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Right to Privacy: Indian Approach

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. 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 Amendment 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.

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 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.

International Instruments
Article 17 of the International Covenant on Civil and Political Rights states about the right to privacy, it say “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, or correspondence, nor to unlawful attacks on his honour and reputation”. Whereas Article 12 of the Universal Declaration of Human Rights 1948, states “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks”. Both instruments provide the right to privacy to the citizen, and the states, who are signatory to it, are expected to fulfil these rights.

Since India is a signatory to the International Covenant on Civil and Political Rights and Universal Declaration of Human Rights, 1948, India has the obligation to enforce these rights. In the lack of enabling legislation, the ICCPR can have the legal force as the other laws in India. And the UDHR is a mere declaration, and it does not have the legal force. But the courts has used provisions of ICCPR and UDHR to make its argument stronger; and also in order to make realized the government about his obligation toward it citizen and towards international instruments.

Evolution of Right To Privacy
In M.P. Sharma v Satish Chandra (here in after M.P. Sharma Case)[1]  were Supreme Court on the issue of ‘power of search and seizure’ held that they cannot 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.

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” [2]

The next case was the Govind v State of MP [3], where the right to privacy was discussed in detailed. The issue was quite similar to the Kharak Singh v State of UP, 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”. It is right one good concept of law cannot be developed through one case, because it is very hard to see the exceptions and consequences of that concept of law through one case.

In Maneka Gandhi v Union of India [4],  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. 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.

Rajagopal alias R. R. Gopal v State of Tamil Nadu [5] 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.

People s Union for Civil Liberties (PUCL) v Union of India [6] 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 State of Maharashtra v. Bharat Shanti Lal Shah,  A 3-judge bench held that “the interception of conversation though constitutes an invasion of an individual right to privacy but the said right can be curtailed in accordance with procedure validly established by law. Thus, what the court is required to see is that the procedure itself must be fair, just and reasonable and non-arbitrary, fanciful or oppressive.”

Justice K. S. Puttaswamy (Retd.) and Anr. vs Union of India And Ors[7] is a landmark judgement of the Supreme Court of India, which holds that the right to privacy is protected as a fundamental constitutional right under Articles 14, 19 and 21 of the Constitution of India. The judgement of the 9-judge bench contains six concurring opinions affirming the right to privacy of Indian citizens. It explicitly overrules previous judgements of the Supreme Court in Kharak Singh vs. State of UP and M.P Sharma v Union of India, which had held that there is no fundamental right to privacy under the Indian Constitution.

References
1. 1954 SCR 1077
2. 1963 AIR 1295, 1964 SCR (1) 332
3. (1975) 2 SCC 148
4. 1978 AIR 597, 1978 SCR (2) 621
5. 1995 AIR 264, 1994 SCC (6) 632
6. (2004) 9 SCC 580
7. (2008) 13 SCC 5:
8. Writ Petition (Civil) No 494 of 2012

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