Chapter 1
Introduction
The black law’s dictionary has defined the term Privacy in such a manner in which a person has been given the right to be left alone and there is no unwarranted publicity or any kind of unwarranted public interference. In the indian constitution, it has also been explained in the article 21 of the Indian constitution that any person living in India has the right to live with personal liberty as the word “life” has been given much of importance by Indian judiciary , it has interpreted out to be the most meaningful, worth living and complete. As per our precedent based law, the law has given much importance to the physical dangers and tackling with them. But now the supreme court has expanded the origin and the ambit of Article 21 due to the involvement of conformity with Article 12 of the Universal Declaration of Human Rights and also with article 17 of the International covenant on civil and political rights, 1966.
- The article 12 of the Universal declaration of Human rights explain that no person shall can be made subject to any type of private interference with respect to family, home and including the reputation of a person. There is a right of protection under such kind of attacks.
- The article 8 of the European convention on human rights describes that everyone should and has a right that their family and private matters are respected and they can only be hindered in accordance of law. It can only be protected in the situation of national security, economic condition and the public safety of the country.
- India being a party to the International covenant on civil and political rights, 1966 has a say in the article 17 of it that there should not be any unlawful intrusion in the private, family and home matters of any individual and also the attacks on the reputation which would be treated as an unlawful hindrance.
Right to Privacy in India
Position before 1975
There were various amendments made and various judgements were passed by the supreme court which explains about the validity of the right to privacy as a right. As in 1945, in the case of M.P. Sharma v Satish chandra it was rejected by the supreme court that the there should be inclusion of Right to privacy in Article 20(3) due to the fact that there was no similar right to the fourth amendment made in the U.S. constitution.
In the landmark case of kharak singh v the state of U.P. it was the first time that the question regarding right to privacy under article 21 was raised. The case was regarding the petition of surveillance regulation 236 of the U.P. police. The supreme court discussed that right to privacy hold a minority view under article 21 and it was still waiting for its place in constitution jurisprudence.
Position (1975-2000)
Further judgments were made to improve the standard and origin of Right to privacy under article 21.
In the case of Gobind v state of Madhya Pradesh , it was held that right to privacy comes under article 21 and under part 3 of the Indian constitution , it was said that right to privacy is not an absolute right and it will be treated with some of the reasonable restrictions.
Further, in the case of Sunil Batra v Delhi administration, it was observed by the supreme court that a minimal intervention in a prisoner’s privacy is unavoidable and it cannot be declared as a violation of privacy.
On the contrary of this case, in case of Malak Singh v state of Punjab and Haryana, it was held that the surveillance is the direct intrusion in the privacy of an individual.
In the case of R. Rajagopal v state of Tamil Nadu, the supreme court has implied that the right to privacy has acquired the sufficient constitutional status. It has included the right to be let alone and also right to protect the privacy of family, home, motherhood and the child bearing methods.
In the landmark case of People’s union for civil liberties v Union of India , it was decided by the court that phone tapping will be considered as a violation of privacy under article 21 of the Indian constitution and it can only be done in the case where public interest is hindered. Lastly, after many judgements in different aspects of privacy, the landmark judgement of Putta swamy v Union of India declared the right to privacy as a fundamental right.
Chapter 2
Aadhaar
A plan called AADHAR was presented by the Unique Identification Authority of India and it presents a personality card for each subject living across the country. It comprises of the biometric and the static information with a 12 digit code. It can also be considered as the proof of character of the person. This plan was formulated towards the vision of Computerization and digitization and also for the centralization of the database of everyone entitled under this plan.
The purpose of implementation of this plan is in regards to the welfare schemes but at the same time the legislation is also infringing the Art 21 because it is damaging the privilege of appropriate life and freedom.
Privacy at Stake: AADHAR
The issue came before the Constitution bench of the supreme court after 696 days when the case was presented consisting of the accessible benefits and the violation of privacy. The constitutional validity of the Aadhar Act, 2006 was passed with a statementas a money bill. The decision came in the case of Shanta Sinha v Union of India in which it was given that it is mandatory to have the aadhar card to avail government schemes. Till now in many cases the AADHAR schemes had gone various amendments like connecting it with PAN cards or even biometrics of children below 18 where children have no idea how to avail the government schemes.
The issue of the breaking of self-assurance or protection of privacy under the article 21 is at denial by the bench to be heard and till the present situation the issue of privacy infringed by the Aadhar has not been heard by the constitutional bench.
Constitutionality and misuse of AADHAR
Furthermore, a three bench judge of the Supreme Court discussed on the issue of Right to privacy infringed by the AADHAR in the year 2015.
It discussed two main issues which are as follows:
- Whether right to privacy is endangered.
- Founding the basis of the right and solving the dispute.
Then the famous judgement of K.S. Puttaswamy was passed in which it was observed at first that Art. 21 includes the Right to privacy and thus it is also considered to be a fundamental right. While it is still anticipated clarification over the right to privacy infringed by the AADHAR. But the court has passed the interim order of limiting the linking the AADHAR to avail the government services.
The AADHAR can be misused in the following ways:
- The misuse of identity: earlier some Jio agents were detained of misusing the fingerprints for the purpose of aviation and the selling of the jio sim cards. The misuse can also be continued for the transaction from the banking sector by using the identity of people.
- Data breach: Several data breaches are observed through the medium of the AADHAR, various websites are using the AADHAR numbers in order to connect with the phone numbers and afterwards they are used in the side of dark web and are being misused.
- No accurate privacy laws: the scheme of AADHAR is being misused due to no proper legislation for the breach of privacy and data protection.
Chapter 3
What are the reasonable restrictions on fundamental right of privacy recognized by court?
Every fundamental right when it is infringed it has to pass some basic test under Article 21 and 14 of the Indian constitution and these tests include as follows:
- The need for existence of law
- No arbitrary nature of law
- The infringement of rights by such law which can be considered proportional to achieve the state aim.
The reasonable restrictions on the right to privacy are imposed due to its recognition as a fundamental right and the reasonable restrictions are imposed through the legal judgments which are as follows:
- Any infringement to the right to privacy must be reasonable and fair and the requirements for this are as follows:
- Legality of existing law
- Need or legitimate state aim
- Proportion of rational nexus between the means and the object
- Requirement as the compelling state interest.
- In the case of Maneka Gandhi v UOI it was suggested any infringement of fundamental rights must be fair, just, reasonable and not oppressive, arbitrary.
- Social and public interest and also the reasonableness of the restrictions should outweigh the claim to privacy rights.
- The grounds of national security and Public interest should be taken into consideration.
Chapter 4
Is there a Right to Privacy in the workplace?
The fundamental right of right to privacy has some implications of a privacy right to an employer. For instance, the Vishaka guidelines are the evidence of enforcement of fundamental rights against the workplace. It is very much possible for an to take the employer to court when his/her right to privacy is infringed.
Before discussing the roots of the chapter one thing comes into mind if the surveillance at the workplace legal?
The answer is that generally these practices for the discipline enforcement or the business interest protection can be considered as valid but it should be reasonable and the employees should be aware of the surveillance. Also under section 69 of the Information Technology Act,2000 the provisions regarding the monitoring of surveillance are given in the Indian legislation.
Although there are no specific guidelines for the protection of the right to privacy in the workplace but there are some safeguards taken from European Court’s Judgement from the Justice A.P. Shah’s judgement which are as follows:
- Notice: Notice is most important when the surveillance and monitoring of the employee comes into the picture and this is not only limited to the notice but the privacy policies should be heard too. In the famous case of barbulescu v România , the prior notice of surveillance was not given to the party and hence it was declared as the infringement of privacy.
- Consent: Taking written consent of the party is really important when surveillance is being done. Despite of the contractual terms and conditions, an employee should be well versed with the extent and nature of monitoring. For instance, if a person is using his/her personal device so to what extent it can be monitored.
- Degree and justification of intrusion: The extent and the nature of intrusion of surveillance are the most important factors. The monitoring of the content should differentiate between the personal and the professional matter. For instance, reading the personal chat transcripts of the employee are considered to be violative. Also the employer should have the proper justification in relation to monitoring or intruding in the case of surveillance.
- Consequences: The employee must be made aware of the consequences such as termination of the employment and private communications in work hours.
- Collected data usage: The employee should take care of the fact that he should be informed about the usage of the data after he leaves the job and it should be clearly affirmed by the employer that the data will be erased afterwards.
Chapter 5
Privacy and Trespass
What are the circumstances where state can invade the privacy of house? What are the limits to the power?
The legislation includes the provision of search and seizure which can be said as the invasion to individual’s privacy.
The law permits searches on the following grounds:
- Income tax searches for the undisclosed income
- Search and seize of drugs under Narcotics act
- Excise Act and the Custom Act for the goods manufactured or imported against the statute.
In this Chapter the discussion will be only on the basis of search and seizure under the Code of Criminal Procedure.
The statute explains that the houses can be searched either with the involvement of the search warrant or without the involvement of the search warrant which is done by the police officer in case of investigating any offence.
The search warrants can be issued in the following scenario:
- Inclusion of Reason to believe that the person who has been summoned will not produce the documents before the court.
- Where the above written document is not in the knowledge of the court which is to be in possession of the person
- Where the purpose of the inquiry is based on the acquisition of thought of only general search or inquiry.
Under section 165 of the Code of Criminal Procedure tells about the nature where the investigation is conducted without the involvement of issue warrant and there should be involvement of reasonable ground to believe that the offence committed is in limit of the investigating police officer in charge or it has be obtained without undue delay.
If we see in the reality the requirements are more often observed as the breach of privacy but in most of the cases the courts have not held the search warrants as unlawful.
In the case of Radha Krishan v State of UP, there was involvement of illegal search contravening the Provision and the Supreme Court held that even if the illegal search is considered then also the article is not vitiated as it may also be done to follow up the careful examination of the evidence.
After an extensive analysis, the supreme court has held in the absence of the safeguards related to reasonable clauses and basis, it can be considered as violative of Article 21 of Right to Privacy guaranteed.
Chapter 6
Privileged Communications and Right to Privacy
Under the Indian Evidence Act, the provision related to communication between the spouses and the legal advisors are mentioned as a special privilege.
The section 122 of the Indian Evidence Act tells about the communication which has been made between the spouses cannot be disclosed in the court in any proceeding and the court cannot compel them to disclose it as it will be considered as a breach of their privacy. It can only be done when there is a consent involved of the parties.
Furthermore, the exception lies when there is crime involved against the married parties by each other.In the case of T.J. Ponnenna V M.C. Varghese where the father accused son in law saying that the letter which was sent to his daughter included some defamatory statement about him but the court held the letter as a privileged communication between the spouses and disagreed with the contention.
Secondly in the section 126 of the Act where there is a provision which states that the attorneys, barristers, vakilsetc are not allowed to disclose any communication which has happened between the council and the client as it will be considered a breach of privacy. Even the court has no power to compel the parties on this.
It also includes two exceptions which includes that either of the parties has communicated involving the illegal purpose of the case or any fact showing that the employment has been made on the basis of the commencement of fraud or crime.
- Section 127 extends the scope and says that the privileged communication extends to the servants, clerks, interpreters of the attorney or the barrister.
- Section 129 states about the communication between the client and the legal adviser and the court cannot compel to disclose it.
- Section 131 of the Act provides that no one shall be compelled to produce the documents in his possession, which any other person is entitled to refuse, it can only be done by the consent of the party.
All the above written provisions show that the Indian Evidence procedure respects the right to privacy of an individual by adding these kind of assets as provisions.
Chapter 7
Privacy of Body
What will be the extent of the Right of Privacy in the case of our bodies? In this chapter there will be four issues which will be taken into consideration which are as follows:
- Order to undergo medical examination
- Undergoing truth technologies like narcotics analysis
- DNA testing
- Abortion cases
- Court order of Medical Examinations
There arises a question in the beginning Can a court compel anyone to undergo the medical examination. The answer was given in the case of Sharda v Dharampal in 2003 where it was held by the supreme court that they can compel the parties based on the circumstances.
In a case where the husband accused the wife suffering from the mental illness, the trial court and the higher court directed for the medical examination in spite of the fact that it was violative of the right of personal liberty under Article 21 and also the violation exists when a matrimonial case has to undergo the medical examination.
The Supreme court rejected the contentions saying that the Right to privacy is not absolute in India and if due to violation of rights, there will be no conducting of the medical examination then one cannot arrive at a conclusion in any case.
However, the power could be exercised where the parties have prima facie strong material to show before the court. The conclusion can be reached that the limitation of the right to privacy is only when others have some statutory rights.
Reproductive Rights
What will be the Right of Privacy of women over their reproductive decisions and bodies? Are there any circumstances where the State can forbid the party from accessing these rights?
In the Medical Termination of Pregnancy Act, 1971 it is defined that a pregnancy can be terminated before the twentieth week if:
- Continuance of pregnancy causing grievous harm to physical and mental health of women.
- Child born would suffer physical or mental problems after birth.
- Pregnancy allegedly caused by rape.
- Pregnancy caused by the failure of the birth control device with the consent of other spouse.
In the case of SuchitaSrivastav v Chandigarh Administration, it was observed that a woman who was mentally ill was raped at a government site and was pregnant. The contention was regarding the termination of pregnancy but the court said firstly after the examination, the lady was mentally retard and as the reproductive rights falls into the ambit of Article 21 of the Indian Constitution with Right of personal liberty and Right to privacy and every woman has the right to choose its Reproductive activities. Even if the lady is mentally retarded the court cannot stop her from making her decision.
But in the end it can be concluded from the above written judgements and illustrations that the court has a positive outlook in the case of reproductive rights of women in relation to right of privacy.
DNA Tests in Civil Suits
In this segment the Right to Privacy will be discussed over the interior parts of the body like our blood, tissues or DNA. There are many cases dealt by the Supreme Court in which the ‘bodily integrity’ has not been declared as an absolute right.
In the earliest case of GautamKundu v State of West Bengal, related to the guidelines for governing the power of the court in order for blood tests which are as follows:
- Blood tests cannot be ordered as a matter of course.
- Prayer of blood test cannot be entertained where application for roving inquiry has been made.
- The court should know about the consequences whether the order of blood tests will have an effect on branding of the child as a bastard or mother as an unchaste woman.
- No compelling in the case of submitting the blood sample.
The above given guidelines have been invoked in many subsequent cases. In the case of Mr. X vs Mr. Z and Anr , it was considered by the Delhi High Court whether the fetus of a mother has a right to privacy or not . In this case the husband requested for a DNA to know whether he is the child’s father or not. The woman reciprocated that she has the right to claim her Right to Privacy. The court contended by looking into the guidelines of GautamKundu case that the woman has the right to privacy over her body.
But the court said that she did not have a right to privacy over the fetus once it is discharged from the body. The petitioner cannot claim the right to privacy as it is not an absolute right . the decision which was taken in the end that since it was the consent of the lady involved for the discharge of the fetus, it can be subjected to the DNA test and also it cannot be treated as an infringement of Right to Privacy.
The decision has suggested that no one can have control over the things which are discharged from the body which can be from hair to tissue.
Furthermore, in the case of US Morore v University of California, it has been decided by the Supreme court that claim of the body parts cannot be addressed on the behalf of argument of privacy and dignity.
One of the most implicated right to privacy is ‘best interest of the child’ , in the case of Bhabani Prasad jena v Convenor Secretary, the Supreme Court quashed the high court mandate for DNA testing determining the paternity of an unborn child in mother’s womb, The Supreme Court observed that the court must be reluctant in use of scientific tools and also resulting into the invasion of Privacy of an individual. The court must apply its discretion only after the balancing of interests of the parties.
In the case of Shri Rohit v Shri Narayan Dutt Tiwari, the son wanted to know about the biological father and requested for the DNA test. But the father denied by claiming his right to Privacy but the court relied on the international covenant that the child has a right to know about his parents.
It appears that the best interest of the child protects the right to privacy of either party but when there is a conflict between the parties the former one invariably prevails.
Fingerprints, Handwriting Samples, Photographs and Narco Analysis
Can the court compel to perform the tests regarding the Fingerprints, handwriting analysis, narcoanalysis , DNA tests etc?
According to the section 73 of Indian Evidence Act, the court can compel any person to write the words or any figures in order to compare with the evidence.
This section was further given interpretation in the Supreme court case of State of UP v Ram BabuMisra it was held that there are some kind of proceedings in which the comparing can work as an efficient practice to conclude the case. It says that the section 73 does not permit the compel the accused to bring forth the specimen but it can be considered as an anticipated necessity by the court in any of the proceedings.
In addition, the section 53 of the Code of Criminal procedure says that the accused person is only eligible to medical examination if there are reasonable grounds for believing involved. The scope of the medical examination expanded in the year 2005 in which the examination of blood stains, semen, sweat, fingerprints, nail clippings including the DNA profiles.
In the case of Thogorani Alias K Damyanti v State of Orissa and Anr., after weighing the privacy concerns the court laid down some guidelines in the DNA test which are as follows:
- The extent of commission of crime
- The gravity of offence and the circumstance in which it was committed
- Age, mental health and the physical health of the accused.
- The reason of the accused for the refusal of consent
- If there is any less intrusive way of finding the evidence
The privacy bill is pending before the parliament in the case of DNA profiling and in the bill there can be minimal guarantee of privacy in tests.
The supreme court also directed with some guidelines that no person should be forcibly subjected to the techniques of evidence whether it is a criminal case or other because it will hinder the personal liberty of the person.
The following are as follows:
- Consent for the use of lie detector test
- If the accused volunteer the lie detector test he should have his lawyer and every aspect of the test should be explained to him either by the police or his own lawyer.
- The consent should be taken before the magistrate
- It is clearly told to the person who is making statement that statement made shall have the same effect made to the police.
- The recording of the lie detector test shall be done by the independent agent and in the presence of a lawyer.
- The full narration shall be taken into record
Although these techniques are hindering the mental privacy of a person but these techniques will direct the case to a proper conclusion which include some sort of limitations to protect the privacy of an individual.
Chapter 8
Privacy of Records
This chapter will include the privacy expectations handled by both the private and government sectors.
There are many types of records in which the record activity are kept into consideration. For example the registrations are done under the Registration Act and the viable land records are also kept for the sake of government and public record. Where there is no proper statute for the public to get records which are as follows:
- Through the Indian evidence act which access to public documents with the permission of governmental bodies.
- The private citizen can get access to the public records through the Right to Information.
Each of these are explained in the paragraphs below:
In the section 74 of the Indian Evidence Act, the term public record has been defined: Documents forming the records of the acts out of sovereignty, official bodies and tribunals, public bodies, executive, legislature, judiciary or commonwealth of a foreign country.
Hence the public documents are the documents in the custody of the government and every individual has the right to inspect it. The word information has been defined in the Indian Evidence Act which says that it is any document in the form of document, press release, circulars, orders, data material, memos which are considered private but they are accessed by the public authority under any law for the time being in force.
Under section 8(j) of the act exempts disclosure of any private information which has no relation to the public can be considered to be an invasion of the right to privacy unless there is a larger authority to decide whether it is in the public interest or not.
In the case of Ansari Masaud A.K. v Ministry of State Affairs, it was held that the disclosure of the private information in the passport cannot be considered to be an invasion of privacy and the passport authority has the right to disclosure of information under any circumstances.
However, it is not always important that through the RTI a person can know everything, there are still provisions of privacy under some circumstances.
For example: the information from the Census department for the religion and faith in the case of Sonia Gandhi and the high court denied as it was intrusion to her privacy.
Similarly, it is done in the case of HIV status of a person, in the case of Mr X v Hospital Z, it was observed that the hospital disclosed the status of HIV to the individual’s fiance and claimed the right to privacy but it was held by the Supreme Court that since it was in the Public interest , it cannot be considered to the infringement of right to privacy.
So in the matter of public record the right to privacy differs from one case to another.
Chapter 9
Right to Privacy and Transgender Rights
In this chapter it will be discussed how the trangender avail the right to privacy?
In the literal sense the right to privacy is the right to be let alone and to have a professional choice on one’s own discretion.
It is a notion given by Justice Nirman that the aspect of privacy can be divided into three parts which are as follows:
- The aspect related to physical body
- Private information or material
- Intersection between mental and bodily intrusion in the case of right of determining the gender identity, freedom of thought and belief.
As it was held in the landmark case of NALSA v UOI that the gender identification was upheld as an integral part of right to life. Other than Justice Chandrachud’s main judgement, there are many other amendments which can be seen in law, the section 36A of Karnataka Police Act, furthermore the issues have been taken into consideration by the court for washrooms and toilets wherein the battles have been fought by the trans community. It could be done putting up the future considerations.
It is very fortunate to see that our judiciary is involved to give a gender identification and recognition and further it is working on the protection of the rights upon diversity and difference.
Chapter 10
Writ petitions to be filed in high courts for public or private infringement of privacy?
As the right to privacy has been declared as the fundamental right as explained in the above given chapter, so whenever there is an infringement of any of the fundamental right the individual has the right to file a writ petition in the high court or further to Supreme court to claim justice. It can be done both in the private as well as public matter. When it is affecting the public at large the Public interest litigation can be filed.
Conclusion
Although the right to privacy is sustained with many of the reasonable restrictions but still it is being infringed in many sectors and also it has been protected by the government with its fullest effort. But through the amendments, the government is still working on it and in the long run many must be enacted in different fields of life to protect the privacy of an individual.
Contributed by: Shreya Marwaha, A Member of Legal Experts Team at LLL
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