THE INDIAN CONTEXT OF PRIVACY

FROM 1954-2017



M.P.Sharma v. Satish Chandra (1954)

Search warrants

The power of search & seizure was in dispute. The Court observed, interalia, “a power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. 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 Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction.”


Kharak Singh v. State of U.P.(1962)

Nocturnal domiciliary visits

Regulation 236 of the U.P.Police Regulations was challenged. The Court held, interalia, “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”.


Gobind v. State of M.P. (1975)

Domiciliary

The question relating to domiciliary visits to the house of a history-sheeter was involved. The Court held, interalia, “the right to privacy in any event will necessarily have to go through a process of case-by-case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterize as a fundamental right, we do not think that the right is absolute.”


Selvi v. State of Karnataka (2010)

Narco-analysis, Polygraph test (lie-detector test) and Brain Electrical Activation Profile (BEAP)

The issue was related to the evidentiary value of polygraph test. The Court observed, interalia, “following the judicial expansion of the idea of `personal liberty', the status of the `right to privacy' as a component of Article 21 has been recognised and re-inforced”.


R. Rajagopal v. State of T.N. (1994)

Publicity of private life by publication

The publication of autobiography of one Auto Shanker was in question due to the fact that it involved name of many public officials. The Court observed, interalia, “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".


PUCL v. UoI (1997)

Phone Tapping


The question was related to tapping of telephonic conversation in private. The Court held, interalia, “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.”


Mr. 'X' v. Hospital 'Z' (1998)

Medical secrecy

The issue was related to the medical secrecy of AIDS patients. The Court held, interalia, “the right of privacy is an essential component of the right to life envisaged by Article 21. The right, however, is not absolute and may be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others”.


Sharda v. Dharmpal (2003)

Subjecting a person to Medical Test


The issue that arose for consideration was ‘Can anyone be forced to take medical test?’ The Court observed, interalia, "with the expansive interpretation of the phrase "personal liberty", this right has been read into Article 21 of the Indian Constitution....But the right to privacy in terms of Article 21 of the Constitution is not absolute right".


District Registrar and Collector v. Canara Bank (2005)

Inspection and seizure of Bank documents

The issue was related to power to inspect and seize the bank documents. The Court observed, interalia, “the right to privacy has been implied in Articles 19(1)(a) and (d) and Article 21; that, the right is not absolute and that any State intrusion can be a reasonable restriction only if it has reasonable basis or reasonable materials to support it”.


Directorate of Revenue v. Mohd. Nisar Holia (2008)

Search and Seizure

The power to make search and seizure as also to arrest an accused was called into question. The Court observed, interalia, “an authority cannot be given an untrammeled power to infringe the right of privacy of any person”.


Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat (2008)

Closure of slaughterhouses during Jain festival

The validity of closure of Slaughter house on Jain festival was questioned in this case. The Court observed, interalia,what one eats is one's personal affair 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”.


Bhavesh Jayanti Lakhani v. State of Maharashtra (2009)

Surveillance- Extradition

The surveillance process was called into question to the effect that it violates the individual’s right to privacy. The Court observed, interalia, “surveillance per se under the provisions of the Act may not violate individual or private rights including the right to privacy”.


Bhabani Prasad Jena v. Orissa State Commission for Women (2010)

DNA testing- Paternity test

The use of DNA test in determining the paternity of a child was in issue. It was observed, interalia, “the court must be reluctant in the use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have devastating effect on the child”.


Ramlila Maidan Incident, In re: (2012)

Privacy during sleep

It was argued that the right to sleep is an intrinsic right under Article 21 of the Indian Constitution. The Court held, inter alia, “illegitimate intrusion into privacy of a person is not permissible as right to privacy is implicit in the right to life and liberty guaranteed under our Constitution”.


Suresh Kumar Kaushal v. Naaz Foundation (2014)

Homosexuality and dignity

Section 377 of the Indian Penal Code, 1860 was challenged on the grounds that it violates the right to privacy. It was observed, interalia, “the right to privacy has been guaranteed by Article 12 of the Universal Declaration of Human Rights (1948), Article 17 of the International Covenant of Civil and Political Rights and European Convention on Human Rights. It has been read into Article 21 through an expansive reading of the right to life and liberty”.


Talappalam Service Coop. Bank v. State of Kerala (2013)

Right to Information

The issue was related to the right to information. The Court held, inter alia, “right to information and right to privacy are, therefore, not absolute rights, both the rights, one of which falls under Article 19(1)(a) and the other under Article 21 of the Constitution of India, can obviously be regulated, restricted and curtailed in the larger public interest”.


Justice K S Puttaswamy (Retd.) v. UOI (2017)

Nature of ‘right to privacy’

The Court was dealing with the question that whether right to privacy is an intrinsic part of the fundamental rights chapter. The Court ruled, inter alia, “privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution. Elements of privacy also arise in varying contexts from the other facets of freedom and dignity recognized and guaranteed by the fundamental rights contained in Part III”.

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