The Indian Perspective
- Right to Privacy is not clear in the Constitution of India, so it is a subject of judicial interpretation. The judicial interpretations of fundamental right bring it within the purview of the fundamental right.
Philosophy
- In the 1890s, Samuel Warren and Louis Brandeis developed the notion of privacy; they identified the ‘injury to the feelings’ and recognized it as a legal injury and through invasions upon his privacy, subjected him to mental pain and distress.
Evolution of Right To Privacy In India
- The concept of privacy can be traced out in the ancient text of Hindus. If one look at the Hitopadesh it says that certain matter like: worship, sex and family matters) should be cosseted from disclosure. This concept is not entirely alien to Indian Culture, but some jurists doubt about the evolution in India,
- In modern India first time the subject of right to privacy was discussed in debates of constituent assembly were K.S. Karimuddin moved an amendment on the lines of the US Constitution, where B.R. Ambedkar gave it only reserved support, it did not secure the incorporation of the right to privacy in the constitution.
- In M.P. Sharma vs Satish Chandra Case Supreme Court on the issue of power of search and seizure’ held that they cannot bring privacy as the fundament right because it is something unfamiliar to Indian Constitution and constitution maker does not bother about the right to privacy .
- After M.P. Sharma Case in Kharak Singh Case Supreme Court on the matter of whether surveillance, defined under Regulation 236 of the U.P. Police Regulations is amount to infringement of fundamental right and whether right to privacy comes under the purview of fundamental right;
- Court denied the right to privacy as fundamental right and they concluded that “the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III”
- In Maneka Gandhi v Union of India, Supreme Court interpreted the Article 21 in broad sense. They said that both the rights of personal security and personal liberty recognized by ‘natural law’ embodied in Article 21.
- Maneka Gandhi Case started the wide interpretation of Right to Life, which actually helped the Right to Privacy to fall into to the scope of Right to Life.
- Unni Krishnan v State of A.P. numbered the twelve meaning of right to life; and right to privacy was one of them.
- Rajagopal alias R. R. Gopal v State of Tamil Nadu was the first case which explained the evolution and scope of right to privacy in detail. In order to attain this question, Supreme Court went through the entire jurisprudence of right to privacy, its evolution and scope.
- People s Union for Civil Liberties (PUCL) v Union of India is related to phone tapping and it discussed that whether telephone tapping is an infringement of right to privacy under Article 21.
- In State of Karnataka v Krishnapp , Supreme Court linked the child rape to the right to privacy. Dr. A.S. Anand, CJI., stated that “Sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honor and offends her self esteem and dignity-it degrades and humiliates the victim and where the victim is a helpless innocent child, it leaves behind a traumatic experience.”
- In State of Karnataka v S. Nagaraju and in Sudhansu Sekhar Sahoo v State of Orissa , Supreme Court accepted the same thing. Supreme Court used the concept of right to privacy to enhance the degree of punishment.
- Again in State Of Madhya Pradesh Vs. Babulal ,Supreme Court again considered that Sexual violence apart from being a dehumanizing act is also an unlawful invasion of the right to privacy and sanctity of a female .
- Article 17 of the International Covenant on Civil and Political Rights states about the right to privacy, it say “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, or correspondence, nor to unlawful attacks on his honor and reputation”.
- Article 12 of the Universal Declaration of Human Rights 1948, states “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks”.
- Since India is a signatory to the International Covenant on Civil and Political Rights and Universal Declaration of Human Rights, 1948, India has the obligation to enforce these rights.
- In the lack of enabling legislation, the ICCPR can have the legal force as the other laws in India. And the UDHR is a sheer pronouncement, and it does not have the legal force.
- But the courts have used provisions of ICCPR and UDHR to make its argument stronger, and also in order to make realized the government about his responsibility toward it citizen and towards international instruments.
- In the case of People’s Union for Civil Liberties v Union of India, Supreme Court cited the Article 17 of ICCPR and Article 12 of UDHR. Through these two international instruments, the court strengthened his contention and also to alert the government about his obligation towards its citizen.
♦ Pradeep Gautam
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