DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY,

LUCKNOW
ACADEMIC SESSION:
2018 – 2019

BASICS OF CASE LAW

RIGHT TO PRIVACY IN INDIA

SUBMITTED TO: SUBMITTED BY:

Mr. ABDULLAH NASIR SHIVANI SINGH
PROFESSOR,LAW ENROL.NO.:180101127
B.A.L.L.B(Hons.), SEM I

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 ACKNOWLEDGEMENT

I take this opportunity to express my profound gratitude and deep regards to

my guide Prof. Abdullah Nasir for his exemplary guidance, monitoring and
constant encouragement to give shape to this project. The blessing, help and
guidance given by his time to time shall carry me a long way in the journey of
life on which I am about to embark.
I also take this opportunity to express a deep sense of gratitude to my respected
seniors who shared their cordial support, valuable information and guidance,
which helped me in completing the task through various stages.
Last but not the least, I thank the almighty, my mother, brother and friends for
their constant encouragement without which this assignment would not have
been possible.

Shivani Singh

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 INTRODUCTION

RIGHT TO PRIVACY IN INDIA explains the concept and right to privacy.

The right to privacy is an element of various legal traditions to
restrain government and private actions that threaten the privacy of
individuals.
The right to privacy has been mentioned by over 150 national institutions.
The right to privacy is an element of various legal traditions to restrain
government and private actions that threaten the privacy of individuals. Over
150 national constitutions mention the right to privacy.
It extensively looks into the origin of the right and the evolution of Right to
Privacy over the years with the help of different landmark cases in the history of
India that discussed and talked about Right to Privacy.
It also throws a brief light upon the recent Justice K.S. Puttaswamy Case and how
it is a landmark judgement ruling “Right to Privacy to be a Fundamental Right”.
India is the world’s largest democracy and with this ruling, it has joined United
States, Canada, South Africa, the European Union and the UK in recognizing this
fundamental right.

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 TABLE OF CONTENTS

1. ACKNOWLEDGEMENT…………………………………………………………2

2. INTRODUCTION…………………………………………………………….…….3

3. INTRODUCTION: CONCEPT OF PRIVACY…………………….…………5

4. RIGHT TO PRIVACY: THE INDIAN SCENARIO………………….……..6

5. UNDERSTANDING RIGHT TO PRIVACY WITH THE HELP OF

DIFFERENT CASES……………………………………………………….……….7
6. BIBLIOGRAPHY…………………………………………………………..14

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 INTRODUCTION: CONCEPT OF PRIVACY
CONCEPT OF PRIVACY

Privacy is a culturally limited concept. It varies with the times, the historical
context, the state of culture and the prevailing judicial philosophy.1 The question
“what is privacy” has therefore, remained a problem for those who have made
an attempt to define it.

The right to privacy is defined as the right to be let alone, the right of a person
to be free from unwarranted publicity and the right to live without unwarranted
interference by the public in matters with which the public is not necessarily
concerned. The term right to privacy is a generic term encompassing various
rights recognised to be inherent in the concept of ordered liberty and such a
right prevents governmental interference in intimate personal relationships or
activities, freedom of the individual to make fundamental choices involving
himself, his family, and his relationships with others. The RIGHT TO PRIVACY,
simply put, is merely the right to live as one chooses.2

A definite legal definition of ‘privacy’ is not available. Some legal experts tend to
define privacy as a human right enjoyed by every human being by virtue of his
or her existence. It depends on no instrument or charter. Privacy can also extend
to other aspects, including bodily integrity, personal autonomy, informational
self-determination, protection from state surveillance, dignity, confidentiality,
compelled speech and freedom to dissent or move or think. In short, the right
to privacy has to be determined on a case-by-case basis.

Privacy enjoys a robust legal framework internationally. Article 12 of the

Universal Declaration of Human Rights, 1948 and Article 17 of the International
Covenant on Civil and Political Rights (ICCPR), 1966, legally protect persons
against “arbitrary interference” with one’s privacy, family, home,
correspondence, honour and reputation. India signed and ratified the ICCPR on
April 10, 1979, without reservation. Article 7 and 8 of the Charter of
Fundamental Rights of the European Union, 2012, recognises the respect for
private and family life, home and communications. Article 8 mandates
protection of personal data and its collection for a specified legitimate purpose.

1
Hyman Gross, Privacy – Its Legal Protection, 1976.
2
Pravin Anand and Gitanjali Duggal, Privacy in Michael Henry (ed.), International Privacy, Publicity and
Personality Laws, 233(2001)

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 RIGHT TO PRIVACY: THE INDIAN SCENARIO
India has essentially been gregarious society wherein cooperation and not
competition, society and not solitude have been dominant themes of its culture
and civilization. Hence, sometimes it is doubted whether privacy is a value of
human relation in India.

Article 17 of the International Covenant on Civil and Political Rights states about
the right to privacy, it says, “No one shall be subjected to arbitrary or unlawful
interference with his privacy, family, or correspondence, nor to unlawful attacks
on his honour and reputation". Whereas Article 12 of the Universal Declaration
of Human Rights 1948, states “No one shall be subjected to arbitrary
interference with his privacy, family, home or correspondence, nor to attacks
upon his honour and reputation. Everyone has the right to the protection of the
law against such interference or attacks". Both instruments provide the right to
privacy to the citizen, and the states, who are signatory to it, are expected to
fulfil these rights.

Since India is a signatory to the International Covenant on Civil and Political

Rights and Universal Declaration of Human Rights, 1948, India has the obligation
to enforce these rights.
In the lack of enabling legislation, the ICCPR can have the legal force as the other
laws in India. And the UDHR is a mere declaration, and it does not have the legal
force. But the courts have used provisions of ICCPR and UDHR to make its
argument stronger; and also in order to make realized the government about
his obligation toward it citizen and towards international instruments.
In the case of People's Union of Civil Liberties v Union of India,3 Supreme Court
cited the Article 17 of ICCPR and Article 12 of UDHR. Through these two
international instruments, the court strengthened his contention and also to
alert the government about his obligation towards its citizen. In People s Union
for Civil Liberties (PUCL) v Union of India, the Supreme Court held that telephone
tapping is a violation of right to privacy.
With the urbanization, industrialisation, literacy and education the scope of
privacy extended in both respects, i.e., intrusion and maintaining of privacy.
Various legislations of 19th century also acknowledge the concept of privacy in
India. The Indian Penal Code, 1860 under Section 509 provides for protection of

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(1997) 3 SCC 433

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privacy interest.4 Similarly, Sections 26, 164 (3) and 165 of Code of Criminal
Procedure, 1898 also provide for protection of privacy interest. Certain
provisions of the Indian Evidence Act, 1872 also defend one’s privacy interests.
Under Section 122 of the Indian Evidence Act, a married person shall not be
compelled to disclose any communication made to him by the spouse during the
marriage.
Although, there are also provisions in certain statutes which pose threat to the
right to privacy. The Indian Post Act, 1898 confers power5 on the State and
Central Governments to intercept postal articles on the occurrence of any public
emergency or in the interest of the public safety or tranquillity by an order in
writing.
The post-independence period in India witnessed the emergence of many
constitutional rights including, the right to clean environment, right to education
etc. The right to privacy is a new comer when compared with other rights like
and due process of law and habeas corpus as it is not found in any of the classic
texts of the eighteenth century.
It is revealed from the foregoing study that various legislations of 19th century
also acknowledge the concept of right to privacy in India. The post-
independence period witnessed the emergence of new constitutional rights
such as the Right to Privacy.

4
Section 509 specifically makes it a crime to intrude upon the privacy of a woman intending to insult her
modesty.
5
Section 26, Indian Post Act, 1898.

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 UNDERSTANDING RIGHT TO PRIVACY WITH THE HELP OF
DIFFERENT CASES

The issue of privacy was discussed in the following cases:

1. M P Sharma & Others v. Satish Chandra6:

The case arose from a previous search and seizure operation carried out against the
companies of Dalmia Group. The investigations related to the affairs of Ms Dalmia
Jain Airways Ltd. The company was registered in 1946 but it went into liquidation
in June 1952. The basis of the investigation were allegations of malpractices within
the group concern and attempts of presenting false accounts and balance sheets to
hide the prevailing state of affairs in the company from its shareholders. The law
enforcement agencies approached the District Magistrate, Delhi on the basis of an
FIR filed on November 19, 1953 to secure search warrants.
Warrants were issued for search and seizure raids to be carried out at 34 locations
that belonged to the Dalmia Group. A large amount of documents and records were
seized in the raids. The petitioners file writ petitions before the Supreme Court
challenging the constitutional validity of the searches. They claimed that the search
parties took away their private records and that it was in violation of Fundamental
Rights guaranteed under Article 19(1)(f) of the Constitution that guarantees Right
to acquire, hold and dispose of property and Article 20(3) that provides protection
against self-incrimination.
An eight-judge bench of the apex court comprising Chief Justice Mehar Chand
Mahajan and Justices B Jagannadhadas, Ghulam Hasan, Natwarlal H Bhagwati, T
L Venkatarama Aiyyar, B K Mukherjea, Sudhi Ranjan Das and Vivian Bose
passed a judgment on March 15, 1954. The court held 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 the fundamental right to privacy,
analogous to the American Fourth Amendment, there is no justification for

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AIR 1954 SC 300

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importing into it, a totally different fundamental right by some process of strained
construction.”

2. Kharak Singh v. The State of U.P. & Others7:

Kharak Singh, the petitioner in the case, was challenged in a dacoity case but later
released in absence of evidence. The Uttar Pradesh police opened a “history sheet”
against Kharak Singh and he was put under surveillance. The power to put a person
under surveillance was provided under Chapter XX of the Uttar Pradesh Police
Regulations. According to Regulation 236 that defines surveillance, surveillance
involved “secret picketing of the house or approaches to the houses of the suspects;
domiciliary visits at night; periodical enquiries by officers not below the rank of
Sub-Inspector into repute, habits, association, income, expenses and occupation;
the reporting by constables and chaukidars of movements and absences from
home; the verification of movements and absences by means of inquiry slips; and
the collection and record on a history sheet of all information bearing on conduct.”
Kharak Singh filed a writ petition in the Supreme Court of India challenging the
constitutional validity of Chapter XX of the Uttar Pradesh Police Regulations and
the powers conferred upon police officials by its several provisions on the ground
that they violate the right guaranteed to citizens by Arts. 19(1)(d) and 21 of the
Constitution.
A six-judge bench comprising then Chief Justice Bhuvaneshwar P Sinha and
Justices N Rajagopala Ayyangar, Syed Jaffer Imam, K Subbarao, JC Shah and JR
Mudholkar passed the judgment on the petition on December 18, 1962.
In its judgment, the court invalidated the Clause (b) of the Regulation 236 relating
to surveillance (domiciliary visits at night) upholding the other five clauses. More
significantly, the court held that “the right to privacy is not a guaranteed right
under our Constitution, and therefore the attempt to ascertain the movements of an
individual is merely a manner in which privacy is invaded and is not an
infringement of a fundamental right guaranteed in Part III,” adding that “Having
given the matter our best consideration we are clearly of the opinion that the

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AIR 1963 SC 1295

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freedom guaranteed by Art. 19 (1) (d) is not infringed by a watch being kept over
the movements of the suspect.”

3. Maneka Gandhi v. Union of India8:

In this case a seven – judge bench of Supreme Court held that `Personal Liberty'
in Article 21 covers a variety of rights & some have status of fundamental rights
and given additional protection under Article 19. Triple Test for any law
interfering with personal liberty: (i) it must prescribe a procedure; (ii) the
procedure must withstand the test of one or more of the fundamental rights
conferred under Article 19 which may be applicable in a given situation; and (iii)
it must withstand test of Article 14. The law and procedure authorizing
interference with personal liberty and right of privacy must also be right and just
and fair and not arbitrary, fanciful or oppressive.

4. PUCL v. Union of India9:

In this case, Public interest litigation was filed protesting rampant instances of
phone tapping of politicians’ phones by CBI and the Right to Privacy was held to
be inherent in Article 21. Explicit guidelines were laid down for the exercise of
rights of interception under Section 5 of the Telegraphs Act, 1885.

5. R. Rajagopal v. State of T.N.10:

In this case, Right to privacy held to be implicit in Article 21. It was explained as
"It is the right to be left alone" and further it was ruled that ‘A citizen has a right
to safeguard the privacy of his own, his family, marriage, procreation,
motherhood, child bearing and education among many other matters. Right of
a prisoner to privacy recognized.’

6. Naz Foundation v. Govt. of NCT of Delhi:

The Naz Foundation India, a non-governmental organization committed to
HIV/AIDS intervention and prevention, filed a public interest litigation in the

8
AIR 1978 SC 597
9
(1997) 3 SCC 433
10
AIR 1995 SC 264

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Delhi High Court challenging the constitutionality of Section 377 of the India
Penal Code, which makes it illegal to engage in any "unnatural" sexual act,
defined as sex other than heterosexual intercourse. The Delhi High Court
dismissed the original writ of petition in 2004 for lack of a cause of action.
However, on civil appeal the Supreme Court of India set aside the dismissal and
ordered the Delhi High Court to hear the petition on the merits. The petitioner
argued that Section 377 encouraged discriminatory attitudes, abuse, and
harassment of the gay community, and significantly impaired HIV/AIDS
prevention efforts and access to treatment. The National AIDS Control
Organization (NACO) under the Ministry of Health supported the petitioners in
their response.
The Court found in favour of the petitioner and held that Section 377 was
unconstitutional. First, the Court found it violated the right to dignity and privacy
by citing the Universal Declaration of Human Rights and European Court of
Human Rights as well as the case of Francis Coralie Mullin11 in which the Indian
Constitutional Court defined dignity as requiring adequate shelter, nutrition,
clothing as well as the ability to freely socialize. Next, the Court held that under
Article 12 of the ICESCR and Article 21 of the Indian Constitution, the state must
fulfil "everyone's right to access the highest attainable standard of health" as
part of the right to life. The Court agreed that criminalization of homosexual
conduct pushes homosexuals into isolation and impedes access to adequate
information for prevention of HIV/AIDS.

11
Francis Coralie Mullin v. Administrator, Union of Delhi and Others, (1981) 2 SCR 516

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RECENT SCENARIO REGARDING RIGHT TO PRIVACY:
All the above cases among many others have from time to time discussed about
the concept of right to privacy as Constitutional as well as a Fundamental Right
but it was never really made clear or ruled by the Supreme Court that it is a
fundamental right until the recent times when the nine – judge bench of the
Supreme Court on 24 August 2017, gave a landmark judgement in Justice K.S.
Puttaswamy (Retd.) v. Union of India holding that privacy is a
constitutionally protected right which not only emerges from the guarantee of
life and personal liberty in Article 21 of the constitution, but also arises in varying
contexts from the other facets of freedom and dignity recognised and
guaranteed by the fundamental rights contained in Part III of the Indian
constitution.
The bench has overruled its decisions in M.P. Sharma v Satish Chandra, District
Magistrate, Delhi (1954), rendered by a bench of eight judges and, in Kharak
Singh v. State of Uttar Pradesh (1962), rendered by a bench of six judges, which
contained observations that the Indian constitution does not specifically protect
the right to privacy.
Justice D.Y. Chandrachud, while delivering the main judgment, on behalf of the
Chief Justice J.S. Khehar, Justice R.K. Agarwal, himself and Justice S. Abdul
Nazeer has held that privacy is intrinsic to life, liberty, freedom and dignity and
therefore, is an inalienable natural right. Justices Chelameswar, Bobde, Sapre
and Kaul have also agreed with Justice Chandrachud’s judgment.
The judgment says:
 Life and personal liberty are inalienable rights. These are rights which
are inseparable from a dignified human existence. The dignity of the
individual, equality between human beings and the quest for liberty are
the foundational pillars of the Indian constitution.
 Life and personal liberty are not creations of the constitution. These
rights are recognised by the constitution as inhering in each individual as
an intrinsic and inseparable part of the human element which dwells
within.
 Privacy includes at its core the preservation of personal intimacies, the
sanctity of family life, marriage, procreation, the home and sexual
orientation. Privacy also connotes a right to be left alone. Privacy
safeguards individual autonomy and recognises the ability of the
individual to control vital aspects of his or her life. Personal choices
governing a way of life are intrinsic to privacy. Privacy protects

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 heterogeneity and recognises the plurality and diversity of our culture.
While the legitimate expectation of privacy may vary from the intimate
zone to the private zone and from the private to the public arenas, it is
important to underscore that privacy is not lost or surrendered merely
because the individual is in a public place. Privacy attaches to the person
since it is an essential facet of the dignity of the human being.
 To live is to live with dignity. The draftsmen of the constitution defined
their vision of the society in which constitutional values would be
attained by emphasising, among other freedoms, liberty and dignity…
Dignity is the core which unites the fundamental rights because the
fundamental rights seek to achieve for each individual the dignity of
existence. Privacy with its attendant values assures dignity to the
individual and it is only when life can be enjoyed with dignity can liberty
be of true substance… The draftsmen of the constitution had a sense of
history− both global and domestic– as they attempted to translate their
vision of freedom into guarantees against authoritarian behaviour… The
backdrop of human suffering furnished a reason to preserve a regime of
governance based on the rule of law which would be subject to
democratic accountability against a violation of fundamental freedoms…
Hence, it would be an injustice both to the draftsmen of the constitution
as well as to the document which they sanctified by constricting its
interpretation to an originalist interpretation.
 It is privacy which is a powerful guarantee if the state were to introduce
compulsory drug trials of non-consenting men or women. The sanctity
of marriage, the liberty of procreation, the choice of a family life and the
dignity of being are matters which concern every individual irrespective
of social strata or economic wellbeing. The pursuit of happiness is
founded upon autonomy and dignity. Both are essential attributes of
privacy which makes no distinction between the birth marks of
individuals.

The right to privacy judgment is one of the most landmark judgments of

independent India. It not only learns from the past, but also sets the wheel of
liberty and freedom for future. The Supreme Court of India has once again
emerged as the sole guardian of the Indian constitution.

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 BIBLIIOGRAPHY
CASES:
 M P Sharma & Others v. Satish Chandra, AIR 1954 SC 300
 Kharak Singh v. The State of U.P. & Others, AIR 1963 SC 1295
 Maneka Gandhi v. Union of India, AIR 1978 SC 597
 PUCL v. Union of India, (1997) 3 SCC 433
 R. Rajagopal v. State of T.N, AIR 1995 SC 264
 Naz Foundation v. Government of NCT of Delhi
 Justice K.S. Puttaswamy (Retd.) v. Union of India
BOOKS:
 Hyman Gross, Privacy – Its Legal Protection
 Pravin Anand and Gitanjali Duggal, Privacy in Michael Henry (ed.),
International Privacy, Publicity and Personality Laws, 233(2001)
WEBSITES:
 https://cis-india.org/internet-governance/privacy-and-the-constitution
 https://www.lawteacher.net/free-law-essays/constitutional-
law/evolution-of-the-right-to-privacy-constitutional-law-essay.php
 https://thewire.in/171325/justice-chandrachud-judgment-right-to-
privacy/

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