Right to Privacy Main Project

8/3/2019 Right to Privacy Main Project

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Right to privacy

In

Torts

SUBMITTED BY,

ANU MARIA FRANCIS(449)

KIRON NORONHA(462)

PREETHA()

SIDDARTH BALADEVAN(488)

YAMUNA VIJAYAGOPAL(502)


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INTRODUCTION

Many of the torts that are recognized protect a range of interests and

some interests are protected against different types of conduct by

different torts. Privacy is the ability of an individual or group to seclude

them or information about themselves and thereby reveal them

selectively. Privacy is a broad and amorphous interest that several of the

torts, for instance, trespass to land, private nuisance, defamation,

malicious falsehood and passing off, can play a role in protecting different

aspects of it. However, these torts only provide a 'patchy' protection for

privacy, which means that there still exist some gaps and inconsistencies.

But these gaps and inconsistencies were most commonly treated as a

reason for favoring reform, though some commentators regarded them as

exposing problems with the coherence of the concept of 'Privacy.' Privacy

can be seen as an aspect of security, one in which trade-offs between theinterests of one group and another can become particularly clear.

The right against unsanctioned invasion of privacy by the government,

corporations or individuals is part of many countries' privacy laws, and in

some cases, constitutions. Almost all countries have laws which in some

way limit privacy; an example of this would be law concerning taxation,

which normally requires the sharing of information about personal income

or earnings. The concept of privacy is most often associated with Western

culture, English and North American in particular. According to some

researchers, the concept of privacy sets Anglo-American culture apart

even from other Western European cultures such as French or Italian. The

concept is not universal and remained virtually unknown in some cultures

until recent times. This project shall concentrate on the specific grounds

of liability intended to provide direct protection for privacy.

DIFFERENT TYPES OF PRIVACY

The term "privacy" means many things in different contexts. The different

types of privacy are mainly the following:

Physical

Physical privacy could be defined as preventing "intrusions into one's

physical space or solitude". This contains

- preventing intimate acts or one's body from being seen by others for

the purpose of modesty.

- preventing unwelcome searching of one's personal possessions.

- preventing unauthorized access to one's home or vehicle.


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PRIVACY OF WOMEN

Under Section 509 of the Indian Penal Code, it has been ensured that the

privacy of women are well protected in India. According to it, whoever

intends to insult the modesty of a woman, utters any word, makes any

sound or gesture or exhibits any object, intending that such word or soundshall be heard or that such gesture or object be seen by such woman or

intrudes upon the privacy of such woman, shall be punished with simple

imprisonment for a term which may extend upto one year, or with fine or

both.

PRIVACY OF A PERSON OR PROPERTY

The privacy of a person or his property is an inherent right, and its

infringement is a tort in India but has not yet fully been recognized assuch in England and America. This has been classed as a doubtful wrong.

The privacy of a person or property has been defined as: It may be

described as unauthorized interference with another person's seclusion of

himself, his family and his property from the public. According to Justice

Gray, in his judgment in an American case of Robertson v. Rochester

Folding Box Company, stated that, " The right of privacy, the right of the

individual to be let alone is the complement of the right to the immunity

of one person, and should be afforded protection not only against the

scandalous portraiture of one's features but against the display and use

thereof for another's commercial purpose or gain."

PERSONAL PRIVACY

The right of privacy may be privacy of property or privacy of person. The

infringement of copyright, patents, designs, trade marks and names

belong to the first category. Right of privacy to land is recognized in the

law of trespass. But the right to personal privacy had no favorable

reception in England. In India, the right to privacy has been recognized by

the Allahabad High Court in Gokal Prasad v. Radho, 1880, where aninjunction was granted restraining the defendants from constructing a

building overlooking the zenana of the plaintiff. It was held that owing to

differences in the conditions of domestic life, this custom perfectly

reasonable in India, is unknown in England. Reverting to English decisions,

in many of the cases, a persons right to prevent others from taking

photographs of himself or his property was denied. In the case of Corelli v.

wall the defendant published and sold the photographs of Miss Corelli, a

novelist, against her consent, depicting her badly in imaginary incidents of

her life. She sued for an injunction of libel and for publication of herportrait without her consent. But the court refused injunction on both the


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grounds saying that there was no prima facie case for libel to justify the

issue of an interlocutory injunction and secondly, that there was no

authority for the proposition that "a private person was entitled to restrain

the publication of a portrait of herself which had been made without her

authority and which although professing to be her portrait, was totallyunlike her."

However, in some other English decisions, we find that there have also

been instances when the publications of portraits of persons falsely

depicting their character for purposes of advertisement have been held to

be defamatory in libel actions. For example, In Dunlop Rubber Company

Ltd v. Dunlop, where portraits of Mr Dunlop were published falsely,

representing him as an old gentleman.

RIGHT TO PRIVACY-AN INDIVIDUAL RIGHT

According to Alan Westin new technologies alter the balance between

privacy and disclosure. privacy rights may limit government surveillance

to protect democratic processes. Westin defines privacy as "the claim of

individuals, groups, or institutions to determine for themselves when,

how, and to what extent information about them is communicated to

others". Westin describes four states of privacy: solitude, intimacy,

anonymity, reserve. These states must balance participation against

norms:Each individual is continually engaged in a personal adjustment process in

which he balances the desire for privacy with the desire for disclosure and

communication of himself to others, in light of the environmental

conditions and social norms set by the society in which he lives. Lessig

claims "the protection of privacy would be stronger if people conceived of

the right as a property right", and that "individuals should be able to

control information about themselves."

RIGHT TO PRIVACY AS A COLLECTIVE VALUE AND A HUMAN RIGHT.

There have been attempts to reframe privacy as a fundamental human

right, whose social value is an essential component in the functioning of

democratic societies. Amitai Etzioni suggests a communitarian approach

to privacy. This requires a shared moral culture for establishing social

order. He believes that privacy is merely one good among many others",

and that technological effects depend on community accountability and

oversight. He claims that privacy laws only increase government

surveillance.


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Priscilla Regan believes that individual concepts of privacy have failed

philosophically and in policy. She supports a social value of privacy with

three dimensions: shared perceptions, public values, and collective

components. Shared ideas about privacy allow freedom of conscience and

diversity in thought. Public values guarantee democratic participation,including freedoms of speech and

association, and limits government power. Collective elements describe

privacy as collective good that cannot be divided.

She also argues that the human right to privacy is necessary for

meaningful democratic participation, and ensures human dignity and

autonomy. Privacy depends on norms for how information is distributed,

and if this is appropriate. Violations of privacy depend on context. The

human right to privacy has precedent in the United Nations Declaration of

Human Rights: "Everyone has the right to freedom of opinion and

expression; this right includes freedom to hold opinions without

interference and to seek, receive and impart information and ideas

through any media and regardless of frontiers." Shade believes that

privacy must be approached from a people-centred perspective, and not

through the marketplace.

CONSTITUTIONAL ASPECTS OF RIGHT TO PRIVACY ININDIA

The literal meaning of privacy, as defined in the New Oxford EnglishDictionary , is the absence or avoidance of publicity or display; the stateor condition from being withdrawn from the society of others, or frompublic interest; seclusion. The Blacks Law Dictionary refers to privacy asthe right to be let alone; the right of a person to be free from

unwarranted publicity; and the right to live without unwarrantedinterference by the public in matters with which the public is notnecessarily concerned. Therefore, the right to privacy, notwithstandingits differing connotations, remains a private right of an individual.

The constitution of India does not grant in specific and express terms anyright to privacy as such. Right to privacy is not enumerated under thefundamental rights in India. But a right has been culled by the apex courtin India from article 21 and several other provisions of the constitutionalong with the directive principles of state policy.

A question whether right to privacy could be implied from the existingfundamental rights such as articles 19(1)(d), 19 (1)(e), 21 came up in the


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case of Kharak Singh v State of Uttar Pradesh, 1963.1 The right to privacypresents itself as an illustration of the interpretative capabilities of thehigher judiciary, as well as a right emanating as a consequence of thelarger process of widening the ambit of specifically enumeratedfundamental rights. Although initially lacking the stamp of judicial

approval from the Supreme Court, this right has been afforded legalrecognition following a series of judicial rulings, which shall be criticallyexamined in the context of the Supreme Courts ruling in the case ofKharak Singh v. State of Uttar Pradesh. In this case the majority of thejudges participated in the decision was of the view that our constitutiondoes not in terms confer any like constitutional guarantee. But theminority was of a different opinion and we can read it in the judgement ofjustice Subba Rao .

further , the right to personal liberty takes in not only a right to be free

from restrictions placed on movements, but also free from encroachmentson his private life. It is true that the constitution does not expresslydeclare the right to privacy as a fundamental right , but the said right isan essential ingredient of personal liberty.

The Indian Constitution, in comparison, fails to expressly recognize theright to privacy. Some scholars contend that the whole notion of privacy isalien to Indian culture. In the celebrated case of ADM Jabalpur v.Shivakant Shukla 2, the Supreme Court sought to determine if the right topersonal liberty is limited by any limitations other than those expresslycontained in the Constitution and statute law. As observed by Khanna J:

Article 21 is not the sole repository of the right to personal liberty..noone shall be deprived of his life and personal liberty without the authorityof laws follows not merely from common law, it flows equally fromstatutory law like the penal law in force in India.This establishes that theright to privacy need not be expressly guaranteed, but may be implicitbecause of its inclusion in common law.

The Supreme Court in recent years through judicial activism has preferredto read into the Constitution a fundamental right to privacy by a

creative interpretation of the right to life guaranteed under Article 21. Inthe case of M.P. Sharma v. Satish Chandra3, and thereafter, in the KharakSingh case, judicial pronouncements categorically rejected that thereexists any right to privacy. In the case of Govind v. State of MP4, as wellas thereafter in R.Rajagopal v. State of T.N5. And PUCL v. UOI 6, observedthat this right emanates from Article 21. On a plain reading of Article 19, itappears that liberty as defined is wide enough to indicate the right to

1 AIR 1963 SC 12952 AIR 1976 SC 1207.3 AIR 1954 SC 300.4

AIR 1975 SC 13785 AIR 1995 SC 2646 (1997) 1 SCC 301


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be let alone. However, the Indian higher judiciary has remained ratherambiguous, to the extent of delivering contradictory rulings.

In Govinds case , the supreme court is taking a elaborative step as saidabove. In this case the court is considering the constitutional validity of a

regulation which provided for the surveillance by way of several measuresindicated in the said regulation. The court upheld the regulation by rulingthat article 21 was not violated. Along with that the court also accepted alimited fundamental right to privacy as an emanation from articles 19(a),(d) and 21. The right to privacy is not absolute; reasonable restrictionscan be placed thereon in public interest under article 19(5). JusticeMathew said in the judgement that

the right to privacy in any event will necessarily have to go through aprocess of case by case development . therefore , even assuming that theright to personal liberty , the right to move freely throughout the territoryof India and freedom of speech create an independent right to privacy asan emanation from them which one can characterise as a fundamentalright , we do not think the right is absolute.

In the case of B.K Parthasarathy v State of Andra Pradesh7, said that theright to make a decision about the reproduction is essentially a verypersonal right of a woman or a man and essentially that includes the rightnot to reproduce.

In State of Maharastra v Madhukar Narayan Mardikar 8, the supreme court

protected the right to privacy of prostitute.

The jurisprudential edifice of the distinction between a right as emanatingfrom a named right and a right as a facet of a named right is traced to theopinion expressed by Bhagwati, J, in the Maneka Gandhi case9.Distinguishing between named rights and unnamed rights, Bhagwati heldthat it was not enough that a right merely flowed from or emanated froma named right, i.e. rights categorically mentioned in the text of theConstitution. Therefore, an unnamed right (rights not mentioned in thetext of the Constitution) to be a part of the named right, it must beintegral to the named right or must partake of the same basic nature orcharacter of the named right.

According to his opinion, each activity which facilitates the exercise of thenamed fundamental right is not necessarily comprehended in thatfundamental right. Since the right to privacy isnt existing as a namedright, in order to become a part of the named right to personal liberty,this has to be shown as being integral to personal liberty or partakingthe same basic character as personal liberty. The ruling in the Govindcase, concluding that the right to privacy is a fundamental right, flowing

7

AIR 2000 AP 1568 AIR 1999 SC 4959 (1978) 1 SCC 248.


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and emanating as derivative and penumbral from the other namedrights, cannot be regarded to be good law as it does not satisfy the test ofunnamed rights. Although the benefit of Bhagwati, Js opinion could not beavailable to Matthew, J in the Govind case, the roots of this thesis werealready present in the All India Bank Employees Association case10.

In R. Rajagopal v State of Tamil Nadu, the Supreme Court, in the course ofexamining the right to privacy, concluded that this right is implicit in theright to life and personal liberty as guaranteed under Article 21 of theConstitution. This dispute arose out of the publishing of an autobiographyof a convict sentenced to death. This autobiography was written in jailandhanded over to his wife for publishing, without the knowledge andapproval of the jail authorities. It leveled serious allegations against anumber of top officers of the Indian administration, causing the Police toask the editor to stop its publication. The Supreme Court, referring to the

rulings of the US Supreme Court, in Griswold v. Connecticut11

, Roe v.Wade12 and New YorkTimes Co. v. Sullivan13 held:

The right to privacy is implicit in the right to life and personal libertyguaranteed to the citizens of this country by Article 21. It is a right to belet alone. A citizen has a right to safeguard the privacy of his own, hisfamily, marriage, procreation, motherhood, child bearing and educationamongst other matters. None can publish anything concerning the abovematters without his consent.

Supreme Court also laid down certain proposition defining right to privacy

and thereby reconciling the two fundamental rights that is right to privacy

and freedom of Speech. Important propositions laid down were:

(1) right to privacy is implicit in the Constitution of India, 1950, Article 21.

It means a right to be let alone. A citizen has a right to safeguard the

privacy of his own, his family, marriage, procreation, child bearing and

education amongst other matters. Position may, however, be different, if a

person voluntary thrusts him into controversy or voluntarily invites or

raises a controversy;

(2) there is an exception to this rule. Once a matter becomes a matter of

public record, the right no longer subsists. However, in interest of decency

(the Constitution of India, 1950, Article 19(2)) an exception must be

carved out to this rule, namely, a female who is a victim of sexual assault,

10 AIR 1962 SC 17111 (1956) 381 US 479.

12

(1973) 410 US 113..13 (1964) 376 US 254


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kidnap, abduction or a like offence must not be subjected to the indignity

of her name and the incident being publicised in press/media; and

(3) the second exception to this right is that in case of public officials, this

right is not available with regard to their acts and conduct relevant to the

discharge of their official duties.

According to the majority in Kharak Singh, personal liberty even whenconstrued as a compendious term did not include privacy within it.

The question of right to privacy has been, in more recent times,deliberated upon in the case of Peoples Union for Civil Liberties v Union ofIndia 14 in the context of telephone tapping. In this case, the SupremeCourt held that right to privacy is a part of the right to life and libertyunder Article 21 and it cannot be curtailed except according to procedure

established by law. The Court stated that conversations on telephone areoften of an intimate nature and constitute an important facet of a personsprivate life; therefore its tapping offends Article 21. However, far fromcontinuing with the widening ambit of this right, it clarified that this rightcould be curtailed by the procedure established by law, so long as thisprocedure is just, fair and reasonable.

On the basis of a dispassionate perusal of the aforementioned judicialrulings, it is evident that there is an implied, unenumerated, but judicially-evolved and recognized right to privacy under the Indian Constitution.

Although the rulings of the Supreme Court in the cases of MP Sharma andKharak Singh, already referred to, denied the existence of any right toprivacy, smaller benches in the cases of Govind, Rajagopal and PUCLunmistakably indicate the existence of such a right. The shift in judicialinterpretation is most notably observed following the Maneka Gandhicase, wherein this right is recognized, subject to legal restrictionssatisfying the requirements as laid down in the Maneka Gandhi case.However, if the courts were to addressthe issue of right to privacy underArticle 21 afresh, there is little doubt that it would conclude that theredoes exist a right to privacy. Such a statement will not be valid law unless

stated by a bench of more than six judges so as to effectively overruleKharak Singh.

On a harmonious interpretation of the legal principles as laid down by theSupreme Court at different points of time, it is sufficient to conclude theexistence of right to privacy under Part III of the Constitution. The firstprinciple was stated in Kharak Singh, which said that personal libertyused in the Article 21 is a compendious term to include within itself allvarieties of rights which go to make up the personal liberty of man otherthan those dealt with in several clauses of Article 19(1). The second andthird principles were laid down in Maneka, which stated that any law

14 (1997) 1 SCC 301.


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interfering with personal liberty must be just, fair and reasonable andthat an unnamed right may be regarded as part of a named fundamentalright if it partakes of the same basic nature and character of the namedright .Privacy is also a feature of the dignity of an individual that thepreamble to the Constitution assures every individual.

Thus the right is not merely a negative mandate upon the state not toencroach upon the private space of the individual but is also a positiveaffirmation on the state to create adequate institutions that would enableone to effectively protect his private life. Thus the right to privacy has astrong constitutional edifice, which could, ifclarified by an appropriateBench of the Supreme Court, settle this judicial controversy at rest.

NEW FACETS OF PRIVACY AND ITS DEVELOPMENT

Privacy provisions have just worsened due to the recent rage of sting

operations. The false and fabricated sting operations have raised

questions on accountability of media Starting from 2001 Tehelka

exposure, which made the defence minister and others to resign, the

present sting operation just exposed the new facets endangering the right

to privacy. Unlike West, Indian news organisations have no internal rules

and defined code of ethics governing the undercover investigations. The

recent trend of ready to hire stings, the credibility of sting operations

delivering evidentiary value has been questioned. In the recent case

where a 40-year-old schoolteacher in Delhi was labelled as pimp by a

sting operation conducted by a TV news channel. She was beaten up and

stripped in public after the channel telecast a sting operation showing her

negotiating a deal with a decoy customer. Later it was proved that it was

a false sting operation that defamed a person associated with a noble

profession and also goes on to prove the desire of TV channels to earn

more and have higher TRPs. What is required is responsible media. Hence

it may be said whether there is the crossing of the thin line, which is

between the private interest and public interest is the litmus test foraccepting the credibility of any of the sting operations.

RIGHT TO INFORMATION

Enacted in the year 2005, the Right to Information Act, 2005 tries to strike

a balance between public interest and private interest. It has led the

information from the public authorities out of the ambit of the right to

privacy. It facilitates citizens to secure access to the information under the

control of public authorities, which in a way results in transparency andaccountability. The paramountancy of the democratic ideas is maintained.


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Peoples Union for Civil Liberties Vs. Union of India, the constitutionality of

telephone tapping was under consideration while recognising that

conversation on telephone were of an intimate and confidential character,

the court held that tapping into conversation was unconstitutional unless

brought about by a procedure established by law. The court also found theconcept of privacy to broad and moralistic for judicial consideration. The

right extends to all forms of communication and if the state exercises any

undue interference with an individuals right to communicate through such

medium then it may be a violation of the persons fundamental right to

privacy.

Publication of confidential information may be objected to if there is any

obligation of confidence arising out of a particular relationship and an

action may be brought for the breach of confidentiality. The right to

privacy may be taken away only in accordance with law of national

security, public order and in interest of and benefit for general public.

The internet has made surveillance of individual habit and traits easier

than ever before. The employer may be within his rights to intercept e-

mails of his employee, which deal with official matters. Whether the

correspondence is official or not is a question of fact to be decided on the

basis of available evidence. Although, broadly speaking any

correspondence on an employees official e-mail address may, under

normal circumstances, be presumed to be of official nature and hence,accessible to the employer.

In recent times serious questions have evolved in relation to violation of

right to privacy by electronic media and internet. IT sector, being a

booming industry, there is a continuous threat to the privacy of an

individual and the earlier laws proved to be inadequate to meet the need

of the hour. So need was felt to have new laws in this regard and

introduction of Information Technology Act, 2000 filled that void. The

Electronic Communication Privacy Act of 1986 of the United States ofAmerica also aims at regulating the acts of private parties by prohibiting

unauthorised interception and also governs unauthorised access to stored

communications.

PRIVACY IN BUSINESS MATTERS

With the increase in cutthroat competition in every field, businesses mustensure that they adequately protect their business processes, technicalknow-how and confidential information from competitors. Whilst all

businesses have some information that is valuable and which theyendeavour to keep secret, they are unaware of how to legally protect such
http://www.indlaw.com/search/caselaw/?725b75ad-68e6-4019-8ef7-d0d88209a907http://www.indlaw.com/search/caselaw/?725b75ad-68e6-4019-8ef7-d0d88209a907


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information. Just as other intellectual property rights, trade secrets can beextremely valuable to a companys growth and sometimes even criticalfor its survival. In fact, it is only when some rival contender improperlyobtains the trade secrets, do companies realise their significance.

Breach of Confidence

This is now recognized as a distinct tort. It is committed when theperson in whom confidential information reposes (the confidant or in thiscase a person in a company who is entrusted with certain restrictedinformation) use of or discloses to others the information in question tothe the plaintiff (the confider).Past breaches of confidence may remediedby an action for damages in tort, or by taking an account the profitsmade by the misuse or disclosure. Apprehended future breaches may

be restrained by an injunction. This remarkable exam: of judge-madelaw has been achieved by borrowing features from contracts, property,equity, bailment and torts.

Obligation of confidence may arise from an express term in a contractemployment as when a company discovers that ex-employee has set uphis own company in the same area to be using confidential information(e.g., lists of customers) acquired his former employment. But more oftenthe obligation arises in a -contractual fiduciary situation. These situationscannot be catalog as the law is developing very rapidly. But maritalor other interpersonal relationships are included, as are the secrets ofthe security services ,or the relationship of doctor and patient. But theobligation does not cover criminal or immoral information, or, conversely,information which is trivial or already in the public domain.

Until recently, there was no fundamental right to privacy at English law.Invasions of privacy can be dealt with under the Human Rights Act1998 which gives effect, inter alia, to the rights and freedomsguaranteed under the European Convention on Human Rights. Article8(1) of the Convention states that: everyone has the right to respect forhis private and family life, his home and his correspondence. This issubject to possible interference for a number of purposes includingnational security, the prevention of crime or the protection of the rights orfreedoms of others. Alternatively, an action in defamation or maliciousfalsehood might give some protection. But an action in defamation maynot always be satisfactory, as in Kaye v Robertson15in which a journalistand a photographer gained access to Mr Gordon Kaye's privatehospital room and took photographs and conducted an interview whenMr Kaye was in no fit state to be interviewed or to give consent. MrKaye, the actor from the television comedy series 'Allo 'Allo had, whiledriving, been struck by a piece of wood and suffered severe head and

15[1991] FSR 62


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brain injuries. In allowing in part the appeal against an injunction imposedby Potter J, the Court of Appeal judges were unanimous in their call foralegal right to privacy. Of course, since the Human RightsAct 1998, it isunlikely that Kaye v Robertson would today be decided the same way onthe issue of privacy.'

The Copyright, Designs and Patents Act 1988 gives a limited right toprivacy in respect of certain photographs and films.' The law of breachof confidence may indirectly protect privacy if, for example, materials ofa private nature have been shown or given to another to whom a duty ofconfidence attaches'6e basic requirement for confidence is the existenceof a duty which may be expressed or imputed from the circumstances.

DEVELOPMENT OF THE LAW OF BREACH OF PRIVACY

The law of breach of privacy has had an erratic history. From earlierbeginnings, it largely developed in a spurt in the early to middle of thenineteenth century, and then lay relatively dormant until the late 1940swhen it was realised thafthis was anextremely useful area of law. Someof the early cases involved 'patent medicines'. There was obviously a lot ofmoney to be made from these magic cures, bearing in mind thatconventional medicine was still fairly primitive at this time and that thepublic at large was relatively ignorant and uneducated. In Morison vMoa16t, such a medicine was made known as 'Morison's VegetableUniversal Medicine'. There was a dispute between the son of the person

who originally devised the recipe and the partner, Thomas Moat, who hadimproperly told his own son of the recipe. It was held that there was anequity against the defendant. It was a breach of faith and of contract bythe partner, Thomas Moat, to tell his son of the secret who, therefore,derived his knowledge under a breach of faith and of contract and couldnot claim a title to the recipe. Although the tearm`breach of confidence'was not used at this stage, it was clear that the breach of faith wasactionable per se and was not dependent upon the existence of acontract. There was no contractual relationship between the son of theoriginator of the recipe and the son of the defendant.

THE MODERN LAW OF BREACH OF CONFIDENCE

The law of breach of confidence began its renaissance about 50 yearsago. It became apparent that this area of law was extremely well suitedto protecting 'industrial property' during the development stages beforeother legal rights were able to afford protection." Indeed, someindustrialists had come to the conclusion that it was better to keep somedetails of their processes secret rather than obtain a patent which would

16 (1849) 1 Mac & G 25


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mean that, eventually, the idea would fall into the public domain. However,it seems as if the significance of this area of law was not fully appreciatedby law reporters. A number of important cases were reported in someseries of law reports retrospectively, several years after the disposal of thecases.

The first major case on the law of breach of confidence that laid thefoundations for its modern form was Saltman Engineering Co Ltd vCampbell Engineering Co Ltd17. The claimant owned the copyright indrawings of tools for use in the manufacture of leather punches. Thedefendant was given the drawings and instructed to make 5,000 of thetools at 3s 6d each. After completing the order, the defendant retainedthe drawings and made use of them for its own purposes. In finding forthe claimant, holding that there was an implied condition that the

defendant should treat the drawings as confidential, not make other useof them and should deliver up the drawings with the tools made pursuantto the agreement

What is a Trade Secret?

A trade secret refers to data or information relating to the business whichis not generally known to the public and which the owner reasonablyattempts to keep secret and confidential. Trade secrets generally give the

business a competitive edge over their rivals. Almost any type of data,processes or information can be referred to as trade secrets so long as itis intended to be and kept a secret, and involves an economic interest ofthe owner. For example, a business may have certain internal businessprocesses that it follows for its day-to-day operations that give it an edgeover its competitors. This could be regarded as a trade secret.

The Agreement on Trade-related Aspects of Intellectual Property Rights(TRIPS) under the auspices of the World Trade Organisation lays down thefollowing three criteria for regarding any information as undisclosed

information (or trade secrets):

It must not be generally known or readily accessible by people whonormally deal with such type of information

It must have commercial value as a secret

The lawful owner must take reasonable steps to keep it secret.

17 [1963] 3 All ER 413 , and also reported in (1948) 65 RPC 203


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Customer lists, business information, employee details, financial records,data compilations, business plans and strategies, formulae, designs,drawings, algorithms et al, could all amount to trade secrets.

It is important to bear in mind that a trade secret need not be something

that is novel nor should it have any real or intrinsic value to be protected.The only important requirement is that it must be a secret.

Tools to Protect Trade Secrets

Businesses must ensure that they protect their trade secrets from beingmisappropriated, sabotaged, lost or stolen. Some tools that they canadopt are outlined hereinbelow:

Employment agreement: Depending upon their needs, businesses

should include suitable confidentiality, non-disclosure and non-competeclauses in agreements with employees. These may include the type ofinformation that is likely to be disclosed, the manner in which it shouldbe used and restrictions on disclosure post-termination.

Trade Secret Policy: Such a policy is a must for businesses that heavilyrely on their trade secrets. A basic step to develop such a policy is toidentify and prioritize the business secrets based on their value andsensitivity. Employees must be informed about the policy andconsequences of its breach before they agree to abide by the policy and

sign an acknowledgement to that effect.

Non-disclosure Agreements (NDAs): Businesses can also enter intoNDAs with third parties while discussing any business prospects andventures. In this way, the third parties can be precluded from divulgingany trade secrets.

Adequate Documentation: It is important for businesses to keep a trackof the trade secrets that are developed and have sufficient records toshow that the trade secret was developed by them and belongs to them.

These records would be of evidentiary value in case of a dispute. Itwould also be useful for such businesses to conduct a trade secret auditat regular intervals to and keep up to date with any changes.

Security Systems: Access to trade secrets and confidential informationmay also be restricted to only select personnel who have to undergoproper security checks. In case of an electronic environment, thebusinesses should use adequate software programs, virus scans,firewalls and other security and authentication technologies to safeguardtheir trade secrets.

Legal Framework in India


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There is no specific law in India that protects trade secrets andconfidential information. Nevertheless, Indian courts have upheld tradesecret protection on basis of principles of equity, and at times, upon acommon law action of breach of confidence, which in effect amounts to abreach of contractual obligation.

In India it is possible to contractually bind a person not to disclose anyinformation that is revealed to him/her in confidence. In one case, theDelhi High Court has also upheld that a claim that disclosure ofinformation would amount to breach of confidence is not defeated by thefact that other people in the world already knew the information. TheSupreme Court of India (i.e. the apex court) has also upheld a restrictiveclause in an employment contract, which imposed constraints on theemployee to not reveal or misuse any trade secrets that he or she haslearnt whilst in employment.

The remedies available to the owner of trade secrets would be to obtainan injunction preventing a third party from disclosing the trade secrets,return of all confidential and proprietary information, and compensationfor any losses suffered due to disclosure of trade secrets.

MEDICO LEGAL PRIVACY

Simply put, the Right to Privacy of a patient with regard to medicalconditions and illnesses to be guaranteed by the doctor is called Medico-

Legal Privacy. Under this the topic of most significance is Priveleged

Communication. Information furnished to a physician by a patient which is

intented to serve as basis of a diagnosis and treatment is considered

confidential and assumes the term Privileged communication.18 There are

only two circumstances under which such communication can be divulged

to a third party ie.

a) With the consent of the patient

b) And if it is under legal compulsion19

The following are considered professional secrets which the medical

practitioner cannot and should not disclose :

(1)The doctor is not supposed to discuss the illness of the patient with

anybody. Any communication made which reflects on the character

18 Jhala and Raju : Medical Jurisprudence, 6th ed. ,Eastern Book Company at p. 7719 Ibid.


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and personal lif of the patient, or anything observed during the

examination should be kept a secret.

(2)He should not answer to queries of anybody including the patients

near relations about the nature of the patients disease and its

future effects without the consent of the patients.

(3)The doctor should not divulge the nature of the illness of a patient

even when requested by a public or statutory body except in the

case of notifiable and communicable diseases without the consent

of the patient or the consent of the guardian when the patient is

either minor or insane.

(4)The doctor should not divulge secrets of the patients life to his wife

and vice versa without the consent of the husband or wife as the

case may be.

(5)The doctor is not entitled to divulge the secrets of an adult patients

life to his father without the patients consent or the secrets of the

life of a servant to his master although the father in the former case

and the master in the latter case is paying for the services rendered

by the physician.

(6)When a doctor is required to examine a government servant at the

instance of the government, the doctor need not divulge the nature

of the patients illness without his express consent although in some

cases the report may be treated as a privileged one.

(7)When a doctor is required to examine an under trial prisoner in

police custody, he is not permitted to disclose the nature of illness

of the undertrial prisoner to the authority unless permitted to by the

patient. But the right does not vest in a convicted person and the

doctor is not prevented from disclosing the facts of the illness to the

authorities.

(8)A factory medical officer is not entitled to disclose the facts of the

illness of the factory worker to the authorities without the express

consent of the patients.

(9)When a person is examined by a medical officer before he takes on

a life insurance policy the consent, to divulge the findings of the

medical examination to the life insureance authorities is implied

therein. But the doctor cannot, without the express consent of the

patient, disclose the facts of his past illness if treated by the same

doctor.


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(10) The doctor, should not divulge any information about any

patient in case of marriage and nullity of marriage without his

express consent.

(11) While publishing a case report in any journal for the interest of

the profession at large, the doctor should not publish the name and

address of the patient without his express consent. 20

However there are TWO conditions under which such communication HAS

to be divulged. And they are

1) Under Legal Compulsion and

2) In the Larger interests of the community or society

(a) Legal Compulsion- Section 126 of the Indian Evidence act21 makes

a provision in law regarding restrictions on communication made to

a barrister, attorney, pleader, or vakil during his employment as

such by the client. This privilege is not available to a medical man

as he usually comes to the court as a witness and the duty of the

witness is to assist the court and give witness on oath. With respect

to this Lord Riddle22 made the following observations in an article of

his :

A doctor, being in a fiduciary capacity must preserve his patients

confidences unless relieved from the exercise by some lawful excuse,

e.g legal compulsion, the patients consent, the performance of a moral

and social duty or protection of thje doctors interests. A doctor shares

with other citizens the duty to assist in the detection and arrest of a

person who has committed a serious crime. Everyone recognizes the

necessity and importance of medical confidences. Everyone recognizes

that they are sacred and precious. But we must recognize also that the

rules regarding them exist for the welfare of the community and not for

the aggrandizement of the convenience of a particular class. We must

recognize also that they must be fied to meet the inevitable changes

that occur in the necessities of various generations.23

Professional secrecy and crime

20 Id. At p.7821

Section 126, Indian Evidence Act22Lord Riddle, MEDICO-LEGAL Problems, (1929), H.K. Lewis & co. Ltd, London23 Ibid.


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Though the doctor owes to the patient, the obligation of professional

secrecy, yet under section 202 IPC, the medical practitioner is required

to bring to notice of the police, any information about any criminal act

that might come to his knowledge in course of his professional service.

Thus he is bound to inform the police about any criminal act that mightcome to his knowledge or an incident of grevious hurt or a case of

poisoning or severe burn, rape, etc.

In one case a patient came to a government hospital with a

swelling in his arm. The patient was admitted in the hospital as

an indoor patient. The swollen portion was operated upon, when

a bullet came out from it. The doctor was bound to inform the

police as it was a case of bullet injury and not to allow the

patient to go unless the police has taken charge of the case.

The doctor need not inform the police about a case of attempted

suicide, undergoing treatment under him, but he should do so if the

patient dies.24

When a doctor is required to treat a patient on whom a criminal

abortion has been done or attempted it is his duty to treat the patient

but if the patient is in dying condition, the doctor is to make necessary

arrangement for the record of dying declaration and if there is no timeto arrange for it, he himself should record it. In the case of self induced

abortion, if there is no danger to the life of the patient, the medical man

need not inform the police.25

(b) In the better interest of the community and the

society A medical practitioner comes to know a lot of secrets and

confidential information of the patient in the course of his treatment.

The secrets divulged by the payiemt amount to an implied contract

between the parties that the secret will not be divulged. In such an

event the patient is entitled to sue the doctor for breach of contract and

claim damages.26

24

Jhala and Raju : Medical Jurisprudence, 6th ed. ,Eastern Book Companyat p. 7925 J.B. Mukherji, Forensic Medicene and Toxicology, (1981) p. 4726Jhala and Raju : Medical Jurisprudence, 6th ed. ,Eastern Book Companyat p. 79


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A medical man is however privileged to divulge the secret for the

better interest of the community at large. This sort of disclosure should

be unbiased, bonafide and without any malice. It is governed by the

principle that the interest of the society is more important than the

interest of the individual.

The question of Bonafide communication is to be determined by the

facts of each case. In order to become privileged, the communication

should be made to a person who has some interest or bonafide duty

towards it. The plea of privilege will fail, if the communication is made

to more than one person or to persons who are not concerned with the

matter.

A doctor is bound to inform the superintentendent of the hostel

about the servant working therein, in case he suffers from any

communicable disease, such as a case of tuberculosis, general

diseases and infectious diseases.27

A medical practitioner cannot withhold professional secrets in those

cases where he has a statutory authority to notify births, deaths,infectious diseases etc to the public authorities. On certain occasions

he has a moral duty to protect the interests of the community or the

public and in doing so, if he divulges the secrets of the patient obtained

in the course of his professional examination and treatment, he will be

absolved from legal liabilities. For instance, a medical practitioner has

a privilege to inform the warden of a hostel, if any boarder is suffering

from a venereal disease. He has a privilege to inform the railway

authorities, if he finds that a particular engine driver is colour blind and

that he does not wish to change his employment although, he ispersuaded to do so. In such cases, the communication, if made bona

fide and without malice, will be deemed to be privileged by the

occasion. However it should be made only to persons directly

concerned otherwise, he may be penalized. A privileged

communication is, therefore, defined as a statement made by a person,

who has an interest to protect, or a legal, social or moral duty to

perform, to another having a corresponding interest or duty for the

purpose of protecting his interest for performing his duty, even though

27 Ibid


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such communication may, under normal conditions, amount to

defamation or slander.28

A case occurred at a Turkish bath at Debretzine where a venereal

diseases specialist recognized a young man, who was about to enter

the water, as one of his own patients who had consulted him two

weeks ago for a syphilitic sore on the penis. He advised him not to

enter the bath on account of his chancre, but the young man persisted

in entering the bath. Hence, the specialist sent for the manager and

explained the matter to him. The latter asked the man to leave at

once. He left the bath, and sued the specialist for trespassing the

medical secrecy laws, but lost his case, the court decreeing that the

specialist only carried out his professional duty, and acted in the

interests of the community.29

COMPARISON OF RIGHT TO PRIVACY AMONG VARIOUSJURISDICTIONS

This may be described as the right of a person to the seclusion of himself,

his family or his property. The phrase right to privacy is used in theIndian case-law to refer to the right which an owner of a house may have

under local custom to seclusion of his inner apartments from the view of

his neighbour. Invasion of the privacy and seclusion of a mans premises,

properly speaking is part of the law of trespass or nuisance. It has been

used in England and in the United States in a very different sense and

refers to the right to freedom from emotional disturbance like annoyance,

mental pain or distress caused by certain forms of misconduct which do

not fall within one of the torts already recognized by the law. A common

form of such misconduct is the unauthorized publication of ones name,

likeness or private affairs by photographers, pressmen or commercial

adventurers (Para 21). Some of them, it is well known, adopt aggressive

and undesirable methods to achieve sensation and profit by such means

(Para 21). In the US, a right to privacy has been recognized not merely in

such cases but also in regard to other forms of misconduct causing

emotional distress. Formerly in the USA and also in England emotional

distress was not by itself a cause of action but compensation for it could

be claimed when it accompanied an independent tort like an invasion of

28

Modis medical jurisprudence and toxicology, 22nd ed. BX Subrahmanyam, Ed.(Butterworths India, New Delhi) 1999.29 Ibid


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the right to person, property or reputation. It was, so to say, parasitic on

another cause of action and not a tort by itself.

The position remains much the same in England but is different in theUSA. The law now prevailing in these two countries is reviewed briefly in

the following two paragraphs. It is of considerable interest to us as it

shows the new developments in social opinion and sentiment giving rise

to new needs and the response which law makes to meet these needs.

The problem has not however so far arisen in India and there is no

reported instance of a claim for infringement of the right of privacy as now

understood in England and in the USA.

RIGHT TO PRIVACY IN ENGLAND

The trend of English case-law30 is, however, against any right of action for

mere annoyance or injury to feelings independently of the recognized

heads of actionable injury already discussed. For instance, no action lies

for insult by words or gestures unless they amount to assault or

defamation. An action for the unauthorized use of the name of the person

or his property does not lie unless it is likely to cause loss of business or

trade. In one case31 the right to privacy of ones property arose for

decision and was negatived. The promoters of a dog show assigned the

sole photography rights at the show to the plaintiff. He complained that

the defendant a visitor at the show took photographs of the dogs without

the authority of the promoters and published them in illustrated papers.

He sued for an injunction to restrain the defendant from making any

further use of the photos. His suit was dismissed on the ground that the

law did not recognize an exclusive right to take photographs of ones

property. If, however, the defendant was admitted into the enclosure on

the terms that he should not take photos without the plaintiffs authority,

he could be restrained from committing a breach of contract.Unauthorized publication of a photograph may amount to a breach of

contact, as where a photographer employed to take a certain number of

copies took more and sold them.32 However, such authority as exists is

against allowing any action for infringement of right of privacy, for the

publication of an accurate photograph or waxwork or other effigy of a

person without his permission. An invasion of the privacy of a person or

his property may however afford independent causes of action. The

30

Corelli v Wall (1906) 22 TLR 53231Sportsv General Agency Ltd v Our Dogs Publishing Co Ltd(1916) KB 88032Tuck v Priester(1887) 10 QBD 629


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publication of a persons portrait or caricature may be defamatory.33 This

would be so if the photograph or waxwork is placed, without any

justification for doing so, in the company of criminals, rogues or other

persons and thereby creating a tendency to injure the persons

reputation.

34

Invasion of the privacy and seclusion of a mans premises byloitering about them may be a trespass or nuisance. Publication of a

persons private letters or works not intended by him to be published may

be restrained as a breach of confidence or an infringement of the right of

property. 35 In the Law of Torts36 by Harry Street, the learned author

observes that no English decision has yet recognized that the

infringement of privacy which does not come within one of the existing

heads of liability is a tort. He gives a few illustrations of invasion of

privacy not constituting defamation or any other tort and therefore not

being actionable. For example, the jilted lover who makes his former

sweetheart, a present of a bathing costume which dissolves in chlorinated

water, the farmer who offends the old spinsters across the road by

encouraging his beasts to mate on Sunday mornings in a paddock in full

view of the old ladies, the hotel manager who rushes into the plaintiffs

bedroom and says. Get out of here, this is a respectable hotel, and the

plaintiffs are man and wife, the newspaper which, on the eve of an

election, rakes up the forgotten past of one of the candidates, the

defendant insurance official who obtains admission to the accident ward

of a hospital in order to browbeat a victim into signing a form accepting a

nominal sum by way of compensation for injuries inflicted on her bysomeone insured with the defendants firm , the newspaper, reporters

who, regrettably, sometimes stop at no invasion of privacy in order to get

a story. It is perhaps true to say that wrongdoing of the kind discussed

above has not assumed the dimensions in England that it has in the

United States. If this is correct, it explains the difference in the rules and

judicial policies in the two countries.

RIGHT TO PRIVACY IN THE UNITED STATES

Courts and legislatures in the states of the US have come to recognize this

right in order to afford protection against the growing menace of

unauthorized publicity of a persons name, likeness or private affairs

causing him annoyance, mental pain and distress. In the course of years

33 Tolley v Fry and Sons (1931) AC 33334

Monson v Tussads Ltd (1894) 1 QB 67135Prince Albert v Strange (1849) 2 De G and Sm 652, 69336 Fourth edn, p 407


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action have been allowed also for other forms of wrongdoing likely to

cause a disturbance of emotional tranquility, eg., the use of abusive

language, whether defamatory or not, which was likely to cause, and

actually caused, mental suffering of such a character as to result in

physical illness, as when an insurance agent went to the plaintiffs homeand used abusive language in connection with a claim made by the

plaintiff, the insulting conduct of persons in charge of public utilities

towards passengers or others using the utilities, delayed or gabled

messages sent by telegraph companies, disrespect and outrage of bodies

of deceased relatives.

The trend of case-law and legislation is towards recognizing a general

right to freedom from emotional disturbance caused intentionally or byunreasonable conduct. This is spoken of as the right to or of privacy. The

right has grown beyond its original dimensions and is now a well

recognized subject of claim in the courts. The law on this subject is thus

set out in a well-known treatise in that country, on the Law of Torts by

Harper and James. As civilization becomes more complex and varied, new

interests emerge and new values evolve and not the least of them are the

interests in privacy. The most important of these interests are four:

i) The interest in seclusion. An illustration of a violation of it is wiretapping

or eavesdropping on the telephone.

ii) The interest in personal dignity and self-respect. Cases under this

head relate to conduct such as the use of abusive or insulting

language, or indecent proposals.

iii) The interest in privacy of name, likeness and life history. Cases under

this head are fairly common, such as the unauthorized publication of

ones photograph for commercial purposes, improper methodsadopted by debt-collecting agencies, as by sending letters in

envelopes conspicuously proclaiming the plaintiffs failure to pay his

just debts. annoyance caused by publicity given to biographical

details.

iv) The interest in sentimental associations. A violation of this right would

be the unauthorized publicity or exposure of personal experiences

with intimate friends or loved ones, of letters, keepsakes and other

symbols of sentimental associations with such persons.


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In cases of unauthorized or officious publication, a possible defence is the

public interest in obtaining the news. This may give rise to difficult

questions as what a court should consider as newsworthy. In determining

this, several factors will have to be considered such as the motive of the

defendants, the sex, status in life, previous habits of the plaintiff withreference to publicity, and above all, the customs and standards of the

time and place. People who come into public attention because of their

own fault as in the case of a criminal or because of their misfortune as in

the case of serious accident, cannot complain of the resulting publicity. It

has now come to be regarded as the function of the Press to satisfy the

curiosity of the public as to their leaders, villains, and victims. If a person

is in an usual accident and finds this picture, in the paper the next

morning, perhaps he has no legal complaint, even though he is the most

inconspicuous of private citizens. On the other hand, a woman may well

complain if an X-ray picture of her malformed pelvis is shown in a

syndicated newspaper column without her consent, notwithstanding

public curiosity. It is also true that noted movie actor or a famous general

of the army facing a battery of cameras when he sets off in an aeroplane

for a routine vacation trip has not basis for a claim for an invasion of

privacy. The explanation for the development of this right in the US has

been thus stated by the learned authors of the above treatise and will be

read with interest. Viewing this extraordinary development with the

omniscience of hindsight, it appears that the inception of the doctrine was

the almost inevitable development of the law under the pressure of greatsocial need, produced by the technological developments and the vast

extension of business which transformed American society into mass

urbanization, thus creating many new sensitivities. Various illustrations

will give a clearer picture of the concept.

In a New York case37 the plaintiff, a young woman, complained that the

defendants, flour manufacturers and sellers, printed and circulated

without her knowledge or consent, 25,000 portraits of her likeness withthe following words below the portraits, Flour of the family Franklin Mills

Flour. The Supreme Court of New York held that there was no libel and

denied a right of action of the ground of an invasion of a right to privacy.

The state legislature however, enacted a law the next year conferring a

right of action in such cases.

37Robertson v The Rochester Folding Box Co (1902) 171 NY 538


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In a case in Georgia38 an insurance company published in a newspaper the

plaintiffs photograph by the side of all ill-dressed sickly looking person,

with a caption above the plaintiffs picture reading The man who did, and

one above that of the other person, The man who did not. In that way it

was sought to contrast the favourable position of the plaintiff who hadinsured with the company and that of the other person who had not and

found his mistake. It was held that the publication tended to bring the

plaintiff into ridicule and was an invasion of this right of privacy. In these

two cases it would amount also actionable defamation.

In a California case,39 the action could rest only on the former ground. The

plaintiff had renounced a life of shame and had been acquitted after a trial

for murder, married and became an exemplary wife. Seven years later,the defendants without permission released a motion picture based on the

true story of the plaintiffs life, found in the court records, advertising it as

such and using the plaintiffs maiden name. It was held that the plaintiff

could sue for a violation of her right of privacy.

A takes a photograph of a group of women who are crowding around the

entrance of As store at a time announced for bargain and who have no

knowledge of As act. Among them B is prominent. A publishes the entirephotograph under the caption These women know bargains. B has no

cause of action against A.

Other illustrations of offences against privacy causing annoyance are

unwarranted intrusion into a ladys hotel room or a state room on a ship,

eavesdropping on a hospital patient by means of microphone concealed in

her room, the placing of a picture of an acquitted prisoner in a rogues

gallery, the use of a persons name in a telegram sent to a Governorurging the veto of a Bill, the publication of details of a persons illness

without justification.

RIGHT TO PRIVACY IN INDIA

Right to privacy in India was first dealt in cases where police surveillance

of habitual criminals was challenged as offensive. In Kharak Singh v. State

38Pavesich v New England Mutual Life Insurance Co (1905) 122 Ga 19039 Malvin v Reid (1931) 44 Har LR 1146


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of Uttar Pradesh,40ch. XX of the Uttar Pradesh Police Regulations which

placed possible criminals under surveillance was challenged. The Supreme

Court, considering the constitutionality of police regulations, permitted the

police to keep a close watch on would-be criminals. However, like all

unfettered power, the provision, was misused. The aggrieved complainedthat the police would inter alia:

1. enter his house

2. knock and shout at his door

3. wake him up during the night

4. ask him to accompany them to the station

5. 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 the render domiciliary visits at night.

While Regulation 236 was struck down as being unconstitutional,

Ayyangar J speaking for the majority, observed:

The right to 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 infringement of a

fundamental right guaranteed by Part III.

However, Subba Rao, J while partly concurring with the majority, stated:

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 libertyIndeed, nothing is more deleterious to a mans

physical happiness and health than a calculated interference with his

privacy.

In Gobind v State of Madhya Pradesh,41 the validity of Regulations 855 and

856 of the Madhya Pradesh Police Regulations, which permitted the policeto keep an uncomfortable surveillance on individuals suspected of

perpetrating crime, was challenged. The aggrieved complained that his

reputation had sunk low in the estimation of his neighbours as a result of

similar activity. Mathew J after reasoned deliberation delivered a learned

judgement and observed that:

Privacy primarily concerns the individual. It therefore relates to and

overlaps with the concept of liberty. The most serious advocate of privacy

40 AIR 1963 SC 129541 (1975) 2 SCC 148


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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 and the family.

However the court stated that the right to privacy was subject to

restrictions on the basis of compelling state interest. Thus, the regulations

were upheld since they applied to a limited class of citizens, i.e. habitual

criminals.

In Sharda v Dharmapal 42 it was observed that the right to privacy in India

is not an absolute right. If there is a conflict between fundamental rights

of two parties, the right which advances public morality will prevail. In this

case the Supreme Court considered the question 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, a direction to undergo a medical test in an action under ss 12,

13 of Hindu Marriage Act 1956 was held not to offend the right to privacy

under art. 21. However such power has to be exercised only when the

applicant has a strong prima facie case. The court observed:

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 art. 21 of the Constitution then it may in most of such

cases become impossible to arrive at a conclusion.

Right to privacy has been read into art. 21 of the Constitution, in Peoples

Union for Civil Liberties (PUCL) v Union of India43, where the arbitrary

telephone tapping was held to be violation of fundamental rights. In this

case, the constitutionality of telephone tapping was under consideration.

While recognizing that conversations on the telephone were of an intimateand confidential character the court held that tapping into conversations

were unconstitutional unless brought about by a procedure established by

law. The court also found the principle of privacy too broad and

moralistic for serious judicial consideration.

In State of Punjab v Ramdev Singh44 sexual harassment and violence was

held to be an unlawful intrusion into the right of privacy and sanctity of a

42

AIR 2003 SC345043 (2003) 4 SCC 39944 (2004) 1 SCC 421


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female. The same view was held in State of Himachal Pradesh v Sheer

Kantshekar45.

The Supreme Court appropriately accorded constitutional protection in

District Registrar and Collector v Canara Bank46 where the right to privacy

was explored against th power of 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 state 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. It admonishingly observedthat under the garb of the power conferred by Section 73 the person

authorized 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 end the whole exercise may turn out to be an

exercise in futility. It was stated that:

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, thesearch 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.

In this case it was held that in case of a matter being part of public

records, including court records, the right to privacy cannot be claimed.

In R Rajagopal v State of Tamil Nadu47 the Supreme Court considered the

freedom of the press vis--vis the right to privacy of citizens. Auto

Shanker, convicted of six murders and sentenced to death, had written hisbiography 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 who were

his partners in crime. The court developed a new test modeled on the

decisions of the US Supreme Court in New York Times v Sullivan48.

With regard to privacy the court observed:

45 (2004) 8 SCC 15346

(2005) 1 SCC 49647 (1994) 6 SCC 63248 376 US 225 (1964)


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The right to privacy is implicit in the right to life and libertyguaranteed

to the citizens in 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 matterswithout 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 controversy49

49 (2005) 1 SCC 496

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