Author Name:   MD SAHABUDDIN MONDAL

Article 21 of the Constitution and Right to privacy.

Right to Privacy is a Fundamental Right- A Study

“Gradually the scope of legal rights broadened; and now the right to life has come to mean the right to enjoy life – the right to be let alone.” – Louis Brandeis, J. (1890)

Right to Privacy first of all we need to know what does the word Privacy mean. According to Black’s Law Dictionary “right to be let alone; the right of a person to be free from any unwarranted publicity; the right to live without any unwarranted interference by the public in matters with which the public is not necessarily concerned”.

Article 21 of the Constitution of India states that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. After reading the Article 21, it has been interpreted that the term ‘life’ includes all those aspects of life which go to make a man’s life meaningful, complete and worth living.

International Concepts of Privacy

Article 12 of Universal Declaration of Human Rights (1948) states that “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attack upon his honour and reputation. Everyone has the right to protection of the law against such interference or attacks.”

Article 17 of International Covenant of Civil and Political Rights (to which India is a party) states “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home and correspondence, nor to unlawful attacks on his honour and reputation”

Article 8 of European Convention on Human Rights states “Everyone has the right to respect for his private and family life, his home and his correspondence; there shall be no interference by a public authority except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the protection of health or morals or for the protection of the rights and freedoms of others.”

The Privacy Bill, 2011

The bill says, “every individual shall have a right to his privacy — confidentiality of communication made to, or, by him — including his personal correspondence, telephone conversations, telegraph messages, postal, electronic mail and other modes of communication; confidentiality of his private or his family life; protection of his honour and good name; protection from search, detention or exposure of lawful communication between and among individuals; privacy from surveillance; confidentiality of his banking and financial transactions, medical and legal information and protection of data relating to individual.”

Husband Tapping Conversation of His Wife With Others Seeking to Produce In Court, Violates Her Right To Privacy Under Article 21 :-
In Rayala M. Bhuvneswari v. Nagaphomender Rayala the petitioner filed a divorce petition in the Court against his wife and to substantiate his case sought to produce a hard disc relating to the conversation of his wife recorded in U.S. with others. She denied some portions of the conversation. The Court held that the act of tapping by the husband of conversation of his wife with others without her knowledge was illegal and amounted to infringement of her right to privacy under article 21 of the Constitution. These talks even if true cannot be admissible in evidence. The wife cannot be forced to undergo voice test and then asked the expert to compare portion denied by her with her admitted voice. The Court observed that the purity of the relation between husband and wife is the basis of marriage. The husband was recording her conversation on telephone with her friends and parents in India without her knowledge. This is clear infringement of right .

There exists in India an impending need to frame a model statute which safeguards the Right to Privacy of an individual, especially given the emergence of customer service corporate entities which gather extensive personal information relating to it's customers. It's evident that despite the presence of adequate non-mandatory, ethical arguments and precedents established by the Supreme court of India; in the absence of an explicit privacy statute, the right to privacy remains a de facto right, enforced through a circuitous mode of reasoning and derived from an expansive interpretation of either Constitutional law or tort law privacy of the wife. If husband is of such a nature and has no faith in his wife even about her conversations to her parents, then the institution of marriage itself becomes redundant.

The right to respect for private and family life

The right to respect for privacy mirrors the liberal concept of the individual’s freedom as a self-governing being as long as his/her actions do not interfere with the rights and freedoms of others. The right to privacy is the right to individual autonomy that is violated when states interfere with, penalise, or prohibit actions that essentially only concern the individual, such as not wearing safety equipment at work or committing suicide. States justify such interferences with the social costs of the actions prohibited, for instance to the health care system. The right to privacy encompasses the right to protect a person’s intimacy, identity, name, gender, honour, dignity, appearance, feelings and sexual orientation. The right to privacy may be limited in the interests of others, under specific conditions, provided that the interference is not arbitrary or unlawful. People cannot be forced to change their appearance or name, for instance, nor can they be prohibited from changing their name or sex; however, in the interests of the rights of others they may, for example, be compelled to give biological samples for the determination of paternity. Another exception could be lawful counter-terrorism surveillance that necessarily operates in breach of privacy rights. Such a breach is acceptable as long as it accords with judicial and parliamentary oversight. The right to privacy extends to the home, the family and correspondence. The term family relates, for example, to blood ties, economic ties, marriage and adoption. The right to the respect for privacy of the home has been interpreted to include place of business. A common interference with the privacy of correspondence has to do with secret surveillance and censorship of the correspondence of prisoners.

Virginity test violates right to privacy under article 21

Article 21 of the Constitution of India says that " no person shall be deprived of his life or personal liberty except according to procedure established by law"

Prior to Maneka Gandhi's Case Article 21 guaranteed the right to life and Personal ability to Citizens only against the arbitrary action of the executive, and not form legislative action the state could interfere with the liberty of citizens if it could support its action by a valid law. But after the Maneka Gandhi's decision Article 21 now protects the right to life and personal liberty of citizen not only from the executive action but from the legislative action also.

A person can be the proof of his life and personal deprived of his life and personal liberty if two conditions are complied with, first,there must be a law and secondly there must be a procedure prescribed by that law, provided that the procedure is just fair and reasonable.

What is virginity?

"Virginity is the state of a person who has never engaged in a sexual intercourse".

What is virginity test?
A 'Virginity test' is the practice and process of determining whether a girl or woman is a virgin; i.e, whether she has never engaged in sexual intercourse.

The test typically involves a check for the presence of an intact hymen, on the assumption that it can only be torn as a result of sexual intercourse.

There is ' two finger test' A doctor performs the test by inserting a finger into the female's vagina to check the level of vaginal laxity, which is used to determine if she is "habituated to sexual intercourse".

The Supreme Court of India has held that the :two-finger test' on a rape victim violates her right to privacy, and asked the Indian government to provide better medical procedures to confirm sexual assault.

Case law

In Surajit Singh Thind vs Kanwaljit kaur

Punjab and Haryana high court has held that allowing medical examination of a woman for her virginity amounts to violation of her right to privacy and personal liberty enshrined under article 21 of the Constitution.

Fact -
In this case the wife has filed a petition for a decree of nullity of marriage on the ground that the marriage has never been consummated because the husband was impotent. The husband had taken the defence that the marriage was constructed and he was not impotent. In order to prove that the wife was not virgin the husband filed an application for her medical (virginity test) examination.

Held –
The court held that allowing the medical examination of a woman's virginity violets her right privacy under article 21 of the Constitution. Such an order would amount to Roving enquiry against a female who is vulnerable even otherwise. The virginity test cannot constitute in Sole basis, to prove the consummation of marriage.

Right to health and right to privacy

Where there is a conflict between two derived rights, the right which advances public morality or public interest should alone be enforced by a process of court. The right to privacy of the appellant and the right to lead a healthy life of another person were clashed, both of it having its origin in Article 21. The disclosure of confidential information regarding the appellant would invariably result in saving an innocent person from contracting a deadly disease like AIDS. The disclosure of such information is sensitive and might lead to social ostracism and cannot be done except with an overwhelming consideration of public morality and public health. AIDS patients deserve all respect as human beings and no person shall be denied any opportunity or government jobs or service on the ground of disease, but having ‘sex’ with them shall be avoided as the same would lead to the communication of a dreadful disease and the court shall not assist the person in achieving that object. Hence, in case of a conflict between right to privacy and right to health of another, the latter prevails, upon greater considerations of public morality.

Privacy Obligations under Specific Relationships

There are instances of specific inter-personal relationships wherein one party might be obligated to maintain a certain measure of confidentiality. A doctor-patient, husband-wife, customer-insurance company or an attorney-client relationship; are instances where there exists a strong ethical obligation on the part of one party to protect the privacy of information relating to an individual which may expose him to social humiliation and/or ridicule. The above principle also receives legal recognition in Ss. 123-126 of the Indian Evidence Act, 1871.

Conclusion
Right to privacy is an essential component of right to life and personal liberty under Article 21. Right of privacy may, apart from contract, also arise out of a particular specific relationship, which may be commercial, matrimonial, or even political. Right to privacy is not an absolute right; it is subject to reasonable restrictions for prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others. Where there is a conflict between two derived rights, the right which advances public morality and public interest prevails.

ISBN No: 978-81-928510-1-3
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