SYMBIOSIS INTERNATIONAL

UNIVERSITY,

SCHOOL OF LAW, HYDERABAD

COMPARITIVE CONSTITUTION

PROJECT SUBMISSION ON

PRIVACY

COMPARING AMERICAN AND INDIAN CONTITUTION

COURSE TEACHER:

Prof. Dr.D. GANESH KUMAR

SUBMITTED BY: -

Shanmukh Bachu (15010323069)

Semester: IX

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 ACKNOWLEDGEMENT

I would like to express my sincere gratitude and indebtedness to Prof. D. GANESH KUMAR
for his enlightening lectures on Comparative constitution. I would also like to express my sincere
gratitude to our teaching staff for guiding me the path towards gaining knowledge. I would also
like to thank Symbiosis Law School, Hyderabad, library for the wealth of information therein. I
would like to thank Library Staff as well for their co-operation.

I would also like to thank my batch mates who inspired, helped and guided me in making this
project. I am grateful to them for their incredible guidance and support.

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 CERTIFICATE

The assignment entitled “PRIVACY-COMPARING AMERICAN AND INDIAN

CONTITUTION” submitted to the Symbiosis Law School, Hyderabad, for Comparative
Constitution, as part of internal assessment is based on secondary material carried out under the
guidance of Prof. D. GANESH KUMAR. The work has not been submitted elsewhere for
award of any degree. The material borrowed from other sources and incorporated in the thesis
has been duly acknowledged.

Shanmukh Bachu
Prn: 15010323069

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 TABLE OF CONTENTS

SR. PAGE
No. TOPIC No.

ACKNOWLEDGEMENT
1. 2

2. CERTIFICATE 3

3. ABSTRACT 5

4. 6
INTRODUCTION

5. 7
PRIVACY: HISTORY

6. PRIVACY: AMERICAN CONSTITUTION 8

7. 9
RIGHT TO PRIVACY: ROLE OF INDIAN JUDICIARY

8. CONCLUSION 14

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 PRIVACY-COMPARING AMERICAN AND INDIAN CONTITUTION

ABSTRACT

Right to Privacy may not be a common law right but has been recognized as doctrine of equity
and as most important right in a democracy. Privacy gains support of a thorough international
legal framework in the form of ICCPR and UDHR. Right to privacy finds its genesis in the
profound political distrust in democratic state. This debacle of the privacy had reignited with a
need for data privacy laws and civil right privacy of every individual, irrespective of their
orientation. This project has traced the beginning of privacy, as a legal doctrine followed by the
privacy jurisprudence in American Courts. The vital role of judiciary, in expansion and
interpretation of privacy doctrine in Indian context is heavily elaborated upon.

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INTRODUCTION

Privacy is intrinsic to life and liberty and an inherent part of the fundamental rights enshrined in
the Constitution. It exists equally in all individuals, irrespective of class, strata, gender or
orientation. It plays a significant role in the development of one's personality, integrity and
dignity. However, privacy is not an absolute right, but an invasion must be based on legality,
need and proportionality for safeguarding this cherished right. It is to be noted that privacy rights
have to be promoted and protected not only in the physical wodd but also in the virtual world
like cyber space.

The rapidly advancing internet technologies are not compatible with copyright protection.
Privacy if not propedy protected faces the danger of being abused by other entities of the cyber
space. This has generated a hot debate about the protection of privacy, copyright etc., in cyber
space. The debate about privacy and the internet is crucial because of the new risks created by
the wide reach and the very characteristics of the internet itself. 1Certain practices such as
bugging, telephone tapping, interception, surveillance pose threats to the confidentiality of
communications.2

Right to anonymity sometimes conflicts with the freedom of media when there is a public
disclosure of private facts.3 Unauthorized exposure of personal celebrity information and
publication amounts to invasion of celebrity privacy.4 Bio-medical technology infringes genetic
privacy. Telemarketing strategies are posing a great challenge to consumer privacy. Patenting
and bio-pro spec ting are leading to Bio-piracy. In a public disclosure of rape victims, there is
breach of privacy. Similarly bio-metric technology is so pervading and has got a telling impact
on privacy undoubtedly. Investigative technology is more invasive violating the privacy of the
accused. The recent advances of Assisted Reproductive Technology (ART) are posing a huge
challenge on the privacy aspects of women grossly violating her fundamental freedoms and
dignity.

1
J. Morc Dinant, “The Internet and Private Life in Europe: Risks and Aspirations”
2
Bartinicki v. Vopper, 149 L.Ed. 2d 197
3
Dan Cohen v. Cowles Media Co., 115 L.Ed. 2d 586
4
Prince Albert v. Strange, (1849) 1 H&TW 1

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Therefore, privacy is subject to so many threats and onslaughts. Dangers to privacy originate
from both State and non-State actors. In the research paper, issues and challenges arising out of
privacy would be critically analysed. The roots and historical growth, the contribution of the
American and Indian judiciary in evolving privacy jurisprudence are highlighted. At the end
suggestions are mooted.

PRIVACY: HISTORY

Privacy though not a common law right has been recognized as an equitable doctrine5 and as
most cherished right in a democracy. It is also protected in many civil law jurisdictions. Privacy
enjoys a robust legal framework internationally as UDHR and ICCPR protects persons against
the arbitrary interference with one's privacy. The American Courts trace the origins of right to
privacy in the right to property. However, courts gradually disassociated privacy from property6.
In 1890s, Louis Brandeis J articulated the concept of privacy as ‘individual's right to be let alone’
that shaped the development of the law of privacy7. The political foundations of the right to
privacy are rooted in a profound distrust of the State. There is a rich potential base of utilitarian
support for privacy as a species of liberty. According to Mill, privacy is an aspect of liberty
grounded on the permanent interests of man as a progressive human being.

In most of the sexual offences committed against women, especially in the case of rape, privacy
of the victim is robbed in their disrobed condition. Voyeurism seriously wounds and steals the
secrets of woman. Incest desists without resist innocent gid child from revealing her untold
miseries to parents. There is no protection to young girls and women from stalkers and harassers.
Honour killing haunts the young married couple and finds fault with their choice and
autonomous decisions. Acid attack leaves a permanent scar on her privacy. Solitary woman is
highly vulnerable for unwelcome solicitations and advances. These behaviours of men are
seriously making inroads into women privacy8. The sense of privacy and the search for its
protection originates with the attainment of puberty of a gid. It is inherent in every human being
and quite natural. Therefore, it is a natural right and the State does not bestow it on citizens.

5
Kaye v. Robertson, (1991) FSR 62
6
Warden v. Hayden, 18 L.Ed. 2d 782
7
Louis Brandeis, “The Right to Privacy” 4 Harvard Law Review, 193-220 (1890)
8
Justice Verma Committee Report,2013

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PRIVACY: AMERICAN CONSTITUTION

Privacy encompasses bodily privacy; communication privacy, territorial privacy, decisional

privacy and data privacy. Right of reproductive autonomy is a part of decisional privacy. The
right to use condoms, right of a woman to abort all these falls within the ambit of right to
privacy. In Skinner v. Satate of Oklahoma9, the US Supreme Court has characterized the right to
reproduce as one of the basic civil rights of man. The cascade of judicial decisions that contend
with the issue of autonomy of women over their bodies began with Estelle T.
Griswold v. Connecticut10 in 1965 in USA. The case was instrumental in establishing the right of
women to enforce their reproductive choices. The act of abortion became a legitimate expression
of individualism of an autonomous adult in a family setting. Therefore, reproductive autonomy,
choice, reproductive health, internal self determination are integral parts of privacy of women.

Gristvoldis the first significant pronouncement, where the US Supreme Court recognized a right
to privacy. Soon after Gristvoldit was established that constitutional protection extended to even
intimate choices by married as well as unmarried persons. In Eisenstadf11 and Carey12 the US
Supreme Court invalidated a statute that banned the distribution of contraceptives to minors.
In Carey the claim of minors was found protected by the due process clause of the
14th Amendment to the US Constitution. Griswold and Eisenstadt together can be said to have
laid the jurisprudential foundation for Jane Roe v. Henry Wade in 1973, which legalized
abortion. Similarly in Roe v. Wade13 the Court held that right to privacy was broad enough to
protect a woman's right to abortion.

In another significant case Romer v. Evans14, the Supreme Court held that the amendment to
Colorado's Constitution which named as a ‘solitary class persons’ who are homosexuals by
orientation was violative of the equal protection clause. Against this backdrop, the US Supreme
Court decided Lawrence15 which is regarded as landmark victory for gay men and lesbians. The
Court held that Texas sodomy law violated due process clause of the Constitution. In this case

9
(1941) 316 US 535
10
(1965) 381 US 479
11
31 L.Ed. 2d 349
12
Hugh Carey v. Population Services International, 1977 SCC Online US SC 103 : 35 L.Ed. 2d 147
13
35 L.Ed. 25d 147
14
134 L.Ed. 2d 855
15
156 L.Ed. 2d 508

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the petitioners Lawrence and Garner were convicted to deviate sexual intercourse. The case did
involve two adults with full and mutual consent from each other engaged in sexual practices
common to homosexual lifestyle. The petitioners are entitled to respect for the private lives. The
Court observed that the State cannot demean their existence or control their destiny by making
their private sexual conduct a crime. Their right to liberty under the due process clause gives
them full right to engage in their conduct without intervention of the Government.

However, in Bowers v. Hardwick16, the Court upheld sodomy law of Georgia ruling that US
Constitution did not confer a fundamental right upon homosexuals to engage in sodomy.
In Bowers, Stevens J dissenting opinion describes the kind of liberty, individual decisions by
married persons, concerning intimacies of their physical relations even when not intended to
produce offspring are a form of liberty protected by the due process clause of the Fourteenth
Amendment. This protection extends to intimate choices by unmarried as well as married
persons. Lawrence reversed the holding of Bowers. The US Supreme Court in its landmark
decision in Obergefell v. Hodges17 upheld the same-sex couples' fundamental right to marry on
grounds of both equal protection and substantive due process. It is because, marriage is a
keystone of social order. It is the foundation of the family and of society, without which there
would be neither civilization nor progress. It is a great public institution, giving character to
whole civil polity. As a result, the same-sex couples now enjoy the same marriage rights that
their heterosexual counterparts have always had.

RIGHT TO PRIVACY: ROLE OF INDIAN JUDICIARY

Privacy is inviolable private space. The need for privacy and its recognition as a right is a
modern phenomenon. It is a product of individualism as distinguished from collectivism. Privacy
is a right against public exposure of private matters. Exposure of public acts and public
information is restraint on privacy. Therefore, privacy is a restraint on the right to know about
others. Though Indian law on privacy is derived from common law of tort and Constitutional
law, still Indian Courts have relied largely on American case law in developing the privacy

16
92 L.Ed. 2d 140
17
Katherine G. Porter on Obergefell v. Hodges, 192 L.Ed. 2d 609

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jurisprudence. It is submitted right to privacy as a specific right has not evolved anywhere in the
world18.

Privacy is an autonomous zone within which a person may live a personal life and make choices
without interference. The Indian Constitution does not grant in express terms any right to privacy
as such19. However, such a right has been culled by the Supreme Court as a penumbral right from
part III of the Constitution. In Gobind v. State of M.P.20, the Court accepted a limited
fundamental right to privacy as an emanation from Arts 19 and 21. In R. Rajagopal v. State of T.
N.21 the Supreme Court has asserted that right to privacy has acquired constitutional status.

In Kharak Singh v. State of U.P., the Supreme Court viewed that domiciliary visits by the police
infringed the petitioner's right to sleep or right to privacy and such infringement could not be
authorized by the executive rules. A law enacted by the legislature would be requisite for the
purpose under Art. 21 of the Constitution. In Govind, similar police regulations were upheld
when they were formed under the Police Act. Similarly freedom from searches and seizures is an
aspect of right to privacy as observed in CCT v. Ramkishan Shrikishan Jhava22. It was held that
power of search and seizure can be exercised by the executive only when it is conferred by some
statute.

Telephone tapping constitutes a serious invasion of an individual right to privacy.

In PUCL v. Union of India23 the Court has ruled that telephone conversation is an important
facet of a man's private life. The right to hold a telephone conversation in the privacy of one's
home or office without interference can certainly be claimed as “right to privacy”. Conversations
on the telephone are often of an intimate and confidential character. Telephone conversation is a
part of modern life of man. Tapping of telephone is a serious invasion of privacy.

Telephone tapping infract Art. 21 unless it is permitted under the procedure established by law.
The procedure has to be just, fair and reasonable. Further, talking on telephone amounts to
exercise by the individual of his right to freedom of speech and expression protected by Art.

18
Madhavi Goradia Divan, Facets of Media Law, 112-126 (2006)
19
Kharak Singh v. State of U.P., AIR 1963 SC 1295
20
AIR 1975 SC 1378
21
AIR 1995 SC 264
22
AIR 1968 SC 59
23
AIR 1997 SC 568

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19(1)(a). This means, telephone tapping unless it comes within the compass of permissible
restrictions under 19 (2) would infract Art. 19(1)(a). It is submitted that, in the course of its
judgment, the Supreme Court referred to the Universal Declaration of Human Rights, 1948
(UDHR), International Covenant on Civil and Political Rights, 1966 (ICCPR), and accordingly
interpreted Art. 21 inconformity with the international law.

Privacy which is individual as well as social value has become a casualty and scapegoat with the
onset of modern scientific and technological advancements. In Selvi v. State of Karnataka24, the
Supreme Court observed that narco-analysis, lie-detection and BEAP tests in an involuntary
manner violate prescribed boundaries of privacy. A medical examination cannot justify the
dilution of constitutional rights such as right to privacy. In District Registrar and
Collector v. Canara Bank25, the Supreme Court said that the disclosure of the contents of the
private documents of its customers or copies of such private documents, by the bank would
amount to breach of confidentiality and would, therefore, be violative of privacy rights of its
customers.

In State of Maharashtra v. Madhukar Narayan Mardikar26 the Supreme Court said even
prostitute has a right to privacy under Art. 21 and no person can rape her just because she is a
woman of easy virtue. The court recognized that privacy was an important aspect of personal
liberty. An LIC questionnaire sought information about the dates of menstrual periods and past
pregnancies and the petitioner was terminated for not providing the correct information to the
LIC. The questionnaire amounted to invasion of privacy. Allowing the medical examination of a
woman for her virginity would certainly violate privacy and personal liberty enshrined under Art.
21 of the Indian Constitution.

In ‘X’ v. Hospital ‘Z’27, the Supreme Court has held that right to privacy as fundamental right but
it not an absolute right. Hence the disclosure of the information about the patient by the doctor
was not violative of privacy in the interest of his fiancee's health right.

24
(2010) 7 SCC 263
25
AIR 2005 SC 186.
26
(1991) 1 SCC 57
27
AIR 1995 SC 495

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The Supreme Court in a recent trend setting case K.S. Puttaswamy v. Union of India28, popularly
called as Privacy judgment, read privacy as a penumbral right under Art. 21 of the Indian
Constitution. The Court has unequivocally held that the doctrinal premise of M.P.
Sharma29 and Kharak Singh stand invalidated. Further it has explicitly overruled the emergency
era ADM Jabalpur30 judgment. The unanimous verdict on privacy is a restatement of core
constitutional principles.

The opinions of three glorious dissenters i.e. Justice Fazal Ali in A.K. Gopalan, Justice Subba
Rao in Kharak Singh and Justice Khanna in ADM Jabalpur stood vindicated with the passing
of Puttaswamy judgment. Puttaswamy has brought to life the brooding spirit of these three
dissents. Consequently, the courts most regressive judgments were consigned to the dust heap of
history. The judgment may also open the Aadhaar-Permanent Account Number linkage issue.
The Court's ruling was therefore, being seen as a set back to the Government in its bid to expand
the scope of Aadhaar as a mandatory requirement for a host of Government services.

It is submitted that, privacy judgment attests to the resilience of our dignitarian liberalism. A
welcome aspect of the judgment is that it makes it clear sexual orientation is part of privacy and
constitutionally protected. As a result Kaushal31 ruling upholding section 377 IPC is seriously
flawed. Same gender sex remains a crime in the country due to a flagrant judicial mistake
committed by the Supreme Court in Kaushal. The time has come to undo it. The National Legal
Service Authority v. Union of India32 judgment is a landmark one which upheld right to choose
one's sexual orientation. Transgender even though insignificant in numbers are entitled to human
rights as observed by the Court in NALSA. In NALSA the Court while articulating a charter of
rights for transgenders noted that sec. 377 IPC effectively targeted specific
identities. NALSA and Vuttaswamy together laid the foundation to decriminalize consensual gay
sex.

Section 377 IPC criminalizing homosexuality is modelled on the English criminal law The
framers of the Code obviously relying upon the then prevailing sexual mores and the common

28
(2018) 1 SCC 809
29
M.P. Sharma v. Satish Chandra, AIR 1954 SC 300
30
ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521
31
Suresh Kumar Kaushal v. Naz Foundation, (2014) 1 SCC 1.
32
(2014) 5 SCC 438

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law of buggery, decided to criminalise carnal intercourse against the order of the nature. The
Wolfenden Committee strongly argued that consensual homosexual act between consenting
adults in private does not harm others. The committee also relied upon Millsian doctrine that
legal intervention in private life is only justified in order to prevent harm to others. The Delhi
High Court decriminalized section 377 IPC as unconstitutional in Naz Foundation. Naz
Foundation drew heavily on the privacy jurisprudence of the US Supreme Court in Lawrence in
declaring section 377 of IPC as unconstitutional. The Kaushal Court recriminalized
homosexuality.

NALSA recognized transgender as third gender by treating the issue as human right issue. The
Supreme Court in NALSA held that transgender persons have the right to identify their gender a
male, female or transgender irrespective of medical sex reassignment and right to expression of
their chosen gender identity. The Court in Privacy judgment reaffirmed that right to sexual
orientation and gender identity as some our most intimate life decisions that need to be
protected. The Court in K.S. Puttaswamy v. Union of India has observed that Koushal33 has not
appreciated the fundamental right to privacy in its application to sec. 377, IPC.
The Kaushal verdict is dead, only its burial remaining. The Court viewed that a ‘miniscule
fraction of the country's population constitutes lesbians, gays, bi-sexuals or transgenders was not
a sustainable basis to deny the right to privacy.

The Supreme Court in its privacy judgment affirmed that the ideas of self-determination and the
right of the individual to make fundamental choices about how to use one's body are at the heart
of the Constitution. Common Cause v. Union of India represents the first important application
of these general principles to a concrete situation. Consequendy the autonomy to die is
recognized in Common Cause It also endorses freedom of the competent individuals to make
choices about the medical care and also the principle of technological self-determination.

It is submitted that one can witness the influence of the Puttaswamy on the Supreme Court in
restoring Hadiya marriage. The Court opined that Hadiya is having internal freedom of choice,
marriage and autonomy. The Supreme Court has clarified that right to convert is a fundamental
right of choice. The Court observed that “freedom of faith is essential to his/her autonomy;

33
(2014) 6 SCC 433

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choosing a faith is substratum of individuality”. The Supreme Court came down heavily on the
crimes committed in the name of honour by upholding the choice of consenting adults to love
and marry as part of their fundamental rights. The apex Court said “honour killing guillotines
individual liberty and freedom of choice and one's own perception of choice”. It is submitted that
the Court has once again applied the Privacy judgment in the instant case. The Court maintained
that the State and even the parents could not interfere with the freedom and encroach into their
marriages.

CONCLUSION

From the above, it is concluded that, fundamental right to privacy is a multifaceted and
multidimensional concept. It includes preservation of personal intimacies, sanctity of family life,
marriage, procreation, the home and sexual orientation. It connotes a right to be let alone. It
safeguards individual autonomy and recognizes one's ability to control vital aspects of life. It
protects heterogeneity and recognizes plurality and diversity of our culture. It is one of the core
freedoms. Having increasingly recognized sexual privacy in jurisprudence around the world, the
European countries and many States in the US have repealed adultery laws. In India too, the
constitutional validity of the offence of adultery is challenged in Joseph Shine v. Union of India.
Following the global trend and Puttaswamy dictum the Supreme Court might decriminalize
adultery which is an ancient vintage on the ground of sexual privacy. Similarly, time is ripe to
criminalise marital rape which silently invades sexual privacy of wife.

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