As said “solitude is sometimes best society” so there can be no question that whether to provide right to privacy or not.
The theorist Edwin wrote “nothing is more worthy of legal protection than private life or in other words the right of every person to keep his affairs to himself.
Privacy is that the person can seclude themselves or any information about them and then able to express selectively. . Privacy is important for person to think, decide and form a personality. If privacy is invaded and his/her actions are monitored their peace of mind is hampered and they get reluctant to do any action. There are many countries in which privacy laws consist of right not to face invasion of privacy by corporations, government,or an individual. This concept of universal right to privacy is a construct mainly of Western culture. Most culture acknowledge the ability of person to hide certain personal information from society.
This can’t be denied that privacy the most important thing in a society is now like an endangered species only because of digital development. A large no. of cases are there related to data breaches and data leaking, the profiles are hacked, the information given by the consumer is compromised. Although many laws for right to privacy are constructed but privacy in its true form does not exist.
In India there are number of cases fought for right to privacy to be included as the fundamental right. After lot of efforts It is now an important element of article 21 right to life and personal liberty and now also is a fundamental right.
History: right to privacy in India
If talking about right to privacy we recall two major cases related to this and the judgement of supreme court:
MP Sharma vs Satish Chandra 1954 carried out by eight judge bench
Case was related to the search of documents of Dalmia group companies leading to investigations into the business of Dalmia Jain Airways Ltd. An investigation found malpractices within the company and attempts from shareholders to hide actual details by submitting false balance sheets. After FIR on 19 November, 1953, the district magistrate of Delhi received a request for search warrants.
The concept of privacy was very new and and the bench didn’t got much into details. In the judgement the judges said that “power of search and seizure is an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of the fundamental right to privacy, analogous to the American Fourth Amendment, there is no justification for importing into it, a totally different fundamental right by some process of strained construction.”
Kharak Singh vs State of U.P 1962 carried out by six judge bench
Kharak Singh vs State of Uttar Pradesh’s case was the issue of state surveillance that was against right to privacy. Kharak Singh was accused in dacoity case and had lack of evidence. He bought up the case to court against surveillance by police authorities for violating his fundamental rights as domiciliary visits at night, tracking his movement and frequent inquiries were carried out by officers and police.
A six-judge bench examined the issue of regulations validity governing the Uttar Pradesh police. Police authorities responded that it was only a discharge of duty and they maintained regulations. In judgment, the court stated that “privacy was not a guaranteed constitutional right”. However, the provision allowing domiciliary visits was called unconstitutional.
Justice Subbarao a dissenting voice however said that even though the right to privacy was not recognised as a fundamental right, it was important in Article 21. He declared all the surveillance measures to be unconstitutional.
In both the cases the judgement according to supreme court was that right to privacy can’t be included in fundamental or constitutional right but as a statutory right.
In the year 2012, major change was about to start.
Justice KS Puttaswamy, retd. judge filed a writ petition in the supreme court related to Aadhaar scheme organised by UPA government. This scheme was started in 2010 and reached to peak in 2016 with 1 billion enrolments. Though Aadhaar is a ‘unique identity scheme’ and can be used for identification of an individual during transactions or for obtaining permission for governmental services but it also presents threat of data breaching as many cases of data breaching have occurred and among them were associated with Aadhaar database.
After Justice K.S Puttaswamy started the case a three judge bench was formed in 2015. These judges appealed for increment of strength to analyse the judgement made in MP Sharma and Kharak Singh case that denied including right to privacy in constitution.
This case was then presented before 5 judge bench and eventually to a 9 judge bench on 18th July 2017. The 9 judge namely: Chief Justice Khehar , Chelameshwar, DY Chandrachud, SA Bobde, Abdul Nazeer, R.F Nariman, RK Agarwal, Abhay M. Sapre and Sanjay Kishan Kaul.
Arguments initiated on 19th July 2017 and the issues were that right to privacy is fundamental right in constitution or not? and whether or not the decisions made during earlier cases (MP Sharma and Kharak Singh holds correct in the constitution.
The petitioner put forward that the right to privacy is an intrinsic part and major ingredient of Article 21 Right to life and personal liberty and this should be protected by the constitution of India.
Also asked to examine the decision in earlier cases on the basis of violation of article 21.
Supreme court’s verdict
Ultimately the most awaited decision was declared on 24th August 2017, the judges harmoniously and unanimously accepted right to privacy as fundamental within Article 21. The decisions were overruled for MP Sharma and Kharak Singh case.
So, The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.
The progress in privacy rights
The Right to be forgotten is right that comes under the topic right to privacy. The development in the technology led to start of this right in Indian constitution as privacy now is not merely to be left alone in the house but it also includes digital privacy.
We all know everyone is operating internet and some information if hacked by someone can lead to disadvantage of that person.
According to this right, a person can say to search engines to permanently delete his/her database or information .
The inception of this right can be found in judgement of Karnataka and Kerala high court.
Right to be forgotten is an important right but we also should take into account the right to freedom of speech and expression. Why?
The thing is that removing information from search engines can damage the right to information and expression so both rights should go hand in hand.
It is agreeable that concept of right to privacy is difficult to imagine in the modern era but it’s never impossible to achieve if fought for. Moreover if this right has come a long journey to become fundamental right then we can also achieve digital privacy by putting efforts for it.
Author Details: Bhavika Moza (Chandigarh University)
The views of the author are personal only. (if any)