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India: Justice A.P. Shah Expert Group’s Report on Privacy

23 October 2012

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Report of the Group of Experts on Privacy (Chaired by Justice A P Shah, Former Chief Justice, Delhi High Court)

Short excerpt from Chapter 1

Chapter 1: The Constitutional Basis for Privacy

1.1 Since the 1960s, the Indian judiciary, and the Supreme Court in particular, have dealt with the issue of privacy, both as a fundamental right under the Constitution and as a common law right. The common thread through all these judgments of the Indian judiciary has been to recognise a right to privacy, either as a fundamental right or a common law right, but to refrain from defining it in iron-clad terms. Instead the Courts have preferred to have it evolve on a case by case basis. As Justice Mathew put it, “The right to privacy will, therefore, necessarily, have to go through a process of case by case development.” (Govind v. State of Madhya Pradesh, AIR 1975 SC 1378)

Right to privacy in the context of surveillance by the State

1.2 The very first case to lay down the contours of the right to privacy in India, was the case of Kharak Singh v. State of Uttar Pradesh (1964) SCR (1) 332, where a Supreme Court bench of seven judges was required to decide the constitutionality of certain police regulations which allowed the police to conduct domiciliary visits and surveillance of persons with a criminal record. The petitioner in this case had challenged the constitutionality of these regulations on the grounds that they violated his fundamental right to privacy under the ‘personal liberty’ clause of Article 21 of the Constitution. In this case a majority of the judges refused to interpret Article 21 to include within its ambit the right to privacy part the majority stated “The right of privacy is not a guaranteed right under our Constitution, and therefore the attempt to ascertain the movements of an individual is merely a manner in which privacy is invaded and is not an infringement of a fundamental right guaranteed in Part III.” The majority however did recognise the common law right of citizens to enjoy the liberty of their houses and approved of the age old saying that a man’s home was his castle. The majority therefore understood the term ‘personal liberty’ in Article 21 in the context of age old principles from common law while holding domiciliary visits to be unconstitutional. Two of the judges of the seven judge bench, however, saw the right to privacy as a part of Article 21, marking an early recognition of privacy as a fundamental right. Justice Subba Rao held “It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty.”

1.3 The question of privacy as a fundamental right presented itself once again to the Supreme Court a few years later in the case of Govind v. State of Madhya Pradesh (AIR 1975 SC 1378). The petitioner in this case had challenged, as unconstitutional, certain police regulations on the grounds that the regulations violated his fundamental right to privacy. Although the issues were similar to the Kharak Singh case, the 3 judges hearing this particular case were more inclined to grant the right to privacy the status of a fundamental right. Justice Mathew stated:

“Rights and freedoms of citizens are set forth in the Constitution in order to guarantee that the individual, his personality and those things stamped with his personality shall be free from official interference except where a reasonable basis for intrusion exists. ‘Liberty against government’ a phrase coined by Professor Corwin expresses this idea forcefully. In this sense, many of the fundamental rights of citizens can be described as contributing to the right to privacy.”
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Report of the Group of Experts on Privacy (Chaired by Justice A P Shah, Former Chief Justice, Delhi High Court)
Government of India Planning Commission [16 October 2012]