privacy in India
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This article has been written by Poorvisha Jindal, a student of Law Center-Ii, Faculty of Law, University of Delhi.

 

 “Privacy isn’t negotiable, it’s every person’s right.”

Table of Contents

Introduction

The terms privacy and right to privacy can’t be easily conceptualized. Privacy uses theory of natural rights and generally responds to new information and communication technologies. The right of privacy is our right to keep a domain around us, which includes all these things that are part of us, such as our body, home, property, thoughts, feelings, secrets and identity, the right to privacy gives us the ability to choose that which parts in this domain can be accessed by others and to control the extent, manner and timing of the use of those parts we choose to disclose.

Meaning

Privacy means “the condition or state of being free from public attention to intrusion inter or interference with one’s acts or decisions.”

Right to Privacy means: 

  • “Right to personal autonomy.
  • Right of a person and person’s property to be free from unwarranted public scrutiny or exposure.”

Whereas invasion of privacy means “An unjustified exploitation of one’s personality and intrusion into one’s personal activities.” Privacy is also considered as a synonym to “right to be alone”.

Jurisprudence as to being a human law 

Privacy is a fundamental human right provided for in numerous international treaties and conventions. It is important for protection of human dignity and is one of the essential pillar for a democratic nation. It supports one’s own rights and others rights as well. 

Privacy is a right to be enjoyed by every human being by virtue of his or her own existence. It also extends to bodily integrity, personal autonomy, compelled speech and freedom to dissent or move or think. The right to privacy is to restrain government and private actions that threaten or hinders the privacy of individuals.

Warren and Brandis have very eloquently explained that, “once a civilization has made distinction between the ‘outer’ and ‘inner’ man, between the life of the soul and life of the body, the private sphere in which man may become and remain himself”. This implies that privacy does not merely involve the body but extends to integrity, personal autonomy, data, speech, assent, dissent, movement, thought, identity (true). Therefore it is a neutral relationship between persons, group or groups and persons where no unwanted or intrusive interference or violation of personal liberty takes place.

Every modern society has accepted that privacy is essential and it has recognized it not just on humanitarian grounds but also in the eyes of law.

Timeline of Development in India

Right to privacy in India is a peculiar blend of constitutional, customary and common law right scattered over various legal fields. The talk about the right of privacy is not something that has emerged in the country recently. This debate goes long back.

In early years of independence, the courts took fundamental rights as it is and did not read right to privacy as a fundamental right. As said by court in the case of:

MP Sharma v Satish Chandra in which it stated that it refuses to recognise a right against search and seizure of documents, since the constitution makers had not provided for it.

Then the recognition began with case of Kharak Singh v State of Uttar Pradesh  where the majority opinion was that the right of privacy is not a guaranteed right under the constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right. But in this case the discussions about the right to privacy to be guaranteed as a fundamental right came with the dissenting opinion given by Justice Subha Rao.

With passage of time, the courts started believing that the notion that the fundamental rights are to be considered water-tight is not a feasible and logical ideology and such a notion should be done away with and therefore in further cases so arising the court started agreeing to the dissenting opinion of Justice Subha Rao given in the case of Kharak Singh v State of Uttar Pradesh

As in the case of Govind v State of Madhya Pradesh where the court stated that ‘the right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing and is subject to restrictions only on the basis of compelling public interest’.

Further this change in the way that courts looked at privacy as a right to be read as a fundamental right furthered in the case of RM Malkani v State of Maharashtra where the court recognised the need to protect the privacy of an innocent citizen. However, it was unwilling to extend such protection to guilty people.

After this there had been a plethora of cases in which the right to privacy in different spheres were argued and debated.

But the country saw a major roar or debate about the right to privacy to be read as a fundamental right in the year of 2012 when Justice KS Puttaswamy filed a writ petition in Supreme Court challenging the Aadhar Project of the government that it violated the fundamental right of privacy. It was challenged in this petition that the government planned to create a surveillance state which is against one right to be free and have freedom in his own life. This discussion or this case was under the trial of court for a long time and after a long period of 5 years in 2017, the verdict for the most eminent and the most awaited case Puttaswamy v Union of India came where a nine-judge bench of the Supreme Court of India unanimously gave a judgment that citizens of India have a fundamental right to privacy even though it is not evidently mentioned but it should be interpreted from the text and the thought process under which the constitution makers would have drafted the constitution for the country.

In 2017, Sri Krishna Committee was also constituted which in its opening paragraph mentioned that ‘If India is to shape the global digital landscape in the 21st century, it must formulate a legal framework relating to personal data that can work as a template for the developing world. Implicit in such a belief is the recognition that the protection of personal data holds the key to empowerment, progress, and innovation. Equally implicit is the need to devise a legal framework relating to personal data not only for India, but for Indians.

There have been various 19th century legislations to acknowledge the concept of privacy without its proper definition like under Indian Penal Code,1860 Section 509 provides for protection of privacy interest. Along with this, Section 26, Section 163 and section 164(3) of Code of Criminal Procedure, 1898 also provides for protection of public interest.

It is now considered that the Constitution expressly provides for fundamental rights that includes Freedom of Speech and Expression and Freedom of Personal Life and Liberty and the right to privacy should be considered a necessary ingredient of these fundamental rights. This case provided for privacy of space, body, choice, information etc.

In respect of this India has ratified the International Covenant on Civil and Political Rights (‘ICCPR’).The Human Rights Committee has noted that states party to the ICCPR have a positive obligation to “adopt legislative and other measures to give effect to the prohibition against such interferences and attacks as well as to the protection of this right [privacy]. 

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Privacy and its relation to different aspects of society

Privacy is a value directed towards individuals, groups or society on collective self regulation which means different things to different people.

In a democratic country like India which has been known for its diversity. It has people from all religions, customs and backgrounds and therefore it is easy to ascertain that one thing may not mean the same to the entire country and so is the situation with privacy. Privacy means different things to different people. For some it is privacy of information, for others privacy of body and for some it may have some other different perspective. So privacy can be read along different lines with various different aspects of the society or country and can be read with privacy which has been discussed further.

Privacy and person: The Indian legal system not only guarantees right of life but also protects from any fear, force, infirmity and provides freedom of life and speech which involves privacy in all scenarios as no one can be forced to talk about their marriage or make a confession or no one can be forced to act in a certain manner. It ensures that consent of an individual as and when required must be exercised freely and therefore making privacy a big whole lot of a deal for people as individuals.

Privacy and home: Sanctity of home is recognized as a right in most nations. It is a place of retreat from the outside world and it is a place where no one should live under fear or feel to be under radar. Therefore privacy of home is a sacrosanct and must and needed to be protected.

Privacy and family: If primary has some social impact, it is on family which is considered as a set of intimate relations which can flourish if kept away from public scrutiny. Privacy in respect to family is very important right from one’s financial situation to observation of conjugal rights. Law protects all communication between husband and wife which is required to make the world a better place to live as everybody treats and considers their spouses as their confidant and such a privacy is not maintained between the spouses then an individual would have no one to confide to and eventually would be left alone.

Privacy and press: Generally known as Fourth Estate, this is to be considered as the cornerstone of any democracy. Press enjoys freedom but in non-democracy it is absolute. Privacy of individuals is to be set out as a privacy even by the fourth estate though there is no legislation in the country for this but ethically and morally it is how it should work.

Privacy and gender: This right is not just a preventive measure in terms of preventing incorrect dissemination of private information but also prevention of portrayal of correct image. Every person male or female, reputed or infamous, has this right. In this patriarchal country, this right does not only exist for men but also for women and ignoring the fact of whoever she may be and whatever the information may be, right from menstruation to her sexual interests, from marriage to her conjugal obligations, whether she is a house lady, a employee, a corporate junkie, a vendor or even a prostitute, her life is her own and nobody else’s and nobody deserves or has a right to poke a nose into it whoever it maybe say husband, fellow workers, employers, society or whatever. The right does not only extend to males but to females as well.

Privacy and Health: Privacy in the health sector is a major concern. The relationship between a doctor and a patient is of trust and is termed as a fiduciary relationship that are those relationships that are built on trust and confidence between the parties. Every person has the right to keep their medical history to themselves or share it with a person whom one wants to share with. No one is allowed to peep into somebody’s life or medical life and also the doctor is not allowed to spill the beans as adjudicated in cases where the court said doctors are morally and ethically sound to maintain confidentiality.

Privacy and Data Protection: In our country there is absence of legislation for privacy and on the other hand data banks have been created at all institutions and places and in government records as well at large scales. And hence privacy becomes most important with data privacy because no one wants their information to get spilled and thereafter all factors of protection of data so stored about individuals, their family jobs, health and etc must be a major concern for any government.

Privacy and Aadhar: This major talk about privacy started in our country with the Bharatiya Janata Party (BJP) led government schemes of Aadhar. In the Puttaswamy v. Union of India petitioners argued that this scheme which collects personal data and biometrics is a breach of privacy. They said that aadhar is a mass surveillance technology which undermines security and involves concerns about risking data leaks of sensitive information online and all this is a major concern because a cyber security architecture is not a study in this country.

Privacy and surveillance in India

Privacy holds a lot more sanctity for a country like India then any other nation because of it being the largest democracy of the world with the second largest populated country of the world having people from various diversities following different customs and ideologies.

The question is why the talks about privacy have taken pace now why now. It’s because depicted international regulations on human rights, states and companies continue to violate privacy. Technologies have developed so good and so fast that surveillance has become interference for one’s privacy. Advancements in processing data including everything from photos to texts from bank details to daily acts of an individual etc are topped and there processing out pace existing laws like anything.

To add up to this growing global surveillance industry has made. This impediment to fight terrorism and ensure global security. This has extended powers to agencies to evade human laws. State surveillance has crossed lives all together, nobody knows about monitoring somebody asking about it. This has been opened and brought out in open in various cases where civil society organisations have faced threat when researching state policies and practises or documenting violations of right to privacy.

Necessity for Privacy in society

Privacy matters because of some social, psychological reasons that justify the need of privacy when talking about any person as an individual and not as a society as a whole. It includes various reasons like starting with respect for individuals and reputation management as privacy is all about respecting your space and respecting other individuals. If one does not like no one to interfere in his own personal affairs so does others. If somebody wants to keep something private, it is disrespectful to ignore such wishes. It may not be a win-win situation for all but privacy enables people to manage their reputation and what people are perceived by others affect their opportunities, relations and credibility.

And thereafter privacy brings people to avoid long standing judgements and help them bring change, get hold of the affairs of their lives and opportunities to grow and achieve heights in their lives. It gives them a second chance, probably called as a chance of redemption. This further develops their thought process in a positive manner for the society, avoids criminal psychologies, avoids feelings of revenge, guilt, vengeance etc. It helps people to think positively and develop, grow, nurture, reinvent themselves without the fear or worries of getting judged for their actions or conducts of the past. But still that does not mean that at all times there is no scope for redemption for these people, not everybody deserves punishment, deserve jail and if such an approach of an eye for an eye is considered then almost the complete population would be under scrutiny and almost half would be already in jails.

When an individual knows where his or her data is and upto what extent it is available to the world then a person is conscious about the world surrounding him or her and hence in such a state there are a higher chances of people trusting one another. Also, when there is a line between what goes out and what does not, people can trust others in areas where trust is must which includes sectors like professional services, governmental affairs or activities or commercial purposes. When trust is breached in one relationship then such a thing can make a person reluctant to trust all other relations.

Also these people do not have to justify themselves for what they say, what they do, what they believe in, what they profess until it is not derogatory or unlawful and punishable. Privacy helps one’s abilities to engage with society and political affairs connected to it. Our country protects privacy at ballot because of not people may not choose whom they want due to various reasons like threat, friendship, relations and much more. Privacy of association and activities is important because watchful eyes may sway people in opposite of their conscience.

And finally privacy limits the governmental powers, intervention and avoids state putting their noses everywhere and anywhere. Not just government but in the hands of private individuals as data is important for various decisions of one’s life and no one wants to become puppets of others.

Privacy and Aarogya Setu app 

Another form of surveillance that is considered to be imposed by the Government of India is the Aarogya Setu app. This app is developed in wake of this global pandemic of COVID-19. This app tracks the movement of its user through GPS and stores the data of its users. This app was launched on April 2, 2020 and soon after the launch it was made mandatory by startups such as Swiggy, Zomato, Urban Company and Grofers for their frontline staff to use the app. Amazon and Flipkart recommended it to their workers. Thereafter The National Centre for Disease Control director reportedly recommended that the app be made mandatory for people entering Delhi.

The CISF proposed the app should be made compulsory for passengers when Delhi Metro resumed services and finally the most devastating step was when the Indian government had made the app mandatory for citizens living in an identified COVID-19 containment zone and all employees in the public and the private sector. 

The concerns about the app started emerging soon after this decision and it was majorly due to the fact that the privacy policies of the app are completely silent as to what policies are being followed, it only mentions that the data is encrypted. This can be considered as an absolute tool of surveillance when there is no check and balances for this.

The major privacy concerns run around this app. The first of the argument is the legality behind making this app mandatory. It has been widely argued that making it legal under the Disaster Management Act is not sufficient. Since this violates one of the fundamental rights, it should pass the test of proportionality and necessity to be legally enforced.

Further it has been stated that it collects data related to demographics, contact, self-assessment and location using Bluetooth and GPS and there is excessive collection of personal data but there is check on deletion of the data. The data as per new protocol gets deleted in 180 days and in 30 days if someone raises a question but there is no way to check if such a thing happens or not.

Moreover, in wake of this some transparency demands have been raised as to why the code of this public app is not made public for review and check.

Moreover in Terms of Exchange, there is denial of liability by the government in case there is any unauthorized breach and in case of third party transfers, proper guidelines for anonymisation is not mentioned.

It has been argued now and again as to why this breach of privacy is not legally backed by any valid explanation and is considered as a way of surveillance by the government which is unchecked and breaches privacy at various corners.

Conclusion

The institution that plays the most important role in ensuring the privacy amongst citizens is the government, the so called representatives of the people. With it to be considered as a fundamental right, it becomes a basic obligation of the government to protect citizens rights. Government’s role is to address concerns about data safety, protection from unauthorised interception, surveillance, use of personal identities and bodily privacy. There must be laws enacted where a data controller is made accountable for the data that they collect, process and put to use. It should also provide internal procedural safeguards with independent external monitoring for protection of rights and also align technologies and laws with the evolving use of the internet, strengthen its cyber security norms and most importantly educate users of their choices. 

Even after their concerns and challenges there is a dire need to protect citizens because today life is based on realties of the digital age. India is becoming digital and advanced and with this problem of identity theft, or fraud have become real concerns and information on the internet is vulnerable to get misused therefore the system of data collection should consider privacy risks and must have procedures to protect such data and information.

Privacy is important for any individual or group of individuals and to ensure India needs to understand the sanctity of RIGHT OF PRIVACY and take a leap of faith in this institution which includes defining this right, bring a robust personal data protection mechanism, protect against surveillance and surveillance state, involve private corporation under ambit of right to privacy against using citizen information and thus establishing a balance between privacy protection and promotion of national interest is created.

As it is rightly stated in the book NO PLACE TO HIDE by the journalist Glenn Greenwald that ‘only when we believe that nobody else is watching us do we feel free – safe – to truly experiment, to test boundaries, to explore new ways of thinking and being, to explore what it means to be ourselves… for that reason, it is in the realm of privacy where creativity, dissent, and challenges to orthodoxy germinate. A society in which everyone knows they can be watched by the State- where the private realm is effectively eliminated- is one in which those attributes are lost, at both the societal and the individual level.’ So privacy holds great sanctity for a country like India and hence it must be rightly treated as a fundamental right of every citizen.

References

  1. Yael Onn, et al., Privacy in the Digital Environment, Haifa Center of Law & Technology, (2005) pp. 1–12.
  2. Black’s Law Dictionary.
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  5.  Cooley, Thomas M. A Treatise on the Law of Torts, 1888, p.29 (2nd ed.).
  6. https://www.thestatesman.com/opinion/privacy-in-the-digital-age-1502822444.html
  7. Samuel Warren, Louis D Brandeis. The Right to Privacy. Harvard Law Review, 1890, P.193.
  8. THE INDIAN JOURNAL OF LAW AND TECHNOLOGY, Volume 6, , POLICY-MAKING, TECHNOLOGY AND PRIVACY IN INDIA,2010, Subhajit Basu.
  9. 1954 AIR 300, 1954 SCR 1077.
  10. AIR 1963 SC 1295.
  11. AIR 1963 SC 1295.
  12. AIR 1975 SC 1378.
  13. AIR 1973 SC 157. 
  14. R. Rajgopal v State of Tamil Nadu, 1998 AIR 264.
  15. WRIT PETITION (CIVIL) NO 494 OF 2012.
  16. A Free and Fair Digital Economy,Protecting Privacy, Empowering Indians, Committee of Experts under the Chairmanship of Justice B.N. Srikrishna.
  17. Constitution of India, Article 19.
  18. Constitution of India, Article 21.
  19. International Covenant for Civil and Political Rights, Article 17;Universal Declaration of Human Rights, Article 12.
  20. General Comment No. 16 (1988),Centre for Internet and Society India and Privacy International ,October 2016. 
  21.  Franklin E. Zimring, Legal Perspective on Family Violence, 75 Cali.LK 521 (Jan. 1987).
  22. Mr. X v Hospital Z AIR 1999 SC 495.
  23. WRIT PETITION (CIVIL) NO 494 OF 2012.

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