By Udbhav Bhargava
In the Indian context, the perspectives on and the notion of privacy as a right per se, have evolved over a large period of time, encompassing decades. Within this time period developed several factors that influenced the very definition of privacy. Advancements in communication, biometric, forensic and surveillance technologies, increased internet accessibility and increased awareness and participation in democratic processes. These factors indirectly influenced a series of Supreme Court (SC) judgments that ultimately led to the recognition of the right to privacy as a fundamental right implied in the legislative intent of the Constitution. The study provides a detailed analysis of these judgments and highlights the change in judicial perspective concerning privacy as a fundamental right, as well.
Four years after the newly drafted Constitution came into effect, the decision delivered by the 8-judge bench of the SC in MP Sharma vs Satish Chandra (1954) denied the recognition of right to privacy. The case challenged the constitutionality of a search and seizure of documents from an individual on the grounds of privacy. Whereas the main issue placed a question on the validity of such procedure in the light of fundamental rights mentioned in Article 19(1)(f) and Article 20(3). The bench held that the power to search and seize is an overriding power of the state for the protection of social security and is mandatorily regulated by law, hence it does not find it necessary to regulate the power through another fundamental right.
Arrests based on preventive detention, inspection visits, wiretapping, search and seizures and other forms of surveillance measures have implications associated with several dimensions of law, such as privacy, tort law, criminal law, etc. and unchecked use these powers can severely threaten an individuals’ security and enjoyment of his private property. The American Fourth Amendment conceptualized the notion that “each man’s home is his castle” and laid down the foundation for laws concerning arbitrary arrests and forms of surveillance having a core relation with criminal and privacy laws. But the constitution-makers did not find the utility of including provisions analogous to the contemporary Amendment that subjected the exercise of these measures to certain limitations.
Later though, the SC in Kharak Singh vs State of UP (1962), for the first time, recognized privacy as a right but not a constitutional right. The petitioner, accused of dacoity, was acquitted for lack of evidence but was kept under constant police surveillance through night domiciliary visits, secret picketing of house, tracking of movement, and frequent inquiries. The petitioner filed a writ petition challenging the surveillance provisions on grounds of violation of his fundamental rights. The six-bench judgment stated that surveillance in form of domiciliary visits was unconstitutional, as it was not justified and was “a direct and tangible and infringement of personal liberty”, though, other methods were not capable of such infringements. The dissenting opinion of Justice Subbarao recognized the right to privacy as an essential component of personal freedom awarded under article 21.
In Govind vs State of MP (1975), the petitioner challenged the provisions in the Police Act, 1961 regarding domiciliary visits as being violative of the fundamental freedoms mentioned under Article 19(1)(d) and 21. Though the validity of the acts was upheld on reasonable grounds of prevention of crime, the SC recognized that every individual has a “fundamental right to privacy” that stems from the fundamental freedoms of movement, speech, and personal liberty. However, it was made clear that the right is not absolute can be subjected to reasonable restrictions.
The SC in both Peter Samuel Wallace vs Inspector General of Police (1981) and Sunkara Satyanarayana vs State of AP (1999) declared the domiciliary visits and secret picketing conducted by police as unconstitutional. While acknowledging the minority opinion in Kharak Singh case to be correct, the Court held that such measures hamper enjoyment of private property, account for trespass, affect the dignity and contravene the personal liberty (Article 21) and the fundamental right to privacy.
The Court emphasized that state police provisions regarding such measures have the force of law and would not always pose an unreasonable restriction on the right to privacy and are reasonable for the compelling public interest, as laid down in the Govind case. Thus the provisions cannot infringe the guaranteed under Article 21, for it mentions that no person shall be deprived of his life or personal liberty except by the procedure established by ‘law’. Therefore, it proclaimed that domiciliary visits and picketing shall be strictly limited to those convicted individuals that pose a threat to public security.
In R. Rajagopal vs State of TN, the Court analyzed several landmark English, American, and Indian judgments pertinent to privacy to conclude that an individual possesses a right to defend the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. Any publication of information regarding the above matters done without the prior consent of the person, irrespective of nature of information, shall be a violation of his right to privacy.
Publication of any information intrinsic to the privacy of the person, truthful or otherwise, without his consent can result in serious harm to his dignity, thereby violating the right to life and personal liberty. This landmark judgment was the first to recognize the right to privacy as implicit to the fundamental freedoms and expanded the definition of privacy, earlier limited to security against arbitrary physical interference.
Telephone interception can be used as a means of technological eavesdropping. A proliferation of telephonic communication has been witnessed post-independence. Sophisticated advancements in communication technology have greatly eased access to this shared information, rendering it susceptible to misuse. Both the central and state governments have equipped with statutory powers to intercept telephonic communication since the very inception of the wired communication in the country. Section 5(2) of the Telegraph Act, 1885 bestows the state the authority to intercept telephones in the public interest or in an emergency.
The case of People’s Union for Civil Liberties vs Union of India highlighted that the said Act only lays down the conditions under which permitted interception can take place but lacked any procedural safeguards that ensure the reasonable exercise of such powers. The judgment imposed mandatory regulations such as prior issuance of orders from Home Ministry for any interception, necessity of information must be taken into consideration and any order issued shall have a life of two months.
The introduction of biometric systems added new facets to the identity of a person. Fingerprints and retina scans are information unique to every human being and are capable of being stored, gathered and verified digitally. These characteristics of biometrics have enabled breakthroughs in forensics sciences and have assisted authorities in effectively tracing criminals and fugitives. The applications of this technology are limitless. As biometric identifiers become cheaper, dependable, and more convenient, they will be extensively deployed in various aspects of human ecosystem, for instance, law enforcement, physical security systems, border security, smart access systems, ease of access, identification schemes, etc.
But biometrics is like a double-edged sword. While the use of biometrics is not intended to invade privacy, but often the manner in which digital data is generated, collected, evaluated, and probably linked to other personal data poses alarming concerns about the fading boundaries between security and privacy and security and surveillance. The complexities that emerge from these systems are numerous and increasing.
In 2014, the Central Bureau of Investigation demanded access to the Aadhaar biometric database assembled by UIDAI for criminal investigation. Consequently, an ad-interim stay order of the apex court prevented UIDAI from sharing biometric information and Aadhaar number of any individual to any other entity without obtaining the written consent of that individual.
In the succeeding year, retired high court justice K.S. Puttaswamy challenged the constitutional validity of the Aadhaar identification scheme contending that it is in contravention of right of privacy. The issues raised demanded expression of the current constitutional status of this right with respect to contrary decisions in MP Sharma and Kharak Singh cases that denied the existence fundamental right of privacy. The petition filed was addressed by a three-judge bench. The matter was transferred to a nine-judge constitutional bench in order to answer the questions of law unearthed in the analysis.
The then-Attorney General on behalf of the respondent submitted that the Constitution does not provides specific provisions for the protection of right to privacy and for this reason, no such right is guaranteed under the right to life and personal liberty, hence, Article 21 had no role in MP Sharma and Kharak Singh judgments. Before the nine-judge bench, the petitioner argued that this right was an independent right, guaranteed by the right to life with dignity under Article 21 of the Constitution
The court employed principles laid down in the decision of R.C. Cooper vs Union of India, wherein, the eleven-judge bench found that fundamental rights are not a set of distinct unrelated rights and discarded the ‘watertight-compartment theory’ of A.K. Gopalan judgment. These principles had assisted several SC decisions that held that right to privacy is a fundamental right.
The court analyzed different issues concerning privacy to facilitate a clear assessment.
(i) Privacy of an individual is susceptible to abuse by state and non-state entities; hence protection can be claimed against both the entities.
(ii) Informational privacy is an aspect of the right to privacy arising out of an individual’s right to exercise control over his personal cyberspace and data. Unauthorized access to personal information can result in a violation of privacy.
(iii) Right to life and personal liberty is a concept that has expanded through several judgments to include rights that the court feels, legitimately flow out from it.
The unanimous decision held that under Article 21 of the Constitution of India, the right to privacy is protected as an intrinsic part of the right to life and personal liberty as well as the freedoms guaranteed by Part III of the constitution. The decision overruled the MP Sharma judgment entirely and Kharak Singh judgment to the extent it explicitly denies recognizing the right to privacy. The Court, however, acknowledged that the right was not absolute but amenable to restrictions provided in the law, that are consistent and aligned to the State’s legitimate objective and proportionate in measure.
The apex court indeed emerged as the constitution’s sole guardian by creating a regulatory framework for protection of privacy in the country. It perfectly created the boundaries between security and surveillance, enforcement and curtailment of fundamental rights, and protection and suppression of the right to personal liberty.
Conclusion
The cases presented in the study portray the gradual but volte-face change in perspective of the Supreme Court on privacy. The change is a clear indication of the fact that privacy is a dynamic concept. Privacy as a right cannot be absolute and cannot be defined in broad terms, owing to its frequent interaction/clashes with the interests of the state. Scientific and cultural advancements have contributed to the expansion of concept of privacy, as highlighted in the above cases, in turn, making it broad and complex. Hence alleged violations of privacy shall be amenable to judicial scrutiny, or else, they may either, threaten the constitutionally bestowed freedoms or pose impediments in realization of objectives of the state.
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