Intrusion upon privacy is gradually becoming the order of the day. It has therefore become a matter of great concern.

Human urge is to keep things, which are private, away from the public gaze. There is a right to live, but is there a right to privacy? If there is, what is the scope and parameters of this right? What do we do about it in case there is breach thereof? Though it is true that the Indian Constitution does not explicitly guarantee this right as a fundamental right certainly the right to privacy or, the right to be left alone, should be accepted as an individual right. The courts' treatment of this right is a matter of paramount importance because of growing invasions of this right in areas that remained away from the purview of courts. It also assumes importance because of frequent violation of this right by the State on grounds which are not bona fide. Lord Denning has forcefully argued for the recognition of a right to privacy thus:1 "English law should recognise a right to privacy. Any infringement of it should give a cause of action for damages or an injunction as the case may require. It should also recognise a right of confidence for all correspondence and communications which expressly or impliedly are given in confidence. None of these rights is absolute. Each is subject to exceptions. These exceptions are to be allowed whenever the public interest in openness outweighs the public interest in privacy or confidentiality. In every instance it is a balancing exercise for the Courts. As each case is decided, it will form a precedent for others. So a body of case-law will be established." It 1963 in the case of Kharak Singh v. State of U.P.2 the Supreme Court had the occasion to consider the ambit and scope of this right when the power of surveillance conferred on the police by the provisions of the U.P. Police Regulations came to be challenged as being violative of Articles 19(1)(d) and Article 21 of the Constitution. The Court repelled the argument of infringement of freedom guaranteed under Article 19(1)(d) of the Constitution, and the attempt to ascertain the movements of an individual was held not to be an infringement of any fundamental right. The minority judgment, however, emphasized the need for recognition of such a right as it was an essential ingredient of personal liberty. Near about a decade later the Supreme Court seems to have realised the need for recognising the right to privacy in Govind v.State of M.P.3 wherein Mathew, J. as Lord Denning indicated envisaged its gradual development thus: "The right to privacy in any event will necessarily have to go through a process of a case-bycase development"4 Even in countries other than India where privacy has been considered essential to human existence and personal liberty, the concept of privacy as a right started generating new thinking with a view to according it legal recognition so that its breach could be remedied by the courts. Privacy was being given wider and wider field of operation including therein matters pertaining to health, personal communications, family, personal relations and a right to be free from harassment and molestation. This development was the result of frequent violations of right to privacy of notable personalities and the consequent public concern for upholding this right. The scope and ambit of the right of privacy or right to be left alone came up for consideration before the Supreme Court in R. Rajagopal v. State of T.N.5 during 1994.

In this case the right of privacy of a condemned prisoner was in issue. One Auto Shankar, a condemned prisoner, wrote his autobiography while confined in jail and handed it over to his wife for being delivered to an advocate to ensure its publication in a certain magazine edited, printed and published by the petitioner. This autobiography allegedly set out close nexus between the prisoner and several officers including those belonging to IAS and IPS some of whom were indeed his partners in several crimes. The publication of this autobiography was restrained in more than one manner. It was on these facts that the petitioner challenged the restrictions imposed on the publication before the Supreme Court. B.P. Jeevan Reddy, J. on an interpretation of the relevant articles of the Constitution, in the context of an analysis of case-law from other common law countries like UK and USA, held that though the right to privacy is not enumerated as a fundamental right it can certainly be inferred from Article 21 of the Constitution. The Court in conclusion held thus: (SCC pp. 649-51, para 26) (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 left 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 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. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy. (2) 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 matter 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, viz., a female who is the victim of a sexual assault, kidnapping, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised in the press/media. (3) 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 to privacy, or for that matter, the remedy of action for damages is simply not available with 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 which 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 defence and would 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 the 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. (5) 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. (6) There is no law empowering the State or its officials to prohibit, or to impose a prior restraint upon the press/media.6 It may be noted that the Court has cautioned that the above principles are not exhaustive. It has also not examined the impact of Article 19(1)(d) read with Sections 499(2) and 500 IPC. Here again the court preferred to leave the contours of this right to develop through a caseby-case method.7 In formulating the broad principles the Court has not only dealt with various remedies that should be available against the violation of this right but also the limitations of these remedies. For to give an unqualified absolute right to seek remedy in the Court against any person having committed the breach irrespective of the nature of State functions being discharged by that official would render the very grant of this right a meaning which would be detrimental to public interest. The need for balancing individual interest and public interest in giving effect to this right appears to have been in the mind of the judge while laying down the principles. It may also be worthy to note that as a consequence to the Supreme Court's granting the right of privacy the status of a fundamental right, petitions both in the High Court and Supreme Court would become maintainable and a person need not necessarily resort to the dilatory procedure of filing a suit in a competent civil court where the delay in decision will itself render the remedy of no meaning in many a case. The law thus declared by the Supreme Court that right to privacy - a right to be left alone - is implicit in the right to life and personal liberty guaranteed under Article 21 of the Constitution - is a signpost in the future development of this right

Page 1 of 11

White Paper on Privacy Protection in India

- Vakul Sharma

1.0 Introduction
Privacy as a concept involves what privacy entails and how it is to be valued. Privacy as a right involves the extent to which privacy is (and should be legally protected). The law does not determine what privacy is, but only what situations of privacy will be afforded legal protection1. It is interesting to note that the common law does not know a general right of privacy and the Indian Parliament has so far been reluctant to enact one.

1.1 The Indian Perspective on Privacy

Competence of Central and State legislatures to enact legislations is derived from the

Indian Constitution. The Seventh Schedule of the Constitution of India has three Lists, which contain various entries, which can be subject matters of legislation. List I : Union List List II : State List List III : Concurrent List The power to enact legislations on various subject matters listed therein comes from the following Articles of the Constitution of India: Article 246 (1) of the Constitution of India gives the Parliament the exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (Union List). This power of Parliament is unfettered by Article 246(2) and (3). Article 246 (2) of the Constitution of India gives the Parliament and the State Legislature the power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (Concurrent List). The power of the State Legislature is subject to Article 246(1) while the power of Parliament is unfettered by Article 246(3). Article 246 (3) of the Constitution of India gives the State Legislature the exclusive power to make laws with respect to any of the matters enumerated in List II in the Seventh Schedule (State List). This power of the State Legislature is subject to Article 246(1) and (2).
1 Hyman

Gross, The Concept of Privacy, 42 N.Y.U.L. Rev. 36, 36 (1967).

Page 2 of 11 Privacy is not a subject in any of the three lists in Schedule VII of the Constitution of India. But Entry 97 of List I states: any other matter not enumerated in List II and List III . Thus only the Indian Parliament is competent to legislate on privacy since it can be interpreted as any other matter not enumerated in List II and List III. Till date there is no specific enactment on Privacy. But the Constitution of India has embodied many Rights in Part III, which are called Fundamental Rights. These are enumerated in Article 14-30 of the Constitution. Article 13 (2) prohibits the Indian State (Parliament and State legislatures) from making any law, which takes away or abridges the rights conferred by Part III. Article 32 guarantees the right to move the Supreme Court of India for enforcement of the rights conferred by Part III. This right is available against the State, which is defined in Article 12 as inclusive of the Government and Parliament of India and Government and Legislatures of each State and all local and other authorities in India. From the above discussion it follows that while no legislative competence is found for the subject of Privacy, yet the Constitution of India has provided for many Rights (Fundamental Rights), which cannot be taken away by the State and are legally enforceable against the State.

1.2 Judicial Activism: The Right to Privacy

At this point begins the role of the Judiciary. Judicial activism has brought the Right to Privacy within the realm of Fundamental Rights. Article 141 of the Constitution states that the law declared by the Supreme Court shall be binding on all courts within the territory of India. Therefore, the decisions of The Supreme Court of India become the Law of the Land. The Supreme Court of India has come to the rescue of common citizen, time and again by construing right to privacy as a part of the Fundamental Right to protection of life and personal liberty under Article 21 of the Constitution, which states no person shall be deprived of his life or personal liberty except according to procedures established by law. In the context of personal liberty, the Supreme Court has observed those who feel called upon to deprive other persons of their personal liberty in the discharge of what

they conceive to be their duty must strictly and scrupulously observe the forms and rules of the law. Page 3 of 11 Even the fundamental right to freedom of speech and expression as enumerated in Article 19(1)(a) of the Constitution of India comes with reasonable restrictions imposed by the State relating to (i) defamation; (ii) contempt of court; (iii) decency or morality; (iv) security of the State; (v) friendly relations with foreign states; (vi) incitement to an offence; (vii) public order; (viii) maintenance of the sovereignty and integrity of India. Thus, the right to privacy is limited against defamation, decency or morality. The Supreme Court has reiterated the Right to Privacy in the following cases: 1. Kharak Singh v. State of UP2 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 persons house, where he lives with his family is his castle and that nothing is more deleterious to a mans physical happiness and health than a calculated interference with his privacy. 2. Gobind v. State of M.P.3 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 test 3. State v. Charulata Joshi4 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.
2 (AIR

1963 SC 1295) 2 SCC 148 4 (1999) 4 SCC 65.

3 (1975)

Page 4 of 11 4. R. Rajagopal v. State of Tamil Nadu5 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. 5. Peoples Union for Civil Liberties (PUCL) v. Union of India6, 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. 6. In Mr. X v. Hospital Z7 for the first time the Supreme Court articulated on sensitive data related to health. In this case, the appellants blood test was conducted at the respondents 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 approached the National Commission against the respondent hospital claiming damages from them for disclosing information about his health, which, by norms of ethics, according to him, ought to have been kept confidential. The National Commission summarily dismissed his complaint. Consequently he moved the Supreme Court by way of an appeal.
5 AIR

1995 SC 264 1 SCC 301 7 (1998) 8 SCC 296)

6 (1997)

Page 5 of 11 The appellant argued that the principle of duty of care as applicable to persons in medical profession also included the duty to maintain confidentiality and that since this duty was violated by the respondents, they were liable to pay damages. Right of privacy may, apart from contract, also arise out of a particular specific relationship, which may be commercial, matrimonial, or even political. 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. As regards the argument of the appellant that his right to privacy had been infringed by the respondents by disclosing that he was HIV (+) and, therefore, they were liable in damages, 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. 7. District Registrar and Collector v. Canara Bank8, 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.
8 (2005)

1 SCC 496: AIR 2005 SC 186

Page 6 of 11 If one follows the judgments given by the Honble Supreme Court, three themes emerge9: (1) that the individuals right to privacy exists and any unlawful invasion of privacy would make the offender liable for the consequences in accordance with law; (2) that there is constitutional recognition given to the right of privacy which protects personal privacy against unlawful governmental invasion; (3) that the persons 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;

1.3 Privacy and Data Protection

Privacy is closely connected to Data Protection. An individuals data like his name address, telephone numbers, profession, family, choices, etc. are often available at various places like schools, colleges, banks, directories, surveys and on various web sites. Passing on such information to interested parties can lead to intrusion in privacy like incessant marketing calls. It would be a misnomer to say that India does not have data protection legislation at all. This is factually wrong. The fact is that there exists data protection legislation in India. The subject matter of data protection and privacy has been dealt within the Information Technology Act, 2000 but not in an exclusive manner. Data protection is not a subject in any of the three lists in Schedule VII of the Constitution of India. But Entry 97 of List 1 states: any other matter not enumerated in List II and List III . Thus only the Indian Parliament is competent to legislate on data protection since it can be interpreted as any other matter not enumerated in List II and List III. Data protection is, thus, a Central subject and only the Central Government is competent to frame legislations on issues dealing with data protection. In fact, the Information Technology Act, 2000, enacted by the Indian Parliament is the first legislation, which contains provisions on data protection.
9 Sharma,

Vakul. Information Technology-Law & Practice. Delhi: Universal Law Publishing Co. Pvt. Ltd,

2004.

Page 7 of 11 1.3.1 The Information Technology Act, 2000 The Indian Parliament enacted an Act called the Information Technology Act, 2000. It received the assent of the President on the 9th June, 2000 and is effective from 17th October, 2000. This Act is based on the Resolution A/RES/51/162 adopted by the General Assembly of the United Nations on 30th January, 1997 regarding the Model Law on Electronic Commerce earlier adopted by the United Nations Commission on International Trade Law (UNCITRAL) in its twenty-ninth session. The aforesaid resolution of the U.N. General Assembly recommends that all States give favourable consideration to the Model Law on Electronic Commerce when they enact or revise their laws, in view of the need for uniformity of the law applicable to alternatives to paper-based methods of communication and storage of

information. It was a foresight on the part of the Government of India to initiate the entire process of enacting Indias first ever information technology legislation in the year 1997 itself. There were three reasons: (a) To facilitate the development of a secure regulatory environment for electronic commerce by providing a legal infrastructure governing electronic contracting, security and integrity of electronic transactions; (b) To enable the use of digital signatures in authentication of electronic records; and

(c) To showcase Indias growing IT prowess and the role of Government in safeguarding and promoting IT sector and attracting FDI in the said sector. It is important to understand that while enacting the Information Technology Act, 2000, the legislative intent has been not to ignore the national or municipal (local) perspectives of information technology and also to ensure that it should have an international perspective as advocated by the UNCITRAL Model Law on Electronic Commerce. Page 8 of 11 1.3.2 Enumeration of the main principles of the Information Technology Act, 2000 It is significant to note that by enactment of the Information Technology Act, 2000, the Indian Parliament provided a new legal idiom to data protection and privacy. The main principles on data protection and privacy enumerated under the Information Technology Act, 2000 are: (i) Defining data, computer database, information, electronic form, originator, addressee etc. (ii) Creating civil liability if any person accesses or secures access to computer, computer system or computer network (iii) Creating criminal liability if any person accesses or secures access to computer, computer system or computer network (iv) Declaring any computer, computer system or computer network as a protected system (v) Imposing penalty for breach of confidentiality and privacy (vi) Setting up of hierarchy of regulatory authorities, namely adjudicating officers, the Cyber Regulations Appellate Tribunal etc. Further, the Information Technology Act, 2000 defines certain key terms with respect to data protection, like access [S.2 (1)(a)], Computer [S.2 (1)(i)], Computer network [S.2 (1)(j), Computer resource [S.2 (1)(k)], Computer system [S.2 (1)(l)], Computer database [S.43, Explanation (ii)],Data [S.2 (1)(o)], Electronic form [S.2 (1)(r)], Electronic record [S.2 (1)(t], Information [S.2 (1)(v)], Intermediary [S.2 (1)(w)], Secure system [S.2 (1)(ze)] and Security procedure [S.2 (1)(zf)]. 1.3.2.1 The Information Technology Act, 2000 provides for civil liability in case of data, computer database theft, privacy violation etc. The Act provides a complete Chapter (Chapter IX) on cyber contraventions, i.e., section 43 (a) (h) which cover a wide range of cyber contraventions related to unauthorised access to computer, computer system, computer network or resources. Section 43 of the Act covers instances such as: (a) computer trespass, violation of privacy etc. (b) unauthorised digital copying, downloading and extraction of data, computer database or information;. theft of data

held or stored in any media, (c) unauthorised transmission of data or programme residing within a computer, computer system or computer network (cookies, spyware, GUID or digital profiling are not legally permissible), (d) data loss, data corruption etc., (e) computer data/database disruption, spamming etc., (f) denial of service attacks, data theft, fraud, forgery etc., (g) unauthorised access to computer data/computer databases and (h) instances of data theft (passwords, login IDs) etc. 1.3.2.2 The Information Technology Act, 2000 provides for criminal liability in case of data, computer database theft, privacy violation etc. The Act also provides a complete Chapter (Chapter XI) on cyber offences, i.e., sections 65-74 which cover a wide range of cyber offences, including offences related to unauthorised alteration, deletion, addition, modification, alteration, destruction, duplication or transmission of data, and computer database. For example, section 65 [Tampering with computer source documents] of the Act is not limited to protecting computer source code only, but it also safeguards data and computer databases; and similarly section 66 [Hacking with Computer System] covers cyber offences related to (a) Illegal access, (b) Illegal interception, (c) Data interference, (d) System interference, (e) Misuse of devices, etc. Page 10 of 11 Interestingly, section 72 [Penalty for breach of confidentiality and privacy] is aimed at public (and private) authorities10, which have been granted power under the Act to secure access to any electronic record, book, register, correspondence, information, document or other material information. The idea behind the aforesaid section is that the person who has secured access to any such information shall not take unfair advantage of it by disclosing it to the third party without obtaining the consent of the disclosing party. 1.3.2.3 Proposed amendments to the Information Technology Act, 2000 vis--vis data protection and privacy The Expert Panel constituted by the Department of Information Technology, Ministry of Information Technology, Government of India in its recommendations11 proposed following amendments in the Act to strengthen data protection and privacy: Section 43, Explanation (v) Reasonable security practices and procedures means, in the absence of a contract between the parties or any special law for this purpose, such security practices and procedures as appropriate to the nature of the information to protect that information from unauthorized access, damage, use, modification, disclosure or impairment, as may be prescribed by the Central Government in consultation with the self-regulatory bodies of the industry, if any. Section 43, Explanation (vi) Sensitive personal data or information means such personal information, which is prescribed as sensitive by the Central Government in consultation with the self-regulatory bodies of the industry, if any. It is obligatory to note that not only the aforementioned proposed amendments would pave the way of self-regulation in terms of defining what constitute: reasonable security practices and procedures and sensitive personal data or information but also grant statutory protection to sensitive personal data.
10 These 11 Expert

public and private authorities may be referred as data collectors or data users. Panel submitted its report in August, 2005

Page 11 of 11

Further, the proposed amendments have enlarged the scope of section 66 by making it consistent with the provisions of the Indian Penal Code, 1860, and also providing extent of criminal liabilities in case of data, computer database theft, privacy violation etc.

Moreover, newly proposed sub-section (2) of section 72 makes the intermediaries (network service providers) liable for data and privacy violations. Now, such intermediaries to pay damages by way of compensation to the subscriber so affected. 1.3.3 The Information Technology Act, 2000 and Privacy Protection: A Critique The Information Technology Act, 2000 is not data or privacy protection legislation per se. It does not lay down any specific data protection or privacy principles. The Information Technology Act, 2000 is a generic legislation, which articulates on range of themes, like digital signatures, public key infrastructure, e-governance, cyber contraventions, cyber offences and confidentiality and privacy. It suffers from a one Act syndrome. It would be erroneous to compare the Information Technology Act, 2000 provisions with the European Directive on Data Protection (EC/95/46), OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data, 1980, and the Safe Harbor principles of the US. In fact the Information Technology Act, 2000 deals with the issue of data protection and privacy in a piecemeal fashion. There is no an actual legal framework in the form of Data Protection Authority, data quality and proportionality, data transparency etc. which properly addresses and covers data protection issues in accordance with the principles of the EU Directive, OECD Guidelines or Safe Harbor Principles. Accordingly, even if the new proposed amendments to the Information Technology Act, 2000 were adopted, India would still lack a real legal framework for data protection and privacy.

The Substantive Right To Privacy: Tracing The Doctrinal Shadows Of The Indian
THE SUBSTANTIVE RIGHT TO PRIVACY: TRACING THE DOCTRINAL SHADOWS OF THE INDIAN CONSTITUTION By Abhinav Chandrachud* Cite as : (2006) 3 SCC (Jour) 31

"Some there be that shadows kiss: Such have but a shadow's bliss."." & mdash; William Shakespeare, The Merchant of Venice Innovation has overwhelmed us. Industry has overcome us. We find ourselves emasculated by latent invasions of our privacy. We find ourselves eviscerated by overt intrusions of our personhood. The media has trespassed upon our sanctity. The world has cast a pervasive and disquieting glance upon our selfhood. "Inviolate personality" is an anachronism. Instead, gossip "has become a trade, which is pursued with industry as well as effrontery". Intimate moments, stolen on hidden cameras, are published for stealthy gains. Carefully guarded secrets are broadcast to an unforgiving society, mired, at present, in a deeply moral conflict within itself. The last century admonished us. It emphatically stated that "what is whispered in the closet shall be proclaimed from the house-tops". It has now dawned on us that the axiom of the present century may just be: the reflections of the mind shall be reflected to the world. The right to privacy must therefore be an evolving right. Griswold v. Connecticut pronouncement of the United States Supreme Court wherein the right to privacy was recognised as a penumbral extension of substantive fundamental rights embedded in the First, Third, Fourth and Fifth Amendments, was incorporated, albeit to a limited extent, into the Indian Constitution in the second privacy case of Gobind v. State of M.P. But the Indian Supreme Court did not entirely adhere to the hazy shadowy analogy preferring, rather, to enumerate the right to privacy as one of the distinct rights implicit in the right to life and personal liberty under Article 21 of the Constitution. This categorisation, though activist, tends to be an oversimplification. Privacy, as a right, lacks both precise historical antecedents and precise conceptual limits. In order to fathom the nature of rights protected under the right to privacy, it is first essential to identify the nature of this elusive right. Privacy is in its incipient stages in India. This article seeks to knock on the doors of substantive thought by delineating the concept of privacy in the Indian arena. It proposes to identify momentous decisions of the Indian Supreme Court in essaying to define this elusive right in the context of the Indian Constitution. The developments of this right with reference to the law of torts will not be dealt with, as this article is an exposition solely of constitutional law. It also seeks to redefine the essential attributes of privacy in the Indian context, with the use of abstract principles and concrete caselaw. The objective is to mould the right to privacy into the structure of the Constitution. Redefining Privacy: An Indian Perspective A. The abstract definition Privacy in India has been commonly misconstrued. The notion of informational privacy, with one sole exception, has been used interchangeably with that of privacy itself. In other words, the doctrine of substantive privacy has been almost completely overlooked. What has not been taken into account is that privacy also shields those substantive decisions of individuals in society, which are fundamental to their identity, individuality and existence. This twofold aspect of privacy was delineated by Stevens, J. In Whalen v. Roe holding that the individual had an interest in preventing the disclosure of information and independence in making certain kinds of important decisions. Gerety defines privacy as "an autonomy or control over the intimacies of personal identity". He identifies three broad concepts in the legal definition of privacy-intimacy, identity and autonomy.

Bostwick relies upon a threefold classification of privacy: the privacy of repose, the privacy of sanctuary and the privacy of intimate decision. Repose is "freedom from anything that disturbs or excites" and it "partakes of calm, peace and tranquility". Sanctuary implies the prohibition of "other persons from seeing, hearing and knowing". the zone of intimate decision requires that "the personal calculus used by an individual to make fundamental decisions must be allowed to operate without the injectionof disruptive factors by the State". Solove adopts a pragmatic approach and identifies necessary and sufficient conditions for the right to privacy. He divides privacy into six comprehensive (though not mutually exclusive) rights: (i) The right to be let alone; (ii) Limited access to the self-the ability to shield oneself from others (iii) Secrecy-concealing certain matters from others (iv) Control over personal information (v) Personhood-the protection of one's personality, individuality and dignity (vi) Intimacy control over or limiting access to intimate relationships. Rubenfield defines privacy as "the right to make choices and decisions" which forms "the 'kernel' of autonomy". However, going a step further, he introduces the concept of personhood into the doctrine by stating: "some acts, faculties, or qualities are so important to our identity as persons-as human beings-that they must remain inviolable, at least as against the State ... the right to privacy is, then, to use Blackmun, J.'s word, a right to self-definition". Thus, "where our identity or self-definition is at stake, the State may not interfere". Whatever be the definition of privacy, Tribe finds that it finally comes down to "those attributes of an individual which are irreducible in his selfhood". Tribe too emphasises on the notion of personhood. Schnably finds that personhood entails "a distinctive conception of private life as a haven from State power" and "our personal lives, particularly our explorations of sexuality, are the most important sites of individual self-realisation". He further asserts that the notion of privacy should not revolve around "how individuals can be shielded from the exercise of State power" but rather on how State power may be invoked to eliminate distorting factors in personal interactions and decision-making.

The concept of privacy rests on the promise that "a certain private sphere of individual liberty will be kept largely beyond the reach of Government" and it embodies the acceptance of the "moral fact that a person belongs to himself and not to others nor to society as a whole". Privacy simplicities is the "right to be let alone", a right which Brandeis, J. in his famous dissent called "the most comprehensive of rights and the right most valued by civilised men". That one is let alone is the essence of privacy, but the question which arises is: who must leave you alone? The answer is twofold: the State, and those around you. That you have a right to be let alone by those around you is implicit in the law of torts. It has nothing to do with the State, unless, of course, the State enacts a law enabling those around you to interfere with your personal matters. However, When the State is called upon to leave you alone, the right is carved out of the Constitution. Privacy, the constitutional right, is thus created when the State has to take no action but to leave individuals to themselves. At best, it creates an obligation upon the State to ensure that individuals are left to themselves.32 In that case, what is the meaning of "being left alone"? When does the State leave you alone? In what circumstances is the State either permitted or called upon to interfere with that condition of "being alone"? B. The concrete definition An attempt at defining privacy is of no use if the levels of abstraction do not translate into concrete specifics. Broadly speaking, privacy law deals with freedom of thought, control over one's body, peace and solitude in one's home, control of information regarding oneself, freedom from surveillance,33 protection from unreasonable search and seizure,34 and protection of reputation.35 Indian jurisprudence has extended the ambit of privacy to the following zones which, though not mutually exclusive, can be analysed as follows:

1. Surveillance The first privacy case in Indian jurisprudence was that of Kharak Singh v. State of U.P. where the Supreme Court considered the constitutionality of police regulations that permitted the police to keep a close watch on would-be criminals. However, like all unfettered power, the provision was misused. The aggrieved complained that the police would inter alia: (i) enter his house; (ii) knock and shout at his door; (iii) wake him up during the night; (iv) ask him to accompany them to the station; and (v) ask him to report his departure to the local constable. The most inhumane of all regulations under challenge was Regulation 236 which permitted the police to render domiciliary visits at night. While Regulation 236 was struck down as being unconstitutional, Ayyangar, J. speaking for the majority, observed: (AIR para 20) "The right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringemet of a fundamental right guaranteed by Part III."37 However, Subba Rao, J. while partly concurring with the majority, stated: (AIR para 31) "It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but they said right is an essential ingredient of personal liberty. ... Indeed, nothing is more deleterious to a man's physical happiness and health than a calculated interference with his privacy."38 Thereafter, in Gobind v. State of M.P.39, the aggrieved complained that "his reputation had sunk low in the estimation of his neighbours"40 as a result of similar activity. Mathew, J. after reasoned deliberation, delivered a learned judgment and observed that: (SCC paras 23-24) "Privacy primarily concerns the individual. It therefore relates to and overlaps with the concept of liberty. The most serious advocate of privacy must confess that there are serious problems of defining the essence and scope of the right . Privacy interest in autonomy must also be placed in the context of other rights and values. Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child-rearing. This catalogue approach to the question is obviously not as instructive as it does not give an analytical picture of the distinctive characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as a unifying principle underlying the concept has been the assertion that a claimed right must be a fundamental right implicit in the concept of ordered liberty."41 (emphasis supplied) However, the Court stated that the right to privacy was subject to "restrictions on the basis of compelling State interest".42 Thus, the regulations were upheld since they applied to a limited class of citizens i.e. habitual criminals. Similarly, in Malak Singh v. State of Punjab43 surveillance was held to be intrusive and an encroachment upon the right to privacy and in Sunil Batra v. Delhi Admn.44 the Supreme Court considered the question of whether two individuals, sentenced to death, were entitled to privacy and human rights. The Court found that though a minimum intrusion of privacy may have been inevitable, the guards were under an obligation to ensure that human rights and privacy standards were observed. In People's Union for Civil Liberties v. Union of India (hereinafter the first PUCL case)45, the constitutionality of "telephone-tapping" was under consideration. While recognising that conversations on the telephone were of an intimate and confidential character, the Court held that tapping into conversations was unconstitutional unless brought about by a procedure established by law. The Court also found the concept of privacy "too broad and moralistic" for serious judicial consideration.46 2. Search and seizure: The Fourth Amendment The Fourth Amendment of the US Constitution reads: "The right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (emphasis supplied) The US Supreme Court had held unreasonable searches and seizures, without the issuance of a warrant on probable cause, to vitiate the principle of self-incrimination inherent in the Fifth Amendment of the US Constitution.47 A similar argument was presented in M.P. Sharma v. Satish Chandra48 with one sole difference: the petitioners did not challenge unreasonable search and seizure, but challenged the very process of search and seizure as derogatory to the principle of self-incrimination enshrined in Article 20(3) of the

Constitution. While striking down this proposition,49 the Supreme Court altogether deprecated the doctrine of the Fourth Amendment privacy by finding that: (SCR pp. 1096-97) "When the Constitutionmakers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the (American) Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction. ... Therefore, issue of a search warrant is normally the judicial function of the Magistrate. When such judicial function is interposed between the individual and the officer's authority for search, no circumvention thereby of the fundamental right is to be assumed."50 Fifty years later, the Supreme Court appropriately allowed fragments of the Fourth Amendment privacy to percolate into the boundaries of constitutional protection in District Registrar and Collector v. Canara Bank51 where the right of privacy was explored qua search and seizure. The Andhra Pradesh amendment of the Stamp Act, 1899 was challenged on the grounds that it permitted "any person" to "enter upon any premises", public or private, and "seize and impound" documents. The Court defined the limits of legitimate privacy intrusion and stated that legislative intrusions could be tested using the doctrine of proportionality, administrative/executive intrusions had to be reasonable, while judicial intrusions were permissible upon the issuance of a judicial warrant on the premise of "sufficient reason" and necessity.52 It admonishingly observed that "under the garb of the power conferred by Section 73 the person authorised may go on a rampage searching house after house" and "any number of documents may be inspected, may be seized and may be removed and at the end the whole exercise may turn out to be an exercise in futility".53 It was stated that: (SCC para 53) Unless there is some probable or reasonable cause or reasonable basis or material before the Collector for reaching an opinion that the documents in the possession of the bank tend to secure any duty or to prove or to lead to the discovery of any fraud or omission in relation to any duty, the search or taking notes or extracts therefore, cannot be valid. The above safeguards must necessarily be read into the provision relating to search and inspection and seizure so as to save it from any unconstitutionality."54 (emphasis supplied) 3. Disclosure of intimate details Privacy cannot be the right to withhold all possible information regarding one's self from all possible institutions at all possible times. Such a construction would render nugatory the very concept of societal coexistence. Everyday, we are required to disclose some or the other information about ourselves, be it in a tax return (where income is disclosed), in a university application (where marks are disclosed) in an insurance application (where medical information is disclosed), to a doctor (where intimate secrets are disclosed), etc. However, does the mere fact that I have parted with my incomeinformation in a tax return permit the Income Tax Department to disclose my income to the whole world? Or does the fact that I have given medical information to insurance companies permit them to relay the information to pharmaceutical companies? The answer must necessarily be in the negative. Privacy is therefore not merely the right to control what kind of information is disclosed, but also the right to choose, control and limit to whom the disclosure is made. The fact of a disclosure to an institution does not indicate the acquiescence of its disclosure to the general public. In addition, all individuals retain control over that aspect of their lives which is intimate and personal by its very nature, and over which no member of the public can have a legitimate claim. In contrast to the information given above (an income tax return is mandatory) this information can only be disclosed voluntarily. In Neera Mathur v. LIC55 the Life Insurance Corporation of India required married female candidates to disclose inter alia, in a form,56 information regarding menstrual cycles, conceptions and pregnancies and abortions. The Supreme Court, without mentioning the right of privacy, found: (SCC para 13) "The particulars to be furnished under columns (iii) to (viii) in the declaration are indeed embarrassing if not humiliating. The modesty and self-respect may perhaps preclude the disclosure of such personal problems like whether her menstrual period is regular or painless, the number of conceptions taken place; how many have gone full term, etc. The Corporation would do well to delete such columns in the declaration."57 Similarly, forms regarding the disclosure of religion, caste, community should not be made mandatory for admission into educational institutions, government posts (except where such disclosure is necessary for an affirmative action), etc., for these are personal matters, the compulsory disclosure of which tends to be offensive. However, in Sharda v. Dharmpal58, the Supreme Court considered the question of whether a party to a divorce proceeding could be compelled to take a medical examination. While acknowledging the importance of privacy and confidentiality, the Court found that the right to privacy was not absolute

and a party could be asked to take a medical examination since in a matrimonial proceeding: (SCC para 76) "If the respondent avoids such medical examination on the ground that it violates his/her right to privacy or for that matter right to personal liberty as enshrined under Article 21 of the Constitution, then it may in most of such cases become impossible to arrive at a conclusion."59 This decision demonstrates that like all other fundamental rights, the right to privacy too is subject to reasonable restrictions. 4. The all-pervasive "public eye" In R. Rajagopal v. State of T.N.60 the Supreme Court considered the freedom of the press vis-…-vis the right to privacy of citizens. "Auto" Shankar, convicted of six murders and sentenced to death, had written his biography which he intended to get published in a Tamil weekly magazine entitled Nakheeran. In 300 pages thereof, he set out the close nexus between himself and several IAS, IPS and other officers, some of whom were his partners in crime. The Court developed a new test, modelled on the decisions of the US Supreme Court in New York Times v. Sullivan61 and Time Inc v. Hill62 However, with regard to privacy, the Court observed: (SCC para 26) "26. (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, childbearing 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. The position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy."63 (emphasis supplied) The Court thus echoed its findings in Gobind v. State of M.P.,64 with a sole difference: the right to "family, marriage, procreation, motherhood, childbearing and education among other matters"65 was considered exclusively to be a publishing or informational right. None can publish anything regarding these matters. As long as information is not disclosed regarding these matters, no harm was said to be done. However, does that then mean that the individual has no right of independence of action regarding these matters? Can the State interfere with the right of individuals in their personal matters as long as no information is disclosed? Does it mean, for example, that the State can interfere with my decision as to what higher education I should pursue (whether I study law, medicine or business), so long as that information is not published? Fortunately, the Supreme Court qualified its observations by stating that: "the principles abovementioned are only the broad principles. They are neither exhaustive nor all-comprehending; indeed no such enunciation is possible or advisable. As rightly pointed out by Mathew, J. this right has to go through a case-bycase development."66 (emphasis supplied) Nonetheless, endeavouring to enunciate the "broad principles" of privacy, this decision tends to have the effect of excluding the principle of substantive privacy from the ambit of constitutional protection. In People's Union for Civil Liberties v. Union of India (hereinafter the second PUCL case)67 the validity of the Representation of the People (Amendment) Ordinance, 2002 was under challenge. Shah, J. brought forth the decision with a poignant question: (SCC p. 418, para 2) "2. There was an era when a powerful or a rich or a strong or a dacoit aged more than 60 years married a beautiful young girl despite her resistance. Except to weep, she had no choice of selecting her mate. To a large extent, such situation does not prevail today. Now, young persons are selecting mates of their choice after verifying full details thereof. Should we not have such a situation in selecting a candidate contesting elections? In a vibrant democracy-is it not required that a little voter should know the biodata of his/her would-be rulers, law-makers or destiny-makers of the nation?" The conflict between the right to privacy of the official in the public eye and the right of the citizen to information was said to end in favour of the citizen, thereby serving the larger public interest.68 In People's Union for Civil Liberties v. Union of India69 (hereinafter the third PUCL case) the constitutionality of various provisions of the Prevention of Terrorism Act, 2002, were challenged. Once again the Court found that: (SCC para 37) "The criminal justice system cannot function without the cooperation of people. Rather it is the duty of everybody to assist the State in the detection of the crime and bringing criminals to justice. Withholding such information cannot be traced to right to privacy, which itself is not an absolute right.

Right to privacy is subservient to that of security of State."70 (emphasis supplied) Finally, in People's Union for Civil Liberties v. Union of India71 (hereinafter the fourth PUCL case) the appellants sought the disclosure of information relating to safety violations in nuclear installations and power plants. Privacy had hardly a part to play in the decision, but the Court recognised it as one of the grounds on which the Government could withhold information.72 The cases that fall under this segment have further broadened the ambit of the reasonable restrictions which apply to the right to privacy. While the "larger public interest" and the "security of the State" were considered to be restrictions on privacy, the right itself was interpreted in its informational context. The substantive interpretation of privacy is yet to make a formal appearance in Indian legal pronouncement. 5. Marriage Marriage is an institution the continuance of which ensures the perpetuation of society. It has been equated with the very concept of existence in Indian jurisprudence.73 The institution revolves around certain fundamental decisions concerning when to marry,74 whom to marry75 and whether to marry at all.76 It facilitates (but does not enforce) the exercise of procreation, and the questions of whether to have children at all,77 and how many children to have78 are, in themselves, fundamental choices. Once the marriage bond is formed certain fundamental choices and fundamental decisions are required to be made about the new units of the family i.e. the children, when they cannot be said to make decisions for themselves. Fundamental choices regarding children may include the education of children i.e. which school the child should join, which courses the child should take, etc.,79 the right to bring them up in their own manner, with the inculcation of desired values, etc. Of particularly growing interest is the right to privacy of the child, especially since the Constitution contains no "adults only" caveat.80 Thus, the institution of marriage is virtually the progenitor of the notion of substantive privacy. The institution of marriage is based upon mutual consent and for such consent to exist it is essential that both spouses are fully aware of each other's medical conditions, which alone can legitimately affect the fundamental decisions mentioned above.81 This condition may be referred to as "informed mutual consent". It follows that if any medical condition is withheld from a spouse, the consent was obtained by fraud, and the marriage, in the least, is voidable. These fundamental decisions associated with marriage are indefeasible elements of inviolable selfhood, and cannot be interfered with except for the reasonable restrictions appended below.82 The right to marriage is therefore a part of the fundamental right to privacy, subject, like any other fundamental right, to reasonable restrictions. In Mr 'X' v. Hospital 'Z'83 (hereinafter the first marriage case), on the donation of blood, an individual, Mr 'X', was found to be HIV positive. This information was relayed by the hospital to his spouse, Ms 'Y', as a result of which the marriage was called off. The Supreme Court considered the right of privacy to be subordinated inter alia to the protection of the health and morals of others.84 Without being fully aware of the medical condition of Mr 'X', Ms 'Y' would not be able to fully exercise her fundamental decision of marriage. There was a danger that Ms 'Y' too would contract the disease. That is not in the least to say that individuals with diseases cannot marry, but it implies that the marriage, like any other, must be based upon informed mutual consent. Thus, the Supreme Court found that: (SCC para 38) "If that person is suffering from any communicable venereal disease or is impotent so that marriage would be a complete failure or that his wife would seek divorce from him on that ground, that person is under a moral, as also legal duty, to inform the woman with whom the marriage is proposed that he was not physically healthy and that he was suffering from a disease which was likely to be communicated to her."85 (emphasis supplied) However, the Supreme Court went on to subordinate the right to marry of individuals with communicable venereal diseases, even when such marriage was based upon informed mutual consent. It thus stated: (SCC para 38) "So long as the person is not cured of the communicable venereal disease or impotency, the right to marry cannot be enforced through a court of law and shall be treated to be a 'suspended right'."86 (emphasis supplied) The effect of the right to marriage being held a "suspended right" did not mean that individuals with communicable venereal diseases could not marry, but worse still, it meant that if the State enacted a law preventing them from marrying, it could not be subject to challenge under the fundamental right. It must also be noted that if at all a fundamental right is to be suspended, the suspension must be warranted by the Constitution and cannot be brought about by external considerations. This decision gravely affected the right to substantive privacy, affecting the right of individuals to make fundamental decisions associated with marriage. The pronouncement therefore came under review in Mr 'X' v. Hospital 'Z'87 (hereinafter the second marriage case), where the Court held that the question of whether individuals with communicable venereal diseases could marry did not arise for

consideration, and the prior observations of the Supreme Court relating to the suspended right of marriage were struck down to that effect. II. Reconstructing Privacy: The substantive US perspective "Warning: Pregnancy is dangerous to your constitutional rights. You will lose the rights to liberty, to equality and to privacy."88 The US Supreme Court has found the rights of marriage, procreation, contraception, family relationships, child-rearing and education89 to be indefeasible fragments of the substantive right to privacy. The fundamental choice of whether or not to beget a child forms the crux of this cluster of constitutionally protected decisions as "decisions whether to accomplish or to prevent conception are amongst the most private and sensitive".90 The substantive right to privacy has been described as a freedom in making certain kinds of intimate decisions.91 Protection has not only been extended to certain kinds of decisions but also to certain kinds of places.92 The turning point came in Griswold v. Connecticut93 where the US Supreme Court considered the vires of a statute prohibiting the use of contraceptives by married couples. Douglas, J. in his momentous pronouncement, put forth the following proposition:"Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship."94 In Eisenstadt v. Baird95 a similar provision affecting unmarried couples was rendered unconstitutional albeit under the equal protection clause, as the evil would be identical and the under-inclusion invidious. The Court expounded, in its equally renowned pronouncement, upon the concept of privacy thus: "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."96 (emphasis in original) In Roe v. Wade97 the US Supreme Court considered the constitutionality of a statute criminalising abortion. The right to privacy was considered to be broad enough to encompass a woman's right to terminate her pregnancy owing to the intense emotional, mental, psychological and physical strain which it entails.98 In a controversial decision, a similar provision was upheld in Webster v. Reproductive Health Services.99 However, the original position was reaffirmed in Planned Parenthood v. Casey100 where the Court elaborated the consequences of abortion: "Abortion is a unique act. It is an act fraught with consequences for others; for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedure; for the spouse, family and society ... The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society."101 Similarly, Ridder & Woll find that: "When we talk about women's rights, we can get all the rights in the world-the right to vote, the right to go to school-and none of them means a doggone thing if we don't own the flesh we stand in, if we can't control what happens to us, if the whole course of our lives can be changed by somebody else that can get us pregnant by accident, or by deceit, or by force."102 In Loving v. Virginia103 the US Supreme Court struck down a law which prevented interracial marriages. However, the substantive right to privacy in the context of marriage suffered a substantial setback in Bowers v. Hardwick104 where the US Supreme Court denied privacy protection to homosexual activity. The decision was reversed in 2003, in Lawrence v. Texas105 where Kennedy, J. found homosexuals to have the same rights as heterosexuals, beginning, in his eloquent judgment, with: "Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct."106 In Skinner v. Oklahoma107 the US Supreme Court struck down a statute which called for the sterilisation of "habitual criminals", thus ensuring their inherent right of procreation, while in Stanley v. Georgia108 the possession of obscene material in a man's house was condoned for the reason: "If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving Government the power to control men's minds."109 III. Conclusion

Liberty is not a limited nor a quantifiable right. It is visible in the entire gamut of the legal spectrum. The import of the enumeration of privacy as a part of Article 21 of the Constitution is thus far greater than it seems. It embraces at the very minimum, the freedom of conscience, the right to freedom and the right to freedom of religion. This line of thought can be substantiated on the touchstone of the Indian Constitution. The early decisions of the Supreme Court considered fundamental rights to be fixed and watertight compartments. However, an activist court declared that "their waters must mix to constitute that grand flow of impartial and unimpeded justice".110 The right to life was considered not to be the embodiment of a mere animal existence, but the guarantee of a full and meaningful life.111 Such a life must necessarily embrace all other fundamental rights. For can it be said that one enjoys a meaningful existence without equality or without the freedom of conscience? Privacy therefore lifts its countenance to all rights which fall within the shadows of liberty. But in a Constitution with enumerated rights, where the right to freedom under Article 19, the right to conscience under Article 25 and the right to life and personal liberty under Article 21, though not watertight compartments, nonetheless manifest themselves in different provisions for the protection of different freedoms, the scope of the right to privacy too must be broadened and defined in the context of the Indian Constitution, in order to avoid narrow constructions chiselled out of liberal ones. The constitutional demarcation of privacy cannot be too broad either. Gerety admonishes that privacy has "a protean capacity to be all things to lawyers, and, as often defined and defended, it lacks readily apparent limitations of its own" and that "a legal concept will do us little good if it expands like a gas to fill up the available space."112 It therefore becomes essential, at the outset, to distinguish between the concept of privacy and the concepts of liberty, conscience and freedom. If the Government interferes with my right to speak to an audience in an open maidan, can it be said that my right to privacy has been infringed? The answer is in the negative. In such cases, my right to the freedom of speech is interfered with. However, if the Government interferes with my right to speak to my brother in the confines of my home, can I say that my right to privacy has been intruded upon? The answer must necessarily be in the affirmative.The right to privacy thus emphasises upon the place in which the act occurs. It was this principle that prompted Douglas, J. to enunciate the repulsive notion of invading "marital bedrooms" for telltale signs of crime.113 However, if I go to a bazaar and speak to my father, and the Government prevents me from doing so, is my right to privacy infringed, in spite of the fact that the communication was made in an open area? The answer once more is in the affirmative. It thus appears that the right to privacy is hinged not only upon the place, but more specifically, upon an arena which by its very nature is secluded from access to the public. The nature of the act or the communication must be such as is inherently personal and private. Extending privacy protection to the spheres of marriage, procreation, contraception, family relationships, child-rearing and education is thus justified. Thus, in Katz v. US114 the accused revealed information incriminating himself, in a telephone conversation conducted from a public phone booth. The US Supreme Court considered eavesdropping into a conversation, in spite of the fact that it was conducted in a public phone booth, to constitute a violation of the privacy of the accused. Thus, the mere fact that one discloses financial information on the world wide web does not mean that others can tap into that information, and if they do so, it amounts to an infringement of one's privacy, because the channel of communication is restricted to oneself and the seller. A. The equal freedom of conscience The substantive right to privacy need not be read into the Indian Constitution. It already forms a deeply embedded facet of it. Article 25 equally assures to all persons the freedom of conscience. This historic freedom, though enumerated under the "right to religion" in the Constitution, cannot be truncated to safeguard exclusively religious rights. The right to worship God according to the dictates of one's conscience is but an aspect of its entirety. "Conscience" is not the sole concomitant of faith, but the repository of humanity. It is the quintessence of what makes us human. Simply put, it is the ability of every human being to make moral decisions, and to distinguish between the right and the wrong.115 The US Constitution has recognised two aspects of the freedom of conscience: religion and speech.116 Where the substantive right to privacy gives to every individual a degree of independence in making certain kinds of decisions following the dictates of his own conscience, the freedom of conscience becomes an important repository of the right to privacy, particularly when the freedom is enumerated in the Constitution.

Similarly, the right to freely profess, practice and propagate the religion of one's choice, perhaps one of the most personal of all fundamental human choices, without the unwarranted intrusion of the State, is a substantial element of the right to privacy. Thus, in Bijoe Emmanuel v. State of Kerala,117 Chinnappa Reddy, J. considered the right of Jehovah's witnesses to abstain from singing the national anthem due to their religious beliefs. The Court found (SCC para 1) that "these matters of conscience, which though better left alone, are sensitive and emotionally evocative" (emphasis supplied).118 The expulsion of children on the ground that they respectfully refused to sing the national anthem was considered to violate their constitutional guarantee to the freedom of conscience. B. The right to freedom Article 19 of the Constitution gives to every citizen the right to freedom from unwarranted governmental intrusion. It bestows upon the citizen, the right to be let alone by the State. It elucidates, under the category of "reasonable restrictions", the principle that this right is not absolute, and enumerates the exceptions to which it is subject in the larger and more compelling public interest. Freedom of thought is ensconced in the freedom of speech and expression. This enumerated freedom is the constitutional manifestation of the "freedom to think as you will and to speak as you think".119 Similarly, the freedom to assemble peacefully and without arms, to form associations and unions, to move freely throughout the territory of India and to practice any profession, or to carry out any occupation, trade or business are all manifestations of the right to be let alone by the Government. Thus, privacy is that sphere of the life of an individual into which the Government cannot interfere. It may at times be a pure right i.e. the right literally to be left alone in the confines of one's house, so long as no unlawful activity is not carried out. It may also be the right to an unhindered exercise of some or the other constitutional right, so long as the right is exercised in a private or personal arena. It is a protection of the basic inviolable nature of the human personality. In the Indian context, it embodies a freedom from unwarranted, arbitrary and unnecessary surveillance, search and seizure. It signifies the power to decide what kind of personal information may be disclosed, and the choice of whom the disclosure may be made to. It is a safeguard of the exercise of choice in matters fundamental to our existence. It is not merely an informational right, but a truly substantive right.