Right to Privacy - Ritika Zatakia

RIGHT TO PRIVACY

Although not specifically referenced in the Constitution, the right to privacy is considered a 'penumbral right' under the Constitution, i.e. a right that has been declared by the Supreme Court as integral to the fundamental right to life and liberty. In addition, although no single statute confers a crosscutting 'horizontal' right to privacy, various statutes contain provisions that either implicitly or explicitly preserve this right. The following sections provide an overview of both constitutional and statutory safeguards to privacy in India.

Constitutional protections for privacy

Although the Indian Constitution does not contain an explicit reference to a right to privacy, this right has been read into the Constitution by the Supreme Court as a component of two fundamental rights:  the right to freedom under Article 19 and the right to life and personal liberty under Article 21.

Part III of the Constitution of India (Articles 12 through 35) is titled 'Fundamental Rights'; it lists several rights that are regarded as fundamental to all citizens of India (some fundamental rights, notably the right to life and liberty apply all persons in India, whether they are citizens or not). Article 13 forbids the state from making "any law which takes away or abridges" the fundamental rights. 

Article 19(1)(a) stipulates that "All citizens shall have the right to freedom of speech and expression". However, this is qualified by Article 19(2) which states that this will not "affect the operation of any existing law, or prevent the state from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right [...] in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence".

Thus the freedom of expression guaranteed by Article 19(1)(a) is not absolute, but a qualified right that is susceptible, under the constitutional scheme, to being curtailed under specific conditions.

The other important fundamental right from the perspective of privacy jurisprudence is Article 21, which reads: "No person shall be deprived of his life or personal liberty except according to procedure established by law."

Whereas Article 19 contains a detailed list of conditions under which freedom of expression may be curtailed, Article 21 only requires a "procedure established by law" as a pre-condition for the deprivation of life and liberty. However, in the celebrated case Maneka Gandhi vs. Union of India,1 the Supreme Court held that any procedure "which deals with the modalities of regulating, restricting or even rejection of a fundamental right falling within Article 21 has to be fair, not foolish, carefully designed to effectuate, not to subvert, the substantive right itself. Thus, understood, 'procedure' must rule out anything arbitrary, freakish or bizarre."

Shortly after independence, in a case challenging the constitutionality of search and seizure provisions, the Supreme Court dealt a blow to the right to privacy in India, holding that

The first was a seven-judge bench decision in Kharak Singh vs. The State of U.P.3, decided in 1964. The meanings of the expressions "life" and "personal liberty" in Article 21 were considered by this court in Kharak Singh's case. Although the majority found that the Constitution contained no explicit guarantee of a "right to privacy", it read the right to personal liberty expansively to include a right to dignity. It held that "an unauthorised intrusion into a person's home and the disturbance caused to him thereby, is as it were the violation of a common law right of a man -an ultimate essential of ordered liberty, if not of the very concept of civilization".

In a minority judgment in this case, Justice SubbaRao held that

"the right to personal liberty takes in not only a right to be free from restrictions placed on his movements, but also free from encroachments on his private life. It is true our Constitution does not expressly declare a right to privacy as a fundamental right but the said right is an essential ingredient of personal liberty. Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a person's house, where he lives with his family, is his 'castle'; it is his rampart against encroachment on his personal liberty".

This case, especially Justice SubbaRao's observations, paved the way for later elaborations on the right to privacy using Article 21.

The court went on to make some observations on the right to privacy under the constitution:

"Too broad a definition of privacy will raise serious questions about the propriety of judicial reliance on a right that is not explicit in the Constitution. The right to privacy will, therefore, necessarily, have to go through a process of case-by-case development. Hence, assuming that the right to personal liberty, the right to move freely throughout India and freedom of speech create an independent fundamental right of privacy as an emanation from them, it could not be absolute. It must be subject to restriction on the basis of compelling public interest. But the law infringing it must satisfy the compelling state interest test. It could not be that under these freedoms the constitution-makers intended to protect or protected mere personal sensitiveness."

This line of reasoning was continued in Malak Singh vs. State Of Punjab & Haryana7 (1980) where the Supreme Court held that surveillance was lawful and did not violate the right to personal liberty of a citizen as long as there was no "illegal interference" and it was "unobtrusive and within bounds". 

Nearly fifteen years separate this case from the Supreme Court's next major elaboration of the right to privacy in R. Rajagopal vs. State of Tamil Nadu8 (1994). Here the court was involved in balancing citizens' right to privacy against the right of the press to criticize and comment on the acts and conduct of public officials. The right to privacy of citizens was dealt with by the Supreme Court in the following terms: 

"(1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a 'right to be let alone'. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education among other matters. None can publish anything concerning the above matters without his consent - whether truthful or otherwise and whether laudatory or critical.

(2) The rule aforesaid is subject to the exception that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interests of decency [Article 19(2)] an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised in press/media."

The court also read this right to privacy as deriving from Article 19. "When a person is talking on telephone, he is exercising his right to freedom of speech and expression," the court observed, and therefore "telephone-tapping unless it comes within the grounds of restrictions under Article 19(2) would infract Article 19(1)(a) of the Constitution."

Statutory protections for privacy

Although such a move is under consideration, India does not currently have a sui generis statute that safeguards privacy horizontally across different contexts. However, various statutes, dealing with issues as diverse as banking and finance, professional ethics of lawyers, doctors and chartered accountants, and information technology and telephony, contain provisions that either explicitly or implicitly protect privacy and offer victims remedies for their breach.

The Information Technology Act 2000

The Information Technology Act 2000 contains a number of provisions which can be used to safeguard against online/computer related privacy. The Act provides for civil and criminal liability with respect to hacking (Sections 43, 66) and imprisonment of up to three years with fine for electronic voyeurism (Section 66E), phishing and identity theft (66C, 66D), and offensive email (66A). Disclosure by the government of information obtained in the course of exercising its interception powers under the IT Act is punishable with imprisonment of up to two years and a fine (Section 72).

Right to Information Act 2005 (RTI Act)

The RTI Act 2005 confers on citizens the right to inspect and take copies of any information held by or under the control of any 'public authority'.52 Information is defined widely and includes "any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force". The Act requires every "public authority" to designate an officer in each of its administrative units as "Public Information Officer" (PIO), who is charged with the task of receiving and responding to requests under this act. 

The drafters of the act anticipated conflicts on grounds of privacy. The preamble to the act notes that "revelation of information in actual practice is likely to conflict with other public interests including preservation of confidentiality of sensitive information". Accordingly, provisions have been made in the act to harmonize these competing claims to the extent that this is possible.

Persons who have been denied information on grounds have the option to appeal this decision before the next higher ranking officer to the PIO, and thereafter to tribunals specially constituted under the act - the State Information Commission and the Central Information Commission. At each stage, if information has been denied on grounds that it relates to third parties, the authority in question must give a reasonable hearing to the third party.

As is evident from the foregoing account, the Act has put in place a robust buffer against unwarranted intrusion. Personal information, the disclosure of which would cause an "unwarranted" intrusion into privacy, and information which "relates to a third party" may not be disclosed unless an overwhelming countervailing public interest is demonstrated.

While there are statutory mechanisms protecting the privacy of citizens under the Right to Information Act, unfortunately this does not provide them a complete shield against transparency.  This is particularly evident in the case where the state embarks on transparency initiatives of its own invention. Several states for instance have websites with lists of citizens in various contexts such as employment guarantee and public distribution systems. In one particularly egregious instance, the State Government of Karnataka, overcome in its enthusiasm to weed out duplicate ration cards and promote transparency, announced a plan to "post on its website all details of [15 million] ration cardholders in the state." These details posted on the website would include the "ration card number, category of card (BPL/APL), names and photographs of the head and other members of a family, address, sources of income, LPG gas connection and number of cylinders in village/taluk/district wise." One is even uncertain whether this following remark by an official, quoted in the newspaper account, was meant purely in jest: "This would also work as a marriage bureau.  "For instance, a boy can see a photograph of a girl on the website and see whether she suits him," an official said.

While the RTI Act provides an important safeguard against the violation of privacy, with official avenues for redress for the citizen, ad hoc "transparency" initiatives of this kind leave the citizen with absolutely no recourse. There are, sadly, no statutory safeguards against the oppressive transparency of the state. It is unimpeachable (except possibly through writ petitions) decisions of this kind, rather than the threats under the RTI Act, which pose a real "transparency" threat to privacy in India.

Indian Evidence Act 1872

The Indian Evidence Act exempts certain witnesses from disclosing documents to courts. These 'privileges' apply irrespective of whether the proceedings are civil or criminal in nature.

Section 122 of the Evidence Act provides that married couples shall not be compelled or permitted to disclose any communications made between them during marriage without the consent of the person who made the communication. This, however, does not apply in suits "between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other."

Similarly, Section 126 forbids "barristers, attorneys, pleaders or vakils" from disclosing, without their client's express consent, the contents of a) any communication made to them b) any document with which they have become acquainted or c) any advice tendered by them to the client if such information was received by them "in the course and for the purpose of" their employment.

Section 127 extends the scope attorney-client privilege to include any interpreters, clerks and servants of the attorney or barrister. They are also not permitted to disclose the contents of any communication between the attorney and her client.

Although subsequent amendments to the Income Tax Act conferred confidentiality on these records, in an era when the government has begun to maintain minute records of every aspect of citizens' lives, it still begs the question on what kind of documents may be declared privileged.