S.S.

JAIN SUBODH LAW COLLEGE

MANSAROVER, JAIPUR

SESSION:- 2020-21
TOPIC:- Right to privacy
SUBJECT:- English

Submitted to :- submittedby:-
Dr.Prerna Agarwal Manoj
Assistant Professor Kumar
(ENGLISH) Semester :- 2nd A
 CERTIFICATE

Faculty

S.S. JAIN SUBODH

LAW COLLEGE

MANSAROVER,JAIPUR

This is to certify that Manoj Kumar, student of II semester, Section A has

carried out project titled Right to privacy under my supervision. It is an
investigation of a minor research project. The student has completed
research work in stipulated time and according to norms prescribed for the
purpose.

Dr. Prerna Agarwal

(Assistant Professor)
 ACKNOWLEDGEMENT

I would like to express my gratitude to those who generously took initiative

and helped in the successful completion of this project. I thank to them for
their inspiration & guidance towards preparation of this report. I own to
my esteemed teacher and supervisor, respected Dr. Alpana Sharma,
Director, S.S. Jain Subodh Law College, Mansarover Jaipur, and I am highly
indebted and my profound gratitude to Dr.Prerna Agarwal (Faculty), S.S.
Jain Subodh Law College, Mansarover Jaipur, who enabled me to make a
project, and provided me their stimulus of writing this report on Right to
privacy I am grateful to (faculty), S.S. Jain Subodh Law College,
Mansarover Jaipur , for her valuable advice, continuous support &
guidance through various useful discussions at different times during the
tenure of making this project and her co-operation led to great learning
experience to me.

I also thanks to Library members of S.S. Jain Subodh Law College,

Mansarover Jaipur for providing me subject matter in regard to my
research project. My humble thanks to all my colleagues and classmates of
my college, who rendered their whole hearted co-operation and wonderful
response.

(Signature of Student)
 CONTENTS:
1. INTRODUCTION
2. MEANING OF RIGHT TO PRIVACY
3. EVOLUTION OF RIGHT TO PRIVACY IN INDIA
4. RIGHT TO PRIVAY ENFORCEABLE AS A FUNDAMENTAL RIGHT
5. ARTICLE 21 AND RIGHT TO PRIVACY
6. CONCLUSION
 INTRODUCTION
A definite legal definition of ‘privacy’ is not available. Some legal experts tend to define
privacy as a human right enjoyed by every human being by virtue of his or her existence. It
depends on no instrument or charter. Privacy can also extend to other aspects, including
bodily integrity, personal autonomy, informational self-determination, protection from state
surveillance, dignity, confidentiality, compelled speech and freedom to dissent or move or
think. In short, the right to privacy has to be determined on a case-by-case basis. Privacy
enjoys a robust legal framework internationally. Article 12 of the Universal Declaration of
Human Rights, 1948 and Article 17 of the International Covenant on Civil and Political
Rights (ICCPR), 1966, legally protect persons against “arbitrary interference” with one’s
privacy, family, home, correspondence, honor and reputation. India signed and ratified the
ICCPR on April 10, 1979, without reservation. Article 7 and 8 of the Charter of Fundamental
Rights of the European Union, 2012, recognizes the respect for private and family life, home
and communications. Article 8 mandates protection of personal data and its collection for a
specified legitimate purpose. Human rights are those minimal rights individuals need to have against
the state of other public authority by virtue of their being members of the human family, irrespective of
any other consideration. The concept of human rights is founded on the ancient doctrine of natural rights
based on natural is founded on the ancient doctrine of natural rights based on natural law. Ever since
the beginning of civilized life in a political society, the shortcomings and tyranny and ruing powers
have led people to seek higher laws. The concept of higher law binding human authorities was evolved
and it came to be asserted that there were certain rights anterior to society. These were superior to rights
created by human authorities, were universally applicable to have existed prior to the development
political societies. These rights were mere ideologies and there was no agreed catalogue of them and no
machinery for their enforcement until they were codified into national constitutions, as a judicially
enforceable Bill of rights.1

1
Chairanjivi J. Nirmal, Human Rights in India, “Historical, Social and Political Perspective”, New Delhi:
Oxford University Press, 2002, p.l
 MEANING OF RIGHT TO PRIVACY
Human rights are universal, inviolable and inherent in every human being. ‘Privacy’, as the most
valuable human right of all, is protected in several important national, regional and international
instruments. It has several dimensions, including but not limited to privacy of a person, personal
communications, personal data and territorial privacy. The right to privacy which is the highly essential
part of one’s life and personal liberty plays a significant role in the development of one’s personality,
integrity and dignity. However, certain practices such as bugging, telephone tapping and interception
pose threats to the confidentiality of communications. 2 Right to privacy is a facet of right to life and
personal liberty enshrined under article 21 of the Indian constitution and right to privacy has
been recognized as fundamental right in the recent judicial pronouncement in Justice K.S
Putthaswamy v. Union of India. This research paper will deal with USA privacy laws in
elaborative manner because India relied on American laws for the purpose of interpreting the
privacy matters in Indian domain. Apart from discussion on American laws, author will elaborate
the entire journey of right to privacy along with various aspects and dimensions of privacy. The
main purpose behind touching upon various areas of privacy, is providing an unambiguous and
unequivocal idea about the said right and we all have a rudimentary idea that right to privacy
can be considered as an umbrella under numerous areas related with different field are covered.
Therefore it is essential to explicate all such concept for providing better understanding to the
reader. The author will be providing an explication about "right to be forgotten as well since
various petitions are pending in supreme court and arguments are being raised for bringing right
to be forgotten under the purview of right to privacy, so all the mentioned areas will be explained
in elucidatory form for the basic understanding of the concept.

"Man's house is his castle", the mentioned saying implies about inherited "Right to privacy" in human
being. Every human being has certain confidential and surreptitious part of their life, which can't be
divulged at public domain. This right to privacy has gained momentum throughout the world and it has
been recognized as a fundamental right to privacy. The deliberation on right to privacy commenced
after the "Warren and Brandies" debate on right to privacy and this debate will be further elucidated
in the research paper. Countries such as USA, UK, India, and international organizations such as
UDHR, ICCPR, ECHR, have given valid recognition to right to privacy.

The constitution of India has not guaranteed the right to privacy as an explicit fundamental right to the
citizens but nevertheless, the Supreme Court has construed the right to privacy as a part of life and

2
R. Revathi, “Pervasive Technology, Invasive Privacy and Lucrative Piracy ”, vol 51:3, JILI2009,p.368.
personal liberty under article 21 of the Indian constitution and this right to privacy conundrum has
been unraveled by the Indian judiciary in the recent judicial pronouncement in the case of Justice K.S
Putthaswamy v. Union of India wherein right to privacy has been recognized as fundamental
right.3Article 21 of the Indian constitution deals with right to life and personal liberty and justice
Khanna has stated that human existence is not mere animal existence, every person deserves to live a
dignified life and term privacy is the utmost significant factor regarding enjoyment of life.

Right to privacy has travelled a prolonged journey in order to attain the status of fundamental right in
Indian constitution. There are abundance of cases dealing with acceptance and denial of this right
henceforth all the aforesaid points will be elaborated further in order to have a categorical
understanding about the evolution of "right to privacy" within Indian domain and the contribution of
USA privacy laws since Indian judiciary heavily relied upon the American laws for providing
unequivocal adjudication of privacy matters.

"Right to be forgotten" is another area that falls under the ambit of right to privacy. The development
in the technology is the reason behind initiation of such right in Indian constitution and we all know
that internet is accessible by everyone and certain sensitive and vulnerable information might be
jeopardizing in nature, therefore it is necessary to protect such right.

INDIAN ASPECT OF RIGHT TO PRIVACY

Fundamental rights are basic rights inherent in human being and such rights should be entrusted to
every citizen of the country along with proper remedial mechanisms. "Right to privacy" has travelled a
prolonged journey for the obtainment of status of fundamental right under Indian constitution and how
this privacy right attained the status of fundamental right then elucidation of certain prominent case
laws is mandatory for substantiating the discussion and for providing a clear and unambiguous idea
about right to privacy.

Right to privacy was derived from "protection of life and personal liberty" enshrined under article 21
of the Indian constitution and the discussion on case laws is essential for better understanding of this
utmost significant right in the present scenario. In the case Kharak Singh v. State of Uttar Pradesh4
where the appellant was being harassed by police under regulation 236(b) of the UP regulation,
which permits for domiciliary, visits at night. The Supreme Court held that the regulation 236 is
unconstitutional and violative of article 21. The court concluded by saying that article 21 of the

3
http://supremecourtofindia.nic.in/supremecourt/2012/35071/35071_2012_Judgement_24-Aug-2017.pdf
4
AIR 1963 SC 1295
constitution to include “rights to privacy" as a part of right to "protection of life and personal
liberty". Justice Subba Rao equated personal liberty with privacy and he observed that concept
of liberty in article 21 was comprehensive enough to include privacy and that a person's house,
where he lives with his family is his castle and that nothing is more deleterious to a man's physical
happiness and health than a calculated interference with his right to privacy.

In the case of Govind v. State of Madhya Pradesh5 the court observed that domiciliary visits by
the police should be reduced to the clearest cases of danger to the community security and not
routine follow up at the end of a conviction or release from prison or at whim of a police officer.
In truth legality apart, these regulations ill-record with the essence of personal freedoms and the
state will do well to revise these old police regulations verging perilously near unconstitutionality.

In the case of State v. Charulata Joshi 6, the supreme court held that the constitutional right to
freedom of speech and expression conferred by article 19(1)(a) of the constitution which includes
the freedom of press is not an absolute right. The press must first obtain the willingness of a
person sought to be interviewed and no court can pass any order if the person to be interviewed
expresses his unwillingness
In People's Union for Civil Liberties v. Union of India 7,The court held that telephone tapping by
the government under telegraph act amounts to violation of article 21 and once the mentioned
facts in a given case attracts the facet of privacy, article 21 can be invoked since privacy is a part
of right to life and personal liberty and this right can be deprived of only by the procedure
established by law.

Right to privacy is not mentioned in the Indian constitution but the roots of the privacy can be
traced under article 21 and telephonic conversation is a part of confidential information and
tapping such private communications is a contravention of right to privacy and this right can be
8
taken away only by the procedure established by law.

Right to privacy is a broader concept and it consists of several dimensions of right to life and
personal liberties, yet another dimension was added in right to privacy in the case of Mr. X v.
Hospital Z 9,where the appellant's blood was to transfused to another but he was tested HIV(+)
at the respondent's hospital and on the account of such information, appellant's marriage was

5
(1975) 2 SCC 148
6
(1999) 4 SCC 65 see also Prabha Dutt v. Union of India, AIR 1982 SC 6 Sheela Barse v. State of Maharashtra
7
(1997) 1 SCC 301
8
ibid
9
(1998) 8 SCC 296
called off and moreover he was severally castigated in the society. The appellant approached the
Supreme Court and contended that the principle of "duty of care" includes the duty to maintain
the confidential information between the patient and the doctor and such duty of care had
correlative right vested in the patient and whatsoever confidential information comes to the
knowledge of the doctor, will not be divulged at public domain. The appellant added his
contention by saying that respondent has violated the duty of care as well as right to privacy of
the appellant, hence liable to pay damages.

The Supreme Court rejected the contention of appellant and held that right of privacy may arise
out of a particular specific relationship, which may be matrimonial, commercial and political as
well. Doctor-patient relationship, though basically commercial yet a matter of confidence and
therefore doctors are orally and ethically responsible to maintain the confidentiality of such
existing relationship. In such situation, revelation of confidential information will result in
invasion in privacy right which may sometimes clash with another person's right to be informed.
This right however is not absolute and may be lawfully restricted for the prevention of crime,
10
disorder, health, morals and rights of others.

The utmost important observation which was observed in the aforesaid case, wherein the court
held pronounced that where there is a clash between 2 fundamental rights, as in this case, right
to privacy of an appellant and right to lead a healthy life of another party which is also a
fundamental right. In such situation right which is of public interest and morality will alone be
11
enforced.

In Sharda v. Dharmpal12,the supreme court held that right to privacy is not an absolute right and
whenever there is clash between 2 fundamental rights, the right which advances public interest
and morality will prevail.
13
In State of Maharashtra v. Madhukar Narayan Mardikar, the court protected the right to
privacy of a prostitute. It was held that even a women of easy virtue is entitled to her privacy and
no one can invade her privacy.

In Malak Singh v. State of Punjab and Haryana, Wherein the application was filed by the
applicant for removing his name from the surveillance register maintained by the Punjab police

10
ibid
11
ibid
12
(2003) 4 SCC 493

13
(1991) 1 SCC 57
rules and Supreme Court held that surveillance should be conducted as per rules enshrined
therein.

The supreme court has elaborated the concept of privacy in the case of Ram Jethmalani v. Union
of India,wherein it was held that " Right to privacy is an integral part of right to life. This is a
cherished constitutional value, and it is important than human beings should be allowed domains
of freedom that are free of public scrutiny unless they act in an unlawful manner. The solution
for the problem of abrogation of one zone of constitutional values can't be the creation of another
zone of abrogation of constitutional values, the notion of fundamental rights, such as a right to
privacy is a part of right to life, is not merely that the state is enjoined from derogating form them
against the actions of others in the society, even in the context of exercise of fundamental rights
by those others."

Right to privacy took completely different turn during "Aadhaar case" and the question was
raised about fundamental status of right to privacy in Indian constitution. In this case , a scheme
propounded by the government of India popularly known as "Aadhaar Card Scheme" and under
this scheme government was accumulating the personal information related with biometric and
demographic data and such confidential information was about to be used for various beneficial
purposes provided by the government.

This scheme was challenged through bunch of petitions and it was contended that collection of
private information of individuals, is a violation of right to privacy since government had all
personal information of every citizen of this country and there was a suspicion about misuse of
such covert information by the government. This case attained immense attention because of
raising the significant question about the fundamental status of right to privacy.

The nine-judge bench of the Supreme Court has unanimously delivered its judgment in Justice
K.S. Puttaswamy (Retd.) v. Union of India holding that privacy is a constitutionally protected
right which not only emerges from the guarantee of life and personal liberty in Article 21 of the
constitution, but also arises in varying contexts from the other facets of freedom and dignity
recognized and guaranteed by the fundamental rights contained in Part III of the Indian
14
constitution.

Judgment can be concluded by mentioning that "Privacy includes at its core the preservation of
personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual

14
https://thewire.in/171325/justice-chandrachud-judgment-right-to-privacy/
orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy
and recognizes the ability of the individual to control vital aspects of his or her life. Personal
choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and
recognizes the plurality and diversity of our culture. While the legitimate expectation of privacy
may vary from the intimate zone to the private zone and from the private to the public arenas, it
is important to underscore that privacy is not lost or surrendered merely because the individual
is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the
human being."15.

RIGHT TO PRIVACY A FUNDAMENTAL RIGHT

“Gradually the scope of legal rights broadened; and now the right to life has come to mean the right to
enjoy life – the right to be let alone.” – Louis Brandeis, J. (1890)

Right to Privacy first of all we need to know what does the word Privacy mean. According to Black’s
Law Dictionary “right to be let alone; the right of a person to be free from any unwarranted publicity;
the right to live without any unwarranted interference by the public in matters with which the public is
not necessarily concerned”.

Article 21 of the Constitution of India states that “No person shall be deprived of his life or personal
liberty except according to procedure established by law”. After reading the Article 21, it has been
interpreted that the term ‘life’ includes all those aspects of life which go to make a man’s life
meaningful, complete and worth living.

INTERNATIONAL CONCEPTS OF PRIVACY

Article 12 of Universal Declaration of Human Rights (1948) states that “No one shall be subjected to
arbitrary interference with his privacy, family, home or correspondence or to attack upon his honor and
reputation. Everyone has the right to protection of the law against such interference or attacks.”

Article 17 of International Covenant of Civil and Political Rights (to which India is a party) states “No
one shall be subjected to arbitrary or unlawful interference with his privacy, family, home and
correspondence, nor to unlawful attacks on his honour and reputation”

15
ibid
Article 8 of European Convention on Human Rights states “Everyone has the right to respect for his
private and family life, his home and his correspondence; there shall be no interference by a public
authority except such as is in accordance with law and is necessary in a democratic society in the
interests of national security, public safety or the economic well-being of the country, for the protection
of health or morals or for the protection of the rights and freedoms of others.”

The Privacy Bill, 2011- The bill says, “every individual shall have a right to his privacy —
confidentiality of communication made to, or, by him — including his personal correspondence,
telephone conversations, telegraph messages, postal, electronic mail and other modes of
communication; confidentiality of his private or his family life; protection of his honour and good name;
protection from search, detention or exposure of lawful communication between and among
individuals; privacy from surveillance; confidentiality of his banking and financial transactions, medical
and legal information and protection of data relating to individual.” 16

Husband Tapping Conversation of His Wife With Others Seeking to Produce In Court, Violates
Her Right To Privacy Under Article 21 :-

In Rayala M. Bhuvneswari v. Nagaphomender Rayala the petitioner filed a divorce petition in the
Court against his wife and to substantiate his case sought to produce a hard disc relating to the
conversation of his wife recorded in U.S. with others. She denied some portions of the conversation.
The Court held that the act of tapping by the husband of conversation of his wife with others without
her knowledge was illegal and amounted to infringement of her right to privacy under article 21 of the
Constitution. These talks even if true cannot be admissible in evidence. The wife cannot be forced to
undergo voice test and then asked the expert to compare portion denied by her with her admitted voice.
The Court observed that the purity of the relation between husband and wife is the basis of marriage.

There exists in India an impending need to frame a model statute which safeguards the Right to Privacy
of an individual, especially given the emergence of customer service corporate entities which gather
extensive personal information relating to it's customers. It's evident that despite the presence of
adequate non-mandatory, ethical arguments and precedents established by the Supreme court of India;
in the absence of an explicit privacy statute, the right to privacy remains a de facto right, enforced
through a circuitous mode of reasoning and derived from an expansive interpretation of either
Constitutional law or tort law privacy of the wife. If husband is of such a nature and has no faith in his
wife even about her conversations to her parents, then the institution of marriage itself becomes
redundant.

16
https://indiankanoon.org/doc/12577154
The right to respect for private and family life
The right to respect for privacy mirrors the liberal concept of the individual’s freedom as a self-
governing being as long as his/her actions do not interfere with the rights and freedoms of others. The
right to privacy is the right to individual autonomy that is violated when states interfere with, penalise,
or prohibit actions that essentially only concern the individual, such as not wearing safety equipment at
work or committing suicide. States justify such interferences with the social costs of the actions
prohibited, for instance to the health care system. The right to privacy encompasses the right to protect
a person’s intimacy, identity, name, gender, honour, dignity, appearance, feelings and sexual
orientation. The right to privacy may be limited in the interests of others, under specific conditions,
provided that the interference is not arbitrary or unlawful. People cannot be forced to change their
appearance or name, for instance, nor can they be prohibited from changing their name or sex; however,
in the interests of the rights of others they may, for example, be compelled to give biological samples
for the determination of paternity. Another exception could be lawful counter-terrorism surveillance
that necessarily operates in breach of privacy rights. Such a breach is acceptable as long as it accords
with judicial and parliamentary oversight. The right to privacy extends to the home, the family and
correspondence. The term family relates, for example, to blood ties, economic ties, marriage and
adoption. The right to the respect for privacy of the home has been interpreted to include place of
business. A common interference with the privacy of correspondence has to do with secret surveillance
and censorship of the correspondence of prisoners.

What is virginity?
"Virginity is the state of a person who has never engaged in a sexual intercourse".

What is virginity test?

A 'Virginity test' is the practice and process of determining whether a girl or woman is a virgin; i.e,
whether she has never engaged in sexual intercourse.

The test typically involves a check for the presence of an intact hymen, on the assumption that it can
only be torn as a result of sexual intercourse.

There is ' two finger test' A doctor performs the test by inserting a finger into the female's vagina to
check the level of vaginal laxity, which is used to determine if she is "habituated to sexual intercourse".

The Supreme Court of India has held that the two-finger test' on a rape victim violates her right to
privacy, and asked the Indian government to provide better medical procedures to confirm sexual
assault.
CASE LAW
In Surajit Singh Thind vs Kanwaljit kaur
Punjab and Haryana high court has held that allowing medical examination of a woman for her virginity
amounts to violation of her right to privacy and personal liberty enshrined under article 21 of the
Constitution.

Fact -
In this case the wife has filed a petition for a decree of nullity of marriage on the ground that the marriage
has never been consummated because the husband was impotent. The husband had taken the defence
that the marriage was constructed and he was not impotent. In order to prove that the wife was not virgin
the husband filed an application for her medical (virginity test) examination.

Held –
The court held that allowing the medical examination of a woman's virginity violets her right privacy
under article 21 of the Constitution. Such an order would amount to Roving enquiry against a female
who is vulnerable even otherwise. The virginity test cannot constitute in Sole basis, to prove the
consummation of marriage.
Right to health and right to privacy
Where there is a conflict between two derived rights, the right which advances public morality or public
interest should alone be enforced by a process of court. The right to privacy of the appellant and the
right to lead a healthy life of another person were clashed, both of it having its origin in Article 21. The
disclosure of confidential information regarding the appellant would invariably result in saving an
innocent person from contracting a deadly disease like AIDS. The disclosure of such information is
sensitive and might lead to social ostracism and cannot be done except with an overwhelming
consideration of public morality and public health. AIDS patients deserve all respect as human beings
and no person shall be denied any opportunity or government jobs or service on the ground of disease,
but having ‘sex’ with them shall be avoided as the same would lead to the communication of a dreadful
disease and the court shall not assist the person in achieving that object. Hence, in case of a conflict
between right to privacy and right to health of another, the latter prevails, upon greater considerations
of public morality.

Privacy Obligations under Specific Relationships

There are instances of specific inter-personal relationships wherein one party might be obligated to
maintain a certain measure of confidentiality. A doctor-patient, husband-wife, customer-insurance
company or an attorney-client relationship; are instances where there exists a strong ethical obligation
on the part of one party to protect the privacy of information relating to an individual which may expose
him to social humiliation and/or ridicule. The above principle also receives legal recognition in Ss. 123-
126 of the Indian Evidence Act, 1871.

CONCLUSION

Right to privacy is an essential component of right to life and personal liberty under Article 21. Right
of privacy may, apart from contract, also arise out of a particular specific relationship, which may be
commercial, matrimonial, or even political. Right to privacy is not an absolute right; it is subject to
reasonable restrictions for prevention of crime, disorder or protection of health or morals or protection
of rights and freedom of others. Where there is a conflict between two derived rights, the right which
advances public morality and public interest prevail.
 Bibliography

 https://indiankanoon.org/doc/12577154

 https://thewire.in/171325/justice-chandrachud-judgment-right-to-privacy/

 http://supremecourtofindia.nic.in/supremecourt/2012/35071/35071_2012_Judgement_24-Aug-
2017.pdf