Thursday, 26 December 2013
Directive principles have no more remained as Directions
Directive principles have no more remained as Directions
Right to privacy is a Fundamental Right
Right to privacy is a Fundamental Right
The Supreme Court has reiterated the Right to Privacy in the following cases:
Kharak Singh v. State of UP[7] In this case the appellant was being harassed by police under Regulation 236(b) of UP Police Regulation, which permits domiciliary visits at night. The Supreme Court held that the Regulation 236 is unconstitutional and violative of Article 21. It concluded that the Article 21 of the Constitution includes “right to privacy” as a part of the right to “ protection of life and personal liberty”. The Court equated ‘personal liberty’ with ‘privacy’, and observed, that “the concept of liberty in Article 21 was comprehensive enough to include privacy and that a person’s house, where he lives with his family is his ‘castle’ and that nothing is more deleterious to a man’s physical happiness and health than a calculated interference with his privacy”.
Gobind v. State of M.P.[8] is another case on domiciliary visits. The Supreme Court laid down that “…privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior. If the Court does find that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling State interest tests…”
State v. Charulata Joshi,[9] the Supreme Court held that “the constitutional right to freedom of speech and expression conferred by Article 19(1)(a) of the Constitution which includes the freedom of the press is not an absolute right. The press must first obtain the willingness of the person sought to be interviewed and no court can pass any order if the person to be interviewed expresses his unwillingness”.
R. Rajagopal v. State of Tamil Nadu,[10] the Supreme Court held that the petitioners have a right to publish what they allege to be the life-story/autobiography of Auto Shankar insofar as it appears from the public records, even without his consent or Authorization. But if they go beyond that and publish his life story, they may be invading his right to privacy, then they will be liable for the consequences in accordance with law. Similarly, the State or its officials cannot prevent or restraint the said publication. It Stated that “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 consent- whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages…….”
People’s Union for Civil Liberties (PUCL) v. Union of India,[11] the Supreme Court held that the telephone tapping by Government under S. 5(2) of Telegraph Act, 1885 amounts infraction of Article 21 of the Constitution of India. Right to privacy is a part of the right to “life” and “personal liberty” enshrined under Article 21 of the Constitution. The said right cannot be curtailed “except according to procedure established by law”.
In Mr. ‘X’ v. Hospital ‘Z’,[12] for the first time the Supreme Court articulated on sensitive data related to health. In this case, the appellant’s blood test was conducted at the respondent’s hospital and he was found to be HIV (+). His marriage, which was already settled, was called off after this revelation. Several persons including the members of his family and those belonging to their community came to know of his HIV (+) status and was ostracized by the community. He moved the Supreme Court by way of an appeal against decision of National Commission and argued that doctor-patient relationship, though basically commercial, is professionally, a matter of confidence and, therefore, doctors are morally and ethically bound to maintain confidentiality.” It however, held that although it was the basic principle of jurisprudence that ‘every Right has a correlative Duty and every Duty has a correlative Right’, the rule was not absolute and was ‘subject to certain exceptions’ in the sense that ‘a person may have a Right, but there may not be correlative Duty, and the instant case fell within exceptions. The court observed that even the Code of Medical Ethics carved out an exception to the rule of confidentiality and permitted the disclosure in certain circumstances ‘under which public interest would override the duty of confidentiality’ particularly where there is ‘an immediate or future health risk to others’. According to the court, the ‘right to confidentiality, if any, vested in the appellant was not enforceable in the present situation, as the proposed marriage carried with it the health risk from being infected with the communicable disease from which the appellant suffered. The Supreme Court observed that as one of the basic human rights, the right of privacy was not treated as absolute and was ‘subject to such action as may be lawfully taken for the prevention of crime or disorder or protection of health or morals or protection of rights and freedom of others.”
District Registrar and Collector v. Canara Bank,[13] it was held, that “exclusion of illegitimate intrusions into privacy depends on the nature of the right being asserted and the way in which it is brought into play; it is at this point that the context becomes crucial, to inform substantive judgment. If these factors are relevant for defining the right to privacy, they are quite relevant whenever there is invasion of that right by way of searches and seizures at the instance of the State.”
If one follows the judgments given by the Hon’ble Supreme Court, three themes emerge:
that the individual’s right to privacy exists and any unlawful invasion of privacy would make the ‘offender’ liable for the consequences in accordance with law;
that there is constitutional recognition given to the right of privacy which protects personal privacy against unlawful governmental invasion;
that the person’s “right to be let alone” is not an absolute right and may be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others;
On the basis of a dispassionate perusal of the aforementioned judicial rulings, it is evident that there is an implied, unenumerated, but judicially- evolved and recognized right to privacy under the Indian Constitution. The shift in judicial interpretation is most notably observed following the Maneka Gandhi case,[14] wherein this right is recognized, subject to legal restrictions satisfying the requirements as laid down in the Maneka Gandhi case. However, if the courts were to address the issue of right to privacy under Article 21 afresh, there is little doubt that it would conclude that there does exist a right to privacy. On a harmonious interpretation of the legal principles as laid down by the Supreme Court at different points of time, it is sufficient to conclude the existence of right to privacy under Part III of the Constitution. Privacy is also a feature of the dignity of an individual that the preamble to the Constitution assures every individual. Thus the right is not merely a negative mandate upon the state not to encroach upon the private space of the individual but is also a positive affirmation on the state to create adequate institutions that would enable one to effectively protect his private life. [15] Thus the right to privacy has a strong constitutional edifice.
[1] AIR 1963 SC 1295
[2] The New Oxford Dictionary, (Vol. 2, 1993)
[3] Black’s Law Dictionary, (6th Ed., 1990)
[4] Hyman Gross, the Concept of Privacy, 42 N.Y.U.L. Rev. 36, 36 (1967)
[5] Olmstead v United States, 277 U.S. 438, 478
[6] Article 8 of the European Convention on Human Rights & Article 17 of the International Covenant on Civil and Political Rights, 1976
[7] AIR 1963 SC 1295
[8] (1975) 2 SCC 148
[9] (1999) 4 SCC 65
[10] AIR 1995 SC 264
[11] (1997) 1 SCC 301
[12] (1998) 8 SCC 296)
[13] (2005) 1 SCC 496
[14] Maneka Gandhi v. Union of India, AIR 1978 SC 597, 621
[15] R. Unger, Knowledge and Politics (1975), as referred to in Lawrence H. Tribe, American Constitutional Law 1305 (1988).
The Supreme Court has reiterated the Right to Privacy in the following cases:
Kharak Singh v. State of UP[7] In this case the appellant was being harassed by police under Regulation 236(b) of UP Police Regulation, which permits domiciliary visits at night. The Supreme Court held that the Regulation 236 is unconstitutional and violative of Article 21. It concluded that the Article 21 of the Constitution includes “right to privacy” as a part of the right to “ protection of life and personal liberty”. The Court equated ‘personal liberty’ with ‘privacy’, and observed, that “the concept of liberty in Article 21 was comprehensive enough to include privacy and that a person’s house, where he lives with his family is his ‘castle’ and that nothing is more deleterious to a man’s physical happiness and health than a calculated interference with his privacy”.
Gobind v. State of M.P.[8] is another case on domiciliary visits. The Supreme Court laid down that “…privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior. If the Court does find that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling State interest tests…”
State v. Charulata Joshi,[9] the Supreme Court held that “the constitutional right to freedom of speech and expression conferred by Article 19(1)(a) of the Constitution which includes the freedom of the press is not an absolute right. The press must first obtain the willingness of the person sought to be interviewed and no court can pass any order if the person to be interviewed expresses his unwillingness”.
R. Rajagopal v. State of Tamil Nadu,[10] the Supreme Court held that the petitioners have a right to publish what they allege to be the life-story/autobiography of Auto Shankar insofar as it appears from the public records, even without his consent or Authorization. But if they go beyond that and publish his life story, they may be invading his right to privacy, then they will be liable for the consequences in accordance with law. Similarly, the State or its officials cannot prevent or restraint the said publication. It Stated that “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 consent- whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages…….”
People’s Union for Civil Liberties (PUCL) v. Union of India,[11] the Supreme Court held that the telephone tapping by Government under S. 5(2) of Telegraph Act, 1885 amounts infraction of Article 21 of the Constitution of India. Right to privacy is a part of the right to “life” and “personal liberty” enshrined under Article 21 of the Constitution. The said right cannot be curtailed “except according to procedure established by law”.
In Mr. ‘X’ v. Hospital ‘Z’,[12] for the first time the Supreme Court articulated on sensitive data related to health. In this case, the appellant’s blood test was conducted at the respondent’s hospital and he was found to be HIV (+). His marriage, which was already settled, was called off after this revelation. Several persons including the members of his family and those belonging to their community came to know of his HIV (+) status and was ostracized by the community. He moved the Supreme Court by way of an appeal against decision of National Commission and argued that doctor-patient relationship, though basically commercial, is professionally, a matter of confidence and, therefore, doctors are morally and ethically bound to maintain confidentiality.” It however, held that although it was the basic principle of jurisprudence that ‘every Right has a correlative Duty and every Duty has a correlative Right’, the rule was not absolute and was ‘subject to certain exceptions’ in the sense that ‘a person may have a Right, but there may not be correlative Duty, and the instant case fell within exceptions. The court observed that even the Code of Medical Ethics carved out an exception to the rule of confidentiality and permitted the disclosure in certain circumstances ‘under which public interest would override the duty of confidentiality’ particularly where there is ‘an immediate or future health risk to others’. According to the court, the ‘right to confidentiality, if any, vested in the appellant was not enforceable in the present situation, as the proposed marriage carried with it the health risk from being infected with the communicable disease from which the appellant suffered. The Supreme Court observed that as one of the basic human rights, the right of privacy was not treated as absolute and was ‘subject to such action as may be lawfully taken for the prevention of crime or disorder or protection of health or morals or protection of rights and freedom of others.”
District Registrar and Collector v. Canara Bank,[13] it was held, that “exclusion of illegitimate intrusions into privacy depends on the nature of the right being asserted and the way in which it is brought into play; it is at this point that the context becomes crucial, to inform substantive judgment. If these factors are relevant for defining the right to privacy, they are quite relevant whenever there is invasion of that right by way of searches and seizures at the instance of the State.”
If one follows the judgments given by the Hon’ble Supreme Court, three themes emerge:
that the individual’s right to privacy exists and any unlawful invasion of privacy would make the ‘offender’ liable for the consequences in accordance with law;
that there is constitutional recognition given to the right of privacy which protects personal privacy against unlawful governmental invasion;
that the person’s “right to be let alone” is not an absolute right and may be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others;
On the basis of a dispassionate perusal of the aforementioned judicial rulings, it is evident that there is an implied, unenumerated, but judicially- evolved and recognized right to privacy under the Indian Constitution. The shift in judicial interpretation is most notably observed following the Maneka Gandhi case,[14] wherein this right is recognized, subject to legal restrictions satisfying the requirements as laid down in the Maneka Gandhi case. However, if the courts were to address the issue of right to privacy under Article 21 afresh, there is little doubt that it would conclude that there does exist a right to privacy. On a harmonious interpretation of the legal principles as laid down by the Supreme Court at different points of time, it is sufficient to conclude the existence of right to privacy under Part III of the Constitution. Privacy is also a feature of the dignity of an individual that the preamble to the Constitution assures every individual. Thus the right is not merely a negative mandate upon the state not to encroach upon the private space of the individual but is also a positive affirmation on the state to create adequate institutions that would enable one to effectively protect his private life. [15] Thus the right to privacy has a strong constitutional edifice.
[1] AIR 1963 SC 1295
[2] The New Oxford Dictionary, (Vol. 2, 1993)
[3] Black’s Law Dictionary, (6th Ed., 1990)
[4] Hyman Gross, the Concept of Privacy, 42 N.Y.U.L. Rev. 36, 36 (1967)
[5] Olmstead v United States, 277 U.S. 438, 478
[6] Article 8 of the European Convention on Human Rights & Article 17 of the International Covenant on Civil and Political Rights, 1976
[7] AIR 1963 SC 1295
[8] (1975) 2 SCC 148
[9] (1999) 4 SCC 65
[10] AIR 1995 SC 264
[11] (1997) 1 SCC 301
[12] (1998) 8 SCC 296)
[13] (2005) 1 SCC 496
[14] Maneka Gandhi v. Union of India, AIR 1978 SC 597, 621
[15] R. Unger, Knowledge and Politics (1975), as referred to in Lawrence H. Tribe, American Constitutional Law 1305 (1988).
Conditions to be fulfilled to make classification reasonable under Article 14
Conditions to be fulfilled to make classification reasonable under Article 14
Abdul Rehman V Pinto 1954
Jagjit Singh V State (AIR 1954 Hyd 28)
Anwar Ali Sarkar (AIR 1952 SC 75)
test of permissible classification
intelligible differentia
Abdul Rehman V Pinto 1954
Jagjit Singh V State (AIR 1954 Hyd 28)
Anwar Ali Sarkar (AIR 1952 SC 75)
test of permissible classification
intelligible differentia
Salient features of Indian Constitution with special reference to parliamentary form of Government
Salient features of Indian Constitution with special reference to parliamentary form of Government
Fundamental Rights Under Article 20 (3)
A magistrate issues an order authorizing the investigating officer to take the specimen handwriting and finger prints of Mr. "X", an accused against his willingness. "X" challenged the Order stating that it violates his Fundamental Right under Article 20 (3)
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