New Delhi: What qualifies as a violation of a person’s right to privacy? Going by some recent legal arguments, it ranges from courts seeking details of hotel bills and call records for a divorce case, to the strip-searching of a bomb blast accused, to authorities’ demands for identity proof.
The assertion of their “right to privacy” by litigants has grown manifold ever since the 2017 Supreme Court judgment in the Puttaswamy Aadhaar case. In this landmark ruling, the court established privacy as a fundamental right, essential to an individual’s dignity, autonomy, and liberty.
Subsequently, cases centred on privacy have often involved complex considerations of public policy, individual rights, and even national interest or societal welfare. Notably, the right to privacy is also the pivot of the Data Protection Bill that is likely to be tabled before Parliament in the upcoming monsoon session.
According to legal experts, courts have become more proactive in safeguarding the privacy of individuals across a range of cases.
“The Puttaswamy judgment has caused a paradigm shift in the manner in which cases related to individual privacy are being decided. It has brought in a new consciousness for protection of individual dignity and rights,” said Supreme Court advocate Swarnendu Chatterjee, speaking to ThePrint.
“In matrimonial, criminal, or other cases, the courts are now more proactive in protecting the privacy of the litigants in a judicious manner, which I would say is a welcome development,” he added.
Here are some cases that illustrate how various aspects of the right to privacy have been invoked and how courts have responded.
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Personal wrong vs public offence
There has been a monumental shift in how litigants are demanding protection of their right to privacy from the judiciary.
This can be seen in a case that has come before the Supreme Court, where a husband has appealed against a Delhi High Court order that allowed his wife to access his phone records and hotel bills in order to prove that he was having an affair.
The husband has argued that since adultery is a private wrong, and not a crime or public offence, accessing his call records and hotel bills, as sought by his wife, would violate his right to privacy. It has also been contended that accessing such records could only be justified if it was in the national interest.
Earlier this month, the Supreme Court bench hearing the case sent a notice to the man’s wife and asked her to furnish a response.
Senior Advocate Geeta Luthra, speaking to ThePrint, said that while privacy concerns are important, an individual’s right to prove their case should also be considered.
“In misdemeanours inter se (between) private parties involving call records and DNA, one must have the right to prove their innocence or make their case. In my view, the right to prove one’s case should continue to exist alongside the right to privacy,” Luthra said.
“While the honourable Supreme Court has decided against this to a large extent, I don’t quite agree with the court’s ratio in some cases. There needs to be a balance — the concern of the one must be balanced against the concerns of the many,” she added.
“It must be remembered there is no right to privacy between individuals, it is only against the state,” she further pointed out.
‘Strip-searching prisoner violates right to privacy’
Courts have uniformly applied the principle of right to privacy to all individuals, even if they happen to be on the wrong side of the law.
This is evident in the case of Ahmed Kamal Shaikh, a 1993 Bombay blast accused who claimed he was “strip-searched” at the entrance of a Mumbai prison after court hearings.
Seeking legal recourse, he complained that the practice, which is done to look for weapons or other contraband, infringed on his right to privacy.
In an order passed this April, the special judge under the Maharashtra Organised Crime Control Act (MCOCA) agreed with Shaikh that such a strip search violated his right to privacy.
“Certainly, taking search by making the UTP (undertrial prisoner) nude is a violation of his fundamental right of privacy, it is also humiliating,” the judge said.
He also told the jail superintendent to ensure that no such incident takes place and to use gadgets such as scanners instead of conducting strip searches.
‘Top 10 criminals’, and protection from ‘scorn’
The Allahabad High Court ruled in 2021 that the Uttar Pradesh police’s practice of publishing lists of alleged “Top 10 criminals” in the absence of a lawful proclamation was harmful to dignity and amounted to a breach of the right to privacy.
The court’s decision was based on a petition filed by three men — Jeeshan, Balveer, and Doodh Nath— who were aggrieved by the publication of their names in such a list. The men argued that they were facing only one case and that their names had been included in the list due to political enmity. They also claimed that publishing such a list violated their privacy.
Finding merit in their argument, the court observed that privacy rights have protected one from the indiscriminate exercise of authority. It further noted that the publication of their names on a “flysheet board” at police stations was derogatory to their human dignity and privacy.
“This judgment focusing on an aspect of privacy as a right to life has insulated an individual from the exercise of authority either by the legislation or the State so to prevent a person being made an object of ridicule or scorn,” the court had said, while ordering the police not to put up such lists unless a lawful proclamation was issued.
No-go for ‘routine invasion’
Even in cases involving police verification of personal documents, the courts have underscored the need to conform to privacy rights.
This was evident when Justice Asha Menon of the Delhi High Court, in July last year, dismissed a plea seeking police verification of a defendant’s personal documents.
Following a dispute, the petitioner had sought the police’s assistance in confirming the defendant’s true identity through personal documents such as Aadhaar card and driver’s license.
However, the judge did not concur with this line of argument, stating that such a “routine invasion” was impermissible.
“Subjecting a citizen to police scrutiny, including of his documents for no good reason, except on the whimsical demand of the petitioner, would entail a serious invasion of the respondent’s right to privacy,” said the order.
Right to be forgotten
After the privacy decision, Indian courts have also recognised the “right to be forgotten”. It provides for the right to have private information removed under certain circumstances.
With this as a guiding principle, the courts have occasionally attempted to find a way around “digital permanence” — the idea that what is on the internet stays on the internet.
In June, for instance, the Delhi High Court directed a legal website to “mask” the name of an individual who was acquitted in a rape case after the prosecutrix’s testimony was found to be unreliable.
The man had approached the HC for help, claiming he had “immensely suffered” due to the existence of the judgement online.
It was his argument that the attachment of his name to the said case tarnished his image and that his right to privacy included the “right to be forgotten”.
Justice Pratibha Singh of the Delhi High Court concurred, and directed that his name should be masked on the website. She also directed the website to file its policy on the right to be forgotten.
(Edited by Asavari Singh)
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