This article is written by Sneha Mahawar, from Ramaiah Institute of Legal Studies. The article discusses the concept of the right to privacy and lays down the landmark judgement related to this concept.
Meaning of privacy
In the general sense, the term ‘Privacy’ means the state of being secluded from the presence, sight, or knowledge of others. It is the freedom from unwanted or undue disturbance of one’s private life. It can be further described as freedom from damaging publicity, public scrutiny, surveillance, and disclosure of personal information, usually by a government or a private organization.
Introduction to ‘right to privacy’
Every individual has a ‘Right to Privacy’. It can also be termed the ‘right to be left alone’. The Right to Privacy is described under Article 21 of the Constitution of India (COI), Article 12 on Universal Declaration of Human Rights (UDHR), Article 17 of International Covenant on Civil and Political Rights (ICCPR), and Article 16 of the Convention of the Rights of the Child (CRC). It is regarded as a right of being free from unwanted interference.
How did the right to privacy become a fundamental right
Fundamental rights are rights that exist for the overall development of people to make sure that they live in a dignified manner. The main aim of fundamental rights is to secure political freedom for all its citizens.
The Right to Privacy was firstly discussed in the debate of constituent assembly where K.S. Karimuddin moved an amendment which was only given inferior support by B.R. Ambedkar was then not incorporated into the Constitution of India (COI).
In M.P Sharma v. Satish Chandra, it was held by the Supreme Court for the first time that the Right of Privacy was not considered a fundamental right. This case was held in the year 1954 by a bench of 8 judges while dealing with the power to search and seize documents from the Dalmia Group.
In Kharak Singh v. State of Uttar Pradesh, it was again held by the Supreme Court that the Right to Privacy is not a fundamental right. This case was held in the year 1962 by a bench of 6 judges.
In Gobind v. State of Madhya Pradesh, it was a bench of 3 judges at the Supreme Court where it was held that there exists a fundamental Right of Privacy under Article 21 of the Indian Constitution. Though in this case, the plaintiff lost, privacy gained recognition in law under personal liberty as a part of the Indian Constitution.
In Justice K.S. Puttaswamy v. Union of India, a judgement was delivered by Justice D.Y. Chandrachud on 24th August 2017 which became a landmark judgement in the history of India. It was declared by a bench of 9 judges after which the Right of Privacy was proclaimed as a fundamental right which is protected under Part 3 of the Indian Constitution. This judgement overruled the decision of the M.P. Sharma case and Kharak Singh case. After the judgement of this case was delivered it was clear that the Right to Privacy will hold a status amongst the Golden Trinity which is Article 14 (Right to Equality), Article 19 (Right to Freedom), and Article 21 (Right to Life and Personal Liberty).
The judgement which established right to privacy as a fundamental right
Justice K.S. Puttaswamy v. Union of India
In this case, the Right to Privacy was brought via a Public Interest Litigation (PIL) to the Court by a Karnataka High Court Judge who was then 91-year-old, Justice Puttaswamy against the Union of India before a bench of 9 judges at the Supreme Court. The PIL was filed to determine whether the Right of Privacy was guaranteed as a fundamental right under the Constitution of India or not.
This case was concerned to challenge the Aadhar scheme of the Government. Initially, it was heard by a bench of 3 judges who found the case to be of great significance and referred the case to the Constitution Bench, which consisted of 9 justices. The issue was that the Government made it mandatory to form a uniform biometrics-based identity card, and people were mandated to avail the government services and benefits which violated the Right to privacy.
The petitioner argued that the Right to Privacy is a fundamental right and should be guaranteed under the Constitution of India just like the Right to Life with dignity under Article 21 of the Constitution of India.
The bench of 9 judges or the Constitution bench of the Supreme Court unanimously voted ‘Yes’. It gave recognition to the Right to Privacy as a part of Right to Life and Personal Liberty under Article 21 of the Constitution of India.
Right to privacy under various articles in force
Constitution of India
The Court has declared that Right to Privacy is a fundamental right protected under Article 21 of the Constitution of India. It further stated that each individual has a right to protect their own privacy related to family matters, marriage related matters, childbearing’s privacy, procreation’s privacy, education’s privacy and in other things which no one has a right to publish without the consent of the person unless it is a public record. This right has been protected under Article 21 of the Indian Constitution, which is not suspended even at the time of emergencies.
Indian Contract Act, 1872
The Indian Contract Act, 1872, deals with forming of contracts. This contract also includes the privacy or confidentiality clause, which means that the parties to a contract can only disclose the amount of information which is agreed between them or which is necessary for the contract’s formation. If this clause is breached, then the contract might be terminated, and the party has to provide damages for the damage caused.
Law of Tort
Law of Tort is an uncodified law and is only based on precedents. However, it still recognises the Right to Privacy in various forms such as defamation, harassment, nuisance, trespass, breach of confidence, etc.
Indian Evidence Act, 1872
Section 126 of the Indian Evidence Act, 1872 states the laws about ‘professional communication’. Professional communication includes the relation between doctor-patient, attorney-client, customer-insurer, etc. Such parties are under such an obligation to protect the privacy of the other party under the Right to Privacy.
Information Technology Act, 2000
The Information Technology Act, 2000 deals with the punishment awarded or damages to be paid in case a person’s data is misused or disclosed wrongfully. The person who discloses any such information of another person illegally or in an unauthorised manner then he is said to be liable for such an act.
Credit Information Companies Regulation Act, 2005 (CICRA)
Under the Credit Information Companies Regulation Act, 2005 (CICRA) the information of credit and finance which belongs to individuals is to be collected as specified in the privacy norms of the Act. The entities which collect such data and maintain the records shall be held liable in case the information is leaked.
Intellectual Property Law
Intellectual Property includes Intellectual Property Rights that are patent, copyright, trademark, etc. The Indian Copyright Act has specified a mandated punishment for the violation of copyright without the consent of the person.
The Privacy Bill, 2011
This is a bill that is in the form of a draft and has not become a statute yet. It provides for the Right of Privacy to the citizens of our country. It lays down the rules to be followed while collecting, maintaining, and using the personal information of the citizens. It also states the penalty in case the right is violated.
Universal Declaration of Human Rights, 1948 (UDHR)
Article 12 of the Universal Declaration of Human Rights, 1948 (UDHR) deals with the Right to Privacy. It is an instrument which provides to the citizens this right. It states that the privacy of a home, the privacy of a family or such personal affairs shall not be intruded or attacked or honour shall not be destroyed. It protects the people from such intrusion.
International Covenant on Civil and Political Rights, 1966 (ICCPR)
Article 17 of the International Covenant on Civil and Political Rights, 1966 (ICCPR) deals with the Right to Privacy. It is an instrument which provides to the citizens this right. It states that the privacy of a home, the privacy of a family or such personal affairs shall not be invaded or attacked or honour shall not be destroyed. It protects the people from such intrusion.
Landmark case: Zahida Begum v. Mushtaque Ahmad (AIR 2006 Karn 10)
Facts of the case
In this case, the petitioner who is the wife( Zahida Begum) of Mushtaque Ahmad filed a suit against her husband(Mushtaque Ahmad) for dissolution of their marriage. The ground stated by her was that her husband, i.e., Mushtaque Ahmad, is an impotent man and is unable to perform marital obligations. The husband (Mushtaque Ahmad) denied such allegations made by his wife(Zahida Begum). He requested the Hon’ble Court to direct his wife(Zahida Begum) to undergo a medical checkup to ascertain whether she is a virgin.
The Hon’ble High Court of Karnataka held that directing a female to undergo a medical checkup to ascertain her virginity is considered improper and is an act which would invade the privacy of the plaintiff. It is a violation of Article 21 of the Indian Constitution which protects the Right to Privacy under Right to Life and Personal Liberty under Part III of the Constitution of India.
Case laws relating to right to privacy
Selvi and others v. the State of Karnataka
In this case, the Supreme Court of India acknowledged the difference between the two terms, that is ‘physical privacy’ and ‘mental privacy’. This case also established the intersection of the Right to Privacy with Article 20(3) of the Constitution of India.
Surjit Singh v. Kunwaljit Kaur (AIR 2003 P & H 353)
In this case, the High Court held that if a woman is allowed for the medical examination of her virginity, it would be improper and certainly violate her Right to Privacy and personal liberty which is guaranteed under Article 21 of the Indian Constitution. Directions of such an order would amount to an enquiry against a female who is vulnerable to the society even otherwise. In this matrimonial case, the question of virginity of the wife is not in issue, and a woman being a virgin cannot constitute the sole basis to prove the consummation of the marriage. Allowing such a medical examination of the wife is not permissible and unethical. Thus, an order of the Lower Court dismissed an application by the husband for getting his wife medically examined to prove her virginity is proper.
State of Maharashtra v. Madhukar N. Mardikar (1991) 1 SCC 57
In this case, the Supreme Court of India held that if a woman is not a virgin, it does not mean that she is open to any person to violate her privacy and her person whenever it is his wish to do so. It was stated under this case that even a prostitute has a Right to Privacy which is guaranteed under Article 21 of the Indian Constitution and no person has the right to rape her just because he is a woman of easy virtue.
Hence, the Right to Privacy is incorporated under Article 21 of the Indian Constitution, which is related to Right to Life and Personal Liberty. It was first declared as a fundamental right in the year 2017. It is a fundamental right and is guaranteed under the Indian Constitution, just like the Right to Live with dignity. It is an indispensable part of our Constitution and is recognised by many nations of the world.
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