1

Analysis of Article 21 vis a vis Right to

privacy

TABLE OF CONTENTS
TOPIC
ACKNOWLEDMENT

TABLE OF CONTENTS
LIST OF CASES
CHAPTER-1
INTRODUCTION
1.1 Introductory
1.2 Research Methodology
1.3 Objective of the Project
1.4 Hypothesis
1.5 Mode of citation
1.6 Literature Survey
1.7 Scope and Limitation
1.8 Chapterization Planning

CHAPTER-2
ARTICLE 21 OF THE INDIAN CONSTITUTION: CHARTER OF
UNARTICULATED RIGHTS
2.1 Right to Life and Personal Liberty
2.2 Right to privacy: Unarticulated right under Article 21

CHAPTER-3
CONCEPTUAL ANALYSIS OF RIGHT TO PRIVACY
3.1 Definition of Privacy
3.2 Characteristics of Privacy
3.3 Grounds of the right to privacy

CHAPTER-4

TRACING THE ORIGIN OF RIGHT TO PRIVACY IN INDIA THROUGH

CASE ANALYSIS
4.1 Right to privacy in the light Judicial activism
4.1.1 The Maneka Thesis
4.1.2 Development of right to privacy after Maneka Case
4.2 Tapping of Telephone and the right to privacy
4.3 Marital and sexual privacy

CHAPTER-5
Conclusion
Bibliography

CHAPTER-1
INTRODUCTION

The Constitution of India provides the list of guaranteed fundamental rights under Part III,
and the Magna Carta among these rights is Article 21, which provides right to life and
personal liberty. Article 21, if read literally, is a colourless article and would be satisfied the
moment it is established by the State that there is a law which provides a procedure which has
been followed by the impugned action. But now, the boundaries of the fundamental right to
life and property guaranteed in Article 21 were expanded to recognize several unarticulated
liberties that were implied in it and one of them is right to privacy.
The quest of privacy is an inherent instant of all human beings. In fact, it is natural need of an
individual to establish individual boundaries with almost perfect seclusion. The right to
privacy is the individuals right to control his or her personal activities or intimate personal
decisions without outside interference, observation or intrusion. The right also embraces as
private persons right to determine whether, how and to what extent, information about
oneself is communicated to others, especially sensitive and confidential information.
The Indian Constitution does not expressly guarantee the Right to Privacy as a fundamental
right. In our Country, the sole credit goes to the judiciary for recognizing the concept of
privacy because neither the Constitution nor any statute in our country defined this concept.
Still a lot more has to be done for the recognition and protection of privacy by law in India.
As a matter of fact, this concept is quiet in primitive stage of its development. However, its
development is bound to have tremendous effect on the individual living. Apart from
springing as an unarticulated right under Article 21 of the Constitution, the right to privacy
has also been protected under various statutes. For example, sections 28, 29, 164(3) and 165
of Code of Criminal Procedure, 1973, section 509 of IPC 1860, and section 18 of Easements
Act, 1882 also recognised the concept of privacy. However, neither in ancient law nor in the
present law, the term privacy has been defined, nor any judicial pronouncement has so far
come to make the position clear.
It is the matter of pleasure that the emerging trends of the new constitutionalism by our
judiciary justifies the need of the law trenching on ones privacy and dignity. Besides, Article
12 of the Universal Declaration of Human Rights, 1948, Article 17 of the International
Covenant on Civil and Political Rights, 1966 and Article 8 of the European Convention of
Human Rights have recognised and provide for the protection of this right to privacy.
Privacy as a concept involves what privacy entails and how it is to be valued. Privacy as a
Right involves the extent to which privacy is (and should be legally protected). The law
does not determine what privacy is, but only what situations of privacy will be afforded
legal protection. It is interesting to note that the common law does not know a general
right of privacy and the Indian Parliament has so far been reluctant to enact one.
Therefore, if one analyze the concept of privacy under Indian Constitution then the whole
credit would be given to our Courts because Indian Constitution fails to expressly recognize
the right to privacy. Some scholars contend that the whole notion of privacy is

alien to Indian Culture1. In the celebrated case of ADM Jabalpur V. Shivkant Shukla2, the
Supreme Court sought to determine if the right to personal liberty is limited by, any
limitations other than those expressly contained in the Constitution and the statute law. As
observed by Khanna J:
Article 21 is not the sole repository of the right to personal liberty... no one shall be
deprived of his life and personal liberty without the authority of laws follows not
merely from the common law, it flows equally from statutory law like the penal law
enforce in India.3
This establishes that the right to privacy need not be expressly guaranteed, but may be
implicit because of its inclusion in common law. The Supreme Court in recent years through
judicial activism has preferred to read into the Constitution a fundamental right to privacy
by a creative interpretation of the right to life guaranteed under Article 21.
The right to privacy is one of the rights most widely demanded today. Privacy has not always
been demanded. The reasons for the present concern for privacy are complex and obscure.
They obviously relate both to the possibilities for very considerable enjoyment of privacy by
the bulk of people living in affluent societies brought about by twentieth-century affluence
and to the development of very efficient methods of thoroughly and systematically invading
this newly found privacy. However, interesting and important as it is as a socio-philosophical
inquiry, the concern of this paper is not with why privacy has come to be so highly prized, but
rather with whether it is rightly prized, and if so, when and why and what is its scope under
the Indian Constitution. This means that my concern will be with what privacy is, what is its
domain under Article 21, whether there is a right to privacy, and, if so, whether it is an
ultimate, basic, albeit, a prima facie right, or simply a conditional right. Therefore, my
research work deals with all the emerging scope of the right to privacy.

CHAPTER-2
1 Legal experts such as Upendra Baxi have expressed doubt about the evolution of
privacy as a value in human relations in India. Everyday experiences in the Indian
setting, from the manifestation or good neighborliness, through constant surveillance by
next door neighbors, to unabated curiosity to other people illness or personal
vicissitudes, suggests otherwise, as referred to in Sheetal Asrani-Dann, The right to
Privacy in the ers of Smart Governance, Journal of the Indian Law Institute, Vol. 47,
2005.
2 AIR 1976 SC 1207.
3 AIR 1976 SC 1207, 1258.

ARTICLE 21 OF THE INDIAN CONSTITUTION:

CHARTER OF UNARTICULATED RIGHTS
2.1 Right to Life and Personal Liberty:
Right to life and personal Liberty: No person shall be deprived of his life or personal
liberty except according to procedure established by law.
Though the phraseology of Article 21 starts with negative word but the word No has been
used in relation to the word deprived. The object of the fundamental right under Article 21 is
to prevent encroachment upon personal liberty and deprivation of life except according to
procedure established by law. Article 21 of the Constitution deals with the prevention of
encroachment upon personal liberty or deprivation of life of a person.
It confers on every person the fundamental right to life and 4personal liberty. The foreigners
are as much entitled to these rights as the citizens.5 The two rights have been given
paramount position by our courts, 6and in these two rights laid the foundation of penumbra of
unarticulated rights and one of them is being right to privacy.7
The scope of Article 21 was a bit narrow till 50s as it was held by the Apex Court in A.K.
Gopalan V. State of Madras8 that the contents and subject matter of Article 21 and 19 (1) (d)
are not identical and they proceed on total principles. In this case, the word deprivation was
construed in a narrow sense and it was held that the deprivation does not restrict upon the
right to move freely which came under Article 19 (1) (d). At that time, Gopalan case was
leading case under the mandate of Article 21.
Post Gopalan case the scenario in respect of scope of Article 21 has been expanded or
modified gradually through different decisions of the Apex Court and it was held that
interference with the freedom of a person at home or restriction imposed on a person while in
jail would require authority of law. Whether the reasonableness of a penal law can be
examined with reference to Article 19, was the point in issue after Gopalan case in
the case of Maneka Gandhi v. Union of India 9, the Apex Court laid down a new dimension
and held that the procedure cannot be arbitrary, unfair or unreasonable one. Article 21
imposed a restriction upon the state where it prescribed a procedure for depriving a person of
his life or personal liberty. This view has been further relied upon in a case of
Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others
follows:

10

as

4 Bhagwati J., Maneka Gandhi v. Union of India, (1978) 1 SCC248: AIR 1978 SC597, 620.
5 NHRC v. State of Arunachal Pradesh, (1996) 1 SCC 742. Chairman, Rly. Board v.
Chairman, Das,(2002) 2 SCC 465: AIR 2000 SC 988.
6 Kehar Singh v. UOI, AIR 1989SC 653.
7 V.N. Shukla, Constitution of India, Eastern Book Company, X ed., 2001, pp. 164-165.
8 AIR 1950 SC 27.
9 AIR 1978 SC 597.
10 AIR 1991 SC 746.

Article 21 requires that no one shall be deprived of his life or personal liberty except
by procedure established by law and this procedure must be reasonable, fair and just
and not arbitrary, whimsical or fanciful. The law of preventive detention has therefore
now to pass the test not only for Article 22, but also of Article 21 and if the
constitutional validity of any such law is challenged, the court would have to decide
whether the procedure laid down by such law for depriving a person of his personal
liberty is reasonable, fair and just.11
In another case of Olga Tellis and others v. Bombay Municipal Corporation and
others,12 it was further observed:
Just as a mala fide act has no existence in the eye of law, even so,
unreasonableness vitiates law and procedure alike. It is therefore essential
that the procedure prescribed by law for depriving a person of his
fundamental right must confirm the norms of justice and fair play. Procedure,
which is just or unfair in the circumstances of a case, attracts the vice of
unreasonableness, thereby vitiating the law which prescribes that procedure
and consequently, the action taken under it .
It was further widened in the case of Bandhua Mukti Morcha v. Union of India and others 13in
respect of bonded labour and weaker section of the society.
The meaning of the word life includes the right to live in fair and reasonable conditions,
right to rehabilitation after release, right to livelihood by legal means and decent
environment. The Apex Court in the case of Unni Krishnan v. State of A.P has explained the
expanded scope of Article 2114. Apex Court itself provided the list of some of the rights
covered under Article 21 on the basis of earlier pronouncements and some of them are listed
below:
1. The right to privacy
2. The right to go abroad
3. The right against solitary confinement
4. The right against handcuffing
5. The right against delayed execution
6. The right to shelter
7. The right against custodial death
8. The right against public hanging
9. Doctors consultation

11
12
13
14

M.P. Jain, Indian Constitutional Law, Wadhwa Nagpur, 5th ed., 2007, P-1088.
AIR 1986 SC 180.
AIR 1984 SC 802.
AIR 1993 SC 2178.

As a result of expansion of the scope of Article 21, the Public Interest Litigations in respect
right to privacy, of children in jail being entitled to special protection, health hazards due to
pollution and harmful drugs, housing for beggars, immediate medical aid to injured persons,
starvation deaths, the right to know, the right to open trial, inhuman conditions in aftercare
home have found place under it.
The Apex Court led a great importance on reasonableness, rationality of the provision and it
is pointed out that in the name of undue stress on Fundamental Rights, and Individual
Liberty, the ideals of social and economic justice cannot be given a go-by. Thus, it is clear
that the provision Article 21 was constructed narrowly at the initial stage but the law in
respect of life and personal liberty of a person was developed gradually and a liberal
interpretation was given to these words. New dimensions have been added to the scope of
Article 21 from time to time. It imposed a limitation upon a procedure, which prescribed for
depriving a person of life and personal liberty by saying that the procedure, which prescribed
for depriving a person of life and personal liberty by saying that the procedure must be
reasonable, fair and such law, should not be arbitrary, whimsical and fanciful. The
interpretation which has been given to the words life and personal liberty in various decisions
of the Apex Court, it can be said that the protection of life and personal liberty has got multi
dimensional meaning and any arbitrary, whimsical and fanciful act of the State which
deprived the life or personal liberty of a person would be against the provision of Article 21
of the Constitution.15

2.2 Right to privacy: an unarticulated right under the mandate of

Article 21:
In this background of the expanded scope of Article 21 comes the dimension of right to
privacy.
As William Douglas observes, the right to be let alone is indeed the beginning of all
freedoms.16 Although it is concerned with the inner environs of human life and sanctuary for
personal convulsions, due to a network of legal obligations, it imposes on other persons in the
society, its nexus with the right to property, freedom of speech and expression and
associations and with other rights are complex. Mutuality of assistance and balancing among
all these rights is a major factor in various spheres of privacy.17

CHAPTER-3
CONCEPTUAL ANALYSIS OF RIGHT TO PRIVACY

15 Vidhan Maheshwari, Article 21 of the Constitution of India: The Expanding Horizons,

www.legalserviceindia.com, dated: 08th January 2010.
16 William Douglas, We the Judges, 1956, p. 307.
17 P.Ishwar Bhat, Fundamental Rights: A study of their Interrelationship, Eastern Law
House, New Delhi, Kolkata, 2004, p.24.

3.1 Definition of privacy:

The word privacy has been taken from the Latin word privatus, meaning thereby
separated from the rest, deprived of something. It is the ability of an individual or group to
seclude themselves or information about themselves and thereby reveal themselves
selectively. The boundaries and content of what is considered private differ among cultures
and individuals, but share basic common themes.
Privacy in general means the right to be let alone. Justice Cooley first coined it in 1888.
Samual Warren and Loues Brandeis followed this abbreviated meaning of privacy in 1890 in
one of thier articles.18 They were of view that object of privacy is to protect inviolate
personality. They elaborated the proposition and said that in early times the law gave remedy
only for interference with life and property and for trespass. Then the right to life served only
to protect life from battery in its various forms; later there came recognition of spiritual
nature and his feeling and his intellect. Gradually, the scope of his legal rights came to mean
the right to enjoy the life and right to be let alone.
Once an American Court observed that privacy is the right to live ones life in seclusion
without being subjected to unwarranted and undesired publicity.19 Similarly, the common law
jurists have described the idea of privacy as an idea of being private or secluded. Professor
Nizer states that the right to privacy is the individuals right to a secluded and anonymous
existence.20 Dr. Winfield opines that violation of privacy is the unauthorised interference with
anothers seclusion of himself, his family and his property from the public gaze. 21 L. Luskey
in his article Invasion of Privacy: A Classification of concepts has described privacy as an
interest which someone has, that is to say a person would be better off for being a private
state.22 Dean Prosser23 has opined that privacy is not an independent value at all but a
composite interest in reputation, emotional tranquillity and intangible property. According to
him, following are the four kinds of tort one may find in his cases:
1. Intrusion upon a persons solitude and seclusion or into his
affairs;
2. Public disclosure of embarrassing facts of a persons private life;
3. Publicity that places an individual in false lights in public eyes;
4. Appropriation to a persons advantage of anothers name of
likeness.
The view of Mathew, J. Is that privacy is not an independent legal right protecting a
fundamental right human value. Assaults on privacy are transmitted into species of
defamation, infliction of mental distress and misappropriation. Accordingly, there is no new
18
19
20
21
22
23

4 Harvard Law review 193 (1890).

Karby v. Hal Roach Studies, 1942 53 Cali. App. 207, 127.
Michigan Law Review, 1939, P. 526.
Seventh edn., 1963 at page 726.
(1972) 78 Cal. Law Rev. 698.
Prof. Salmond , The Law of Torts, 15th Edn., pp 44-46.

10

tort of invasion of privacy but only new ways of committing old torts. In other words, the
social value and interests in privacy is not an independent one but only composite entity of
the value society places on protecting mental tranquillity, reputation or intangible form of
property.24
As per conclusion of the Nordic Conference of jurists on the Right to Respect for Property,
held in May 1967, privacy is not made of one particular interest only. This consists of many
interests and hence the right to privacy should be meant as the right of the individual to
protect his life against:
1. The interference with his private, family and home life;
2. The interference with his physical and mental integrity or his morsl;
3. Intellectual freedom;
4. The attack on his honour and reputation;
5. Being placed in a false light;
6. The disclosure of irrelevant, embarrassing facts relating to his
private life;
7. The use of his name, identity or likeness;
8. The interference with his correspondence;
9. The spying, watching, prying and besetting or misuse of his
communication, written or oral;
10.
The disclosure of information either given or received by him
in circumstances of professional confidence.25
According to Winfield, right to privacy is the absence of unauthorised interference with a
person seclusion of himself or his property from the public.26
As Brandies, J. Viewed in Olmstead27, it is the most comprehensive of rights and the rights
most valued by civilized man.
According to Raymond Wacks, synonyms with autonomy, it has colonized traditional
liberties, became entangled with confidentiality, secrecy, defamation, property and storage of
information. It would be unreasonable to expect a notion as complex as privacy not to be
applied to numerous issues.28

3.2 Characteristics of privacy:

A clear, well-defined concept is to be realized only by way of a stipulative definition.
However, it is possible to distinguish concepts distinct from privacy, which have been
confused with that of privacy, and thereby to make clearer the core notion of privacy. To look
now at some of the more important attempts to characterize privacy.
24 'The Right to be Let Alone', (1979) 4 SCC
25 Shriniwas Gupta and Preeti Mishra, Right to Privacy: An Analysis of Developmental
Process in India, America and Europe, Central India Law Quarterly, taken from www.cili.in
on 08th January 2010.
26 W.V.H. Rogus (ed.), Winfield and Jolowicz on Torts, Sweet and Maxwell, London , 1990,
pp-323-333.
27 Olmstead v. US, 277 US 438 (1928).
28 Raymond Wacks, The Protection of Privacy, Sweet and Maxwell, London, 1980, p-13.

11

1. Privacy as consisting in being let alone.

There are many versions of this account, that of Warren and Brandeis, although linked with
and suggestive of other, radically different accounts, being the most important. They wrote:
These considerations lead to the conclusion that the protection afforded to thoughts,
sentiments, and emotions, expressed through the medium of writing or of the arts, so
far as it consists in preventing publication, is merely an instance of the enforcement of
the more general right to be let alone.... The principle which protects personal
writings and all other personal productions, not against theft and physical
appropriation, but against publication in any form, is in reality not the principle of
private property, but of inviolate personality.29
There is initial plausibility in the account of privacy as consisting in being let alone. If one is
let alone, one's privacy would seem to be secure. Is this really so? I suggest that it all depends
on what is meant by being let alone. To enjoy seclusion or solitude is usually, although not
necessarily, to enjoy privacy. Yet they clearly are distinct things. It would be a mockery to
guarantee a person his privacy by ensuring that he enjoys solitude on a remote island. Privacy
is something that we can enjoy and wish to enjoy in society. It is not clear that it is
meaningful outside of societies.
2. Privacy as the lack of disclosure, and the right to privacy as the right
to selective disclosure
The definition of privacy defended in here is that privacy is control over when and by whom
the various parts of us can be sensed by others.30
In terms of this general view that the right to privacy is the right of the individual to
determine what is known or communicated about him, privacy, it would seem, would relate
to all the facts relating to one's self and to what are parts and extensions of one's self. There
are obvious problems here, problems relating to marking off the self and its real extensions
from the non-self, and to showing, as against the ordinary, very inclusive claims to privacy
that commonly embrace much more than this, that this is all that relates to privacy. These
problems constitute no basic objection to the theory. However, they do bear on the need for a
detailed elaboration of it and of its practical implications.
A basic objection to this account is that it fails to attend to the important points, namely, that
we can show lack of respect for our own privacy, that we can improperly forgo our own
privacy. A person who bares his soul to all is commonly thought not to have a proper respect
for his own privacy, he gives it up too readily, he lacks a decent reticence. This account
implies that self-disclosure can involve neither invasions nor loss of privacy, and further, that
habituation to invasions and loss of privacy that leads to acquiescence and even consent to
such invasions, causes them to become neither invasions nor losses of privacy. Yet part of that
29 Op. cit 206.
30 R. B. Parker, A Definition of Privacy, Rutgers Law Review 27, No I (Summer 1974),
275-296.

12

about which those concerned with privacy are concerned, is this phenomenon of people
getting used to their privacy being invaded so that they come freely to accept this and no
longer to demand a right to privacy, or to privacy in those areas that are regularly invaded.
People today have freely accepted vast inroads into their privacy. They have accepted
intelligence and other psychological and medical tests for their children, where the
information obtained may now be stored in data banks; they accept questionnaires by schools,
universities, employers, banks, creditors, and many others, with little or no protest. They
demand that their newspapers report news based on invasions of privacy of those in the
public eye, those before the courts, and those who suffer great misfortune or good fortune,
and they seek to foster in those whose privacy is invaded the belief that they ought to consent
to such invasions of their privacy. Clearly, there are considerable difficulties then in the way
of explaining privacy in terms of selective disclosure. The relationships between consent and
losses and invasions of privacy are multifarious and complex. Concern for privacy may
dictate the protecting of people against their own consent. It may dictate the creating of
conditions, which free them from having to decide whether they are willing to give up
privacy to secure some desired good.
3. Privacy as the absence of publicity:
This kind of thinking about privacy in terms of selective disclosure has also led to the
suggestion that privacy consists in the absence of publicity about one's person, one's affairs,
and the like. Certainly, those concerned with privacy are concerned with and about unwanted
publicity. Suzanne Uniacke in an unpublished paper argues that this is a view of privacy I
espouse in 'The Political Ideal of Privacy'. 31 However, this is so only in the very technical
sense of publicity as openness to some other person. To lose one's privacy is for some
information about one to become public in the sense of becoming known by one or more
persons. It need not involve publicity in the sense of the publicizing of the information. The
eaves- dropper, the Peeping-Tom, and other pryers, deprive persons of privacy, whether or
not they publicize what they learn. Indeed, what they may learn may be such as not to be for
them communicable knowledge. Nonetheless, clearly, anyone concerned with privacy must
be vigilant about publicity, as the more certain kinds of information are publicized, the
greater is the loss of privacy.

4. Privacy as exclusive access:

Privacy is the exclusive access of a person (or other legal entity) to a realm of his own. The
right to privacy entitles one to exclude others from (a) watching, (b) utilizing, (c) invading
(intruding upon, or in other ways affecting) his private realm.32
This leads van den Haag to suggest that privacy is best to be treated as a property right, the
right to privacy being like a property right to dispose of access to one's proper (private)
domain. This view is distinct from the seemingly similar view put by J. J. Thomson that so
31 H. J. McCloskey, The Political Ideal of Privacy, Philosophical Quarterly 2I, No. 85
(October I971),pp- 303-314.
32 E. van den Haag, On Privacy, Nomos XIII (I971), p-49.

13

called privacy rights are really a cluster of derivative rights, rights in many cases derivative
from or analogous with property rights, but such as not to be sui generis privacy rights.33
5. Respect for privacy as respect for personal autonomy:
Many breaches of the right to privacy will be breaches of the duty to respect autonomy; many
will involve lack of regard for the wishes of others. However, the latter need not involve lack
of respect for autonomy. Thus, secret spying which is never discovered by the victim need
involve no lack of respect for autonomy.
6. Privacy and secrecy:
Privacy and secrecy are obviously distinct, so that to respect secrecy is not necessarily to
respect privacy, to force the divulging of what is secret, is not necessarily to invade privacy,
Indeed, the whole logical grammar of expressions relating to secrecy is different from that of
those relating to privacy. More importantly, secrecy may relate to things that have nothing to
do with privacy.
7. Privacy, trust, respect, love, friendship and respect for persons:
C. Fried, firstly in 'Privacy' 34 and more recently in An Anatomy of Values: Problems of
Personal and Social Choice35 whilst not defining privacy and the right to privacy, seeks to
bring out the area of privacy, what it involves, and its deep interrelation with other values, the
values of respect, love and friendship in particular. He seeks to base the right to privacy on
the right to respect, and on the value and possibility of love and friendship, these being based
on the morality of respect for persons, the right to privacy being seen as an aspect of the right
to respect as a person. Thus, he writes:
To respect, love, trust, feel affection for others and to regard ourselves as the objects
of love, trust and affection is at the heart of our notion of ourselves as persons among
persons, and privacy is the necessary atmosphere for these attitudes and actions, as
oxygen is for combustion.
If construed as attempts to define privacy, such accounts would encounter several of the
difficulties already noted in (5) and (6) above. However, they are more plausibly and
accurately to be construed as attempts to explain the importance of privacy and of how
privacy relates to our basic values.
8. Privacy as being lost by the wrongful appropriation or exploitation of
one's personality, the publicizing of one's private affairs with which
the public has no legitimate concern:
This kind of account of the right to privacy is essentially an attempt to mark off illegitimate
invasions of privacy rather than to define and mark out the domain of privacy. It rests on
more basic views concerning privacy itself. Greater clarity of thought is to be achieved by
separating the questions of what privacy is, what its domain is, and what infringements of
33 J. J. Thomson, The Right to Privacy, Philosophy and Public Affairs 4, No. 4 (Summer
I975), pp-295-314.
34 C. Fried, Privacy, Yale Law Journal, 77, No. 3 (January 1967-68), pp-475-493.
35 C. Fried, An Anatomy of Values: Problems of Personal and Social Choice ,
Cambridge: Harvard, I970.

14

privacy are justifiable, what is unjustifiable. Such an account is also exposed to the
difficulties to which all attempts to explain privacy rights as kinds of property rights are
exposed, namely, that payment in full of the price demanded is still compatible with gross
invasion of privacy, that compensation by way of payment of damages, no matter how great
the payment, may be no more real compensation for lack of respect for privacy than is
financial compensation for loss of sight or limbs.
9. Privacy defined in terms of feelings such as mental suffering,
shame, embarrassment, humiliation:
This approach has the advantage or seeming advantage over others of explaining privacy in a
way that takes note of the social relativity in respect of what is considered to be a matter of
privacy. Thus, according to one's society and the period of the society, matters relating to
sexual conduct, eating, drinking, ancestry, and grief and so on, may or may not be matters of
privacy. In our society, much that forty years ago was regarded as a matter of privacy-social
background, salary, possessions, marital state if divorced, nature of illnesses, various sexual
matters, facts about relatives and forebears are not now so regarded. This is readily explicable
if privacy is to be defined in terms of feelings, and the area of privacy in terms of matters
which, if known and publicized, cause or would reasonably cause such feelings to be aroused.
It has the further seeming advantage of relating offences against privacy with offences against
decency, since the latter are socially relative and this because they are defined in terms of
acts, which arouse feelings of embarrassment, shame, distress, indignation.
10. Privacy as relating to the person, to the personal, personality, inviolate personality:
Other accounts of privacy stress the person and the protection of the personal in the person.
In one way or another, most of the foregoing accounts involve the relating of privacy to the
self, to the person as a unique self, but not as a stressed aspect of the account. Thus P. A.
Freund in 'Privacy: One Concept or Many' in this context speaks of the protection of the
interest of personality.36 Warren and Brandeis in their influential article stressed that the
principle of respect for privacy is that of 'inviolate personality'. The private is seen to relate
not to everything and anything about the individual but to him as a person and as a unique
person. Such an account of privacy in terms of access to, awareness and knowledge of a
person's self, readily explains what is true in other accounts. Most people desire that in at
least certain areas and respects, they not be known about or intruded upon; they desire to
have some control over access to themselves and publicity concerning what relates to
themselves as selves. This is the nature and the extent of the connection between privacy and
autonomy. Not all losses of privacy are unwanted, and when not unwanted, we usually
although not always, decline to call them intrusions, invasions, violations of privacy. The
entering into any human relationship involves some loss of privacy, some intrusions of others
into what is, or is of, one's self. The closer, the more intimate the relationship, as in being a
member of a family, a lover, a friend, the more freely and properly is privacy usually given
up; it is given up none the less. Those so yielding up part of their privacy are opting for

36 P. A. Freund, Privacy: One Concept or Many, Nomos XIII, (I971), pp-I82-198.

15

kinship, love, friendship, ahead of privacy. They may, as in love, marriage, the family, seek to
create a larger self, which becomes the focus of a new privacy.37

CHAPTER-4
TRACING THE ORIGIN OF RIGHT TO PRIVACY IN
INDIA THROUGH CASE ANALYSIS
37 H.J. Mc Closkey, Privacy and the right to Privacy, Cambridge University Press, Vol.
55, No. 211, Jan 1980, pp17-38.

16

The Indian constitution does not guarantee the right to privacy as a fundamental right. In our
country, the sole credit goes to judiciary for recognizing the concept of privacy because
neither the Constitution nor any other statute in our country defined this concept. Still a lot
more has to be done for the recognition and protection of privacy by law in India. As a matter
of fact this concept is quiet in primitive stage of its development. But its development is
bound have tremendous effect on the individuals living.38 The struggle to specifically
incorporate privacy as a specific fundamental right under the Constitution is substantially
attributable, in the large measure, to the amorphous character of this right39.

4.1 Right to privacy under judicial activism:

Allahabad High Court in Nihal Chand v. Bhawan Dei,40 took first step when it recognized an
independent existence of the right to privacy as emerging from the custom and traditions of
the people besides being a statutory right. It observed:
The right to privacy based on social custom...is different from right to privacy based
on natural modesty and human morality, the later is not confined to any class, creed,
colour or race and it is a birth right of any human being and is sacred and should be
observed. The right should not be exercised in an oppressive way.
Then in, M.P. Sharma v. Satish Chandra,41 was the first case before the Supreme Court
wherein it had an opportunity of considering the constitutional status of the right to privacy in
the context of state power of search and seizure, but a very narrow view of constitutional
provisions was taken in this case. Unfortunately, the opportunity was missed and the right to
privacy could not be put into the public law.
As it is well illustrated that right to privacy is not enumerated as Fundamental Right in the
Constitution. However, such a right has been culled by the Supreme Court from Article 21
and several other provisions of the Constitution read with the Directive Principles of State
Policy.
As early as 1963, in Kharak Singh v. State of Uttar Pradesh 42, a question was raised whether
the right to privacy could be implied from the existing Fundamental Rights, such as, Articles
19(1)(d), 19(1)(e) and 21. The majority of the judges participating in the decision said of the
right to privacy that Our Constitution does not in terms confer any like constitutional
guarantee.43 On the other hand, the minority opinion (Subba Rao, J.) was in favour of

38 Shriniwas Gupta and Preeti Mishra, Right to Privacy: An Analysis of Developmental

Process in India, America and Europe, Central India Law Quarterly, taken from www.cili.in
on 08th January 2010.
39 Namit Oberoi, The Right to Privacy: Tracing the Judicial Approach Following the
Kharak Singh Case, taken from www.indlaw.com on 10January 2010.
40 AIR 1935 All. 2.
41 1964 SCR 1077.
42 AIR 1963 SC 1295.
43 Ibid., at 1386.

17

inferring the right to privacy from the expression personal liberty in Article 21. In the
words of SUBBA RAO, J.,44
Further, the right to personal liberty takes in not only a right to be free from
restrictions placed on his movements, but also free from encroachments on his private
life. It is true our Constitution does not expressly declare a right to privacy as a
fundamental Rights, but the said right is an essential ingredient of personal liberty.
Every democratic country sanctifies domestic life...
In Govind v. State of Madhya Pradesh45, the Supreme Court undertook a more elaborate
appraisal of the right to privacy. In Govind, the Court considered the constitutional validity of
a regulation which provided for a surveillance by way of several measures indicated in the
said regulation. The Court upheld the regulation by ruling that Article 21 was not violated as
the regulation in question was procedure established by law, in terms of Article 21. The
court also accepted a limited Fundamental Right to privacy as an emanation from Articles
19(a), (d) and 21. The right to privacy is not, however, absolute; reasonable restrictions can
be placed thereon in public interest under Article 19(5). Thus, Mathew, J., observed in
Govind:46
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.
Further, Mathew, J., observed on the same point:47
Assuming that the fundamental rights explicitly guaranteed to a citizen have
penumbral zones and that the right of privacy is itself a fundamental right, that
fundamental right must be subject to restriction on the basis of compelling interest.

Again, in Rajagopal v. State of Tamil Nadu,48the Supreme Court has asserted that in recent
times the right to privacy has acquired constitutional status; it is implicit in the right to life
and liberty guaranteed to the citizens by Article 21. It is a right to be let alone. A citizen
has a right to safeguard the privacy of his own, his family, marriage, procreation, mother
hood, child bearing and education among other matters.49
44 Ibid., at 1306.
45 AIR 1975 SC 1378.
46 Ibid, at 1385.
47 Ibid., at 1386.
48 Air 1995 SC 264.
49 In an American case, Jane Roe v. Henry Wade, 410 US 113, the US Supreme Court has
observed regarding the right to privacy:
Although the Constitution of the USA does not explicitly mention any right of
privacy, the US Supreme Court recognizes that a right of personal privacy, or a

18

The right to privacy have several aspects. One such aspect is the right to procreate. This is
also known as the right of reproductive autonomy. The right to use condoms, the right of a
woman to abort, all these fall within the ambit of the right to privacy.50
The A.P. High Court has observed in B.K. Parthasarathi v. State of Andhra Pradesh51:
The right to make a decision about reproduction is essentially a very personal
decision either on part of a woman or a man. Necessarily, such a right includes the
right not to reproduce. The intrusion of a state into such a decision making process of
the individual is scrutinised by a constitutional courts both in this country and in
America with great care,
After taking note of the above-mentioned cases, the Supreme Court has observed in Peoples
Union for Civil Liberties v. Union of India:52
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.
Once the facts in a given case constitute to right to privacy, Article 21 is attracted.
The said right cannot be curtailed except according to procedure established by
law.
In State of Maharashtra v. Madhukar Narayan Mardikar,53the Supreme Court protected the
right to privacy of a prostitute. The Court held that even a woman of easy virtue is entitled to
her privacy and no one can invade her privacy as and when he likes.

guarantee of certain areas or zones of privacy, does exist under the Constitution,
and the roots of that may be found in the First Amendment, in the fourth and the
fifth Amendments, in the penumbras of Bill of Rights, in the ninth Amendment,
and in the concept of liberty guaranteed by the first Section of the XIV
Amendment and that the right of privacy is not absolute.
The Supreme Court in India has taken into consideration the US position as
well as Article 8 of the European Convention on Human Rights which
defines the right to privacy.
50 These matters have been very widely discussed in the USA. In Roe v. Wade, the US
Supreme Court has ruled that the right to have an abortion is a part of fundamental
constitutional right of privacy of a woman and the state can interfere with such a right
only to promote some compelling interest of the state, e.g. the health of a women
seeking an abortion. The US Supreme Court observed: The Constitution does not
explicitly mention any right of privacy. In a line of decision, however, the court has
recognized that a right of a personal privacy, or a guarantee of certain areas or zones of
privacy, does not exist under the constitution.
51 AIR 2000 AP 156, at 159.
In Skinner v. Okhlahoma, (1941) 316 US 535, the US Supreme Court has characterized
the right to reproduce as one of the basic civil rights of man.
Also see, Eisenstadt v. Baird, (1972) 405 US 438, on the right to use contraceptives. In
Griswald v. Connecticut, (1965) 381 US 479, a state law banning use of contraceptive
was invalidated by the US Supreme Court as being inconsistent with the right to privacy.
52 AIR 1991 SC 207, 211.
53 AIR 1999 SC 495.

19

The right to privacy has now become established in India, but as a part of Article 21 and not
as an independent right in itself, as such a right, by itself, has not been identified under the
Constitution. The Court has however, refused to define privacy by saying, As a concept it
may be too broad and moralistic to define it judicially. Whether right to privacy can be
claimed or has been infringed in a given case would depend on the facts of the said case.
This means whether the right to privacy can be claimed or has been infringed in a given
situation would depend on the facts of the said case, and the view court takes of the matter.54

4.1.1 The Maneka Thesis:

The jurisprudential edifice of the distinction between as a right as emanating from a named
right and a right as a facet of a named right is traced to the opinion expressed by Bhagwati, J.,
in the Maneka Gandhi case55. Distinguishing between the named rights and unnamed rights,
Bhagwati held that it was not enough that a right merely flowed from or emanated from a
named right )right not mentioned in the text of the Constitution) to be a part of the named
right, it must be integral to the named right or must partake of the same basic nature or
character of the named right.56 According to his opinion, each activity which facilitates the
exercise of the named fundamental right is not necessarily comprehended in that fundamental
right. Since, the right to privacy is not a named right, in order to become part of the named
right to personal liberty, this has to be shown as being integral to personal liberty. The
ruling in the Govind case, concluding the right to privacy is a fundamental right, flowing and
emanating as derivative and penumbral from other named rights, cannot be regarded to be a
good law as it does not satisfy the test of unnamed rights. Although the benefit of Bhagwati,
J., opinion could not be available to Mathew J., in the Govind case, the roots of this thesis is
already present in All India Bank Employees Association Case.57 In this case it was held that
even upon a liberal interpretation of Article 19(1), it cannot be concluded that trade unions
are guaranteed the right to strike. In a similar manner, there is no implied right to privacy,
thereby reinforcing the plea that the right to privacy ought to be clearly articulated.58

4.1.2 Right to privacy after Maneka:

In Rajagopal v. State of Tamil Nadu,59the Supreme Court has laid down certain propositions
defining the right to privacy. The Court has sought to reconcile two fundamental rights that is
right to privacy and the right to freedom of speech which at times come in conflict. These
propositions are:

54 J.N Pandey, Constitutional Law of India, Central Law Agency, Allahabad, 42nd ed., 2005,
p-227.
55 (1978) 1SCC 248.
56 AIR 1978 SC 597, 640.
57 AIR 1962 SC 171.
58 Namit Oberoi, The right to Privacy: tracing the Judicial Approach following the Kharak
Singh, www.indlaw.com on 10th January 2010.
59 AIR 1995 SC 264.

20

(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 consentwhether truthful or otherwise or 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 thrust himself into controversy or voluntary 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 of comment by press and media among others. We are, however, of
the opinion that the interests of decency (Article 19(2)), an exception must be carved
out to this rule, viz., a female who is victim of a sexual assault, kidnap, abduction, or
the like offence should not further be subjected to the indignity of her name and the
incident being published in 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 for action of damages is simply not available
with respect to thier acts and conducts relevant to the discharge of thier official duties.
This so even when 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 of truth. In such a case, it would be enough for the defendant
(member of the press and media) to prove that he acted after a reasonable verification
of 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 and personal
animosity, the defendant would have no defence and would be liable for damages. It is
equally obvious that in matter not relevant to the discharge of his duties, the public
officials enjoy the same protection as any other citizen, as explained in (1) and (2)
above. It need no reiteration that the judiciary, which is protected by the power to
punishing for the contempt of Court and the Parliament and Legislatures protected as
their privileges are by Articles 105 and 194 respectively of the Constitution of India,
represents exception 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 defending them.

21

(5) Rule 3 and 4 do not, however, mean that Officials Secrets Act, 1923, or any
similar enactment or provision having the force of law does not bind teh press and the
media.
(6) There is no law empowering the state or its officials to prohibit, or to impose prior
restraint upon the press/media.
The Court has made it clear that the principles above mentioned are only the broad principles.
They are neither exhaustive nor all comprehending; indeed no such enunciation is possible or
advisable. As rightly pointed out by Mathew, J., this right has to go through case to case to
development. The concepts dealt with here are still in the process of evolution.
Applying the above propositions, the Supreme Court permitted the newspaper to publish the
biography of a confirmed criminal so far as it appears from the public records, even without
his consent or authorization. If the press goes beyond this, it would be invading his privacy.
The state or its officials cannot restrain the said publication; thier remedy if any would arise
only after the publication.60
One of the most frequently quoted explanations of the Supremes Court approach to privacy
is from District Registrar and Collector, Hyderabad and others v. Canara Bank and Ors. 61,
striking down a provision of state law as invalid:
Once we have accepted in Govind and in the later cases that the right to privacy
deals with persons and not places, the documents or copies of documents of the
customer which are in Bank, must continue to remain confidential viz a viz the
person, even if they are no longer at the customers house and have been voluntarily
sent to a bank. If that be the correct view of the law, we cannot accept the line of
Miller in which the Court proceeded on the basis that the right to privacy is
preferable to the right of property theory. Once that is so, then unless there is some
probable or unreasonable cause or reasonable basis or material before the Collector
for reaching an opinion that the document in the possession of the bank tend to secure
any duty or to prove or to lead to the discovery of any fraud or omission in relation to
any duty, the search or taking notes or extracts, therefore, cannot be valid. The above
safeguards must necessary be read into the provision relating to search and
inspection and seizure so as to save it from any unconstitutionality.62

4.2 Tapping of Telephone and the right to privacy:

Emanating from the right to privacy of an individual is the question of tapping of telephone.
Telephone tapping constitutes a serious invasion of an individuals right to privacy. Is it
60 The Delhi High Court has applied the propositions in Khuswant Singh v. Maneka
Gandhi, AIR 2002 Del 58.
61 (2005) 1 SCC496.
62 Graham Greenleaf, Naaz Foundation case expands Indias Constitutional Privacy
Rights; Privacy Laws and Business International Newsletter; Issue 100, August 2009, pp.
24-25.

22

constitutionally permissible in India? If so, within what limits and subject to what
safeguards? The Supreme Court has been called upon to consider these important
constitutional questions.
In R.M. Malkani v. State of Maharashtra,63the Supreme Court stated that the telephonic
conversation of an innocent person would be protected by the Courts against wrongful or
high handed interference by tapping of the conversation by police. But the protection is not
for the guilty against the effort of the police to vindicate the law. This case falls in the pre
Maneka era.
The questions posed above have been more fully considered by the Supreme Court in
Peoples Union for Civil Liberties v. UOI64:
The Court has ruled in the instant case that the right to privacy is a part of the right to life
and personal liberty enshrined under Article 21 of the Constitution. Once the facts in a
given case constitutes the right to privacy, Article 21 is attracted and the said right could not
be curtailed except according to procedure established by law. Whether the right to privacy
can be claimed or has been infringed in a given case would depend on the facts of such case.
The Court has ruled further that telephone conversation is an important facet of mans
private life. The right to hold a telephone conversation is the privacy of ones home or office
without interference can certainly be claimed as right to privacy. Conversations on
telephone are often of an intimate and confidential nature. Telephone conversation is a part of
moderns man life. Tapping of telephones is a serious invasion of privacy. Right to privacy
would certainly include telephone conversation of the privacy of ones home or office. This
means that telephone tapping will infract Article 21 unless it is permitted under the procedure
established by law. The procedure has to be just, fair and reasonable.
Further, talking on a telephone amounts to the exercise by the individual of his right to
freedom of speech and expression protected by Article 19(1)(a), this freedom means the right
to express ones views, convictions and opinion freely by word, mouth, writing, printing,
picture or in any other manner. When a person is talking on telephone, he is exercising his
right to freedom of speech and expression. This means telephone tapping unless it come
within the compass of permissible restrictions under Article 19(2) would infract Article 19(1)
(a).65
In the course of its judgment, the Supreme Court referred to the International Covenant on
Civil and Political Rights, 1966, to which India is a signatory. Article 17 of the Covenant
provides for right of privacy and this provision does not go counter to Article 21 of the Indian
Constitution. Article 12 of the Universal Declaration of Human Rights, 1948 in almost
similar terms. The court has accordingly interpreted Article21 in conformity with
International law.66
63
64
65
66

AIR 1973 SC 157.

AIR 1997 SC 568.
M.P Jain, Indian Constitutional Law, Wadhwa, Nagpur, 5th ed., 2007, pp-1133-1137.
AIR 1997 Sc at 575.

23

4.3 Marital and Sexual Privacy:

Marital and sexual privacy emanate from the penumbras of specific constitutional guarantees.
In Griswold v. Connecticut67Mr. Justice Douglas conceded constitutional basis for right to
privacy in freedom of association. He said, Marriage is coming for better or for worse
hopefully enduring and intimate to the degree of being sacred. It is an association that
promotes a way of life, not causes; a harmony in living, not political; facts, bilateral loyalty,
not commercial or social projects.
In India, constitutionality of Section 9 of the Hindu Marriage Act, 1955 which provides for
the remedy of restitution of conjugal rights posed the question of marital privacy extent. The
Andhra Pradesh High Court in T. Sareetha v. T. Venkatasubbaiah68 quashed it as starkest
form of government invasion of personal identity and individual zone of intimate decisions
protected under Article 21. P.A. Chaudhury for the Court viewed that;
state coercion of this nature can neither prolong nor preserve the voluntary union of
husband and wife in matrimony and that the remedy renders unwilling victims body
a soulless and joyless vehicle for pregnancy.69
Here, the learned judge was evolving the right to privacy from the right not to associate or
right to disassociate which was an aspect of freedom of association under Article 19(1)(c).
The court also applied the right to equality to deal with the question of reasonableness in
exercise of power under Section 9 of the Act of 1955.
In Harvinder Kaur v. Harmander Singh70, the Delhi High Court approached the issue of
stability of marital institution and undesirability of introducing constitutional law into the
ordinary domestic relationship of husband and wife, and upheld the constitutionality of S.9
of the Act. Similarly, in Saroj Rani v. Sudarshan Kumar,71the Supreme Court overruled the
Sareetha principle and upheld the Harvinder Kaur approach. The Court viewed that the
remedy of constitutional rights was based on judicial discretion to be applied in suitable
circumstances and that its method of enforcement was reasonable, thus satisfying the
requirement of Articles 14 and 21.72
In the present era, AIDS has posed a new problem before the Courts regarding conjugal
rights, right to privacy and right to information. The many appreciative steps towards the
protection of right to privacy of HIV infected persons is the direction of the Court to suppress
the identity of the AIDS patients in proceeding before the court. Because after disclosure of
name they suffer from several embarrassments including bad publicity, social seclusion and
67 381 US 479 (1965).
68 AIR 1983 AP 356.
69 Ibid., para 29.
70 AIR 1984 Del. 66.
71 AIR 1984 SC 1562.
72 P. Iswar Bhat, Fundamental Rights: A Study Of Their Interrelationship, Eastern Law
House, New Delhi, 2004, pp.326-328.

24

consequential discrimination in every walk of life. The appeal for the suppression of identity
before court was made in 1977 in the case of MX of Bombay India Inhabitant v. M/s. ZY.73 In
this case, the Division bench passed an order permitting the petitioner to prosecute by
suppressing his identity and therefore, to be named as Mr.MX and also directed that teh
respondent corporation be named ad ZY.
On the basis of the judgment of Supreme Court in Nareshs case there seems no difficulty in
holding that the High court in proper cases and in the interest of administration of justice, can
always permit the plaintiff or the petitioner or the party before it too suppress its identity at
proper stage and prosecute or defend the proceedings in the assumed name. Though the Court
did not say anything in this case about right to privacy but there is clear indication for need to
protect the right to privacy of HIV infected persons.
Whether a husband can claim privacy with his wife or vice versa, is a question, which require
greater attention. The Supreme Court has discussed in different cases the right of a
prospective spouse suffering from AIDS and has ignored the fact that the other prospective
counterpart has a right to seek information about the latters disease from the hospital where
blood report of the latter is available.
In the case of Mr. X v. Hospital Z74, a person was found to be HIV positive and the doctor to
his prospective wife disseminated information. The person preferred a suit against the doctor
for breach of right to privacy and damaged as well. Doctor patient relationship, though a
matter of confidence. In such a situation public disclosure may sometimes lead to the clash of
one person right to be let alone with another persons right to be informed.
Yet in another case Teeku Datta v. State75, Jain, J., held that no party to legal proceeding can
be subjected to any scientific tests such as DNA Test for the purpose of collecting evidence
against his or her will as it infringes upon his or her right to privacy.
In all matrimonial cases, where divorce is sought, say on the ground of impotency,
schizophrenia...etc, normally without there being medical examination, it would be difficult
to arrive at conclusion as to whether allegation made by his spouse against the other spouse
seeking divorce on such a ground, is correct or not. In order to substantiate such allegation,
the petitioner would always insist on medical examination. If respondent avoid such medical
examination on the ground that it violates his or her right to privacy or for a matter personal
liberty as enshrined under Article 21 of the Constitution of India, then it may in most of such
cases become impossible to arrive at a conclusion. Therefore, when there is no right to
privacy specifically conferred by Article 21 of the Constitution of India and with the
extensive interpretation of the word personal liberty, this right has been read into Article 21,
it cannot be treated as absolute right. What is emphasized is that some limitations on this right
have to be imposed and particularly when two competing interests clash. So viewed, the
implicit power of the court to direct medical examination of a party to matrimonial litigation
73 AIR 1994 SC 406.
74 AIR !995 SC 495.
75 AIR 2004 Del 205.

25

in a case of this nature cannot held to be ones right to privacy. Certain laws have been
enacted by the Indian parliament where the accused may be subjected to certain medical or
other tests.
Yet another aspect of the matter is whether compelling a person to take HIV test amounts to
denying the right to privacy? In Kharak Singh v. State of UP and Govind v. State of MP and in
other cases, the Supreme Court held that right to Privacy is one of the penumbral rights of
Article 21 of the Constitution. In all situations, a person can be asked to undergo HIV test
with informed consent. If a person declines to take a test, it is permissible to compel such
person to take the test? The question is whether the right to privacy is violated if a person is
subjected to such test by force without his consent? By the end of the 1991, 36 Federal Sates
in USA enacted legislations regarding informed consent for HIV test. These legislations
intended to promote voluntary test and risk reduction counselling. In USA, law also applies
for involuntary tests and disclosure of information about the people in prisons, mental
hospitals, juvenile facilities and residential homes for mentally disabled persons.
In India, there is no general law as such to compel person to undergo HIV/AIDS test. Indeed,
Article 20 of the Constitution states that no person accused of any offence shall be compelled
to a witness against himself. It confers privilege against self-incrimination; the protection of
right to privacy of individual seems to be the very purpose of the privilege. As a matter of
fact, the right to privacy is pregnant with an objective to protect and preserve the concept of
individuality by putting a kind of compulsive force as to keep away all the factors that may
amount to violation of privacy. This privilege shows respect for the inviolability of human
dignity. The right to privacy of an individual related to a private zone wherein he may enjoy
his private life.
However, in cases of divorce on the ground that the other spouse is suffering from HIV/AIDS
or in the case under Section 269 and 270 of the IPC, a person may be compelled to give blood
specimen for HIV test. The immunity under Article 20 does not extend to compulsion of
giving blood specimens.
In the United States of America, laws providing for medical examination have been held not
to violate the Fifth Amendment of the US Constitution. In Armendo Schmerbet v. State of
California76, obtaining of an alcohol test has been held not to be unconstitutional. Similarly,
in Paul H. Breithaupt v. Morris Abram77, taking of blood sample from an accused has been
held not to be in violation of 5th Amendment. In Charles Joseph Kastigar and Michael
Gorean Stewart v. United States78, it is stated:

the power of the government to compel persons to test in Court or before grand
juries and other governmental agencies is firmly established, but it is not absolute,
being subject to a number of exemptions, the most important of which is the fifth
Amendment privilege against self-incrimination. 79
76 384 US 757.
77 352 US 432.
78 US 32 L. Ed. 2d 212

26

CHAPTER-6
CONCLUSION
Our Constitution does not specifically guarantee right to privacy but through the
judicial interpretation, it has got the status of a fundamental right under Article 21, but
still the content and extent of this right is not clear. The protection of privacy under the
right to human dignity enshrined in Article 21 is not sufficient to include all the
aspects of privacy. Along with the right to privacy the dimensions of right to know is
also taking place side by side and it is quite possible that there may occur a conflict
between the two. Ones privacy right may offend other information right. And
therefore, heavy burden lies upon the judiciary to balance the tilt.
79 Shriniwas Gupta and Preeti Mishra, Right to Privacy: An Analysis of Developmental
Process in India, America and Europe, Central India Law Quarterly, taken from www.cili.in
on 08th January 2010.

27

Though the privacy has never been claimed as a matter of legal right either against
state or individuals, but with the passage of time people have started thinking about
thier privacy rights. Even the husband and wife, who were once treated as one single
unit, are nowadays talking about thier privacy interse. Even children are demanding
right to privacy, they do not want interference in thier life of thier parents. The
significance of the right to privacy has enormously increased in the socials set up as a
rapid development in the field of technology and communication has vested us with
enormous sophisticated electronic and computer devices that have increased the
chances of direct and indirect intrusion in the area of individual privacy. Camera, cell
phones, mini cameras, microphones and other surveillance devices are just enemies of
the right to privacy as they are being used and would also be used in future to
maintain a check over the right to privacy of citizens. A computer can store hundreds
of thousands of most personal information of which one may remain quite unaware.
Today a sensitive microphone can record even the whispering from quite a long
distance and one would never come to realize even this fact.
Though Article 21 has received its widest amplitude in recent years including many
aspects of privacy in relation to property, marriage, sex and family under the garb of
human dignity and enjoyment of life, but it must also provide exceptions to right to
privacy under the Constitution itself so that the socio economic goals of the state may
not be hampered. The norms of privacy should be determined and measured to a
common standard because a right without description is a right without protection.
The uncertainty about the conceptual basis of privacy and its protection be removed
immediately. It may be hoped that when an appropriate case comes before the Apex
Court, it would make an overall review and reconsider the existing position regarding
the right to privacy.

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28

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8. Basu DD
Commentary on the Constitution of India
Lexis Nexis, Buttersworth, Wadhwa, 8th ed., 2008.
9. Fliflet Arne
Protection of the Privacy: Legal Challenges and Responses,
The Danish Ombudsman 50 Years and the 9th Round Table Meeting of European
Ombudsperson and the Council For Europe Commissioner for Human Rights
www.ioi-europe.org
10. Gupta Shriniwas and Preeti Mishra

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Right to Privacy: An Analysis of Developmental Process in India, America And

Europe
Central Law India Quaterly, www.cili.in
11. Greenleaf Graham
Naaz Foundation Case expands Indias Constitutional Privacy Rights
Privacy Laws and Business International Newsletter, Issue 100.
12. Oberoi Namit
The Right to privacy: Tracing the Judicial Approach following the Kharak Singh
www.indlaw.com
13. Closkey Mc. J.
Privacy and the Right to Privacy
Cambridge University Press, Vol 55, No. 211