Is It required anyway? One might assert that the degree of privacy dictates whether it is a want or a need. A basic degree of privacy is a primary need in any civilized society. As the degree of privacy increases, it evolves into a secondary need and further to a want. As civilization evolves, the law has evolved from guaranteeing the most basic needs of humans by converting them to rights and then slowly guaranteeing needs not necessarily for existence as rights, as and when society has been able to gather the resources to provide for these needs.Yet, questions remain.
What is privacy? As pointed out by Roger Clarke, we use many words without exactly considering their meaning. When we use words such as ‘eat’ ND ‘zebra’, It does not matter, but when we use words such as ‘discrimination’ and ‘ethnicity’, one cannot have a rational discussion without having a common understanding of the terms . Furthermore, what do we mean by ‘degree of privacy? The standards of privacy vary very widely from culture to culture and therefore even the law must accordingly fit into the standards of the society.The standards of privacy which a person living in the densely populated slums of Iambi finds acceptable are totally deferent from the standards which the people living In a sparsely populated and remote village In Himalaya Pradesh find acceptable, assuming that we leave alone the standards employed by the Scandinavians. Can there be a common benchmark for privacy, at least in India? What cannot be denied, however, is that privacy is Important.
Warren and Brandeis, two American lawyers, In their seminal paper called ‘The Right to Privacy’, published In 1890 In the Harvard Law Review, could not have put It In a better way: “The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of lute, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual… The Right to Privacy’, in which the authors encouraged a concept of privacy in which they understood privacy as the right to be left alone’.
Privacy has several facets such as political privacy, medical privacy, genetic privacy, internet privacy, bodily privacy and privacy of communications. Ruth Savings has recognized three elements in privacy: secrecy, anonymity and solitude . Ere right to privacy is said to have existed in both classical Greece and Ancient China.More recently, Article 12 of the Universal Declaration on Human Rights states, ‘No one should be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks on his honor or reputation. ” Nature and Scope This paper will first analyses how the concept of privacy has evolved in the law, and then focus upon the status of the right to privacy in India. Objectives Ere researcher will attempt to answer the following research questions: What is privacy in the eyes of the law?How has the concept of the right to privacy evolved in the law? What is the status of the right to privacy in India? In the opinion of the researcher, the first research question cannot be explicitly answered and it is hoped that the reader gets an indication of what privacy is in the eyes of the law as the paper proceeds. Research Methodology Ere author has referred to a variety of resources for the purpose of this study. These include articles in various Journals and on websites.
It also includes landmark lodgment.CHAPTER 1 ere EVOLUTION OF PRIVACY There were some cases in England in the nineteenth century that raised the question of privacy. In Wyatt v. Wilson , the right to privacy was recognized. Lord Eldon said , “.. If one of not in the King’s lifetime have permitted him to publish it.
” Later, in Prince Albert v. Strange , the courts did not allow a publisher to print and sell portraits of Queen Victoria and Prince Albert, without the consent of the two. In 1858, France prohibited the publication of private facts and set stiff fines for dilators. He landmark paper on the right to privacy was published by two American lawyers, Nearer and Brandeis, called ‘The Right to Privacy’, in 1890 in the Harvard Law Review. In this paper, the two lawyers recommended the availability of actions in the law of rot for a breach of privacy. The authors recommended the application of this right not only as a method to counter the gossip and rumors generated by the press, but also to deter the trend.
Subsequently, one of the first official mentions of the right to privacy in the Supreme Court was in Almagest v.United States , in 1928, where lustier Brandeis, in his dissenting opinion, reiterated the importance of the right to privacy, where he said, ‘The protection guaranteed by the Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things.They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone the most comprehensive of rights, and the right most valued by civilized men. ” This view was re-asserted in various subsequent Judgments in the United States.
Ere right to privacy was again reiterated in the Universal Declaration of Human Rights, adopted by the General assembly of the United Nations in 1948.Article 12 states, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks. ” The same words were used in Article 17 of the International Covenant on Civil and Political Rights, drafted in 1966. Similarly, Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 states, “Everyone has the right to respect for his riveter and family life, his home and his correspondence. In 1965, in Griswold v. Connecticut, the United States Supreme Court struck down a law passed in the State of Connecticut which made the use of contraceptives a criminal offence, because it violated the right to marital privacy, which, in the opinion of the Court, was granted to under the ‘penumbras’ of various ‘guarantees’ under the In Roe v.
Wade, the U. S. Supreme Court ruled that a woman’s decision to terminate her pregnancy were a part of her right to privacy.CHAPTER 2 PRIVACY IN INDIA In India, the right to privacy has been discussed mostly in the context of privacy as against the state. The researcher shall discuss three cases in this context, which have shaped the right to privacy. In Shark Sings v. State of U. P.
, the petitioner was a didactic who had been released from custody because there was no evidence against him. The police opened a history sheet against him and he was put under surveillance as under Regulation 236 of the U. P. Police Regulations. Regulation 236 of the Regulations defined surveillance.It read: ‘Without prejudice to the right of Superintendents of Police to put into practice any legal measures, such as shadowing in cities, by which they find they can keep in ouch with suspects in particular localities or special circumstances, surveillance may for most practical purposes be defined as consisting of one or more of the following measures : Secret picketing of the house or approaches to the house of suspects; lb) domiciliary visits at night; through periodical inquiries by officers not below the rank of Sub-Inspector into repute, habits, associations, income, expenses and occupation; the reporting by constables and chuddar of movements and absence from home; the verification of movements and absences by means of inquiry slips; If) the collection and record on a history-sheet of all information bearing on conduct. ” Ere petitioner challenged this Regulation on the grounds that they violated the fundamental rights granted under Article 19(1) (d), which granted the freedom to move freely throughout the territory of India, and Article 21 , which grants the right to life and personal liberty, of the Constitution of India. Further, the Regulations were not the result of any procedure established by law, as was conceded by counsel for the respondents.
India only included the right of locomotion throughout the territory of India without nagging inhibitions, and it did not include psychological inhibitions. Similarly, the right to personal liberty could only be violated by ‘tangible’ methods, and the makers of the Constitution did not intend to protect mere ‘personal sentiments’. The majority also ruled that the right to privacy was not guaranteed in the constitution as such, and the attempt to monitor the movement of a person which only violated the right to privacy did not violate a fundamental right. However Section 236(b) of the Regulation Nas struck down, as it was held to be a direct violation of the right to personal liberty Inch was not in accordance with any procedure established by law.
However the minority Judgment differed widely. It recommended the striking down of the entire Regulation in question (Regulation 236). It held that ‘In an uncivilized society where there are no inhibitions, only physical restraints may detract from personal liberty, but as civilization advances the psychological restraints are more effective than physical ones. The scientific methods used to condition a man’s mind are in real sense physical restraints, for they engender physical fear channeling one’s actions through anticipated and expected groves.
So also the creation of conditions which necessarily engender inhibitions and fear complexes can be described as physical restraints.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 right, but the said right is an essential ingredient of personal liberty.
Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last escort, a person’s house, where lie lives with his family, is his “castle”: it is his rampart against encroachment on his personal liberty. ” In Giving v. State of M.
P. , the Supreme Court had to face, once again, questions arising out of a similar set of circumstances.The petitioner, a suspected criminal, Challenged the validity of Regulations 855 and 856 of the Madhya Pradesh Police Regulations, asserting that they were not framed under any provision of the Police Act, 1961, and, even if they were framed under any provision of the said Act, they Nerve violating the fundamental rights granted under Article 21 and Article 19(1) (d). He Regulations were as follows: ‘855. Surveillance proper, as distinct from general supervision, should be restricted to those persons, whether or not previously convicted, whose conduct shows a determination to lead a life of crime. The list of persons under surveillance should Include only those persons who are believed to be really dangerous criminals.
When the entries in a history sheet, or any other information at his disposal, leads the District Superintendent to believe that a particular an individual is leading a life of Inspector will thereupon (open a) history sheet, if one is not already in existence, and he man will be placed under regular surveillance. 356. Surveillance may, for practical purposes, be defined as consisting of the following measures: Thorough periodical enquiries by the station-house officer as to repute, habits, Association, income, expenses and occupation. Lb) Domiciliary visits both by day and night at frequent but irregular intervals. Secret picketing of the house and approaches on any occasion when the Surveillance (surveillance? ) is found absent.
The reporting by patella, Mikado’s and kowtows, of movements and absences from home. The verification of such movements and absences by means of bad character lolls. If) The collection in a history sheet of all information bearing on conduct. It must be remembered that the surest way of driving a man to a life of crime is to prevent him from earning an honest living. Surveillance should, therefore, never be an impediment to steady employment and should not be made unnecessarily irksome or humiliating.
The person under surveillance should, if possible be assisted in finding steady employment, and the practice of warning persons against employing him must be strongly discouraged. A three Judge bench dismissed the petition on the grounds that it was framed under revision 42 (6) (c) of the Police Act, 1961, and that the measures undertaken through these Regulations were a reasonable restriction to the rights guaranteed under Articles 19 (1) (d) and 21 of the Constitution. However, the Court had much to say about the right to privacy. It recognized the fact that the right to privacy was a very important right, and it held that if the above mentioned Regulations were read to widely, they would be a grotesque violation of the fundamental rights, because of which when the same Regulations could be read either widely or narrowly, the court must water them down to read them narrowly. E Court also said that the framers of our Constitution did not envision a ‘police rejuvenate’, and that legality apart, the regulations did not accord well with the essence of personal freedoms, because of which the state must desist from making laws on the edge of unconstitutionality. Associate editor of a Tamil weekly magazine, requested the court to issue a writ restraining the State of Tamil Nadia and the Superintendent of Prisons, Salem, Tamil Nadia, to prevent them for carrying out the actions that they had threatened in a letter to the weekly, because the weekly intended to publish the autobiography of a risen named Auto Shank who was sentenced to death.The autobiography contained several assertions that established the involvement of several PIPS and AS officers in the crimes that the prisoner had committed.
However, it was not clear Nether the prisoner had expressly consented to the publication of his autobiography in the weekly and also whether he had written the autobiography himself. The court, working on an assumption that Auto Shank had neither written the autobiography nor authorized the weekly to publish it, placed the following questions for consideration: (1)Whether a citizen of this country can prevent another person from writing his life story or biography? Does such unauthorized writing infringe the citizen’s right to privacy?Whether the freedom of press guaranteed by Article 19(1)(a) entitles the press to publish such unauthorized account of a citizen’s life and activities and if so to what extent and in what circumstances? What are the remedies open to a citizen of this country in case of infringement of his right to privacy and further in case such rutting amounts to defamation? Whether the Government can maintain an action for its defamation? B)Whether the Government has any legal authority to impose prior restraint on the press to prevent publication of material defamatory of its officials? And (c)Whether the public Officials, who apprehend that they or their colleagues may be defamed, can impose a prior restraint upon the press to prevent such publication? 3)Whether the prison officials can prevent the publication of the life story of a prisoner on the ground that the prisoner being incarcerated and thus not being in a position to adopt legal remedies to protect his rights, they are entitled to act on his behalf? ” As might be rather obvious, these questions essentially raised the question of the right to privacy visa–visa the freedom of the press. The Supreme Court, in this case, a two Judge bench, took a much more liberal view of the right to privacy in this matter, and ruled that ‘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 let 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 nickering the above matters without his consent whether truthful or otherwise and Nether 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 thrusts himself into controversy or Z)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 tater of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others.We are, however, of the opinion that in the interests of decency [Article 19(2)] an exception must be carved out to this rule, biz. , a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicized in press/media.
13)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 o privacy, or for that matter, the remedy of action for damages is simply not available Ninth respect to their acts and conduct relevant to the discharge of their official duties.This is so even where the publication is based upon facts and statements Inch are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the 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 or personal animosity, the defendant would have no defense and Mould be liable for damages. It is equally obvious that in matters not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen, as explained in (1) and (2) above.It needs no reiteration that Judiciary, which is protected by the power to punish for contempt of court and Parliament and legislatures protected as their privileges are by Articles 105 and 104 respectively of the Constitution of India, represent exceptions 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 defaming them. 15)Rules 3 and 4 do not, however, mean that Official Secrets Act, 1923, or any similar enactment or provision having the force of law does not bind the press or media. 16)There is no law empowering the State or its officials to prohibit, or to impose a prior restraint upon the press/media. ” Thus, we see a shift in the line adopted by the Supreme Court, from a very positivisticInterpretation of the rights enshrined in the Constitution, to a very liberal approach However, the exact position of the right to privacy as guaranteed by the Constitution is still unclear, because the Judgment in Shark Sings v.
State of U. P. Was delivered by a 7 Judge bench, and the Judgments after this were all delivered by a lesser number of Judges. CONCLUSION Ere right to privacy is a right that has been recognized in relatively recent times. The evolution of this right can be traced to 1820 at the earliest.
The real landmark, however, can be traced to 1890 when ‘The Right to Privacy’ was published in the Harvard Law Review. The right has subsequently been recognized as guaranteed under the Fundamental Rights of the Constitutions of both the United States as well as India.The right has also been recognized in international documents such as the Universal Declaration of Human Rights (1948), the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) and the International Covenant on Civil and Political Rights (drafted 1966).
In India, the right to privacy has been recognized and its ambit expanded over a period of time starting from Shark Sings v. State of U. P.
, where there was a very positivistic interpretation of the Constitution and the court refused to accept that the right to privacy is guaranteed in any way in the Constitution, to R. Regional v. State of Tamil Nadia , where the court held that the right to privacy is implicitly guaranteed under Article 21 of the Constitution. He right to privacy, as covered by the law, mostly covers the right to privacy as against interference by the government and as against unwarranted publication of personal information. Thus, it either comes into conflict with the duties of the overspent of the day, or with the freedom of the press. However, in the opinion of the researcher, the right to privacy must one day expand to cover privacy in a much broader sense to cover protection against unwarranted disturbance, such as the right to undisturbed solitude, undisturbed work and undisturbed recreation. Thus, the right to privacy must become all-encompassing, from the right against government interference, to the right against unwarranted public attention, to remedies against disturbance as a nuisance.