Received: 4 September Revised: 9 September Accepted: 19 September. Fundamental Rights: Right to Privacy of Indian Constitution

Transcription

1 Fundamental Rights: Right to Privacy of Indian Constitution Ashok Brahma, Assistant Prof., Dept. Political Science, Upendra National Academy, Kokrajhar, Assam, India Abstract All human being have three lives: public, private and secret by Gabriel Garcia Marquez. The paper analyze to study the recognising the important aspect of Fundamental Rights and Right to Privacy in the Constitution of India. In the contemporary era of rapid expansion of science and technology privacy became an important aspect. No one shall be subjected to arbitrary interference with his privacy, family, home, or correspondence, or to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. Today privacy covers a number of areas including home, family honour and reputation. The implementation and protection of this right is very important from a legal slant. The definition of the Right to Privacy is around us, it is a right to privacy to keep a domain around us, those things that are part of us such as our body, home, property, thoughts, feelings, secrets, and identity. The right to privacy gives us the ability to choose which parts of this domain can be accessed by others and to control the extent, abuse of those parts we choose to disclose. In the right to privacy every individual has right to keep their personal information, facts, secrets until and unless they allow somebody to us it. An individual can choose how much information at what extent, at what time, in what circumstances they choose to share that information, they can also choose to limit the use of it. And if some company, individual, or even the government use this information without the proper consent of the individual then they are breaching the right to privacy. The Right to Privacy is a Fundamental Right and an intrinsic part of Article 21 that protects life and liberty of the citizens and as a part of the freedoms guaranteed by Part III of the Constitution of India. A Constitutional nine-judge bench of the Supreme Court in the case of Puttuswamy vs. Union of India has declared Privacy as a Fundamental Right on August 24, The bench s judgment will touch 1.3 billion Indian. It was not meant to decide on the fate of Aadhaar, just on whether privacy of an individual was a part of their inviolable Fundamental Rights. What this means is five-judge bench of the Supreme Court will test the validity of Aadhaar on the touchstone of privacy as a Fundamental Right. While primary focused on the individual s right against the State for violations of their privacy, this landmark judgment will have repercussions across both State and Non-State actors and will likely result in the enactment of a comprehensive law on privacy. Key Words: Constitution, Fundamental Rights, Individual Privacy, Personal Liberty, Right to Privacy. 1. Introduction The Fundamental Rights are enshrined in the Part-III of the India Constitution from Article 12 to 35. The Part-III of the Constitution is rightly described as the Magna Carta of India. The framers of the Indian Constitution derived inspiration from the Constitution of USA, that is, the Bill of Rights. The Fundamental Rights in our Constitution are more elaborate than those found in the Constitution of any other country of the world, including the Fundamental Rights of USA. The Fundamental Rights are guaranteed by the Constitution to all persons without any discrimination. They uphold the equality of all the individuals, the dignity of the individual, the larger public interest and unity of the nation. The Fundamental Rights are named so because they are guaranteed and protected by the Constitution, which is the fundamental law of the land. They are fundamental also in the sense that they are most essential for all-round development of the individuals. All the Fundamental Rights are vital for the development of the individual and promote his dignity and welfare. The rights are justiciable and can be enforced through the courts. As these rights are guaranteed by the Constitution, the 60 The research journal of social sciences October 2018 volume 9 number 10

2 government can change them only through Constitutional Amendment. However, the government is authorised to impose reasonable restriction on the rights. But whether these restrictions are reasonable or not is to be decided by the courts in India. The Fundamental Rights of Indian Citizens are provided by the Constitution of India, that was adopted on the 26 th of November, in the year 1949, but was put in use on 26 th the of January, The Fundamental Rights of Indian Citizens guaranty that the residents of the legal can lead a peaceful life, as long as they inhabit the country. The individual Fundamental Rights of Indian Citizens are most of the time similar in all the democratic countries. 2. Literature Review Dr. PK. Rana (2016), The Right to Privacy stands recognised in Indian Constitution. Article 21 as such protects the right to privacy as a necessary ingredient of the right to life and personal liberty. The right to privacy is also recognised under the law of torts, criminal law as well as property laws as an essential element involved therein. However, in the near future the Indian Judiciary and legislatures will able to carve out the separate zone of privacy and will keep a proper balance between the competing interest of individuals and social interest. Chinmaya Kumar Mohapatra & Hiranmaya (2015), 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 state in the Constitution as a fundamental Right. Political, Social, and Economic changes in the country entail the recognition of new rights. Law will change according to its social discrimination. The Right to privacy is one amongst such right which has emerged after widening up the area of Article 21. However, such a right has been guaranteed by the Supreme Court under Article 21 and several other provisions of the Constitution read with the Directive Principles of State Policy. Vrinda Bhandari, Amba Kak, Smriti Parsheera and Faiza Rahman (2017), On 24the August, 2017, a nine-judge bench of the Supreme Court Justice K.S. Puttaswamy vs. Union of India passed a historic judgment affirming the Constitutional right to privacy. It declared privacy to be an integral component of Part- III of the Constitution of India, which lays down our Fundamental Rights, ranging from rights relating to equality (Article 14 to 18; freedom of speech and expression (Article 19(1)(a)); freedom of movement (Article 19 (1) (d)); protection of life and personal liberty (Article 21) and other. These Fundamental Rights cannot be given or take away by law, and all laws executive actions must abide by them. 3. Nature and Scope This study will first analyse the concept of Fundamental Rights and the concept of Privacy has evolved in the law, and then focus upon the status of the right to privacy in India. 4. Objectives of the Study The study will focus mainly on the following objectives: To appreciate the importance of Fundamental Rights To assess the importance of Fundamental Rights given in the Constitution of India and analyse their exceptions and restrictions To study the concept and evolution of Fundamental Rights and Right to Privacy in the Constitution To examine the importance and need of Fundamental Rights in our day to day life 61 The research journal of social sciences October 2018 volume 9 number 10

3 To appreciate the implication of recent added right to privacy 5. Materials and Methodology In order to make an analytical study follows the descriptive method. In this study data have been collected by using secondary sources. Secondary data and information have been collected from different published books, journals, internet sources on websites, published research papers and articles, etc. The variety of sources has been findings for the purpose of this study. 6. Need and Importance The need of the Fundamental Rights was recommended on the Nehru Report in 1928 for the first time made the demand for Fundamental Rights in India. The demand for Fundamental Rights was rejected by the Simon Commission and the joint Parliamentary Committee on whose recommendations the Government of India Act, 1935 was formed. The fundamental Rights are protects the rights and liberties of the people against encroachment by the government and impose limitation upon all powers of the legislative as well as the executive wings, notwithstanding their representative character. The main objective of the inclusion of Fundamental Rights in the Constitution is to be establish a government of law and not of man. The importance of Fundamental Rights was emphasized by Justice Bhagwati in Maneka Gandhi v. Union of India case thus these Fundamental Rights represent the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create condition in which every human being can develop his personality to the fullest extent. They weave a pattern of guarantee on the basic structure of human rights, and impose negative obligations on the state not to encroach on individual liberty in its various dimensions. 7. Special Features The Fundamental Rights are guaranteed by the Constitution have the special features: They are more sacrosanct than rights granted by ordinary laws because they have guaranteed by the Constitution. They are not absolute and are subject to reasonable restrictions. They are justiciable and can be enforced through the courts. The Fundamental Rights including the right to constitutional remedies may be suspended during a national emergency. Certain Fundamental Rights granted by the Constitution are not available to certain sections of society. Thus, the members of armed forces and police are not permitted to make use of their political rights. These are available only against the state and not against private parties or individuals. The Fundamental Rights are both positive and negative. While the Fundamental Rights which confer certain privileges on citizens are positive, others which present the state from conferring certain special privilege are negative. While some of the rights are available only to the Citizens, others are available to foreigners and legal persons. If a person is derived of his Fundamental Rights by the state he can directly move the Supreme Court for their enforcement. The applicable of the Fundamental Rights can be restricted if martial law is in operation in a particular area. 8. Classification Originally, the Constitution classified the Fundamental Rights into seven categories, they are- Right to Equality (Article 14 to 18) 62 The research journal of social sciences October 2018 volume 9 number 10

4 Right to Freedom (Article 19 to 22) Right against Exploitation (Article 23 to 24) Right to Freedom of Religion (Article 25 to 28) Cultural and Educational rights (Article 29 to 30) Right to Property (Article 31) Right to Constitutional Remedies (Article 32) However, the Right to Property of Article 31 of the Constitution of India was deleted from the list of Fundamental Rights by the 44 th Amendment Act, It is made a legal right under the Article 300A in Part XII on the Constitution. So at present, there are Six Fundamental Rights. Article 12 to 35 of the Indian Constitution covers the Six Fundamental Rights of the Citizen of the country. All these rights indicate that all citizens are equally treated by the nation irrespective of caste, sex and creed. The basic Fundamental Rights enumerated in the Part-III of the Constitution are categorized under 7 sections apart from the general segment. The sections are as follows: 8.1: General Rights (Article 12 to 13) Article 12: Definition of Fundamental Rights is given Article 13: Comprises Laws of inconsistent with or in derogation of the Fundamental Rights 8.2: Right to Equality (Article 14 to 18) Article 14: Equality before law and equal protection of law Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth Article 16: Equality of opportunity in matters of public employment Article 17: Abolition of untouchability and prohibition of its practice Article 18: Abolition of titles except military and academic 8.3: Right to Freedom (Article 19 to 22): Article 19:Protection of six rights regarding freedom of: speech and expression, assembly, association, movement, residence and profession. Article 20: Protection in respect of conviction for offences Article 21: Protection of life and personal liberty Article 21A: Right to elementary education Article 22: Protection against arrest and detention in certain cases 8.4: Right against Exploitation (Article 23 to 24): Article 23: Prohibition of traffic in human beings and forced labour Article 24: Prohibition of employment of children in factories, etc 8.5: Right to Freedom of Religion (Article 25 to 28): Article 25: Freedom of conscience and free profession, practice and propagation of religion Article 26: Freedom to manage religious affairs Article 27: Freedom from payment of taxes for promotion of any religion Article 28: Freedom from attending religious instruction or worship in certain educational institutions 63 The research journal of social sciences October 2018 volume 9 number 10

5 8.6: Cultural and Educational Rights (Article 29 to 30): Article 29: Protection of language, script and culture of minorities Article 30: Right of minorities to establish and administer educational institutions Article 31: Compulsory acquisition of property (Repealed) Article 31A: Saving of laws providing for acquisition of estates, etc Article 31B: Validation of Certain Acts and Regulations Article 31C: Saving of laws giving effects to certain directive principles Article 31D: Saving of laws in respect of anti-national activities (Repealed) 8.7: Right to Constitutional Remedies (Article 32): Article 32: Right to move the Supreme Court for the enforcement of Fundamental Rights including the writs of: Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo-warranto Article 32A: Constitutional validity of States laws not to be considered in proceedings under Article 32 (Repealed) Article 33: Power of Parliament to modify the rights conferred by this part in their application to forces, etc Article 34: Restriction on rights conferred by this part while martial law is in force in any area Article 35: Legislation to give effect to the provisions of this part 9. Available of Rights The Fundamental Rights are not available for all. There is some reasonable restriction in the society. In every country, there are two types of persons in the society, that is, Citizens and Foreigners. The Citizens are the permanent resident of a state and they can enjoy all types of Fundamental Rights, on the other hand, Foreigners are the temporary in a state and there is reasonable restrictions all Fundamental Rights are not available for them. While some of the rights are available only to the Citizens, others are available to foreigners and legal persons. They are: 9.1: Fundamental Rights available only to Citizens no to Foreigners Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth Article 16: Equality of opportunity in matters of public employment Article 19:Protection of six rights regarding freedom of: speech and expression, assembly, association, movement, residence and profession. Article 29: Protection of language, script and culture of minorities Article 30: Right of minorities to establish and administer educational institutions 9.2: Fundamental Rights available to Citizens, Foreigners and Legal persons (except enemy aliens) Article 14: Equality before law and equal protection of law Article 20: Protection in respect of conviction for offences Article 21: Protection of life and personal liberty Article 21A: Right to elementary education Article 22: Protection against arrest and detention in certain cases Article 23: Prohibition of traffic in human beings and forced labour Article 24: Prohibition of employment of children in factories, etc Article 25: Freedom of conscience and free profession, practice and propagation of religion 64 The research journal of social sciences October 2018 volume 9 number 10

6 Article 26: Freedom to manage religious affairs Article 27: Freedom from payment of taxes for promotion of any religion Article 28: Freedom from attending religious instruction or worship in certain educational institutions 10. Right to Education (Article 21A) Article 21A was introduced by the 86 th Constitutional Amendment Act of It applied to the entire individual. This amendment is a major milestone in the country s aim to achieve Education for All. Article 21A declares that the State shall provide free and compulsory education to all children. Under this Article the right to primary education or a Fundamental right has been provided for all in the age group of 6-14 years. The State has the obligation to provide free education and parents may be compelled to provide education upto the age of 14 years. In pursuance of Article 21A, the parliament enacted the Right of Children to Free and Compulsory Education (RTE) Act, This act seeks to provide that every child has a right to provided full time elementary education of satisfactory and equitable in a formal school which satisfies certain essential norms and standards. This legislation is anchored in the belief that the values of equality, social justice and democracy and the creation of a just and humane society can achieved only through provision of inclusive elementary education to all. 11. Present Position of Right to Property Originally, the right to property was one of the seven Fundamental Rights under Part-III of the Constitution. It was dealt by Article 19(1)(f) and Article 31. Article 19(1)(f) guaranteed to every citizen the right o acquire, hold and dispose of property. Article 31, on the other hand, guaranteed to every person, whether citizen or non-citizen, right against deprivation of his property. It provided that no person shall be deprived of his property except by authority of law. The state could not acquire the property of any citizen without compensation. The Government enacted several laws to reform the land-ownership and structures. Ultimately the 44 th Amendment Act of 1978, on 20 th June, 1978 the Government omitted the right to property as a Fundamental Right by repealing Article 19(1)(f) and Article 31 from Part-III of the Constitution of India. Instead, the Act inserted a new Article 300A in Part- XII under the heading Right to Property. It provides that no person shall be deprived of his property except by authority of law. Thus, the right to property still remains a legal right or a constitutional right, through no longer a Fundamental right. It is not a part of the basic structure of the Constitution. 12. Rights outside Part III Besides the Fundamental Rights included in Part-III, there are certain other rights contained in other parts of the Constitution. These rights are known as constitutional rights or legal rights or nonfundamental rights. They are: Article 265 in Part-XII: No tax shall be levied or collected except by authority of law Article 300A in Part-XII: No person shall be deprived of his property save by authority of law Article 301 in Part-XIII: Trade, commerce and intercourse throughout the territory of India shall be free Article 326 in Part-XV: The elections to be the Lok Sabha and the State Legislative Assembly shall be on the basis of adult suffrage 65 The research journal of social sciences October 2018 volume 9 number 10

7 Even though the above rights are also equally justiciable, they are different from the Fundamental Rights. In case of violation of a Fundamental Right, the aggrieved person can directly move the Supreme Court for its enforcement under Article 32, which is in itself a Fundamental Right. But, in case of violation of the above rights, the aggrieved person cannot avail this constitutional remedy. He can move the High Court by an ordinary suit or under Article Significance Fundamental Rights are significant rights in the respects of: They constitute the bedrock of democratic system in the country. They provide necessary conditions for the material and moral protection of man. They serve as a formidable bulwark of individual liberty. They facilitate the establishment of rule of law in the country. They protect the interest of the minorities and weaker sections of society. They strengthen the secular fabric of the Indian State. They check the absoluteness of the authority of the government. They lay down the foundation stone of social equality and social justice. They ensure the dignity and respect of individuals. They facilitate the participation of people in the political and administrative process. 14. Journey of Evolution of Right to Privacy The word Privacy derived from the Latin word Privatus which means- separated from others. In other words, a person has the full freedom to live the way he or she likes to live and without the interference of any body. Its origin is linked to the theory of Natural Law of Rights, wherein the Individual is free to live the way he likes to be. However, it should not affect on the rights of others. Basing on the common law principle, the individual has full protection in person and property. The evolution of the right to privacy can be traced to 1820 at the earliest. In 1859, John Stuart Mill 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 in his book On Liberty. The real landmark, however, Samuel D. Warren and Louis Brandeis in their The Right to Privacy article in the Harvard Law Review, in 1890, introduced for the first time, the legal concept of privacy in the American context. Today this Article is considered as the maiden piece in the development of law of privacy. In America, the privacy, this led for the fourth amendment of the constitution recognizing privacy as a fundamental right. The right has also been recognised in international documents such as the Universal Declaration of Human Rights (1948), the European Convention for the Protection of Human Right and Fundamental Freedoms (1950) and the International Covenant on Civil and Political Rights (drafted 1966). Universal Declaration of Human Right (UNHR) was attempt to formulate a right to privacy as a separate fundamental right, distinguished the concept of privacy (or private life) from a private sphere comprising family, home and correspondence. Accordingly, International Covenant on Civil and Political Rights Act is based on it, protects privacy, family, home, and correspondence from arbitrary; or unlawful interference, and recognises that everyone has the right to the protection of the law against such interference. European Convention for the Protection of Human Rights and Fundamental (ECHR) and American Convention on Human Rights (ACHR) prefer the term private life to privacy, while the former also substitutes family life for family. The French texts of the particular Articles of ICCPR and ECHR both use the expression vie priv ee, suggesting that the term privacy and private life are interchangeable. The concept also protects and individual from unlawful attacks on his honor and reputation, and recognise the right to protection of the law against such attacks. 66 The research journal of social sciences October 2018 volume 9 number 10

8 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. Alan Westin defines in his book Privacy and Freedom- (1968) the Right to Privacy as Each individual is continually engaged in a personal adjustment process in which he balance, the desire for privacy with the desire for disclosure, and communication for himself to other in light of the environmental conditions and social norms set by the society in which the lives. As Black s Law Dictionary, Privacy means right to be let alone; the right of a person to be free from unwarranted publicity; and the right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned. 14.1: Evolution of Right to Privacy as a Fundamental Right in India Initially, in the Indian context the Constitution of India has not explicitly defined the right to privacy. However, extending the provisions of Article 21 of the Constitution, the Supreme Court of India enlisted it as a part and parcel of right to life and liberty. According to this Article, every individual whose information is sought by anybody without the legal permission of a person, it violates the right to life, liberty, and freedom of dignity. Accordingly, the Right to Information Act of Section 8 recognised privacy as an important aspect, which prevents information of personal nature of a person. Although not specifically referenced in the Constitution, the right to privacy is considered a penumbral right under the Constitution that which has been declared by the Supreme Court as integral to the fundamental right to life and liberty. The definition of the Right to Privacy is around us, it is a right to privacy to keep a domain around us, those things that are part of us such as our body, home, property, thoughts, feelings, secrets, and identity. The right to privacy gives us the ability to choose which parts of this domain can be accessed by others and to control the extent, abuse of those parts we choose to disclose. In the right to privacy every individual has right to keep their personal information, facts, secrets until and unless they allow somebody to us it. An individual can choose how much information at what extent, at what time, in what circumstances they choose to share that information, they can also choose to limit the use of it. And if some company, individual, or even the government use this information without the proper consent of the individual then they are breaching the right to privacy. In India, the idea of right to privacy as a trump against the power and might of the State to interfere with personal freedom is first expressed in the Constitution of India Bill in The Bill recognised that Every citizen has in his house an inviolable asylum - this idea was inspired by the leaders like Bal Gangadhar Tilak (Swaraj is my birth right) and Mrs. Annie Besant (Home Rule League in India). Under the Chairmanship of Tej Bahadur Sapru the Commonwealth of India Bill, 1925 was drawn up for selfgovernance in India. The Bill was recognised that Everyperson shall have the fundamental right to liberty of person and security of his dwelling and property. The notion of privacy now extends to personal liberty and security for one s property apart from one s home. In 1928, INC constituted a committee under Chairmanship of Motilal Nehru to draw up a plan for Swaraj (self-rule) for India. The committee considered the No person shall be deprived of his liberty nor shall his dwelling or property be entered, sequestered or confiscated save in accordance with the law. In the Constituent Assembly debates on the right to privacy, the various members of the Constituent Assembly sent their views on Fundamental Right guarantees should be incorporated in the Constitution. K.T. Shah on the right to privacy wanted to formulate that Every Citizen of India has and is hereby guaranteed security if his person, papers, property, house or effects against unreasonable searches 67 The research journal of social sciences October 2018 volume 9 number 10

9 or seizure. K.M. Munshi notes that Every Citizen has the right to the inviolability of his home. Everycitizen has the right to the secrecy of his correspondence. Every person has the right to be free from interference in his family relations. Harnam Singh called for this formulation that Every dwelling shall be inviolable. The right to privacy was expected to be attached to a physical space instead of an individual s person. In addition, Dr. B.R Ambedkar gave a more elaborate formulation favouring a collective right over an individual one: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizure, shall not be violate and warrants shall issue, but upon probable cause, supported by oath of affirmation, and particularly describing the place to be searched and the persons or things to be seized. Ambedkar wanted to fit in a strong safeguard against violation of the right to privacy but at the same time allowing for state action where required under strict monitoring by judicial. The Right to Privacy is a Fundamental Right and an intrinsic part of Article 21 that protects life and liberty of the citizens and as a part of the freedoms guaranteed by Part-III of the Constitution of India. A Constitutional nine-judge bench of the Supreme Court in the case of Puttuswamy vs. Union of India has declared Privacy as a Fundamental Right on August 24, The bench s judgment will touch 1.3 billion Indian. It was not meant to decide on the fate of Aadhaar, just on whether privacy of an individual was a part of their inviolable Fundamental Rights. What this means is five-judge bench of the Supreme Court will test the validity of Aadhaar on the touchstone of privacy as a Fundamental Right. While primary focused on the individual s right against the State for violations of their privacy, this landmark judgment will have repercussions across both State and Non-State actors and will likely result in the enactment of a comprehensive law on privacy. On 19 th July, 2017, the CJI Jagdish Singh Khehar- headed nine-judge bench of the Supreme Court started hearing arguments to debate and decide upon two important questions Whether there is any right to privacy guaranteed under our Constitution? If such a right exists, what is the source and what are the contours of such a right as there is no express provision in the Constitution delineating it? Chief Justice Jagdish Singh Khehar borrowed from former U.S. Supreme Court Justice Louis Brandeis and equated privacy with the right to be left alone. Jagdish wrote: The right to be let alone is a part of the right to enjoy life. The right to enjoy life is, in its turn, a part of the fundamental right to life of the individual. The judgment was pronounced in response to a reference made in connection with the legal challenge to India s national identity project Aadhaar during which the Advocate General of India argued that the Indian Constitution does not include within it a Fundamental Right to Privacy. His arguments were based on two cases decided by the Supreme Court of India- MP Sharma v. Satish Chandra decided by an eight judge bench in 1954 and the other, Kharak Singh v. State of Uttar Pradesh, by six judges : MP Sharma vs. Satish Chandra in 1954 In 2012, Justice K.S. Puttaswamy (retired) filed a petition in the Supreme Court challenging the constitutionality of Aadhaar on the grounds that it violates the right to privacy. During the hearings, the central government opposed the classification of privacy as a Fundamental Right. The government s opposition to the right relied on two early decisions that were, MP Sharma vs. Satish Chandra in 1954, and Kharak Singh v. State of Uttar Pradesh in 1962, which had held that privacy was not a Fundamental Right. In MP Sharma, the bench held that the drafts of the Constitution did not intend to subject the power of search and seizure to a Fundamental Right to Privacy. They argued that the Indian Constitution does not include any language similar to the Fourth Amendment of the U.S. Constitution, and therefore, questioned the existence of a protected right to privacy. The Supreme Court of India made 68 The research journal of social sciences October 2018 volume 9 number 10

10 clear that MP Sharma did not decide other questions, such as whether a constitutional right to privacy is protected by other provisions contained in the Fundamental Rights including among them, the right to life and personal liberty under Article : Kharak Singh vs. State of Uttar Pradesh in 1962 In Kharak Singh, the decision invalidated a police Regulation that provided for nightly domiciliary visits, calling them an unauthorized intrusion into a person s home and violation of ordered liberty. The Kharak Singh vs. State of Uttar Pradesh in 1962, question whether the right to privacy could be implied from the existing Fundamental Rights such as Article 19(1)(d), 19(1)(e) and 21, came before the court. Surveillance under Chapter XX of the U.P. Police Regulations constituted an infringement of any of the Fundamental Rights guaranteed by Part III of the Constitution. Regulation 236(b), which permitted surveillance by domiciliary visits at night, was held to be in violation of Article 21. A judgment bench held that: The meanings of the expressions life and personal liberty in Article 21 were considered by this court in Kharak Singh s case. Although the majority found that the Constitution contained no explicit guarantee of a right to privacy, it read the right to personal liberty expansively to include a right to dignity. It held that an unauthorized intrusion into a person s home and the disturbance caused to him thereby, is as it were the violation of a common law right of a man an ultimate essential of ordered liberty, if not of the very concept of civilization : Govind vs. State of Madhya Pradesh in 1975 The Supreme Court of India took a more elaborate appraisal of the right to privacy, in the Govind v. State of Madhya Pradesh in In the case court was evaluating the constitutional validity of Regulations 855 and 856 of the Madhya Pradesh Police Regulations, which provided for police surveillance visits and picketing of suspects. The Supreme Court of India desisted from striking down these invasive provisions holding that: It cannot be said that surveillance by domiciliary visit would always be an unseasonable restriction upon the right of privacy. It is only persons who are suspected to be habitual criminals and those who are determined to lead a criminal life that are subjected to surveillance : R. Rajagopal v. State of Tamil Nadu in 1994 In the R. Rajagopal vs. State of Tamil Nadu case, the point of contention was a legal threat by the State of Tamil Nadu against a newsmagazine seeking to restrain publication of a prisoner s autobiography on the ground that it was defamatory to officials of the State. It is not clear how privacy was an issue in the case but the two judge bench went into detail on the contours of a very broad Fundamental Right to Privacy. The right to privacy of citizens was dealt with by the Supreme Court in the following broad terms: The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a right to be let alone. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for 69 The research journal of social sciences October 2018 volume 9 number 10

11 damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy. The rule aforesaid is subject to the exception that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of record, the right to privacy no longer subsists for comment by press and media among others. We are, however, of the opinion that in the interest of decency [Article 19(2)] an exception must be carved out to this rule, that is, a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicized in press/media : PUCL vs. Union of India in 1996 In the People s Union for Civil Liberties (PUCL) vs. Union of India in 1996, the Supreme Court of India, while laying down the standards for telephone tapping had observed that the right to privacy is an integral part of the Fundamental Rights to life enshrined under Article 21 of the Constitution. The matter reached the Supreme Court of India through a public interest petition filed by the People s Union for Civil Liberties (PUCL). Kuldip Singh, J. s landmark 1996 judgment in PUCL v. Union of India affirmed that telephone tapping infringed the Fundamental right to privacy, and created safeguards against arbitrariness in the exercise of the state s surveillance powers. PUCL was a landmark decisions for two reasons: First, the Court reflected, at some length, upon the existence of a right to privacy in Indian Law. Specifically, it considered the question of whether the right to privacy was a Fundamental Right guaranteed by the Constitution. This was important to the outcome of the case for, if telephone tapping infringed a Fundamental Right, it would have to satisfy a stricter level of judicial review. Second, the Court laid down detailed guidelines for the exercise of the executive s surveillance powers, as a temporary solution to the rampant misuse of these powers that had precipitated the case. The Supreme Court in PUCL v. Union of India held that in the absence of just and fair procedure for regulating the exercise of power under Section 5(2) of the Act, it is not possible to safeguard the Fundamental rights of citizens under Section 19 and 21. Accordingly, the court issued procedural safeguards to be observed before restoring to telephone tapping under Section 5(2) of the Act. The Supreme Court observed that: We have; therefore, no hesitation in holding that right to privacy is a part of the right to life and personal liberty enshrined under Article 21 of the Constitution. Once the facts in a given case constitute a right to privacy; Article 21 is attracted. The said right cannot be curtailed except according to procedure established by law : Maneka Gandhi vs. Union of India In Maneka Gandhi vs. Union of India the Supreme Court of India interpreted the Article 21 in broad sense. They said that both the rights of personal security and personal liberty recognised by what Blackstone termed natural law are embodied in Article 21. And Article 21 is of the widest amplitude and covers a variety of rights which go to constitute the personal liberty of man. Maneka Gandhi case started the wide interpretation of Right to Life, which actually helped Right to Privacy to fall into the 70 The research journal of social sciences October 2018 volume 9 number 10

12 scope of Right to Life. For example, as under the 44 th Amendment, Article 359, even in an emergency, the power to move to the court for enforcement of right shall not be suspended for Article 20 and : Mr. X vs. Hospital Z in 1998 In the case of Mr. X vs. Hospital Z, the Supreme Court of India was required to be discuss the scope of a blood donor s right to privacy of his medical records. The respondent hospital in this case had disclosed, without the permission of the blood donor, the fact that the blood donor was diagnosed as being a HIV patient. Due to this disclosure by the hospital, the lady woman who was to have been married to the blood donor had broken off her engagement and the donor was subject to social ostracism. Discussing the issue of privacy of medical records, the Supreme Court ruled that while medical records are considered to be private, doctors and hospitals could make exceptions in certain cases where the non-disclosure of medical information could endanger the lives of other citizens, in this case the wife. It was decided that when the right to privacy clashes with the other fundamental right, that is, right to privacy none person and right to lead a healthy life of another, then the right which would advance public morality or public interest would alone be enforced : State of Karnataka vs. Krishnappa In State of Karnataka vs. Krishnappa the Supreme Court of India linked the child rape to the right to privacy. Dr. A.S. Anand the Chief Justice of India affirmed 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 honour and offends her self esteem and dignity-it degrades and humiliates experience : Hinsa Virodhak Sangh vs. Mirzapur Moti Kuresh Jamat In the case of Hinsa Virodhak Sangh vs. Mirzapur Moti Kuresh Jamat the Supreme Court of India held that what one eats is one s personal affairs and it is a part of his right to privacy which is included in Article 21 of our Constitution as held by several decisions of this court. Also, a large number of people are non-vegetarian and they cannot be compelled to become vegetarian for a long period. But finally the Supreme Court of India held that the closure of the slaughter houses is only for 9 days and not for a considerable period of time. One should respect the emotions of other. The Supreme Court struck down the decision of High Court and upheld the resolutions of the Municipal Corporation of Ahmedabad to close down the meat shops for 9 days : Ram Jethmalani and Ors vs. Union of India In Ram Jethmalani and Ors vs. Union of India Supreme Court of India held that Right to Privacy is an integral part to life, a cherished constitutional value and it is important that human beings be allowed domains of freedom that are free of public scrutiny unless they act in an unlawful manner. After the observation of these entire cases one can say that Right to Privacy is related to individual s personal liberty, which leads to be recognised as a Right to life. In a landmark judgment on 24 th August, 2017, a nine-judge Supreme Court Constitutional bench declared that the Right to Privacy is a Fundamental Right. It has held that Right to Privacy is a Fundamental Right and it is protected under Article 21 of the Constitution of India. Various judgments of the Supreme Court had recognised privacy as part of Fundamental Right of the Constitution, but there were some other judgments wherein it was 71 The research journal of social sciences October 2018 volume 9 number 10

13 stated that privacy is not a Fundamental Right. This led to massive confusion. So when the Aadhaar case was being agued, this issue came up for consideration which was referred to a nine-judge Constitutional Bench. Justice Chandrachud, writing for himself, Chief Justice Khehar, Justice Agrawal, and J. Nazeer, held that privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. According to him, Privacy also connotes a right to be left alone and it safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. According to Justice Chelameshwar, the right to privacy, which has both positive and negative contents, consists of three facets- repose, sanctuary, and intimate decision. All 9 judges were unanimous also in their conclusion that the right to privacy is not absolute. The opinions require restrictions to be tested using the Article 21 just, fair and reasonable standard. 15. Conclusion The Preamble of Indian Constitution begins with and represents WE THE PEOPLE OF INDIA. Nevertheless, citizen should understand that even in a democracy, no right is absolute and they have to subsume a part of their rights to enable the government to function in an effective manner. Right to Privacy is an inalienable part of the Article 21 of the Constitution. So India s commitment to a world order founded on respect for human rights has been noticed along with the specific Articles of the UDHR and the ICCPR which embody the Right to Privacy. Its breach is an anathema to democracy as the privacy is a sine qua nun for self expression. It is positive content of the Right to Privacy to impose an obligation on the state to take necessary measures to protect the privacy of the individual, any person can be deprived from the enjoyment of the same only according to procedure establish by law. References 1. Parthasarathy, Suhrith. (2017). Privacy, Aadhaar and the Constitution, THE HINDU CENTRES for Politics and Public Policy Rana, PK. (2016). Right to Privacy in Indian Perspective, International Journal of Law, Volume 2; Issue 5; Ahmed, Sabreen. & Sengar, Shubhankit Singh. (2016). Right to Privacy - is UIDAI a violation of an individual s Fundamental Right? The World Journal on Juristic Polity, ISSN: Yadav, Satya Vrat. & Kaul, Vasundhara Anil. (2016). Right to Privacy: Redefining Social Security in India, International Journal of Law and Legal Jurisprudence Studies, Volume 3 Issue 3: ISSN: Sooriyabandara, Vishaka. (2016). Balancing the Conflict between Right to Information and Right to Privacy under Sri Lankan Fundamental Rights Perspective, Sabaragamuwa University Journal, Volume 15 Number 1, Bhatia, Gautam. (2014). State surveillance and the right to privacy in India: A Constitutional Biography, National Law School of India Review, Vol. 26, Basu, Subhaji. (2010). Policy-making, Technology and Privacy in India, The Indian Journal of Law Technology, Volume Reddy, Jaideep. (2017). Right to Privacy: SC s verdict on KS Puttaswamy case is landmark, but raises five interesting law and policy issues, The Firstpost. 9. Mohapatra, Chinmaya Kumar & Nanda, Hiranmaya. (2015). Right to Privacy: Issue and Challenges, Indian Journal of Research, Volume: 4, Issue: 9, ISSN: , The research journal of social sciences October 2018 volume 9 number 10

14 10. Bhandari, Vrinda., Kak, Amba., Parsheera, Smriti. & Rahman, Faiza. (2017). An Analysis of Puttaswamy: The Supreme Court s Privacy Verdict, IndraStra Global, 11, Sastry, T.S.N. (2011). Introduction to Human Rights and Duties, Published by: Dr. Manik Jadhav, Printed at: University of Pune press Laxmikanth, M. (2016). Indian Polity, Published by: McGraw Hill Education (India) Private Limited, Printed at Gopsons, A-2&3, Sector 64, Noida, Uttar Pradesh Johari., J.C. (2007). Indian Political System, Anmol Publications Pvt. Ltd., printed at: Mehra Offset Press, Delhi Ghai, K.K. (2004). Indian Polity, Printed in India at Ajit Printers, Old Maujput, Shahdara, Published by: Mrs. Usha Raj Kumar for Kalyani Publishers, New Delhi Pylee, M.V. (2007). An Introduction to the Constitution of India, Vikas Publishing House Pvt. Ltd., Printed at Gajendra Printing Press, Delhi Basu, Durga Das. (2004). Introduction to the Constitution of India, Publishers: M/s. Wadhwa and Company, Law Publishers, Printed at WIN Offset Printers, New Delhi Chandra, Prakash. Indian Government and Politics, Published by: COSMOS BOOKHIVE (P) LTD. Gurgaon The research journal of social sciences October 2018 volume 9 number 10