Indian law is very flexible. It works according to the need of the society.
Various changes in the political, economical and social changes entail the
recognition of rights in our country. Our constitution has given us various
rights which do not possess an existence in words expressively, but Honorable
Supreme court do observes them.
As the common law enlarges itself it also tends
to accommodate the growing needs of the people. By the time it has observed that
not only physical security was required but also security of spiritual self as
well as of feelings and intellect was required. Article 21 of the Indian
constitution guarantee us Right to life and liberty and it recognize that Right
to life also include Right to privacy.
Before going further let us first understand what the word Privacy
According to Black's 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
It encompasses various rights where one have his
personal space, where one is free on any social interaction, where one makes his
own fundamental choices about himself, his family and his relationship with
others, where one can took off a mask which it wore in front of public.
The concept of privacy in its broad sweep covers a number of prospects like
nondisclosure of information, sexual affairs, business secrets and non
observance by others. It may be said that the privacy is antithesis of being
public, for e.g. if any private letters of any person are published by anyone
without his express or implied permission then his privacy would come to be
violated. Similarly if one's neighbor peeps into in his house from outside then
it would also constitute violation of his right to privacy. Thus privacy is a
state of isolation and separation from others. Privacy in general means the
right to be let alone.
Scope of Right to Privacy
The question on the existence of Right to Privacy is incomplete without
discussing the scope of it. Fundamental rights in our constitution are subject
to some limitations in the constitution. So the most significant question
regarding the application of the fundamental right is their applicability is the
extent and its scope and how and when they can be limited by the state actions.
Justice Nariman J. quoted in his judgment, when it comes to restrictions on this
right, the drill of various Articles to which the right relates must be
Which simply indicates that right to privacy is not
merely read as a right under article 21 but it also associated with other right
stated in part III.:
Just, fair and reasonable'
test and compelling state interest'
In A.K. Gopalan vs The State Of Madras
the majority held that the phrase
procedure established by law does not mean the procedural due process or
But there is the significant change done by Maneka Gandhi vs
Union Of India
in the constitutional provision which said that procedure
established by law' must be fair, just and reasonable, and cannot be arbitrary
and fanciful. Therefore, any infringement of the right to privacy must be
through a law which follows the principles of natural justice, and is not
arbitrary or unfair.
In Gobind v. State of Madhya Pradesh
, the Supreme Court adopts the strict
scrutiny test for laws infringing on the right to privacy. The court held that
privacy violations could be justified only if there was a compelling state
interest involved, and the law was narrowly tailored which meant that the state
would have to show that there was no alternate, privacy-preserving way, through
which it could achieve its goals.
Between the two just fair and reasonable test
and the state scrutiny test
justice Chelameshwar J. observe that only the most critical privacy claims will
attract the strict scrutiny standard while the others will only attract the
fair just and reasonable' standard.
Thus the scope in determining the right to privacy stops short of being
prescriptive, and future cases which apply these principles will determine the
extent of privacy protections accorded in different cases.
Right to privacy is not an absolute right
The right to privacy is guaranteed by our constitution in Article 21. However
fundamental right is subject to some limitation by in order to maintain social
order in the country. In order to prevent the terrorism, crime, disorder and
related activities many countries tend to curb this trend.
Privacy Technology has invaded in our daily life in every aspect whether such
invasion is desired or not. We have come to a phase where knowingly or
unknowingly we are authorizing third party to use our personal information.
Keeping mandatory providing any personal information by various companies and
organization or even by the authorities without proper legislation is the
absolute abuse of the right to privacy.
In Govind v. State of Madhya Pradesh
it was held "Assuming that the fundamental
right explicitly guaranteed to a citizen has penumbrae zones and that the right
to privacy is itself a fundamental right, and it must be subject to restriction
on the basis of compelling public interests.
The code further observed that:
there is a conflict between fundamental rights of two parties that right which
advances public morality would prevail.
Intrusion in privacy can be made by the legislature, executive and judiciary but
the law should be fair and reasonable. It must go into proportionality of
intrusion vis-à-vis a purpose sought to be achieved.
There are certain recommendations made by the Justice BN Shreekirshna's
committee's are as follows:
- Processing (collection, recording, analysis, disclosure, etc) of
personal data should be done only for clear, specific and lawful purposes.
Only that data which is necessary for such processing is to be collected
- Personal data may be processed by the central and state government if
necessary for the function of the government. It allows processing of
personal data for prevention of offense and contravention of law.
- Committee suggest the Right to be forgotten which means that once the
purpose of using the personal data has ended it must be restrict or prevent
any display of the personal data.
- Personal data will need to be stored on servers located within India,
and transfers outside the country will need to be subject to safeguards.
Critical personal data, however, will only be processed in India.
- The committee recommended that sensitive personal data (such as
passwords, financial data, sexual orientation, biometric data, religion or
caste) should not be processed unless someone gives explicit consent- which
factors in the purpose of processing.
- The committee recommended that the amendment amend Section 8(1)(j) of
Act that pertains to the disclosure of personal information in the larger public
interest. The old Section 8(1)(j) said there would be no obligation to reveal
personal information which was not related to public authority or interest, or
would be an invasion of privacy.
Right to privacy in India
M.P. Sharma v. Satish Chandrawas
was the first case in the supreme court where
the Right to privacy is considered in context of search and seizure by the
state. But a very narrow view is taken and it was held that searches and seizure
cannot be held illegal on the ground of volation of any fundamental right as it
is conducted under the proper authority.
Kharak singh v. State of UP
the petitioner was charged and tried with dacoity
but was subjected to domiciliary visits by the authority it was held that that
Article 19 does not means that person can move freely from one place to another
without a physical restraint but it also involves free movement. The adverb
gives it a large purview. If the man is stalked by the third party it
would restrict his movements.
The shroud of surveillance cast upon him perforce
engenders inhibitions in him and he cannot act freely as he would like to do.
Even if authorities are putting surveillance on a person it should be according
to the valid law. If the authorities enforcing surveillance as guards, without
any reasonable restriction sustaining or protecting their action is must be held
that the person freedom under Article 19 1 (a) and under Article 21 is also gets
infringed. So the court considered domiciliary visits unconstitutional and stuck
Rayala M. Bhuvneswari v. Nagaphomender Rayal
is the case where husband has
tapped the telephone call of her wife with other as evidence to seek divorce
with her. She denied some portion of the conversation. It was held that the act
of tapping by the husband is the intrusion in the personal space of the wife was
illegal and it is the violation of her fundamental right to privacy under
Article 21 so it cannot be admissible as a evidence even if talks are true.
Mr. X' Vs. Hospital Z' a person was founded HIV(+) and such information is
disclosed by the doctor to his prospective wife which results in the calling off
marriage. The petitioner filed a suit claiming that his right to privacy has
been infringed. It was held by the court that Ms. 'Y', with whom the marriage of
the appellant was settled, was saved in time by the disclosure of the vital
information that the appellant was HIV(+).
The disease which is communicable
would have been positively communicated to her immediately on the consummation
of marriage. As a human being, Ms. 'Y' must also enjoy, as she, obviously, is
entitled to, all the Human Rights available to any other human being. Moreover,
where there is a clash of two Fundamental Rights, as in the instant case,
namely, the appellant's right to privacy as part of right to life and Ms. 'Y's
right to lead a healthy life which is her Fundamental Right under Article 21.
In R. Rajagopal v. State of T.N.
popularly known as "Autoshanker case" the
Supreme Court has expressly held the "right to privacy" or the right to be let
alone is guaranteed by Art. 21 of the constitution. A citizen has a right to
safeguard the privacy of his own ,his family, marriage, procreation, motherhood,
childbearing and education among other matters. No one can publish anything
concerning the above matters without his consent whether truthful or otherwise
and whether laudatory or critical. If he does so, he would be violating the
right of the person concerned and would be liable in an action for damages.
However, position may be differed if he voluntarily puts into controversy or
voluntarily invites or raised a controversy.
Right to privacy and Right to Information
Technological advancement has lead the privacy considerably vulnerable to
intrusion by the State as well as non state actors. New technologies and
practices constantly challenging privacy. It enables routine sharing of personal
data and sensitive information (including biometrics and DNA makeup). To curve
the disclosure of public records over the internet more than 60 countries have
adopted a comprehensive law that gives individuals some control over the
collection and use of these data by public and private bodies.
Likewise, access to governmental information widely to the public is become
common all across the world. These can be facilitated through new information
and communication technologies, and Web sites containing searchable government
records are becoming even more widely available. Various international
organizations have fragmented stern laws on access to personal information of
the governmental bodies held by the public. We need to understand that both
privacy and RTI have their significance in their respective discipline and
neither the privacy nor access takes precedence over the other. For this both
the rights must be considered in a manner that is equal and balance.
The RTI is requisite for the very exercise of democracy. Democracy is based
on the consent of the citizens, and that consent turns on the government
informing citizens about its activities and recognizing their right to
participate. The collection of information by governments is done on behalf of
its citizens, and the public is only truly able to participate in the democratic
process when it has information about the activities and policies of the
Third party information
A public authority should not straightway reject a
written request for information simply on the ground that it relates to a third
party. The public authority if satisfied may obtain consent from the third party
for disclosure. Right to life
includes right to lead a healthy life as to
enjoy all the faculties of the human body in their prime condition, and the
disclosure that the prospective spouse is a HIV(+) can in no way be said to
violate the rule of confidentiality or the right to privacy. Clash of two
Fundamental rights, namely right to privacy and the right to live a healthy life
the right which would advance the public interest would alone be enforced.
However the unwarranted invasion may trigger the exemption even if the
information is associated with the public interest or benefit. But the large
public benefit may lead to disclosure of even the personal and sensitive
information of the public.
The norms of privacy should be determined and measured to a common standard
because a right without description is a right without protection. It may be
hoped that when an appropriate case comes before the Apex court, it would make
an overall review arid reconsider the existing position regarding the right to
privacy. Right of privacy may, apart from contract, also arise out of a
particular specific relationship, which may be commercial, matrimonial or even
political. It is also subjected to some reasonable restrictions for the
prevention of crime and protection of one morals and values.
The right to control dissemination of personal information in the physical and
virtual space should not amount to a right of total eraser of history, this
right, as a part of the larger right of privacy has to be balanced against other
fundamental rights like the freedom of expression, or freedom of media,
fundamental to democratic society. Due diligence would ensure that the access to
information and data protection laws have compatible definitions of personal
- The Fundamental right to privacy: Part (iii) SCOPE by Amber Sinha
- Right To Privacy Under Article 21 and the Related Conflicts by hinailiyas
- Gautam Bhatia, State Surveillance and the Right to Privacy in India: A
- Right to Information in Consance with Right to Privacy by Vartika Phogat
- AIR 1975 SC 1378.
- 1963 AIR 1295, 1964 SCR (1) 332
- AIR 2008 AP 98
- 2003 (1) SCC 500
- (1994) 6 SCC 632
- AIR 1950 SC 27: (1950) SCR 88.
- 1954 AIR 300
-  1 S.C.C. 345
- (2004) 1 SCC 712
- AIR 1991 SC 207
- 1950 AIR 27
- 1978 AIR 597