Authors: Sravya Movva, Joanne D’Cunha, Bilal Mohamed and Anna Kallivayalil
The CCG High Court Case Tracker (‘Tracker’) is a resource that catalogues decisions featuring the constitutional right to privacy delivered by High Courts across the country. The tracker aims to trace decisions delivered by various High Courts post the verdict in the case of Justice (Retd.) K.S. Puttaswamy vs. Union of India (‘Puttaswamy’), where a nine-judge bench of the Supreme Court reaffirmed the right to privacy as a fundamental right. The Tracker currently captures only the cases reported on Manupatra and has 90 cases in total at present.
This post aims to analyse cases captured in the Tracker and to highlight general trends emerging from the decisions of various High Courts. The analysis is based on cases reported up to 15 March 2022 (CCG will continue to update the tracker periodically).
Cases decided by year
There has been a consistent rise in the number of cases decided by High Courts since Puttaswamy. In the same year as Puttaswamy, i.e., 2017, the Kerala High Court was the first and the only High Court to refer to Puttaswamy in Mini KT vs. Senior Divisional Manager (Disciplinary Authority) LIC and ors, while discussing the dignity of a woman. The Kerala High Court in this case restated the observations on dignity in Puttaswamy and quashed disciplinary actions against a woman employee for her absence from duty on account of compelling circumstances for taking care of her child. The Court held that in order to understand the dignity of a woman, societal background has to be considered. In the year 2018, the High Courts delivered 13 judgements with the right to privacy as a feature, and in 2019, this number rose to 20 judgements. In 2020, the number of cases increased only slightly to a total of 21. This could arguably be due to the fractured functioning of the High Courts during the pandemic. In 2021, the High Courts decided an additional 26 cases that dealt with the right to privacy. Within the first quarter of 2022 (i.e., upto March 2022), the High Courts have already decided upon 9 cases involving the right to privacy. As can be seen from the graph below, there has been a clear trend of High Courts increasingly engaging with the right to privacy.
Which courts have given the most decisions?
The Kerala High Court and the Madras High Court have decided the most number of cases with 14 judgements each that feature the right to privacy. The Kerala High Court, for instance, has dealt with the subjects of autonomy (i.e., 5 judgements) and informational privacy (i.e., 4 judgements) under the right to privacy, the most. Similarly, judgements by the Madras High Court have related largely to surveillance, search and seizure (i.e., 5 judgements), and autonomy (i.e., 4 judgements). The Delhi High Court has pronounced 12 judgements, and the Allahabad High Court follows closely with 10 judgements.
Interestingly, all the judgements from the Allahabad High Court have upheld the right to privacy. Within the judgements given by the Allahabad High Court, a majority of them relate to dignity (i.e., 6 judgements) and informational privacy (i.e., 5 judgements). For instance, the Allahabad High Court in Rajiv Kumar, while interpreting the right to privacy has upheld the right of individuals to not disclose information relating to their prosecution, for an offence committed while they were children or juveniles. In Guruvinder Singh, it has also held that disclosure of information relating to people accused of vandalism or sharing sexually explicity images for purpose of revenge/harassment constitute a violation of privacy.
Bench strength is also an important metric; a judgement by a larger bench would be binding on more subsequent cases before a High Court. Therefore, a ruling delivered by a larger bench ensures more predictability and consistency.
Of the 90 cases, 57 cases (63.33%) were decided by single-judge benches while 33 cases (36.66%) were decided by two-judge benches. While the Madras High Court pronounced 14 judgements on the right to privacy covering aspects such as autonomy, bodily integrity, surveillance, search and seizure amongst others, all of them were delivered by single judge benches. Naturally the absence of a larger bench judgement weakens the influence on subsequent cases. The Bombay High Court and Kerala High Court, on the other hand, feature six judgements each with a two judge bench. From the right to make reproductive choices to protection from unlawful search and seizure, the larger bench decisions dealt with vastly diverse issues.
The Tracker maps judgements across 5 primary themes of privacy. These are – (a) autonomy, (b) bodily integrity, (c) dignity, (d) informational privacy, and (e) surveillance, search and seizure. The tracker also notes various sub-themes within a case. For depiction of the data, we have considered only the 5 pre-dominant aspects of privacy as listed above. It is also important to note that the themes of privacy across these cases are not siloed and often have overlaps with one another. For instance, in an appeal by a petitioner against a requirement to disclose details of criminal prosecutions faced as a juvenile, the Court had to engage with issues around both dignity and informational privacy of the individual. Similarly, in cases involving the petitioner’s right to make reproductive choices, there is an interface between the aspects of autonomy and bodily integrity.
The highest number of judgements (24 judgements) given by the High Courts have dealt with the theme of autonomy. For instance, the Jammu and Kashmir High Court in Monika Mehra and the Allahabad High Court in Salamat Ansari have held that an individual’s autonomy to make intimate decisions such as those relating to marriage are a part of the right of privacy. A different approach to autonomy has been taken by the Karnataka High Court in Bushra Abdul Aleem where it held that graduated candidates in the medical field would have to compulsorily provide medical services for one year and this would not be violative of the right to privacy.
This is followed by judgements on the aspects of dignity, and informational privacy, with 23 judgements on dignity and 20 judgements on informational privacy. While dealing with dignity, the Orissa High Court in Subhranshu Rout, held that a victim of sexual offences has the right to have offensive posts erased from any public platform as a part of their right to privacy. Similarly, the Allahabad High Court in Rajiv Kumar, also dealt with dignity when ruling that a requirement to disclose details of criminal prosecutions faced as a juvenile would be violative of the right to privacy. With respect to informational privacy, where a memory card was provided to the accused in a sexual assault case, the Kerala High Court held in Gopalakrishnan P that this action was a serious violation of the right to privacy of a sexual assault victim. On the other hand, the Delhi High Court in Horlicks Ltd has taken a view that the right to privacy cannot be claimed over information that is already available in the public domain.
Surveillance, search and seizure as an aspect of privacy was the primary focus in 15 cases. There was a general consensus amongst the courts that surveillance, search and seizure must be conducted in accordance with the law. The difference amongst the courts was based on the difference in approaches. For instance, the Karnataka High Court in Sudarshan involving the collection of voice samples for comparisons to the voice in phone call recordings held that such a collection would not amount to a breach of privacy or self incrimination. In another case Deepti Kapur, the Delhi High Court examined the admissibility of evidence collected in breach of privacy and held that merely because the rules of evidence favour a liberal approach for admitting evidence, it doesn’t mean that everyone should adopt illegal means to collect evidence.
Bodily integrity as an aspect of privacy saw the fewest number of cases, with only 11 cases focusing on this aspect. For instance, when considering if a State ordered non-consensual DNA test would be violative of the right to privacy, the Karnataka High Court in Venkateshappa held that it would. However, in another case Abhilash R, the Kerala High Court has held that a Court ordered DNA test to determine the paternity of a child does not violate the right to privacy of a child.
The 90 cases captured within the Tracker could be divided into the following three broad categories – (a) judgements that have protected and expanded upon the right to privacy, (b) judgements that have taken a limited or restricted view of the right to privacy, and (c) judgements in which the right to privacy has been mentioned but there is no specific analysis through which the right to privacy has been expanded or limited.
With respect to judgements that are in the first category i.e., judgements that have protected and expanded on the right to privacy, the approach is straightforward. The courts in these cases have held that certain actions or inaction have resulted in a violation of privacy, or have reinforced the ability of an individual to pursue an action as a part of their right to privacy. For instance, in Vinit Kumar, when considering the illegal tapping of a telephone conversation, the Bombay High Court clearly held it to be against the right to privacy. In the case of Mahesh Chand Sharma, the Rajasthan High Court held that the right to privacy includes the right of an unmarried mother not to disclose the paternity of the child.Of the 90 cases captured in the Tracker, majority of them i.e, 64 (i.e., 71.11%) cases fall within this category.
A further quantitative analysis of the judgements shows that the Kerala High Court, Allahabad High Court and the Madras High Court have the most number of judgements (i.e., 10 judgements) that protect and expand on the right to privacy. As has been mentioned before, in the case of the Allahabad Court, all of its judgments have expanded the application of the right to privacy (i.e., 10 out of 10 judgements). There are specific categories of cases in which the courts have tended to take a similar view by expanding upon the right to privacy. For instance, courts have generally shown a tendency to protect the reproductive rights of women. The Bombay High Court in XYZ has held that a women’s right to privacy includes a right to make reproductive choices and terminate pregnancy. The Allahabad High Court went ahead to further read in a positive obligation upon a university to provide maternity benefits to students as a part of the right to privacy in the Saumya Tiwari case.
The second category of cases are the ones in which the courts have taken a limited or restricted view of the right to privacy. These cases account for 17 (i.e., 18.89%) of the 90 cases. While these include specific situations and facts, there are specific categories of cases in which the courts tend to take a restricted approach towards the right to privacy. For instance, in cases involving judicial orders to conduct medical examinations during the course of a case, the courts have often held that there is no violation of privacy. An example of this is the X vs. S case in which the Kerala High Court acknowledged the right to privacy in a case where a matrimonial Court required the individual to undergo and produce medical tests. However, the Court interpreted the right narrowly by stating that the right to privacy would not be infringed if the Court requires the production of an individual’s medical records. Another such category of cases are those that involve information that is in the public domain or individuals who can be considered as public figures. For example, in the Ramgopal Varma case, the Telangana High Court has held that while a person has the right to privacy in relation to their family, marriage, children etc., there is an exception when the matter becomes a matter of public record (including through court recordings). The Court held that the right to privacy no longer exists in such a situation and it becomes a legitimate subject for comments from the press and media.
The third category of cases are those where the right to privacy has been mentioned but the courts have not engaged in an analysis that would either expand or restrict the application of the right to privacy. In some cases, the right to privacy or the Puttaswamy judgement have simply been acknowledged by the courts, or have only restated a position of law with respect to privacy. A total of 9 (i.e., 10%) out of 90 cases fall within this category. The courts do not engage with a discussion on the right beyond referencing the judgement or to the right to privacy. The case is often decided based on another facet of law such as the law on trademarks or evidence.. For example, in Alli Noushad, the Kerala High Court has held that conversations between husband and wife are protected as privileged conversation and would be inadmissible as evidence. While the Court remarks that sacrosanctity of a family includes its privacy, it arrived at its decision on admissibility of evidence based on the provisions of the Evidence Act and not by examining the aspects of right to privacy. Simialarly, in Sunil Sachdeva, the case dealt with the right to privacy and discriminatory online posts, however, the Court did not engage with a proactive application of the right to privacy to the facts of the case. It only acknowledged that informational privacy is one of the aspects of the right.
The blogpost highlights an increasing trend of High Courts engaging with the right to privacy. While it is promising to discover that a majority of the cases involve positive (privacy enhancing or expanding)judgements, they are largely provided by single judge benches. To read more about each case, please visit our Tracker here. Additionally, for summaries on judgements from other jurisdictions, do visit our Privacy Law Library here.