[When] the Constitution of India was adopted with much fanfare on 26 January 1950, it contained no mention of the right to privacy.
I have often wondered why this was the case. Was it mere oversight or was there a more deliberate reason? The official transcripts of the Constituent Assembly Debates contain no more than a passing reference to the right to secrecy of correspondence. A speech by Mr RK Sidhwa contains the following comment:
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 single throwaway remark, which was clearly part of a longer debate, seemed to confirm my suspicions. It appeared that the framers of our Constitution had considered including a right to privacy in the Constitution but, for some reason that was not entirely clear from the official transcripts, had decided to leave it out of the final draft.
If nothing else, this proved that the fact that the Indian Constitution does not mention privacy was not an accident but the outcome of a conscious choice.
I turned to Benegal Shiva Rao’s The Framing of India’s Constitution, easily the most extensive collection of debates and discussions of the various sub-committees that actually worked on the text of the Constitution. Rao had a ringside view of the work of the Constituent Assembly not just because he was a member himself but because he was the brother of BN Rau, the person widely recognised as being the true architect of the document and who was responsible for developing many of its more nuanced positions. As a journalist and an academician with these unique qualifications, B Shiva Rao’s perspectives on the framing of the Indian Constitution are invaluable.
The first mention of a right to privacy in his tome was in KT Shah’s “Note on the Fundamental Rights” in December 1946, where he discussed the history of fundamental rights around the world and provided a list of what he considered were the essential rights. Included among these was a right to privacy, framed, as is consistent with the thinking of the time, as an aspect of the right to liberty:
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.
Early on in its deliberations, the Constituent Assembly established an Advisory Committee to prepare draft articles on fundamental rights and the rights of minorities. This committee had overall supervision over five sub-committees, including the Fundamental Rights Sub-Committee. During various meetings of the sub-committee, distinguished members like KM Munshi, Harman Singh and Dr Ambedkar strongly promoted the need to include a right to privacy as one of the fundamental rights.
When Munshi presented the first draft articles on fundamental rights on 17 March 1947, it included Sub-Article (1), which stated that every citizen, within the limits of the law of the Union, 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
Dr BR Ambedkar’s draft of 24 March 1947 also articulated a similar formulation:
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.
Based on these individual contributions, the Draft Report of the Sub-Committee on Fundamental Rights dated April 1947 included a specific mention of both the right to secrecy of correspondence as well as the right against unreasonable search and seizure.
Article 9(d), which 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 legislative 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 tranquillity. 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.
While this looks nothing like the broad fundamental right to privacy that one might have expected, as we have seen from our discussions about the development of the law in the US, this sort of formulation was hardly out of place for the times. It recognised that the primary zones within which privacy needed to be safeguarded were the home and personal correspondence. By articulating a fundamental right to the secrecy of correspondence and against unreasonable search and seizure, the framers of the Constitution were attempting to accord constitutional protection to the concept of privacy as it was then understood to exist.
Right from the start, there were strong voices of dissent against the inclusion of these provisions in the Constitution. Many members argued strongly against elevating the right to privacy to the status of a fundamental right. One of the more vocal critics was Alladi Krishnaswamy Ayyar, who voiced his vehement dissent in his comments on the draft:
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...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.
He was just as critical about Clause 10 relating to unreasonable searches:
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 re-agitating the matter I think it may not be too late for the committee to consider this particular clause.
Excerpted with permission from Privacy 3.0: Unlocking Our Data-Driven Future, Rahul Matthan, HarperCollins India.