In this article, Swati Shukla pursuing M.A, in Business Law from NUJS, Kolkata, and Shubham Kumar pursuing BBA LLB from GGIPSU, discuss all you need to know about Right to Privacy.
Right to Privacy
An extremely captivating advancement in the Indian Constitutional statute is the stretched out measurement given to Article 21 by the Supreme Court in post-Maneka period. The Supreme Court has declared that Art. 21 is the core of the Fundamental Rights. Article 21 has turned out to be multi-dimensional. The expansion in the measurements of Art. 21 has been made conceivable by giving a stretched out significance to “life” and “freedom” in Article 21.
These two words in Art. 21 are not to be perused barely. These are natural terms which are to be understood definitively. The Supreme Court has affirmed that to regard a perfectly fine central right, it is a bit much that it ought to be explicitly expressed in the constitution as a Fundamental Right. Political, social, and monetary changes in the nation involve the acknowledgement of new rights. The law in its endless youth develops to meet the requests of society.
Ideal to security is one such right which has gone to its reality in the wake of enlarging up the measurements of Article 21. The constitution, in particular, doesn’t concede any privilege to security in that capacity. Notwithstanding, such a privilege has been separated by the Supreme Court from Art. 21 and a few different arrangements of the constitution read with the Directive Principles of State Policy. In this paper we will be talking about finished another measurement of Art. 21 that is the Right to Privacy and furthermore the contentions identified with it.
Before we get into an entire dialogue of Right to Privacy most importantly we have to recognize what does the word Privacy mean. As indicated by Black’s Law Dictionary “appropriate to be not to mention; the privilege of a man to be free from any outlandish attention; the privilege to live with no ridiculous impedance by people in general in issues with which the general population is not really concerned”.
Article 21 of the Constitution of India expresses that “No individual should be denied of his life or individual freedom with the exception of as per method set up by law”. In the wake of perusing the Article 21, it has been translated that the expression “life” incorporates every one of those parts of life which go to make a man’s life significant, finish and worth living.
Like everything humankind has ever accomplished, there has been a positive and a negative side to it. Innovation has attacked all aspects of our lives whether the intrusion was wanted or not, we can’t make sure whether what we say host’s been heard by a third gathering too whether that was wanted or not. The notorious Hindi saying of even dividers having ears has never rung more genuine. The guideline of the world today can be: whatever you may do, the world will become acquainted with before you understand, get some information about it.
In the prior circumstances in India, the law would give assurance just from physical threats, for example, trespass from which the Right to Property developed to secure his home and cows. This was thought to be the Right to Life. As the consistently changing customary law developed to oblige the issues confronted by the general population, it was understood that was physical security required, as well as security of the profound self and of his sentiments, astuteness was required. Presently the Right to Life has extended in its degree and involves the privilege to be not to mention the privilege to freedom secures the activity of broad common benefits, and the expression “property” has developed to contain each type of ownership — impalpable, and in addition substantial.
The technique embraced by the Supreme Court with a view to grow the ambit of Art. 21 and to infer certain in that spot from, has been to translate Art.21 alongside worldwide sanctions on Human Rights. The Court has inferred the privilege of protection from Art.21 by deciphering it in similarity with Art.12 of the Universal Declaration on Human Rights and Art.17 of the International Covenant on Civil and Political Rights, 1966. Both of these worldwide records accommodate the privilege of security.
Appropriate to protection is not counted as a Fundamental Right in the Constitution of India. The extent of this correct first came up for thought in Kharak Singh’s Case which was worried about the legitimacy of specific controls that allowed reconnaissance of suspects.
The minority choice of SUBBA RAO J. manages this light. With regards to Article 19(1) (d), the privilege to security was again considered by the Supreme Court in 1975. In a nitty-gritty choice, JEEVAN REDDY J. held that the privilege to security is understood under Article 21. This privilege is the privilege to be not to mention. With regards to reconnaissance, it has been held that observation, if meddlesome and truly infringes on the security of native, can encroach the opportunity of development, ensured by Articles 19(1) (d) and 21.
Reconnaissance must be to counteract wrongdoing and on the premise of material gave in the history sheet. With regards to a hostile to fear mongering institution, it was held that the privilege to protection was subservient to the security of the State and withholding data applicable for the detainment of wrongdoing can’t be invalidated on the grounds of appropriate to protection. The privilege to protection regarding Article 21 has been examined in different cases.
Worldwide Concepts of Privacy
Article 12 of Universal Declaration of Human Rights (1948) states that “Nobody might be subjected to discretionary impedance with his protection, family, home or correspondence or to assault upon his respect and notoriety. Everybody has the privilege to insurance of the law against such impedance or assaults.”
Article 17 of International Covenant on Civil and Political Rights (to which India is a gathering) expresses “Nobody should be subjected to discretionary or unlawful obstruction with his protection, family, home and correspondence, nor to unlawful assaults on his respect and notoriety”
Article 8 of European Convention on Human Rights states “Everybody has the privilege to regard for his private and family life, his home and his correspondence; there might be no obstruction by an open specialist aside from, for example, is as per law and is important in a vote based society in light of a legitimate concern for national security, open wellbeing or the financial prosperity of the nation, for the assurance of well being or ethics or for the insurance of the rights and flexibilities of others.”
Idea of Privacy in India
As of now talked about Article 21 of the Constitution of India expresses that “No individual might be denied of his life or individual freedom aside from as per strategy built up by law”. The privilege to life cherished in Article 21 has been generously translated in order to mean something more than simple survival and negligible presence or creature presence. It consequently incorporates every one of those parts of life which makes a man’s life more significant, finish and worth living and appropriate to security is one such right. The first run through this point was ever brought was up for the situation of Kharak Singh v. Territory of UP where the Supreme Court held that Regulation 236 of UP Police direction was illegal as it conflicted with Article 21 of the Constitution. It was held by the Court that the privilege to security is a piece of appropriate to assurance of life and individual freedom. Here, the Court had likened protection to individual freedom.
In Govind v. Province of Madhya Pradesh, Matthew, J. acknowledged the privilege to security as a spread from Art. 19(a), (d) and 21, however ideal to security is not outright right. “Accepting that the key rights unequivocally ensured to a national have penumbral zones and that the privilege to protection is itself an essential right, the major right should be liable to limitation on the premise of convincing open intrigue”. Reconnaissance by domiciliary visits require not generally be an absurd infringement on the security of a man attributable to the character and precursors of the individual subjected to observation as additionally the articles and the impediment under which the observation is made. The privilege to security manages ‘people not places’.
In Smt. Maneka Gandhi v. Union of India and Anr.,(1978) for this situation SC 7 Judge Bench said ‘individual freedom’ in article 21 covers an assortment of rights and some have status of basic rights and given extra assurance u/a 19. Triple Test for any law meddling with individual freedom: (1) It must endorse a system; (2) the technique must withstand the trial of at least one of the major rights presented u/a 19 which might be appropriate in a given circumstance and (3) It must withstand trial of Article 14. The law and strategy approving impedance with individual freedom and right of security should likewise be corrected just and reasonable and not self-assertive, whimsical or harsh.
In Naz Foundation Case (2009) Delhi HC gave the point of interest choice on consensual homosexuality. For this situation S. 377 IPC and Articles 14, 19 and 21 were analyzed. Ideal to security held to ensure a “private space in which man may progress toward becoming and remain himself”. It was said people require a position of asylum where they can be free from societal control-where people can drop the veil, halt for some time from anticipating on the world the picture they need to be acknowledged as themselves, a picture that may mirror the estimations of their associates as opposed to the substances of their temperament.
It is currently a settled position that privilege to life and freedom under article 21 incorporates ideal to security. Ideal to security is ‘a privilege to be not to mention’. A native has a privilege to defend the protection of his own, his family, marriage, reproduction, parenthood, kid.
Bearing and training among different issues. Any individual distributing anything concerning the above issues aside from with the assent of the individual would be at risk in real life for harms. Position in any case, be extraordinary, if a man deliberately pushes himself into contention or willfully welcomes or raises a discussion.
Ideals to Privacy – Permissible Restriction
Interruption into security might be by –
- Legislative Provision
- Administrative/Executive request
- Judicial orders,
New Issue: Invasion of Privacy by UIDAI and IT department
The execution of national projects like Unique Identification Number, National Intelligence Grid, DNA profiling, special correspondences, Crime and Criminal Tracking Network and System, brain mapping etc. and the wild utilization of innovation by the majority for everyday issues, there have been concerns communicated on the conceivable attack of a native’s entitlement to security ensured under Article 21 of the Constitution of India (hereinafter alluded to as the “Constitution”).
The Department of Personnel and Training (hereinafter alluded to as the “DoPT”) had arranged a draft charge on appropriate to security in the year 2011, the Right to Privacy Bill, 2011 (hereinafter alluded to as the “Draft Bill 2011”). Despite the fact that, there had been a few exchanges on the Draft Bill 2011, however the same has neglected to appear into an exhaustive enactment on protection.
The requirement for remain solitary security enactment was felt in the wake of break of the Nira Radia tapes in the year 2010, raising genuine dangers and worries over the security of people and its insurance. Resulting to this notorious hole, Mr. Ratan Tata, the then Chairman of the Tata Group had moved toward the Supreme Court for an infringement of the crucial appropriate to security.
Keeping in mind the end goal to adequately address the security issues, the Planning Commission of India had coordinated the constitution of a ‘Gathering of Experts’ on December 26, 2011, to distinguish the protection issues and set up a give an account of the same to encourage writing of protection charge for India. The Group was constituted under the Chairmanship of Justice A.P. Shah, Former Chief Justice, High Court of Delhi with 11 different individuals (hereinafter alluded to as the “Shah Committee”).
The key terms of reference of the Shah Committee included investigation of the security laws and related bills proclaimed by different nations, top to bottom examination of projects being actualized by the Government from the viewpoint of their effect on protection and particular proposals for thought of the DoPT for consolidation in the proposed draft charge on privacy. The Shah Committee presented its answer to the Planning Commission of India on October 16, 2012 (hereinafter alluded to as the “Advisory group Report”).
Defining Privacy in Digital Age
Privacy is a concept that is neither clearly understood nor easily defined. Of all the human rights in the international catalogue, privacy is perhaps the most difficult to define. Definitions of privacy vary widely according to context and environment. In many countries, the concept has been fused with data protection, which interprets privacy in terms of management of personal information. Outside this, in rather strict context, privacy protection is frequently seen as a way of drawing the line at how far society can intrude into a person’s affairs .The lack of a single definition should not imply that the issue lacks importance. Ability for others to access and link the databases, with few controls on how they use, share, or exploit the information, makes individual control over information about oneself more difficult than ever before.
Various Aspects of Privacy
Privacy can be divided into the following separate but related concepts: – Information privacy, which involves the establishment of rules which governs the collection and handling of personal data such as credit information, and medical and government records. It is also known as “data protection”; – Bodily privacy, which concerns with the protection of people’s physical selves against invasive procedures such as genetic tests, drug testing and cavity searches; – Privacy of communications, which covers the security and privacy of mail, telephones, e-mail and other forms of communication; and – Territorial privacy, which concerns the setting of limits on intrusion into the domestic and other environments such as the workplace or public space. This includes searches, video surveillance and ID checks. The Internet is at once a new communications medium and a new locus for social organization on a global basis. Because of its decentralized, open, and interactive nature, the Internet is the first electronic medium to allow every user to “publish” and engage in commerce. Users can reach and create communities of interest despite geographic, social, and political barriers. The Internet is an unprecedented mechanism for providing invaluable information to government, social organizations, health care, and educational institutions. As the World Wide Web has grown to fully support voice, data, and video, it has become a virtual “face-to-face” social and political medium. (kumar, 2020)
How Internet is Different
The Internet is an ocean of information. A person can collect information by clicking on the mouse from any nook and corner of the world. If we are to design systems that protect privacy on the Internet—a globally networked environment—we must understand the specific challenges to privacy posed by its functions and use. The Internet presents a series of new challenges for achieving public policy goals—be they protecting children from inappropriate material or protecting privacy. Individuals give their personal information regarding their financial status to the Banks, patients give their personal information regarding the ailments from which they suffer to the doctors, individuals also give their personal information to the insurance company while taking insurance. Further while subscribing for the new credit card one had to give his personal information. All this information, which was earlier noted down on the papers, is now stored in the hard drive of the doctor, insurance company, or credit card company’s computers. There are very fair chances that if this information is passed on to somebody else which an individual is not aware about, it would surely amount to breach of right of privacy. Modern technology had brought along with it its own dark side. Hackers are hacking the computers for such information. Cookies also provide such valuable information to the owner of the website. In following ways Internet is differing as compared to other means of communications: (kumar, 2020)
Large amount of Data Creation and Collection
Data collection is one of the most important features of the Internet. The Internet accelerates the trend toward increased information collection, which is already evident in our offline world. The massive flow of data trail, known as transactional data, which the individual leaves behind while surfing on the web provides a rich source of information about their habits of association, speech, and commerce. This information also includes the Internet protocol address (“IP address”) of the individual’s computer, the computer type, and what the individual did on previous visits to the Web site. This data, which may or may not be enough to identify a specific individual, is captured at various points in the network and available for reuse and disclosure. Along with information intentionally revealed through purchasing or registration activities (like on-line purchase, subscribing for a new credit card etc), this transactional data can provide a “profile” of an individual’s activities. When aggregated, these digital fingerprints reveal the blueprint of an individual’s life. This increasingly detailed information is bought and sold as a commodity by a growing assortment of players. (kumar, 2020)
Globalization of Information
Another important feature of the Internet is that information and communications flow uninterruptedly across national borders. The individual by clicking to the mouse can reach the information stored at the very distant place. Just as the flow of personal information across national borders poses a risk to individual privacy, citizens’ ability to transact with entities in other countries places individual privacy at risk in countries that lack privacy protections. At times, if National laws are insufficient, it may fail to provide necessary privacy protections, across the borders. (kumar, 2020)
No Centralized Control
Earlier, before the Internet was developed, it was possible for the government to control the flow of information about the individual because the transactions were taking place in the paper-based world. Also, there was a centralization of the control mechanism. However, when the transactions are done through the Internet, things change. As the Internet is a decentralized mechanism, information in a networked environment flows effortlessly from country to country, organization to organization, and policy regime to policy regime. Effective monitoring of the generation, collection, and flow of information on this vast scale is a difficult task. In addition to the difficulty of enforcing rules, governments around the world are struggling with how to develop appropriate and effective rules. Efforts to use legal and regulatory instruments developed to address issues in other media—broadcast or telephone may not be effective in this digital world
What do we mean by Privacy and How it is Violated on Internet
Privacy is a concept that is difficult to define. It means many things to many people and different things in different contexts. For the purpose of our discussion, we will examine some important “privacy expectations” that individuals have long held, and which should carry over to their interactions on the Internet that are under threat
The Expectation of secrecy
Imagine that you are walking through a shopping mall, and you are unaware about a sign on your back which tells everyone which store you visited, where you have been, what you looked at, and what you purchased. Something very close to this is possible—when you are on the Internet. When individuals surf the World Wide Web, they have a general expectation of secrecy, more so than in the physical world where an individual may be observed by others. If an individual has not actively disclosed information about herself, she believes that no one knows who she is or what she is doing. But the Internet generates an elaborate trail of data detailing every stop a person makes on the Web. This data trail may be captured by the individual’s employer if he/she logged on at work, and is captured by the Web sites the individual visits. Transactional data can provide a “profile” of an individual’s online life. (kumar, 2020)
The anticipation of Control Over Personal Information
When individuals provide information to a doctor, a merchant, insurance company or a bank, they anticipate that those professionals/companies will base the information collected on the service and use it for the sole purpose of providing the service requested. The doctor will use it to tend to their health, the merchant will use it to process the bill and ship the product, and the bank will use it to manage their account—end of story. Unfortunately, current practices, both offline and online, frustrate this expectation of privacy. Whether it is medical information, or a record of a book purchased at the bookstore, information generated in the course of a business transaction is routinely used for a variety of other purposes without the individual’s knowledge or consent. (kumar, 2020)
Advancement of the Right to Privacy
Preceding going into exchanges on arrangements of the Draft Bill 2011 or the Committee Report, it is fascinating to take a note of the advancement of the privilege to protection under the Indian legitimate administration.
The Supreme Court of India (hereinafter alluded to as the “Preeminent Court”) had the chance to first choose and set out the shapes of the privilege to security in India on account of Kharak Singh v. Territory of Uttar Pradesh. This case did not witness the acknowledgment of the privilege to security as a crucial directly under the ‘individual freedom’ statement of Article 21 of the Constitution. Greater part of the judges for this situation declined to decipher Article 21 out of a way to incorporate inside its ambit the privilege to security, however two of the seven judges attested that the privilege to protection forms a basic element of individual freedom. In this manner, the Supreme Court while choosing the instance of Govind v. Territory of Madhya Pradesh set out that various major privileges of residents can be portrayed as adding to one side to security. Despite the fact that the Supreme Court likewise expressed that the privilege to protection should experience a procedure of case by case development. The Supreme Court on account of R. Rajagopal v. Province of Tamil Nadu, interestingly straightforwardly connected the privilege to protection to Article 21 of the Constitution and set down:
“The right to security is certain justified to life and freedom ensured to the citizens of this nation by Article 21. It is a “right to be not to mention”. A native has a right to shield the security of his own, his family, marriage, reproduction, parenthood, tyke bearing and instruction among different issues. None can publish anything concerning the above issues without his assent whether honest or generally and whether commendatory or basic. In the event that he does as such,
- Kharak Singh v. Territory of Uttar Pradesh, referred to at: (1964) SCR (1) 332.
- Govind v. State of Madhya Pradesh referred to at: AIR 1975 SC 1378.
- R. Rajagopal v. Territory of Tamil Nadu, referred to at: 1994 SCC (6) 632.
“He would be violating the appropriate to security of the individual concerned and would be subject in an activity for damages.” Further, while choosing the issue of phone tapping on account of PUCL v. Union of India, the Supreme Court watched that phone tapping would be a genuine intrusion of a person’s privacy. Thus, phone tapping would infract Article 21 of the Constitution, unless it is allowed under the system built up by law.
Accordingly, the idea of protection of an individual has developed throughout the years and has been held to be a principal ideal by the Supreme Court. On account of Selvi v. Territory of Karnataka the Supreme Court held that an automatic subjection of a man to narcoanalysis, polygraph examination and BEAP tests abuses the privilege to protection.
It is to be noticed that even with the augmented extent of Article 21 of the Constitution covering ideal to security, the privilege to a person’s protection is not an outright one and accompanies certain special cases. The Supreme Court watched that the privilege to security might be confined for the aversion of wrongdoing, issue or assurance of well being or ethics or insurances of rights and flexibility of other.
The Supreme Court has explained a certain privilege to security got from the dialect set out in Article 21 of the Constitution. In any case, India does not have a different and particular enactment that unequivocally perceives the right to privacy and sets out the shapes of its pertinence.
Recent Landmark Judgement of Right to Privacy
Nine-bench constitutional bench in Justice KS Puttaswamy (Retd) vs. the Union of India delivered a landmark judgement and unanimously declared that the Right to Privacy is part of Fundamental Rights. Judges also made some important observations.
- Right to Privacy is part of Right to life and personal dignity under Article-21 of Indian Constitution. As other fundamental rights, Right to Privacy is also not absolute and there may be some ‘reasonable’ restrictions.
- Unity and Integrity of the nation cannot be ensured without ensuring the dignity of an individual through privacy.
- Some other Supreme Court judgements (like not declaring Section 377 unconstitutional in Kaushal case) require new debate in light of recent judgement.
- The bench also argued that the state does not have the right to decide what one eats, what one should wear; as they are part of his/her Right to Privacy.
- The bench also displayed concern about the weak data protection mechanism in India and directed the state to come out with strong data security infrastructure and data protection laws.
The bench also criticised earlier judgement (MP Sharma (1954) and Kharak Singh (1962)) and also suggested the need of dissent from the government to protect the rights of citizens by citing ADM Jabalpur Case.
Suggestions of the Shah Committee
As a rule, the Shah Committee prescribed that the enactment on ideal to security must orchestrate every single statutory arrangement that identify with protection. As per the Committee Report submitted in October 2012, the real proposals of the Shah Committee were as per the following:-
The administrative system will comprise of privacy commissioners at the Central and Regional levels;
- PUCL v. Union of India, referred to at: (1997) 1 SCC 30.
- Selvi v. Province of Karnataka referred to at: AIR 2010 SC 1974.
- “X” v. Doctor’s facility ‘Z’, referred to at: (1998) 8 SCC 296.
An arrangement of co-direction giving the self regulating associations at industry level the decision to create security models. These principles ought to be endorsed by a privacy commissioner;
People would be given the decision (pick in/quit) as to giving their own data and the information controller would take singular assent simply subsequent to giving contributions of its data rehearses; The information controller should just gather that individual data from information subjects as is fundamental for the reasons recognized for such accumulation and in addition process the information pertinent to the reason for which they are gathered;
The information gathered would be put to use for the reason for which it has been gathered. Any adjustment in the use would be done just with assent of the individual concerned;
Information gathered and handled would be pertinent for the reason and no extra information components would be gathered from the person;
Block attempt orders must be particular and all captures would just be in drive for a time of 60 days and might be reestablished for a time of up to 180 days. Records of capture attempt must be decimated by security organizations following a half year or 9 months and specialist organizations must demolish following 2 months or a half year; and
Encroachment of any arrangement under the Act would constitute an offense for which people may look for remuneration.
The Proposed Privacy Regime
(a) Privacy– Rule and Exceptions
The privilege to privacy proposed by the Draft Bill 2011 has been allowed to all citizens. The expression ‘individual information/data’ has been attributed the importance of any information that identifies with a living or characteristic individual, if such individual can be distinguished from the information, either straightforwardly or by implication in conjunction with the other information under lock and key or prone to come possessing the individual controlling the said information. Moreover, it has likewise been elucidated that individual data incorporates any statement of assessment about a man also. Further, the standards of information insurance pondered under the Draft Bill 2011 have been made material on all people handling information utilizing hardware situated in India or gathering, preparing or utilizing the individual information in India, in the case of having a position of business in India or not.
Since each manage accompanies certain special cases, so does the privilege to protection. The Draft Bill 2011 examines the accompanying occasions, where the privilege to protection of an individual might be encroached:-
- Power, uprightness and security of India, vital, logical or monetary enthusiasm of the state; or
- Anticipating prompting to the commission of any offense; or
- Counteractive action of open issue or the recognition of wrongdoing; or
- Assurance of rights and opportunities of others; or
- In light of a legitimate concern for agreeable relations with remote states; or
- whatever other reason particularly said in the Act.
In accordance with the Draft Bill, the Shah Committee too prescribed the above special cases, with certain extra exemptions, such as disclosure out in the open intrigue, journalistic purposes, memorable and logical research and security of the individual rights and opportunity and so on. Keeping in mind the end goal to gauge the degree and legitimacy of the said special case to one side to security, the Committee Report set forth the parameters of proportionality, legitimateness and need in a just state, as the measuring stick of such assurance.