right to privacy as per constitution
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10044 OF 2010
CENTRAL PUBLIC INFORMATION OFFICER,
SUPREME COURT OF INDIA ….. APPELLANT(S)
VERSUS
SUBHASH CHANDRA AGARWAL ….. RESPONDENT(S)
W I T H
CIVIL APPEAL NO. 10045 OF 2010
A N D
CIVIL APPEAL NO. 2683 OF 2010
J U D G M E N T
SANJIV KHANNA, J.
The right to privacy though not expressly guaranteed in the
Constitution of India is now recognized as a basic fundamental
Civil Appeal No. 10044 of 2010 & Ors. Page 54 of 108
right vide decision of the Constitutional Bench in K.S.
Puttaswamy and Another v. Union of India and Others26
holding that it is an intrinsic part of the right to life and liberty
guaranteed under Article 21 of the Constitution and recognised
under several international treaties, chief among them being
Article 12 of the Universal Declaration of Human Rights, 1948
which states that no one shall be subjected to arbitrary
interference with his privacy, family, home or correspondence, nor
to attacks upon his honour and reputation. The judgment
recognises that everyone has a right to the protection of laws
against such interference or attack.
41. In K.S. Puttaswamy (supra) the main judgment (authored by D.Y.
Chandrachud, J.) has referred to provisions of Section 8(1)(j) of
the RTI Act to highlight that the right to privacy is entrenched with
constitutional status in Part III of the Constitution, thus providing a
touchstone on which validity of executive decisions can be
assessed and validity of laws can be determined vide judicial
review exercised by the courts. This observation highlights the
status and importance of the right to privacy as a constitutional
right. The ratio as recorded in the two concurring judgments of
26 (2017) 10 SCC 1
Civil Appeal No. 10044 of 2010 & Ors. Page 55 of 108
the learned judges (R.F. Nariman and Sanjay Kishan Kaul, JJ.)
are similar. It is observed that privacy involves a person’s right to
his physical body; right to informational privacy which deals with a
person’s mind; and the right to privacy of choice which protects an
individual’s autonomy over personal choices. While physical
privacy enjoys constitutional recognition in Article 19(1)(d) and (e)
read with Article 21, personal informational privacy is relatable to
Article 21 and right to privacy of choice is enshrined in Articles
19(1)(a) to (c), 20(3), 21 and 25 of the Constitution. In the
concurring opinion, there is a reference to ‘The Right to Privacy’
by Samuel Warren and Louis D. Brandeis on an individual’s right
to control the dissemination of personal information and that an
individual has a right to limit access to such information/shield
such information from unwarranted access. Knowledge about a
person gives another power over that person, as personal data
collected is capable of effecting representations in his decision
making process and shaping behaviour which can have a
stultifying effect on the expression of dissent which is the
cornerstone of democracy. In the said concurring judgment, it has
been further held that the right to protection of reputation from
being unfairly harmed needs to be zealously guarded not only
against falsehood but also against certain truths by observing:
Civil Appeal No. 10044 of 2010 & Ors. Page 56 of 108
“623. An individual has a right to protect his reputation
from being unfairly harmed and such protection of
reputation needs to exist not only against falsehood but
also certain truths. It cannot be said that a more
accurate judgment about people can be facilitated by
knowing private details about their lives – people judge
us badly, they judge us in haste, they judge out of
context, they judge without hearing the whole story and
they judge with hypocrisy. Privacy lets people protect
themselves from these troublesome judgments.”27
42. Privacy, it is uniformly observed in K.S. Puttaswamy (supra), is
essential for liberty and dignity. Therefore, individuals have the
need to preserve an intrusion-free zone for their personality and
family. This facilitates individual freedom. On the question of
invasion of personal liberty, the main judgment has referred to a
three-fold requirement in the form of – (i) legality, which postulates
the existence of law (RTI Act in the present case); (ii) need,
defined in terms of a legitimate State aim; and (iii) proportionality,
which ensures a rational nexus between the objects and the
means to be adopted to achieve them. The third requirement, we
would observe, is achieved in the present case by Sections 8(1)(j)
and 11 of the RTI Act and the RTI Act cannot be faulted on this
ground. The RTI Act also defines the legitimate aim, that is a
public interest in the dissemination of information which can be
confidential or private (or held in a fiduciary relationship) when
27 Daniel Solove: “10 Reasons Why Privacy Matters” published on 20th January 2014 and available at
https://www.teachprivacy.com/10-reasons-privacy-matters/
Civil Appeal No. 10044 of 2010 & Ors. Page 57 of 108
larger public interest or public interest in disclosure outweighs the
protection or any possible harm or injury to the interest of the third
party.
43. Privacy and confidentiality encompass a bundle of rights including
the right to protect identity and anonymity. Anonymity is where an
individual seeks freedom from identification, even when and
despite being in a public space. In K.S. Puttaswamy (supra)
reference is made to Spencer v. R.28 which had set out three key
elements of informational privacy: privacy as secrecy, privacy as
control, and privacy as anonymity, to observe:
“214. […] anonymity may, depending on the totality of
the circumstances, be the foundation of a privacy
interest that engages constitutional protection against
unreasonable search and seizure.
xx xx xx
[…] The disclosure of this information will often amount
to the identification of a user with intimate or sensitive
activities being carried out online, usually on the
understanding that these activities would be
anonymous. A request by a police officer that an ISP
voluntarily disclose such information amounts to a
search.”
Privacy and confidentiality, therefore, include information about
one’s identity.
recognised that unlike law of confidentiality that is based upon
duty of good faith, right to privacy focuses on the protection of
human autonomy and dignity by granting the right to control the
dissemination of information about one’s private life and the right
to the esteem and respect of other people (See - Sedley LJ
in Douglas v. Hello! Ltd22). In PJS v. News Group Newspapers
Ltd.23, the Supreme Court of the United Kingdom had drawn a
22 (2001) QB 967
23 (2016) UKSC 26
Civil Appeal No. 10044 of 2010 & Ors. Page 51 of 108
distinction between the right to respect private and family life or
privacy and claims based upon confidentiality by observing that
the law extends greater protection to privacy rights than rights in
relation to confidential matters. In the former case, the claim for
misuse of private information can survive even when information
is in the public domain as its repetitive use itself leads to violation
of the said right. The right to privacy gets the benefit of both the
quantitative and the qualitative protection. The former refers to the
disclosure already made and what is yet undisclosed, whereas the
latter refers to the privateness of the material, invasion of which is
an illegal intrusion into the right to privacy. Claim for confidentiality
would generally fail when the information is in public domain. The
law of privacy is, therefore, not solely concerned with the
information, but more concerned with the intrusion and violation of
private rights. Citing an instance of how publishing of defamatory
material can be remedied by a trial establishing the falsity of such
material and award of damages, whereas invasion of privacy
cannot be similarly redressed, the Court had highlighted the
reason why truth or falsity of an allegation or information may be
irrelevant when it comes to invasion of privacy. Therefore, claims
for protection against invasion of private and family life do not
depend upon confidentiality alone. This distinction is important to
Civil Appeal No. 10044 of 2010 & Ors. Page 52 of 108
understand the protection given to two different rights vide Section
8(1)(j) and 11 of the RTI Act.