Even If Privacy Is Not a Fundamental Right, We Still Need a Law to Protect It

The Constituent Assembly considered including privacy as a fundamental right but then dropped the idea.

The Constituent Assembly, meeting in 1949

The Constituent Assembly, meeting in 1949

There has been much debate over the last few weeks as to whether or not we have a Fundamental Right to Privacy in India. The Attorney General told the Supreme Court that we do not. Some lawyers disagreed with him on the basis of the right that has been implied through a long jurisprudence while others agreed, though for different reasons.

The debate, while very interesting in itself, set me thinking down a slightly different tangent. Why is it, I asked myself, that the draftsmen of the Constitution, wise men that they were, forgot to include an explicit Fundamental Right to Privacy? Was it oversight? Or was there a deeper, more deliberate reason? And if so, will that give us some clearer insight into what the Supreme Court should be thinking about before handing down its judgment?

At the time the Constitution was drafted, India was in the process of shrugging off foreign rule. For centuries, it’s citizens had been systematically subjugated and denied their civil liberties  –  not the least of which was personal privacy. It was also a time when the rest of the world was struggling to put World War II and all the inhuman excesses of the Nazis and Fascists behind them. One would imagine that at a time like this, the need to protect personal privacy would have been at the forefront of public discourse.

And yet, despite the historical context in which it was framed, the Constitution we adopted on the 26th of January, 1950, contained no mention of a Fundamental Right to Privacy.

The Constituent Assembly debates

The logical place to start any investigation into the minds of our founding fathers is the Constituent Assembly Debates. Happily, the entire proceedings of the Constituent Assembly have been made available online and it was relatively easy to search through the many pages of text for a mention of privacy. After much poking around, all I could find was a passing reference to the right to secrecy of correspondence in a speech by R. K. Sidhwa:

I might also state that the Committee had suggested that the secrecy of correspondence should be guaranteed and that there should be no kind of interception of correspondence, telegrams and telephones, but the main Committee has deleted it. Therefore, it is unfair to say that the Fundamental Rights Committee did not consider this question.

This was not hugely helpful , but it was a promising start. At least it wasn’t a case of careless oversight. The Committee had clearly came to a considered view that we don’t need a fundamental right to privacy. What was still unclear was why.

I couldn’t find anything online that answered that question. So I consulted B Shiva Rao’s Framing of India’s Constitution, an extensive collection of debates and discussions around the text of the Indian Constitution.

The first mention of something resembling a right to privacy is in K T Shah’s Note on Fundamental Rights in December 1946. The paper discussed the history of Fundamental Rights around the world and listed a number of essential rights  – many of which eventually found their way into our Constitution. Shah considered the right to privacy to be an essential part of the right to liberty. He wrote:

The most important of these relate to the liberty of the person and privacy of the home. No interference of that right can be allowed without due process of law. This is a guarantee against arrest, imprisonment or detention without due process of law, or search warrants of a general character, invasion of the home and the like. Unlike the absolute monarchy of the days gone by, these had been amongst the principal grievances of the common people. It is now generally admitted that these are conditions essential and indispensable for living on any decent level of existence.

Sub-committee on fundamental rights

In 1947, the Constituent Assembly established an Advisory Committee to prepare draft articles on fundamental rights and th rights of minorities. This committee had overall supervision over five sub–committees, including the Fundamental Rights Sub-Committee which had been entrusted the task of framing the fundamental rights of citizens.

During various meetings of the sub-committee, distinguished members including K M Munshi, Harman Singh and Dr. Ambedkar, strongly promoted the inclusion of a right to privacy as one of the fundamental rights.

When Munshi presented the first draft articles on Fundamental Rights on 17 March, 1947, Sub-Article (1) stated that every citizen, within the limits of the law of the Union and in accordance therewith should have:

(e) the right to be informed within twenty four hours of his deprivation of liberty by what authority and on what grounds he is being so deprived

(f) the right to the inviolability of his home

(g) the right to the secrecy of his correspondence

(h) the right to maintain his person secure by the law of the Union from exploitation in any manner contrary to the law or public morality

This thought was echoed in Dr. Ambedkar’s draft as well:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue but upon probable cause, supported by oath of affirmation and particularly describing the place to be searched and the persons or things to be seized.

The April 1947 Draft Report of the Sub-Committee on Fundamental Rights included specific mention of both a right to secrecy of correspondence as well as a right against unreasonable search and seizure. Article 9(d), that had been adapted from the Weimar Constitution, stated that every citizen should have the right to enjoy secrecy over his correspondence, with the proviso (borrowed from the Indian Post Offices Act) that the legislature could, by law, regulate the interception or detention of articles and messages in the course of transmission in the event of a public emergency or for furthering the interests of public safety and tranquility.

Another clause (borrowed from the Fourth Amendment to the US Constitution), sought to provide all citizens with a fundamental right to secure their person, house, papers and effects against unreasonable search and seizure and stipulated that any such search and seizure could only take place on the basis of a detailed warrant that described probable cause.

The detractors

However, right from the start, there were strong voices of dissent. Members such as B N Rau, A K Ayyar and K M Panikkar argued that the right to privacy should not be elevated to the status of a Fundamental Right.

In the notes to the draft Report, Rau went into some detail about the possible effects of some of the provisions of the draft:

If this means that there is to be no search without a court’s warrant, it may seriously affect the powers of investigation of the police. Under the existing law, e.g. Criminal Procedure Code, Section 165 (relevant extracts given below), the police have certain important powers. Often, in the course of investigation, a police officer gets information that stolen property has been secreted in a certain place. If he searches it at once, as he can at present, there is a chance of his recovering it; but if he has to apply for a court’s warrant, giving full details, the delay involved, under Indian conditions of distance and lack of transport in the interior, may be fatal.

Perhaps the most vocal critic of the right to privacy was Alladi Krishnaswami Ayyar, whose comments on the draft indicated his vehement dissent:

In regard to secrecy of correspondence, I raised a point during the discussions that it need not find a place in a chapter on fundamental rights and that it had better be left to the protection afforded by the ordinary law of the land contained in the various enactments. There is no such right in the American Constitution. Such a provision only finds its place in the post First World War Constitutions. The effect of the clauses upon provisions of the Indian Evidence Act bearing upon privilege will have to be considered. The Indian Evidence Act hedges in the privilege with a number of restrictions vide. Chapter 9 — Sections 120–127. The result of this clause will be that every private correspondence will assume the rank of a State paper or, in the language of Sections 123 and 124, a record relating to the affairs of the State.

A clause like this may checkmate the prosecution in establishing any case of conspiracy or abetment in a criminal case and might defeat every action for civil conspiracy, the plaintiff being helpless to prove the same by placing before the court the correspondence that passed between the parties, which in all these cases would furnish the most material evidence. The opening words of the clause “public order and morality” would not be of any avail in such cases. On a very careful consideration of the whole subject, I feel that inclusion of such a clause in the chapter on fundamental rights will lead to endless complications and difficulties in the administration of justice. It will be for the committee to consider whether a reconsideration of the clause is called for in the above circumstances.

With regard to Clause 10 relating to unreasonable searches he was just as critical:

In regard to this subject I pointed out the difference between the conditions obtaining in America at the time when the American Constitution was drafted and the conditions in India obtaining at present after the provisions of the Criminal Procedure Code in this behalf have been in force for nearly a century. The effect of the clause as it is, will be to abrogate some of the provisions of the Criminal Procedure Code and to leave it to the Supreme Court in particular cases to decide whether the search is reasonable or unreasonable. While I am averse to reagitating the matter I think it may not be too late for the committee to consider this particular clause.

And re-consider they did.

After several rounds of debates it was eventually decided that the right to privacy be removed from the chapter dealing with fundamental rights. The final report of the Advisory Committee that was submitted to the Constituent Assembly, did not have any mention of the provisions relating to the right to privacy. This was the form of the chapter that was debated and eventually adopted by the constituent assembly.

The Lessons Learnt

While it is perhaps unwarranted, to allow the deliberations of the Constituent Assembly to guide our thinking as to how we should approach the right to privacy today, these discussions are instructive. In the first place, it is now quite evident that the fact that our Constitution is missing an explicit right to privacy is not an oversight. The draftsmen of the Constitution not only considered introducing a right to privacy, early versions of the Constitution actually included it. That the final draft did not include a right to privacy, was the result of much debate and deliberation.

So what should we make of the arguments that the Constituent Assembly used to eventually discard the right to privacy? If you read through the debates, the strongest reservation against elevating personal privacy to the status of a broad constitutional guarantee was the impact this would have on the ability of law enforcement to effectively investigate crimes. It was felt that if citizens have a fundamental right to privacy of correspondence, this would come in the way of the criminal justice system.

While I was helping the government draft a privacy legislation for the country, these were the very same arguments I was confronted with time and again. I was told that the threat of terrorism and anti-national aggression demands that investigative agencies be equipped with effective powers of investigation. That any such investigations will be hampered if “private” communications are protected under privilege. After all these years, its seems as if nothing has changed. If anything, the arguments that prevented the introduction of a right to privacy in the Constitution are more valid today than ever before.

But perhaps we don’t need privacy to be a fundamental right at all. No one, not even among the detractors in the Sub-Committee were of the view that privacy wasn’t important. There only argument was that personal privacy should be protected through a statute and not elevated to the status of a fundamental right.

There are many benefits to such an approach. For one, a statutory right to privacy could be made to apply to private entities as well as to the government  –  something that is not possible in the context of fundamental rights. Secondly, a detailed statute that sets out all the contours of privacy protection may well be more useful than a single line in the Constitution that guarantees the right without elaboration.

It’s all moot

But in many ways this discussion is moot. Like it or not, over the past 65 years, a strong jurisprudence has evolved through case law, articulating the implicit right to privacy  – almost, in the light of my newfound knowledge of the debates, in defiance of the wishes of the Constituent Assembly. From all accounts, when the Supreme Court issues its judgment on the Aadhaar case later this year, it is likely to follow the jurisprudence so far and uphold the implicit right to privacy.

Rahul Matthan is a Bangalore based lawyer