CONSTITUTIONAL LAW

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Right to Privacy: A Case-By-Case Development
by B.D. Agarwala*

Cite as : (1996) 3 SCC (Jour) 9

Intrusion upon privacy is gradually becoming the order of the day. It has therefore become a matter of great concern. Human urge is to keep things, which are private, away from the public gaze. There is a right to live, but is there a right to privacy? If there is, what is the scope and parameters of this right? What do we do about it in case there is breach thereof?

Though it is true that the Indian Constitution does not explicitly guarantee this right as a fundamental right certainly the right to privacy or, the right to be left alone, should be accepted as an individual right. The courts' treatment of this right is a matter of paramount importance because of growing invasions of this right in areas that remained away from the purview of courts. It also assumes importance because of frequent violation of this right by the State on grounds which are not bona fide.

Lord Denning has forcefully argued for the recognition of a right to privacy thus:1

"English law should recognise a right to privacy. Any infringement of it should give a cause of action for damages or an injunction as the case may require. It should also recognise a right of confidence for all correspondence and communications which expressly or impliedly are given in confidence. None of these rights is absolute. Each is subject to exceptions. These exceptions are to be allowed whenever the public interest in openness outweighs the public interest in privacy or confidentiality. In every instance it is a balancing exercise for the Courts. As each case is decided, it will form a precedent for others. So a body of case-law will be established."

It 1963 in the case of Kharak Singh v. State of U.P.2 the Supreme Court had the occasion to consider the ambit and scope of this right when the power of surveillance conferred on the police by the provisions of the U.P. Police Regulations came to be challenged as being violative of Articles 19(1)(d) and Article 21 of the Constitution. The Court repelled the argument of infringement of freedom guaranteed under Article 19(1)(d) of the Constitution, and the attempt to ascertain the movements of an individual was held not to be an infringement of any fundamental right. The minority judgment, however, emphasized the need for recognition of such a right as it was an essential ingredient of personal liberty.

Near about a decade later the Supreme Court seems to have realised the need for recognising the right to privacy in Govind v. State of M.P.3 wherein Mathew, J. as Lord Denning indicated envisaged its gradual development thus:

"The right to privacy in any event will necessarily have to go through a process of a case-by-case development"4

Even in countries other than India where privacy has been considered essential to human existence and personal liberty, the concept of privacy as a right started generating new thinking with a view to according it legal recognition so that its breach could be remedied by the courts. Privacy was being given wider and wider field of operation including therein matters pertaining to health, personal communications, family, personal relations and a right to be free from harassment and molestation. This development was the result of frequent violations of right to privacy of notable personalities and the consequent public concern for upholding this right.

The scope and ambit of the right of privacy or right to be left alone came up for consideration before the Supreme Court in R. Rajagopal v. State of T.N.5 during 1994.

In this case the right of privacy of a condemned prisoner was in issue. One Auto Shankar, a condemned prisoner, wrote his autobiography while confined in jail and handed it over to his wife for being delivered to an advocate to ensure its publication in a certain magazine edited, printed and published by the petitioner. This autobiography allegedly set out close nexus between the prisoner and several officers including those belonging to IAS and IPS some of whom were indeed his partners in several crimes. The publication of this autobiography was restrained in more than one manner.

It was on these facts that the petitioner challenged the restrictions imposed on the publication before the Supreme Court.

B.P. Jeevan Reddy, J. on an interpretation of the relevant articles of the Constitution, in the context of an analysis of case-law from other common law countries like UK and USA, held that though the right to privacy is not enumerated as a fundamental right it can certainly be inferred from Article 21 of the Constitution. The Court in conclusion held thus: (SCC pp. 649-51, para 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 left alone". A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. 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. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.

(2) 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 public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interests of decency Article 19(2) an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnapping, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised in the press/media.

(3) There is yet another exception to the rule in (1) above - indeed, this is not an exception but an independent rule. In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable for damages. It is equally obvious that in matters not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen, as explained in (1) and (2) above. It needs no reiteration that judiciary, which is protected by the power to punish for contempt of court and the Parliament and legislatures protected as their privileges are by Articles 105 and 104 respectively of the Constitution of India, represent exceptions to this rule.

(4) So far as the Government, local authority and other organs and institutions exercising governmental power are concerned, they cannot maintain a suit for damages for defaming them.

(5) Rules 3 and 4 do not, however, mean that Official Secrets Act, 1923, or any similar enactment or provision having the force of law does not bind the press or media.

(6) There is no law empowering the State or its officials to prohibit, or to impose a prior restraint upon the press/media.6

It may be noted that the Court has cautioned that the above principles are not exhaustive. It has also not examined the impact of Article 19(1)(d) read with Sections 499(2) and 500 IPC. Here again the court preferred to leave the contours of this right to develop through a case-by-case method.7

In formulating the broad principles the Court has not only dealt with various remedies that should be available against the violation of this right but also the limitations of these remedies. For to give an unqualified absolute right to seek remedy in the Court against any person having committed the breach irrespective of the nature of State functions being discharged by that official would render the very grant of this right a meaning which would be detrimental to public interest. The need for balancing individual interest and public interest in giving effect to this right appears to have been in the mind of the judge while laying down the principles.

It may also be worthy to note that as a consequence to the Supreme Court's granting the right of privacy the status of a fundamental right, petitions both in the High Court and Supreme Court would become maintainable and a person need not necessarily resort to the dilatory procedure of filing a suit in a competent civil court where the delay in decision will itself render the remedy of no meaning in many a case.

The law thus declared by the Supreme Court that right to privacy - a right to be left alone - is implicit in the right to life and personal liberty guaranteed under Article 21 of the Constitution - is a signpost in the future development of this right.

* Senior Advocate, Supreme Court, New Delhi (formerly Judge, High Court, Allahabad). Return to Text

1. Lord Denning, 'What Next in Law' Return to Text
2. AIR 1963 SC 1295: (1963) 2 Cri LJ 329 Return to Text
3. (1975) 2 SCC 148: 1975 SCC (Cri) 468 Return to Text
4. Id. at 157 (para 28) Return to Text
5. (1994) 6 SCC 632 Return to Text
6. Id. at 649-651 Return to Text
7. Id. 651 Return to Text