REFERENCE NOTE
No.58/RN/Ref./Nov/2017
For the use of Members of Parliament NOT FOR PUBLICATION
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RIGHT TO PRIVACY
Prepared by Shri B. Phani Kumar, Additional Director (23034536) and Smt. Bela Routh, Joint Director of
Lok Sabha Secretariat under the supervision of Smt. Kalpana Sharma, Joint Secretary and Shri C.N.
Sathyanathan, Director.
r personal use o
The Reference Note is for personal use of the Members in the discharge of their Parliamentary duties, and is not for
publication. This Service is not to be quoted as the source of information as it is based on the sources indicated at
the end/in the text.
MEMBERS' REFERENCE SERVICE
LARRDIS
LOK SABHA SECRETARIAT, NEW DELHI
RIGHT TO PRIVACY
A definite legal definition of „privacy‟ is not available yet some legal experts
tend to define privacy as a human right enjoyed by every human being by virtue of
his or her existence. It depends on no instrument or charter. Privacy can also
extend to other aspects, including bodily integrity, personal autonomy,
informational self-determination, protection from state surveillance, dignity,
confidentiality, compelled speech and freedom to dissent or move or think. In
short, the right to privacy has to be determined on a case-by-case basis. Privacy
enjoys a robust legal framework internationally. Article 12 of the Universal
Declaration of Human Rights, 1948 and Article 17 of the International Covenant
on Civil and Political Rights (ICCPR), 1966, legally protect persons against
“arbitrary interference” with one‟s privacy, family, home, correspondence, honour
and reputation.
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A brief history of Right to Privacy
The Right to Privacy was not directly envisaged by the Constitution makers
and as such does not find a mention in Part III of the Constitution relating to
Fundamental Rights. The judiciary has deliberated upon the matter, and has
interpreted privacy from the very beginning. However, it was in 1954, just four
years after the Constitution came into being, that the Supreme Court had to deal
with the question of privacy. In the MP Sharma vs Satish Chandra case, the
Supreme Court decided in favour of the practice of search and seizure when
contrasted with privacy.
In 1962, while deciding the Kharak Singh vs State of UP (AIR 1963 SC
1295), the Court examined the power of police surveillance with respect to history-
sheeters and it ruled in favour of the police, saying that the right of privacy is not a
guaranteed right under the Constitution.
1
The Hindu , dated July 29, 2017.
2
It was 1975 that became a watershed year for the right to privacy in India.
The Supreme Court while hearing the Gobind vs State of MP & ANR [1975
SCC(2) 148] case introduced the compelling state interest test from the American
jurisprudence. The court stated that right to privacy of an individual would have to
give way to larger state interest, the nature of which must be convincing. With
time, the domain of privacy has expanded and it has come to incorporate personal
sensitive data such as medical records and biometrics.
In 1997 in the matter of PUCL vs Union of India
2
, commonly known as
telephone tapping cases, the Supreme Court unequivocally held that individuals
had a privacy interest in the content of their telephone communications. Thus,
through a series of cases, it can be observed that the right to privacy was being
recognised, but its exceptions were also given due place.
In the second decade of the 21st century, questions with respect to the right
to privacy have centred around Aadhaar, a government scheme in which residents
get a unique ID after giving their biometrics such as fingerprints and iris scan and
demographic details. Aadhaar was challenged in court on the grounds of violation
of privacy and its usage was limited by the Supreme Court through its order in
September 2013, with Aadhaar being allowed in public distribution system and
LPG subsidy only. However, in October 2015, it amended its order and said that
Aadhaar can be used to deliver services such as Mahatma Gandhi National Rural
Employment Guarantee Act (MNREGA), Pradhan Mantri Jan-Dhan Yojana,
pension and provident fund schemes but no person should be deprived of any
service in absence of Aadhaar
3
.
2
PUCL vs Union of India AIR 1997 SC 568 / (1997) 1 SSC
3
Governance Now dated July 1-15, 2016.
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Domestic laws related to privacy
The Constitution of India does not specifically guarantee a right to privacy.
However, through various judgements over the years the Courts of the country
have interpreted the other rights in the Constitution to be giving rise to a (limited)
right to privacy – primarily through Article 21 – the right to life and liberty. In
2015, this interpretation was challenged and referred to a larger Bench of the
Supreme Court in the writ petition of Justice K.S Puttaswamy & Another vs. Union
of India and Others [Writ Petition (civil) No. 494 of 2012]
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.
The Court in a landmark judgement on 24 August, 2017 unanimously ruled
that privacy is a fundamental right, and that the right to privacy is protected as an
intrinsic part of the right to life and personal liberty, as a part of the freedoms
guaranteed by Part III of the Constitution. The Bench also ruled that the right to
privacy is not absolute, but is subject to reasonable restrictions (as is every other
fundamental right)
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.
Privacy Bills In Parliament
Some Private Members' Bills were introduced on the subject in both the
Houses of Parliament.
Recently, a Bill was introduced in Parliament by Shri Baijayant Panda (BJD)
proposing to bring privacy under the ambit of legislation. His latest attempt
through the Data (Privacy and Protection) Bill, 2017 is pending before the Lok
Sabha.
Yet another Bill, namely, The Right to Privacy Bill, 2010 was tabled in the
Rajya Sabha by Shri Rajeev Chandrasekhar. Two more Bills seeking to secure
citizen's private data were introduced in 2016 in the Rajya Sabha by Shri Vivek
Gupta, MP of the Trinamool Congress and by Shri Om Prakash Yadav, BJP
4
India. Stakeholder Report, Universal Periodic Review, 27th Session on "The Right to Privacy in India".
5
Mainstream Weekly, Vol LV No. 37 dated 2 September, 2017
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Member of Parliament, in Lok Sabha. But, none of these Bills have secured the
nod of Parliament.
Existing Law on Privacy
In the absence of a specific law on privacy, this right is legally viewed under
the Information Technology Act, 2000. The Act has some express provision
guarding individuals against breach of privacy by corporate entities. The Act was
amended in 2008 to insert Section 43 A which made the Companies compromising
sensitive personal data liable to pay compensation.
Exercising its powers under Section 43A of the IT Act, 2000, the
Government framed eight rules to protect privacy of an individual. These all relate
to seeking permission by a company before accessing privacy data of individuals
and fixing liabilities for violation of the same
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.
Right to Privacy in other countries
The Right to Privacy has come into forefront of a number of controversies in
various countries in the past few years, the explicit definition of it has remained
unclear in most instances.
Germany
Germany remains one of the strictest countries to enforce privacy laws. In the
recent past in fact, the privacy law in Germany has caused much discomfort to
organisations like Facebook and Google which run on the basis of the freedom of
the internet.
United States
While the US Constitution does not mention right to privacy explicitly, the
Supreme Court has on various instances interpreted various amendments to state
that the right does exist. In particular the 1974 Privacy Act was passed with the
intention of protecting citizens from any federal agency using their records
arbitrarily.
6
http://indiatoday.intoday.in/story/right-to-privacy-fundamental-right-parliament/1/1032794.html
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Canada
First brought into place in 1977 as part of the Canadian Human Rights Act, the
privacy law in Canada has evolved over time. Initially, the law was introduced as a
means of data protection. In 1983, the law was expanded to include a check on
how the Government can access and disclose personal information. The last time
the privacy law was redefined in 2012 when the Canada Government stated that
the Common Law recognised the Right to personal privacy as a "tort of intrusion
upon seclusion".
Sweden
Despite being one of the first countries of the world to give a personal
identification number to its citizens, required to be used in every interaction with
the State, Sweden is also one of the first countries to have a detailed statute on
privacy laws online. The Data Act, 1973 protected the privacy of personal data on
computers. The right to protection of personal data is also found in the Swedish
constitution.
European Union
The Data Protection Directive adopted by the European Union in 1995 regulates
the processing of personal data within the European Union. Article 8 of the
European Convention on Human Rights (ECHR) provides a right to protection of
one‟s private and family life subject to certain restrictions
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.
Australia
The country has its own 'Privacy Act' which came into being around 1988. It
governs the handling of personal information of individuals.
Japan
In 2015, Japan adopted a system of citizen identification which united personal tax
information, social security and disaster relief benefits. The law gave all Japanese
citizens and foreign residents a 12 digit 'My Number'. The aim was to make
7
Indian Express dated 24.08.2017
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administration more systematic and social welfare benefits more efficient, while
also helping to cut down on tax evasion and benefit fraud. It will first be voluntary
from 2018 but could become mandatory by 2021. Japanese law in itself does not
explicitly provide for a right to privacy. But the right is read into Article 13 of the
Japanese Constitution which provides for the right to "life, liberty, and the pursuit
of happiness" and for the right for people to be "respected as individuals".
Brazil
The country's Constitution states, "The intimacy, private life, honor and image of
the people are inviolable, with assured right to indenization by material or moral
damage resulting from its violation
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."
Privacy and the Supreme Court
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In the following seven cases, the Supreme Court had upheld the Right to Privacy:-
1964
1997
1998
2008
KHARAK SINGH
VS STATE OF UP & OTHERS
(1963 AIR SC 1295)
PUCL VS
UNION OF INDIA
(AIR 1997 SC 568)
MR X VS HOSPITAL Z
(1998 (8) SCC 296)
HINSA VIRODHAK SANGH
VS MIRZAPUR MOTI
KURESH JAMAT (AIR 2008
SC 1892)
SURVEILLANCE INTRUDES INTO PRIVACY: This
case is among the most cited cases in India when it
comes to privacy. Here, a majority of a six-judge
bench held that unlawful intrusion into the home
violates personal liberty.
TELEPHONE TAPPING INVADES PRIVACY: A
division bench held that a telephone conversation
is an exercise in freedom of expression, and that
telephone tapping is an invasion of privacy.
PRIVACY ISN’T ABSOLUTE: The case concerned
revealing the HIV status of a patient by a doctor. A
division bench held the right to privacy isn‟t
absolute. A doctor may disclose a patient‟s HIV
status to the partner
CHOICE OF FOOD PERSONAL: A division bench
upheld the closure of slaughterhouses in
Ahmedabad during the Jain Paryushan festival. It
also observed that what one eats is part of one‟s
right to privacy
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http://www.oneindia.com/india/how-other -countries-look-at-right-to-privacy-2528810.html
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The Times of India dated August 25, 2017
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2009
2011
2012
JAMIRUDDIN AHMED VS
STATE OF WEST
BENGAL(CRIMINAL
APPEAL NO. 1535 OF 2008)
RAM JETHMALANI &
OTHERS VS UNION
OF
INDIA (2011) 8 SCC 1
SUPREME COURT TAKES SUO
MOTU NOTICE OF THE
RAMLILA
MAIDAN INCIDENT
RAID WITHOUT REASON NOT OKAY: A division
bench ruled that search/seizure without recording
valid reasons violates the right to privacy
CAN’T REVEAL BANK DETAILS WITHOUT VALID
GROUNDS: Popularly known as the “Black Money
Case”, here the Supreme Court held that revealing
an individual‟s bank account details without
establishing grounds to accuse them of wrongdoing
violates their right to privacy
RIGHT TO SLEEP IS PART OF RIGHT TO
PRIVACY: The Supreme Court took suo motu
cognizance of the crackdown on sleeping anti-
corruption protesters camping at Ramlila Maidan
led by Baba Ramdev.
Identifying Right to Sleep as an aspect of the Right
to Dignity and Privacy, the court refused to permit
“illegitimate intrusion into a person‟s privacy as
right to privacy is implicit in the right to
life and
liberty”
Supreme Court verdict on Right to Privacy
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A nine-judge Constitution Bench headed by Chief Justice, J.S. Khehar on
24th August, 2017 gave a landmark decision on Right to Privacy. Supreme Court
ruled that Right to Privacy is "intrinsic to life and personal liberty" and is
inherently protected under Article 21 and as a part of the freedoms guaranteed by
Part III of the Constitution. Reading out the common conclusion arrived at by the
nine-judge Bench, the Chief Justice said the Court had overruled its own eight-
judge Bench and six-judge Bench judgements of M.P. Sharma and Kharak Singh
cases delivered in 1954 and 1961 respectively that privacy is not protected under
the Constitution. To overcome these two precedents, a five-judge Bench led by
Chief Justice J.S. Khehar had referred the question whether privacy is a
fundamental right or not to the numerically superior nine-judge Bench.
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10
In 2012, Justice K.S. Puttaswamy (Retd.) filed a petition in the Supreme Court challenging the constitutionality of
Aadhaar on the grounds that it violates the Right to Privacy.
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The Hindu , dated August 24, 2017.
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The verdict could now test the validity of Aadhaar, the biometric
identification project.
Issuing the ruling, the nine-Judge Bench said right to privacy was at par with
right to life and liberty, and that the verdict will protect citizens‟ personal freedom
from intrusions by the state.
Key conclusions from the Judgment on Justice K.S. Puttaswamy (Retd) and
Another vs Union of India and Others (Writ Petition Civil No. 494 of 2012):
1. Life and personal liberty are inalienable rights. These are rights which are
inseparable from a dignified human existence. The dignity of the individual,
equality between human beings and the quest for liberty are the foundational
pillars of the Indian Constitution;
2. Judicial recognition of the existence of a constitutional right of privacy is not an
exercise in the nature of amending the Constitution nor is the Court embarking on
a constitutional function of that nature which is entrusted to Parliament;
3. Privacy includes at its core the preservation of personal intimacies, the sanctity
of family life, marriage, procreation, the home and sexual orientation. Privacy also
connotes a right to be left alone.
4. Personal choices governing a way of life are intrinsic to privacy.
5. ...privacy is not lost or surrendered merely because the individual is in a public
place. Privacy attaches to the person since it is an essential facet of the dignity of
the human being;
6. Technological change has given rise to concerns which were not present seven
decades ago and the rapid growth of technology may render obsolescent many
notions of the present. Hence the interpretation of the Constitution must be resilient
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and flexible to allow future generations to adapt its content bearing in mind its
basic or essential features;
7. Like other rights which form part of the fundamental freedoms protected by Part
III, including the right to life and personal liberty under Article 21, privacy is not
an absolute right. A law which encroaches upon privacy will have to withstand the
touchstone of permissible restrictions on fundamental rights.
8. Privacy has both positive and negative content. The negative content restrains
the state from committing an intrusion upon the life and personal liberty of a
citizen. Its positive content imposes an obligation on the state to take all necessary
measures to protect the privacy of the individual.
9. The right of privacy is a fundamental right. It is a right which protects the inner
sphere of the individual from interference from both State, and non-State actors
and allows the individuals to make autonomous life choices.
10. The privacy of the home must protect the family, marriage, procreation and
sexual orientation which are all important aspects of dignity.
11. ...in a country like ours which prides itself on its diversity, privacy is one of the
most important rights to be protected both against State and non-State actors and
be recognized as a fundamental right.
12. ...right of privacy cannot be denied, even if there is a miniscule fraction of the
population which is affected. The majoritarian concept does not apply to
Constitutional rights...
13. Let the right of privacy, an inherent right, be unequivocally a fundamental right
embedded in part-III of the Constitution of India, but subject to the restrictions
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specified, relatable to that part. This is the call of today. The old order changeth
yielding place to new
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.
Final order of the Supreme Court
The judgment on behalf of the Hon‟ble Chief Justice Shri Justice Jagdish
Singh Khehar, Shri Justice R K Agrawal, Shri Justice S Abdul Nazeer and Dr
Justice D Y Chandrachud was delivered by Dr Justice D Y Chandrachud. Other
judges delivered separate judgments.
The reference is disposed of in the following terms:
(i) The decision in M P Sharma which holds that the right to privacy is not
protected by the Constitution stands over-ruled;
(ii) The decision in Kharak Singh to the extent that it holds that the right to
privacy is not protected by the Constitution stands over-ruled;
(iii) The right to privacy is protected as an intrinsic part of the right to life and
personal liberty under Article 21 and as a part of the freedoms guaranteed by
Part III of the Constitution.
(iv) Decisions subsequent to Kharak Singh which have enunciated the position
in (iii) above lay down the correct position in law.
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Implications of the Judgement
The historic fallout of the nine-judge Bench judgment, declaring privacy as
intrinsic to life and liberty and an inherent right protected by Part III of the
Constitution, is that an ordinary man can now directly approach the Supreme Court
and the High Courts for violation of his fundamental right under the Constitution.
12
The Hindustan Times dated August 08, 2017
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supremecourtofindia.nic.in/supremecourt/2012/35071/35071_2012_judgement_24-Aug-2017.pdf
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By making privacy an intrinsic part of life and liberty under Article 21, it is
not just a citizen, but anyone, whether an Indian national or not, can move the
constitutional courts of the land under Articles 32 and 226, respectively, to get
justice.
By declaring that privacy is inherent to each and every fundamental freedom
in Part III of the Constitution, the Supreme Court has made privacy an essential
ingredient of other important fundamental freedoms, including right to equality,
free speech and expression, religion and a myriad other important fundamental
rights essential for a dignified existence subject to reasonable restrictions of public
health, morality and order
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.
14
The Hindu, dated August 24, 2017
