- Sep 2017
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
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
- International instruments
- Malak Singh
- Suchitra Srivastava
- Limits on privacy
- Public v Private sphere
- Canara Bank
- Purpose Limitation
- Vertical v. Horizontal
- Kharak Singh
- decisional autonomy
- Privacy jurisprudence in India
- MP Sharma