- Sep 2017
State does have a legitimate interest when it monitors the web to secure the nation against cyber attacks and the activities of terrorists.
Legitimate state interest
Apart from national security, the state may have justifiable reasons for the collection and storage of data. In a social welfare state, the government embarks upon programmes which provide benefits to impoverished and marginalised sections of society. There is a vital state interest in ensuring that scarce public resources are not dissipated by the diversion of resources to persons whodo not qualify as recipients
Limits on privacy, national security and public good
While it intervenes to protect legitimate state interests, the state must nevertheless put into place a robust regime that ensures the fulfilment of a three-fold requirement. These three requirements apply to all restraints on privacy (not just informational privacy). They emanate from the procedural and content-based mandate of Article 21. The first requirement that there must be a law in existence to justify an encroachmenton privacy is an express requirement of Article 21. For, no person can be deprived of his life or personal liberty except in accordance with the procedure established by law. The existence of law is an essential requirement. Second, the requirement of aneed, in terms of a legitimate state aim, ensures that the nature and content of the law which imposes the restriction falls within the zone of reasonableness mandated by Article 14, which is a guarantee against arbitrary state action. The pursuit of a legitimate state aim ensures that the law does not suffer from
21 obligates the state to take steps to protect privacy (even in horizontal relationships?)
Liberty has a broader meaning of which privacy is a subset. All liberties may not be exercised in privacy. Yet others can be fulfilled only within a private space. Privacy enables the individual to retain the autonomy of the body and mind. The autonomy of the individual is the ability to make decisions on vital matters of concern to life
Privacy as subset of liberty
Privacy attaches to the person and not to the place where it is associated
Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity in creating a zone of solitude.
privacy and heterogenity
The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality. The notion of privacy enables the individual to assert and control the human element which is inseparable from the personality of the individual. The inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life. The autonomy of the individual is associated over matters which can be kept private. These are concerns over which there is a legitimate expectation of privacy. The body and the mind are inseparable elements of the human personality. The integrity of the body and the sanctity of the mind can exist on the foundation that each individual possesses an inalienable ability and right to preserve a private space in which the human personality can develop. Without the ability to make choices, the inviolability of the personality would be in doubt. Recognizing a zone of privacy is but an acknowledgment that each individual must be entitled to chart and pursue the course of development of personality. Hence privacy is a postulate of human dignity itself.
privacy and autonomy. Privacy a postulate of human dignity
procedure established by law’ in Article 21 does not connote a formalistic requirement of a mere presence of procedure in enacted law. That expression has been held to signify the content of the procedure and its quality which must be fair, just and reasonable. The mere fact that the law provides for the deprivation of life or personal liberty is not sufficient to conclude its validity and the procedure to be constitutionally valid must be fair, just and reasonable. The quality of reasonableness does not attach only to the content of the procedure which the law prescribes with reference to Article 21 but to the content of the law itself. In other words, the requirement of Article 21 is not fulfilled only by the enactment of fair and reasonable procedure under the law and a law which does so may yet be susceptible to challenge on the ground that its content does notaccord with the requirements of a valid law. The law is open to substantive challenge on the ground that it violates the fundamental right
Fair, just and reasonable
The word ‘procedure’ in Article 21 is wide enough to cover the entire process by which deprivation is effected and that would include not only the adjectival but also the substantive part of law
the lack of substance in the submission that privacy isa privilege for the few. Every individual in society irrespective of social class or economic status is entitled to the intimacy and autonomy which privacy protects. It is privacy as an intrinsic and core feature of life and personal liberty which enables an individual to stand up against a programme of forced sterilization. Then again, it is privacy which is a powerful guarantee if the State were to introduce compulsory drug trials of non-consenting men or women. The sanctity of marriage, the liberty of procreation, the choice of a family life and the dignity of being are matters which concern every individual irrespective of social strata or economic well being
privacy not the privilege of a few
This submissionbetrays a misunderstanding of the constitutional position. Our Constitution places the individual at the forefront of its focus, guaranteeing civil and political rights in Part III and embodying an aspiration for achieving socio-economic rights in Part IV. The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised though history to wreak the most egregious violations of human rights. Above all, it must be realised that it is the right to question, the right to scrutinize and the right to dissent which enables an informed citizenry to scrutinize the actions of government. Those who are governed are entitled to question those who govern, about the discharge of their constitutional duties including in the provision of socio-economic welfare benefits. The power to scrutinize and to reason enables the citizens of a democratic polity to make informed decisions on basic issues which govern their rights. The theory that civil and political rights are subservient to socio-economic rights has been urged inthe past and has been categorically rejected in the course of constitutional adjudication by this Court.
Individual at the centre of constitutional protections. civil and political rights cannot be subservient to socio-economic rights.
right to privacy must be forsaken in the interest of welfare entitlements provided by the State
privacy is an elitist concern
The submission betrays lack of understanding of the reason why rights are protected in the first place as entrenched guarantees in a Bill of Rights or, as in the case of the Indian Constitution, as partof the fundamental rights. Elevating a right to the position of a constitutionally protected right places it beyond the pale of legislative majorities. When a constitutional right such as the right to equality or the right to life assumes the character of being a part of the basic structure of the Constitution, it assumes inviolable status: inviolability even in the face of the power of amendment. Ordinary legislation is not beyond the pale of legislativemodification. A statutory right can be modified, curtailed or annulled by a simple enactment of the legislature. In other words, statutory rights are subject to the compulsion of legislative majorities. The purpose of infusing a right with a constitutional element is precisely to provide it a sense of immunity from popular opinion and, as its reflection, from legislative annulment.
that there is a statutory regime by virtue of which the right to privacyis adequately protected and hence it is not necessary to read a constitutional right to privacy into the fundamental rights. This submission is sought to be fortified by contending that privacy is merely a common law right and the statutory protection is a reflection of that position
A statutory and common law right to privacy negates the need for a constitutional right
The interpretation of the Constitution cannot be frozen by its original understanding. The Constitution has evolved and must continuously evolve
Clarke's maslow pyramid classification
- bodily privacy
- spatial privacy
- privacy of communication
- privacy of personal data
Westin's four states of privacy - solitude, intimacy, anonymity, reservation
dangers of privacy when it is used to cover up physical harm done to women by perpetrating their subjection.
Feminist critique of privacy
privacy protects liberty and that “privacy protection gains for us the freedom to define ourselves and our relations to others”311. This rationale understands the relationship between liberty and privacy by stipulating that while liberty is a broader notion, privacy is essential for protecting liberty.
Response to the reductionist critique
privacy should be protected only when access to information would reduce its value such as when a student is allowed access to a letter of recommendation for admission, rendering such a letter less reliable. According to Posner, privacy when manifested as control over information about oneself, is utilised to mislead or manipulate others
Economic critique of privacy - posner
Judith Jarvis Thomson,in an article published in 1975, noted that while there is little agreement on the content of privacy, ultimately privacy is a cluster of rights which overlap with property rights or the right to bodily security. In her view, the right to privacy is derivative in the sense that a privacy violation is better understood as violation of a more basic right
Reductionist critique of privacy - JJ Thomson used by respondents to support the argument that privacy itself is not a right, but privacy violations may lead to other violations.
privacy is a concept which does not have any specific meaning or definition and the expression is inchoate; and (v) the draftsmen of the Constitution specifically did not include such a right as part of the chapter on fundamental rights and even the ambit of the expression liberty which was originally sought to be used in the draft Constitution was pruned to personal liberty. These submissions have been buttressed by Mr Aryama Sundaram, learned senior counsel.
Arguments advanced against privacy cntd.
The submission has several facets, among them being: (i)there is no general or fundamental right to privacy under the Constitution; (ii) no blanket right to privacy can be read as part of the fundamental rights and where some of the constituent facets of privacy are already covered by the enumerated guarantees in Part III, those facets will be protected in any case; (iii) where specific species of privacy are governed by the protection of liberty in Part III of the Constitution, they are subject to reasonable restrictions in the public interest as recognized in several decisions of this Court
Arguments advanced against privacy
Where there is a contradiction between international law and a domestic statute, the Court would give effect to the latter. In
If contradiction, then domestic law takes precedence. If no contradiction, international obligations must be read so as to be incorporated
In Vishakav State of Rajasthan226, this Court observed that in the absence of domestic law, the Convention on the Elimination of Discrimination against Women (CEDAW) is applicable
Vishakha - applicability of international instruments in the absence of domestic law.
while acceding to the ICCPR, India did not file any reservation or declaration to Article 17. While India filed reservations against Articles 1, 9 and 13, there was none to Article 17
Not reservation against Article 17 of ICCPR
Article 17 of the ICCPR provides thus:“The obligations imposed by this article require the State to adopt legislative and other measures to give effect to the prohibition against such interferences and attacks as well as to the protection of the right.”
Article 12 of the Universal Declaration of Human Rights
Article 51 of the Constitution, which forms part of the Directive Principles, requires the State to endeavour to “foster respect for international law and treaty obligations in the dealings of organised peoples with one another
Article 51 - basis for incorporating international law and obligations
The de minimishypothesis is misplaced because the invasion of a fundamental right is not rendered tolerable when a few, as opposed to a large number of persons, are subjected to hostile treatment. The reason why such acts of hostile discrimination are constitutionally impermissible is because of the chilling effect which they have on the exercise of the fundamental right in the first place
De minimis principle
The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular. The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion. The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection
Need for fundamental rights, and statutory protection not being sufficient
Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.
Sexual orientation as an element of privacy
where any right which existed before the commencement of the Constitution has been incorporated in Part III, the common law right would not exist under the Constitution. In a concurring judgment Justice Beg held that while adopting the Constitution, therewas a notional surrender by the people of India of the control over these rights to a sovereign republic and it is only the Constitution which is supreme and which can confer rights and powers
ADM Jabalpur - All rights conferred by constitution. Any rights pre-existing and not covered under Part III have been surrendered.
To recognise the value of privacy as a constitutional entitlement and interest is notto fashion a new fundamental right by a process of amendment through judicial fiat. Neither are the judges nor is the process of judicial review entrusted with the constitutional responsibility to amend the Constitution. But judicial review certainly hasthe task before it of determining the nature and extent of the freedoms available to each person under the fabric of those constitutional guarantees which are protected. Courts have traditionally discharged that function and in the context of Article 21 itself, as we have already noted, a panoply of protections governing different facets of a dignified existence has been held to fall within the protection of Article 21.
Recognition of rights which are facets of already existing rights is not beyond the scope of judicial review
The sanctity of privacy lies in its functional relationship with dignity. Privacy ensures that a human being can lead a life of dignity by securing the inner recesses of the human personality from unwanted intrusion. Privacy recognises the autonomy of the individual and the right of every person to make essential choices which affect the course of life
privacy as an element of dignity
We are unable to agree with the contention that in order to build a welfare State, it is necessary to destroy some of the human freedoms. That, at any rate is not the perspective of our Constitution. Our Constitution envisages that the State should without delay make available to all the citizens of this country the real benefits of those freedoms in a democratic way
rights v welfare state
The submission that recognising the right to privacy is an exercise which would require a constitutional amendment and cannot be a matter of judicial interpretation is not an acceptable doctrinal position
Recognition of rights does not require a constitutional amendment
Privacy with its attendant values assures dignity to the individual and it is only when life can be enjoyed with dignity can liberty be of true substance. Privacy ensures the fulfilment of dignity and is a core value which the protection of life and liberty is intended to achieve
privacy interconnected with dignity
So fundamental is dignity that it permeates the core of the rights guaranteed to the individual by Part III.
Dignity permeates through Part III
Dignity, the Court held, is not something which is conferred and which can be taken away, because it is inalienable
Dignity is inalienable. Not conferred by Constitution but inheres in human life.
Reflections of dignity are found in the guarantee against arbitrariness (Article 14), the lamps of freedom (Article 19) and in the right to life and personal liberty (Article 21)
Dignity cuts through 14, 19 and 21
the inseparable relationship between protection of life and liberty with dignity
Dignity intrinsically linked to life and liberty in 21
The individual lies at the core of constitutional focus and the ideals of justice, liberty, equality and fraternity animate the vision of securing a dignified existence to the individual.
the primacy of the individual in the preamble and the constitution
narrow tailoring of the regulation to meet the needs of a compelling interest
Narrow tailoring + compelling interest test
The view about the absenceof a right to privacy is an isolated observation which cannot coexist with the essential determination rendered on the first aspect of the regulation. Subsequent Benches of this Court in the last five decades and more, have attempted to make coherent doctrine out of the uneasy coexistence between the first and the second parts of the decision in Kharak Singh
Kharak Singh - the observation on absence of rt to privacy an isolated one at variuance with the first part?
The observation in regard to the absence of the right to privacy in our Constitution was strictly speaking, not necessary for the decision of the Court in M PSharmaand the observation itself is no more than a passing observation.
Observations on privacy in MP Sharma not part of the ratio
adverted to international conventions acceded to by India including the UDHR and ICCPR. Provisions in these conventions which confer a protection against arbitrary and unlawful interference with a person’s privacy, family and home would, it was held, be read in a manner which harmonizes the fundamental rights contained in Articles 14, 15, 19 and 21 with India’s international obligations
Nalsa - recognition of international conventions in interpreting FRs
our considered opinion that subjecting a person to the impugned techniques in an involuntary manner violates the prescribed boundaries of privacy. Forcible interference with a person's mental processes is not provided for under any statute and it most certainly comes into conflict with the “right against self-incrimination”
Narco analysis, polygraph etc. right not to be compelled to give evidence seen as part of privacy as well, esp where investigative techniques involve interference with metal processes.
The crucial consideration is that a woman's right to privacy, dignity and bodily integrity should be respected
Woman's right to choose
Also, a large number of people are non-vegetarian and they cannot be compelled to become vegetarian for a long period. What one eats is one's personal affair and it is a part of his right to privacy which is included in Article 21 of our Constitution as held by several decisions of this Court.
Hinsa Virodhak Sangh - aside from right to practise trade under 19 (1) (g), right to make one's eating choices was also invoked - example of privacy including decisional autonomy.
Important to note that this principles is qualified by only being applied if the ban was for a considerable period of time
reasonable expectation that it will be utilised
Does the constitutional right to privacy envisage the purpose limitation principle? Does it only apply to state/private parties acting on behalf of state or for purely horizontal relationships as well?
access to bank records to the Collectordoes not permit a delegation of those powers by the Collector to a private individual. Hence even when the power to inspect and search is validly exercisable by an organ of the state, necessary safeguards would be required to ensure that the information does not travel to unauthorised private hands.
Where delegation of responsibilities, need for proper safeguards. Very relevant observation in the context of PPP models of governance and data collection/processing
India’s international commitments under the Universal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights(ICCPR)
ICCPR and UDHR as instrumental in foundation for affirmation of privacy
The significance of the judgment in Canara Banklies first in its reaffirmation of the right to privacy as emanating from the liberties guaranteed by Article 19 and from the protection of life and personal liberty under Article 21
privacy derived from freedoms under 19, as well life and liberty under 21
Court repudiated the notion that a person who places documents with a bank would, as a result, forsake an expectation of confidentiality. In the view of the Court, even if the documents cease to be at a place other than in the custody and control of the customer, privacy attaches to persons and not places and hence the protection of privacy is not diluted
2 important observations
recognition of privacy attached to persons and and not places (moving beyond a propertarian view of privacy)
sharing of information does not lead to forsaking a reasonable expectation of privacy. Without reference, repudiation of third party doctrine. privacy not quivalent with secrecy.
penumbras created by the Bill of Rights resulting in a zone of privacy101leading up eventually to a “reasonable expectation of privacy”
Canara Bank - reference made to penumbra of rights creating a zone of privacy
The need to read the fundamental constitutional guarantees with a purpose illuminated by India’s commitment to the international regime of human rights’ protection also weighed in the decision
reading FRs in light of international commitments
Article 21, in the view of the Court, has to be interpreted in conformity with international law
While it is true that in Rajagopalit is a private publisher who was seeking to publish an article about a death row convict, itis equally true that the Court dealt with a prior restraint on publication imposed by the
DYC responds to Bhatia's critique of Rajagopal. While Rajagopal dealt with private actions, Frs are invoked due to state action in the form restraint placed on the publication by the state and prison officials.
The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21
Rajagopal - recignition of privacy as implicit in liberty
bodily integrity of a woman, as an incident of her privacy.
Maharashtra v. Madhukar two imp. observations - a woman of easy virtue is also entitled to the same constitutional protections. furthers the view that rights are available to all citizens (counter to the view in Malkani which said that privacy is not to protect the guilty)
more importantly, established a woman's bodily integrity as a part of privacy
observations in Malak Singhon the issue of privacy indicate that an encroachment on privacy infringes personal liberty under Article 21 and the right to the freedom of movement under Article 19(1)(d). Without specifically holding that privacy is a protected constitutional value under Article 19 or Article 21, the judgment of this Court indicates that serious encroachments on privacy impinge upon personal liberty and the freedom of movement
Malak SIngh is on lines of the view of advanced by the respondents, that some violations of privacy could infringe other recognised rights such as personal liberty under 21 or freedom of movement under 19 (1) (d)
This analysis of the decision in Gobindassumes significance because subsequent decisions of smaller Benches have proceeded on the basis that Gobinddoes indeed recognise a right to privacy
Subsequent judgments follow the mistaken belief that Gobind recognises a right to privacy
implicit in the concept of ordered liberty
Gobind traces privacy to ordered liberty in 21
Yet a close reading of the decision in Gobindwould indicate that the Court eventually did not enter a specific finding on the existence of a right to privacy under the Constitution
Gobind did not expressly recognize the right to privacy
he personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing
dimensions of privacy inclusively enumerated in Gobind
Gobind decided in the post Griswold, post Roe v Wade world. Penumbral rights created by specific rights
the targeted andspecific nature of the interception which weighed with the Court, the telephone tapping being directed at a guilty person
Targeted and specific seen as relevant even while denying right to privacy. However, in this case because it is targeted at a guilty person, it is somehow seen as a lower standard of rights being available, by the courts.
rights which individuals while making a social compact to create a government, reserve to themselves, are natural rights because they originate in a condition of nature and survive the social compact
Patterson on natural rights surviving the social contract
The idea that individuals can have rights against the State that are prior to rights created by explicit legislation has been developed as part of a liberal theory of law propounded by Ronald Dworkin
Rights predating the recognition through explicit legislation (Dworkin)
The notion that certain rights are inalienable was embodied in the American Declaration of Independence
Recognition of natural rights by the American Declaration of Independence
Kharak Singhregards the sanctity of the home and the protection against unauthorized intrusion an integral element of “ordered liberty”
the above extract indicates the view of the majority that the right of privacy is not guaranteed under the Constitution
Gopalan, Chief Justice Kania, speaking for a majority of five of the Bench of six judges, construed the relationship between Articles 19 and 21 to be one of mutual exclusion. In this line of enquiry, what was comprehended by Article 19 was excluded from Article 21. The seven freedoms of Article 19 were not subsumed in the fabric of life or personal liberty in Article 21
PART D18The consequence was that a law which curtailed one of the freedoms guaranteed by Article 19 would be required to answer the tests of reasonableness prescribed by clauses 2 to 6 of Article 19 and those alone. In the Gopalanperspective, free speech and expression was guaranteed by Article 19(1)(a) and was hence excluded from personal liberty under Article 21
the fundamental rights are not isolated and separate but protect a common thread of liberty and freedom
Preventive detention, which is dealt with an Article 22, also amounts to deprivation of personal liberty which is referred to in Article 21, and is a violation of the right of freedom of movement dealt with in Article 19(1)(d)
The theory that the fundamental rights are water-tight compartments was discarded in the judgment of eleven judges of this Court in Cooper
There can be no doubt that in view of the decision of this Court inR.C. Cooperv.Union of India[(1970) 2 SCC 298 : (1971) 1 SCR 512] the minority view must be regarded as correct and the majority view must be held to have been overruled
Cooper clarifies that minority view in Kharak Singh is the correct view.
A law which provides for a deprivation of life or personal liberty under Article 21 mustlay down not just any procedure but a procedure which is fair, just and reasonable.
Procedure established by law in 21 needs to be fair, just and reasonable
Firstly, the fundamental rights emanate from basic notions of liberty and dignity and the enumeration of some facets of liberty as
Summation of Maneka+Coper position
Secondly, the validity of a law which infringes the fundamental rights has to be tested not with reference to the object of state action but on the basis of its effect on the guarantees of freedom.
the requirement of Article 14 that state action must not be arbitrary and must fulfil the requirement of reasonableness
The decision of the majority in Kharak Singhsuffers from an internal inconsistency.
Internal inconsistency in Kharak Singh. Part reliance on the privacy doctrine in Wolf v. Colorado to repel the domiciallry visits by reading it into ordered liberty, yet denial of privacy under 21.
Aristotle’s distinction between the public and private realms can be regarded as providing a basis for restricting governmental authority to activities falling within the public realm.
Aristotle's Public v private sphere. Role of government restricted to public sphere. Early conception of a sphere of rights (?) repelling state action
Mill posited that the tyranny of the majority could be reined by the recognition of civil rights such as the individual right to privacy, free speech, assembly and expression
Mill's conception of civil liberties to counter majoritarian actions
If the reason for protecting privacy is the dignity of the individual, the rationale for its existence does not cease merely because the individual has to interact with others in the public arena. The extent to which an individual expects privacy in a public street may be different from that which she expects in the sanctity of the home
'Man is a social animal' is not a valid counter to right to privacy
traced the recognition of an inviolable zone to an inalienable right to property. Property is construed in the broadest sense to include tangibles and intangibles and ultimately to control over one’s conscience itself
Madison's propertarian view of privacy
in reality not the principle of private property, but that of an inviolate personality
Warren & Brandeis - Early conception that privacy rests not in places, but in persons
t finds an origin in the notion that there are certain rights which are natural to or inherent in a human being
Privacy as a natural right
- Due process
- Kesavananda Bharati
- Kharak Singh
- Vertical v. Horizontal
- Privacy jurisprudence in India
- ADM Jabalpur
- Public v Private sphere
- Parts of privacy
- Purpose Limitation
- Canara Bank
- International instruments
- Malak Singh
- Limits on privacy
- MP Sharma
- decisional autonomy
- Critiques of privacy
- Suchitra Srivastava
- Scholarly works