NEW DELHI: Two issues need to be examined when dealing with the government’s position on the right of privacy. Firstly, do we have the fundamental right of privacy? The Indian constitution does not explicitly provide for this right. Further The Attorney General has argued that the Supreme Court of India sitting in full strength (a total of 8 judges) in 1954 had rejected the recognition of such a right in M.P. Sharma vs Satish Chandra. If this is true, then what is the current position in law?

Secondly, privacy has to be examined in view of recent decisions of the state, in the banning of pornography websites and the arrest of consenting adults from hotels. Such coercive action is justified as protection of morality. Are such acts of the government contrary to the law?

The Attorney General (AG) has argued that a Supreme Court bench of 8 judges in the M.P. Sharma case had explicitly denied the existence of the right to privacy and only a larger bench can overrule this view. Recently the AG has vaguely accepted the existence of this right but now argues that contours of privacy are yet to be defined.

Let us examine the judicial history on privacy as a constitutional right. This was first examined in the M.P. Sharma case (1954); the case involved a challenge to the constitutionality of search and seizure provisions. It was argued that they violate Article 19 (1) (f) (right to property) and Article 20 (3) (right against self incrimination) of the Constitution. M.P. Sharma did not discuss the issue of privacy in detail; the judgment used the word “privacy” once finding the right not to exist.

Subsequently a Bench of 6 judges in Kharak Singh (1963) heard a challenge to state sanctioned domiciliary visits. It was argued that such regulations must be declared void in view of the right to privacy embedded in Article 19 (d) (right to free movement) and Article 21 (right to life and liberty). The majority opinion of the Court did not recognize right to privacy. However Justice Subba Rao in his dissenting opinion upheld privacy as an aspect of Article 19 and 21.

This brings us to the 1975 judgment of Gobind vs State of U.P. (3 judge bench) in which the Supreme Court upheld the fundamental right of privacy. Two important developments were greatly responsible. (a) The American Supreme Court had developed the constitutional right of privacy. (b) The Indian Supreme Court via the Bank Nationalization, Golak Nath and Kesavanand Bharati case viewed fundamental rights collectively and not in isolation from one another. The Court now saw these liberties as deeply interconnected.

Two years after the Kharak singh judgment the American Supreme Court gave a landmark decision in Griswold vs Connecticut. The challenge was to the constitutionality of the State of Missouri’s ban on contraceptives. The Court recognized the right to marital privacy as emanating from other guarantees in the bill of rights; hence the highest court for the first time read the right of privacy into the American constitution.

A few years later in 1971, In the case of Roe vs Wade a challenge was made to the Texas abortion statutes. The law prohibited abortion except to save the life of the mother. The Court concluded that the right of personal privacy includes the decision of abortion. Soon after in Eisenstadt vs Baird (1972) the provisions of a Massachusetts statute that prohibited a single person from purchasing contraception while allowing married couples to do so were in question before the court. The state believed it would deter premarital sex. The Court found this prohibition unconstitutional and opined the “right of privacy to inhere in the individual and not just a marital couple”.

In Gobind Singh vs State of M.P. A challenge was made to the constitutionality of regulations that allowed surveillance and domiciliary visits on criminals. This verdict examined the decisions of the American Supreme Court as well as M.P. Singh and Kharak singh. The Judges concluded that privacy must be read to form a right under Article 21 of the Constitution.

This judgment, Firstly recognized the minority opinion authored by Justice Subba Rao in Kharak Singh to be the first instance where the court found “liberty” in Article 21 to include the right to privacy. Secondly, the independent right of privacy emanates from personal liberty (article 21), the right to move freely and freedom of speech (article 19), thirdly this right of privacy would necessarily have to evolve over time and on a case to case basis, fourthly that the right is not absolute in nature and would be subject to compelling public interest.

Subsequently The Supreme Court has decided several cases on the very basis of this right. The Court last week referred the question of defining the scope of “right to privacy” to a constitution bench, which is likely to uphold this fundamental right.

Private morality must not be confused with Public Morality. These are two distinct legal concepts; a reading of Black’s Law Dictionary defines the former as “a person’s ideals, character, and private conduct, which are not valid governmental concerns…” The latter can be understood as “ideals or actions of an individual to the extent they affect others”. Our Constitution recognizes public morality to be a “reasonable restriction” to rights guaranteed under Article 19 (freedom of speech, assembly, movement and forming associations) and Article 25 (freedom of religion). The State can restrict an individual’s right if it is found to be against public morality.

The Court has made clear that the burden will be on the state to prove restrictions are in public interest. Such restrictions imposed by the legislature and executive will have to bear judicial scrutiny. It has also been held that the idea of morality cannot be stagnant or narrow but must constantly evolve.

Kasturiranga Santham in the constituent assembly evoked a similar notion:-

“Hitherto it was thought in this country that anything in the name of religion must have the right to unrestricted practice and propagation. But we are now in the new Constitution restricting the right only to that right which is consistent with public order, morality and health. The full implications of this qualification are not easy to discover. Naturally, they will grow with the growing social and moral conscience of the people. For instance, I do not know if for a considerable period of time the people of India will think that purdah is consistent with the health of the people. Similarly, there are many institutions of Hindu religion which the future conscience of the Hindu community will consider as inconsistent with morality.”

In the above legal context it is clear that

1.The banning of porn websites or forced entry of state agencies into hotel rooms are acts of unlawful intervention into the domain of private morality.

2. These restrictions to fundamental rights have been imposed without deliberation and on the whims of the executive and would fail judicial scrutiny. This unthought-of attempt at curtailing individual liberty is made clear by the governments hasty backtracking on these decisions.

3.The state cannot define morality in a narrow and restrictive manner; it has to be according to constitutional principles of personal liberty, equality, free speech and secularism.

The current Government is confusing moral-policing with lawful acts protecting public morality and order. It is high time the State realizes its duty is to defend and not throttle constitutional liberties.