By Kaviraj Singh

Every human being  has the basic inclinination to posess certain feelings, ideas or emotions that relate to only their individual circumstances and stories.  From a child to and elderly person, all of us have certain feelings or information about ourselves or others, that we decide to share with no other person.These are our secrets.

Alongside, an inherent human instinct to express ourselves, we also have an instict to stay silent. And hence, emerges the human desire for privacy.

The debate about the possible amount of privacy or individuality that any person can be  allowed to have , has been a part of our daily discourse, for a while now. The discussions are particularly relevant today, because of  not just our ambitious government that  aspires to bind every citizen’s identity and all their information through the ‘Aadhar Scheme’ but also in the background of the questions raised agaisnt age old laws agaisnt homosexuality.

The  jurisprudice of the debate can be found in primarilly two previous judgements that guided our thought process on the issue of privance and the question that whether the citizens of India had the fundamental right to privacy under the constitution.One of these two caes was the case of MP Sharma v Satish Chandra in 1954 and the other was Kharak Singh v State of Uttar Pradesh in 1962. Needless to say, the two cases, played an immensely vital role in the decion of the Supreme Court in their latest decision on the constitutionality of the Right to Privacy. [1]

MP Sharma v Satish Chandra

The case of MP Sharma was about the search of documents of the Dalmia Group of Companies, following  investigations into the business of Dalmiya Jian Aiways Ltd. An investigation  revealed malpractices within the company and highlighted  attempts from shareholders to hide actual details by submitting false balance sheets and an FIR was registered  on similar grounds.

Now, the case was primarilly filed in order to challenge the very constitutionality of search and seizure of documents from a person against whom, a FIR has been lodged.

The issue of the case was whether such procedure were violative of Article 19(1) (f), which gave the fundamental  right to property and Article 20 (3) , which assured a right to against self incrimination.

The eight judge bench,  had declared that ‘Right to Privacy’, was not a fundamental Right and that the State had the powers for search and seizure overriding the power of the State for protection of social security. This power is necessarily regulated by law.

The court had held that in the absence of  any provision similar to the Fourth Amendment of the Constitution of the United States of America, there was no right to privacy under the Article 20 (3) of teh Indian Constitution.

Kharak Singh v State of Uttar Pradesh[2]

The case of Kharak Singh, had come up in front of the court, in order to question the issue of state  surveillance as against the right to privacy.

Kharak Singh was an accused for a case of  dacoity and was eventually let off due to the lack of evidence and  he challenged the regular surveillance by the police authories on the grounds of infringement of his fundamental rights.

On thorough examinations, the court ruled that privacy was not a guaranteed constitutional right as they also mentioned that the Right to life , under Article 21, was the repository of residuary personal rights and was recognised under the common law right to privacy. The provisions that allowed domiciliary rights were, however, found unconstitutional.

The dissenting opinion of Justice Subba Rao, however, felt that the right to privacy was an essential part of the right to personal liberty under  Article 21 of the constitution of India.

So far, therefore, in both the cases, the Supreme Court was convinced that the Right to Privacy was not  in existance under the Indian Constitution.

The Right to Privacy

Both the above cases had been decided over a decade back. The Indian society amidst the global scheme of dynamic progression, eversince, has changed drastically. As the State policy, envisages to build a digitally connected and conscious nationa and the number of internet users continue to grow, the questions about the meaning of privacy deepens to compel the judiciary and the society the ask themselves the meaning of the very term ‘Privacy’. No longer can we choose to remain blind to increasing need for debates in that premise.

On one hand are the questions of the internet settings, in which, we are cosntantly being monitored and our activities are being recorded and known even without our knowledge. On the other hand, are questions about whether the State can impose on its citizens, a compulsory  identification code and record their personal details and biometric and demographic data, even if anyone refuses to share the details. At the sme time, the applications that nearly most individuals use today, like Google, Facebook and Truecaller, continue to record user preferences, contacts and other personal details without much awereness amogst the people.  In a way, every interenet user, somehow, continues to get suppressed under the surveillance of the global corporations and the government alike. We are pretty much under an unspoken seizure and before anyone knows it, their information are exposed to all.

The Right of Privacy also entails the debate about the right to choose ones personal sexual orientaion which also calles for the review of the Section 377 of the Indian Penal Code.  At the same time, several  human rights activists, some of whom,  continue to be imprsoned, ask similar questions about their right to privacy as even a search history in personal  computers, have been accepted as evidence by courts to life imprioson activists with dissenting opinions.

As the times travel, and India aspires to find the path of justice and prepare a clean jurisprudence with fairness to deal with the needs and voices of law, the present judgement holds a very important space in our history.

On 24 August, 2017, in the historic judgement on Privacy, the Supreme Court, unanimously helf that the Right to Privacy was a fundamental  right under the constitution of India.

  • The court, overruled the case of MP Sharma v Satish Chandra and declared the contrary of the judgement.  The court led emphasis of the observations of the court in the Kharak Singh judgemnt that held that the content of the  expression of ‘life’ under Article 21 means not merely  the right of a person’s  ‘animal existence’ but also that the section  isto ensure a set standard of human existence that entails higher levels of personal and individual liberty. Under the circumstances, the dignity of the individual  is directly related to the protection agaisnt the invasion of the privacy of any person’s home or intrusion of personal  space of any kind.
  • The judgement declares that the first part of the Kharak Singh judgement, that  invalidated  domiciliary visits at night on the ground that they violated individual liberty is an inherent and obvious  recognition recognition of the right to privacy.  The second part of the decision, however, that says that the right to privacy is not a fundamental right  under the constitution  is not reflective of the correct position. Also, the court observed that the dependence on the majority judgemnet of AK Gopalan v State of Madras is not reflective  of the correct position.
  • The court opined and reminded that the very intention of the constitution was to built a scheme of individual liberty and that life and personal liberty are  not just created by the constitution but are, in fact, inelienable elements of human existence.
  • Contrary to the observations of Maneka Gandhi, AK Gopalan , MP Sharma, Kharak Singh, privacy is a primary right that emerges out of the Article 21 of the Indian Constitution.  Elements of  privacy are also found in different contexts of  from other facets of  freedom and dignity rcognised and guaranteed  by the fundamental rights contained in Part III of the Indian Constitution.
  • The judiciary only, recognised the existence of the right to privacy that was already an inherent part of the constitution  and therefore, it is not taking up any legislative function of codifying a new law.
  • Human Dignity cannot exist without privacy and both, the normative and descriptive facets  form components of the concept of privacy.  At the normative sub set, the eternal and undeniable values of life, liberty, freedom and dignity, exist, whereas,  at the descriptive level, privacy encapsulates  the entitlements and interests at which the foundation of liberty is placed.

Privacy is the most integral part of the  of the daily engagements of  human beings in their lives, be it, personal choices, culture, sexual orientaion, family, life and marriage.

[1]  ‘This is what Supreme Court said in Right to Privacy Judgement’  ‘http://www.livelaw.in/supreme-court-said-right-privacy-judgement-read-judgement/ ,  August 24, 2017, Accessed : August 24, 2017.

[2]  MP Sharama and Kharak Singh’s case :  ‘Privacy not a Fundamental Right’, Supreme Curt had held decades ago “http://www.firstpost.com/india/MP Sharama and Kharak Singh’s case :  ‘Privacy not a Fundamental Right’, Supreme Curt had held decades ago-3966467.html,  August 24, 2017, Accessed, August 24, 2017

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