This article is written by Anusha Misra from NALSAR University of Law. This article looks into the different aspects of the right to privacy under Article 21 and its related conflicts.
Privacy is a fundamental human right enshrined in many international treaties. It is important for the protection of human dignity and is one of the important pillars of a democratic country. It supports the rights of self and others.
Privacy is a right that all human beings enjoy by virtue of their existence. It also extends to physical integrity, individual autonomy, free speech, and freedom to move, or think. This means that privacy is not only about the body, but extends to integrity, personal autonomy, data, speech, consent, objections, movements, thoughts, and reputation. Therefore, it is a neutral relationship between an individual, group, and an individual who is not subject to interference or unwanted invasion or invasion of personal freedom. All modern societies recognize that privacy is essential and recognize it not only for humanitarian reasons but also from a legal point of view.
The terms of privacy and the right to privacy cannot be easily conceptualized. Privacy uses the theory of natural rights and often corresponds to new information and communication technologies. Privacy is our right to maintain the territory around us, including everything that belongs to us, including our bodies, homes, possessions, thoughts, feelings, secrets, identities, etc. Your privacy allows you to choose what parts of this area can be accessed by others and to control the scope, method, and duration of the parts you choose to disclose.
A recent development in the Indian jurisprudence is the widening of the scope of Article 21 particularly post the case of Maneka Gandhi vs. UOI (1978). The Supreme Court has time and again laid down that Article 21 is the basic foundation of fundamental rights. Article 21 has proven to be multi-faceted. The scope of Article 21 has been widened by reinterpreting what constitutes life and liberty in specific circumstances. These terms, that is life and liberty, are not one size fits for all terms.
In order to understand the Right to Privacy, it becomes necessary to look into what constitutes privacy. According to Black’s Law Dictionary, “right to be let alone; the right of a person to be free from any unwarranted publicity; the right to live without any unwarranted interference by the public in matters with which the public is not necessarily concerned”. In order to widen the scope of Article 21, the Supreme Court has decided to interpret it along with the Universal Declaration of Human Rights.
The right to privacy is not formally advocated as a fundamental right in the Constitution. The right to privacy came into light in Kharak Singh v the State of U.P (1962) where the main issue was pertaining to surveillance of suspects.
Right to Privacy in India
The right to life within Article 21 is freely interpreted and therefore, it includes all aspects of a life that makes a person’s life more meaningful and the right to privacy is one of these rights. This issue was first raised in Kharak Singh vs. the state of UP (1962), the Supreme Court held that Regulation 236 of the UP Police Regulations violated the Constitution because it violated Article 21 of the Constitution. The Court held that the right to privacy is part of the right to protect life and personal freedom. In this case, the Court equated privacy with personal freedom.
Maneka Gandhi vs. UOI (1978) laid down the triple test for any law interfering with personal liberty:
(1) It must prescribe a procedure;
(2) the procedure must withstand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation and
(3) It must withstand the test of Article 14.
The law and procedure authorizing interference with personal liberty and right of privacy must also be right, just and fair and not arbitrary, or oppressive. It is now established that the right to life and liberty under Article 21 consists of the right to privacy as well.
The conflict between Right to Information and Right to Privacy
In the case of R. Rajagopal v. the State of T.N (1994), the Supreme Court held that the right to privacy is a ‘right to be let alone’.
In Mr. X v. Hospital Z (1998), it was laid down that if there is a conflict between two fundamental rights including the right to privacy then the right that furthers public morality or public interest would be enforced.
Ratan Tata approached the Supreme Court against the publication of the intercepts of his conversation with Neera Radia. Tata alleged that as Radia’s phone was tapped by government agencies for the purpose of investigating a possible offence then, the recorded conversation must have been used for that purpose alone. Tata thereby pleaded for the protection of his right to privacy.
By the use of the word “or” the legislation suggests that unwarranted invasion of individual privacy may trigger the exemption, even if the information has a relationship to public activity or interest. But the added caveat says that the larger public interest could justify the release of even purely private information. In addition, what constitutes “personal” information has not been defined in the legislation.
The Privacy Bill, 2011
The Bill protects the citizens from identity theft, including criminal identity theft and financial identity theft. The Bill bars intercepting communication lines without the permission of a Secretary-level officer. In addition to that, it is requisite that the material collected is destroyed within 2 months of discontinuance of interception. It ensures the constitution of a Central Communication Interception Review Committee to examine and review the interception orders passed. In addition to this, it is encompassed with the duty to uphold an interception that is in conflict with Section 5 of the Telegraphs Act is destroyed forthwith. It also prevents surveillance except in certain cases mandated by the procedure.
On the basis of the bill, no person whose place of business and data equipment is within India, shall leak any data relating to any person without their consent. The Privacy bill lays down the constitution of a Data Protection Authority of India. The Data Protection Authority of India is to monitor development in computer technology and data processing. This is done in order to evaluate the law and examine its effect on data protection. In addition to this, the authority is to receive recommendations and give representation to the public on any matter pertaining to data protection.
The authority also has the power to investigate any data breach and issue orders to ensure security interests. The bill establishes that an interception not adhering to the guidelines thereof may lead to imprisonment or a fine. Further, it says any person who obtains any record of information concerning an individual from any officer of the government or agency under false pretext shall be punishable with a fine of up to Rs. 5 Lacs.
Later developments in Right to Privacy
Right to Press vs. Right to Privacy
With the advancement of social networking sites and technology, the right to privacy being given the status of a fundamental right becomes extremely difficult. However, on the other side, the right to privacy of a person includes their right to seclude information that is of personal nature.
Now, every person can be a press, this can be ascertained from the rise in social networking sites and blog spots. The right to privacy often comes in conflict with the right to press. The right to press is a right derived from Article 19 (1) (a). The right to expression of a person might come in conflict with another person’s right to privacy. Thus, to decide in such situations the concept of public morality and interest are brought in. Each case is distinct and each right is special.
Test of public morality
Any right that has been derived from Article 19 can be derived from Article 21 as well. This is possible due to the wide interpretation of the term ‘personal liberty’. While the Court applies the test of public morality or public interest generally in case of conflict between two rights that are derived, a different interpretation is also possible. A right derived from Article 21 holds more superiority vis-à-vis a right derived from Article 19. This is because the state enacting law in contravention of such right can be saved under the reasonable restrictions under Article 19(2) to (5). This position was not followed in the pre- Maneka era as Article 21 was not interpreted to be a substantive right.
Right to privacy and police investigation
The right to privacy may also come in conflict with several aspects of the police investigation. Narco–analysis, brain mapping tests and polygraph tests lead to unjustified intrusion into one person’s right to privacy. The Supreme Court has acknowledged the right to privacy by branding these tests to be unconstitutional and inhumane.
Right to privacy and thermal imaging
The Supreme Court in the Directorate of Revenue and Anr v. Mohammed Nisar Holia (2007) laid down that “thermal imaging”, an advanced technology that can enhance the feeling when being locked out of a person’s house. It can detect whether the prisoner has stored drugs. The internal substance violates the rights and privacy of the person. The court discourages unnecessary infringement of a person’s right to privacy and believes that no unlimited power shall be granted to infringe a person’s right to privacy. The court revoked the conviction and seizure that violated the statutory registration requirements. Although the statutory power of separate search and seizure may not infringe on the right to privacy, in a case of this nature, the court can at least ensure that the right will not be unnecessarily infringed.
The Supreme Court’s Aadhaar judgement and the Right to Privacy
The Aadhaar Act grants residents the right to receive an Aadhaar number by submitting biometric and demographic information as part of the enrolment procedure.
The Supreme Court was tasked with determining whether the Aadhaar Act’s provisions were infringing on the right to privacy, which was declared a fundamental right by the Supreme Court in 2017. In this regard, it’s worth noting that a number of services supplied by both private businesses and the government required an individual to link their Aadhaar number for authentication, effectively making obtaining an Aadhaar number necessary for the vast majority of people. As a result, the question was not so much whether this constituted an infringement of the right to privacy, but rather whether it was a legitimate exemption. Certain sections of the Aadhaar Act were overturned or read down by the Supreme Court because they failed to meet the aforesaid proportionality standard. Apart from these provisions, however, the Supreme Court found that the Aadhaar Act, as a whole, serves a legitimate state goal and is proportionate, making it a justifiable exception to the right to privacy.
The Right to Privacy in the age of Facebook
In its case, the Facebook-owned company claims that requiring intermediaries to identify the originating source of information on its platforms might put journalists and activists in India at risk of retaliation, as well as infringe on people’s fundamental right to free speech and expression.
Government steps to protect privacy
Personal Data Protection Bill 2019: To provide for the protection of individuals’ privacy in relation to their personal data, and to establish a Data Protection Authority of India for these purposes and matters relating to an individual’s personal data. Based on the B N Srikrishna Committee’s recommendations (2018).
Information Technology Act, 2000: Provides protection against some data breaches involving computer systems. It includes safeguards to prevent unwanted access to computers, computer systems, and data stored on them.
Parliament and the Supreme Court should conduct a thorough examination of the Right to be free (RTBF) and devise a method for balancing the competing rights to privacy and freedom of expression. Data is a precious resource in the digital era that should not be left unregulated. In this scenario, India’s time for a strong data protection regime has arrived.
Privacy rights are essential elements of life and personal freedom rights under Article 21. Privacy rights are not absolute rights. They are subject to rational limitations for the protection of crimes, disadvantaged, or morality, or the protection of other human rights. If there is a contradiction between the two derived rights. If one looks at the later judgments of the Apex Court one can observe the desirability of the court to treat the basic rights as water-tight compartments. This was felt foremost within the case of A.K Gopalan v. the State of Madras (1950) and also the relaxation of this stringent stand may well be felt within the decision of Maneka Gandhi v. Union of India (1978). The right to life was considered to not be the embodiment of mere animal existence, but the guarantee of a full and meaningful life.
Being a part of society often overrides the very fact that we are individuals first. Each individual needs their private space for whichever activity (assuming here that it shall be legal). The state accordingly gives each person the right to enjoy those private moments. Clinton Rossiter has said that privacy could be special reasonable independence that may be understood as a trial to secure autonomy in a minimum of some personal and spiritual concerns. This autonomy is the most special thing that the person can enjoy. They’re truly free humans there. This is often not a right against the state, but against the planet.
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