CONSTITUTIONAL LAW/PRIVACY LAW

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THE SUBSTANTIVE RIGHT TO PRIVACY: TRACING THE DOCTRINAL SHADOWS OF THE INDIAN CONSTITUTION
by Abhinav Chandrachud*

Cite as : (2006) 3 SCC (Jour) 31

"Some there be that shadows kiss:

Such have but a shadow's bliss."

—William Shakespeare, The Merchant of Venice

Innovation has overwhelmed us. Industry has overcome us. We find ourselves emasculated by latent invasions of our privacy. We find ourselves eviscerated by overt intrusions of our personhood. The media has trespassed upon our sanctity. The world has cast a pervasive and disquieting glance upon our selfhood. "Inviolate personality" is an anachronism.1 Instead, gossip "has become a trade, which is pursued with industry as well as effrontery".2 Intimate moments, stolen on hidden cameras, are published for stealthy gains.3 Carefully guarded secrets are broadcast to an unforgiving society, mired, at present, in a deeply moral conflict within itself. The last century admonished us. It emphatically stated that "what is whispered in the closet shall be proclaimed from the house-tops".4 It has now dawned on us that the axiom of the present century may just be: the reflections of the mind shall be reflected to the world.

The right to privacy must therefore be an evolving right.5 Griswold v. Connecticut6 pronouncement of the United States Supreme Court wherein the right to privacy was recognised as a penumbral extension of substantive fundamental rights embedded in the First, Third, Fourth and Fifth Amendments,7 was incorporated, albeit to a limited extent, into the Indian Constitution in the second privacy case of Gobind v. State of M.P.8 But the Indian Supreme Court did not entirely adhere to the hazy shadowy analogy preferring, rather, to enumerate the right to privacy as one of the distinct rights implicit in the right to life and personal liberty under Article 21 of the Constitution.9 This categorisation, though activist, tends to be an oversimplification. Privacy, as a right, lacks both precise historical antecedents and precise conceptual limits.10 In order to fathom the nature of rights protected under the right to privacy, it is first essential to identify the nature of this elusive right.

Privacy is in its incipient stages in India. This article seeks to knock on the doors of substantive thought by delineating the concept of privacy in the Indian arena. It proposes to identify momentous decisions of the Indian Supreme Court in essaying to define this elusive right in the context of the Indian Constitution. The developments of this right with reference to the law of torts will not be dealt with, as this article is an exposition solely of constitutional law. It also seeks to redefine the essential attributes of privacy in the Indian context, with the use of abstract principles and concrete case-law. The objective is to mould the right to privacy into the structure of the Constitution.

I. Redefining Privacy: An Indian Perspective

A. The abstract definition

Privacy in India has been commonly misconstrued. The notion of informational privacy,11 with one sole exception,12 has been used interchangeably with that of privacy itself. In other words, the doctrine of substantive privacy13 has been almost completely overlooked. What has not been taken into account is that privacy also shields those substantive decisions of individuals in society, which are fundamental to their identity, individuality and existence. This twofold aspect of privacy was delineated by Stevens, J. in Whalen v. Roe14 holding that the individual had an interest in preventing the disclosure of information and an independence in making certain kinds of important decisions.

Gerety15 defines privacy as "an autonomy or control over the intimacies of personal identity". He identifies three broad concepts in the legal definition of privacy-intimacy, identity and autonomy.16 Bostwick17 relies upon a threefold classification of privacy: the privacy of repose, the privacy of sanctuary and the privacy of intimate decision. Repose is "freedom from anything that disturbs or excites" and it "partakes of calm, peace and tranquility".18 Sanctuary implies the prohibition of "other persons from seeing, hearing and knowing".19 The zone of intimate decision requires that "the personal calculus used by an individual to make fundamental decisions must be allowed to operate without the injection of disruptive factors by the State".20

Solove21 adopts a pragmatic approach and identifies necessary and sufficient conditions for the right to privacy. He divides privacy into six comprehensive (though not mutually exclusive) rights: (i) the right to be let alone; (ii) limited access to the self-the ability to shield oneself from others; (iii) secrecy-concealing certain matters from others; (iv) control over personal information; (v) personhood-the protection of one's personality, individuality and dignity; and (vi) intimacy-control over or limiting access to intimate relationships.

Rubenfield22 defines privacy as "the right to make choices and decisions" which forms "the 'kernel' of autonomy". However, going a step further, he introduces the concept of personhood into the doctrine by stating: "some acts, faculties, or qualities are so important to our identity as persons-as human beings-that they must remain inviolable, at least as against the State ... the right to privacy is, then, to use Blackmun, J.'s word, a right to self-definition".23 Thus, "where our identity or self-definition is at stake, the State may not interfere".24

Whatever be the definition of privacy, Tribe25 finds that it finally comes down to "those attributes of an individual which are irreducible in his selfhood". Tribe too emphasises on the notion of personhood. Schnably26 finds that personhood entails "a distinctive conception of private life as a haven from State power" and "our personal lives, particularly our explorations of sexuality, are the most important sites of individual self-realisation". He further asserts that the notion of privacy should not revolve around "how individuals can be shielded from the exercise of State power" but rather on how State power may be invoked to eliminate distorting factors in personal interactions and decision-making.27

The concept of privacy rests on the promise that "a certain private sphere of individual liberty will be kept largely beyond the reach of Government"28 and it embodies the acceptance of the "moral fact that a person belongs to himself and not to others nor to society as a whole".29

Privacy simpliciter is the "right to be let alone",30 a right which Brandeis, J. in his famous dissent called "the most comprehensive of rights and the right most valued by civilised men".31 That one is let alone is the essence of privacy, but the question which arises is: who must leave you alone? The answer is twofold: the State, and those around you. That you have a right to be let alone by those around you is implicit in the law of torts. It has nothing to do with the State, unless, of course, the State enacts a law enabling those around you to interfere with your personal matters. However, when the State is called upon to leave you alone, the right is carved out of the Constitution. Privacy, the constitutional right, is thus created when the State has to take no action but to leave individuals to themselves. At best, it creates an obligation upon the State to ensure that individuals are left to themselves.32 In that case, what is the meaning of "being left alone"? When does the State leave you alone? In what circumstances is the State either permitted or called upon to interfere with that condition of "being alone"?

B. The concrete definition

An attempt at defining privacy is of no use if the levels of abstraction do not translate into concrete specifics. Broadly speaking, privacy law deals with freedom of thought, control over one's body, peace and solitude in one's home, control of information regarding oneself, freedom from surveillance,33 protection from unreasonable search and seizure,34 and protection of reputation.35 Indian jurisprudence has extended the ambit of privacy to the following zones which, though not mutually exclusive, can be analysed as follows:

1. Surveillance

The first privacy case in Indian jurisprudence was that of Kharak Singh v. State of U.P.,36 where the Supreme Court considered the constitutionality of police regulations that permitted the police to keep a close watch on would-be criminals. However, like all unfettered power, the provision was misused. The aggrieved complained that the police would inter alia: (i) enter his house; (ii) knock and shout at his door; (iii) wake him up during the night; (iv) ask him to accompany them to the station; and (v) ask him to report his departure to the local constable. The most inhumane of all regulations under challenge was Regulation 236 which permitted the police to render domiciliary visits at night.

While Regulation 236 was struck down as being unconstitutional, Ayyangar, J. speaking for the majority, observed: (AIR para 20)

"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."37

However, Subba Rao, J. while partly concurring with the majority, stated: (AIR para 31)

"It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty. ... Indeed, nothing is more deleterious to a man's physical happiness and health than a calculated interference with his privacy."38

Thereafter, in Gobind v. State of M.P.39, the aggrieved complained that "his reputation had sunk low in the estimation of his neighbours"40 as a result of similar activity. Mathew, J. after reasoned deliberation, delivered a learned judgment and observed that: (SCC paras 23-24)

"Privacy primarily concerns the individual. It therefore relates to and overlaps with the concept of liberty. The most serious advocate of privacy must confess that there are serious problems of defining the essence and scope of the right. Privacy interest in autonomy must also be placed in the context of other rights and values.

Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child-rearing. This catalogue approach to the question is obviously not as instructive as it does not give an analytical picture of the distinctive characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as a unifying principle underlying the concept has been the assertion that a claimed right must be a fundamental right implicit in the concept of ordered liberty."41 (emphasis supplied)

However, the Court stated that the right to privacy was subject to "restrictions on the basis of compelling State interest".42 Thus, the regulations were upheld since they applied to a limited class of citizens i.e. habitual criminals.

Similarly, in Malak Singh v. State of Punjab43 surveillance was held to be intrusive and an encroachment upon the right to privacy and in Sunil Batra v. Delhi Admn.44 the Supreme Court considered the question of whether two individuals, sentenced to death, were entitled to privacy and human rights. The Court found that though a minimum intrusion of privacy may have been inevitable, the guards were under an obligation to ensure that human rights and privacy standards were observed.

In People's Union for Civil Liberties v. Union of India (hereinafter the first PUCL case)45, the constitutionality of "telephone-tapping" was under consideration. While recognising that conversations on the telephone were of an intimate and confidential character, the Court held that tapping into conversations was unconstitutional unless brought about by a procedure established by law. The Court also found the concept of privacy "too broad and moralistic" for serious judicial consideration.46

2. Search and seizure: The Fourth Amendment

The Fourth Amendment of the US Constitution reads:

"The right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (emphasis supplied)

The US Supreme Court had held unreasonable searches and seizures, without the issuance of a warrant on probable cause, to vitiate the principle of self-incrimination inherent in the Fifth Amendment of the US Constitution.47 A similar argument was presented in M.P. Sharma v. Satish Chandra48 with one sole difference: the petitioners did not challenge unreasonable search and seizure, but challenged the very process of search and seizure as derogatory to the principle of self-incrimination enshrined in Article 20(3) of the Constitution. While striking down this proposition,49 the Supreme Court altogether deprecated the doctrine of the Fourth Amendment privacy by finding that: (SCR pp. 1096-97)

"When the Constitution-makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the (American) Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction. ... Therefore, issue of a search warrant is normally the judicial function of the Magistrate. When such judicial function is interposed between the individual and the officer's authority for search, no circumvention thereby of the fundamental right is to be assumed."50

Fifty years later, the Supreme Court appropriately allowed fragments of the Fourth Amendment privacy to percolate into the boundaries of constitutional protection in District Registrar and Collector v. Canara Bank51 where the right of privacy was explored qua search and seizure. The Andhra Pradesh amendment of the Stamp Act, 1899 was challenged on the grounds that it permitted "any person" to "enter upon any premises", public or private, and "seize and impound" documents.

The Court defined the limits of legitimate privacy intrusion and stated that legislative intrusions could be tested using the doctrine of proportionality, administrative/executive intrusions had to be reasonable, while judicial intrusions were permissible upon the issuance of a judicial warrant on the premise of "sufficient reason" and necessity.52 It admonishingly observed that "under the garb of the power conferred by Section 73 the person authorised may go on a rampage searching house after house" and "any number of documents may be inspected, may be seized and may be removed and at the end the whole exercise may turn out to be an exercise in futility".53 It was stated that: (SCC para 53)

"Unless there is some probable or reasonable cause or reasonable basis or material before the Collector for reaching an opinion that the documents in the possession of the bank tend to secure any duty or to prove or to lead to the discovery of any fraud or omission in relation to any duty, the search or taking notes or extracts therefore, cannot be valid. The above safeguards must necessarily be read into the provision relating to search and inspection and seizure so as to save it from any unconstitutionality."54 (emphasis supplied)

3. Disclosure of intimate details

Privacy cannot be the right to withhold all possible information regarding one's self from all possible institutions at all possible times. Such a construction would render nugatory the very concept of societal coexistence. Everyday, we are required to disclose some or the other information about ourselves, be it in a tax return (where income is disclosed), in a university application (where marks are disclosed) in an insurance application (where medical information is disclosed), to a doctor (where intimate secrets are disclosed), etc. However, does the mere fact that I have parted with my income information in a tax return permit the Income Tax Department to disclose my income to the whole world? Or does the fact that I have given medical information to insurance companies permit them to relay the information to pharmaceutical companies?

The answer must necessarily be in the negative. Privacy is therefore not merely the right to control what kind of information is disclosed, but also the right to choose, control and limit to whom the disclosure is made. The fact of a disclosure to an institution does not indicate the acquiescence of its disclosure to the general public.

In addition, all individuals retain control over that aspect of their lives which is intimate and personal by its very nature, and over which no member of the public can have a legitimate claim. In contrast to the information given above (an income tax return is mandatory) this information can only be disclosed voluntarily.

In Neera Mathur v. LIC55 the Life Insurance Corporation of India required married female candidates to disclose inter alia, in a form,56 information regarding menstrual cycles, conceptions and pregnancies and abortions. The Supreme Court, without mentioning the right of privacy, found: (SCC para 13)

"The particulars to be furnished under columns (iii) to (viii) in the declaration are indeed embarrassing if not humiliating. The modesty and self-respect may perhaps preclude the disclosure of such personal problems like whether her menstrual period is regular or painless, the number of conceptions taken place; how many have gone full term, etc. The Corporation would do well to delete such columns in the declaration."57

Similarly, forms regarding the disclosure of religion, caste, community should not be made mandatory for admission into educational institutions, government posts (except where such disclosure is necessary for an affirmative action), etc., for these are personal matters, the compulsory disclosure of which tends to be offensive.

However, in Sharda v. Dharmpal58, the Supreme Court considered the question of whether a party to a divorce proceeding could be compelled to take a medical examination. While acknowledging the importance of privacy and confidentiality, the Court found that the right to privacy was not absolute and a party could be asked to take a medical examination since in a matrimonial proceeding: (SCC para 76)

"If the respondent avoids such medical examination on the ground that it violates his/her right to privacy or for that matter right to personal liberty as enshrined under Article 21 of the Constitution, then it may in most of such cases become impossible to arrive at a conclusion."59

This decision demonstrates that like all other fundamental rights, the right to privacy too is subject to reasonable restrictions.

4. The all-pervasive "public eye"

In R. Rajagopal v. State of T.N.60 the Supreme Court considered the freedom of the press vis-…-vis the right to privacy of citizens. "Auto" Shankar, convicted of six murders and sentenced to death, had written his biography which he intended to get published in a Tamil weekly magazine entitled Nakheeran. In 300 pages thereof, he set out the close nexus between himself and several IAS, IPS and other officers, some of whom were his partners in crime. The Court developed a new test, modelled on the decisions of the US Supreme Court in New York Times v. Sullivan61 and Time Inc v. Hill62 However, with regard to privacy, the Court observed: (SCC para 26)

"26. (1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a 'right to be let alone'. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, 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 damages. The position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy."63 (emphasis supplied)

The Court thus echoed its findings in Gobind v. State of M.P.,64 with a sole difference: the right to "family, marriage, procreation, motherhood, childbearing and education among other matters"65 was considered exclusively to be a publishing or informational right. None can publish anything regarding these matters. As long as information is not disclosed regarding these matters, no harm was said to be done. However, does that then mean that the individual has no right of independence of action regarding these matters? Can the State interfere with the right of individuals in their personal matters as long as no information is disclosed? Does it mean, for example, that the State can interfere with my decision as to what higher education I should pursue (whether I study law, medicine or business), so long as that information is not published?

Fortunately, the Supreme Court qualified its observations by stating that:

"the principles abovementioned are only the broad principles. They are neither exhaustive nor all-comprehending; indeed no such enunciation is possible or advisable. As rightly pointed out by Mathew, J. this right has to go through a case-by-case development."66 (emphasis supplied)

Nonetheless, endeavouring to enunciate the "broad principles" of privacy, this decision tends to have the effect of excluding the principle of substantive privacy from the ambit of constitutional protection.

In People's Union for Civil Liberties v. Union of India (hereinafter the second PUCL case)67 the validity of the Representation of the People (Amendment) Ordinance, 2002 was under challenge. Shah, J. brought forth the decision with a poignant question: (SCC p. 418, para 2)

"2. There was an era when a powerful or a rich or a strong or a dacoit aged more than 60 years married a beautiful young girl despite her resistance. Except to weep, she had no choice of selecting her mate. To a large extent, such situation does not prevail today. Now, young persons are selecting mates of their choice after verifying full details thereof. Should we not have such a situation in selecting a candidate contesting elections? In a vibrant democracy-is it not required that a little voter should know the biodata of his/her would-be rulers, law-makers or destiny-makers of the nation?"

The conflict between the right to privacy of the official in the public eye and the right of the citizen to information was said to end in favour of the citizen, thereby serving the larger public interest.68

In People's Union for Civil Liberties v. Union of India69 (hereinafter the third PUCL case) the constitutionality of various provisions of the Prevention of Terrorism Act, 2002, were challenged. Once again the Court found that: (SCC para 37)

"The criminal justice system cannot function without the cooperation of people. Rather it is the duty of everybody to assist the State in the detection of the crime and bringing criminals to justice. Withholding such information cannot be traced to right to privacy, which itself is not an absolute right. Right to privacy is subservient to that of security of State."70 (emphasis supplied)

Finally, in People's Union for Civil Liberties v. Union of India71 (hereinafter the fourth PUCL case) the appellants sought the disclosure of information relating to safety violations in nuclear installations and power plants. Privacy had hardly a part to play in the decision, but the Court recognised it as one of the grounds on which the Government could withhold information.72

The cases that fall under this segment have further broadened the ambit of the reasonable restrictions which apply to the right to privacy. While the "larger public interest" and the "security of the State" were considered to be restrictions on privacy, the right itself was interpreted in its informational context. The substantive interpretation of privacy is yet to make a formal appearance in Indian legal pronouncement.

5. Marriage

Marriage is an institution the continuance of which ensures the perpetuation of society. It has been equated with the very concept of existence in Indian jurisprudence.73 The institution revolves around certain fundamental decisions concerning when to marry,74 whom to marry75 and whether to marry at all.76 It facilitates (but does not enforce) the exercise of procreation, and the questions of whether to have children at all,77 and how many children to have78 are, in themselves, fundamental choices.

Once the marriage bond is formed certain fundamental choices and fundamental decisions are required to be made about the new units of the family i.e. the children, when they cannot be said to make decisions for themselves. Fundamental choices regarding children may include the education of children i.e. which school the child should join, which courses the child should take, etc.,79 the right to bring them up in their own manner, with the inculcation of desired values, etc. Of particularly growing interest is the right to privacy of the child, especially since the Constitution contains no "adults only" caveat.80 Thus, the institution of marriage is virtually the progenitor of the notion of substantive privacy.

The institution of marriage is based upon mutual consent and for such consent to exist it is essential that both spouses are fully aware of each other's medical conditions, which alone can legitimately affect the fundamental decisions mentioned above.81 This condition may be referred to as "informed mutual consent". It follows that if any medical condition is withheld from a spouse, the consent was obtained by fraud, and the marriage, in the least, is voidable.

These fundamental decisions associated with marriage are indefeasible elements of inviolable selfhood, and cannot be interfered with except for the reasonable restrictions appended below.82 The right to marriage is therefore a part of the fundamental right to privacy, subject, like any other fundamental right, to reasonable restrictions.

In Mr 'X' v. Hospital 'Z'83 (hereinafter the first marriage case), on the donation of blood, an individual, Mr 'X', was found to be HIV positive. This information was relayed by the hospital to his spouse, Ms 'Y', as a result of which the marriage was called off. The Supreme Court considered the right of privacy to be subordinated inter alia to the protection of the health and morals of others.84 Without being fully aware of the medical condition of Mr 'X', Ms 'Y' would not be able to fully exercise her fundamental decision of marriage. There was a danger that Ms 'Y' too would contract the disease. That is not in the least to say that individuals with diseases cannot marry, but it implies that the marriage, like any other, must be based upon informed mutual consent. Thus, the Supreme Court found that: (SCC para 38)

"If that person is suffering from any communicable venereal disease or is impotent so that marriage would be a complete failure or that his wife would seek divorce from him on that ground, that person is under a moral, as also legal duty, to inform the woman with whom the marriage is proposed that he was not physically healthy and that he was suffering from a disease which was likely to be communicated to her."85

(emphasis supplied)

However, the Supreme Court went on to subordinate the right to marry of individuals with communicable venereal diseases, even when such marriage was based upon informed mutual consent. It thus stated: (SCC para 38)

"So long as the person is not cured of the communicable venereal disease or impotency, the right to marry cannot be enforced through a court of law and shall be treated to be a 'suspended right'."86

(emphasis supplied)

The effect of the right to marriage being held a "suspended right" did not mean that individuals with communicable venereal diseases could not marry, but worse still, it meant that if the State enacted a law preventing them from marrying, it could not be subject to challenge under the fundamental right. It must also be noted that if at all a fundamental right is to be suspended, the suspension must be warranted by the Constitution and cannot be brought about by external considerations.

This decision gravely affected the right to substantive privacy, affecting the right of individuals to make fundamental decisions associated with marriage. The pronouncement therefore came under review in Mr 'X' v. Hospital 'Z'87 (hereinafter the second marriage case), where the Court held that the question of whether individuals with communicable venereal diseases could marry did not arise for consideration, and the prior observations of the Supreme Court relating to the suspended right of marriage were struck down to that effect.

II. Reconstructing Privacy: The substantive US perspective

"Warning: Pregnancy is dangerous to your constitutional rights. You will lose the rights to liberty, to equality and to privacy."88

The US Supreme Court has found the rights of marriage, procreation, contraception, family relationships, child-rearing and education89 to be indefeasible fragments of the substantive right to privacy. The fundamental choice of whether or not to beget a child forms the crux of this cluster of constitutionally protected decisions as "decisions whether to accomplish or to prevent conception are amongst the most private and sensitive".90 The substantive right to privacy has been described as a freedom in making certain kinds of intimate decisions.91 Protection has not only been extended to certain kinds of decisions but also to certain kinds of places.92

The turning point came in Griswold v. Connecticut93 where the US Supreme Court considered the vires of a statute prohibiting the use of contraceptives by married couples. Douglas, J. in his momentous pronouncement, put forth the following proposition:

"Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship."94

In Eisenstadt v. Baird95 a similar provision affecting unmarried couples was rendered unconstitutional albeit under the equal protection clause, as the evil would be identical and the under-inclusion invidious. The Court expounded, in its equally renowned pronouncement, upon the concept of privacy thus:

"If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."96 (emphasis in original)

In Roe v. Wade97 the US Supreme Court considered the constitutionality of a statute criminalising abortion. The right to privacy was considered to be broad enough to encompass a woman's right to terminate her pregnancy owing to the intense emotional, mental, psychological and physical strain which it entails.98 In a controversial decision, a similar provision was upheld in Webster v. Reproductive Health Services.99 However, the original position was reaffirmed in Planned Parenthood v. Casey100 where the Court elaborated the consequences of abortion:

"Abortion is a unique act. It is an act fraught with consequences for others; for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedure; for the spouse, family and society ... The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society."101

Similarly, Ridder & Woll find that:

"When we talk about women's rights, we can get all the rights in the world-the right to vote, the right to go to school-and none of them means a doggone thing if we don't own the flesh we stand in, if we can't control what happens to us, if the whole course of our lives can be changed by somebody else that can get us pregnant by accident, or by deceit, or by force."102

In Loving v. Virginia103 the US Supreme Court struck down a law which prevented interracial marriages. However, the substantive right to privacy in the context of marriage suffered a substantial setback in Bowers v. Hardwick104 where the US Supreme Court denied privacy protection to homosexual activity. The decision was reversed in 2003, in Lawrence v. Texas105 where Kennedy, J. found homosexuals to have the same rights as heterosexuals, beginning, in his eloquent judgment, with:

"Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct."106

In Skinner v. Oklahoma107 the US Supreme Court struck down a statute which called for the sterilisation of "habitual criminals", thus ensuring their inherent right of procreation, while in Stanley v. Georgia108 the possession of obscene material in a man's house was condoned for the reason:

"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. Our whole constitutional heritage rebels at the thought of giving Government the power to control men's minds."109

III. Conclusion

Liberty is not a limited nor a quantifiable right. It is visible in the entire gamut of the legal spectrum. The import of the enumeration of privacy as a part of Article 21 of the Constitution is thus far greater than it seems. It embraces at the very minimum, the freedom of conscience, the right to freedom and the right to freedom of religion. This line of thought can be substantiated on the touchstone of the Indian Constitution. The early decisions of the Supreme Court considered fundamental rights to be fixed and watertight compartments. However, an activist court declared that "their waters must mix to constitute that grand flow of impartial and unimpeded justice".110 The right to life was considered not to be the embodiment of a mere animal existence, but the guarantee of a full and meaningful life.111 Such a life must necessarily embrace all other fundamental rights. For can it be said that one enjoys a meaningful existence without equality or without the freedom of conscience? Privacy therefore lifts its countenance to all rights which fall within the shadows of liberty.

But in a Constitution with enumerated rights, where the right to freedom under Article 19, the right to conscience under Article 25 and the right to life and personal liberty under Article 21, though not watertight compartments, nonetheless manifest themselves in different provisions for the protection of different freedoms, the scope of the right to privacy too must be broadened and defined in the context of the Indian Constitution, in order to avoid narrow constructions chiselled out of liberal ones.

The constitutional demarcation of privacy cannot be too broad either. Gerety admonishes that privacy has "a protean capacity to be all things to lawyers, and, as often defined and defended, it lacks readily apparent limitations of its own" and that "a legal concept will do us little good if it expands like a gas to fill up the available space."112 It therefore becomes essential, at the outset, to distinguish between the concept of privacy and the concepts of liberty, conscience and freedom.

If the Government interferes with my right to speak to an audience in an open maidan, can it be said that my right to privacy has been infringed? The answer is in the negative. In such cases, my right to the freedom of speech is interfered with. However, if the Government interferes with my right to speak to my brother in the confines of my home, can I say that my right to privacy has been intruded upon? The answer must necessarily be in the affirmative. The right to privacy thus emphasises upon the place in which the act occurs. It was this principle that prompted Douglas, J. to enunciate the repulsive notion of invading "marital bedrooms" for telltale signs of crime.113

However, if I go to a bazaar and speak to my father, and the Government prevents me from doing so, is my right to privacy infringed, in spite of the fact that the communication was made in an open area? The answer once more is in the affirmative. It thus appears that the right to privacy is hinged not only upon the place, but more specifically, upon an arena which by its very nature is secluded from access to the public. The nature of the act or the communication must be such as is inherently personal and private. Extending privacy protection to the spheres of marriage, procreation, contraception, family relationships, child-rearing and education is thus justified.

Thus, in Katz v. US114 the accused revealed information incriminating himself, in a telephone conversation conducted from a public phone booth. The US Supreme Court considered eavesdropping into a conversation, in spite of the fact that it was conducted in a public phone booth, to constitute a violation of the privacy of the accused.

Thus, the mere fact that one discloses financial information on the world wide web does not mean that others can tap into that information, and if they do so, it amounts to an infringement of one's privacy, because the channel of communication is restricted to oneself and the seller.

A. The equal freedom of conscience

The substantive right to privacy need not be read into the Indian Constitution. It already forms a deeply embedded facet of it. Article 25 equally assures to all persons the freedom of conscience. This historic freedom, though enumerated under the "right to religion" in the Constitution, cannot be truncated to safeguard exclusively religious rights. The right to worship God according to the dictates of one's conscience is but an aspect of its entirety. "Conscience" is not the sole concomitant of faith, but the repository of humanity. It is the quintessence of what makes us human. Simply put, it is the ability of every human being to make moral decisions, and to distinguish between the right and the wrong.115

The US Constitution has recognised two aspects of the freedom of conscience: religion and speech.116 Where the substantive right to privacy gives to every individual a degree of independence in making certain kinds of decisions following the dictates of his own conscience, the freedom of conscience becomes an important repository of the right to privacy, particularly when the freedom is enumerated in the Constitution.

Similarly, the right to freely profess, practice and propagate the religion of one's choice, perhaps one of the most personal of all fundamental human choices, without the unwarranted intrusion of the State, is a substantial element of the right to privacy. Thus, in Bijoe Emmanuel v. State of Kerala,117 Chinnappa Reddy, J. considered the right of Jehovah's witnesses to abstain from singing the national anthem due to their religious beliefs. The Court found (SCC para 1) that "these matters of conscience, which though better left alone, are sensitive and emotionally evocative" (emphasis supplied).118 The expulsion of children on the ground that they respectfully refused to sing the national anthem was considered to violate their constitutional guarantee to the freedom of conscience.

B. The right to freedom

Article 19 of the Constitution gives to every citizen the right to freedom from unwarranted governmental intrusion. It bestows upon the citizen, the right to be let alone by the State. It elucidates, under the category of "reasonable restrictions", the principle that this right is not absolute, and enumerates the exceptions to which it is subject in the larger and more compelling public interest.

Freedom of thought is ensconced in the freedom of speech and expression. This enumerated freedom is the constitutional manifestation of the "freedom to think as you will and to speak as you think".119 Similarly, the freedom to assemble peacefully and without arms, to form associations and unions, to move freely throughout the territory of India and to practice any profession, or to carry out any occupation, trade or business are all manifestations of the right to be let alone by the Government.

Thus, privacy is that sphere of the life of an individual into which the Government cannot interfere. It may at times be a pure right i.e. the right literally to be left alone in the confines of one's house, so long as no unlawful activity is not carried out. It may also be the right to an unhindered exercise of some or the other constitutional right, so long as the right is exercised in a private or personal arena. It is a protection of the basic inviolable nature of the human personality.

In the Indian context, it embodies a freedom from unwarranted, arbitrary and unnecessary surveillance, search and seizure. It signifies the power to decide what kind of personal information may be disclosed, and the choice of whom the disclosure may be made to. It is a safeguard of the exercise of choice in matters fundamental to our existence. It is not merely an informational right, but a truly substantive right.

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* IIIrd year student of the Government Law College, Mumbai. He can be contacted at abhinav.chandrachud@gmail.com. The author would like to thank his parents for their support and encouragement. Return to Text

1. The principle of "inviolate personality" was introduced to the field of legal jurisprudence by what is almost universally considered to be the "pioneering work" in the law of privacy: Samuel D. Warren and Louis D. Brandeis, "The Right To Privacy", (1890) 4 HARV. L. REV. 193, 205 (hereinafter Warren & Brandeis). But see Note, "The Right to Privacy in Nineteenth Century America", (1981) 94 HARV. L. REV. 1892. Return to Text
2. Warren & Brandeis, ibid., at 196 (stating that 'instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the house-tops" '). See also Gobind v. State of M.P., (1975) 2 SCC 148, 156 Mathew, J. adopting a futuristic approach in his pronouncement that: (SCC para 23) "In the application of the Constitution our contemplation cannot only be of what has been but what may be. Time works changes and brings into existence new conditions. Subtler and far-reaching means of invading privacy will make it possible to be heard in the street what is whispered in the closet." However, gossip may be tolerated, notwithstanding the fact that it contains the most intimate and humiliating truths or mistruths about us, so long as it remains limited in scope, as "memories are short and curiosity is inconstant" and what is needed is an "immunity from institutionalised gossip". See Tom Gerety, "Redefining Privacy", (1977) 12 HARV. C.R.-C.L. L. REV. 233, 284-91 (hereinafter Gerety). Return to Text
3. See generally Devashish Bharuka, "Piercing the Privacy Veil: A Renewed Threat", (2003) 1 SCC J-23; Madhavi Divan, "The Right to Privacy in the Age of Information and Communications", (2002) 4 SCC J-12; B.D. Agarwala, "Right to Privacy: A Case-By-Case Development", (1996) 3 SCC J-9. Return to Text
4. Supra fn 2 Return to Text
5. See Gary L. Bostwick, "A Taxonomy of Privacy: Repose, Sanctuary and Intimate Decision", (1976) 64 CAL. L. REV. 1446, 1483 (hereinafter Bostwick). Return to Text
6. 381 US 479 (1965). The US Supreme Court invalidated a statute which prohibited the sale of contraceptives to married couples. See generally Bostwick, supra fn 5 at 1466. The author argues that "the zone of intimate decision is an area within which the personal calculus used by an individual to make fundamental decisions must be allowed to operate without the injection of disruptive factors by the State". Return to Text
7. Laurence H. Tribe, American Constitutional Law, (1st Edn., 1978), 893 (hereinafter Tribe). Return to Text
8. (1975) 2 SCC 148, 157 Return to Text
9. See Unni Krishnan, J.P. v. State of A.P., (1993) 1 SCC 645, 669 referring to Gobind v. State of M.P., (1975) 2 SCC 148, and Griswold v. Connecticut, 381 US 479 (1965). Return to Text
10. Gerety, supra fn 2 at 241. Return to Text
11. See Gary R. Clouse, "The Constitutional Right to Withhold Private Information", (1982) 77 NW. U. L. REV. 536 (proposing a comprehensive framework for the right to informational privacy); Francis S. Chlapowski, "The Constitutional Protection of Informational Privacy", (1991) 71 B.U. L. REV. 133 (analysing information, personhood and privacy in the context of substantive due process); Richard C. Turkington, "Legacy of the Warren and Brandeis Article: The Emerging Unencumbered Constitutional Right to Informational Privacy", (1990) 10 N. ILL. U. L. REV. 479 (outlining the developments in informational privacy since the Warren & Brandeis article). Return to Text
12. See infra I.B.5 Marriage. Return to Text
13. The doctrine of substantive privacy is of comparatively recent origin. See Jed Rubenfield, "The Right to Privacy", (1989) 102 HARV. L. REV. 737, 740 (hereinafter Rubenfield). Return to Text
14. 429 US 589, 599 (1977). Tribe, supra fn 7 at 886, considered this definition to be the US Supreme Court's "most comprehensive attempt" to define the right to privacy. In this case, the Court considered whether a New York information collection scheme violated the right to privacy. Return to Text
15. Gerety, supra fn 2 at 236. Return to Text
16. Ibid., at 281 Return to Text
17. Bostwick, supra fn 5 at 1448. Return to Text
18. Ibid., at 1451 Return to Text
19. Ibid., at 1456 Return to Text
20. Ibid., at 1466 Return to Text
21. Daniel J. Solove, "Conceptualizing Privacy", (2002) 90 CAL. L. REV. 1087, 1088 (hereinafter Solove). Return to Text
22. Rubenfield, supra fn 13 at 751. Return to Text
23. Ibid., at 753 Return to Text
24. Rubenfield, supra fn 13 at 754. However, this tends to complicate matters since "virtually every action a person takes could arguably be said to be an element of his self-definition". Return to Text
25. Tribe, supra fn 7 at 889. Return to Text
26. Stephen J. Schnably, "Beyond Griswold: Foucauldian and Republican Approaches to Privacy", (1991) 23 CONN. L. REV. 861, 861-62 (hereinafter Schnably). Return to Text
27. Ibid., at 870 Return to Text
28. Thornburgh v. American College of Obstetricians & Gynecologists, 476 US 747, 772 (1986). Return to Text
29. Ibid., at 777 Return to Text
30. The phrase was coined by Thomas M. Cooley in his treatise, The Law of Torts (2nd Edn., 1888). Return to Text
31. Olmstead v. United States, 277 US 438 (1928) (concerning the illegal possession of liquor). See also Tribe, supra fn 7 at 894. However, it has been emphasised that we must "turn from absolute propositions and dichotomies" and examine each intrusion in its social context, on a case-by-case basis. Return to Text
32. Thus, Solove argues that privacy is both a negative and a positive right. It imposes both a negative obligation upon the State to let alone the individuals of a society, and a positive obligation to protect individuals "via property rights, tort law, criminal law and other legal devices". See Solove, supra fn 21 at 1120. Return to Text
33. The early Indian privacy cases dealt exclusively with police surveillance of habitual criminals. See e.g. Kharak Singh v. State of U.P., AIR 1963 SC 1295 (challenging Chapter XX of the U.P. Police Regulations which placed possible criminals under surveillance); Gobind v. State of M.P., (1975) 2 SCC 148 (challenging the validity of Regulations 855 and 856 of the M.P. Police Regulations, which permitted the police to keep an uncomfortable surveillance on individuals suspected of perpetrating crime). Return to Text
34. The Fourth Amendment of the US Constitution provides a safeguard from unreasonable search and seizure, and no search can be carried out without a warrant issued on probable cause. The Supreme Court has not allowed Fourth Amendment developments to percolate into the Indian Constitution. See M.P. Sharma v. Satish Chandra, AIR 1954 SC 300 (rejecting the premise that search and seizure violates the principle of self-incrimination embedded in Article 20(3) of the Constitution). But see District Registrar and Collector v. Canara Bank, (2005) 1 SCC 496 (finding the Andhra Pradesh Amendment to Section 73 of the Stamp Act, 1899, to be unconstitutional since it permitted search and seizure on private premises). See infra I.B.2. Search and Seizure: The Fourth Amendment. Return to Text
35. Solove, supra fn 21 at 1092. Return to Text
36. AIR 1963 SC 1295 Return to Text
37. Ibid., at 1303 Return to Text
38. Ibid., at 1306 Return to Text
39. (1975) 2 SCC 148 Return to Text
40. Ibid., at 150 Return to Text
41. Ibid., at 156 Return to Text
42. Ibid., at 157 Return to Text
43. (1981) 1 SCC 420 Return to Text
44. (1978) 4 SCC 494. For more discussion on the topic, See Richard Gruner, "Government Monitoring of International Electronic Communications: National Security Agency Watch List Surveillance and the Fourth Amendment", (1978) 51 S. CAL. L. REV. 429; Mark Jonathon Blitz, "Video Surveillance and the Constitution of Public Space: Fitting the Fourth Amendment to a World that Tracks Image and Identity", (2004) 82 TEX. L. REV. 1349. Return to Text
45. (1997) 1 SCC 301. It must be noted that surveillance does not merely refer to physical surveillance. It has been defined as a "police investigative technique involving visual or electronic observation or listening directed at a person or place". See Black's Law Dictionary, (5th Edn., 1979) p. 1296. It therefore follows that "telephone-tapping" is a form of surveillance. See also V.R. Krishna Iyer, Freedom of Information, (1990), p. 129. Return to Text
46. Ibid., at 311. See also R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 471 (stating that evidence obtained by telephone-tapping could be used in a court of law). Return to Text
47. "Nor shall (any person) be compelled in any criminal case to be a witness against himself...." (sic). See generally Boyd v. United States, 116 US 616 (1886) (considering the seizure of 35 cases of plate glass by the Collector); Weeks v. United States, 232 US 383 (1914) (considering the seizure of papers by the police, which showed the accused to have sent lottery tickets through the mail); Olmstead v. United States, 277 US 438 (1928) (Brandeis, J. dissenting that it would be a lesser evil for criminals to go free than for the Government to "play an ignoble part" by tapping phone conversations); Katz v. United States, 389 US 347 (1967) (finding that tapping into a telephone conversation would amount to a search and seizure and all the Fourth Amendment safeguards would apply); Terry v. Ohio, 392 US 1 (1968) (considering a confrontation on the street between a policeman and citizens to amount to a search and seizure); Stanley v. Georgia, 394 US 557 (1969) (finding that the State had no business to tell a man what books to read in the privacy of his home). However, a particular author finds these developments to be "initially plausible but ultimately misguided": Akhil Reed Amar, "Fourth Amendment First Principles", (1994) 107 HARV. L. REV. 757. See also Carol S. Steiker, "Second Thoughts About First Principles", (1994) 107 HARV. L. REV. 820 (justifying the principles of the Fourth Amendment on the grounds that "individual liberties entail social costs"). Return to Text
48. 1954 SCR 1077 : AIR 1954 SC 300. See also R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 471, supra fn 46. Return to Text
49. Ibid., AIR at 304-06. The Supreme Court considered the decision of the US Supreme Court in Boyd v. United States, 116 US 616 (1886), and found that (SCR p. 1091): "what that decision really established was that the obtaining of incriminating evidence by illegal search and seizure is tantamount to the violation of the Fifth Amendment". Return to Text
50. Supra fn 48, AIR at 306. Return to Text
51. (2005) 1 SCC 496. See also ITO v. Seth Bros., (1969) 2 SCC 324 (dealing with a similar question regarding Section 132 of the Income Tax Act, 1961). Return to Text
52. Ibid., at 515 Return to Text
53. Ibid., at 525 Return to Text
54. Ibid., at 523 Return to Text
55. (1992) 1 SCC 286 Return to Text
56. Ibid., at 288. (a) Are you married-Yes (b) If so, please state: (i) Your husband's name in full and occupation; (ii) State the number of children, if any, and their present ages; (iii) Have the menstrual periods always been regular and painless and are they so now? (iv) How many conceptions have taken place? How many have gone full term? (v) State the date of last menstruation; (vi) Are you pregnant now? (vii) State the date of last delivery; (viii) Have you had any abortion or miscarriage? Return to Text
57. Ibid., at 289 Return to Text
58. (2003) 4 SCC 493 Return to Text
59. Ibid., at 523 Return to Text
60. (1994) 6 SCC 632 Return to Text
61. 376 US 255 (1964) (permitting the criticism of official conduct). Return to Text
62. 385 US 374 (1967) (finding no fault to lie as long as the statement was not made with actual malice, with knowledge that it was false, or with reckless disregard of whether it was false or not). Return to Text
63. (1994) 6 SCC 632, 649-50. Return to Text
64. (1975) 2 SCC 148, (finding that "Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child-rearing"). See supra I.B.1. Surveillance. Return to Text
65. Incidentally, the US Supreme Court has defined the right as that of marriage, procreation, contraception (as opposed to "motherhood"), family relationships, child "rearing" as opposed to child "bearing" and education. Return to Text
66. (1994) 6 SCC 632, 650 Return to Text
67. (2003) 4 SCC 399. For a discussion on the first PUCL case see supra I.B.1. Surveillance. Return to Text
68. Ibid., at 471 Return to Text
69. (2004) 9 SCC 580 Return to Text
70. Ibid., at 603 Return to Text
71. (2004) 2 SCC 476 Return to Text
72. Ibid., at 479 Return to Text
73. Kesavananda Bharati v. Union of India, (1973) 4 SCC 225, 873 (Mathew, J.). For definitions of marriage by the US Supreme Court, see Skinner v. Oklahoma, 316 US 535, 541 (1942); Griswold v. Connecticut, 381 US 479, 486 (1965); Loving v. Virginia, 388 US 1, 12 (1967). Return to Text
74. This decision is subject to a minimum prescription imposed by the State. Return to Text
75. The State can enumerate prohibited relations, in order to prevent persons of the same family from marrying one another. The decision cannot however be made on the consideration of dowry. Return to Text
76. The State can impose a restriction on the number of persons one can marry, depending upon the collective conscience of a society. Return to Text
77. This question cannot be based upon any considerations of the sex of the child, particularly when the child in the womb is a female, in order to prevent manifestations of female infanticide. Return to Text
78. The State can impose restrictions on the maximum number of children one can have depending upon the population policy. Return to Text
79. This decision should not be confused with whether to educate the child at all, which is not in the hands of the parents, but rather, in the hands of the State as parens patriae. This right is also subject to child labour laws. Return to Text
80. Susan P. Stuart, "Fun with Dick and Jane and Lawrence: A Primer on Education Privacy as Constitutional Liberty", (2004) MARQ. L. REV. 563, 565. Return to Text
81. While appearance, habits, income, personality, etc. may all be factors which determine consent, medical ailments (e.g. whether a person is a lunatic, etc.) can fundamentally affect this decision. The Hindu Marriage Act, 1955 states that when a person is unable to consent to marriage, owing to lunacy, etc., no marriage can take place. Return to Text
82. Supra fn 76-81. Return to Text
83. (1998) 8 SCC 296 Return to Text
84. Ibid., at 306 Return to Text
85. Ibid., at 308 Return to Text
86. Ibid., at 308 Return to Text
87. (2003) 1 SCC 500 Return to Text
88. Stephanie Ridder & Lisa Woll, "Transforming the Grounds: Autonomy and Reproductive Freedom", (1989) 2 YALE J.L. & FEMINISM 75, 77 (advocating this admonition to accompany cigarettes, bars and drugs) (hereinafter Ridder & Woll). Return to Text
89. See Meyer v. Nebraska, 262 US 390 (1923); Pierce v. Society of Sisters, 268 US 510 (1925); Prince v. Massachusetts, 321 US 158 (1944). Return to Text
90. Carey v. Population Services International, 431 US 678, 685 (1977). See also Washington v. Glucksberg, 521 US 702 (1997) (dealing with the question of autonomy and suicide). Return to Text
91. See supra fn 14. Return to Text
92. Bowers v. Hardwick, 478 US 186, 204 (1986) (Blackmun, J. dissenting). Return to Text
93. 381 US 479 (1965) Return to Text
94. Ibid., at 485-86 Return to Text
95. 405 US 438 (1972) Return to Text
96. Ibid., at 453 Return to Text
97. 410 US 113 (1973) Return to Text
98. Ibid., at 153 Return to Text
99. 492 US 490 (1989) Return to Text
100. 100 505 US 833 (1992) Return to Text
101. 101 Ibid., at 852 Return to Text
102. 102 Ridder & Woll, supra fn 88 and 78. Return to Text
103. 103 388 US 1 (1967) Return to Text
104. 104 478 US 186 (1986) Return to Text
105. 105 539 US 558 (2003) Return to Text
106. 106 Ibid., at 562 Return to Text
107. 107 316 US 535 (1942) Return to Text
108. 108 394 US 557 (1969) Return to Text
109. 109 Ibid., at 565 Return to Text
110. 110 Maneka Gandhi v. Union of India, (1978) 1 SCC 248, 394 (Beg, C.J.). Return to Text
111. 111 See Kharak Singh v. State of U.P., AIR 1963 SC 1295; Munn v. Illinois, 94 US 113 (1877). Return to Text
112. 112 Gerety, supra fn 2 at 234. Return to Text
113. 113 Griswold v. Connecticut, 381 US 479, 485 (1965) Return to Text
114. 114 389 US 347 (1967), see supra fn 47. Return to Text
115. 115 Black's Law Dictionary, supra fn 45 at 275, defines conscience as: "The moral sense; the faculty of judging the moral qualities of actions, or of discriminating between right and wrong; particularly applied to one's perception and judgment of the moral qualities of his own conduct, but in a wider sense, denoting a similar application of the standards of morality to the acts of others. The sense of right and wrong inherent in every person by virtue of his existence as a social entity; good conscience being a synonym of equity." Return to Text
116. 116 Tribe, supra fn 7 at 899. See also Dr. V.P. Bharatiya, "Conscience and the Constitution", (1987) 1 SCC J-55. Return to Text
117. 117 (1986) 3 SCC 615 Return to Text
118. 118 Ibid., at 619 Return to Text
119. 119 Whitney v. California, 274 US 357 (1927) (Brandeis, J.); see also Tribe, supra fn 7 at 578. Return to Text