Right to privacy is an inalienable right

Professor Milton K Konwitz, in his book Privacy and the Law: A Philosophical Prelude, writes that almost the first page of the Bible introduces us to the feeling of shame as a violation of privacy. After Adam and Eve had eaten the fruit of the tree of knowledge, “the eyes of both were opened, and they knew that they were naked; and they sewed fig leaves together and made themselves apron.”

We find this concept in the ancient Indian society also which is reflected in the concept “Sarve sve sve grihe raja” (Every man is a king in his own house). The British evolved a similar theory that every man is a king in his own castle. John Stuart Mill categorised action of man into two classes — self-regarding and other-regarding, and declared that no one has any right to question or snoop into an action that is self-regarding.

One needs to sulk into the oasis of privacy for various reasons which means exclusion of others from one’s life. US president Richard Nixon had to bow out of office following the revelation that he had installed tape recording system in the Watergate office complex in Washington DC and had tape recorded the conversations of some of his party men. He had done it to cover up his own misdeeds. But he had to resign on August 9, 1974, and thus became the only president to resign so far.

In India, the right to privacy has become a major issue following Aadhaar being made mandatory for many things. Similarly, the DNA Profiling Bill pending for long is another issue which agitates many people who prize personal liberty.

Against this backdrop, it is heartening that a constitution bench of the Supreme Court is to pronounce whether the right to privacy is fundamental right. A definitive pronouncement by the apex court was long-awaited as doubts persist in this regard and also because there are conflicting judgements.

Earlier, a three-judge division bench hearing the constitutional validity of Aadhaar project (Unique Identification Authority of India) had referred the matter to the constitution bench on the request of the attorney-general (AG). It led to the creation of a five-judge bench which posted the question for determination to a larger nine-judge bench.

The AG’s argument before the apex court in defence of Aadhaar that the right to privacy is not a fundamental right touched off a storm. Adding grist to the mill then, the Union government banned 857 porn sites, only to backtrack later before the Supreme Court when the nation grizzled against it as invasion into the right to privacy.

Later, in a welcome move, the government clarified to the Court that it was not a totalitarian state that would slap a blanket ban on such sites, engage in moral policing or attempt to know what people do in the privacy of their bedrooms.

Indian tradition and customs have always respected this kind of privacy, and the Indian courts were ahead of British and US courts in protecting this right.

In 1888, Chief Justice Edge of the Allahabad High Court observed, “In my opinion, the fact that there is no such custom of privacy known to the law of England can have no bearing on the question whether there can be India an usage or custom of privacy valid in law.”

Advocating the right to privacy for the British nationals on the basis of Indian cases, Percy H Winfield passionately appea­led to the House of Commons in 1931: “The Indian cases have been referred to not, of course, for the purpose of urging their application to the different particular circumstances which prevail in England, but as an illustration of the pliability of Indian law where the need of protecting privacy has been felt.”

Section 509 of the IPC, 1860, makes it a crime to intrude into the privacy of a woman. It was not imported from England nor was a novel contribution of Thomas Babington Macaulay, but just a codification of the long established tradition obtaining in India. Indian classical literature and epics expounded the law of privacy with this concept as the central theme, and the king, under a moral obligation to uphold dharma,’ had to respect the privacy of the citizen.

Even Kautilya in his Arthashastra, while dealing with the problem of national security risk, recommended the employment of spies but did not assign to them the role of eavesdropper. Rather, he urged the royal spies to sneak into the congregation of people in pairs and stir a debate on the affairs of the state.

Privacy and Mahabharata

In the Mahabharata also, we find how privacy was respected. Draupadi was the common wife of the five Pandava brothers. To avoid embarrassment a rule was made that if any one of them happened to see Draupadi in company of any brother he would have to undergo banishment for 12 years in the forest as ‘Bramhachari’.

Once it so happened that while Draupadi was with Yudhishthira in a room, Arjuna was immediately required to collect his weapons kept in that room. Not finding any alternative Arjun had to intrude into their privacy violating the rule. But then he presented himself for undergoing the prescribed punishment.

Kautilya, in his Arthashastra, while discussing the citizen’s right of privacy and the king’s obligation to know about the “national security risks”, advocated the employment of spies. He, however, did not assign to them the role of eaves-droppers.

The right to privacy is regarded as an inalienable part of the right to personal liberty guaranteed by Article 21 of the constitution but not explicitly mentioned as a fundamental right. However, the apex court, in M P Sharma v Satish Chandra (1954) and Kharak Singh v State of UP (1963), refused to recognise it as a fundamental right.

These judgements are required to be revisited. Benefits of technology are undeniable. So, there is a need to strike a balance between growing technology which makes invasion into privacy much easier, and the right to privacy.