In this article, Shraddha Tiwari discusses the recent Right to Privacy judgment and the impact the judgment will have on existing Indian Laws.

“I cherish my privacy and woe betide anyone who tries to interfere with that” – Jeff Beck

ABSTRACT

While looking at privacy, jurisprudentially, William Blackstone and Aristotle both make a distinction between public wrongs and private wrongs. The notion of privacy thus is an old concept finding its origin in the natural law theories. Privacy is an inherent part of human personality and inalienable from a human-being. Article published in the Harvard Law Review clearly mentions the danger of curbing this right. A paralysis of Constituent Assembly debates reveals that privacy was given utmost importance and hence, right to privacy although not expressly mentioned in the Indian constitution, is an inherent right under Right to life guaranteed by Article 21 of the Indian Constitution. Declaring right to privacy as a fundamental right will have a positive impact on some of the existing laws in India like that of homosexuality under Section 377 of the IPC. Right to privacy has been given an international recognition some of them being Article 8 of European Convention and Article 12 of Universal Declaration of Human Rights. Right to privacy does not lie on the foundation of secrecy, it lies on the foundation of dignity.

INTRODUCTION

Jurists like Arthur Miller have stated that privacy is difficult to define because it is ephemeral. Many jurists like Aristotle and William Blackstone differentiate between private wrong and public wrong. Public wrong means wrong against the society and private wrong means wrong against the individual. The Greeks were the first to recognize the relationship between an individual and a State and also gave an overview that how the relationship between the two is shaped.Black’s Law Dictionary defines privacy as, “right to be let alone; right of a person to be free from unwarranted publicity; and right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned.” Privacy right is a facet of human right and hence, it is inalienable from the personality of a human-being. Privacy is not a new right that needs introduction; it is as old as the common law and needs legal recognition. It is so deeply embedded with liberty and dignity of an individual that it cannot be denied the status of a fundamental right. The idea of liberty in a democratic nation would be vague if privacy is not given the status of a fundamental right. According to Justice Krishna Iyer, “Personal liberty makes for the worth of human person”. Hence, the notion of dignity and liberty are not independent of privacy.

Right to privacy is a right which an individual possesses by birth. Privacy simply means the right of an individual to be left alone which is recognized by the common law. The notion of privacy is sometimes ambiguous because of the different historical theories of privacy given by three different groups of eminent jurists. While one group of jurists including Douglas, Blackmun regarded privacy as protection of individual liberty, another set of jurists including Black and Rehnquist adhered to non-recognition of some unrecognized substantive due process rights as fundamental. The third group of justices including Justice White and Justice Harlan regarded privacy as a view to protect the family from governmental interference. However, the fact that privacy is an existing right just like any other human right cannot be denied.

Another view of the importance of right to privacy is that it is essentially considered to be a natural right. Natural Rights are those divine rights which are considered supreme to all other rights. Dr. W. Friedmann mentions that search of mankind for absolute justice and failure defines the history of natural law. The social contract theorists like John Locke in his book titled “Two Treatises on Civil Government” sowed the seeds of “right to privacy” by advocating the theory of natural rights which according to him were inviolable and inalienable. Thus, privacy finds its origin in the natural law theories. [1]

DEVELOPMENT OF RIGHT TO PRIVACY IN INDIA

The Right to Privacy has been very much debatable in India because the Indian Constitution does not expressly grant Right to Privacy. The drafters of the Indian Constitution put forth Right to life as an essential right. The Supreme Court of India has also given various interpretations to Article 21 of the Indian Constitution expressly granting Right to life to all the citizens of India and with the growing times, right to life has been given too much expanding horizon with so many other rights coming within its ambit like right to speedy trial, Right to shelter, and many others. The explanation given by the Apex Court to “life” and “liberty” under the Indian Constitution has always been expansive to the extent that it does not mean mere animal/physical existence. This view also conforms to the 5^th and 14^th Amendment to the US Constitution.

The Preamble of the Indian Constitution guarantees liberty of thought, expression, belief, faith and worship to all the citizens of the country. This in itself reveals that how important and expansive the term “liberty” was for the drafters of the Indian Constitution. A paralysis of Article 21 of the Indian Constitution which includes the word “personal liberty” reveals that for an individual to lead a dignified life, his/her liberty should be protected which ultimately demand Right to privacy to be given legal recognition. The Supreme Court of India has time and again emphasized to give an expansive interpretation to the term “personal liberty” under Article 21 of the Indian Constitution. The Court has stated, “The expression personal liberty is of widest amplitude covering a variety of rights”.[2]

The question to recognize a right to privacy arose in Kharak Singh v. Sate of U.P. AIR 1963 SC 1295 wherein Justice Subbarao in his minority opinion expressed a need to recognize such a right even though it is not expressly granted by the Constitution of India. The petitioner, in the afore-mentioned case, was put under surveillance because of his criminal activities. The surveillance was to keep a watch at the petitioners’ house which also involves secret visits to the petitioners’ house at night. He challenged such provisions of Secret and domiciliary visits of the U.P. Police Regulation as a violation of his right to privacy.  The Court, however, refused to give recognizition to right to privacy reason being that the Indian Constitution does not give express recognition to any such right. The same view was observed by the Apex Court in M.P. Sharma v. Satish Chandra AIR 1954 SC 300. These views somehow diverted from the views of U.S Supreme Court wherein Justice Frankfurter believed that security of one’s privacy is basic to a free society and hence, it should be protected from unreasonable intrusion from police authorities.

Privacy of an individual needs to be protected as long as it does not adversely affect the public at large. Maintaining social order is the first and the foremost objective of law. Fundamental rights cannot be granted, setting aside the norms set for maintaining social order. However, with the growing information technology and arbitrary use of powers by the Government officials, recognition of such a right is essential but then obviously privacy cannot be an absolute right. Hence, it is important to mention another observation of the Supreme Court in this regard- In Govind v. State of M.P 1975 SCC 148; the Court laid down the following observation-

• Court cannot completely rely on a right which is not expressly granted by the Constitution. If the Court did so then it would compel the citizens to question the judicial reliability.
• Right to privacy cannot be an absolute right and it has to comply with the “state interest test”.
• Surveillance cannot be said to be violating right to life and also right to privacy because only those criminals who are suspected of committing a crime are put under surveillance. This step is necessary to prevent the commission of further crimes.

But the underlining principle in the said case can be said to be that the Court unlike previous other cases did not completely deny the existence of a right of privacy. With the increasing number of incidents with regards to infringement of privacy, it was evident for the Apex Court to give recognition to this right. The saying that law should protect an individual both from person and property is in existence from the common law times. However, the biggest challenge before the Court of Justice was how to maintain the balance of between such a right, public order and also other rights guaranteed by the Constitution. In 1995, another issue regarding the recognition of such a right came before the Supreme Court in Auto Shanker case[3] where the publication of autobiography of an incarcerated person was in question. His autobiography mentioned few instances of relationship existing between him and jail authorities. The Chief Inspector General, however, contended that whatever was mentioned in the autobiography was false and that there can be no publication of the same.

The following were the two major issues before the Court-

• Whether a person writing an autobiography without the previous approval of authorities’ amount to infringement of right to privacy of the other person?
• Whether a government official (Chief inspector general in this case) prevent an incarcerated person from publishing his own autobiography taking advantage of the fact that the prisoner has no legal means to fight against the same.

The Supreme Court, in the above mentioned case recognized right to privacy as a distinct right under the tort law and mentioned that there are remedies available for the same under the tort law. The Court said if the prisoner is prevented from publishing his autobiography then there would be an infringement of Freedom of speech and expression of the petitioner. Hence, the jail authorities cannot prevent the prisoner from publishing the same. Justice Jeevan Reddy expressly mentioned that Right to privacy is an underlying/inherent right granted under Article 21 of the Indian Constitution. With regards to the conflict between freedom of speech and expression and Right to privacy, the court laid down that right to privacy is subject to certain exceptions. If anything is other than “public records” or “court records” is published then it would definitely lead to infringement of privacy of other person. Moreover, publication against someone out of malicious intention would also amount to infringement of right to privacy of that person.

Taking note of the above-mentioned cases, the Supreme Court finally postulated the importance of such a right as an essence of individualism. The right exists as old as the social-contract theory, but the only reason of it not being legal recognition was because of oodles of conflict arising in the way. John Locke, a well-known jurist, acquainted us with the theory of “tabula rasa” which riveted our attention to the fact that an individual is free is to decide the substance of their character and free to guide their own souls. In People’s Union for Civil Liberties v. Union of India[4], the Court mentioned as follows-

“We have; therefore, no hesitation in holding that right to privacy is a part of the right to “life” and “personal liberty” enshrined under Article 21 of the Constitution. Once the facts in a given case constitute a right of privacy, Article 21 is attracted. The said right cannot be curtailed “except according to procedure established by law”.

JUSTICE K.S. PUTTASWAMY v. UNION OF INDIA AND ORS : A CRITICAL ANALYSIS

Law cannot remain static. Various changes in the political, economic and social life of individuals demand the law to be dynamic. The economic theory of “laissez faire” gained popularity in the 18^th and the 19^th centuary. This theory implied no government interference in commercial transactions. It gave monopoly status to the enterprises to act independently without any governmental interference. These theories can be regarded as one or the other form of right to privacy. Louis Brandeis and Samuel Warren first mentioned about privacy and the issues surrounding it in an article published in the Harvard Law Review dated December 16, 1860. The article took into consideration a broad look into a man’s spiritual and intellectual behavior and concluded that right to privacy is a facet of right to life.

The Supreme Court of India recently delivered a judgment that right to privacy is a fundamental right which definitely created a fuss. Amid so many controversies surrounding the said right, privacy was finally declared a fundamental right which is embedded in Article 21 of the Indian Constitution guaranteeing right to life. The Unites States of America initially had sector specific privacy laws. Later on, it took different forms and developed. With the growing use of information technology in almost all the sectors, there is definitely a need to recognize such a right. Hessen (one of the German States) was the first country to enact data protection laws (in 1970) which was ultimately to safeguard the privacy of the masses. From then till now, there are nearly 40 or more countries which have enacted such laws.

FACTS- The government of India decided to provide to all its citizens a unique identity called Aadhar which is card containing 12 digit Aadhar number. The registration for this card was made mandatory so as to enable the people to file tax returns, opening bank accounts etc. However, the registration procedure for such card required the citizens to give their biometrics such as fingerprints, iris scans etc. Retired judge justice K.S Puttaswamy filed a petition challenging the constitutional validity of this Aadhar project contending that there was a violation of right to privacy of the citizens since, the registration for Aadhar is made mandatory. As a result of which all those who don’t even want to register themselves, are not left with any option. Moreover, there is a lack of data protection laws in India and hence, there are chances that the private information of the people may be leaked if proper care is not taken. This will lead to violation of right to privacy of the individuals.

JUDGMENT AND ANALYSIS

The Judgment of the Apex Court that Right to privacy is a fundamental right is correct. However, it is true that privacy cannot be an absolute right. For instance, surveillance is important to prevent crime in the society. An individual cannot simply argue that his privacy is being violated if larger public interest requires keeping him/her under the surveillance. The major question is that the Supreme Court of India, unlike the USA, has still not recognized the doctrine of waiver, which facilitates that an individual can waive off the fundamental rights if larger public interest requires so. The reason behind this being that it would defeat the purpose of the Constitution which implies that fundamental rights are absolute. So, how can privacy be a fundamental right if it is not absolute? As already mentioned above, privacy is not only a right, it is a natural and inalienable right. It cannot be denied the status of a fundamental right because liberty without privacy and dignity would be of no use.

SURVEILLANCE AND PRIVACY

A person is kept under surveillance so that his/her activities could be traced and that the person does not commit any further crimes. This definitely raises a question on the infringement of right to privacy of that person. As already discussed earlier, the issue first came up in Kharak Singh’s case. However, just to protect one person’s right to privacy, larger public interest cannot be ignored. Some of the things to be taken into consideration before keeping a person under surveillance are-

• The Criminal background of the person. Whether the person has actually committed such crimes which require keeping him/her under surveillance.
• The frequency of the person committing crime i.e. whether he/she commits crime repeatedly at frequent intervals or not.
• The level of crime committed i.e. it is of such heinous nature for the security of public it is necessary to trace the activities of the person.

India does not have single exhaustive legislation governing the surveillance activities of the Government. Everyday data is being transferred to different agencies within the country and there is increasing number of cyber attacks which ultimately create a threat in the minds of general public.  After 2008 Mumbai attacks, the counter terrorism measures were at peak which led to the introduction of National Intelligence Grid. The grid favors transfer of information between 22 Central Intelligence Agencies in India.  Emphasis must also be laid on Crime and Criminal tracking network System (CCTNS) which enables sharing of information amongst different police stations wherein one police station may have access to the information stored on the server of other police stations.

All these routine activities demand stringent laws to ensure the privacy of the individuals. Privacy right cannot be differentiated and this cannot be contended that particularly if a person has committed crime then his/her privacy need not be protected.  The solution to this therefore lies, in the “reasonable expectation of privacy test” introduced by Justice Harlan. [5] This test reveals that privacy of a person can never be violated if the person has a reasonable expectation of privacy at that particular place. Dwelling home of a person can be one of the instance of such place. One of the requisite of this being that an expectation of privacy at such a place must be recognized by the society.

Another department of the Government working for surveillance is Indian Computer Emergency Response Team (CERT- In). It is not precisely an exclusive surveillance department of the Government but it works to ensure cyber security. It finds its origin in the Information technology Act, 2008 and comes into play only after an attack is there on the Indian server by a foreign agency/individual. Apart from it, the Indian telegraph Act also imposes certain restrictions by defining the circumstances under which the government can conduct surveillance. This would prevent arbitrary invasion of a person’s privacy. Hence, it can be concluded that even though there are some instances where the law regulating surveillance exists, yet there need to be a specific legislation after privacy has been declared a fundamental right. In countries like USA, the President has been given exclusive power to grant electronic surveillance and this may also be granted after a court order. UK has a specific legislation called Regulation of Investigatory Powers Act, 2000 laying down the provisions for regulating surveillance.

Most of the times, surveillance is discussed on a national level only. However, it must be noted that there with the growing use of information technology, mass surveillance instances have also increased. However, due to the lack of any international convention on mass surveillance, the countries feel free to carry out such mass surveillance activities on their own free will. This ultimately violates the privacy of individuals. This view is based on the Lotus Approach specified by International court of Justice wherein the Court expressly said that whenever there is no international legislation dealing with any matter, the State is free to choose their own actions and carry out the same. This is view has also given rise to instances of mass surveillance which ultimately violates privacy.

HOMOSEXUALITY AND PRIVACY

More than 30 countries around the world have decriminalized same sex marriages including countries like Ireland, Netherlands, Canada and many others. Section 377 of the Indian Penal Code penalizes sexual activities against the order of nature. The term mentioned in the said section i.e. “against the order of nature” brings within its ambit the Lesbians, Gays, Bisexuals and Transgender (LGBT) Community. This implies that sexual intercourse between two people belonging to this community would be punished in India. Some of the instances of being-

• A truck driver was punished to commit sodomy with a boy twice. Gujarat High Court imprisoned the driver and also charged fine.[6]
• Emission of semen in the mouth of victim would also constitute unnatural intercourse.[7]

Thus, all types of unnatural offences are punished in the country. However, the question that comes to the mind after declaration of right to privacy as a fundamental right is that when privacy is a fundamental right then how can a private activity like the so called “unnatural sex” be punished? There is an immediate need to decriminalize homosexuality in India after declaring privacy as a fundamental right. Law in itself cannot be contradictory, otherwise how will it maintain social order?

The issue regarding decriminalization of homosexuality was recently raised in 2009 when Advocate Mr. Anand Grover filed a writ petition in Delhi High Court contenting that Section 377 of the IPC was violating various articles of the Indian Constitution and hence, it should be repealed. The petition was filed on behalf of an NGO Naz Foundation. The Delhi High Court decriminalized homosexuality. This judgment was later on challenged in the Supreme Court and the major issue once again which was raised where again the constitutional validity of the said section was questioned. However, proving the judgment wrong, Apex court declared that the said section is not unconstitutional. It does not make gender discrimination. It grants punishment solely on the basis of conduct of an individual. [8]

The Government and the Supreme Court must set up a committee to probe into the increasing number of same sex couples within the country. The Naz Foundation judgment was delivered in the year 2014 which definitely needs a review after declaration of privacy as a fundamental right. Consensual sex between two individuals in private even if it is unnatural should not be penalized. 172^nd Law Report also recommended revoking Section 377 of the IPC. The major issue that marriage is for procreation of children may not be brought up in this case. Countries like Israel have recognized gay surrogacy. Hence, this would not be a major issue.

AADHAR AND PRIVACY

The main reason why the case of infringement of privacy was filed was because the Government of India asked for biometrics of the citizens to provide them with Aadhar Cards. The Aadhar scheme makes it mandatory for all the citizens to have the Aadhar Card otherwise they would suffer problems with respect to opening bank accounts, payment of taxes etc. The major contention was that the Aadhar Act does not make the enrolment for Aadhar mandatory and hence, the said scheme is not violating any right because all the people are giving their biometrics voluntarily. Light must be thrown on the fact that, the Government of India definitely provides various social security benefits to the poor’s of the country. If a citizen does not obtain Aadhar then he/she would be deprived of such benefit. This would ultimately deprive them of the benefits and would create different unreasonable classes of citizens which would again violate Article 14 (granting Right to Equality) of the Indian Constitution.

Another reason for the invalidity of the said scheme is that there is definitely a trace of undue influence that can be found here. The doctrine of colourable legistation founds its genesis in the principal that what cannot be done directly can also not be done indirectly.  The Aadhar Act is definitely a form of colourable legislation wherein the Government indirectly and secretly has an undue influence on certain sections of the society. When a citizen is made to choose between privacy and social welfare schemes, then definitely they would choose food and shelter first.

Another issue concerning the said issue being that even after introduction of such a scheme, the Government did not make any stringent laws to safeguard the personal data of the citizens. Although, the information technology act (IT Act) has been amended several times to enhance the data protection laws, there should be stringent laws that still needs introduction to implement the Aadhar Scheme. The Government must be made bound by law to reveal the reason for collection of data as well as must take the responsibility for protection of the same.

One of the solutions to prevent such unauthorized leak of personal data can be by allowing anonymous access to services and anonymous surfing of internet. However, this can also create many problems and would give rise to more cyber crimes. Taking into consideration various international conventions like Article 8 of European Convention and Article 12 of Universal Declaration of human rights, the declaration and recognition of privacy as a fundamental is the need of the hour. The Supreme Court of India has given a right judgment and stringent data protection laws needs implementation. The privacy bill pending in the Parliament must be passed after the judgment.

With the increase in the exchange of Trans-border data, the Organisation for Economic Co-operation and Development (OECD) has given various guidelines with respect to protection of personal data , some of them being-

• The data must be collected with the lawful consent of the person giving such data and must be used for lawful means.
• The personal data must not be leaked or transferred to some other person without the prior permission of the person giving data.

Hence, the said Aadhar Scheme also violates various international conventions also. Various countries that have specific data protection laws are as follows-

• Canada which has its own Personal Information Protection and Electronic Documents Act, 2000.
• K. Data protection Act, 1998
• Privacy Act, 1993 of New Zealand

PATIENT INFORMATION AND PRIVACY

In 2003, cross-border flow of personal information became apparent, when University of California, San Francisco was threatened by a data transcriber in Pakistan to reveal the patient information unless they paid their back-wages. [9] One of the major issues surrounding right to privacy is the revelation of patient’s personal information by medical practitioners. It should be noted that India has no specific laws governing this field. The Indian Medical Council Regulations require that every medical practitioner should maintain confidentiality of patient’s information. In India, the issue came up in X v. Z Hospital where the doctor revealed to a patient’s Fiancée that the patient is HIV positive. The patient did not get married to that particular person and later on sued the doctor contending that this was an infringement of right to privacy. Court, however, had a different view and stated that the doctor cannot be said to have been liable by for any breach of privacy right because this revelation is necessary from the point of view of public welfare.

Hence, the set out principle would always remain the same that public welfare will prevail over individual interest. The 2011 amendment to the IT act recognized and defined “sensitive personal data” for the first time and also mentioned that such type of data cannot be revealed without the prior consent of the patient. The European Courts on Human Rights first recognized such need of protecting personal data of patient in I v. Finland wherein the court did not allow free access to patient’s information.

CONCLUSION & SUGGESTIONS

With the recognition of privacy as a basic and fundamental right of an individual, India definitely cannot lag behind. The judgment of the Supreme Court is correct and true and with the growing information technology, privacy needs to be fundamental right. However, it is also true that stringent laws needs introduction after this. An expert committee must be formed to probe into the matter as to how many privacy infringement issues are taking place in India and accordingly legislation exclusively dealing with such problems must be enacted. Data protection laws must be made more stringent and must conform to OECD guidelines. Only one or two sections like section 43A of the IT Act won’t be sufficient to regulate the data protection at such a large scale when schemes like Aadhar are to be implemented.

When it comes to conflict between infringement of privacy and public interest, reasonable care must be taken to choose as to what is more important. Individual interest cannot override public interest. The maxim “salus populi est suprema lex” which means public welfare is the highest law must be maintained in the democracy. Jurisprudentially also, Bentham gave the pain and pleasure theories. Hence, the Government must take into account the pleasure of larger number of people should try to inflict lesser pain. There must be regulation on the arbitrary use of power by the Government with respect to personal information of the people. One of the greatest advantages that India has is that the Privacy bill, 2011 is still pending in the Parliament. Hence, relevant amendments can be made to it before enacting it as legislation.

As far as homosexuality is concerned, Indian should also come amongst the list of countries and should decriminalize homosexuality. Privacy as a fundamental right cannot be made an exception to a particular community just because they have different traits. As far as consensual sex takes place between two individuals in closed room which does not hamper social life, homosexuality is not something bad. There should be strict guidelines with respect to tapping of telephone and permission from the higher authority must be made mandatory.

 References

[1] Jana Kalyan Das, Philosophical foundations of The Right to Privacy, http://www.livelaw.in/philosophical-foundations-right-to-privacy/ (last seen December 23, 2017 at 7:55 p.m.)

[2] Maneka Gandhi v. Union of India AIR 1978 SC 597 (Supreme Court of India).

[3] Rajagopal v. State of Tamil Nadu AIR 1995 SC 264 (Supreme Court of India).

[4] AIR 1991 SC 207 (Supreme Court of India).

[5] Katz v, United States 389 US 347 (Supreme Court of United States).

[6] Chiranjit Singh v. State of Himachal Pradesh Cr Lj 1986 Guj HC 173 (Gujarat High Court).

[7] Basantlal v. State AIR 1968 Guj HC 252. (Gujarat High Court).

[8] Suresh Kumar Kaushal v. Naz Foundation AIR 2014 SC 563 (Supreme Court of India).

[9] Protecting Patient’s Information in India: Data Protection Laws and Challenges, 2012 (5) NUJS L REV 411,

http://www.scconline.com/TruePrint/J_2012_5_NUJS_L_Rev_411_shraddhat65_gmailcom_20171225_013128.pdf       (Last seen at December 24, 2017).