Constitutional law

RIGHT TO PRIVACY

Right to privacy is an essential component of right to life and personal liberty

under Article 21. Right of privacy may, apart from contract, also arise out of a particular
specific relationship, which may be commercial, matrimonial or even political. Right to
privacy is not an absolute right; it is subject to reasonable restrictions for prevention of crime,
disorder or protection of health or morals or protection of rights and freedom of others.
Where there is a conflict between two derived rights, the right which advances public
morality and public interest prevails

According to Black’s Law Dictionary: “right to be let alone; the right of a person to be free
from unwarranted publicity; and the right to live without unwarranted interference by the
public in matters with which the public is not necessarily concerned”

As already discussed Article 21 of the Constitution of India states that “No person shall be

deprived of his life or personal liberty except according to procedure established by law”.
The right to life enshrined in Article 21 has been liberally interpreted so as to mean
something more than mere survival and mere existence or animal existence. It therefore
includes all those aspects of life which makes a man’s life more meaningful, complete and
worth living and right to privacy is one such right. The first time this topic was ever raised
was in the case of Kharak Singh v. State of UP 1 where the Supreme Court held that
Regulation 236 of UP Police regulation was unconstitutional as it clashed with Article 21 of
the Constitution. It was held by the Court that the right to privacy is a part of right to
protection of life and personal liberty. Here, the Court had equated privacy to personal
liberty.

In Govind v. State of Madhya Pradesh2, Mathew, J. accepted the right to privacy as an

emanation from Art. 19(a), (d) and 21, but right to privacy is not absolute right. “Assuming
that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that
the right to privacy is itself a fundamental right, the fundamental right must be subject to
restriction on the basis of compelling public interest”. Surveillance by domiciliary visits need
not always be an unreasonable encroachment on the privacy of a person owing to the
character and antecedents of the person subjected to surveillance as also the objects and the

1
1963 AIR 1295, 1964 SCR (1) 332
2
1975 AIR 1378, 1975 SCR (3) 946

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limitation under which the surveillance is made. The right to privacy deals with ‘persons not
places’.
In Smt. Maneka Gandhi v. Union of India & Anr3., in this case SC 7 Judge Bench said
‘personal liberty’ in article 21 covers a variety of rights & some have status of fundamental
rights and given additional protection u/a 19. Triple Test for any law interfering with personal
liberty: (1) It must prescribe a procedure; (2) the procedure must withstand the test of one or
more of the fundamental rights conferred u/a 19 which may be applicable in a given situation
and (3) It must withstand test of Article 14. The law and procedure.. Authorising interference
with personal liberty and right of privacy must also be right just and
fair and not arbitrary, fanciful or oppressive.

In Naz Foundation Case (2009) Delhi HC gave the landmark decision on consensual

homosexuality. In this case S. 377 IPC and Articles 14, 19 & 21 were examined. Right to
privacy held to protect a “private space in which man may become and remain himself”. It
was said individuals need a place of sanctuary where they can be free from societal control-
where individuals can drop the mask, desist for a while from projecting on the world the
image they want to be accepted as themselves, an image that may reflect the values of their
peers rather than the realities of their nature.

It is now a settled position that right to life and liberty under article 21 includes right to
privacy. Right to privacy is ‘a right to be let alone’. A citizen has a right to safeguard the
privacy of his own, his family, marriage, procreation, motherhood, child-bearing and
education among other matters. Any person publishing anything concerning the above
matters except with the consent of the person would be liable in action for damages. Position
however, be different, if a person voluntarily thrusts himself into controversy or voluntarily
invites or raises a controversy.

PERMISSIBLE RESTRICTION ON RIGHT TO PRIVACY

Intrusion into privacy may be by- (1) Legislative Provision (2) Administrative/Executive
order (3) Judicial Orders. Legislative intrusion must be tested on the touchstone of
reasonableness as guaranteed by the Constitution and for that purpose the Court can go into
proportionality of the intrusion vis-à-vis the purpose sought to be achieved. (2) So far as
administrative or executive action is concerned it has to be reasonable having regard to the
facts and circumstances of the case. (3) As to judicial warrants, the Court must have
3
1978 AIR 597, 1978 SCR (2) 621

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sufficient reason to believe that the search or seizure is warranted and it must keep in mind
the extent of search or seizure necessary for protection of the particular State interest. In
addition, as stated earlier, common law did recognise rare exceptions for conduct of
warrantless searches could be conducted but these had to be in good faith, intended to
preserve evidence or intended to prevent sudden anger to person or property.

THE PRIVACY BILL , 2011

The bill says, “every individual shall have a right to his privacy — confidentiality of
communication made to, or, by him — including his personal correspondence, telephone
conversations, telegraph messages, postal, electronic mail and other modes of
communication; confidentiality of his private or his family life; protection of his honour and
good name; protection from search, detention or exposure of lawful communication between
and among individuals; privacy from surveillance; confidentiality of his banking and
financial transactions, medical and legal information and protection of data relating to
individual.”

The bill gives protection from a citizen's identity theft, including criminal identity theft
(posing as another person when apprehended for a crime), financial identify theft (using
another’s identity to obtain credit , good and services ) , etc.

The bill prohibits interception of communications except in certain cases with approval of
Secretary-level officer. It mandates destruction of interception of the material within two
months of discontinuance of interception.

The bill provides for constitution of a Central Communication Interception Review

Committee to examine and review the interception orders passed and is empowered to render
a finding that such interception contravened Section 5 of the Indian Telegraphs Act and that
the intercepted material should be destroyed forthwith. It also prohibits surveillance either by
following a person or closed circuit television or other electronic or by any other mode,
except in certain cases as per the specifies procedure .

As per the bill, no person who has a place of business in India but has data using
equipment located in India, shall collect or processor use or disclose any data relating to
individual to any person without consent of such individual .

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The bill mandates the establishment of a Data Protection Authority of India, whose
function is to monitor development in data processing and computer technology; to examine
law and to evaluate its effect on data protection and to give recommendations and to receive
representations from members of the public on any matter generally affecting data protection.
The Authority can investigate any data security breach and issue orders to safeguard the
security interests of affected individuals in the personal data that has or is likely to have been
compromised by such breach.

The bill makes contravention of the provisions on interception an offence punishable with
imprisonment for a term that may extend up to five years or with fine, which may extend to
Rs. 1 lakh or with both for each such interception. Similarly, disclosure of such information is
a punishable offence with imprisonment up to three years and a fine of up to Rs. 50,000, or
both.

Further, it says any persons who obtain any record of information concerning an individual
from any officer of the government or agency under false pretext shall be punishable with a
fine of up to rs. 5 lacs.

TAPPING OF TELEPHONE

Telephone tapping constitutes a serious invasion of an individual’s right to privacy. Is it

constitutionally permissible in India? If so, within what limits and subject to what
safeguards?
The questions posed above have been fully considered by the Supreme Court in People’s
Union for Civil Liberties v. Union of India 4. In this case Public Interest Litigation was filed
protesting rampant instances of phone tapping of politician’s phones by CBI. The court 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”. So, tapping of telephone is a serious invasion of
privacy. This means that telephone tapping would infract Article 21 unless it is permitted
under the procedure established by law. The procedure has to be “just, fair and reasonable”.

The Court laid down exhaustive guidelines to regulate the discretion vested in the State under
Section 5 of the Indian Telegraph Act for the purpose of telephone tapping and interception

4
 AIR 1997 SC 568

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of other messages so as to safeguard public interest against arbitrary and unlawful exercise of
power by the Government. Section 5(2) of the Act permits the interception of messages in
accordance with the provisions of the Act. “Occurrence of any public emergency” or in
interest of public safety” are the sine qua non “for the application of provisions under section
5(2) of the Act unless a public emergency has occurred or the interest of public safety
demands, the authorities have no jurisdiction to exercise the powers under the said
legislation. The Court said public emergency would mean the prevailing of sudden condition
or state of affairs affecting the people at large calling for immediate action. The expression
‘public safety’ means the state or condition of grave danger or risk for the people at large.
When either these two conditions are not in existence, the Court said, the Central
Government or the State Government or the authorised officers cannot resort to telephone
tapping even though there is satisfaction that it is necessary or expedient so to do in the
interest of sovereignty and integrity of the country. In other orders, even if the Central
Government is satisfied that it is necessary or expedient so to do in the interest of the
sovereignty or integrity of the country or the security of the State or friendly relations with
foreign States or public order or for preventing for incitements to the commission of an
offence it cannot intercept the message or resort to telephone tapping unless a public
emergency has occurred or the interest of public safety or the existence of the interest of
public safety requires.

The Court has laid down the following procedural safeguards for the exercise of power under
Section 5(2) of the Indian Telegraph Act-

 An order for telephone tapping can be issued only by the Home Secretary of the
Central Government or the State Governments. In an urgent case, the power may be
delegated to an officer of the Home Department of the Central and the State
Governments not below the rank of Joint Secretary.
 The copy of the order shall be sent to the Review Committee within one week of the
passing of order.
 The order shall, unless renewed, cease to have effect at the end of two months from
the date of issue. The authority making the order may review before that period if it
considered that it is necessary to continue the order in terms of Section 5(2) of the
Act.

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 The authority issuing the order shall maintain the record of intercepted
communications, the extent the material to be disclosed, number of persons, their
identity to whom the material is disclosed.
 The use of intercepted material shall be limited to the minimum that is necessary in
terms of Section 5(2) the Act.
 The Review Committee shall on its own, within two months, investigate whether
there is or has been a relevant order under section 5(2) of the Act.
 If on investigation the Review Committee concludes that there has been a
contravention of the provisions of Section 5(2) of the Act, shall set aside the order. It
can also direct the destruction the copies of the intercepted material.

 If on investigation the Review Committee comes to the conclusion that there has
been no contravention of the relevant provision of the Act, it shall record the finding
to that effect.
 The Court noted that with the growth of highly sophisticated communication
technology the right to hold telephone conversation in the privacy of one’s home or
office without interference is increasingly susceptible to abuse. In view of this, the
Court’s ruling laying down detailed guidelines for the exercise of power under the
relevant Act is timely and of historic importance.

DIVORCE PETITION

In Rayala M. Bhuvneswari v. Nagaphomender Rayala5 the petitioner filed a divorce

petition in the Court against his wife and to substantiate his case sought to produce a hard
disc relating to the conversation of his wife recorded in U.S. with others. She denied some
portions of the conversation. The Court held that the act of tapping by the husband of
conversation of his wife with others without her knowledge was illegal and amounted to
infringement of her right to privacy under article 21 of the Constitution. These talks even if
true cannot be admissible in evidence. The wife cannot be forced to undergo voice test and
then asked the expert to compare portion denied by her with her admitted voice. The Court
observed that the purity of the relation between husband and wife is the basis of marriage.
The husband was recording her conversation on telephone with her friends and parents in
India without her knowledge. This is clear infringement of right to privacy of the wife. If

5
AIR 2008 AP 98, 2008 (2) ALD 311, 2008 (1) ALT 613

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husband is of such a nature and has no faith in his wife even about her conversations to her
parents, then the institution of marriage itself becomes redundant

PRISONER’S PRIVACY RIGHTS

The protection of Article 21 is available even to convicts in jail. The convicts are not by mere
reason of their conviction deprived of all their fundamental rights which they otherwise
possess. Following the conviction of a convict is put into a jail he may be deprived of
fundamental freedoms like the right to move freely throughout the territory of India. But a
convict is entitled to the precious right guaranteed under Article 21 and he shall not be
deprived of his life and personal liberty except by a procedure established by law.

The question of the right to be let alone again came on the front in the case of R. Rajagopal
vs. State of T.N6 also known popularly as the Auto Shankar Case. A prisoner had written his
autobiography in jail describing the conditions there and the nexus between prisoners and
several IAS and IPS officers. He had given the autobiography to his wife so that she may
publish it in a particular magazine. However, the publication was restrained in various
matters and the question arose whether anyone has the right to be let alone and particularly in
jail.

In R. Rajagopal vs. State of T.N.,(1994) Right to Privacy held to be implicit in Article 21.
“It is the right to be left alone”. A citizen has a right to safeguard the privacy of his own, his
family, marriage, procreation, motherhood, child bearing and education among many other
matters. In this case right of a prisoner to privacy recognised.

RIGHT TO INFORMATION V. RIGHT TO PRIVACY

In India the Constitution does not expressly recognise the right to privacy. But after the case
of Kharak Singh v. State of U.P 7the Supreme Court for the first time recognised the right to
privacy which is implicit in the Constitution under Article 21. The Court held that the right to
privacy is an integral part of the right to life, but without any clear cut laws, it still remains in
the gray area. The view was based on the conclusion that the infringement of a fundamental
right must be both direct as well as tangible that the freedom guaranteed u/a 19(1)(a)- a right

6
1995 AIR 264, 1994 SCC (6) 632
7
1963 AIR 1295, 1964 SCR (1) 332

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to freedom of speech and expression was not infringed upon by a watch being kept over the
movement of the suspect.

In R. Rajagopal v. State of T.N., the apex Court held that the right to privacy is a ‘right to
let alone’. No one can publish anything concerning the above matters without his consent,
whether truthful or otherwise whether laudatory or critical. If he does so, he would be
violating the right to privacy of the person concerned and would be liable in the action of
damages.

In Mr. X v. Hospital Z 8, it was held that where there is a clash of two fundamental rights, as
in the instant case, namely, the appellant’s right to privacy as a part of right to life and other
person’s right to lead a healthy life which is her fundamental right u/a 21, the right which
would advance the public morality or public interest, would alone be enforced through the
process of Court, for the reason that moral consideration cannot be kept at bay and judges are
not expected to sit as mute structures of clay as in Hail, known as Courtroom but have to be
sensitive, “in the sense that they must keep their fingers firmly upon the pulse of the accepted
morality of the day”.

Voicing concern over vexatious use of RTI Act, Prime Minister Manmohan Singh said the
citizens’ to know should definitely be circumscribed if it encroaches on an individual’s
privacy. He said “there is a fine balance required to be maintained between right to
information and the right to privacy, which stems out of the fundamental right of life and
liberty. The citizen’s right to know should definitely be circumscribed if disclosure of
information encroaches upon someone’s personal privacy. But where to draw a line is a
complicated question.” 

Recently in one of the most controversial case Ratan Tata went to Supreme Court against the
publication of intercepts of his conversation with Neera Radia who handles the corporate
communication for the group. Tata holds that as Radia’s phones were tapped by government
agencies especially for investigating a possible offence the recorded conversations should
have been used for that purpose alone. Ratan Tata has submitted his petition before Supreme
Court asking to protect his right to privacy. But given that freedom of information laws have
at their core the purpose of disclosure, exemptions are strictly construed, and it has been said
that the public right to know should prevail unless disclosure would publicise intimate details

8
 1998

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of a highly personal nature. The Radia tapes so far published public issues, but not personal
life of Tata. These conversations would be available to every citizen under the RTI Act
because the only objection that one could raise would be on the ground of 8(j) of RTI Act
which says-information which relates to personal information, the disclosure of which has no
relationship to any public activity on interest. It also says “or which would cause unwarranted
invasion of the privacy of the individual unless the public authority is satisfied, unless the
information officer is satisfied that the larger public interest justifies the disclosure of such an
information.”

In that case a preliminary question that should be asked is whether Tata’s conversations
would be revealed through an RTI, or whether his conversations would fall under the
exemption of personal information found in section 8(j). It is interesting to note the structure
of this exemption. By the use of word “or” the legislation suggests that unwarranted invasion
of individual privacy may trigger the exemption, even if the information has a relationship to
public activity or interest. But the added caveat says that the larger public interest could
justify the release of even purely private information.

By the use of the word “or” the legislation suggests that unwarranted invasion of individual
privacy may trigger the exemption, even if the information has a relationship to public
activity or interest. But the added caveat says that the larger public interest could justify the
release of even purely private information. In addition, what constitutes “personal”
information has not been defined in the legislation.

However, according to expert legal opinion, the Supreme Court of India is well within its
rights to allow disclosure of conversation details between Ratan Tata and Nira Radia.

LATER DEVELOPMENTS IN RIGHT TO PRIVACY

Right to privacy, once incorporated as a fundamental right, is wide enough to encroach into
any sphere of activity. The conferment of such a right has become extremely difficult with
the advancement of technology and the social networking sites. But the other side of the
picture is that right to privacy of a person includes the right to seclude personal information.
The extent to which the realm of privacy of each person should remain is subjective, which
might differ from person to person. The recognition of right to privacy can also be seen in the

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S. 43 of Information Technology Act which makes unauthorised access into a computer

resource invoke liability.

Today, each person is a press, taking in view the emergence of blog spots and social
networking sites. Many a times, the right to privacy may come in conflict with the right to
press the right to press is a right derived from Article 19 (1) (a) in particular. The right to
expression of a person may come in conflict with the right to privacy of another person. The
question, where there is a conflict, which should prevail over the other, is well explained by
bringing in the concept of ‘public interest’ and ‘public morality’. The publication of personal
information of an individual without his consent or approval is justified if such information
forms part of public records including Court records. Each case is distinct and each right is
special.

Any right derived from Article 19 can be derived from Article 21 too, under the wide
interpretation of ‘personal liberty’. Though the Court generally applies the test of ‘public
interest’ or ‘public morality’ in case of conflict between two derived rights, another
interpretation is also possible. A right derived under Article 21 is superior to a right derived
under Article 19, since the state enacting law in contravention of such right can be saved
under the reasonable restrictions under 19(2) to (5). The position was different in the Pre-
Maneka era, when Article 21 was not a source of substantive right.

The right to privacy may come in conflict with the investigation of police in several
aspects. Narco-analysis, polygraph test and brain mapping tests, in application, make
unwarranted intrusion into the right to privacy of a person. The Supreme Court was
acknowledging the individual right to privacy by declaring these tests inhuman and
unconstitutional.

The Supreme Court in Directorate of Revenue and Anr v. Mohammed Nisar Holia 9 cited
the US Supreme Court judgement which held ‘thermal imaging’, a sophisticated sense
enhancing technology which when kept outside the residential house of a person can detect
whether the inmate has kept narcotic substance within as infringement on the right to privacy
of the said person. The Court discouraged the unnecessary infringement of the right to
privacy of a persons and held that no authority shall be given untrammelled power to infringe
the right to privacy of a person, the Court held while reversing the conviction for non-
9
2007

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compliance of statutory requirement of search and seizure. Although a statutory power to

make a search and seizure by itself may not offend the right of privacy but in case of this
nature, the least that a Court can do is-to see that such right is not unnecessarily infringed

NARCO ANALYSIS TEST

As science has outpaced the development of law there is unavoidable complexity regarding
what can be admitted as evidence in court. Narco Analysis is one such scientific development
that has become an increasingly common term in India. Recent times have witnessed a spate
in the use of modern scientific techniques such as the lie detector, brain mapping and narco-
analysis, for use in criminal investigation. Although the legal and ethical propriety of their
use has been in doubt, they may in fact be a solution to many a complicated investigation.

NARCO-ANALYSIS AS AN EVIDENCE IN INVESTIGATIONS

The term narco analysis was introduced in 1936 for the use of narcotics to induce a trance-
like state wherein the person is subjected to various queries.2 The term narco-analysis is
derived from Greek word Narkc (meaning anaesthesia or torpor) and is used to describe a
diagnostic and psychotherapeutic technique that uses psychotropic drugs, particularly
barbiturates, to induce a stupor in which mental elements with strong associated affects come
to the surface, where they can be exploited by the therapist. The
term narco-analysis was coined by Horselley. The narco analysis test is based on the
principle that a person is able to lie using his imagination and, under the influence of certain
barbiturates, this capacity for imagination is blocked or neutralised by leading the person into
a semi conscious state. 4 It becomes difficult for the person to lie and his answers would be
restricted to facts he is aware of.5 The statements made by the accused are recorded on audio
and video cassettes, and the report of the expert is helpful in collecting evidence.6 The use of
such drug in police work or interrogation is similar to the accepted psychiatric practice of
narco analysis and the only difference in the two procedures is the difference in the
objectives.
The Bombay High Court, in a significant verdict in Ramchandra Ram Reddy v. State of
Maharashtra10 , upheld the legality of the use of P300 or brain mapping and narco-analysis
test. The Court also said that evidence procured under the effect of narco-analysis test is also

10
2004 All MR (Cri) 1704

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admissible. As crimes going hi-tech and criminals becoming professionals, the use of narco
analysis can be very useful, as the conscious mind does not speak out the truth, unconscious
may reveal
vital information about a case. The judgment also held that these tests involve minimal bodily
harm. Surender Koli, main accused in the Nithari case, was brought to Forensic Science
Laboratory in Gandhinagar in January 2007 for narco- analysis. Polygraph test was
conducted on Moninder Singh Pandher and his servant Surender Koli, accused of serial
killing of women and children in Nithari, to ascertain the veracity of their statements made
during their custodial
interrogation. Various confessional statements were made by the accused under the effect of
the drug, he could remember the names of the females he had murdered and revealed his urge
to rape them after murdering them.

POST SELVI CASE

In Selvi v. State of Karnataka 11, the Supreme Court rejected the High Courts reliance on the
supposed utility, reliability and validity of narco analysis and other tests as methods of
criminal investigation. First, the Court found that forcing a subject to undergo narco analysis,
brain-mapping, or polygraph tests itself amounted to the requisite compulsion, regardless of
the lack of physical harm done to administer the test or the
nature of the answers given during the tests. Secondly, the Court found that since the answers
given during the administration of the test are not consciously and voluntarily given, and
since an individual does not have the ability to decide whether or not to answer a given
question, the results from all three tests amount to the requisite compelled testimony to
violate Article 20(3).
The Supreme Court found that narco-analysis violated individual’s right to privacy and
amounted to cruel, inhuman or degrading treatment. Article 21 protects the right to life and
personal liberty , which has been broadly interpreted to include various substantive due
process protections, including the right to privacy and the right to be free from torture and
cruel, inhuman, or degrading treatment.

CONCLUSION-

11
(2004) 7 Kant LJ 501

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Being part of a society often overrides the fact that we are individuals first. Each individual
needs his/her private space for whichever activity (assuming here that it shall be legal). The
state accordingly gives each individual that right to enjoy those private moments with those
whom they want to without the prying eyes of the rest of the world. Clinton Rossiter has said
that privacy is a special kind of independence which can be understood as an attempt to
secure autonomy in at least a few personal and spiritual concerns. This autonomy is the most
special thing that the person can enjoy. He is truly a free man there. This is not a right against
the state, but against the world. The individual does not want to share his thoughts with the
world and this right will help protect his interests.

In this day and age, this right is becoming more essential as every day passes. With all our
lives being splattered over the media be it through social networking sites or the spy cameras,
we need protection so that we can function in a way we want to and not think of others before
our actions. The right to privacy is an aspect of the pursuit of happiness. The pursuit of
happiness requires certain liberties that we are guaranteed by the state so that we may act in a
fashion that we may deem fit, as long as it does not encroach upon the rights of others.
Liberty is not a limited or quantifiable right. It is visible on the entire gamut of the legal
spectrum.

Moreover regarding narco analysis , The Central Government must make a clear policy
stand on narco-analysis. The legal system should imbibe developments and advances that
take place in science as long as they do not violate fundamental legal principles and are for
the good of the society. Narco-analysis for criminal interrogation has proved to be a valuable
technique, which profoundly affects both the innocent and the guilty and thereby hasten the
cause of justice which has seen in various cases like the Aarushi murder case, Nithari killings
case, Telgi scam and Mumbai blasts case.

Courts in India have taken into account an incomplete consideration of the law, which is the
reason for their conclusion in favour of the tests. While the tests may be a practical necessity,
the sanction of the law for some of them is difficult to
find, and extensive safeguards need to be laid out to prevent their abuse.70 It is time for our
legislature and judiciary to act immediately for the sake of justice and fair procedure to bring
narco-analysis within the scope of Article 20(3) of the Constitution. The manner in which
modern-day criminals make use of science and technology in perpetrating their criminal
activities with relative impunity has compelled rethinking on the part of the criminal justice

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establishment to seek the help of the scientific community to come to the help of the police,
prosecutors and the courts.

BIBLIOGRAPHY

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 Constitutional law – M.P. Jain

 Constitutional law – J.N. Pandey
 Constitutional law – V.N. Shukla

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