Fundamental Right to Privacy
Introduction
Although there isn’t a clear legal definition of “privacy,” some legal experts define it as a human right that each and every person has simply by virtue of their existence. It is independent of any charter or instrument. Other aspects of privacy include the right to one’s own body, individual autonomy, protection from state surveillance, informational self-determination, dignity, confidentiality, and the freedom to move, think, and dissent. The right to privacy must, in other words, be evaluated case-by-case. Privacy enjoys a robust legal framework internationally.
As per Article 12 of the 1948 Universal Declaration of Human Rights and Article 17 of the 1966 International Covenant on Civil and Political Rights (ICCPR) People are legally protected against “arbitrary interference” with their privacy, family, home, correspondence, honor, and reputation. The right to privacy was not specifically considered by the drafters of the Constitution, and so it is not mentioned in Part III, which deals with fundamental rights.
The courts have considered the issue and have construed privacy from the very beginning. However, it was in 1954, just four years after the Constitution came into being, that the Supreme Court had to deal with the question of privacy. This was in the case of MP Sharma vs Satish Chandra where the Supreme Court decided in favour of the practice of search and seizure when contrasted with privacy. In the 1962 Kharak Singh v. State of Uttar Pradesh (AIR 1963 SC 1295) case, the Court considered the power of the police to monitor history sheeters and found in the police’s favor, holding that the Constitution does not guarantee the right to privacy.
The Supreme Court categorically ruled in the PUCL v. Union of India case in 1997—also referred to as the telephone tapping cases—that people had a right to privacy over the information they communicated over the phone. Thus, it can be seen from a number of cases that while the right to privacy was acknowledged, its exceptions were also given due consideration.
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The courts have interpreted the other rights in the Constitution to give rise to a (limited) right to privacy through a number of rulings over the years, principally through Article 21 – the right to life and liberty. In a landmark decision on August 24, 2017 headed by nine-judge Constitution Bench headed by Chief Justice, J.S. Kheharon in the case of Justice K.S. Puttaswamy & Others vs. Union of India and Others, the Court unanimously decided that the right to privacy is a fundamental freedom and that it is safeguarded as an integral component of the right to life and personal liberty, which are guaranteed by Part III of the Constitution. The Bench further decided that, like all other fundamental rights, the right to privacy is subject to reasonable restrictions and not absolute.
INDIAN COURT DECISIONS ON PRIVACY ISSUE:
| 1997 | People’s Union for Civil Liberties v. Union of India
(1997) 1 SCC 301 SC |
“The right to privacy-by itself-has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case. But the right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as “right to privacy”. Conversations on the telephone are often of an intimate and confidential character. Telephone-conversation is a part of modern man’s life. It is considered so important that more and more people are carrying mobile telephone instruments in their pockets. 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.” |
| 1998 | Mr ‘X’ v. Hospital ‘Z’, (1998) 8 SCC 296
SC
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The Hon’ble Supreme Court held in para 27 and 28 as under:— “27. Right of Privacy may, apart from contract, also arise out of a particular specific relationship which may be commercial, matrimonial, or even political. As already discussed above, doctor- patient relationship, though basically commercial, is, professionally, a matter of confidence and, therefore, doctors are morally and ethically bound to maintain confidentiality. In such a situation, public disclosure of even true private facts may amount to an invasion of the right of privacy which may sometimes lead to the clash of one persons “right to be let alone” with another persons right to be informed.28. Disclosure of even true private facts has the tendency to disturb a person’s tranquility. It may generate many complexes in him and may even lead to psychological problems. He may, thereafter, have a disturbed life all through. In the face of these potentialities, and as already held by this Court in its various decisions referred to above, the right of privacy is an essential component of the right to life envisaged by Article 21. The right, however, is not absolute and may be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others.” |
| 2007 | Rayala M. Bhuvaneswari v. Nagaphanender Rayala, 2007 SCC OnLine AP 892
(Andhra Pradesh High Court) |
Andhra Pradesh High Court in this case, specifically held that the act of recording conversation without knowledge of the wife is illegal and amounts to infringement of right to privacy and even if, the chips in question are true, they are not admissible in evidence. |
| 2014 | Deepinder Singh Mann v. Ranjit Kaur, 2014 SCC OnLine P&H 4826
(Punjab and Haryana High Court) |
“As an aside I would say that there are voice changing software available on the Net waiting to be downloaded to be applied in hiding or creating identities, creating true or false evidence, making room for impersonation, deceit and the like, which may be hard to crack without special detection by experts specially trained in this evolving field of investigation when experts are not easily found or available presently in courtrooms which remain severly handicapped and ill equipped with newfangled tools for use or misuse of modern science and technology and to easily apply to a case in hand the reprecussions of which may be far reaching and beyond one’s ken. It would be a rather dangerous trend to allow people to be fixed oe exposed on Audio CDs obtained by malfeasance, in its object of collecting evidence and the secretive means adopted to achieve a lawful or an unlawful end. The computer age is a dangerous age. The mobile phone or electronic gadgets should not be readily allowed to be used as an instrument of torture and oppression against a wife in a matrimonial action unless the court in satisfied that it might tilt the balance between justice and injustice in its cumulative judicial experience, wisdom and discretion in decision making. A married woman too has a valuable right to her privacy of speech with her husband in the confines of the bedroom. Couples speak many things with each other unwary that every word would be weighed one day and put under the judicial scanner. Courts should be very circumspect in such matters before allowing such applications as presented in this case. The Courts cannot actively participate in approving mischief and invite invasion of privacy rights not called for in deciding a case where parties are free to adduce evidence aliunde which may or may not be sufficient to obtain a decree of dissolution of marriage. Fools rush in where angels fear to tread.” |
| 2017 | Justice K.S. Puttaswamy & Others vs. Union of India and Others
2017 OnLine SC 996 |
The Supreme Court observed that the right to privacy is primarily derived from Article 21 of the Indian Constitution. |
| 2018 | Tripat Deep Singh v. Paviter Kaur, 2018 SCC OnLine P&H 7671
(Punjab and Haryana High Court) |
Para 15 of the judgment include-
“The conversation between husband and wife in daily routine, in the considered opinion of this court, cannot be made basis or can be considered for deciding the petition under section 13 of the Hindu Marriage Act, inasmuch as quarrel on trivial matters between them in our Society is a routine matter. More so, recording of conversation between the husband and wife and production of a CD thereof, would not be sufficient to ascertain as to under what circumstances, the conversation was recorded, what was the atmosphere and circumstances prevailing in the family at that moment, would be relevant to take into consideration the conversations recorded in the CD to extract the truth.”
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| 2021 | Neha v. Vibhor Garg, 2021 SCC OnLine P&H 4571
(Punjab and Haryana High Court) |
Para 21 of the judgment include:
“Keeping in view the factual matrix of the case, it cannot be said that as the Family Court is not bound by strict rules of evidence, it is at liberty to accept the CD in evidence which is a clear cut infringement of the right of privacy of the wife. Moreover the aspects as discussed in the foregoing paras have not been discussed therein. Therefore, acceptance of the CD by the learned Family Court allegedly containing conversations between the husband and wife recorded surreptiously without the consent or knowledge of the wife and allowing the husband’s application is unjustified. Accordingly, impugned order dated 29.01.2020, Annexure P-4, passed by the learned Family Court, Bathinda, is set aside. Consequently, application dated 09.07.2019 filed by the respondent-husband, is dismissed.” |
| 2023 | Aasha Lata Soni v. Durgesh Soni, 2023 SCC OnLine Chh 3959
(Chhattisgarh High Court) |
Para 11 of the judgment:
“In the light of aforesaid facts, it appears that the respondent has recorded the conversation of the petitioner without her knowledge behind her back which amounts to violation of her right to privacy and also the right of the petitioner guaranteed under Article 21 of the Constitution of India. Further, the Right of Privacy is an essential component of right to life envisaged by Article 21 of the Constitution, therefore, in the opinion of this Court, the learned Family Court has committed an error of law in allowing the application under Section 311 of the CrPC along with the certificate issued under Section 65 of the Indian Evidence Act. Accordingly, the order passed by the learned Family Court on 21.10.2021 in Case No. F-118/2019 is hereby set-aside.”
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Author: PRACHI MISHRA, in case of any queries please contact/write back to us at support@ipandlegalfilings.com or IP & Legal Filing.
REFERENCES:
- MEMBERS’ REFERENCE SERVICE LARRDIS LOK SABHA SECRETARIAT, NEW DELHI https://loksabhadocs.nic.in/Refinput/New_Reference_Notes/English/Right%20to%20Privacy%20as%20a%20fundamental%20Right.pdf
- Right to Privacy https://byjus.com/free-ias-prep/right-to-privacy/
- Justice K.S Puttaswamy vs Union of India https://translaw.clpr.org.in/case-law/justice-k-s-puttaswamy-anr-vs-union-of-india-ors-privacy/#:~:text=The%20Court%20held%20that%20the,primarily%20derived%20from%20Article%2021.
- SCC Online Web Edition http://www.scconline.com
