Evolution of the Right to Privacy

Above well-known proverb is now getting legal recognition as Right to Privacy. Human beings have a natural need to autonomy or control over confidential part of their. This need is inherent in human behaviour [1] and now this has been recognized as fundamental right to privacy. It is not a right against physical restrains but it is a right against psychological restrain or encroachment of right [2] . USA, UK, India, UDHR, ECHR has recognized this right as fundamental right. The scholars [3] and judges [4] have also found the necessity of this right. Warren and Brandeis were the some of them. Well known Lord Denning also found its necessity in modern life and also tried to trace out the root of right to privacy in the common law [5] .

B. P. Jeevan Reddy, J. in R. Rajagopal v State of T.N. [6] observed that there are two types of Right to Life present – 1) the general law of privacy which affords a tort action for damages resulting from an unlawful invasion of privacy and 2) the constitutional recognition given to the right to privacy against unlawful governmental invasion. This project is related to second type of Right to Privacy that is Constitutional Right to Privacy.

Right to Privacy is not explicit in the Constitution of India, so it is a subject of judicial interpretation. The judicial interpretations of fundamental right bring it within the purview of fundamental right.

The journey of issue of Right to Privacy started with the decision of Kharak Singh v State of UP [7] (here in after Kharak Singh Case) and Govind v State of MP [8] (here in after Govind Case). Indian Judges initially felt some hesitation to declare Right to Privacy as absolute Fundamental Right. In Kharak Singh case Justice Ayyangar, observed that this right is not the part of fundamental right [9] . Where as Justice Subba Rao felt that this right is an essential ingredient of personal liberty [10] .

In Govind Case, Justice Mathew observed, that Right to Privacy has to be developed through step by step observation, he says, “The right to privacy in any event will necessarily have to go through a process of a case-by-case development" [11] . May be he thought that right to privacy is a foreign concept and Indian culture might face problem with that, or right to privacy has to be interpreted in an Indian way, which would obviously take time. Now his wish be comes true, Indian courts gradually step by step developed the right to privacy, through various cases Neera Mathur v LIC [12] , R. Rajagopal v State Of T.N. [13] , PUCL v Union of India [14] , Mr. ‘X’ v Hospital ‘Z’ [15] and specially after the broad interpretation of right to life in Maneka Gandhi v Union of India [16] , it now can be considered under the Art 21 of the Constitution.

The issue of right to privacy in India is not free from any conflicts with other right, exceptions and criticism. Initially there was an issue in that whether the right to privacy is fundamental right or not. This issue appeared in the Kharak Singh Case. After that in Govind Case that to some extent recognized the right of privacy as fundamental right but provided the exception and restriction.

The journey of this project would start from the search of answer of issue that whether the right to privacy is a fundamental right, through analysis of cases and some pioneering work of scholars. After that this research would try to find out the scope and limitations of right to privacy.

Methodology and Literature Review:

This research would be analytical and it would analyze the judgment of cases and some pioneer works of scholars. Researcher has used books, articles and electronic source as secondary source and some statutes and judgment as a primary source. The research is the analysis of these secondary and primary sources as well as electronic.

Interpretation & Enforcement of Fundamental Right by D.J. De is focused only on fundamental right and this book is helpful to search the evolution of right to privacy, and it is also helpful to trace the cases and some classical articles (eg Warren and Brandies work) on right to privacy. What Next in The Law by Lord Denning is useful to understand the necessity of this right and the evolution of right to privacy in United Kingdom. The Substantive Right to Privacy by Abhinav Chandrachud is a good critical analysis of right to privacy under constitution; it gives some idea to trace the issues on this topic. On the other hand The Right to Privacy: A New Horizon by Bishnu Prasad Dwivedi and Right to Privacy – Whether Fundamental by Suvendu Kumar Pati is give information about the right rather that doing critical analysis. These two articles are helpful to understand the nature of Indian version of right to privacy.

Research Question

How does the Right to Privacy develop?

Whether the right to privacy is a fundamental right?

To what extent one can use his/her Right to Privacy.

Chapter I: Journey of Evolution of the Right to Privacy

Feeling, emotions, psychological restrain are the subject matter of Privacy. But it was a quite difficult task to bring it in the sphere of cause of action. Samuel Warren and Louis Brandeis stated this discuss on the issue of Right to Privacy. Indian court also contributed to develop this right. The objective of this chapter is to trace the evolution of Right to Privacy.

Philosophy of Right to Privacy

In the 1890s, Samuel Warren and Louis Brandeis developed the concept of privacy; they identified the ‘injury to the feelings’ and recognized it as a legal injury [17] and through invasions upon his privacy, subjected him to mental pain and distress [18] . Their philosophy is spiritual rather than mundane or material [19] .To set up the philosophy ‘right to privacy’ they first try to establish it as a part of right to life [20] , and then they compare it with tort of defamation (damage to reputation) [21] , implied contract of not disclose [22] . They also found some exception to it [23] . Main focus of their research is to discuss the overstepping of press. Finally they come to conclusion that object of privacy is to protect ‘inviolate personality’ [24] ; and not mere to related to private property [25] and they said that:

Thus, in very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi et armis. Then the "right to life" served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the individual his lands and his cattle. Later, there came recognition of man's spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life,- 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. [26] 

Evolution of Right to Privacy in India

The concept of privacy can be traced out in the ancient text of Hindus. If one look at the Hitopadesh it says that certain matter (worship, sex and family matters) should be protected from disclosure [27] . This not entirely alien to Indian Culture, but some jurist like Sheetal Asrani-Dann has doubts about the evolution in India [28] , in support of this she also explain Upendra Baxi view, “Everyday experiences in the Indian setting (from the manifestation of good neighborliness through constant surveillance by next-door neighbors, to unabated curiosity at other people’s illness or personality vicissitudes) suggest otherwise" [29] . But Upendra Baxi is clearly concerned with kindness, sympathy, humanity or gentleness, which is an unabated curiosity; it is not about ill-will. But Hitopadesh can not be subject to ‘Positive Law’ [30] , even in ancient time it was related to ‘Positive Morality’ [31] ; so in this sense it can be said that in ancient Indian text there was vagueness about the right to privacy.

But in modern India first time the issue of right to privacy was discussed in debates of constituent assembly were K.S. Karimuddin moved an Amendement on the lines of the US Constitution, where B.R. Ambedkar gave it only reserved support, it did not secure the incorporation of the right to privacy in the constitution [32] .

In M.P. Sharma v Satish Chandra (here in after M.P. Sharma Case) [33] were Supreme Court on the issue of ‘power of search and seizure’ held that they can not bring privacy as the fundament right because it is something alien to Indian Constitution and constitution maker does not bother about the right to privacy [34] . K.R. Suraj v The Excise Inspector Parappananqadi, [35] and in State Rep. by Inspector of Police v N.M.T. Joy Immaculate [36] refresh the point that in India right to privacy can not used against the power of search seizure.

After M.P. Sharma Case in Kharak Singh Case Supreme Court on the issue of whether surveillance, defined under Regulation 236 of the U.P. Police Regulations is amount to infringement of fundamental right and whether right privacy is come under the purview of fundamental right; they denied the right to privacy as fundamental right and they concluded that “the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements 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" [37] ; but Justice Subba Rao understand the need of psychological restrain, which obviously an indication of recognition of the value of right to privacy and stated “… but as civilizations advances the psychological restraints are more effective than physical ones" [38] . They denied the right to privacy as concept of fundamental rights clearly; but the struck-down the said Act unconstitutional under Article 21 [39] (majority view) and also under Article 19 [40] (dissenting opinion). Judges are arguing that the personal liberty can not be restricted only to mere physical restriction (as affirmed in the A.K. Gopalan v State of Madras [41] ), it should be broader [42] . While they were broadening the scope of Article 21 they somehow broadened the scope of Article 21 specially the meaning of ‘Personal Liberty’ to recognize the fact that Article 21 Right to Life is not about ‘merely the right to the continuance of a person's animal existence’, but a right to the possession of each of his organs, arms, legs, etc. One thing should be taken into the account that without the Right to Privacy man is force down to live like an animal. It has already been noted earlier in this research the US and Germany consequences of encroachment of FBI and Gestapo to the individual sphere immensely [43] . Subba Rao, J., rightly pointed-out in the next privacy related case (Govind Case) that the Right to Privacy is an essential ingredient of Right to Life [44] .

The next case was the Govind Case, where the right to privacy was discussed in detailed. The issue was quite similar to the Kharak Singh Case, but this time the approach of judgment was rather different. They upheld the validity of Madhya Pradesh Police Regulations, 855 and 856, made under Section 46(2) (c) of Police Act, 1961, under the reasonable restriction. Judges were unable of deciding that whether the Right to Privacy is a fundamental right or not and they pass on the burden to the next cases through saying that the “The right to privacy in any event will necessarily have to go through a process of a case-by-case development" [45] . It is right one good concept of law can not be developed through one case, because it is very hard to see the exceptions and consequences of that concept of law through one case. So Mathew, J., was surely an intelligent rather unable to recognize right to privacy. May be he thought that right to privacy is a foreign concept and Indian culture might face problem with that, or right to privacy has to be interpreted in an Indian way, which would obviously take time.

This case gave the very vague idea of the recognition of right to privacy. What they actually did was that they interpreted the objective of makers of Constitution of India and then broaden the scope of Article 21, so that the right to privacy can fall into it. They found that the objective of them is to ensure the conditions favorable to the pursuit of happiness, emotions and sensations. They accept the idea of Professor Crown, ‘liberty against government’ should be the basis of fundamental right.

They only said that

“Rights and freedoms of citizens are set forth in the Constitution in order to guarantee that the individual, his personality and those things stamped with his personality shall be free from official interference except where a reasonable basis for intrusion exists. ‘Liberty against government’ a phrase coined by Professor Corwin expresses this idea forcefully. In this sense, many of the fundamental rights of citizens can be described as contributing to the right to privacy."

In Maneka Gandhi v Union of India [46] , Supreme Court interpreted the Article 21 in broad sense. They said that both the rights of personal security and personal liberty recognized by what Blackstone termed 'natural law' are embodied in Article 21. And Article 21 is of the widest amplitude and covers a variety of rights which go to constitute the personal liberty of man. Maneka Gandhi Case started the wide interpretation of Right to Life, which actually helped the Right to Privacy to fall into to the scope of Right to Life. Later on, the approach of Maneka Gandhi Case to interpret the Article 21 was followed by the Supreme Court in the cases related to Right to Privacy.

In Neera Mathur v LIC [47] , the Supreme Court held that declaration seeking disclosures from lady candidate regarding personal problems (menstruation) are embarrassing and improper, which leads the violation of her right to privacy.

Next two cases Indian Express Newspaper (Bombay) Pvt. Ltd. v Union of India [48] and Life Insurance Corporation of India v Prof. Manubai D. Shah [49] recognize the fact that in a democratic society right to privacy should be recognized [50] , but the issues of these cases were not exclusively related to right to privacy.

Unni Krishnan v State of A.P. [51] numbered the twelve meaning of right to life; and right to privacy was one of them [52] . Whereas P. Rathinam/Nagbhusan Patnaik v Union of India [53] refer the Unni Krishnan Case to explain the meaning of right to life.

R. Rajagopal alias R. R. Gopal v State of Tamil Nadu [54] was the first case which explained the evolution and scope of right to privacy in detail. In order to attain this question, Supreme Court went through the entire jurisprudence of right to privacy, its evolution and scope; and this fulfills gaps of Govind Case. To explain evolution it mainly discussed the Govind Case and follows the almost same approach. This Court held that the right to privacy is implicit in the right to life and liberty guaranteed by Article 21. Reached on the conclusion, that right to privacy no longer subsists in case of matter of public record [55] .

People s Union for Civil Liberties (PUCL) v Union of India [56] is related to phone tapping and it discussed that whether telephone tapping is an infringement of right to privacy under Article 21. Supreme Court argued that conversations on the telephone are often of an intimate and confidential character and telephone-conversation is a part of modern man’s life. Supreme Court also said that whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case.

In Mr. ‘X’ v Hospital ‘Z’ [57] it was decided that when the right to privacy clashes with the other fundamental right i.e. right of privacy one person and right to lead a healthy life of another (society), then the right which would advance public morality or public interest would alone be enforced. Samuel Warren and Louis Brandeis discussed the same thing; they stated that “The right to privacy does not prohibit any publication of matter which is of public or general interest" [58] 

In State of Karnataka v Krishnappa [59] , Supreme Court linked the child rape to the right to privacy. Dr. A.S. Anand, CJI., affirmed that “Sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self esteem and dignity-it degrades and humiliates the victim and where the victim is a helpless innocent child, it leaves behind a traumatic experience." In State of Karnataka v S. Nagaraju [60] and in Sudhansu Sekhar Sahoo v State of Orissa [61] , Supreme Court accepted the same thing. Supreme Court used the concept of right to privacy to enhance the degree of punishment. Again in State Of Madhya Pradesh Vs. Babulal [62] , Supreme Court again considered that Sexual violence apart from being a dehumanizing act is also an unlawful intrusion of the right to privacy and sanctity of a female [63] .

In Sharda v Dharmpal [64] , Supreme Court held that a matrimonial court has the power to direct a party to undergo medical examination and passing of such an order would not be in violation of right of privacy or personal liberty under Article 21 of the Constitution of India [65] , in support of this supreme court agued that information which is necessary for society should not protected from the making known to other under right to privacy [66] .

In People s Union for Civil Liberties (PUCL) v Union of India [67] , Supreme Court upheld the validity of various provisions of the Prevention of Terrorism Act, 2002 and said that Right to privacy is subservient to that of security of State [68] ; and referring to the Sharda v Dharmpal they said that holding information which is necessary for the security of state can not be the subject to security of state [69] .

Distt. Registrar and Collector v Canara Bank [70] , Supreme Court again looked at the evolution of right to privacy. In this case Supreme Court held that the documents or copies of documents of the customer which are in Bank must continue to remain confidential vis-a-vis the person, even if they are no longer at the customer s house and have been voluntarily sent to a Bank.

In Anuj Garg v Hotel Association of India [71] , Parens Patriae power is subject to constitutional challenge on the ground of Right to Privacy also [72] , the main issue in this case was the Constitutional validity of Section 30 of the Punjab Excise Act, 1914, which prohibiting the employment of any man under the age of 25 years or any woman in any part of such premises in which liquor or intoxicating drug is consumed by the public. Supreme Court upheld the decision of Delhi High Court, which declared it to be ultra vires Articles 19(1)(g), 14 and 15 of the Constitution of India.

In Directorate of Revenue v Mohammed Nisar Holia [73] , Supreme Court observed that although a statutory power to make a search and seizure by itself may not offend the right of privacy but in a case of this nature, the least that a court can do is to see that such a right is not unnecessarily infringed [74] . A person, if he does not break a law would be entitled to enjoy his life and liberty which would include the right not to be disturbed (right to privacy). A right to be let alone (right to privacy) is recognized to be a right which would fall under Article 21 of the Constitution of India [75] .

In Hinsa Virodhak Sangh Vs. Mirzapur Moti Kuresh Jamat [76] , Supreme Court held that what one eats is one's personal affair and it is a part of his right to privacy which is included in Article 21 of our Constitution as held by several decisions of this Court. Also, a large number of people are non-vegetarian and they cannot be compelled to become vegetarian for a long period. But finally Supreme Court held that the closure of the slaughter houses is only for 9 days and not for a considerable period of time. One should respect the emotions of other. Supreme Court struck down the decision of High Court and upheld the resolutions of the Municipal Corporation of Ahmedabad to close down the meat shops for 9 days.

After observation of these entire cases one can say that Right to Privacy is related to individual’s personal liberty, which leads to be recognized as a Right to Life.

Chapter II: Scope of Right to Privacy

Chapter I successfully establishes that right to privacy is a fundamental right. This right is an extension of right to life. Since no right is absolute and every right is subjected to some restriction; this right has also some restrictions. Objective of this is to find out the scope of right to privacy through the process of analysis of Indian Case.

Restriction with Right to Privacy

On the issue of limitation of Samuel D. Warren and Louis D. Brandeis said that the right to privacy must not contradictory to the public welfare or of private justice [77] . This exception was used in many Indian cases to avoid the unjust judgment. These following are the main exceptions to the right to privacy-

Search and Seizure

In M.P. Sharma Case, Supreme Court avoided to follow the American [78] way to invalidate the ‘search and seizure’ on the ground that they do not have the power to import such law, it is a work of legislation and 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 is necessarily regulated by law [79] . K.R. Suraj v The Excise Inspector Parappananqadi and State Rep. by Inspector of Police v N.M.T. Joy Immaculate are the confirmation of it.

Reasonable Restriction

In Govind Case, Supreme Court restricted the fundamental right against the reasonable restrictions to prevent the commission of crimes.

Public Record

After this case R. Rajagopal alias R. R. Gopal v State of Tamil Nadu [80] was the case, which explained the issue of right to privacy in detailed. They observed that the right to privacy no longer subsists in case of matter of public record including Court records [81] . One can publish a document in so far as it appears from the public records. If this document has not the nature of public record, then it can violate the right to privacy of other’s.

Conflict between Two Aspects of Right to Life

Next is Mr. ‘X’ v Hospital ‘Z’ which generally explains the conflict between two aspects of Right to Life, one is right to privacy and another one is right to healthy life of other. Supreme Court held that in these situations the society’s right will prevail. Court also concluded that Right to privacy is essential component of right to life, but same is not an absolute right. .

Information and Public Requirement

In Sharda v Dharmpal, Supreme Court Held that what ever the information is require for the society should not be protected under the right to privacy. This point was also considered in People s Union for Civil Liberties (PUCL) v Union of India [82] , on the issue of validity of the Prevention of Terrorism Act, 2002 (POTA).

State Security

In PUCL v Union of India [83] , Supreme Court upheld the POTA, they said that in the matter of state security such Act is necessary.

Law Breaker does not have the Right to Privacy

In Directorate of Revenue v Mohammed Nisar Holia, it was held that if he does not break a law would be entitled to enjoy his life and liberty which would include the right not to be disturbed (right to privacy). That means on the violation of any law leads to loss of his right to privacy.

What does Right to Privacy Include?

India judge developed the doctrine of Right to Privacy and included many things on it. These are the following issues which were included in the Right to Privacy.

Sanctity of Women

Supreme Court is sensitive to the women issue related to sanctity; and they often connect these issues to right to privacy. In Neera Mathur v LIC they held that disclosure of personal problems (menstruation) would lead to violation of her right to privacy. Supreme Court also uses the Right to Privacy to increase punishment of crime against women. In State of Karnataka v Krishnappa and in State Of Madhya Pradesh Vs. Babulal supreme court connected the rape to the right to privacy.

Telephone Tapping

In People s Union for Civil Liberties (PUCL) v Union of India [84] , Supreme Court held that telephone tapping is a violation of right to privacy.

Personal Affair

In Hinsa Virodhak Sangh Vs. Mirzapur Moti Kuresh Jamat, Supreme Court held that personal affair like restriction of what one is eating is a violation of right to privacy.

Chapter III: Conclusion

In the journey of tracing the case related to Right to Privacy, researcher has observed that Supreme Court of India stated to follow the wider approach to interpret the Right to Privacy, as provided in Maneka Gandhi Case. One can divide the evolution of Right to Privacy in two era; and use the Maneka Gandhi Case as a dividing line of these. Look approach of case followed by the court, before Maneka Gandhi, Govind v State of MP, used the ‘pursuit of happiness, emotion and sensation’ and ‘liberty against government’ to interpret the Right to Life, and gave the vague idea about Right to Privacy. After the Maneka Gandhi cases Supreme Court used to word personal liberty and natural justice which make the easier way to bring the Right to Privacy in the scope of Right to Life.

Now Right to Privacy has been developed by the Supreme Court of India, so that it can bring the Sanctity of Women, Telephone Tapping, Personal Affair into it. Supreme Court has also brought some exceptions with the right to privacy.

So, the observation of Mathew, J., is becoming true that Right to Privacy has to develop through case by case. And now development through cases this right has become a part of Right to Life.