Final Disseration ANUSKA

Right to Privacy under Constitution of India and Comparative Analysis with USA
RIGHT TO PRIVACY UNDER CONSTITUTION OF

INDIA AND COMPARATIVE ANALYSIS WITH USA
A Dissertation Submitted To Amity University

In Partial fulfilment of the Requirements for the Degree
Of B.A.LL.B (Hons)
RESEARCH GUIDE: SUBMITTED BY:

Ms. DIVYA DWIVEDI ANUSKA SSRIVASTAVA
ASSISTANT PROFESSOR A8111113171
B.A.,LL.B (Hons)
AMITY LAW SCHOOL 2013- 2018
AMITY UNIVERSITY
AMITY LAW SCHOOL

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AMITY UNIVERSITY, LUCKNOW CAMPUS

DECLARATION
“Right to Privacy under Constitution of India and Comparative Analysis with USA"
I understand what plagiarism is and am aware of the University’s policy in this regard.
…………
I declare that
The work submitted by me in partial fulfilment of the requirement for the award of degree
B.A., LL.B (H) Assessment in this “Right to Privacy under Constitution of India and
Comparative Analysis with USA"
(a) is my own; it has not previously been presented for another assessment.
I declare that this Lie Detector Test and it’s Admissibility in India
(b) Is my original work. Wherever work from other source has been used, all debts (for
words, data, arguments and ideas) have been appropriately acknowledged and referenced
in accordance with the requirements of NTCC regulations and Guidelines.
(c) I have not used work previously produced by another student or any other person to
submit it as my own.
(d) I have not permitted, and will not permit, anybody to copy my work with the purpose of
passing it off as his or her own work.
(e) The work conforms to the guidelines for layout, content and style as set out in the
Regulations and Guidelines.
Date: - ………………
ANUSKA SRIVASTAVA
B.A. LL.B (Hons)
A8111113171
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2013- 2018
ACKNOWLEDGEMENT
First of all, I would like to express my heartfelt gratitude to my supervisor and

mentor MS. DIVYA DWIVEDI for providing an opportunity to work under his
tutelage and for his critical insights on the subject.
This dissertation is the outcome of the study conducted by me. Any material used
from different sources has been thoroughly acknowledged. After the successful
completion of my work I would like to thank number of peoples.
I would like to thanks my supervisor for his constant support and encouragement to
my ideas. I am also grateful to Prof. Balraj Chauhan (Director, Amity Law School)
for making available all the invaluable resources at the school. I would also thank
my institution and my faculty members without whom this project would have
been a distant reality. This work is an outcome of a parallel infrastructure support
that I have received from staff and employees of AMITY LAW SCHOOL. It
would never have been possible to complete this study without an untiring support
of my family and friends.
This study bears testimony to the active encouragement and guidance of a host of
friends and well-wishers.
ANUSKA SRIVASTAVA
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CERTIFICATE
I hereby certify that
(a) ANUSKA SRIVASTAVA, Student B.A.LL.B (Hons), A8111113171, 2013-2018 at Amity

Law School, Amity University Uttar Pradesh has completed the Project Report on “Right to
Privacy under Constitution of India and Comparative Analysis with USA", during Semester
9th under my supervision.
(b) The presented work embodies original research work carried out by the student as per the
guidelines given in University Regulations.
(c) The Research and writing embodied in the thesis are those of the candidate except where due
reference is made in the text.
(d) I am satisfied that the above candidate’s prima facie, is worthy of examination both in terms
of its content and its technical presentations relative to the standards recognized by the
university as appropriate for examination.
(e) I certify that in accordance with NTCC guidelines, the report does not exceed the prescribed
maximum word limit; or Prior approval has been sought to go beyond the word limit.
(f) Wherever work form other source has been used, all debts (for words, data, arguments and
ideas) have been appropriately acknowledge and referenced in accordance with the
requirements of NTCC Regulations and guidelines.
Signature of the Faculty
Name of Faculty
Ms. Divya Dwivedi
Designation
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Assistant Professor
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TABLE OF CONTENTS
S.NO. Topic
1. List of Abbreviations
2. LIST OF AUTHORITIES
3. CHAPTER 1
i. INTRODUCTION
ii. Right to Privacy’s meaning
iii. Historical Background
4. CHAPTER 2
i. Concept of Fundamental Right’s under Constitution of India
ii. Need for Fundamental Rights
iii. Classification of Fundamental right
iv. Right to life and Personal Liberty under Article 21
V. Scope of Article 21
5. Chapter 3
I. Right to Privacy under Article 21
ii. Right to Privacy permissible restriction
iii. The Privacy Bill 2011
iv. Right to Privacy and Search and Seizure
V. Taping Telephone
Vi. Conflict between Right to Information and Right to Privacy
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Vii. Right to Privacy Under UDHR
6. Chapter 4
I. India Commitments under International law
ii. Present Scenario of Right to Privacy
iii. Position in USA
iv. Comparative study of Right to Privacy
7. Conclusion
8. Bibliography
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LIST OF ABBREVIATIONS
1. AIR_____________All India Report
2. Art. _____Article
3. Cr.P.C.__________ Code of Criminal Procedure
4. C.A. ____________ Chartered Accountant
5. Edn._____________ Edition
6. FIR _First Information Report
7. FR Fundamental Rights
8. HC High Court
9. IPC_____________ Indian Penal Code
10. Art ______________Article
11. Ld._____________ Learned
12. NCRB _National Crime Report Bureau
13. NIA_____________ National Investigation Agency
14. PSN_____________ Photograph Serial Number
15. SCC______________ Supreme Court Cases
16. Sec.______________ Section
17. SC _Supreme Court
18. UN______________ United Nations
19. USA_____________ United States of America
20. WC______________ Word Count
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LIST OF AUTHORITIES
DICTIONARIES AND LEXICONS
1. Betty Kirkpatrick, The Concise Oxford Thesaurus, A Dictionary of Synonyms, (Oxford

University Press, 1995)
2. Bryan A. Garner, Black’s Law Dictionary, (7thedn., West Group, 1999)
3. P. RamanathaAiyar, The Law Lexicon, (2ndedn., LexisNexis, Reprint 2006)
4. S. Stephenson Smith, The New International Webster’s Comprehensive Dictionary,
(Trident Pr Intl , 2003)
5. Simon James & Chantal Stebbings, A Dictionary of Legal Quotations (6thedn, Oxford
University Press, 2010)
INTERNATIONAL CONVENTION
1. INTERNATION CONVENT ON CIVIL AND POLITICAL RIGHTS, 1996

2. INTERNATION CONVENT ON ECONOMIC, SOCIAL AND CULTURAL
RIGHTS, 1966
3. UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948
STATUTE AND LEGISLATION

1. The Constitution of India, 1949
2. The Code of Criminal Procedure, 1973, (Act No. 2 of 1974)
3. Right To Information Act,2005
4. Indian Penal Code, 1860, Act No. 45, 1860
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CHAPTER 1
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Introduction
A very fascinating development in the Indian Constitutional jurisprudence is the extended

dimension given to Article 21 by the Supreme Court in post-Menaka era. The Supreme Court has
asserted that Art. 21 is the heart of the Fundamental Rights. Article 21 has proved to be multi-
dimensional. The extension in the dimensions of Art.21 has been made possible by giving a
extended meaning to the word ‘life’ and ‘liberty’ in Article 21. These two words in Art.21 are
not to be read narrowly. These are organic terms which are to be construed meaningfully.
The Supreme Court has asserted that in order to treat a right as a fundamental right, it is not
necessary that it should be expressly stated in the constitution as a Fundamental Right. Political,
social, and economic changes in the country entail the recognition of new rights. The law in its
eternal youth grows to meet the demands of society.
Right to privacy is one such right which has come to its existence after widening up the
dimensions of Article 21. The constitution in specific doesn’t grant any right to privacy as such.
However, such a right has been culled by the Supreme Court from Art. 21 and several other
provisions of the constitution read with the Directive Principles of State Policy.
According to Black’s Law Dictionary “right to be let alone; the right of a person to be free
from any unwarranted publicity; the right to live without any unwarranted interference by the
public in matters with which the public is not necessarily concerned”.
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 interpretation of this
Article reveals that a person can deprived of life or personal liberty by the state only the
procedure establish by law but not otherwise. Thus, if a person is deprived of his life or personal
liberty by such procedure which is not a procedure establish by law it will be a violation of
Article 21.
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Like everything mankind has ever achieved, there has been a positive and a negative side to it.
Technology has invaded every part of our lives whether the invasion was desired or not, we
cannot be sure whether what we say has been heard by a third party as well whether that was
desired or not. The proverbial Hindi saying of even walls having ears has never rung truer. The
principle of the world today can be: whatever you may do, the world will get to know before you
realize, ask a certain Tiger Woods about it.
In the earlier times in India, the law would give protection only from physical dangers such as
trespass from which the Right to Property emerged to secure his house and cattle. This was
considered to be the Right to Life. As the ever changing common law grew to accommodate the
problems faced by the people, it was realized that not only was physical security required, but
also security of the spiritual self as well as of his feelings, intellect was required. Now the Right
to Life has expanded in its scope and comprises the right to be let alone the right to liberty
secures the exercise of extensive civil privileges; and the term “property” has grown to comprise
every form of possession — intangible, as well as tangible.
The strategy adopted by the Supreme Court with a view to expand the ambit of Art. 21 and to
imply certain right there from, has been to interpret Art.21 along with international charters on
Human Rights.
The Court has implied the right of privacy from Art.21 by interpreting it in conformity with
Art.12 of the Universal Declaration on Human Rights and Art.17 of the International Covenant
on Civil and Political Rights, 1966. Both of these international documents provide for the right
of privacy.
Right to privacy is not enumerated as a Fundamental Right in the Constitution of India. The

scope of this right first came up for consideration in Kharak Singh’s Case which was concerned
with the validity of certain regulations that permitted surveillance of suspects. The minority
decision of SUBBA RAO J. deals with this light. In the context of Article 19(1) (d), the right to
privacy was again considered by the Supreme Court in 1975. In a detailed decision, JEEVAN
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REDDY J. held that the right to privacy is implicit under Article 21. This right is the right to be
let alone. In the context of surveillance, it has been held that surveillance, if intrusive and
seriously encroaches on the privacy of citizen, can infringe the freedom of movement,
guaranteed by Articles 19(1)(d) and 21. Surveillance must be to prevent crime and on the basis
of material provided in the history sheet. In the context of an anti-terrorism enactment, it was
held that the right to privacy was subservient to the security of the State and withholding
information relevant for the detention of crime can’t be nullified on the grounds of right to
privacy. The right to privacy in terms of Article 21 has been discussed in various cases.
MEANING OF RIGHT TO PRIVACY
According to oxford dictionary privacy means A state in which one is not observed or disturbed
by other people. ‘she returned to the privacy of her own home” 1The right to privacy of an
individual is a natural, cherished, inseparable and inalienable right which is born with a human
being and extinguishes with it, the Supreme Court said on the case of Justice K.S. Puttasawmy
vs Union of India.
Justice Abhay Manohar Sapre, who wrote a separate but concurring judgement declaring the
right to privacy as a fundamental right under the Constitution, said it cannot be conceived that an
individual enjoys a meaningful life with dignity, without such a right. However, he also said that
this right was not absolute and was “subject to certain reasonable restrictions” which the state
was entitled to impose.
According to Black’s Law Dictionary “right to be let alone; the right of a person to be free from
any unwarranted publicity; the right to live without any unwarranted interference by the public in
matters with which the public is not necessarily concerned”.
Respect for ones privacy is an inherent expectation of human being 2as it is important for the
mental, spiritual and physical well being of the individual. Privacy secures to protect
1
http://www.livemint.com/Right-to-privacy-comes-with-birth-goes-with-death-Justice.html
2
DivyaBhardwaj , “Right to Privacy : Are We Ready for it,” AIR 2004 Jour 307.
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relationships between individuals. Privacy is not just one possible means among others to insure
some other value, but that it is necessarily related to ends and relations of the most fundamental
sort, respect, love, friendship, and trust3.
However, there is no right to privacy in the Indian Constitution .Right to privacy being an
integral part of ones right to life and personal liberty has to be given due importance .The
recognition of right to privacy as a part of our constitutional right to life and personal liberty is
considered as an illustration of progressive development.4 In its present form the right to privacy
is commonly understood as the right to be let alone and is broadly described as the right to an
inviolable personality.5
Privacy is “a condition people maintain by controlling who receives information about them and
the terms on which others receive it. Importantly, privacy is a subjective condition. One person
cannot decide for another what his or her sense of privacy should be.” 6The right to privacy is
part of the right to human dignity and the public law on information must frown on the violation
of that intimacy of life which is the core of individuality of being.7 Thus, the constitutional right
to life and personal liberty secures the right to live in seclusion or in public gaze, as one chooses
so long as one does not interfere with the right of others. 8 It can thus be deduced that privacy is a
state of separateness from others. The right to privacy encircles within it the concept of dignity
and decency also. This right has an element of secrecy or confidentiality. The right to privacy
implies the right not merely to prevent incorrect portrayal of private life but to prevent its being
depicted at all. The right has multi-pronged dimensions. In personal intimacies, it extends to
home, family, marriage, motherhood, procreation and child bearing, consistent with dignity and
decency9.However, the term privacy has not been specifically defined in the Constitution of
India, or under any other statutory provisions.
3
Charles Fried , “Privacy”, 77 Yale L. J. 475, at pp. 477-478
4
A.R. Desai, &Chidanand Reddy S. Patil, “Contours of Privacy and Defamation vis-à-vis Free Speech”,
5
Ibid p 188
6
www.privacilla.org, cited in supra n.121.
7
6V. R. KirshnaIyer, “The Right to Know is Fundamental’’ in Salvaging Democracy, (Delhi: Konark Publishers Pvt Ltd,
1990), p.119.
8
Chidananda Reddy, “Privacy Rights of the Citizens Vs Executive Government,’’ The Lawyers, (1990) Feb . p. 22
9
Raghavendra Kumar, “Right to Privacy: Juridical Vision”, AIR 2004 Jour p.195.
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In the case of R Rajagopal vs. State of Tamilnadu, popularly known as “Auto Shankar case”
the supreme court expressly held that the “right to privacy” or right to be let alone is guaranteed
by article 21 of the constitution. A citizen has right to safeguard the privacy of his own, his
family, marriage, procreation, motherhood, and child bearing etc. No one can publish anything
concerning the above matter without the consent whether truthful or otherwise and whether
laudatory or critical.
This rule is subject to an exception that if any publication of such matter are based on public
record including court record it will be unobjectionable. If a matter became a public record the
righ to privacy no longer exist and it became a legitimate subject for comment by press and
media among other.
The second exception is that the right to privacy or the remedy of action for damage is simple not
available to public officials as long as the criticism concerns the discharge of their public duties;
not even when the publication is based on untrue fact and statements unless the official can
establish that the statement had been made with reckless disregard of truth. All that the alleged
contemnor needs to do is to prove that he has written after reasonable verification of facts. In the
case of State of Maharashtra v. Madhulkar Narain 10 The supreme court said that right to
privacy available even to a women of easy virtue and no one can invade her privacy.
The right to privacy is not an absolute right and the restriction can be imposed on it prevention
on crime, disorder, protection of health, moral and freedom of others the supreme court said that
in the case of Mr. X vs Hospital Z, Thus the discloser by the doctor that the person is suffering
from AIDS is not violative of rights to privacy. Privacy is constitutional core of human dignity
therefore it must be protected. But there are permissible restriction to it.
Historical Background
From the time of birth till the time of death, and even beyond, we all are being tracked. Even a
harmless tweet or a ‘like’ on Facebook can give away crucial data such as location of home and
10
AIR 1991 SC 207
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workplace. Privacy has become the quintessential issue of our times, but it continues to be
violated every day. Privacy is supreme human right inherently given by the nature, yet its status
as a fundamental right under the constitution remains dubious.
An evaluation of the origins of privacy is essential in order to understand whether (as the Union
of India postulates), the concept is so amorphous as to defy description. The submission of the
government is that the Court cannot recognize a juristic concept which is so vague and uncertain
that it fails to withstand constitutional scrutiny. This makes it necessary to analyse the origins of
privacy and to trace its evolution.
The Greek philosopher Aristotle spoke of a division between the public sphere of political affairs
(which he termed the polis) and the personal sphere of human life . This dichotomy may provide
an early recognition of “a confidential zone on behalf of the citizen” 11 Aristotle’s distinction
between the public and private realms can be regarded as providing a basis for restricting
governmental authority to activities falling within the public realm. On the other hand, activities
in the private realm are more appropriately reserved for “private reflection, familial relations and
self-determination” 12.
At a certain level, the evolution of the doctrine of privacy has followed the public – private
distinction. William Blackstone in his Commentaries on the Laws of England (1765) spoke about
this distinction while dividing wrongs into private wrongs and public wrongs. Private wrongs are
an infringement merely of particular rights concerning individuals and are in the nature of civil
injuries. Public wrongs constitute a breach of general and public rights affecting the whole
community and according to him, are called crimes and misdemeanors.
John Stuart Mill in his essay, ‘On Liberty’ (1859) gave expression to the need to preserve a zone
within which the liberty of the citizen would be free from the authority of the state. According to
Mill : “The only part of the conduct of any one, for which he is amenable to society, is that
which concerns others. In the part which merely concerns himself, his independence is, of right,
absolute. Over himself, over his own body and mind, the individual is sovereign.” 13 While
11
Michael C. James, “A Comparative Analysis of the Right to Privacy in the United States, Canada and Europe”,
Connecticut Journal of International Law (Spring 2014), Vol. 29, Issue 2, at page 261
12
Ibid, at page 262
13
John Stuart Mill, On Liberty, Batoche Books (1859), at page 13
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speaking of a “struggle between liberty and authority” 14, Mill posited that the tyranny of the
majority could be reined by the recognition of civil rights such as the individual right to privacy,
free speech, assembly and expression.
Austin in his Lectures on Jurisprudence (1869) spoke of the distinction between the public and
the private realms : jus publicum and jus privatum. The distinction between the public and
private realms has its limitations. If the reason for protecting privacy is the dignity of the
individual, the rationale for its existence does not cease merely because the individual has to
interact with others in the public arena. The extent to which an individual expects privacy in a
public street may be different from that which she expects in the sanctity of the home. Yet if
dignity is the underlying feature, the basis of recognizing the right to privacy is not denuded in
public spaces. The extent of permissible state regulation may, however, differ based on the
legitimate concerns of governmental authority15.
James Madison, who was the architect of the American Constitution, contemplated the
protection of the faculties of the citizen as an incident of the inalienable property rights of human
beings. In his words : “In the former sense, a man’s land, or merchandize, or money is called his
property. In the latter sense, a man has property in his opinions and the free communication of
them… He has an equal property interest in the free use of his faculties and free choice of the
objects on which to employ them. In a word, as a man is said to have a right to his property, he
may be equally said to have a property in his rights. Where an excess of power prevails, property
of no sort is duly respected. No man is safe in his opinions, his person, his faculties or his
possessions… Conscience is the most sacred of all property; other property depending in part on
positive law, the exercise of that, being a natural and inalienable right.
It is interesting to note that the right to privacy was not directly envisaged by the constitution
makers as it fails to get a mention even once in the whole of constituent assembly debates. As a
result, it is our judiciary that 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 SC had to deal with the question of privacy. In the MP Sharma v. Satish
14
Ibid, at page 6
15
http://supremecourtofindia.nic.in/pdf/LU/ALL%20WP(C)%20No.494%20of%202012%20Right%20to
%20Privacy.pdf
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Chandra case, the SC decided in favour of the practice of search and seizure when contrasted
with privacy.
In 1962, while deciding the Kharak Singh v. State of UP, 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. In fact, justice Subba
Rao in the same case delivered a separate opinion and said, “It is true our constitution does not
expressly declare a right to privacy as a fundamental right, but he said right is an essential
ingredient of personal liberty (recognized in Article 21 of the constitution).” Eleven years later,
the imagination of the SC in the Kharak Singh case came true in the RM Malkani v. State of
Maharashtra case, wherein the court upheld the phone tapping of a guilty person, with the word
‘guilty’ putting the case in favour of the government.
All through these years, the right to privacy remained as a question mark, seldom before courts
but actively negated by state. It was 1975 that became a watershed year for the right to privacy in
India. The SC while hearing the Govind v. State of MP 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 v. Union of India, commonly known as telephone tapping cases,
the SC unequivocally held that individuals had a privacy interest in the content of their telephone
communications. Making just exceptions to the complete cover, it said that rigorous standards
are required for law that derogates privacy and that mechanism used should be targeted, based on
specific suspicion of identifiable individuals and be the only means possible to fulfil the
government’s goals of public safety and crime prevention. Thus, through a series of cases, it can
be observed that the right to privacy was being recognized, but its exceptions were also given
due place. In the Selvi vs State of Karnataka, which was decided in 2010, the SC gave strength
to Article 20(3), that is, Right against Self-Incrimination. Closely aligned with privacy, the right
Page 18
to remain silent was found to be derogated by usage of narco-analysis as evidence in trials.

Accordingly, the same were disallowed.16
16
http://www.governancenow.com/gov/history-right-privacy
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CHAPTER 2
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MEANING AND CONCEPT OF FUNDAMENTAL RIGHTS
Fundamental rights are a generally regarded set of legal safeguards in the relation to legal
system, wherein such system is itself based upon this same set of basic, fundamental, inalienable
rights. Such rights thus belong without deduction or cost of privilege to all human beings under
such jurisdiction. The concept of human rights has been promoted as a legal notion in large part
owing to the idea that human beings have such "fundamental" rights, such that transcend all
jurisdictions, but are typically armoured in different ways and with different emphasis within
different legal systems.
The concept of human basic rights can be traced back to the Natural law philosophers, such as
Locke and Rousseau. The Natural law philosophers gave philosophies over such inherent human
rights and sought to protect these rights by propounding the theory of ‘Social Contract’.
According to Locke, man is born “with a title to perfect freedom and an uncontrolled enjoyment
of all the rights and privileges of the Law of Nature.” and he has by nature a power – “to
preserve his property- that is, his life, liberty and estate against the injuries and attempts of other
men.”17
The Fundamental Rights, embodied in Part III of the Constitution, assured civil rights to all
Indians, and put a stop to the State from invading on individual liberty while simultaneously
placing upon it a duty to protect the citizens' rights from infringement by society. Seven
fundamental rights were initially provided by the Constitution – right to equality, right to
freedom, right against exploitation, right to freedom of religion, cultural and educational rights,
right to property and right to constitutional remedies. However, the right to property was
removed from Part III of the Constitution by the 44th Amendment in 1978.
17
ibid
Page 22
The purpose of the Fundamental Rights is to protect individual liberty and democratic principles
based on equality of all members of society. They act as restrictions on the powers of the
legislature and executive, under Article 13, and in case of any infringement of these rights, the
Supreme Court of India and the High Courts of the states have the power to pronounce such
legislative or executive action as unconstitutional and void. These fundamental human rights are
largely enforceable against the State, which as per the wide definition provided in Article 12,
includes not only the legislative and executive arms of the central and state governments, but
also local administrative authorities and other agencies and institutions which discharge public
functions or are of a governmental character. However, there are certain rights – such as those in
Articles 15, 17, 18, 23, 24 – that are also available against private individuals. Further, certain
Fundamental Rights – including those under Articles 14, 20, 21, 25 – apply to persons of any
nationality upon Indian soil, while others – such as those under Articles 15, 16, 19, 30 – are
applicable only to citizens of India.
The Fundamental Rights are not absolute and are subject to reasonable restrictions as essential
for the protection of public interest. In the Kesavananda Bharati v. State of Kerala case in
1973, the Supreme Court, overruling a previous decision of 1967, held that the Fundamental
Rights could be amended but such amendment will not violate the basic structure of the
Constitution. The Fundamental Rights can be improved, removed or otherwise altered through a
constitutional amendment, passed by a two-thirds majority of each House of Parliament. The
imposition of a state of emergency may lead to a temporary suspension any of the Fundamental
Rights, excluding Articles 20 and 21, by order of the President. The President may, by order,
suspend the right to constitutional remedies as well, thereby barring citizens from approaching
the Supreme Court for the enforcement of any of the Fundamental Rights, except Articles 20 and
21, during the period of the emergency. Parliament may also restrict the application of the
Fundamental Rights to members of the Indian Armed Forces and the police, in order to ensure
proper discharge of their duties and the maintenance of discipline, by a law made under Article
33.
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NEED FOR FUNDAMENTAL RIGHTS
Fundamental rights were deemed essential to protect the rights and liberties of the people
against the encroachment of the power delegated by them to their government. They are
limitations upon all the powers of the government, legislative as well as executive and they are
essential for the preservation of public and private rights. These rights regarded as fundamental
because they are most essential for the attainment by the individual his full intellectual, moral
and spiritual status. The negation of these rights will keep the moral and spiritual rights stunted
and his potentialities underdeveloped. Part III of the Constitution serves, as remainder to the
government in power that certain liberties assured to the people by the Constitution needs to be
respect. The object behind the inclusion of Part III in the Constitution is to establish a
government of law and not of man.18
In Daryao v. State of U.P19. the SC observed that, “the fundamental rights are intended not only
to protect individual’s rights but they are based on high public policy. Liberty of the individual
and the protection of his fundamental rights are the very essence of the democratic way of life
adopted by the Constitution…”
In GolakNath v. State of Punjab 20

, the SC held that, Part III of the Constitution of India
guarantees certain fundamental rights because they are considered necessary for the development
of human personality. These rights enable a man to chalk out his own life in the manner he likes
best.
In Maneka Gandhi v. Union of India21, SC observed that, “fundamental rights are calculated to
protect the dignity of the individual and creates conditions in which every human being can
develop his personality to the fullest extent”.
18
ibid
19
AIR 1961 SC 1457
20
AIR 1967 SC 1643
21
AIR 1978 SC 597
Page 24
FUNDAMENTAL RIGHTS- TO WHOM AVAILABLE
Part III of the Constitution of India deals with various fundamental rights in its Articles 12- 35.
The fundamental rights in Articles 15, 16, 19, 29 and 30 are available only to citizens, while the
rights guaranteed by other Articles are available to the citizens and non-citizens alike.
FUNDAMENTAL RIGHTS- AGAINST WHOM AVAILABLE-
Generally, the fundamental rights in Part III of the Constitution of India are available against the
State only but some are also available against the private individuals. For example- the
fundamental rights guaranteed in Articles 14, 15(1), 16, 18(1), 19, 20, 21, 22, 25, 26, 27, 28, 29
and 30 are available against the State only. While the fundamental rights guaranteed in Articles
15(2), 17, 23(1) and 24 are available against the State as well as against the private individuals 22
CLASSIFICATION OR KINDS OF FUNDAMENTAL RIGHTS IN INDIA-
The fundamental rights guaranteed in Part III of the Constitution have been classified in the
following categories-
1. Right to Equality (Articles 14-18);
2. Right to Freedom (Articles 19-22);
3. Rights against Exploitation (Articles 23-24);
4. Right to Freedom of Religion (Articles 25-28);
5. Cultural and Educational Rights (Articles 29-30);
6. Right to Constitutional Remedies (Articles 32-35).
It is to be noted that, the Right to Property guaranteed by Article 31 has been excluded from
fundamental rights by the Constitution (Forty fourth Amendment) Act, 1978 with effect from 20-
06-1979.
22
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2296804
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The seven fundamental rights recognised by the Indian constitution are23:
1. Right to equality: Which includes equality before law, prohibition of discrimination on

grounds of religion, race, caste, gender or place of birth, and equality of opportunity in matters of
employment, abolition of untouchability and abolition of titles.
2. Right to freedom: Includes right to speech and expression, assembly, association or union or
cooperatives, movement, residence, and right to practice any protection in respect to conviction
in offences and protection against arrest and detention in certain cases.
3. Right against exploitation: Prohibits all forms of forced labour, child labour and traffic of
human beings.
4. Right to freedom of religion: This includes freedom of conscience and free profession,
practice, and propagation of religion, freedom to manage religious affairs, freedom from certain
taxes and freedom from religious instructions in certain educational institutes.
5. Cultural and Educational rights: Preserve the right of any section of citizens to conserve
their culture, language or script, and right of minorities to establish and administer educational
institutions of their choice.
6. Right to constitutional remedies: This is present for enforcement of Fundamental Rights.
7. Right to life: This gives the right to live with human dignity. This includes rights such as
right to education, health, shelter and basic amnesties that the state shall provide. Fundamental
rights for Indians have inserted to aim at overturning the inequalities of pre independence social
23
Constitution of India-Part III Fundamental Rights
Page 26
practices. Specifically, they have used to abolish untouchability and thus prohibit discrimination
on the grounds of religion, race, caste, sex, or place of birth. They also forbid trafficking of
human beings and forced labour. They also protect cultural and educational rights of ethnic and
religious minorities by allowing them to preserve their languages and also establish and
administer their own education institutions.20profession or occupation (some of these rights are
subject to security of the State, friendly relations with foreign countries, public order, decency or
morality), right to life and liberty, right to education, institutions.
REMEDIES IN CASES OF VIOLATION OF FUNDAMENTAL RIGHTS

(ENFORCEMENT OF FUNDAMENTAL RIGHTS) –
In the case of violation of the fundamental rights, special remedy has provided. Articles 32- 35
deals with right to constitutional remedies in the cases of violation or infringement of
fundamental rights guaranteed in Part III of the Constitution.
RIGHT TO LIFE AND PERSONAL LIBERTY: UNDER ARTICLE- 21 OF

CONSTITUTION OF INDIA
“Unlike a drop of water which loses its identity when it joins the ocean, man does not lose his
being in the society in which he lives. Man's life is independent. He is born not for the
development of the society alone, but for the development of his self.” – Dr.B. R. Ambedkar24.
As well said above by Dr. B.R Ambedkar, Man’s life is not only for development of society but
for himself as well. For the development of human being, life and liberty are two essential
ingredients, which enshrined in constitution of India fundamental right under Article-21.
Life and Liberty is the utmost civilization in the modern sense of the child. In an organized and
law-abiding society, turbulent wave raised stagnates. In society extend the right to meaningful
life and liberty is a sign of advancement, progress and development. It inherited from
generations.
24
http://www.brainyquote.com/quotes/authors/b/b_r_ambedkar.html#eSYeFVheiQAVrOsz.99
Page 27
Country’s culture and civilization can be measured by the current state of life and liberty and all
events for preservation and prosperity of individual human freedom, status of that freedom
prevailing in society. It is chained, so cribbed, cabined or assumed in society independence plant
becomes lifeless.
The founding fathers publicized the Indian Right to life and personal liberty clause, when they
draft the anxiety and fears of human being. Article - 21 of the Constitution study the Magna
Charta 'We the people of India. While study of the Constitutions of world we find that Right to
Life and Personal Liberty clause Constituent Assembly include in Indian constitution found in
world constitutions of the world as prime note.
We are like a frog in well and believer of Vasudhaivakutumbakam (world is our home) so can’t
close our eyes what’s going on at international level in particularly related to the right to life and
personal liberty under international law. We come within international wavelength so that this
study can make the section will broaden our vision. A new horizon of life and personal liberty
comes into existence as Supreme Court of India take cognizance of these developments.
In India, the fundamental right to life and personal liberty that is commendable of a detailed
study of the British rule to Swaraj has a long history. Study of tug war between two opposite
interests: American and British structure motivates Constituent Assembly and give a clear
picture on life and personal liberty. Based on this we inspired to build a successful model for
tomorrow. Historical background pointed out an important aspect on right to life and personal
liberty and help us to understand its facets. It will further help us in giving broad interpretations
where life and personal liberty question arise.
A constitutional provision can work in isolation and is self-contained code. However, as a part
of the basic structure of the constitution contain fundamental rights, directive principles, rights
enforcement, suspension of enforcement of rights, including the right to amend and other
provisions of the Constitution, it is necessary to reveal the interrelation for the proper
functioning, enforceability and protection of one’s life and personal liberty.
Legislatures and Indian courts in relation to Right to Life and Personal Liberty did an significant
contribution to the field, but many times, they have constricted their development. However,
Page 28
dynamics in judicial approach and activism more on some occasions expanding its concept were
there.
The current study will drop light on the changing state of affairs; Majority and minority view
were in isolated and consensus opinion and judicial test approaches is to make these ideas.
Aspects have yet their but did not reach the whole community as poor’s are still struggling for
their rights. Big question arises is there need to re-evaluate the position of fundamental human
right to life and liberty in India. Is it equally empowered as in other constitutions of world.This
aspect is examined in this research.
Fundamental Rights is a charter of rights contained in the Constitution of India. It guarantees

civil liberties for all Indians to lead their lives in peace and harmony as citizens of India. Right to
life and personal liberty is the most exquisite and essential fundamental human rights around
which other rights of the individual swivel and, therefore, the study assume great significance.
The study of Right to Life is in fact a study of the Supreme Court role guardian of fundamental
rights. Article 21 is the idol provision of the Indian Constitution and occupies a distinctive place
as a fundamental right. It guarantees right to life and personal liberty to citizens and as well as
aliens and is enforceable against the State.
Fundamental Rights are the pivotal rights guaranteed by constitution of India. There facets are
increasing day by day. When we specifically deals with expanding horizon of Article-21, which
provides the Right to Life and Personal Liberty to citizen as well as non-citizen. We find that
with expanding horizon new interpretations comes in the view. We need to study and analyze the
new interpretations given by Supreme Court of India to see what extent succeed in protecting the
human rights
Scope of Article 21
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The scope of article 21 based on the real meaning of the terms life personal liberty and
procedure establish by law used in this article. The scope of Article 21 was a bit narrow till 50s
as it was held by the Apex Court in A.K.Gopalan vs State of Madras that the contents and
subject matter of Article 21 and 19 (1) (d) are not identical and they proceed on total principles.
In this case, the word deprivation was interpreted in a narrow sense and it was held that the
deprivation does not restrict upon the right to move freely which came under Article 19 (1) (d).
at that time Gopalan’s case was the leading case in respect of Article - 21 along with some other
Articles of the Constitution. However, post Gopalan case the scenario in respect of scope of
Article 21 has been expanded or modified gradually through different decisions of the Apex
Court and it was held that interference with the freedom of a person at home or restriction
imposed on a person while in jail would require authority of law.
Whether the reasonableness of a penal law can be examined with reference to Article 19, was the
point in issue after Gopalan’s case in the case of Maneka Gandhi v. Union of India , the Apex
Court opened up a new dimension and laid down that the procedure cannot be arbitrary, unfair or
unreasonable one. Article 21 imposed a restriction upon the state where it prescribed a procedure
for depriving a person of his life or personal liberty.
The new interpretation of Article 21 in Maneka Gandhi’s case has leaded a new era where right
to life and personal liberty horizons expand. The broad and liberal facet came into the view in
respect of these rights, now covers various aspects, which the founding fathers of the
Constitution might or might not have foreseen. The above stated revolution in the basic concept
makes it essential that the concept of right to life and personal liberty should be examined with
their expanding horizons along with judicial interpretation, justification for such liberal
Interpretation, and relation of Article 21 with the provisions of Article 32 and Directive
Principles of the State Policy and International Human Rights Instruments.
One of the burning topics of today is protection of personal life and liberty of an individual.
Horizon of right to personal liberty and meaningful life extended in society is a sign of
development and progress. The current study, judicial interpretations, laws and other subject
matter, articles and books written by intellectuals brings out various aspects and opinions.
Studies of these aspects are necessary to see where our society is going. Is everybody is
benefited by right to life and personal liberty. With changing society and changing concept of
Page 30
Right to life and liberty, we need to analyse through study is there need of more dimensions
came into the picture to serve its purpose to all. Article 21, provides Protection of Life and
Personal Liberty: No person shall be deprived of his life or personal liberty except according to
procedure established by law. Though the phraseology of Article 21 starts with negative word
but the word No has been used in relation to the word deprived.
The object of the fundamental right under Article 21 is to prevent encroachment upon personal
liberty and deprivation of life except according to procedure established by law. It clearly means
that this fundamental right has been provided against state only. If an act of private individual
amounts to encroachment upon the personal liberty and deprivation of life of other person. Such
violation would not fall under the parameters set for the Article 21. in such a case the remedy for
aggrieved person would be either under Article 226 or 32 of the constitution or under general
law.
However, where an act of private individual supported by the state infringes the personal liberty
or life of another person, the act will certainly come under the ambit of Article 21. This article
deals with encroachment upon personal liberty and deprivation of life of a person. The state
cannot be defined in a restricted sense. It includes Government Departments, Legislature,
Administration, Local Authorities exercising statutory powers and so on so forth, but it does not
include non-statutory or private bodies having no statutory powers. For example; company,
autonomous body and others. Therefore, the fundamental right guaranteed under Article 21
relates only to the acts of State or acts under the authority of the State, which is not according to
procedure established by law. The main object of Article 21 is that before a person is deprived of
his life or personal liberty by the State, the procedure established by law must be strictly
followed.
Thus, it became necessary to know the meaning of these word for the purpose of knowing the
scope of this article.
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Meaning of life
The life of a person has been protected by article 21 of the constitution against the arbitrary act
of the state. For the purpose of knowing the real scope of article 21 in this respect it became
necessary to know the exact meaning of the word life used in this article.
The word LIFE has been define for the 1 st time by American supreme court in the case of
MUNN VS. IIL NOISE IN (1877). The supreme court of America said in this case that the term
LIFE means “something more than mere animal existence”.
In India the supreme court has defined this term for the 1 st time in the case of A.K. Gopalan VS
State of Madras, the supreme court said that the word LIFE means “taking of breath”. Thus the
supreme court has given very restricted meaning of this which has not been accepted in the case
of Khark Singh VS State of Uttar Pradesh . In Khark Singh case the supreme court said the
term LIFE is something more then Animal existence. The supreme court has reconsider the
meaning of this term in the case of Menaka Gandhi VS. Union of India, the supreme court
said that the term Life does not mean “merely the physical existence but it means the right to live
with Human dignity”. The meaning given by the supreme court of this term in this way has
widened the scope of Article 21 and given it dynamic and multidimensional shape.
Thus. In the word life all those factor or aspect of life to the meaningful and complete. The
supreme court re-expressed the same meaning of the word Life in the case of Francis Carolie
VS. Union territory of Delhi and Peoples union for Democratic rights VS. Union of India.
Thus, the judicial interpretation of this word establish that that “the term life means the
dignity full Life and not means Animal and physical existence”.
Meaning of personal liberty
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The meaning of personal liberty has been discussed by supreme court 1st time in the case of
A.K. Gopalan VS. State of Madras, the supreme court has given very narrow meaning of the
term personal liberty. The court said that the term personal liberty means “the liberty of the
physical body that is the freedom from arrest, flash imprisonment or wrongful confinement etc”.
In the case of Khark Singh VS. State of U.P. , The supreme court has not accepted the
meaning given in A.K. Gopalan case, the court said that the expression personal liberty is
something more then mere freedom from physical restrain or bounds or imprisonment. It include
all the variety of rights which constitute personal liberty of man.
In the case of Menaka Gandhi VS. Union of India, the supreme court has established the
meaning of this expression is conclusively and finally. In this case the Supreme Court has not
rejected the meaning of the personal liberty given in the A.K.Gopalan case but it has given in the
widest amplitude to this Article. The court said that the expression personal liberty include all
variety of rihjts which constitute the personal liberty though it may be that some of them are
given the status of distinct and separate fundamental rights.
Meaning of procedure establish by law;
Article 21 provides that a person can be deprived of his life and personal liberty only according
to procedure establish by law but not otherwise. Thus, it became necessary to know the real
meaning of the procedure establish by law. The supreme court expressed it meaning in A.K.
Gopalan case and said that it it means the procedure enacted by the parliament or legislature
whether good or evil. The meaning expressed by the supreme court appear to be based on Austin
concept.
The Supreme Court rejected the view that the rule of Natural Justice is the part of procedure
established by law. The meaning given by the Supreme Court in this case is strongly
condemnable. In the case of Menaka Gandhi Vs. Union of India, the supreme court said that
the expression procedure establish by law does not mean “merely the procedure enacted by
legislature but it must be ‘fair just and reasonable’”. Thus, for a procedure to be the procedure
establish by law it must be fair , just and reasonable. Any procedure may be fair just and
Page 33
reasonable only if it embodies the principal of Natural Justice. Thus, the court said that the law
must be a reasonable law and not merely enacted piece of law.
Principle of Natural Justice:
In the case of Menaka Gandhi vs Union of India, the supreme court establish that Article 21
embodies the principle of Natural Justice. The American process ‘due process of law’ is include
in article 21 in the form of Natural Justice . Thus, the procedure establish by law must be in
accordance with the principle of natural justice.
Article 21 protect the right to life and personal liberty against the executive
action but also the legislative action :
In the case of A.K.Gopalan VS. State of Madras, the supreme court has held that Article 21
guaranteed the right to life and personal liberty against the arbitrary action but not the legislative
action.But in the case of Menka Gandhi VS. Union of India, the supreme court rejected this
view and held that this Article gives protection against the legislative action.
The right which come within the preview of Article 21:
The decision given in case of Kharak Singh vs. State of U.P., Shatwant Singh vs assistant
passport officer new Delhi, Menaka Gandhi VS. Union of India , and Francis coralie vs Union
territory of Delhi have widest the scope of article 21. Thus, this Article covers all those rights
which make the life and personal liberty to be meaningful.
The following right come within the preview of this Article:
 Right to travel abroad

 Right to live with human dignity
 Right to livelihood
 Right to member of protective home
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 Right to die
 Right to social security
 Right to get pollution free Air and Water
 Right against Noise pollution
 Right to health and medical-aid
 Right to sleep
 Right against solitary confinement
 Right to speedy trail
 Right to privacy
 Right to shelter
 Right to free legal aid
 Right against hand cuffing
 Homo-sexuality
 Right to education
These above rights right’s come within the preview of Article 21 and after the Menaka Gandhi
case the scope of this Article is wider. The protection of this Article is given to the person that is
citizen or non citizen but not to legal or artificial person. The word life makes it very clear that
the legal or artificial person is not included in the word person used in this article. The Article 21
protect the life and personal liberty of person against the State not private individual because the
remedy against a private individual is provided under ordinary law.
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CHAPTER 3
Page 36
Right to privacy under article 21

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,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 Pradesh, 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 limitation under which the
surveillance is made. The right to privacy deals with ‘persons not places’.
In Smt. Menaka Gandhi v. Union of India & Anr.,(1978) 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.
Page 37
In Nazz 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.
Another significant case related to the right of privacy was the People’s of Union Civil
Liberties vs. the Union of India. The case was involved with the issue of ‘telephone tapping’
and held that tapping a person’s telephone line violated his right to privacy, unless it was
required in the gravest of grave circumstances such as public emergency.
On 24 August 2017, in the case of Justice KS Puttaswamy (RETD) vs. Union of India and
Ors (WP (C) 494/2012), the bench comprised Chief Justice Khehar and Justices
J.Chelameshwar, S.A. Bobde, R.K. Agrawal, Rohinton Nariman, A.M. Sapre, D.Y.
Chandrachud, Sanjay Kishan Kaul and S. Abdul Nazeer, unanimously upheld:
 9-judge Supreme Court says right to privacy is a fundamental right.

 In its 547 page judgment that declares Right to Privacy is an intrinsic part of life and personal
liberty under article 21.
 Decision in MP Sharma case was over ruled.
 Decision in Kharak Singh case, to extent it says Right to Privacy is not part of Right to Life,
is over ruled.
 Decision subsequent to Kharak Singh case which held privacy as part of right to life are
correct.
 So, no policy/ law can take away right to privacy completely.
 Only ‘reasonable restrictions’ can be imposed on a few grounds such as security etc.
 5-Judge Benching Hearing Aadhar will Decide Two Braod Things:
 Does Aadhar data collection pass the ‘reasonable’ restrictions test?
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 Can Aadhar be made mandatory for a host of services?
 Ruling calls for data protection law.

 Asks whether collection of information in digital space violates privacy.
 Implications for banks, ecommerce companies, apps that collect personal data.
 Ruling makes almost certain that homosexuality will be decriminalized.

 Verdict strikes down state’s power to suspend civil liberties during ‘emergencies’
 Can also impact laws/rules that restrict right to covert and choice of food.

In Aadhar case
The current verdict is not on the other case being heard by a five-judge bench of the Supreme
Court on whether the government scheming of linking Aadhar for all transactions is an
infringement of privacy.
The nine judge verdict is on petition filed by retired Justice K S Puttaswamy and others, which
challenged the collection of biometric data by the government of India under the Aadhar scheme
as being in violation of right to privacy under “Article 21 of the Constitution of India while other
petitioners assert that such a right emanates not only from article 21 but also from various other
articles embodying the fundamental rights guaranteed under Part III of the Constitution of India”.
The petition was first filed in 2012.
While this verdict settles the issue that privacy is indeed a fundamental right as read into the
Constitution, the issue of Aadhar being made compulsory for various schemes is yet to be
examines and decided by the court.
In Whatsapp case
In bench of five judges is hearing a petition challenging popular messaging application
Whatsapps right to share information about its users with Facebook, the US social media giant
that bought over the former in 2014. It is suspected that the data sharing policy between the two
led to the breach of information of as many as 200million users of Whatsapp in India.
Page 39
The Indian government argues that privacy concerns by private bodies should be viewed
differently from those related to the government. Even more ironically, the Centre invoke the
same Article 21, also cited by the SC bench in its verdict, to justify its stand in the Whatsapp
case the right to privacy I guaranteed through the right to life and personal Liberty. But the
Center chooses its own logic when it came to the fact that the same principle should apply to
itself as well.25
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.
Right To Privacy-Permissible Restriction
Intrusion into privacy may be by-
(1) Legislative Provision
(2) Administrative/Executive order
(3) Judicial Orders.
(1) 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 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
25
http://intolegalworld.com/2017/09/01/righttoprivacyanuna/
Page 40
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, goods 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 specified procedure.
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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.
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.
Right To Privacy And Search And Seizure
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The right of privacy on one hand and power of the State of search and seizure on the other hand
has been the subject matter of judgments not only in India but also in other countries as well. The
Supreme Court referred to American case laws under the Fourth Amendment to the US
Constitution. The Court also referred to Universal Declaration of Human Rights, European
Convention of Human Rights, other treaties and constitutional provisions and held that the State
cannot have unbridled right of search and seizure. In particular, it pointed out that all public
records could always be inspected but it will not be open to Collector under the impugned
amended Section 73 of the Indian Stamp Act, 1899 to direct the production of records held with
banks. These records are copies of private documents.
The right to privacy is to protect the documents which are with the banks. Unless there is
reasonable cause or material to believe that such documents may lead to a discovery of fraud
such documents cannot be inspected.
The Court struck down S. 73 giving uncontrolled power to Collector to authorize “any person” to
take notes or extracts from such documents. Even the rules framed under the Act did not provide
sufficient guidelines or safeguards as to how this power could be exercised. The Supreme Court
referred to US judgments on this subject. It preferred to follow the minority view in Miller’s case
and took the view that majority decision was incorrect. It also referred to various articles and
comments which have taken the view that majority judgement was wrong the Court held that
documents or copies thereof given to the bank will continue to remain confidential. The fact that
they are given to bank voluntarily will not mean that they cease to be private records as
mentioned above.
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. In this case Public Interest Litigation was filed protesting
Page 43
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 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-
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 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.
 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
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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: Husband Tapping Conversation Of His Wife With Others

Seekingto Produce In Court, Violates Her Right To Privacy Under Article 21
In Rayala M. Bhuvneswari v. Nagaphomender Rayala 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 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.
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The question of the right to be let alone again came on the front in the case of R. Rajagopal vs.
State of T.N 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.
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Conflict Between: Right To Information & 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 the 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 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, 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
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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 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.
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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 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
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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 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-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.
Right to privacy under UDHR

Privacy is claimed to be one of the fundamental human rights available to all human beings. This
is very much evident from the Universal Declaration of Human Rights, which recognizes right to
privacy as a fundamental human right. Further the International Covenant on Civil and Political
Rights also recognizes the right to privacy.
The right to privacy is directly spelt in Article 12 of the Universal Declaration of Human Rights
as follows, “No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, not to attack upon his honour and reputation. Every one has the right to the
Page 51
protection of the law against such interference or attacks.’’ The International Covenant on Civil
and Political Rights, 1966 provides for rights to privacy in Article 17. It reads as follows:
(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family,
home, correspondence, not to unlawful attacks on his honour and reputation.”
(2) Everyone has the right to protection of the law against such interference or attacks.
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CHAPTER 4
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India’s commitments under International law:

The recognition of privacy as a fundamental constitutional value is part of India’s commitment to
a global human rights regime. Article 51 of the Constitution, which forms part of the Directive
Principles, requires the State to endeavour to “foster respect for international law and treaty
obligations in the dealings of organised peoples with one another”. 26Article 12 of the Universal
Declaration of Human Rights, recognises the right to privacy: “Article 12: 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.” Similarly, the International Covenant on Civil and Political
Rights was adopted on 16 December 1979 and came into effect on 23 March 1976. India ratified
it on 11 December 1977. Article 17 of the ICCPR provides thus: “The obligations imposed by
this article require the State to adopt legislative and other measures to give effect to the
prohibition against such interferences and attacks as well as to the protection of the right.” The
Protection of Human Rights Act, 1993 which has been enacted by Parliament refers to the
ICCPR as a human rights instrument. Section 2(1)(d) defines human rights: “human rights”
means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the
Constitution or embodied in the International Covenants and enforceable by courts in India.”
Section 2(1)(f) defines International Covenants: “International Covenants” means the
International Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural rights adopted by the General Assembly of the United Nations on
the 16th December, 1966 [and such other Covenant or Convention adopted by the General
Assembly of the United Nations as the Central Government may, by notification, specify” Under
Section 12(f) of the Protection of Human Rights Act, 1993, the National Human Rights
Commission: “is entrusted with the function of studying treaties and other international
instruments on human rights and make recommendations for their effective implementation.”
The ICCPR casts an obligation on states to respect, protect and fulfil its norms. The duty of a
State to respect mandates that it must not violate the right. The duty to protect mandates that the
government must protect it against interference by private parties. The duty to fulfil postulates
26
Article 51(c) of the Indian Constitution
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that government must take steps towards realisation of a right. While elaborating the rights under
Article 17, general comment 16 specifically stipulates that:
“there is universal recognition of the fundamental importance, and enduring relevance, of the
right to privacy and of the need to ensure that it is safeguarded, in law and practice. Significantly,
while acceding to the ICCPR, India did not file any reservation or declaration to Article 17.
While India filed reservations against Articles 1, 9 and 13, there was none to Article 17: “Article
1 refers to the right to self-determination. The reservation to Article 1 states that “the
Government of the Republic of India declares that the words ‘the right of self-determination’
appearing in [this article] apply only to the peoples under foreign domination and that these
words do not apply to sovereign independent States or to a section of a people or nation-which is
the essence of national integrity. ‘ The reservation to Article 9, which refers to the right to liberty
and security of person, detention and compensation payable on wrongful arrest or detention,
states that “the government of the Republic of India takes the position that the provisions of the
article shall be so applied as to be in consonance with the provisions of clauses (3) to (7) of
article 22 of the Constitution of India. Further under the Indian Legal System, there is no
enforceable right to compensation for persons claiming to be victims of unlawful arrest or
detention against the State.”
The reservation to Article 13 – which refers to protections for aliens, states that “the Government
of the Republic of India reserves its right to apply its law relating to foreigners.” On 30 June
2014, a report was presented by the Office of the United Nations High Commissioner for Human
Rights. 27
The report underscores that: “…there is universal recognition of the fundamental
importance, and enduring relevance, of the right to privacy and of the need to ensure that it is
safeguarded, in law and in practice.”28
In Bachan Singh v State of Punjab 29

(“Bachan Singh”), this Court considered in relation to the
death penalty, the obligations assumed by India in international law, following the ratification of
the ICCPR. The Court held that the requirements of Article 6 of the ICCPR are substantially
27
“The Right to privacy in the Digital age”, Report of the Office of the United Nations High Commissioner for
Human Rights (30 June 2014)
28
Ibid, at page 5 (para 13)
29
(1980) 2 SCC 684
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similar to the guarantees contained in Articles 20 and 21 of the Constitution. The penal law of
India was held to be in accord with its international commitments.
In Francis Coralie, this Court, while explaining the ambit of Article 21, held that: “…there is
implicit in Article 21 the right to protection against torture or cruel, inhuman or degrading
treatment which is enunciated in Article 5 of the Universal Declaration of Human Rights and
guaranteed by Article 7 of the International Covenant on Civil and Political Rights…” 30
In Vishaka v State of Rajasthan31, this Court observed that in the absence of domestic law, the
Convention on the Elimination of Discrimination against Women (CEDAW) is applicable. In
NALSA, while dealing with the rights of transgenders, this Court found that the international
conventions were not inconsistent with the fundamental rights guaranteed by the Constitution
and must be recognised and followed. 133 The position in law is well settled. Where there is a
contradiction between international law and a domestic statute, the Court would give effect to the
latter. In the present case, there is no contradiction between the international obligations which
have been assumed by India and the Constitution. The Court will not readily presume any
inconsistency.
On the contrary, constitutional provisions must be read and interpreted in a manner which would
enhance their conformity with the global human rights regime. India is a responsible member of
the international community and the Court must adopt an interpretation which abides by the
international commitments made by the country particularly where its constitutional and
statutory mandates indicate no deviation. In fact, the enactment of the Human Rights Act by
Parliament would indicate a legislative desire to implement the human rights regime founded on
constitutional values and international conventions acceded to by India.
30
Francis Coralie (Supra note 159), at page 619 (para 8)
31
(1997) 6 SCC 241
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Present scenario of right to privacy
From the time of birth till the time of death, and even beyond, we all are being tracked. Even a
harmless tweet or a ‘like’ on Facebook can give away crucial data such as location of home and
workplace. Privacy has become the quintessential issue of our times, but it continues to be
violated every day. Privacy is supreme human right inherently given by the nature, yet its status
as a fundamental right under the constitution remains dubious.
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 SC
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 MNREGA, Pradhan Mantri Jan-Dhan Yojana, pension
and provident fund schemes but no person should be deprived of any service in absence of
Aadhaar. The SC was slated to hear the matter in January this year, but the case seems to have
gone into cold storage as no next date has been listed by the court.
On more recent terms, the Delhi high court has been approached by an individual seeking
enforcement of ‘right to be forgotten’. The court has sought responses from the government and
websites in this matter. The Bombay high court has also overturned the ban on possession of
beef in Maharashtra and said that the right to eat beef is a part of the right to privacy, which is
part of a citizen’s fundamental right to life, even as the SC examines the later part of the
statement.
The biggest violation of privacy, nevertheless, continues to be through surveillance. The draft
encryption policy has been ridiculed for its stringent and impracticable rules that disallowed
encryption. The policy, which has now been put into cold storage, faces the stark reality that
WhatsApp has introduced end-to-end encryption for all its services. This means the message can
be logically read only on the sending and receiving device, which is indeed a great tool for
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escaping surveillance. However, the same gives a headache to governments across the world as
terror networks seem to be using the internet in a major way. A clear example of this is in the
case of FBI and Apple, wherein the tech giant refused to help FBI access data stored in an
iPhone and the US government had to spend a large sum to obtain the data after breaking the
code. Many fear that such instances may bolster privacy, but allow illegal activities to prosper
within its ambit. However, India seems to be buoyant about the issue and the communications
and IT minister, Ravi Shankar Prasad, has claimed that “As part of this programme, a tool for
mobile forensics has been developed, which handles smartphones including Apple phones.” The
private companies too are responsible for protecting data and privacy of their consumers but are
deceived by smarter hacks who hack the private data and sell it in the market, as was being done
by Russian hackers. The Ashley Madison hack of January 2016, wherein personal data of more
than 1.1 million persons was leaked also shows the threat of privacy invasion in the private-
sector world.
In India, the regulatory environment over the subject remains unclear. Voice-over-IP services
such as Skype have been identified as something that can be easily used by terrorists, but no
policy over the same has taken form.
Only recently, the Telecom Regulatory Authority of India (TRAI) amended the telecom licence
agreement to allow interconnection of IP-based networks. On the other hand, in France, Skype
was made to register as a telecom operator. In Germany, VoIP is subject to the same
requirements as other telecom services because of the technology neutral approach of its
Telecommunications Act.
In China, VoIP calls have a separate regulatory system under the head of ‘voice based calls’.
Regarding this, the most problematic thing for the government seems to be the presence of
servers of most of the apps and websites in foreign countries. WhatsApp end-to-end encryption
directly goes against Section 69 of the Information Technology Act and there remains a question
mark over WhatsApp acceding to demands of the government of India over data requests. With
even a greater number of persons moving online, privacy and its security in the digital world is
the latest challenge before everyone.
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Arvind Sivaramakrishnan, CIO, Apollo Hospitals Group, has called upon the government to
frame regulatory standards on privacy and security of health records. Bangladesh’s top bank
recently lost millions of dollars due to lack of effective cyber protection. In light of increasing
theft of financial data, South Korea has amended its laws and from September 23 this year, any
serious data breach experienced by such businesses will lead to financial liability of up to three
times the actual damages suffered by their customers.
The law firm Mossack Fonseca has called the Panama Papers release a breach of privacy.
However, as it may seem so in the first look, there is indeed compelling public interest in the
release of such papers. Hence, the Panama Papers give an idea that the right to privacy cannot be
a blanket one, and there will exist exceptions to it, at all times.
In the era of Internet of Things and cloud computing, the data is not only being stored in hard
drives of individual computers but also in the overall internet, and keeps floating between
various servers.
Even as India is planning to use schemes like Meghraj for cloud computing, it has fallen to rank
18 in cloud computing due to absence of privacy law. While technology-rich Japan, US,
Germany and Canada scored the highest in the ratings released, India has fallen behind Malaysia,
South Africa, Mexico and Argentina. The biggest violators of privacy seem to be the social
networking websites themselves. Revealed in the PRISM episode for co-joining the hands with
the US, websites have been known to use personal data for advertisements. Recently, a US judge
rejected a request by Facebook to toss out a civil suit accusing it of violating privacy with face-
recognition software to help ‘tag’ people in pictures.
Sections 43, 43A and 72A of the IT Act of 2000, along with Rules of 2011 provide the legal
framework for digital privacy and security, mandating that agencies collecting personal data
must provide a privacy policy, and compensations must be paid to the victim in case of
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unauthorised access or leakage of information, but the laws have been let down by lack of
effective implementation.
Communications minister Prasad announced that India is working on a privacy bill but failed to
give a timeline. The EU already has a data protection directive and it is unclear whether India is
planning to make a similar law. Even though the government claimed that the Aadhaar bill was
in fact a money bill and that it provided for protection of privacy, it received the most criticism
on the issue of privacy and protection of the demographic and biometric information collected
for the purpose of issuing the Aadhaar number32.
In a landmark verdict, the Supreme Court on establish that individual privacy is a guaranteed
fundamental right;
The Supreme Court ruled on 24/08/2017 Indians have a constitutional right to privacy, a verdict
that could have wide-reaching implications on broader civil rights issues, including
homosexuality and prohibition.
Laws on beef possession in many states could also come up for review.
Experts have said the ‘right to privacy’ case would be a test of our democracy, with the
possibility of citizens challenging laws based of individual rights.
Privacy is not explicitly mentioned in the Constitution, and the government has argued that
people cannot expect an absolute right to privacy.
Here are a few issues that may feel the ripples of the Supreme Court’s verdict declaring right to
privacy a fundamental rights:
Section 377
Activists have argued that Section 377, which criminalises homosexuality, violates the Indian
citizens’ fundamental rights to equality and to life with dignity and privacy.
32
http://www.governancenow.com/gov
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On Thursday, Chief Justice JS Khehar said privacy was “protected as an intrinsic part of Article
21 that protects life and liberty”.
In its judgment, the SC said: “It is an individual’s choice as to who enters his house, how he lives
and in what relationship. The privacy of the home must protect the family, marriage, procreation
and sexual orientation which are all important aspects of dignity.”
Ones sexual orientation is undoubtedly an attribute of privacy,” it said.
Beef laws – unlimited right to search, seizure will be vulnerable
In 2015, the Bombay high court said the state shall not intrude on the privacy of citizens to find
out if they are in possession of beef or any other form of meat.
The Maharashtra government later said the high court “while coming to the finding that right to
privacy forms part of the fundamental right to personal liberty guaranteed under Article 21 of the
Constitution, ought to have appreciated that right to privacy has not yet been designated as a
fundamental right”.
The Supreme Court on 24/08/2017 deemed right to privacy as a fundamental right.
The court also said: “...as new cases brought new issues and problems before the Court, the
content of the right to privacy have found elaboration in these diverse contexts. These would
include... food preferences and animal slaughter.”
“I do not think that anybody would like to be told by the State as to what they should eat or how
they should dress or whom they should be associated with either in their personal, social or
political life,” Justice J Chelameswar noted.
Is ‘right to be forgotten’ on the cards?
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In 2014, the Court of Justice of the European Union (ECJ) said people could ask search engines
such as Google to remove certain information from web results appearing under their names.
This was dubbed the “right to be forgotten”.
According to Google’s transparency report, it has since received over 720,000 removal requests
and accepted about 43% of them.
Europe is known to have some of the most progressive laws on privacy, and the SC’s verdict
terming privacy as a fundamental right in India could trigger a debate on the need for “right to be
forgotten” in the country.
Here is what the Supreme Court said on a few other issues:
Abortion
“A woman’s freedom of choice whether to bear a child or abort her pregnancy is areas which fall
in the realm of privacy. “
Euthanasia
“Concerns of privacy arise when the State seeks to intrude into the body of SUBJECTS.57
Corporeal punishments were not unknown to India, their abolition is of a recent vintage. Forced
feeding of certain persons by the State raises concerns of privacy. An individual’s rights to refuse
life prolonging medical treatment or terminate his life are another freedom which fall within the
zone of the right of privacy.”
Internet hacking
“Telephone tapings and internet hacking by State, of personal data is another area which falls
within the realm of privacy. The instant reference arises out of such an attempt by the Union of
India to collect bio-metric data regarding all the residents of this country.”33
Position in USA
33
http://www.hindustantimes.com/india-news/homosexuality-abortion-beef-law-data-security-what-sc-s-right-to-
privacy-verdict-may-impact/
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The right to privacy is the time-travel paradox of constitutional law: Even though it didn't exist
as a constitutional doctrine until 1961 and didn't form the basis of a Supreme Court ruling until
1965, it is, in some respects, the oldest constitutional right. It is the right to privacy that forms the
common foundation of the freedom of conscience outlined in the First Amendment, the right to
be secure in one's person outlined in the Fourth Amendment, and the right to refuse self-
incrimination outlined in the Fifth Amendment — despite the fact that the word "privacy" itself
appears nowhere in the U.S. Constitution.
No specific provision in the US Constitution; First, Fourth & Fourteenth Amendments of bill of
Rights interpreted to include Right to Privacy from unwarranted search or seizure & due process
right for protecting right to privacy of person within family, marriage, motherhood, procreation
etc.,
1789
The Bill of Rights proposed by James Madison originally includes the Fourth Amendment,
describing an unspecified "right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures," and the Ninth Amendment, stating that
"[t]he enumeration of the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people," but does not specifically mention a right to privacy.
1868
Section 1 of the Fourteenth Amendment makes several general references to rights not explicated
in the amendment. "No State," the amendment reads, "shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States, nor shall any State deprive
any person of life, liberty, or property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws."
1961
In Poe v. Ullman, the U.S. Supreme Court declines to overturn a Connecticut law banning birth
control on the grounds that the plaintiff was not threatened by the law and, subsequently, had no
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standing to sue. In his dissent, Justice John Marshall Harlan II outlines the right to privacy - and,
with it, a new approach to unenumerated rights:
Due process has not been reduced to any formula; its content cannot be determined by reference
to any code. The best that can be said is that through the course of this Court's decisions it has
represented the balance which our Nation, built upon postulates of respect for the liberty of the
individual, has struck between that liberty and the demands of organized society.
If the supplying of content to this Constitutional concept has of necessity been a rational
process, it certainly has not been one where judges have felt free to roam where unguided
speculation might take them. The balance of which I speak is the balance struck by this country,
having regard to what history teaches are the traditions from which it developed as well as the
traditions from which it broke. That tradition is a living thing. A decision of this Court which
radically departs from it could not long survive, while a decision which builds on what has
survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment
and restraint.
1965
Plaintiffs seeking to challenge the Connecticut birth control ban to open a Planned Parenthood
birth control clinic in New Haven, and are promptly arrested. This gives them standing to sue,
and the resulting Supreme Court case - Griswold v. Connecticut - both strikes down all state-
level bans on birth control and establishes the right to privacy as a constitutional doctrine. Citing
freedom of assembly cases such as NAACP v. Alabama (1958), which specifically mentions
"freedom to associate and privacy in one's associations," Justice William O. Douglas writes for
the majority:
The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras,
formed by emanations from those guarantees that help give them life and substance … Various
guarantees create zones of privacy. The right of association contained in the penumbra of the
First Amendment is one, as we have seen. The Third Amendment, in its prohibition against the
quartering of soldiers 'in any house' in time of peace without the consent of the owner, is another
facet of that privacy.
Page 65
The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.' The Fifth Amendment,
in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which
government may not force him to surrender to his detriment. The Ninth Amendment provides:
'The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people' ...
The present case, then, concerns a relationship lying within the zone of privacy created by
several fundamental constitutional guarantees. And it concerns a law which, in forbidding the
use of contraceptives, rather than regulating their manufacture or sale, seeks to achieve its goals
by means having a maximum destructive impact upon that relationship.
Since 1965, the Supreme Court has most famously applied the right to privacy to abortion rights,
in Roe v. Wade (1973), and sodomy laws, in Lawrence v. Texas (2003) - but we will never know
how many laws have not been passed, have not been enforced, due to the doctrine of a
constitutional right to privacy. It has become an indispensable bedrock of U.S. civil liberties
jurisprudence; without it, our country would be a very different place.
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.
The right to privacy most often is protected by statutory law. For example, the Health
Information Portability and Accountability Act (HIPAA) protects a person's health information,
and the Federal Trade Commission (FTC) enforces the right to privacy in various privacy
policies and privacy statements.
The right to privacy often must be balanced against the state's compelling interests, including the
promotion of public safety and improving the quality of life. Seat-belt laws and motorcycle
helmet requirements are examples of such laws. And while many Americans are quite aware that
Page 66
the government collects personal information, most say that government surveillance is

acceptable.
Constitutional rights
The right to privacy often means the right to personal autonomy, or the right to choose whether
or not to engage in certain acts or have certain experiences. Several amendments to the U.S.
Constitution have been used in varying degrees of success in determining a right to personal
autonomy:
 The First Amendment protects the privacy of beliefs

 The Third Amendment protects the privacy of the home against the use of it for housing
soldiers
 The Fourth Amendment protects privacy against unreasonable searches
 The Fifth Amendment protects against self-incrimination, which in turn protects the privacy
of personal information
 The Ninth Amendment says that the "enumeration in the Constitution of certain rights shall
not be construed to deny or disparage other rights retained by the people." This has been
interpreted as justification for broadly reading the Bill of Rights to protect privacy in ways
not specifically provided in the first eight amendments.
The right to privacy is most often cited in the Due Process Clause of the 14th Amendment, which
states:
No state shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any state deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.
Page 67
However, the protections have been narrowly defined and usually only pertain to family,
marriage, motherhood, procreation and child rearing.
For example, the Supreme Court first recognized that the various Bill of Rights guarantees
creates a "zone of privacy" in Griswold v. Connecticut, a 1965 ruling that upheld marital privacy
and struck down bans on contraception.
The court ruled in 1969 that the right to privacy protected a person's right to possess and view
pornography in his own home. Justice Thurgood Marshall wrote in Stanley v. Georgia that, " If
the First Amendment means anything, it means that a State has no business telling a man, sitting
alone in his own house, what books he may read or what films he may watch."
The controversial case Roe v. Wade in 1972 firmly established the right to privacy as
fundamental, and required that any governmental infringement of that right to be justified by a
compelling state interest. In Roe, the court ruled that the state's compelling interest in preventing
abortion and protecting the life of the mother outweighs a mother's personal autonomy only after
viability. Before viability, the mother's right to privacy limits state interference due to the lack of
a compelling state interest.
In 2003, the court, in Lawrence v. Texas, overturned an earlier ruling and found that Texas had
violated the rights of two gay men when it enforced a law prohibiting sodomy.
Justice Anthony Kennedy wrote, "The petitioners are entitled to respect for their private lives.
The State cannot demean their existence or control their destiny by making their private sexual
conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to
engage in their conduct without intervention of the government."
Access to personal information
A person has the right to determine what sort of information about them is collected and how
that information is used. In the marketplace, the FTC enforces this right through laws intended to
prevent deceptive practices and unfair competition.
The Privacy Act of 1974 prevents unauthorized disclosure of personal information held by the
federal government. A person has the right to review their own personal information, ask for
corrections and be informed of any disclosures.
Page 68
The Financial Monetization Act of 1999 requires financial institutions to provide customers with
a privacy policy that explains what kind of information is being collected and how it is being
used. Financial institutions are also required to have safeguards that protect the information they
collect from customers.
The Fair Credit Reporting Act protects personal financial information collected by credit
reporting agencies. The act puts limits on who can access such information and requires agencies
to have simple processes by which consumers can get their information, review it and make
corrections.
Online privacy
Internet users can protect their privacy by taking actions that prevent the collection of
information. Most people who use the Internet are familiar with tracking cookies. These small
stores of data keep a log of your online activities and reports back to the tracker host. The
information is usually for marketing purposes. To many Internet users, this is an invasion of
privacy. But there are several ways to avoid tracking cookies.
Browsers and social media platforms, such as Facebook and Twitter, allow users to choose levels
of privacy settings, from share everything to only share with friends to share only the minimum,
such as your name, gender and profile picture. Protecting personally identifiable information is
important for preventing identity theft.
The Children's Online Privacy Protection Act (COPPA) enforces a parent's right to control what
information websites collect about their children. Websites that target children younger than 13
or knowingly collect information from children must post privacy policies, get parental consent
before collecting information from children, allow parents to decide how such information is
used and provide an opt-out option for future collection of a child's information.
Right of publicity
Page 69
Just as a person has the right to keep personal information private, he or she also has the right to
control the use of his or her identity for commercial promotion. Unauthorized use of one's name
or likeness is recognized as an invasion of privacy.
There are four types of invasion of privacy: intrusion, appropriation of name or likeness,
unreasonable publicity and false light. If a company uses a person's photo in an ad claiming that
the person endorses a certain product, the person could file a lawsuit claiming misappropriation.
Page 70
Comparative Study Of Right to Privacy
The evolution of the concept of privacy in other jurisdictions from a comparative law
perspective. The Court is conscious of the limits of a comparative approach. Each country is
governed by its own constitutional and legal structure. Constitutional structures have an abiding
connection with the history, culture, political doctrine and values which a society considers as its
founding principles. Foreign judgments must hence be read with circumspection ensuring that
the text is not read isolated from its context.
The countries which have been dealt with are:
 United States;
 India
Right to Privacy under US Constitution: The United States Constitution does not contain any
explicit right to privacy. But American privacy jurisprudence reflects that it has been protected
under several amendments of the US Constitution. However, The Bill of Rights, expresses the
concerns of James Madison along with other framers of the Constitution for protecting certain
aspects of privacy.
the first amendment allows the privacy of beliefs, the third amendment protects privacy of the
home against any demands to be used to house soldiers, the fourth amendment protects the
privacy of a person and possessions from unreasonable searches, and the 5th Amendment gives
privacy of personal information through preventing self-incrimination.
Furthermore, the 9th Amendment says that the enumeration of certain rights as found in the Bill
of Rights cannot deny other rights of the people. While this is a vague statement, court precedent
has said that the 9th amendment is a way to justify looking at the Bill of Rights as a way to
protect the right to privacy in a specific way not given in the first 8 amendments.
The issue of whether the Constitution actually protects the right to privacy in ways not described
in the Bill of Rights is a controversial subject. Originality often argue that there is no general
right to privacy within the constitution. However, as early as 1923 the Supreme Court,
recognized through decisions, that the liberty given in the 14th amendment guarantees a
Page 71
relatively broad right of privacy in regards to about procreation, child rearing, marriage, and
medical treatment termination.
Two decisions by the Supreme Court during the 1920s solidified this view of the 14th
amendment. They found the liberty clause of the 14th amendment to prohibit the states from
trying to interfere with private decisions of parents and educators in when shaping the children’s
education. During the case Meyer v Nebraska in 1923, the Supreme Court said that a state law
that did not allow the teaching of German or other foreign languages to students before the ninth
grade was unconstitutional.
The issue of the right to privacy regained momentum in the 1960’s during Griswold v
Connecticut where the Supreme Court said that the state law prohibiting the sale, distribution,
possession and contraceptives to couples who were married was unconstitutional. There were
different reasons for this based on the judge, whether it was the gray area of the law or the zone
of privacy created by the Bill of Rights.
In 1969, the court ruled on Stanley v Georgia in a unanimous decision staying that an individual
had the right to privacy to have and watch pornography, even if the pornography could
potentially be the basis for any prosecution against the distributor or manufacturer. The opinion
stated that the State could not tell a person who was in his own home what he movies he could
watch or what books he could read.
More recently, the Supreme Court has acknowledged the right to privacy. For example, in the
1990 case Cruzan v Missouri Department of Health, the Court found that individuals had the
right to make their own decisions about terminating medical treatments that were life-
prolonging. Another case was Lawrence v Texas in 2003 where a sodomy law in Texas that
prohibited homosexual sodomy was struck down by the Supreme Court.
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.”
Page 72
Article 17 of International Covenant of Civil and Political Rights (to which India is a party)
states “No one shall be subjected to arbitrary or unlawful interference with his privacy, family,
home and correspondence, nor to unlawful attacks on his honour and reputation”34
Right to Privacy under Constitution Of India: .
The interpretation of this Article reveals that a person can deprived of life or personal liberty by
the state only the procedure establish by law but not otherwise. Thus, if a person is deprived of
his life or personal liberty by such procedure which is not a procedure establish by law it will be
a violation of Article 21.
In the case of R Rajagopal vs. State of Tamilnadu, popularly known as “Auto Shankar case”
the supreme court expressly held that the “right to privacy” or right to be let alone is guaranteed
by article 21 of the constitution. A citizen has right to safeguard the privacy of his own, his
family, marriage, procreation, motherhood, and child bearing etc. No one can publish anything
concerning the above matter without the consent whether truthful or otherwise and whether
laudatory or critical
The right to privacy encircles within it the concept of dignity and decency also. This right has an
element of secrecy or confidentiality. The right to privacy implies the right not merely to prevent
incorrect portrayal of private life but to prevent its being depicted at all. The right has multi-
pronged dimensions. In personal intimacies, it extends to home, family, marriage, motherhood,
procreation and child bearing, consistent with dignity and decency35.However, the term privacy
has not been specifically defined in the Constitution of India, or under any other statutory
provisions.
In the case of Justice K.S. Puttasawami vs Union of India,
A nine-judge bench of the Supreme Court has ruled that Indians enjoy a fundamental right to
privacy that it is intrinsic to life and liberty and thus comes under Article 21 of the Indian
constitution.
34
https://constitution.laws.com
35
Raghavendra Kumar, “Right to Privacy: Juridical Vision”, AIR 2004 Jour p.195.
Page 73
On 24/10/2017, the bench, led by Chief Justice J.S. Khehar, pronounced a unanimous judgement
even if the judges had slightly different arguments as to how privacy is intrinsic to right to life
and liberty.
The bench comprised Chief Justice Khehar and Justices J. Chelameswar, S.A. Bobde, R.K.
Agrawal, Rohinton Nariman, A.M. Sapre, D.Y. Chandrachud, Sanjay Kishan Kaul and S. Abdul
Nazeer.
1 The judgment in M P Sharma holds essentially that in the absence of a provision similar to the
Fourth Amendment to the US Constitution, the right to privacy cannot be read into the provisions
of Article 20 (3) of the Indian Constitution. The judgment does not specifically adjudicate on
whether a right to privacy would arise from any of the other provisions of the rights guaranteed
by Part III including Article 21 and Article 19. The observation that privacy is not a right
guaranteed by the Indian Constitution is not reflective of the correct position. M P Sharma is
overruled to the extent to which it indicates to the contrary.
2 Kharak Singh has correctly held that the content of the expression ‘life’ under Article 21 means
not merely the right to a person’s “animal existence” and that the expression ‘personal liberty’ is
a guarantee against invasion into the sanctity of a person’s home or an intrusion into personal
security. Kharak Singh also correctly laid down that the dignity of the individual must lend
content to the meaning of ‘personal liberty’. The first part of the decision in Kharak Singh which
invalidated domiciliary visits at night on the ground that they violated ordered liberty is an
implicit recognition of the right to privacy. The second part of the decision, however, which
holds that the right to privacy is not a guaranteed right under our Constitution, is not reflective of
the correct position. Similarly, Kharak Singh’s reliance upon the decision of the majority in
Gopalan is not reflective of the correct position in view of the decisions in Cooper and in
Maneka. Kharak Singh to the extent that it holds that the right to privacy is not protected under
the Indian Constitution is overruled.
3 (A) 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;
Page 74
(B) Life and personal liberty are not creations of the Constitution. These rights are recognised by
the Constitution as inhering in each individual as an intrinsic and inseparable part of the human
element which dwells within;
(C) Privacy is a constitutionally protected right which emerges primarily from the guarantee of
life and personal liberty in Article 21 of the Constitution. Elements of privacy also arise in
varying contexts from the other facets of freedom and dignity recognised and guaranteed by the
fundamental rights contained in Part III;
(D) 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;
(E) Privacy is the constitutional core of human dignity. Privacy has both a normative and
descriptive function. At a normative level privacy sub-serves those eternal values upon which the
guarantees of life, liberty and freedom are founded. At a descriptive level, privacy postulates a
bundle of entitlements and interests which lie at the foundation of ordered liberty;
(F)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. Privacy safeguards individual autonomy and recognises the ability of the individual to
control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to
privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture.
While the legitimate expectation of privacy may vary from the intimate zone to the private zone
and from the private to the public arenas, it is important to underscore that 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;
(G) This Court has not embarked upon an exhaustive enumeration or a catalogue of entitlements
or interests comprised in the right to privacy. The Constitution must evolve with the felt
necessities of time to meet the challenges thrown up in a democratic order governed by the rule
of law. The meaning of the Constitution cannot be frozen on the perspectives present when it
was adopted. 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
Page 75
present. Hence the interpretation of the Constitution must be resilient and flexible to allow future
generations to adapt its content bearing in mind its basic or essential features;
(H) 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. In the context of Article 21 an invasion of privacy must be
justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. The
law must also be valid with reference to the encroachment on life and personal liberty under
Article 21. An invasion of life or personal liberty must meet the three-fold requirement of (i)
legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate state
aim; and (iii) proportionality which ensures a rational nexus between the objects and the means
adopted to achieve them; and
(I) 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.
4 Decisions rendered by this Court subsequent to Kharak Singh, upholding the right to privacy
would be read subject to the above principles.
5 Informational privacy is a facet of the right to privacy. The dangers to privacy in an age of
information can originate not only from the state but from non-state actors as well. We commend
to the Union Government the need to examine and put into place a robust regime for data
protection. The creation of such a regime requires a careful and sensitive balance between
individual interests and legitimate concerns of the state. The legitimate aims of the state would
include for instance protecting national security, preventing and investigating crime, encouraging
innovation and the spread of knowledge, and preventing the dissipation of social welfare
benefits. These are matters of policy to be considered by the Union government while designing
a carefully structured regime for the protection of the data. Since the Union government has
informed the Court that it has constituted a Committee chaired by Hon’ble Shri Justice B N
Srikrishna, former Judge of this Court, for that purpose, the matter shall be dealt with
Page 76
appropriately by the Union government having due regard to what has been set out in this
judgment.
After the case of Justice KS Puttasawmi, the supreme court of India establish the right to privacy
is a fundamental right for individual. But in American constitution no specific provision for the
privacy.
Page 77
Conclusion
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.
Louis Brandeis J in a celebrated judgment has said that right to privacy is ‘the right most valued
by civilized men.” Lord Hoffmann has observed in relation to the complaints against media that
there is no logical ground for saying that a person should have less protection against a private
individual than he would have against the state for the publication of personal information for
which there is no justification.
Judges of the American Supreme Court have talked about the right to privacy as 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.
If one looks at the earlier judgments of the apex court in its formative years, one can observe the
desirability of the court to treat the Fundamental Rights as water-tight compartments. This was
felt the most in the case of A.K Gopalan v. State of Madras and the relaxation of this stringent
stand could be felt in the decision of Maneka Gandhi v. Union of India. The right to life was
considered not to be the embodiment of a mere animal existence, but the guarantee of full and
meaningful life. In the recent case Justice K.S. Puttaswamy v. Union of India, The Supreme
court held that the privacy is in transit to the life and liberty and therefore comes under Art. 21.It
is provided by nature and Article 21 is protected this right and its was explaining by SC many
Page 78
cases. System of Aadhar card, the SC made an interim order and decided the UOI to give
publicity that it is not mandatory for citizen.
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.
After all, the only ones we owe an explanation to is ourselves, and not to the entire world
Page 79
BIBLIOGHAPHY
Books Referred
1. The Constitutional Law Of India:- By- Dr. J.N Pandey.

2. Indian Constitutional Law:- By- Prof. Mp Jain.
3. The Right To Information Act,2005: A Handbook:- By- Sudhir Naib.
4. Right To Information Act In India:Concepts And Problems:- Ritu Banerjee.
5. V. Para Brahma Sastri, RIGHT TO LIFE AND PERSONAL LIBERTY

(COMMENTARY AND CASE MATERIALS), 1st edition, 2005, Asia Law House,
Hyderabad
6. B.M. Gandhi, LEGAL LANGUAGE & LEGAL WRITING, Eastern Book Company,
Lucknow
Articles Referred
1. Privacy And Human Rights: An International Survey Of Privacy Laws And Practices
2. Right To Privacy: An Analysis Of Developmental Process In India, America And
Europe:- By- Shriniwas Gupta And Preeti Mishra.
3. Privacy And The Constitution:- By- N.S Nappinai
4. Fight Between Right To Privacy And Right To Know:- By- Adv. Vishal K Vora
5. The Right To Privacy In The Information Era : A South Asian Perspective:- By: Althaf
Marsoof.
Page 80
Website Referred
1. http://supremecourtofindia.nic.in/pdf/LU/ALL%20WP(C)%20No.494%20of
%202012%20Right%20to%20Privacy.pdf
2. https://www.livescience.com › History
3. https://www.aclu.org/other/students-your-right-privacy
4. https://www.eff.org/.../india-supreme-court-upholds-right-privacy-fundamental-right
5. https://constitution.laws.com/right-to-privacy
6. www.legalserviceindia.com/.../l375-Article-20-(3)-Of-Constitution-of-India
7. https://indiankanoon.org/search/?formInput=narco%20analysis...supreme court
8. www.livemint.com/.../privacy-without-consent-rules-Supreme-Court.html
9. www.livelaw.in/sc-dismisses-accuseds-petition-seeking/right-privacy
10. https://en.wikipedia.org/wiki/right-to-life
11. https://thewire.in/170303/supreme-court-aadhaar-right-to-privacy/
12. https://www.ndtv.com/india-news/supreme-court-verdict-on-right-to-privacy-today-live-
updates-1741335
13. https://cis-india.org/internet-governance/privacy-and-the-constitution
14. http://lawmin.nic.in/ld/PACT/2000/The%20Information%20Technology%20Act,
%202000.pdf
15. https://www.thoughtco.com › Humanities › Issues › Civil Liberties
16. indianexpress.com/article/india/india-others/wheres-right-to-privacy-you-decide-govt-
tells-sc
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Final Disseration ANUSKA

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Right to Privacy under Constitution of India and Comparative Analysis with USA

RIGHT TO PRIVACY UNDER CONSTITUTION OF

A Dissertation Submitted To Amity University

RESEARCH GUIDE: SUBMITTED BY:

AMITY LAW SCHOOL

AMITY UNIVERSITY, LUCKNOW CAMPUS

B.A. LL.B (Hons)

First of all, I would like to express my heartfelt gratitude to my supervisor and

I hereby certify that

(a) ANUSKA SRIVASTAVA, Student B.A.LL.B (Hons), A8111113171, 2013-2018 at Amity

Signature of the Faculty

Ms. Divya Dwivedi

ii. Right to Privacy’s meaning

iii. Historical Background

i. Concept of Fundamental Right’s under Constitution of India

ii. Need for Fundamental Rights

iii. Classification of Fundamental right

iv. Right to life and Personal Liberty under Article 21

I. Right to Privacy under Article 21

ii. Right to Privacy permissible restriction

iii. The Privacy Bill 2011

iv. Right to Privacy and Search and Seizure

Vi. Conflict between Right to Information and Right to Privacy

Vii. Right to Privacy Under UDHR

I. India Commitments under International law

ii. Present Scenario of Right to Privacy

iii. Position in USA

iv. Comparative study of Right to Privacy

1. AIR_____________All India Report

3. Cr.P.C.__________ Code of Criminal Procedure

4. C.A. ____________ Chartered Accountant

6. FIR _First Information Report

9. IPC_____________ Indian Penal Code

10. Art ______________Article

11. Ld._____________ Learned

12. NCRB _National Crime Report Bureau

13. NIA_____________ National Investigation Agency

14. PSN_____________ Photograph Serial Number

15. SCC______________ Supreme Court Cases

16. Sec.______________ Section

17. SC _Supreme Court

18. UN______________ United Nations

19. USA_____________ United States of America

20. WC______________ Word Count

DICTIONARIES AND LEXICONS

1. Betty Kirkpatrick, The Concise Oxford Thesaurus, A Dictionary of Synonyms, (Oxford

1. INTERNATION CONVENT ON CIVIL AND POLITICAL RIGHTS, 1996

STATUTE AND LEGISLATION

A very fascinating development in the Indian Constitutional jurisprudence is the extended

Right to privacy is not enumerated as a Fundamental Right in the Constitution of India. The

MEANING OF RIGHT TO PRIVACY

to remain silent was found to be derogated by usage of narco-analysis as evidence in trials.

MEANING AND CONCEPT OF FUNDAMENTAL RIGHTS

NEED FOR FUNDAMENTAL RIGHTS

In GolakNath v. State of Punjab 20

FUNDAMENTAL RIGHTS- TO WHOM AVAILABLE

FUNDAMENTAL RIGHTS- AGAINST WHOM AVAILABLE-

CLASSIFICATION OR KINDS OF FUNDAMENTAL RIGHTS IN INDIA-

1. Right to Equality (Articles 14-18);

2. Right to Freedom (Articles 19-22);

3. Rights against Exploitation (Articles 23-24);

4. Right to Freedom of Religion (Articles 25-28);