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The American BarAssociation

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Dr Ambedkar and Article356 of the Constitution

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CONSTITUTIONAL LAW

Right to Privacy: A Case-By-Case

Development

byB.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 explicitlyguarantee this right as a fundamental right certainly the right to

privacy or, the right to be left alone, shouldbe 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 ofKharak 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
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State Legislature as Minister

Scope

Children SupremeAsset of the Nation

u gmen , owever, emp as ze e nee or recogn on o suc 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 Govindv.

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 thisright.

The scope and ambit of the right of privacy or right to be left alone

came up for consideration before the Supreme Court inR.

Rajagopalv. 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 othercommon 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

concernin the above matters without his consent - whether truthful
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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 recordsincluding 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 isproved to be false andactuated 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 andinstitutions 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
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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 anyperson 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 notnecessarily 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
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