While the newly constituted Supreme Court Bench discusses the right to privacy to decide whether it constitutes a fundamental right, let’s take a look at how Article 21 has come to be interpreted as including the right to privacy. The Constitution of India does not define expressly what right to privacy is. Here are the cases that added nuance to the understanding of the right to privacy by law.
1) M P Sharma vs Satish Chandra
Right to privacy not linked to right to own property: In 1953, an FIR was registered against Ms Dalmia Jain Airways Ltd on suspicion of malpractice, and a magistrate requested to issue search warrants. The search resulted in the seizure of many documents indicating the company’s malpractices. The company, however, filed writs challenging the searches, saying their “right to acquire, hold and dispose of property” had been violated. The Bench closed the case saying the “power of search and seizure” is an “overriding power of the State” and a necessity for social security.
2) Kharak Singh vs State of Uttar Pradesh
Privacy linked to personal liberty: In 1963, Kharak Singh had to be let go off in a dacoity case due to lack of evidence. The Uttar Pradesh police, however put him under heavy surveillance permitted under UP Police Regulations 236, after referring to his history of involvement in similar cases. About six measures were taken to keep an eye on him, including domiciliary visits at night. Singh then submitted a writ petition contesting that domiciliary visits was a violation of his right to personal liberty and free movement. In response, the Bench consisting of judge Bhuvaneshwar P Sinha and six others removed the clause from UP Police Regulations 236.
3) Govind vs State of Madhya Pradesh
Right to privacy not absolute, but strong: In this 1975 case, petitioner Govind contests the validity of the MP Police Regulations 855 and 856, which relate to surveillance, including through domiciliary visits, similar to the earlier Kharak Singh vs State of Uttar Pradesh case. Govind alleged that there were a number of false accusations on him on the basis of which police put him under surveillance. Despite dismissing the petition, the Supreme Court advised a reform in the MP Police regulations in question and observed that they were “verging perilously near unconstitutionality”. It’s interesting to note that the popular Roe v Wade case that dealt with a woman’s right to abortion (as included in her right to privacy) was used as a reference case.
4) Maneka Gandhi vs the Union of India
Right to privacy linked to right to personal liberty: In 1977, soon after the lifting of the Emergency, Maneka Gandhi received a letter from the regional passport office asking her to submit her passport. The letter said that the Government of India wanted to seize her passport in public interest. This was at a time when she had been publishing news regularly in her magazine, Surya, to discredit the leaders of the new government, and in once instance printing photographs of then defence minister Jagjivan Ram’s son engaging in sexual intercourse with a Delhi University student. Maneka approached the court against the impounding of her passport. The court contended that the right to travel abroad was a part of right to personal liberty and hence it was violative of Article 21.
5) R Sukanya vs R Sridhar
Right to privacy of parties in a divorce case overrides right to publish news: This case from 2004 was transferred from a trial court to the Madras High court. South Indian Actress Sukanya and Sridhar approached the court over marital dispute. Being an actress, Sukanya filed an application requesting that the media be restrained from publishing or telecasting details of the case, and that her privacy be respected. The trial court rejected the plea but the High Court pointed out that under the Hindu Marriage Act 1955, section 22, proceedings shall be held in-camera (which means the public is not permitted in the court room when the case is being heard, and only the court’s judgment in the case could be published), and restrained the media from reporting on the case.