This article is written by Astitva Kumar, a student at Guru Gobind Singh Indraprastha University. The article is the outcome of detailed research and analysis on the Right to Privacy and recent developments around it.
Table of Contents
Before we go into details on the Right to Privacy, it’s important to understand what the term “privacy” means. According to Black Law’s Dictionary, privacy means, “Right to be left alone; the right of a person to be free from any unnecessary publicity; the right to live without any unwarranted public intrusion in topics with which the public is not necessarily concerned”.
Article 21 of the Indian Constitution reads that “No person shall be deprived of his life or his several correspondences several to procedure established by law”. After reading Article 21, it was determined that the term “life” encompasses all parts of life that contribute to making a man’s existence meaningful, complete, and worthwhile. In ancient times in India, the law only protected from physical threats such as trespassing, from which the Right to Property arose to safeguard one’s home and livestock. This was regarded as a violation of one’s right to life. As the ever-changing common law evolved to meet the needs of the people, it became clear that not only physical security but also spiritual and emotional security, as well as intellectual security, were essential.
There has been a positive and negative side to everything mankind has ever accomplished. Technology has infiltrated every aspect of our life, whether we wanted to or not, and we can’t be sure if what we say has been heard by a third party, whether we wanted it or not. Even walls have ears, according to the famous Hindi aphorism. By reading Article 21 following Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights, 1966, the Court has inferred the right to privacy. The right to privacy is protected in both of these international covenants.
The Supreme Court’s decision to give Article 21 a new dimension in the post-Maneka period is an interesting development in Indian Constitutional law. Article 21 is the heart of Fundamental Rights. The expansion of Article 21’s dimensions was made feasible by giving the words “life” and “liberty” a new meaning.
International Instruments on Right to Privacy
Almost every democratic country in the world now recognises the constitutional right to privacy. Other universally applicable statutes include provisions relevant to this right as well as recognition of it. Some of those are:
Universal Declaration of Human Rights
According to the Universal Declaration of Human Rights (1948), Article 12 states, “No one shall be subjected to arbitrary interference with his privacy, family, home, or communications, nor to attacks on his honour and reputation, everyone has a legal right to be protected from such interference or attacks.”
International Covenant on Civil and Political Rights
“No one will be subjected to arbitrary or unlawful interference with his privacy, family, home, or communications, nor to unlawful attacks on his honour and reputation,” declares Article 17 of the International Covenant on Civil and Political Rights.
India is a party to this instrument.
European Convention on Human Rights
“Everyone has the right to respect for his or her private and family life, his or her home, and his or her correspondence; no interference by a public authority shall be made unless it is following the law and is necessary for a democratic society in the interests of national security, public safety, or economic well-being, for the protection of health or morals, or the protection of the rights and freedom of others.” as per Article 8 of the European Convention on Human Rights.
The phenomenon of the Right to Privacy in India
The right to privacy is a collection of rights. The right to privacy is a broad concept that incorporates several different rights. Almost every country’s constitution expressly recognizes the right to privacy. Where this right is not officially addressed in the Constitution, as it is in the United States, Ireland, and India, it is implicit in other clauses.
The concept of the right to privacy can be found in Hindu texts dating back to ancient India. Certain issues, including family matters, worship, and sex, must be kept private, according to Hitopadesh. In ancient times, privacy was associated with “good morality.” However, in ancient Indian writings, this concept was hazy.
- The right to privacy was debated for the first time in modern India during the Constituent Assembly debate, but it was not included in the Indian Constitution. Since the 1960s, the right to privacy has been debated as a constitutionally protected right as well as a common-law right.
While dealing with the power to search and seize records from the Dalmia Group in M.P.Sharma v. Satish Chandra [AIR 1954 SCR 1077], an eight-judge bench of the Supreme Court declared that the right to privacy is not a basic right and is alien to the Indian Constitution.
As previously stated, Article 21 of the Indian Constitution provides that “no individual shall be deprived of his life or personal liberty except following legal procedure.” Article 21’s right to life has been widely interpreted to entail more than simply survival, existence, or animal existence. As a result, it encompasses all aspects of life that make a man’s existence more meaningful, complete, and worthwhile, and the right to privacy is one of them. The Supreme Court held in Kharak Singh v. State of Uttar Pradesh (1963 AIR 1295) that Regulation 236 of the Uttar Pradesh Police Regulation was unconstitutional because it conflicted with Article 21 of the Constitution. The right to privacy is an element of the right to life and personal liberty, according to the Court. The Court had equated privacy with personal liberty in this case.
In Govind v. State of Madhya Pradesh( 1975 AIR 1378), Justice Mathew, recognised the right to privacy under Articles 19(a), (d), and 21, is not an absolute right. The basic rights of the citizens encompass lacunar zones and that the right to privacy is a fundamental right, the fundamental right must be limited based on compelling public interest. Monitoring by domiciliary visits does not have to be an intolerable breach of a person’s privacy because of the character and antecedents of the person subjected to surveillance, as well as the aims and constraints under which the surveillance is undertaken. People have the right to privacy, not places.
Under the case of Smt. Maneka Gandhi v. Union of India & Anr., (1978), a seven-judge SC bench stated that “personal liberty” in Article 21 embraces a wide range of rights, some of which have the character of fundamental rights and are afforded special protection under Article 19. Any law that restricts personal liberty must pass the Triple Test:
- It must establish a method;
- The procedure must pass the test of one or more of the fundamental rights provided under Article 19 that may be applicable in a particular case; and
- It must pass the test of Article 14. The legislation and method that authorises interference with one’s liberty and right to privacy must be equitable and fair, not arbitrary, whimsical, or harsh.
In the case of the Naz Foundation (2009), the groundbreaking judgment gave homosexuality legality. Section 377 IPC and Article 14, Article 19, and Article 21 were examined in this instance. The right to privacy was established to guarantee a “private space in which man may become and be himself,” according to the Court. Individuals, it was said, require a place of refuge where they can be free of societal control—a place where they can remove their masks and refrain for a time from projecting on the world the image they want to be accepted as themselves, an image that may reflect their peers’ values rather than their own nature’s realities.
It is now widely accepted that Article 21’s right to life and liberty encompasses the Right to Privacy. The right to privacy is defined as the ability to be left alone. A citizen has the right to protect his or her privacy, as well as the privacy of his or her family, marriage, reproduction, maternity, child-bearing, and education. Anyone who publishes anything on the following topics without the person’s consent could face a lawsuit for damages. However, if a person intentionally enters a controversy or voluntarily invites or generates a controversy, his or her position will be different.
Legal Restriction on the Right to Privacy
Invasion of privacy may occur as a result of:
The legislative intrusion must be judged based on reasonableness, as protected by the Constitution, and the Court can do so by looking at the proportionality of the intrusion concerning the goal sought.
When it comes to administrative or executive action, it must be reasonable in light of the facts and circumstances of the situation.
In the case of judicial warrants, the Court must have reasonable grounds to think that the search or seizure is warranted, and it must consider the scope of the search or seizure required to defend the specific State interest. Furthermore, as previously indicated, the common law recognised rare exceptions to the rule that warrantless searches could be done in good faith, to preserve evidence or to avert sudden damage to a person or property.
Draft of Privacy Bill, 2011
The Bill says, “Every individual shall have a right to privacy—Confidentiality of communication made to, or, by him—including his several correspondences, telephone conversations, Telegraph messages, posters, electronic means, and other modes of communication; confidentiality of his private or his family live; protection of his honour and good name; protection from search, detention or exposure of lawful communication between and among individuals; privacy from surveillance; confidentiality of his banking and financial transactions, medical and legal information and protection of data relating to an individual. “
The Bill protects citizens from identity theft, such as criminal identity theft (appearing as someone else when detained for a crime), financial identity theft (using someone else’s identity to get credit, commodities, and services), and so on.
Interception of communications is prohibited under the Bill, save in limited circumstances with the authority of a Secretary-level officer. It requires the destruction of intercepted content within two months of the interception
The Bill establishes a Central Communication Interception Review Committee to examine and review the interception orders issued, with the authority to rule that the intercepted material was intercepted in violation of Section 5 of the Indian Telegraphs Act, 1885 and that it should be destroyed immediately. Surveillance by following a person, closed-circuit television, or any electronic or other manner is likewise prohibited, save in specific instances as indicated by the procedure.
According to the law, no one has a place of business in India but data processing equipment in India may collect, process, use, or disclose any data relating to an individual without the agreement of that individual.
The Bill calls for the creation of an Indian Data Protection Authority, whose role will be to keep track of developments in data processing and computer technology, examine laws and assess their impact on data protection, and make recommendations and receive public input on any matter affecting data protection in general. The Authority has the power to examine any data security breach and issue orders to protect the security interests of individuals whose personal data has been or is likely to be compromised as a consequence of the breach.
The Bill makes violating the interception provisions a crime punishable by up to five years in prison, a fine of up to Rs. 1 lakh, or both for each such detection. Similarly, disclosing such information is a crime punishable by up to three years in prison and a fine of up to Rs. 50,000, or both. It further states that anyone who obtains any record of information about an individual from a government or agency official under false pretences faces a fine of up to Rs. 5 lakh.
As a result of the Bill, “any person having a place of business in India but having data utilizing equipment situated in India” is prohibited from collecting, processing, using, or disclosing “any data belonging to an individual to any person without such individual’s consent.” I’m sure there will be some exceptions to this rule. The bill appears to authorise the creation of an oversight organisation known as the “Data Protection Authority of India,” which will investigate complaints about purported data protection infractions. The following appear to be the functions of this body:
- To monitor developments in data processing and computer technology;
- To analyse the law and assess its impact on data protection;
- To make suggestions and hear public comments on any topic impacting data protection in general.
- To examine any data security breach and issue directives to protect the security interests of individuals whose personal data has been compromised or is likely to be compromised as a result of the breach.
The Right to Privacy, as well as the Right to Search and Seizure
The right to privacy on the one hand, and the state’s authority of search and seizure on the other, have both been the subject of rulings in India and other nations. Under the Fourth Amendment to the United States Constitution, the Supreme Court referred to American case law. The Supreme Court cited the Universal Declaration of Human Rights, the European Convention on Human Rights, as well as other treaties and constitutional requirements, to conclude that the government cannot have unrestricted search and seizure powers. It also said that while all public documents can be inspected at any time, the Collector will not be able to order the production of records maintained with banks under the impugned revised Section 73 of the Indian Stamp Act, 1899. These materials are copies of private records. The right to privacy is used to safeguard documents held by banks. Documents cannot be reviewed unless there is reasonable cause or material to suspect that they may lead to the discovery of fraud. Section 73, which gave the Collector unrestricted authority to enable “any individual” to take notes or extracts from such papers, was struck down by the Court. Even the Act’s standards did not give adequate guidelines or protections for how this power could be applied. The Supreme Court cited previous US decisions on the matter. In Miller’s case, it preferred to follow the minority perspective, believing that the majority decision was erroneous. It also alluded to a number of publications and comments that said the majority judgment was incorrect. The Court decided that records or copies of documents submitted to the bank would remain confidential. The fact that they are freely supplied to the bank does not indicate that they are no longer private documents, as stated previously.
Husband infringes on wife’s Right To Privacy under Article 21 by tapping her conversation with others seeking to produce in court
In Rayala M. Bhuvaneswari v. Nagaphonder Rayala (AIR 2008 AP 98) the petitioner filed a divorce petition in court against his wife and requested to provide a hard disc relating to his wife’s chat with others recorded in the United States to corroborate his case. Some of the dialogue was rejected by her. The Court ruled that the husband’s unauthorised taping of his wife’s chat with others without her knowledge was a breach of her right to privacy under Article 21 of the Constitution. Even if the claims are true, they cannot be used as evidence. The wife cannot be compelled to take a voice test and then is asked to compare the section she disputed with the portion she admitted. Without her knowledge, her spouse was secretly recording her phone conversations with her friends and parents in India. This is an obvious violation of the wife’s right to privacy. If a husband is of this character and has no trust in his wife, even when it comes to her interactions with her parents, the institution of marriage becomes obsolete.
Right to Privacy as a Fundamental Right
Fundamental rights are guaranteed values that every human being is entitled to, and these rights, along with suitable remedies, should be available to every citizen of the country. “No individual shall be deprived of his life or personal liberty except following concerning the several correspondences concerning the law,” according to Article 21 of the Indian Constitution. Over time, the scope of Article 21 has been expanded to embrace all areas of life that make a person’s existence meaningful, complete, and worth living.
Landmark judgement: K.S.Puttaswamy v. Union of India
Puttaswamy, a retired judge from the High Court, questioned the government’s proposed system for a common biometrics-based identity card that would be required for accessing government services and benefits. The petitioner maintained that the right to privacy was a separate right granted by Article 21 of the Indian Constitution, which guarantees the right to a dignified existence. The respondent, on the other hand, claimed that the Indian Constitution only acknowledged personal liberty, which may include, but only to a limited extent, the right to privacy.
A Supreme Court bench of nine judges has concluded that Indians have a fundamental right to privacy, which is inherent in life and liberty and hence falls under Article 21 of the Indian constitution.
Even though the judges had slightly different reasons about how privacy is vital to the right to life and liberty, the Court, led by Chief Justice J.S. Khehar, issued a unanimous decision.
Justices J. Chelameswar, S.A. Bobde, R.K. Agrawal, Rohinton Nariman, A.M. Sapre, D.Y. Chandrachud, Sanjay Kishan Kaul, and S. Abdul Nazeer made up the bench.
The Supreme Court’s nine-judge bench unanimously found that the right to privacy was a constitutionally protected right in India and that it was an integral aspect of Article 21’s right to life and personal liberty. The right to privacy was bolstered by the judges’ concurring opinions, which recognised that the right to privacy encompasses autonomy over personal decisions, such as beef consumption, bodily integrity, such as reproductive rights, and protection of personal information, such as health record privacy. It was also acknowledged that, like all other rights, this one is not absolute, but that it can be limited where it is granted by law, corresponds to a legitimate goal of the state, and is commensurate with the goal it intends to achieve.
This case increases freedom of expression by recognising the right to privacy as a separate right that may be enforced, rather than a right that is available only to the extent that it affects constitutionally protected freedoms. It protects freedom of expression by recognising rights such as the right to be free of arbitrary and unrestricted state surveillance, the right to express one’s sexual orientation, religious expressions, data protection, and so on. This judgement also establishes a binding precedent within the Court’s jurisdiction.
Further development in Right to Privacy
The proposed data protection framework adheres to the Supreme Court of India’s decision in Puttaswamy’s case. The Supreme Court ruled that the right to privacy is a basic right arising from the right to life and personal liberty, as well as other constitutionally protected fundamental rights. The right to privacy was thought to include a negative element (the right to be left alone) as well as a positive aspect (the right to be alone) (the right to self-development).
The right to safeguard one’s identity is included in the realm of privacy. The right recognises that all information about a person is fundamentally their own and that they are free to share or keep it private. The right to autonomy and self-determination in relation to one’s data is thus at the heart of informational privacy.
The right to privacy, once established as a basic right, is broad enough to encompass all aspects of life. With the advancement of technology and social networking sites, granting such a right has become increasingly challenging. On the other hand, a person’s right to privacy includes the ability to keep personal information private. The extent to which each person’s zone of privacy should be preserved is subjective and may change from person to person. The right to privacy is also recognised in Section 43 of the Information Technology Act, which renders unauthorised access to a computer resource punishable.
“Formulation of a data protection regime is a complicated exercise that needs to be performed by the State after a thorough balance of the requirements of privacy coupled with other objectives that data protection sub-serves, as well as the legitimate concerns of the State,” the court remarked.
In well-defined instances, privacy can also be curtailed.
• Restricting the right serves a justifiable state interest.
• The restriction is required and proportional to achieve the desired outcome.
• The limitation is imposed by legislation.
Amendments to Aadhaar Card Act, 2016
The committee made suggestions to the Aadhaar Act, 2016 to ensure the UIDAI’s autonomy and “bolster data protection.” Offline verification of Aadhaar numbers, as well as new civil and criminal punishments, will be implemented, though the ability to raise complaints will remain solely with the UIDAI.
• Ensure UIDAI’s autonomy and strengthen data protection.
• Offline Aadhaar verification and increased fines.
Amendments to RTI Act
The Srikrishna Committee proposed amending Section 8(1)(j) of the RTI Act, which deals with the disclosure of personal information in the public interest. The former Section 8(1)(j) stated that there was no need to provide personal information if it was not related to “public authority or interest” or if it was a violation of privacy. The new 8(1)(j) seeks to strike a balance between the public interest in having access to information on the one hand, and the potential harm to the data principal on the other.
Individual harm vs. public interest is a new test for when personal information can be shared through RTI.
With the rapid growth of technology in recent years, it has become increasingly important to ensure that the right to privacy is appropriately secured. Because social media has grown so pervasive in our lives, everyone must be protected in such a way that people’s right to privacy is not jeopardised. With the Supreme Court’s recognition of this right as a basic right, it has taken on even more significance.
Though privacy should be safeguarded in all aspects, the right to privacy, like other fundamental rights, is subject to reasonable restrictions that the government can apply under specific circumstances.
The reality that we are individuals first is frequently overshadowed by our status as members of society. For whatever activity, each individual requires his or her personal space (assuming here that it shall be legal). As a result, the state grants each individual the right to enjoy private moments with people they choose away from the prying eyes of the rest of the world. According to Clinton Rossiter, privacy is a unique form of independence that can be viewed as an endeavour to maintain autonomy in at least a few personal and spiritual matters. This autonomy is the most unique feature that a person can possess. There, he is genuinely a free man. This isn’t a right against the state; it’s a right against the rest of the world. This right will help preserve the individual’s interests if he does not wish to share his opinions with the rest of the world.
Our rights are getting increasingly important as time goes on in this day and age. We need security because our lives are being splattered all over the media, whether it’s through social networking sites or spy cameras. After all, the only person to whom we owe an explanation is ourselves, not the rest of the world.
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