October 19, 2021

Right to Privacy

Introduction

The word ‘privacy’ in the simple sense means freedom from interference. U.S. Supreme Court Justice Louis Brandeis termed privacy as ‘right to be let alone’. Privacy is one of the most essential elements in human life and to protect human dignity. Privacy being the key to one’s life helps to establish boundaries which are meant to limit the access to our bodies, things, places, our data and our communications. Privacy enables us to create barriers and also manage our boundaries accordingly to prevent ourselves from unjustified interference in our lives which allows us to hammer out who we are and how we want to interact with the society around us.

However, the right to privacy is an individual’s right which helps them to protect their body, home, property, thoughts, feelings, secrets and identity of their own from any intrusion. The right to privacy gives the power to choose which of the above mentioned things can be accessed by others, in which manner and at what time. The right to privacy enshrined in United Nations Declaration of Human Rights (UDHR) 1948 is:

Article 12: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”[1]

The International Covenant on Civil and Political Rights, 19763 (“ICCPR”) also requires the State to adopt legislative and other measures to give effect to the prohibition against such interferences and attacks as well as to the protection of right to privacy.

As India is member of both these international conventions i.e. The UDHR and The ICCPR, which makes it binding in India also. However, no law has been made in India for protection of this right till date.

Privacy issues are believed to be more serious in current culture than they have ever been in human history. On the one hand, the loss of privacy may not appear to be as significant as it formerly was, when people lived in tiny towns or large families and keeping secrets was likely more difficult. Digital technology and new media, on the other hand, have changed the methods in which information is exchanged, received, and recorded, posing a significant threat to our privacy. The ability to search up data rapidly, send it immediately, save it indefinitely, and duplicate it indefinitely are only a few of the phenomena that accompany digital technology that risk privacy by making it harder to distinguish between public and private information. Although the majority of the public discussion has focused on situations in which privacy has been violated by third parties (e.g., the spying scandals that shocked Europe, Wikileaks, the control that large corporations, such as Google, Facebook, and Amazon, exert over a person’s data and behavior), privacy violations can also occur when people share content without their knowledge.

It becomes very important to make adequate laws for the protection of the rights of their citizens.

Evolution of Right to Privacy in India

Looking back the ancient history of India, and as we move gradually towards the nineteenth and twentieth century the word privacy was just linked with that of inviolability of property. One of the earliest document, the constitution of India bill 1895 marked that every citizen has in his house an inviolable asylum. Moving forward to the times when India was getting independence and then came the time of framing the constitution of an independent India, where the right to privacy was not highlighted specifically under the list of other fundamental right to be granted to the citizens of India. Even after debate and discussions which took place in the constituent assembly, none of the scenario changed and the right to privacy not added in the constitution. Eminent personalities such as K.M. Munshi, Harman Singh and Dr. Ambedkar strongly encouraged the idea to inculcate right to privacy as a fundamental right.  Moreover, from the very start there were distinct opinions regarding right to privacy. Some of the members like e B.N Rau, A. K Ayyar and M.K. Panikkar has protested regarding privacy to be elevated at the same level as fundamental rights. At the end the advisory committee did not marked anything related to right to privacy in the final report. Gradually, none except the supreme court of India has played a crucial role in addressing number of cases that dealt with right to privacy, in some way or the other which has helped the right to privacy to gain its true position as part of right of life and personal liberty under article 21 of the constitution of India. Let’s look into some of the cases that acknowledged right to privacy in India:

The very first case relating to right to privacy which was discussed by the apex court was M.P Sharma Vs Satish Chandra[1]. This post-independence case popularly known as the search and seizure case was related to Dalmia group which allegedly attempted to embezzle funds and hide the true state of affairs. The eight judge bench in this case held that for the security of the state, it was provided overriding power of search and seizure. It also stated that there was no such concept of right to privacy in Indian constitution. The supreme court of India denied this argument of right to privacy as it mentions that the constitution of India did not have a fundamental right to privacy parallel to that of the fourth amendment of the US constitution. Hence the court refused to bring in the principles of the fourth amendment in establishment of right to privacy in the present case.

After a decennary there was another case which was important for right to privacy Kharak Singh Vs State Of U.P.[2] this case dealt with an issue of surveillance and that whether the surveillance defined under the regulation 236 of the up police regulation led to violation of the fundamental rights or not. Mainly the right to privacy was adduced in this case to challenge the surveillance of an accused by the police. Kharak Singh was arrested in the act of robbery but was then released as no evidence was found against him. Kharak Singh then challenged the validity and whether or not police officials violated his fundamental rights of privacy, life and personal liberty. In the judgement stated by the Supreme Court, it was held that “privacy was not a guaranteed constitutional right” but the domiciliary visits at night is unreasonable and unconstitutional hence infringes the fundamental right to life and personal liberty (article 21), guaranteed under part III of the Indian constitution. However, this judgement was not unanimous. Justice K. Subbarao giving the dissenting judgement held that nonetheless the right to privacy was not acknowledged as a fundamental right, it was essential to personal liberty under article 21.[3] This minority opinion of Justice Subbarao became majority in future.

The eight judge bench in M.P Sharma Vs Satish Chandra[4] and six judge bench in Kharak Singh Vs State of U.P.[5] clarified that right to privacy is not specifically guaranteed in the constitution of India.

The three judge bench of the supreme court in Gobind Vs State Of M.P.[6] for the first time considered right to privacy to be recognized under Articles 19(1)(d) and 21 of the Constitution of India in the context of police surveillance. The Hon’ble judges also stated “There can be no doubt that privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior.” Although this case was similar to that of Kharak Singh Vs State of U.P.[7] the perspective towards this case by the judges was very different. In this case the apex court also marked that since there is no law relating to right to privacy its implementation will differ from case to case. By this case it cannot be denied as the fact that right to privacy fall under the ambit of article 21 making it to be interpreted broadly.

R. Rajgopal Vs State Of Tamil Nadu[8] “The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21.” It is a “right to be let alone”. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent— whether truthful or otherwise and whether laudatory or critical.”[9] The two judge bench of Supreme Court extensively discussed that the right to privacy was implied to the right of life and liberty under article 21. No one has any rights to publish anything mentioned above without any consent and also that the right to privacy can be both fundamental and actionable claim.

The two of the above mentioned cases gave recognition and importance to right to privacy in the ambit of fundamental rights of part III of the Indian Constitution unlike the cases M.P Sharma Vs Satish Chandra[10] and Kharak Singh Vs State of U.P.[11] 

In 1997, the Supreme Court of India gave the verdict in the case of People’s Union for Civil Liberties v. Union of India[12]. This case is popularly known as wire tapping case. In this case the question of right to privacy in communications arose. The issue raised in this case was whether phone tapping violates right to privacy under article 21. While delivering the judgement the apex court stated that the right to privacy “is a part of the right to ‘life’ and ‘personal liberty’ enshrined under Art. 21 of the Constitution”.[13]

On 24th August 2017, in the historic judgement of K.S. Puttaswamy Vs Union of India[14] the nine judge bench headed by the Hon’ble CJI J. S. Khehar held that right to privacy comes under the ambit of right to life and personal liberty as a fundamental right guaranteed under Article 21. This landmark case overruled the previous decisions in M.P Sharma Vs Satish Chandra and Kharak Singh Vs State of U.P. which holds that right to privacy was not a part of constitution. However it also put light on the fact that right to privacy is not an absolute right and hence subject to reasonable restrictions.

After a lot of struggle since independence, right to privacy didn’t get any recognition. Repeated cases and judgments could not mold the perceptive towards the right to privacy. But finally in the year 2017, a landmark judgement in the Puttaswamy case helped in achieving a lot of recognition and position to the right to privacy as a fundamental right in The Constitution of India.

Legislative Provisions in India

The Constitution of India provides right to privacy within article 21 which provides fundamental right to life and personal liberty. The usage of article 21 is complex under Indian constitution. Other important laws in India like criminal law, law of torts and property law deals with right to privacy. In India there is no legislation on right to privacy till date. But the protection of privacy can be extracted from various law which are existing in India.

Privacy under the Indian constitution

Article 21 of the constitution of India deals with right to privacy. After the historic case of K.S. Puttaswamy Vs Union of India[15] declared right to privacy as the fundamental right. Since then many subsequent landmark judgements were passed relating to adultery and homosexuality. This provision of right to privacy as a fundamental right help individuals to protect themselves legally when their privacy is infringed.

Privacy under law of torts

The tort law which is uncodified in our country do not provide direct action when right to privacy is violated. The law of torts provides indirect protection through civil wrongs of nuisance, trespass, harassment, defamation, malicious falsehood and breach of confidence.[16]

Conclusion

As privacy has been recognised as basic and fundamental right right of a human being falling under part III of the constitution, India surely cannot fall behind. With growing information and technology, privacy needs to be recognised as a separate law, followed by few strict data laws. An expert committee should be built to look into these matters as to see how many privacy cases and issue are taking place in India.

In this growing world one to get more importance should be data protection and when it comes to conflict between violation of privacy and public interest, reasonable care is must. Individual interest cannot overrun public interest. As we know public welfare is the most important law to be maintained in the democracy.

Lastly, in this modern era of technology and advancement, the protection of privacy is essential and when it comes to a developing country like India there is an urgent need for a separate privacy law to be in force.


[1] AIR 1954 SC 300

[2] (1964) 1 SCR 332

   http://www.legalserviceindia.com/

[3] https://www.firstpost.com/

[4] AIR 1954 SC 300

[5] (1964) 1 SCR 332

[6] (1975) 2 SCC 148

[7] (1964) 1 SCR 332

[8] (1994) 6 SCC 632

[9] https://privacylibrary.ccgnlud.org/

[10] AIR 1954 SC 300

[11] (1964) 1 SCR 332

[12] (1997) 1 SCC 301

[13] https://www.mondaq.com/

[14] (2017) 10 SCC 1

[15] (2017) 10 SCC 1

[16] https://www.lawctopus.com/

Author– Pranav Maheshwari, Bvp New Law College, Pune

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