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Deep Dive Into The History Of The Right To Privacy In India

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The aim of this piece is to take the readers through the development of the right to privacy in India, through the prism of different avenues attached to it, and what lies ahead of us in respect of this right.

The concept of privacy is not alien to Indian society. The difference between public and private (baahar and ghar) has existed since the advent of Indian civilisation.

“Ladies Of The Zenana On A Roof Terrace” by Ustaad (master) Ruknuddin. Zenana refers to a part of the house meant exclusively for the women of the house. Representational image. Photo credit: queerarthistory.com

Privacy is difficult to define due to the variations in the context in which different societies perceive privacy, but the first attempt to formally define privacy was made in 1890, by Warren and Brandeis through an article published in Harvard Law Review, titled: “Right to Privacy”, in which they defined right to be left alone as privacy.

Furhter, they advocated for the right to be declared as a separate right due to change in the society due to technological advancements.

Right to Privacy in India

Hindu texts: The concept of privacy can be traced back to the Dharmashastras and ancient texts like the “Hitopadesha”, where it is specifically mentioned that certain matters in relation to worship, family, and sex should be protected from disclosure.

There is a famous saying articulated by lawmakers at that point in time: “sarvas swe swe grihe raja” (every man is a king in his own house). Thus, essentially inculcating the difference between public and private.

It laid emphasis on the personal autonomy of a person (more specifically, a man) within his household and that of being left alone.

The colonial period: The concept of privacy was refurbished from ancient times through the Constitution of India Bill (1895 ), in one of the first attempts at constitution-making by Indians.

It mentions that every citizen has in his house inviolable asylum. Then came the Commonwealth of India bill (1925) which advocated for no interference in an individual’s dwelling, without the due process of law being adhered to.

The Indian constitution: During the debates that took place during the drafting of the constitution, the matter of privacy came up and Dr BR Ambedkar advocated for the right.

He observed that:

“The right of the people to be secure in their persons, house, 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 in the state and Minority Report.”

But, there was a difference of opinion among the members of the assembly on privacy being inculcated as a fundamental right. Stalwarts like BN Rau, AK Ayyar, MK Panikkar and Alladi Krishnaswami Ayyar strongly opposed this proposal, as they felt the right would interfere with investigative powers of the police authorities.

Therefore, the right to privacy was not inculcated in the list of fundamental rights of the Indian constitution.

Advent Of The Constitution

This section deals with a plethora of cases that were dealt with by the Supreme Court on  different aspects of privacy before declaring it to be a fundamental right.

Status of privacy as a ground against search and seizure –

P Sharma v Satish Chandra: In this case, a warrant was issued under section 96(1) of the Code of Criminal Procedure to search the premises of the Dalmia group, who were allegedly being charged for fraud and other allied offences.

The Dalmia’s group challenged the search warrant on the premise of being violative of Article 20(2) of the constitution against self-incrimination where the court held that search cannot be held to be self-incriminated and observed that:

“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.”

Thus, the court upheld the right of search and seizure; and held that invocation of privacy against search and seizure is not available.

 Status of privacy and state surveillance – 

Kharak Singh v State of Uttar Pradesh: Under this case, Kharak Singh was charge-sheeted in case of dacoity and was later released due to lack of evidence. But, the police put him under surveillance under chapter XX of the UP police regulations.

Representational image. Photo credit: ipleaders.in

Surveillance involved secret picketing of the house or approaches to the house of the suspects, domiciliary visits at night, periodical inquiries by officers not below the rank of sub-inspector into repute, habits, association, income, expenses, and occupation of the accused.

The petitioner challenged these provisions as an infringement to his fundamental right under Article 19 (1)(f) and Article 21. The court ruled against domiciliary visits by the police regulations, but held that there is no right of privacy enshrined in the constitution.

Justice Subba Rao dissented and held that privacy is part and parcel of personal liberty that is enshrined under Article 21 of the constitution. Thus, the Supreme Court conveyed that privacy is not a constitutional right and authorised state surveillance.

Govind v State of Madhya Pradesh: Similar to the Kharak Singh case, surveillance orders authorized under rules 855 and 866 of Madhya Pradesh police regulations formulated by the Government against Police Act, 1961.

The court in this particular case ruled privacy to be associated with personal liberty and freedom of movement emanating from Article 19 and 21 of the constitution but also observed that it would be against judicial discipline to declare the right in broad terms that is explicitly not mentioned in the constitution.

The court upheld that right of privacy pervades in the constitution, though not explicitly mentioned, but cannot be given a broad definition and will be examined on a case-to-case basis. The problem that arose was that it could not overrule the decision rendered in MP Sharma Case as it was an 8-judge-bench decision and this was a 3-judge-decision.

The court upheld surveillance owing to the fact that the petitioner is a habitual offender and surveillance can be construed as a reasonable restriction.

Status of mental privacy –

Selvi v State of Karnataka: In this case, techniques such as narco-analysis, polygraph examination, and the Brain Electrical Activation Profile (BEAP), that force an individual to incriminate themselves, were challenged. The court for the first time established a relationship between article 20 (3) and privacy.

The court held that criminal law allows the authorities to invade the physical privacy of individuals by conducting interrogations and an individual has a choice to respond to the questions posed by the investigation authorities.

The same cannot be allowed when an individual cannot accord his consent during the tests such as of narco-analysis, polygraph analysis, and brain mapping techniques.

The court held that the state cannot be allowed to enter into the brains of individuals and gather information. The court upheld the right to mental privacy and prohibited the state to use these techniques.  ·

 Status of informational privacy –

R Rajagopal v State of Tamil Nadu: In this case, the petitioners were looking to publish the autobiography of auto Shankar, a serial killer lodged in prison that revealed his connection with several state authorities.

The inspector general of police issued a warning that the convict hadn’t written his autobiography and if published legal action would ensue. The issue arose whether any person writing a biography of a person without their consent, would it infringe their right of privacy?

The court opined that it would be an infringement of privacy if something is published in relation to an individual’s private affairs without their consent.

However, the court created an exception that if something is published from the public record in relation to an individual: that would not be considered an infringement of privacy.

 Status of privacy and health –

Mr X v Hospital Z: In this case, the hospital leaked the confidential information that the petitioner was suffering from Aids which led to his marriage being called off.

The court held that the petitioner had the right to confidentiality in relation to his heath records, but in the present case it was not violated as the information was released in public interest, so that the fiancé of the petitioner was informed about the communicable disease that her to be partner was suffering from.         

Modern Developments Vis-À-Vis Privacy

Privacy as a fundamental right –

Justice KS Puttaswamy (retd.) v Union of India: In a landmark judgment delivered in 2017, the Supreme Court cleared the confusion regarding the status of the right to privacy by ruling that it is a fundamental right emanating from Article 21 of the constitution.

The court expanded the meaning of privacy to include privacy of body, mind, decisions, and information. However, the court laid down that the right is not absolute and it can be intruded upon by the state by passing the test of legality, a test of a legitimate aim, and a test of proportionality as enumerated by the court through this judgment. 

After examining the development of privacy as a right in India with its different facets, this section deals with new avenues and facets that opened up due to privacy being elevated to the status of fundamental rights.

Sexual orientation –

Navtej Singh Johar v Union of India: In this case, the validity of Section 377 which criminalised consensual sexual relations between the same sexes was challenged.

The court decriminalised consensual sex between queer adults, by observing sexual orientation is an integral aspect of privacy, which is a fundamental right that cannot be violated at any cost.

Navtej Singh Johar is a Sangeet Natak Akademi award-winning Bharatnatyam exponent and choreographer. Representational image. Photo credit: The Hindu, via orinam.net.

The court further invoked Puttaswamy judgment and observed:

“Given our judgment in Puttaswamy, in particular, the right of every citizen of India to live with dignity and the right to privacy that includes the right to make intimate choices regarding the manner in which such individual wishes to live being protected by Articles 14, 19 and 21.”

Right to be forgotten – 

Jorawer Singh Mundy v Union of India: In this case, an American citizen was acquitted in a case registered against him under the NDPS (Narcotic Drugs and Psychotropic Substances) Act, 1985, but was facing troubles in employment because his name was still being presented in judgment delivered by means of a simple google search.

The court invoked the right to be forgotten emanating from the privacy and ordered Google and Indian Kanoon to take down the judgments, as they were causing great harm and prejudice to the petitioner.

Privacy Is Pivotal

In the light of the above discussion, the right to privacy in India has evolved from the ancient period to be elevated as a fundamental right in modern India. With the data protection around the corridors, it will open up avenues for privacy in the information age.

Keeping that part in abeyance it would be interesting to witness new avenues to privacy such as abortion rights or “love jihad” laws being tested on the anvils of the right to privacy.

References:

  1. https://www.scobserver.in/court-in-review/right-to-privacy?slug=govind-v-state-of-madhya-pradesh-and-another
  2. https://privacylibrary.ccgnlud.org/search?title=&privacyid=14&countryid=1&documenttype=&fromyear=&toyear=3.      https://publicatio.bibl.u-szeged.hu/10794/7/3188699.pdf4.       http://dx.doi.org/10.2139/ssrn.36642575.      J1002015358.pdf (ijhssi.org)
Featured image is for representational purposes only. Photo credit: Alberto Adán, Pixabay.
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