Right of Privacy: India, England, USA with Judicial Interpretation
The law of privacy is recognition of the individual’s right to be let alone and to have his personal space inviolate. The need for privacy and its recognition as a right is a modern phenomenon. It is the product of an increasingly individualistic society in which the focus has shifted from society to the individual. In early times, the law afforded protection only against physical interference with a person or his property. As civilization progressed, the personal, intellectual and spiritual facets of the human personality gained recognition and the scope of the law expanded to give protection to these needs.
The movement towards the recognition of right to privacy in India started with Kharak Singh v. State of Uttar Pradesh and Others , wherein the apex court observed that it is true that our constitution does not expressly declare a right to privacy as fundamental right, but the said right is an essential ingredient of personal liberty. After an elaborate appraisal of this right in Gobind v. State of Madhya Pradesh and Anothe] , it has been fully incorporated under the umbrella of right to life and personal liberty by the humanistic expansion of the Article 21 of the Constitution.
The right to privacy in India has derived itself from essentially two sources: the
common law of torts and the constitutional law. In common law, a private action for damages for unlawful invasion of privacy is maintainable.
Privacy has been derived from Latin word: privatus meaning thereby “separated from the rest, deprived of something, esp. office, participation in the government”, in turn privatus has been derived from term privo “to deprive”. Privacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively.
The concept of privacy give promise that “a certain private sphere of Individual liberty will be kept largely beyond the reach of Government” and it embodies the acceptance of the “moral fact that a person belongs to himself and not to others nor to society as a whole”.
According to Justice Louis Barandeis; The right to privacy refers to the concept that one’s personal information is protected from public scrutiny. U.S. Justice Louis Brandeis called it “the right to be left alone.” While not explicitly stated in the U.S. Constitution, some amendments provide some protections.
Gerety defines privacy as “an autonomy or control over the intimacies of
personal identity”. He identifies three broad concepts in the legal definition of privacy intimacy, identity and autonomy. Bostwick relies upon a threefold classification of privacy: the privacy of repose, the privacy of sanctuary and the privacy of intimate decision.
Solove Adopts a pragmatic approach and identifies necessary and sufficient
conditions for the right to privacy. He divides privacy into six comprehensive (though not mutually exclusive) rights: (i) the right to be let alone; (ii) limited access to the self-the ability to shield oneself from others; (iii) secrecy-concealing certain matters from others; (iv) control over personal information; (v) personhood the protection of one’s personality, individuality and dignity; and (vi) intimacy control over or limiting access to intimate relationships.
An attempt at defining privacy is of no use if the levels of abstraction do not translate
into concrete specifics. Broadly speaking, privacy law deals with freedom of thought,
control over one’s body, peace and solitude in one’s home, control of information regarding oneself, freedom from surveillance, protection from unreasonable search and seizure, and protection of reputation.
International Concepts of Privacy
Article 12 of Universal Declaration of Human Rights (1948) states that ‘’No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attack upon his honour and reputation. Everyone has the right to protection of the law against such interference or attacks.’
Article 17 of International Covenant on Civil and Political Rights states ‘No one shall be shall be subjected to arbitrary or unlawful interference with his privacy, family and correspondence, nor to unlawful attack on his honor and reputation.’
Article 8 of European Convention on Human Rights states ‘Everyone has the rights to respects for his private and family life, his home and his correspondence, there shall be no interference by a public authority except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the protection of health or morals or for the protection of the rights and freedoms of others.’
Type of privacy
The term “privacy” means many things in different contexts. Different people, cultures, and nations have a wide variety of expectations about how much privacy a person is entitled to or what constitutes an invasion of privacy.
Physical privacy could be defined as preventing “intrusions into one’s physical space or solitude. Physical privacy may be a matter of cultural sensitivity, personal dignity, and/or shyness. There may also be concerns about safety, if for example one is wary of becoming the victim of crime or stalking. Civil inattention is a process whereby individuals are able to maintain their privacy within a crowd.
Medical privacy allows a person to withhold their medical records and other information from others, perhaps because of fears that it might affect their insurance coverage or employment, or to avoid the embarrassment caused by revealing medical conditions or treatments. Medical information could also reveal other aspects of one’s personal life, such as sexual preferences or proclivity. A right to sexual privacy enables individuals to acquire and use contraceptives without family, community or legal sanctions.
Political privacy has been a concern since voting systems emerged in ancient times.
The secret ballot helps to ensure that voters cannot be coerced into voting in certain ways, since they can allocate their vote as they wish in the privacy and security of the voting booth while maintaining the anonymity of the vote.
Governments agencies, corporations, groups/societies and other organizations may
desire to keep their activities or secrets from being revealed to other organizations or individuals, adopting various security practices and controls in order to prevent this. Organizations may seek legal protection for their secrets. For example, a government administration may be able to invoke executive privilege or declares certain information to be classified, or a corporation might attempt to protect valuable proprietary information as trade secrets.
Internet privacy is the ability to determine what information one reveals or withholds about oneself over the Internet, who has access to such information, and for what purposes one’s information may or may not be used.
Financial privacy, in which information about a person’s financial transactions is guarded, is important for the avoidance of fraud including identity theft.
Information or data privacy refers to the evolving relationship between technology
and the legal right to, or public expectation of privacy in the collection and sharing of data about one’s self. Various types of personal information are often associated with privacy concerns. For various reasons, individuals may object to personal information such as their religion, sexual orientation, political affiliations, or personal activities being revealed, perhaps to avoid discrimination, personal embarrassment, or damage to their professional reputations.
Right of privacy in India
Indian Constitution provided certain basic rights or fundamental right. A captivating development of the Indian Constitutional jurisprudence in the extended dimension given to Article 21 by the Supreme Court in different-different cases. The extension in the dimensions in the Article 21 has been made possible by giving a extended meaning to the word ‘life and personal liberty’ in Article 21.
Right to Privacy is one such right which has come to its existence after widening up the dimension of Article 21. The Constitution is specific doesn’t grant any right to privacy as such. Article 21 of the Constitution stated that’’ No person shall be deprived of his life or personal liberty extended according to procedure established by law’’.
The Court has implied the right of privacy from Article 21 by interpreting it in conformity with Article 12 of the Universal Declaration on Human Right, 1948 and Article 17 of the International Covenant on Civil and Political Right, 1966. Both of these international document provide for the right of privacy.
Justice Mathew, In Govind v. State of Madhya Pradesh, accepted that right to privacy as an emanation from Article 19(a), (d) and 21, but RIGHT TO PRIVACY is not absolute right.
In Naz Foundation v. N.C.T Delhi 20009, Delhi High Court give the landmark decision on consensual homosexuality. In this case section 377 of I.P.C and Article 14, 19 and 21 were examined. Right to Privacy held to protect a ‘ private space in which man become and remain himself’’.
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 limits and subjects to what safeguards?
Supreme Court answer is question in People’s Union for Civil Liberties v. Union of India. In this case PIL was filed protesting rampant instances of phone tapping of politician by CBI. The court ruled that ‘telephone conversation is an important facet of a man’s private life’. The right to hold telephone conservation 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’’.
In Mr. X v. Hospital Z, it was held that where there is a clash of two fundamental rights, as in 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 under article 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 can’t be kept at bay and judge 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.
Other cases laws
R.Rajagopal v. Union of India(1994) It was determined by the Supreme Court that the right to privacy is a part of the right to personal liberty guaranteed under the constitution. It recognized that the right to privacy can be both a tort as well as a fundamental right. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters and nobody can publish anything regarding the same unless (i) he consents or voluntarily thrusts himself into controversy, (ii) the publication is made using material which is in public records (except for cases of rape, kidnapping and abduction), or (iii) he is a public servant and the matter relates to their discharge of official duties.
Selbi and others v. State of Karnataka and others (2010). The Supreme Court acknowledged the distinction between bodily/physical privacy and mental privacy. The scheme of criminal and evidence law mandates interference with the right to physical and bodily privacy in certain circumstances, but the same can’t be used to compel a person ‘to impart personal knowledge about a relevant fact’’. This case also establishes the intersection of the right to privacy with Article 20(3) (self-incrimination). An individual’s decision to make a statement is the product of a private choice and there should be no scope for any other individual to interfere with such autonomy. Subjecting a person to techniques such as narco analysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) test without his or her consent violates the subject’s mental privacy.
Unique Identification Authority of India & Anr. V. CBI (2014) In this case, the CBI sought access to the database of the Unique Identity Authority of India for the purposes of investigating a criminal offence. However, the Supreme Court in an interim order held that the Unique Identity Authority of India should not transfer any biometric information of any person who has been allotted and Aadhaar number to any other agency without the written consent of the person.
Justice K.S.Puttuswamy(Retd.) & Anr. V. Union of India & Ors. (2015).
In this Supreme Court order, the issue of privacy was discussed in light of the Uniqu Identity Scheme. The question before the court was whether such a right is guaranteed under the Constitution, and if it is, the source of this right, given that there is no express provision for privacy in the Indian Law. The Attorney General of India argued that privacy is not a fundamental right guaranteed to Indian Citizen. Ultimately, the Court left the question to be deliberated by a larger constitutional basis since the earlier judgments that denied the
existence of the right to privacy were given by larger benches than the cases where the right to privacy was accepted as a fundamental right. This lead to unresolved controversy leading the court to refer the matter to a larger bench to be settled.
RIGHT TO PRIVACY: COMPARATIVE OUTLOOK
The American law on privacy has evolved faster than the law in England. One
of the earliest cases in England, Albert v. Strange involved the unauthorized
copying of etchings made by Queen Victoria and her husband for their private
amusement. The etchings, which represented members of the Royal family and matters of personal interest, were entrusted to a printer for making impressions.
Even as late as 1991, the law in England was found to be inadequate in protecting privacy. In that year, the Court of appeal decided Kaye v. Robertson. The case concerned a well known actor who had to be hospitalized after sustaining serious head injuries in a car accident. At a time when the actor was in no condition to be interviewed, a reporter and a photographer from the Sunday Sport newspaper unauthorized gained access to his hospital room, took photographs and attempted to conduct an interview with the actor. An interlocutory injunction was sought on behalf of the actor to prevent the paper from publishing the article which claimed that Kaye had agreed to give an exclusive interview to the paper. There being no right to privacy under the English law, the plaintiff could not maintain an action for breach of privacy.
U.S.A In the U.S.A., the need for a law to protect privacy was articulated as early as 1890 when an article titled “The Right to Privacy” was published by Warren and Brandeis this article laid the intellectual foundations for the law on privacy.
“Recent inventions and business method call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls ‘the right to be let alone’.
The most well known American cases on privacy are Griswold v. Connecticut and Roe v. Wade. The US Supreme Court has found the rights of marriage, procreation, contraception, family relationships, childrearing and education to be indefeasible fragments of the substantive right to privacy.
India After the delivery of landmark judgment known as Maneka Gandhi v. Union of India, the scope of Art. 21 was enormously increased so that this Art. could include certain rights as fundamental rights. And Right to Privacy is one of those rights which have been evolved by The Supreme Court of India and which is implicit in Art. 21.
Right to privacy, is a important Human Right recognize by the Universal Declaration on Human Right, 1948, International Covenant on Civil and Political Right and various international conventions. In India right to privacy is an important component of right to life and personal liberty under Article 21 recognized by Indian Courts in different cases.