S. 616.), support for the proposition that searches and seizures, in general, are violative of the privilege of protection against self-incrimination. Nor is it possible to import that doctrine with its differentiation between legal and illegal searches into our Constitution because we have nothing in our Constitution corresponding to the Fourth Amendment enabling the courts to import the test of unreasonableness or any analogous criterion for discrimination between legal and illegal searches. ……….

…….A notice to produce is addressed to the party concerned and his production in compliance therewith constitutes a testimonial act by him within the meaning of article 20(3) as above explained. But search warrant is addressed to an officer of the Government, generally a police officer. Neither the search nor the seizure are acts of the occupier of the searched premises. They are acts of another to which he is obliged to submit and are, therefore, not his testimonial acts in any sense…….

A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. 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”

[Source: M.P. Singh v. Satish Chandra, AIR 1954 SC 300, page 306 para 18]

In a subsequent case involving use of surveillance on the ground that the person had propensity to crime. Kharak Singh was unsuccessfully prosecuted in a case of dacoity in 1941 but was released under s. 169, Criminals Procedure Code as there was no evidence against him. On the basis of the accusation made against him he states that the police have opened a “historysheet” in regard to him. Regulation 228 which occurs in Ch. XX of the Police Regulations defines “history-sheets” as “the personal records of criminals under surveillance”. As a result of this frequently the watch man of the village and sometimes police constables enter his house, knock and shout at his door, wake him up during the night and thereby disturb his sleep. On a number of occasions they have compelled him to get up from his sleep and accompany them to the police station to report his presence there. When the petitioner leaves his village for another village or town, he has to report to the watchman of the village or at the police station about his departure.

“ “life” in the 5th and 14th Amendments of the U. S. Constitution corresponding to Art. 21, means not merely the right to the continuance of a person’s animal existence, but a right to the possession of each of his organs-his arms and legs etc. We do not entertain any doubt that the word “‘life” in Art. 21 bears the same signification…….an unauthorised intrusion into a person’s home and the disturbance caused to him thereby, is as it were the violation of a common law right of a man -an ultimate essential of ordered liberty, if not of the very concept of civilization. An English Common Law maxim asserts that “every man’s house is his castle” and in Semayne’s case (1), where this was applied, it was stated that ,the house of everyone is to him as his castle and fortress as well as for his defence against injury and violence as for his repose”. We are not unmindful of the fact that Semayne’s case was concerned with the law relating to executions in England, but the passage extracted has a validity quite apart from the context of the particular decision. It embodies an abiding principle- which transcends mere protection of property rights and expounds a concept of “personal liberty” which does not rest on any element of feudalism or on any theory of freedom which has ceased to be of value……..In our view cl. (b) of Regulation 236 is plainly violative of Art. 21’ and as there is no “law” on which the same could be justified it must be struck down as unconstitutional.

… Having given the matter our best consideration we are clearly of the opinion that the freedom guaranteed by Art. 19 (1) (d) is not infringed by a watch being kept over the movements of the suspect. Nor do we consider that Art. 21 has any relevance in the context as was sought to be suggested by learned counsel for the petitioner. As already pointed out, the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movement 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.”

[Source: Kharak Singh v. State of U.P. , AIR 1963 SC 1295, page 1303 para 20]

Relying upon above authorities it is contended that right to privacy recognized in following cases by smaller benches of Supreme Court is wrong. The case of Gobind v. State of M.P., [ AIR 1975 SC 1378, 1975 CriLJ 1111, (1975) 2 SCC 148, 1975 3 SCR 946.] was also in respect of domiciliary visit by Police and after referring to cases from around the globe in respect of human dignity and privacy as also the aforesaid case of Kharak Singh, it gave no relief while holding as under:

” ……..privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior. If the Court does find that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling State interest test. ….Depending on the character and antecedents of the person subjected to surveillance as also the objects and the limitation under which surveillance is made, it cannot be said surveillance by domiciliary visits would always be unreasonable restriction upon the right of privacy. Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right, that fundamental right must be subject to restriction on the basis of compelling public interest. As regulation 856 has the force of law, it cannot be said that the fundamental right of the petitioner under Article 21 has been violated by the provisions contained in it: for, what is guaranteed under that Article is that no person shall be deprived of his life or personal liberty except by the procedure established by ‘law’. …….A comparatively short period of surveillance, if effectively maintained, should suffice either to show that the suspicion of criminal livelihood was unfounded, or to furnish evidence justifying a criminal prosecution, or action under the security sections. District Superintendents and their assistance should go carefully through the histories of persons under surveillance during their inspections, and remove from the register the names of such as appear to be earning an honest livelihood. Their histories will there upon be closed and surveillance discontinued. In the case of person under surveillance who has been lost sight of and is still untraced, the name will continue on the register for as long as the District Superintendent considers necessary.

It may be noted from above that the above case did not conclusively decide about privacy but went with assumption of it. In another case the question arose whether Publisher has a right to publish a manuscript of a convict which may deface Prison Officers and this impinge their dignity? In this regard it was observed:

“………We may now summarise the broad principles flowing from the above discussion:

(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, child-bearing 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. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.

(2)The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interests of decency [Article 19(2) an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised in press/media. (3)There is yet another exception to the rule in (1) above

– indeed, this is not an exception but an independent rule. In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable for damages. It is equally obvious that in matters not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen, as explained in (1) and (2) above. It needs no reiteration that judiciary, which is protected by the power to punish for contempt of court and Parliament and legislatures protected as their privileges are by Articles 105 and 104 respectively of the Constitution of India, represent exceptions to this rule.

(4)So far as the Government, local authority and other organs and institutions exercising governmental power are concerned, they cannot maintain a suit for damages for defaming them.

(5)Rules 3 and 4 do not, however, mean that Official Secrets Act, 1923, or any similar enactment or provision having the force of law does not bind the press or media.

(6)There is no law empowering the State or its officials to prohibit, or to impose a prior restraint upon the press/media.”

[Source: R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632 (popularly known as Auto Shanker’s case)]

Next case is wire tapping of phones. In USA, a judicial warrant is required to tap the phone. In India denying need of judicial warrant to tap the phone it was hawkishly conceded as under:

We, therefore, order and direct as under:

1. An order for telephone-tapping in terms of Section 5(2) of the Act shall not be issued except by the Home Secretary, Government of India (Central Government) and Home Secretaries of the State Governments. In an urgent case the power may be delegated to an officer of the Home Department of the Government of India and the State Governments not below the rank of Joint Secretary. Copy of the order shall be sent to the Review Committee concerned within one week of the passing of the order.

2. The order shall require the person to whom it is addressed to intercept in the course of their transmission by means a public telecommunication system, such communications as are described in the order. The order may also require the person to whom it is addressed to disclose the intercepted material to such persons and in such manner as are described in the order.

3. The matters to be taken into account in considering whether an order is necessary under Section 5(2) of the Act shall include whether the information which is considered necessary to acquire could reasonably be acquired by other means.

4. The interception required under Section 5(2) of the Act shall be the interception of such communications as are sent to or from one or more addresses, specified in the order, being an address or addresses likely to be used for the transmission of communications to or from, from one particular person specified or described in the order or one particular set of premises specified or described in the order.

5. The order under Section 5(2) of the Act shall, unless renewed, cease to have effect at the end of the period of two months from the date of issue. The authority which issued the order may, at. any time before the end of two month period renew the order if it considers that it is necessary to continue the order in terms of Section 5(2) of the Act. The total period for the operation of the order shall not exceed six months.

6. The authority which issued the order shall maintain the following records:

(a) the intercepted communications,

(b) the extent to which the material is disclosed,

(c) the number of persons and their identity to whom any of the material is disclosed.

(d) the extent to which the material is copied and

(e) the number of copies made of any of the material.

7. The use of the intercepted material shall be limited to the minimum that is necessary in terms of Section 5(2) of the Act.

8. Each copy made of any of the intercepted material shall be destroyed as soon as its retention is no longer necessary in terms of Section 5(2) of the Act.

9.There shall be a Review Committee consisting of Cabinet Secretary, the Law Secretary and the Secretary, Telecommunication at the level of the Central Government. The Review Committee at the State level shall consist of Chief Secretary, Law Secretary and another member, other than the Home Secretary, appointed by the State Government.

(a) The Committee shall on its own, within two months of the passing of the order by the authority concerned, investigate whether there is or has been a relevant order under Section 5(2) of the Act. Where there is or has been an order whether there has been any contravention of the provisions of Section 5(2) of the Act.

(b) If on an investigation the Committee concludes that there has been a contravention of the provisions of Section 5(2) of the Act, it shall set aside the order under scrutiny of the Committee. It shall further direct the destruction of the copies of the intercepted material.

(c) If on investigation, the Committee comes to the conclusion that there has been no contravention of the provisions of Section 5(2) of the Act, it shall record the finding to that effect.”

[Source: People’s Union for Civil Liberties (PUCL) v. Union of India, (1997) 1 SCC 301.]

It is interesting to see that in all these cases refer to observations of Field J. in Munn v. Illinois (1877) 94 U.S. 113, 142 to decide that privacy is part of human dignity and yet have not conclusively held that privacy is absolute right. In Gobind’s case above interest of society is again held to be superior to the individual rights.

The decision on Aadhar Card and infraction of privacy but in my view it is going to be another Luke warm decision. Privacy and its infringement to be tested in each case. As regards Adhar Card, some directions may be given to ensure that data base is not leaked. There will be no going back on technology. The beast will stay and thrive. The case title of Adhar Card case is Justice K.S.Puttaswamy(Retd)  vs Union Of India.

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