A very fascinating development in the Indian Constitutional Jurisprudence Is the extended dimension given to Article 21 by the Supreme Court In post-Manage era. The Supreme Court has asserted that Art. 21 Is the heart of the Fundamental Rights. Article 21 has proved to be multi-dimensional. The extension In the dimensions of Art. 21 has been made possible by giving a extended meaning to the word ‘life’ and liberty in Article 21 . These two words in Art. 21 are not to be read narrowly. These are organic terms which are to be construed meaningfully.
The Supreme Court has asserted that in order to treat a right as a fundamental right, it is not necessary that it should be expressly stated in the constitution as a Fundamental Right. Political, social, and economic changes in the country entail the recognition of new rights. The law in its eternal youth grows to meet the demands of society. Right to privacy Is one such right which has come to Its existence after widening up the dimensions of Article 21 . The constitution In specific doesn’t grant any right to privacy as such. However, such a right has been culled by the Supreme Court from Art. And several other provisions of the constitution read with the Directive Principles of State Policy. In this paper we will be discussing over a new dimension of Art. 21 that is the Right to Privacy and also the conflicts related to it. Introduction Before we get Into a complete discussion of Right to Privacy first of all we need to know what does the word Privacy mean. According to Blacks Law Dictionary “right to be let alone; the right of a person to be free from any unwarranted publicity; the right to live without any unwarranted interference by the public in matters with which the public is not necessarily concerned”.
Article 21 of the Constitution of India states that “No person shall be deprived of his life or personal liberty except according to procedure established by law’. After reading the Article 21, it has been interpreted that the term life’ includes all those aspects of life which go to make a man’s life meaningful, complete and worth living. Like everything mankind has ever achieved, there has been a positive and a negative side to It. Technology has Invaded every part of our lives whether the Invasion was desired or not, we cannot be sure whether what we say has been heard by a third arty as well whether that was desired or not.
The proverbial Hindi saying of even walls having ears has never rung truer. The principle of the world today can be: Tiger Woods about it. In the earlier times in India, the law would give protection only from physical dangers such as trespass from which the Right to Property emerged to secure his house and cattle. This was considered to be the Right to Life. As the ever changing common law grew to accommodate the problems faced by the people, it was realized that not only Nas physical security required, but also security of the spiritual self as well as of his linings, intellect was required.
Now the Right to Life has expanded in its scope and comprises the right to be let alone the right to liberty secures the exercise of extensive civil privileges; and the term “property’ has grown to comprise every form of possession ? intangible, as well as tangible. Ere strategy adopted by the Supreme Court with a view to expand the ambit of Art. 21 and to imply certain right there from, has been to interpret Art. 21 along with International charters on Human Rights. Ere Court has implied the right of privacy from Art. 21 by interpreting it in conformity Ninth Art. Of the Universal Declaration on Human Rights and Art. 17 of the International Covenant on Civil and Political Rights, 1966. Both of these international documents provide for the right of privacy. Right to privacy is not enumerated as a Fundamental Right in the Constitution of India. The scope of this right first came up for consideration in Shark Sing’s Case Inch was concerned with the validity of certain regulations that permitted surveillance of suspects. The minority decision of SCUBA RAW J. Deals with this light. In the context of Article 19(1) (d), the right to privacy was again considered by the
Supreme Court in 1975. In a detailed decision, JAYVEE REEDY J. Held that the right to privacy is implicit under Article 21 . This right is the right to be let alone. In the context of surveillance, it has been held that surveillance, if intrusive and seriously encroaches on the privacy of citizen, can infringe the freedom of movement, guaranteed by Articles 19(1)(d) and 21 . Surveillance must be to prevent crime and on the basis of material provided in the history sheet. In the context of an anti-terrorism enactment, it was held that the right to privacy was subservient to the security of the
State and withholding information relevant for the detention of crime can’t be nullified on the grounds of right to privacy. The right to privacy in terms of Article 21 has been discussed in various cases. International Concepts of Privacy Article 12 of Universal Declaration of Human Rights (1948) states that “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attack upon his honor and reputation. Everyone has the right to protection of the law against such interference or attacks. Article 17 of International Covenant of Civil and Political Rights (to which India is a rivalry, family, home and correspondence, nor to unlawful attacks on his honor and reputation” Article 8 of European Convention on Human Rights states “Everyone has the right to respect for his private and family life, his home and his correspondence; there shall be no interference by a public authority except such as is in accordance with law and IS necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the protection of health or morals or for the protection of the rights and freedoms of others. ” Right To Privacy In India As already discussed Article 21 of the Constitution of India states that “No person shall be deprived of his life or personal liberty except according to procedure established by law’. The right to life enshrined in Article 21 has been liberally Interpreted so as to mean something more than mere survival and mere existence or animal existence. It therefore includes all those aspects of life which makes a man’s life more meaningful, complete and worth living and right to privacy is one such right. The first time this topic was ever raised was in the case of Shark Sings v.
State f UP where the Supreme Court held that Regulation 236 of UP Police regulation was unconstitutional as it clashed with Article 21 of the Constitution. It was held by the Court that the right to privacy is a part of right to protection of life and personal liberty. Here, the Court had equated privacy to personal liberty. In Giving v. State of Madhya Pradesh , Mathew, J. Accepted the right to privacy as an emanation from Art. 19(a), (d) and 21, but right to privacy is not absolute right. ‘Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right, the monumental right must be subject to restriction on the basis of compelling public interest”.
Surveillance by domiciliary visits need not always be an unreasonable encroachment on the privacy of a person owing to the character and antecedents of the person subjected to surveillance as also the objects and the limitation under Inch the surveillance is made. The right to privacy deals with ‘persons not places’. In SMS. Manage Gandhi v. Union of India & Mar. ,(1978) in this case SC 7 Judge Bench said ‘personal liberty in article 21 covers a variety of rights & some have status of fundamental rights and given additional protection u/a 19. Triple Test for any law interfering with personal liberty: (1) It must prescribe a procedure; (2) the procedure must withstand the test of one or more of the fundamental rights conferred u/a 19 Inch may be applicable in a given situation and (3) It must withstand test of Article 14.
The law and procedure authorizing interference with personal liberty and right of privacy must also be right Just and fair and not arbitrary, fanciful or oppressive. In Anza Foundation Case (2009) Delhi HCI gave the landmark decision on consensual homosexuality. In this case S. 377 EPIC and Articles 14, 19 & 21 were examined. Right himself”. It was said individuals need a place of sanctuary where they can be free from societal control- where individuals can drop the mask, desist for a while from projecting on the world the image they want to be accepted as themselves, an image that may reflect the values of their peers rather than the realities of their nature.
It is now a settled position that right to life and liberty under article 21 includes right to privacy. Right to privacy 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 ND education among other matters. Any person publishing anything concerning the above matters except with the consent of the person would be liable in action for damages. Position however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy. Right To Privacy-permissible Restriction Intrusion into privacy may be by- (1) Legislative Provision (2) Administrative/Executive order (3) Judicial Orders.
Legislative intrusion must be tested on the touchstone of reasonableness as guaranteed by the Constitution and for that purpose the Court an go into proportionality of the intrusion visa–visa the purpose sought to be achieved. (2) So far as administrative or executive action is concerned it has to be reasonable having regard to the facts and circumstances of the case. (3) As to Judicial Narrate, the Court must have sufficient reason to believe that the search or seizure is warranted and it must keep in mind the extent of search or seizure necessary for protection of the particular State interest. In addition, as stated earlier, common law did recognize rare exceptions for conduct of warranties searches could be inducted but these had to be in good faith, intended to preserve evidence or intended to prevent sudden anger to person or property. He privacy Bill, 2011 Ere bill says, “every individual shall have a right to his privacy ? confidentiality of communication made to, or, by him ? including his personal correspondence, telephone conversations, telegraph messages, postal, electronic mail and other modes of communication; confidentiality of his private or his family life; protection of his honor and good name; protection from search, detention or exposure of lawful communication between and among individuals; privacy from surveillance; infallibility of his banking and financial transactions, medical and legal Information and protection of data relating to individual. ” Ere bill gives protection from a citizen’s identity theft, including criminal identity theft (posing as another person when apprehended for a crime), financial identify theft (using another’s identity to obtain credit, goods and services), etc. He bill prohibits interception of communications except in certain cases with approval of Secretary-level officer. It mandates destruction of interception of the material within two months of discontinuance of interception. Committee to examine and review the interception orders passed and is empowered to render a finding that such interception contravened Section 5 of the Indian Telegraphs Act and that the intercepted material should be destroyed forthwith. It also prohibits surveillance either by following a person or closed circuit television or other electronic or by any other mode, except in certain cases as per the specified procedure.
As per the bill, no person who has a place of business in India but has data using equipment located in India, shall collect or processor use or disclose any data elating to individual to any person without consent of such individual. Ere bill mandates the establishment of a Data Protection Authority of India, whose function is to monitor development in data processing and computer technology; to examine law and to evaluate its effect on data protection and to give recommendations and to receive representations from members of the public on any matter generally affecting data protection. Ere Authority can investigate any data security breach and issue orders to safeguard the security interests of affected individuals in the personal data that has or is likely o have been compromised by such breach. He bill makes contravention of the provisions on interception an offence punishable Ninth imprisonment for a term that may extend up to five years or with fine, which may extend to RSI. 1 lack or with both for each such interception. Similarly, disclosure of such information is a punishable offence with imprisonment up to three years and fine of up to RSI. 50,000, or both. Further, it says any persons who obtain any record of information concerning an individual from any officer of the government or agency under false pretext shall be punishable with a fine of up to RSI. 5 Lacks. Right To Privacy And Search And Seizure Ere right of privacy on one hand and power of the State of search and seizure on the other hand has been the subject matter of Judgments not only in India but also in other countries as well.
The Supreme Court referred to American case laws under the Fourth Amendment to the US Constitution. The Court also referred to Universal Declaration of Human Rights, European Convention of Human Rights, other treaties and constitutional provisions and held that the State cannot have unbridled right of search and seizure. In particular, it pointed out that all public records could always e inspected but it will not be open to Collector under the impugned amended Section 73 of the Indian Stamp Act, 1899 to direct the production of records held with banks. These records are copies of private documents. The right to privacy is to protect the documents which are with the banks. Unless there is reasonable cause or documents cannot be inspected.
The Court struck down S. 73 giving uncontrolled power to Collector to authorize “any person” to take notes or extracts from such documents. Even the rules framed under the Act did not provide sufficient guidelines or safeguards as to how this power could be exercised. The Supreme Court referred to US Judgments on this subject. It preferred to follow the minority view in Miller’s case and took the view that majority decision was incorrect. It also referred to various articles and comments which have taken the view that majority Judgment was “rang the Court held that documents or copies thereof given to the bank will continue to remain confidential.
The fact that they are given to bank voluntarily will not mean that they cease to be private records as mentioned above. Rapping of Telephone Telephone tapping constitutes a serious invasion of an individual’s right to privacy. Is it constitutionally permissible in India? If so, within what limits and subject to what safeguards? Ere questions posed above have been fully considered by the Supreme Court in People’s Union for Civil Liberties v. Union of India. In this case Public Interest Litigation was filed protesting rampant instances of phone tapping of politician’s phones by CB. The court ruled that telephone conversation is an important facet of a man’s private life’.
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’. So, aping of telephone is a serious invasion of privacy. This means that telephone tapping would infract Article 21 unless it is permitted under the procedure established by law. The procedure has to be “Just, fair and reasonable”. Ere Court laid down exhaustive guidelines to regulate the discretion vested in the State under Section 5 of the Indian Telegraph Act for the purpose of telephone tapping and interception of other messages so as to safeguard public interest against arbitrary and unlawful exercise of power by the Government.
Section 5(2) of the Act permits the interception of messages in accordance with the provisions of the Act. “Occurrence of any public emergency’ or in interest of public safety’ are the sine qua non “for the application of provisions under section 5(2) of the Act unless a public emergency has occurred or the interest of public safety demands, the authorities have no Jurisdiction to exercise the powers under the said legislation. The Court said public emergency would mean the prevailing of sudden condition or state of affairs affecting the people at large calling for immediate action. The expression public safety means the state or condition of grave danger or risk for the people at large.
When either these two conditions are not in existence, the Court said, the Central Government or the State Government or the authorized officers cannot resort to telephone tapping even though there is satisfaction that it is necessary or expedient so to do in the interest of sovereignty and integrity of the country. In other orders, even if the Central Government is satisfied that it is necessary or expedient so to do in the interest of the sovereignty or integrity of the country or the security of Incitements to the commission of an offence it cannot intercept the message or resort o telephone tapping unless a public emergency has occurred or the interest of public safety or the existence of the interest of public safety requires. He Court has laid down the following procedural safeguards for the exercise of power under Section 5(2) of the Indian Telegraph Act- An order for telephone tapping can be issued only by the Home Secretary of the Central Government or the State Governments. In an urgent case, the power may be delegated to an officer of the Home Department of the Central and the State Governments not below the rank of Joint Secretary. The copy of the order shall be sent to the Review Committee within one week of the passing of order. The order shall, unless renewed, cease to have effect at the end of two months from the date of issue. The authority making the order may review before that period if it considered that it is necessary to continue the order in terms of Section 5(2) of the Act.
The authority issuing the order shall maintain the record of intercepted communications, the extent the material to be disclosed, number of persons, their Identity to whom the material is disclosed. The use of intercepted material shall be limited to the minimum that is necessary in ERM of Section 5(2) the Act. The Review Committee shall on its own, within two months, investigate whether there is or has been a relevant order under section 5(2) of the Act. If on investigation the Review Committee concludes that there has been a contravention of the provisions of Section 5(2) of the Act, shall set aside the order. It can also direct the destruction the copies of the intercepted material.
If on investigation the Review Committee comes to the conclusion that there has been no contravention of the relevant provision of the Act, it shall record the finding to that effect. He Court noted that with the growth of highly sophisticated communication technology the right to hold telephone conversation in the privacy of one’s home or office without interference is increasingly susceptible to abuse. In view of this, the Court’s ruling laying down detailed guidelines for the exercise of power under the relevant Act is timely and of historic importance. Divorce Petition: Husband Tapping Conversation Of His Wife With Others Seeking to vanquisher v.
Megaphones Royal the petitioner filed a divorce petition in the Court against his wife and to substantiate his case sought to produce a hard disc elating to the conversation of his wife recorded in U. S. With others. She denied some portions of the conversation. The Court held that the act of tapping by the husband of conversation of his wife with others without her knowledge was illegal and amounted to infringement of her right to privacy under article 21 of the Constitution. These talks even if true cannot be admissible in evidence. The wife cannot be forced to undergo voice test and then asked the expert to compare portion denied by her Ninth her admitted voice. The Court observed that the purity of the relation between husband and wife is the basis of marriage.
The husband was recording her conversation on telephone with her friends and parents in India without her knowledge. This is clear infringement of right to privacy of the wife. If husband is of such a nature and has no faith in his wife even about her conversations to her parents, then the institution of marriage itself becomes redundant. Prisoner’s Privacy Rights Ere protection of Article 21 is available even to convicts in Jail. The convicts are not by mere reason of their conviction deprived of all their fundamental rights which they otherwise possess. Following the conviction of a convict is put into a Jail he may be privet of fundamental freedoms like the right to move freely throughout the territory of India.
But a convict is entitled to the precious right guaranteed under Article 21 and he shall not be deprived of his life and personal liberty except by a procedure established by law. Ere question of the right to be let alone again came on the front in the case of R. Regional vs.. State of T. N also known popularly as the Auto Shank Case. A prisoner had written his autobiography in Jail describing the conditions there and the nexus between prisoners and several AS and PIPS officers. He had given the autobiography o his wife so that she may publish it in a particular magazine. However, the publication was restrained in various matters and the question arose whether anyone has the right to be let alone and particularly in Jail. In R. Regional vs.. State oft. N. (1994) Right to Privacy held to be implicit in Article 21 . ‘It is the 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 many other matters. In this case right of a prisoner to privacy recognized. Conflict Between: Right To Information Right To Privacy In India the Constitution does not expressly recognize the right to privacy. But after the case of Shark Sings v. State of U. P the Supreme Court for the first time recognized the right to privacy which is implicit in the Constitution under Article 21 . Introit any clear cut laws, it still remains in the gray area.
The view was based on the conclusion that the infringement of a fundamental right must be both direct as Nell as tangible that the freedom guaranteed u/a 19(1)(a)- a right to freedom of speech and expression was not infringed upon by a watch being kept over the movement of the suspect. In R. Regional v. State of T. N. , the apex Court held that the right to privacy is a ‘right to let alone’. No one can publish anything concerning the above matters without his consent, whether truthful or otherwise whether laudatory or critical. If he does so, he Mould be violating the right to privacy of the person concerned and would be liable in the action of damages. In Mr.. X v.
Hospital Z, it was held that where there is a clash of two fundamental rights, as in the instant case, namely, the appellant’s right to privacy as a part of right to life and other person’s right to lead a healthy life which is her fundamental right u/ 1, the right which would advance the public morality or public interest, would alone be enforced through the process of Court, for the reason that moral consideration cannot be kept at bay and Judges are not expected to sit as mute structures of clay as in Hail, known as Courtroom but have to be sensitive, “in the sense that they must keep their fingers firmly upon the pulse of the accepted morality of the day’. Voicing concern over vexatious use of ART’ Act, Prime Minister Mammon Sings said the citizens’ to know should definitely be circumscribed if it encroaches on an individual’s privacy. He said “there is a fine balance required to be maintained between right to information and the right to privacy, which stems out of the fundamental right of life and liberty. The citizen’s right to know should definitely be circumscribed if disclosure of information encroaches upon someone’s personal privacy. But where to draw a line is a complicated question. Recently in one of the most controversial case Rattan Data went to Supreme Court against the publication of intercepts of his conversation with Near Radii who handles the corporate communication for the group. Data holds that as Radii’s hones were tapped by government agencies especially for investigating a possible offence the recorded conversations should have been used for that purpose alone. Rattan Data has submitted his petition before Supreme Court asking to protect his right to privacy. But given that freedom of information laws have at their core the purpose of disclosure, exemptions are strictly construed, and it has been said that the public right to know should prevail unless disclosure would publicize intimate details of a highly personal nature. The Radii tapes so far published public issues, but not personal life of Data.
These conversations would be available to every citizen under the ART’ Act because the only objection that one could raise would be on the ground of 80) of ART’ Act which says-information which relates to personal Information, the disclosure of which has no relationship to any public activity on the individual unless the public authority is satisfied, unless the information officer is satisfied that the larger public interest Justifies the disclosure of such an information. ” In that case a preliminary question that should be asked is whether Tat’s conversations would be revealed through an ART’, or whether his conversations would all under the exemption of personal information found in section 80). It is interesting to note the structure of this exemption. By the use of word “or” the legislation suggests that unwarranted invasion of individual privacy may trigger the exemption, even if the information has a relationship to public activity or interest.
But the added caveat says that the larger public interest could Justify the release of even purely private information. Ay the use of the word “or” the legislation suggests that unwarranted invasion of Individual privacy may trigger the exemption, even if the information has a allegations to public activity or interest. But the added caveat says that the larger public interest could Justify the release of even purely private information. In addition, what constitutes “personal” information has not been defined in the legislation. However, according to expert legal opinion, the Supreme Court of India is well within TTS rights to allow disclosure of conversation details between Rattan Data and Naira Radii.
Later Developments In Right To Privacy Right to privacy, once incorporated as a fundamental right, is wide enough to encroach into any sphere of activity. The conferment of such a right has become extremely difficult with the advancement of technology and the social networking sites. But the other side of the picture is that right to privacy of a person includes the right to seclude personal information. The extent to which the realm of privacy of each person should remain is subjective, which might differ from person to person. Ere recognition of right to privacy can also be seen in the S. 43 of Information Technology Act which makes unauthorized access into a computer resource invoke liability. Today, each person is a press, taking in view the emergence of blob spots and social networking sites. Many a times, the right to privacy may come in conflict with the right to press the right to press is a right derived from Article 19 (1) (a) in particular. Ere right to expression of a person may come in conflict with the right to privacy of another person. The question, where there is a conflict, which should prevail over the Other, is well explained by bringing in the concept of ‘public interest’ and ‘public morality. The publication of personal information of an individual without his consent or approval is Justified if such information forms part of public records Including Court records. Each case is distinct and each right is special.
