Today, the degradation of the inner life is symbolized by the fact that the only place sacred from interruption is the private toilet. – Lewis Mumford, American philosopher
The needs of human beings start from the most primary needs such as food, clothing and shelter to secondary needs such as education, work and recreation and further on to wants such as entertainment, good food, leisure travel, etc . The question that must be asked is where does privacy fit into all these needs and wants? Is it a need or is it a want? Is it required anyway?
One might assert that the degree of privacy dictates whether it is a want or a need. A basic degree of privacy is a primary need in any civilised society. As the degree of privacy increases, it evolves into a secondary need and further to a want. As civilisation evolves, the law has evolved from guaranteeing the most basic needs of humans by converting them to rights and then slowly guaranteeing needs not necessarily for existence as rights, as and when society has been able to gather the resources to provide for these needs.
Yet, questions remain. What is privacy? As pointed out by Roger Clarke, we use many words without exactly considering their meaning. When we use words such as ‘eat’ and ‘zebra’, it does not matter, but when we use words such as ‘discrimination’ and ‘ethnicity’, one cannot have a rational discussion without having a common understanding of the terms .
Furthermore, what do we mean by ‘degree of privacy’? The standards of privacy vary very widely from culture to culture and therefore even the law must accordingly fit into the standards of the society. The standards of privacy which a person living in the densely populated slums of Mumbai finds acceptable are totally different from the standards which the people living in a sparsely populated and remote village in Himachal Pradesh find acceptable, assuming that we leave alone the standards employed by the Scandinavians. Can there be a common benchmark for privacy, at least in India?
What cannot be denied, however, is that privacy is important. Warren and Brandeis, two American lawyers, in their seminal paper called ‘The Right to Privacy’, published in 1890 in the Harvard Law Review, could not have put it in a better way: “The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual…”
The most famous paper on privacy to have been published is the above mentioned ‘The Right to Privacy’, in which the authors encouraged a concept of privacy in which they understood privacy as ‘the right to be left alone’. Privacy has several facets such as political privacy, medical privacy, genetic privacy, internet privacy, bodily privacy and privacy of communications. Ruth Gavison has recognised three elements in privacy: secrecy, anonymity and solitude .
The right to privacy is said to have existed in both classical Greece and Ancient China. More recently, Article 12 of the Universal Declaration on Human Rights states, “No one should be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks on his honour or reputation.”
Nature and Scope
This paper will first analyse how the concept of privacy has evolved in the law, and then focus upon the status of the right to privacy in India.
The researcher will attempt to answer the following research questions:
* What is privacy in the eyes of the law?
* How has the concept of the right to privacy evolved in the law?
* What is the status of the right to privacy in India?
In the opinion of the researcher, the first research question cannot be explicitly answered and it is hoped that the reader gets an indication of what privacy is in the eyes of the law as the paper proceeds.
The author has referred to a variety of resources for the purpose of this study. These include articles in various journals and on websites. It also includes landmark judgments.
THE EVOLUTION OF PRIVACY
There were some cases in England in the nineteenth century that raised the question of privacy.
In Wyatt v. Wilson , the right to privacy was recognised. Lord Eldon said , “..if one of the King’s physicians kept a diary of what he had heard and seen, this court would not in the King’s lifetime have permitted him to publish it.”
Later, in Prince Albert v. Strange , the courts did not allow a publisher to print and sell portraits of Queen Victoria and Prince Albert, without the consent of the two. In 1858, France prohibited the publication of private facts and set stiff fines for violators.
The landmark paper on the right to privacy was published by two American lawyers, Warren and Brandeis, called ‘The Right to Privacy’, in 1890 in the
Harvard Law Review. In this paper, the two lawyers recommended the availability of actions in the law of tort for a breach of privacy. The authors recommended the application of this right not only as a method to counter the gossip and rumours generated by the press, but also to deter the trend. Subsequently, one of the first official mentions of the right to privacy in the Supreme Court was in Olmstead v. United States , in 1928, where Justice Brandeis, in his dissenting opinion, reiterated the importance of the right to privacy, where he said,
“The protection guaranteed by the Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights, and the right most valued by civilized men.”
This view was re-asserted in various subsequent judgments in the United States.
The right to privacy was again reiterated in the Universal Declaration of Human Rights, adopted by the General assembly of the United Nations in 1948. Article 12 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.” The same words were used in Article 17 of the International Covenant on Civil and Political Rights, drafted in 1966.
Similarly, Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 states, “Everyone has the right to respect for his private and family life, his home and his correspondence.”
In 1965, in Griswold v. Connecticut, the United States Supreme Court struck down a law passed in the State of Connecticut which made the use of contraceptives a criminal offence, because it violated the right to marital privacy, which, in the opinion of the Court, was granted to under the ‘penumbras’ of various ‘guarantees’ under the Constitution.
In Roe v. Wade, the U.S. Supreme Court ruled that a woman’s decision to terminate her pregnancy were a part of her right to privacy.
PRIVACY IN INDIA
In India, the right to privacy has been discussed mostly in the context of privacy as against the state. The researcher shall discuss three cases in this context, which have shaped the right to privacy.
In Kharak Singh v. State of U.P., the petitioner was a dacoit who had been released from custody because there was no evidence against him. The police opened a history sheet against him and he was put under surveillance as under Regulation 236 of the U.P. Police Regulations. Regulation 236 of the Regulations defined surveillance. It read:
“Without prejudice to the right of Superintendents of Police to put into practice any legal measures, such as shadowing in cities, by which they find they can keep in touch with suspects in particular localities or special circumstances, surveillance may for most practical purposes be defined as consisting of one or more of the following measures :
(a) Secret picketing of the house or approaches to the house of suspects;
(b) domiciliary visits at night;
(c) through periodical inquiries by officers not below the rank of Sub-Inspector into repute, habits, associations, income, expenses and occupation;
(d) the reporting by constables and chaukidars of movements and absence from home;
(e) the verification of movements and absences by means of inquiry slips;
(f) the collection and record on a history-sheet of all information bearing on conduct.”
The petitioner challenged this Regulation on the grounds that they violated the fundamental rights granted under Article 19(1) (d), which granted the freedom to move freely throughout the territory of India, and Article 21, which grants the right to life and personal liberty, of the Constitution of India. Further, the Regulations were not the result of any procedure established by law, as was conceded by counel for the respondents.
The bench ruled by a majority that the right to movement throughout the territory of India only included the right of locomotion throughout the territory of India without tangible inhibitions, and it did not include psychological inhibitions. Similarly, the right to personal liberty could only be violated by ‘tangible’ methods, and the makers of the Constitution did not intend to protect mere ‘personal sentiments’. The majority also ruled that the right to privacy was not guaranteed in the constitution as such, and the attempt to monitor the movement of a person which only violated the right to privacy did not violate a fundamental right. However Section 236(b) of the Regulation was struck down, as it was held to be a direct violation of the right to personal liberty which was not in accordance with any procedure established by law.
However the minority judgment differed widely. It recommended the striking down of the entire Regulation in question (Regulation 236). It held that
“In an uncivilized society where there are no inhibitions, only physical restraints may detract from personal liberty, but as civilization advances the psychological restraints are more effective than physical ones. The scientific methods used to condition a man’s mind are in real sense physical restraints, for they engender physical fear channelling one’s actions through anticipated and expected groves. So also the creation of conditions which necessarily engender inhibitions and fear complexes can be described as physical restraints.
Further, 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 lie lives with his family, is his “castle”: it is his rampart against encroachment on his personal liberty.”
In Govind v. State of M.P. , the Supreme Court had to face, once again, questions arising out of a similar set of circumstances. The petitioner, a suspected criminal, challenged the validity of Regulations 855 and 856 of the Madhya Pradesh Police Regulations, asserting that they were not framed under any provision of the Police Act, 1961, and, even if they were framed under any provision of the said Act, they were violating the fundamental rights granted under Article 21 and Article 19(1) (d).
The Regulations were as follows:
“855. Surveillaance proper, as distinct from general supervision, should be restricted to those persons, whether or not previously convicted, whose conduct shows a determination to lead a life of crime. The list of persons under surveillance should include only those persons who are believed to be really dangerous criminals. When the entries in a history sheet, or any other information at his disposal, leads the District Superintendent to believe that a particular an individual is leading a life of crime, he may order that his name be entered in the surveillance register. The Circle Inspector will thereupon (open a) history sheet, if one is not already in existence, and the man will be placed under regular surveillance.
856. Surveillance may, for practical purposes, be defined as consisting of the following measures:
(a) Thorough periodical enquiries by the station-house officer as to repute, habits,
Association, income, expenses and occupation.
(b) Domiciliary visits both by day and night at frequent but irregular intervals.
(c) Secret picketing of the house and approaches on any occasion when the
Surveillance (surveillant?) is found absent.
(d) The reporting by patels, mukaddams and kotwars, of movements and absences from home.
(e) The verification of such movements and absences by means of bad character rolls.
(f) The collection in a history sheet of all information bearing on conduct. It must be remembered that the surest way of driving a man to a life of crime is to prevent him from earning an honest living. Surveillance should, therefore, never be an impediment to steady employment and should not be made unnecessarily irksome or humiliating. The person under surveillance should, if possible be assisted in finding steady employment, and the practice of warning persons against employing him must be strongly discouraged.”
A three judge bench dismissed the petition on the grounds that it was framed under provision 42 (6) (c) of the Police Act, 1961, and that the measures undertaken through these Regulations were a reasonable restriction to the rights guaranteed under Articles 19 (1) (d) and 21 of the Constitution.
However, the Court had much to say about the right to privacy. It recognised the fact that the right to privacy was a very important right, and it held that if the above mentioned Regulations were read to widely, they would be a grotesque violation of the fundamental rights, because of which when the same Regulations could be read either widely or narrowly, the court must water them down to read them narrowly. The Court also said that the framers of our Constitution did not envision a ‘police rajeven’, and that legality apart, the regulations did not accord well with the essence of personal freedoms, because of which the state must desist from making laws on the edge of unconstitutionality.
In R. Rajagopal v. State of Tamil Nadu , the petitioners, who were the editor and associate editor of a Tamil weekly magazine, requested the court to issue a writ restraining the State of Tamil Nadu and the Superintendent of Prisons, Salem, Tamil Nadu, to prevent them for carrying out the actions that they had threatened in a letter to the weekly, because the weekly intended to publish the autobiography of a prisoner named Auto Shankar who was sentenced to death. The autobiography contained several assertions that established the involvement of several IPS and IAS officers in the crimes that the prisoner had committed. However, it was not clear whether the prisoner had expressly consented to the publication of his autobiography in the weekly and also whether he had written the autobiography himself. The court, working on an assumption that Auto Shankar had neither written the autobiography nor authorized the weekly to publish it, placed the following questions for consideration:
“(1)Whether a citizen of this country can prevent another person from writing his life story or biography? Does such unauthorised writing infringe the citizen’s right to privacy? Whether the freedom of press guaranteed by Article 19(1)(a) entitles the press to publish such unauthorised account of a citizen’s life and activities and if so to what extent and in what circumstances? What are the remedies open to a citizen of this country in case of infringement of his right to privacy and further in case such writing amounts to defamation?
(2)(a) Whether the Government can maintain an action for its defamation? (b)Whether the Government has any legal authority to impose prior restraint on the press to prevent publication of material defamatory of its officials? and (c)Whether the public officials, who apprehend that they or their colleagues may be defamed, can impose a prior restraint upon the press to prevent such publication? (3)Whether the prison officials can prevent the publication of the life story of a prisoner on the ground that the prisoner being incarcerated and thus not being in a position to adopt legal remedies to protect his rights, they are entitled to act on his behalf?”
As might be rather obvious, these questions essentially raised the question of the right to privacy vis-à-vis the freedom of the press. The Supreme Court, in this case, a two judge bench, took a much more liberal view of the right to privacy in this matter, and ruled that
“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, child-bearing 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. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.
(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.
(3)There is yet another exception to the rule in (1) above- indeed, this is not an exception but an independent rule. In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable for damages. It is equally obvious that in matters
not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen, as explained in (1) and (2) above. It needs no reiteration that judiciary, which is protected by the power to punish for contempt of court and Parliament and legislatures protected as their privileges are by Articles 105 and 104 respectively of the Constitution of India, represent exceptions to this rule.
(4)So far as the Government, local authority and other organs and institutions exercising governmental power are concerned, they cannot maintain a suit for damages for defaming them.
(5)Rules 3 and 4 do not, however, mean that Official Secrets Act, 1923, or any similar enactment or provision having the force of law does not bind the press or media.
(6)There is no law empowering the State or its officials to prohibit, or to impose a prior restraint upon the press/media.”
Thus, we see a shift in the line adopted by the Supreme Court, from a very positivistic interpretation of the rights enshrined in the Constitution, to a very liberal approach in which it read the right to privacy as implicit in Article 21 of the Constitution. However, the exact position of the right to privacy as guaranteed by the Constitution is still unclear, because the judgment in Kharak Singh v. State of U.P. was delivered by a 7 judge bench, and the judgments after this were all delivered by a lesser number of judges.
The right to privacy is a right that has been recognised in relatively recent times. The evolution of this right can be traced to 1820 at the earliest. The real landmark, however, can be traced to 1890 when ‘The Right to Privacy’ was published in the Harvard Law Review. The right has subsequently been recognised as guaranteed under the Fundamental Rights of the Constitutions of both the United States as well as India. The right has also been recognised in international documents such as the Universal Declaration of Human Rights (1948), the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) and the International Covenant on Civil and Political Rights (drafted 1966).
In India, the right to privacy has been recognised and its ambit expanded over a period of time starting from Kharak Singh v. State of U.P. , where there was a very positivistic interpretation of the Constitution and the court refused to accept that the right to privacy is guaranteed in any way in the Constitution, to R. Rajagopal v. State of Tamil Nadu , where the court held that the right to privacy is implicitly guaranteed under Article 21 of the Constitution.
The right to privacy, as covered by the law, mostly covers the right to privacy as against interference by the government and as against unwarranted publication of personal information. Thus, it either comes into conflict with the duties of the government of the day, or with the freedom of the press.
However, in the opinion of the researcher, the right to privacy must one day expand to cover privacy in a much broader sense to cover protection against unwarranted disturbance, such as the right to undisturbed solitude, undisturbed work and undisturbed recreation. Thus, the right to privacy must become all-encompassing, from the right against government interference, to the right against unwarranted public attention, to remedies against disturbance as a nuisance.
In a world which is becoming more and more densely populated and where the amount of personal space available to us is decreasing in physical terms, the right to privacy shall expand so as to compensate for the loss of physical space by allowing the intense possessiveness of the limited spaces that we do own. Not only is this beneficial, it is, to some extent, essential for the meaningful existence of human beings. The researcher would like to conclude by stressing the importance of privacy as said by the famous actress Marilyn Monroe: “A career is born in public – talent in privacy.”
Clarke, Roger, ‘ Introduction to Dataveillance and Information Privacy, and Definitions of Terms’, available online at < http://www.anu.edu.au/people/Roger.Clarke/DV/Intro.html >, last visited on 30th July, 2006.
Denning, Lord, 1993, What next in the law, 1st Indian Reprint, Aditya Books Private Limited, New Delhi, pp. 219-270.
Diwedi, Vishnu Prasad, ‘The right to privacy: A new horizon’, in the AIR Journal (1991).
Privacy International, ‘Privacy and Human Rights 2003: Overview’, available online at http://www.privacyinternational.org/survey/phr2003/overview.htm#ftnref8 , last visited 1st August 2006.
Warren, Samuel D. and Brandeis, Louis D., 1890, ‘The Right to Privacy’, Harvard Law Review, IV (5), available online at < www.louisville.edu/library/law/brandeis/privacy.html >, last visited 1st August 2006.