This Article is written by Pranit Bhagat pursuing BA LLB from ILS Law College, Pune. In this article, discusses the various dimensions regarding Right to Privacy nationally and internationally, reasonable restrictions, various case laws and its latest developments.

Introduction

Right to Privacy is encompassed under Article 21 of the constitution of India which is a requisite of right to life and personal liberty. Article 21 has a multi-dimensional scope under the Indian Constitution. In a historic judgement, the right to privacy was declared as a fundamental right protected under the Indian Constitution by the Supreme Court of India on 24 August 2017. A nine-judge bench of the Supreme Court in the case of Puttuswamy v. Union of India declared that the right to privacy is a fundamental right protected under Part III of the Constitution of India. It primarily focused on the individual’s right against the State for violations of their privacy. This landmark judgement will have consequences across both State and non-State actors and is likely to result in the enactment of a comprehensive law on privacy. Right to Privacy is a dynamic concept incorporated under provisions of various legislations and also embraces its various aspects. The in-depth study of the right to privacy shall bring light to the pros and cons with certain reasonable restrictions where the transgression of this right is not considered as an offence. In this article, we shall discuss the various dimensions regarding Right to Privacy nationally and internationally, reasonable restrictions, various case laws and its latest developments.

In Ancient India, the concept of privacy has been linked to the Indian Culture through Hitopadesh which enumerates that certain subjects like worship, sex and family matters should be protected from disclosure and are related to positive morality. Whereas in the modern times, Right to Privacy was discussed for the first time in the constituent assembly but later was not incorporated in the Indian Constitution. Since, 1960’s, the issue of privacy has been dealt with both as a fundamental right under the Constitution and as a common law right. In M.P. Sharma v. Satish Chandra case, 1954 The Supreme Court held that privacy is not a fundamental right while dealing with the power to search and seize documents from the Dalmia Group, dismissed the mere existence of a right to privacy on the basis of the Constitution. Later, in the case Kharak Singh v. State of Uttar Pradesh, Justice Subha Rao stated that Right to Privacy is an essential component of personal liberty but no such provision was incorporated nor declared as a fundamental right under the Indian Constitution. Finally, the decision taken in the case of M.P. Sharma vs. Kharak Singh was overruled in the case of K.S. Puttaswamy v. Union of India in 2017. Privacy had been rooted in our fundamental rights and it had never faced such a strong challenge of its existence.

What is Right to Privacy?

The right to privacy is an element of various legal traditions to restrain governmental and private actions that threaten the privacy of individuals. The right to privacy can also be defined as the concept where one’s personal information is protected from public scrutiny. The statutory laws have often protected the right to privacy. The right to privacy needs to be balanced against the state’s enthralling interests like the promotion of public safety and also improving the quality of life. There is no definite legal definition of the term ‘privacy’. Some legal experts defined privacy as a basic human right that is enjoyed by every human being by the virtue of his or her existence. Privacy can also be extended to other aspects like bodily integrity, personal autonomy, informational self-determination, protection from state surveillance, dignity, confidentiality, compelled speech, and freedom to dissent or move or think. Right to privacy as –

An Individual Right

Every individual is involved in a continuous personal adjustment process where he balances between the desire for privacy and the desire for disclosure and communication with others in light of the environmental conditions and social norms set by the society. It is believed that under a liberal democratic system, privacy has created a separate space from political life and allows personal autonomy while securing democratic freedoms of association and expression.

A Human Right:

Attempts have been made to reframe privacy as a fundamental human right with social value as an essential component in the functioning of democratic societies. Privacy is merely one good among many others and that the technological effect depends on the accountability of community and oversight. It is also believed that individual concepts of privacy have failed philosophically and in the policy. It is a social value of privacy with three dimensions: shared perceptions, public values, and collective components.

Universal Declaration of Human Rights

Article 12 of the Universal Declaration of Human Rights, 1948 explicitly states that:

“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, or to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

Landmark Case: Justice K.S. Puttaswamy v. Union of India:

A 91-year old retired Karnataka High Court Judge Puttaswamy brought light to the recent case of Right to privacy against the Union of India to determine whether the Right to Privacy was guaranteed as a fundamental right under the Indian Constitution. The government’s Aadhaar scheme (a form of uniform biometrics-based identity card) in which the government made mandatory for availing the government services and benefits was challenged in the Supreme Court. The issue was made on the basis that this scheme violated the right to privacy of an individual. Therefore, a Constitutional Bench was set up to determine whether there is a fundamental Right to Privacy within the provision of Article 21 of the Constitution of India. The petitioner argued before the bench that Right to Privacy is a fundamental right and should be guaranteed as a right to life with dignity under Article 21 of the Constitution while the respondents made submissions that the Constitution only recognized personal liberty which may include Right to Privacy but to a limited extent.

Key findings of the judgement

Right to Privacy – A fundamental right

The right to privacy is a fundamental right that can be derived from Articles 14, 19 and 21 of the Constitution of India and does not need to be separately articulated in the Constitution. It is a natural right which is an integral part of the right to life and liberty. An individual is protected from the interference of the State in their home, of their movements and over their reproductive choices, choice of partners, food habits, etc. Therefore, any action by the State that results in an infringement of the right to privacy is subject to judicial review.

Not an Absolute Right – Subject to Reasonable Restrictions

The fundamental right to privacy is not absolute and will always be a subject to reasonable restrictions. The State has the power to impose restrictions on this right to protect legitimate interests of the state but it can only do so by following the three-pronged test summarized below:

(i) Existence of a law that justifies an encroachment on privacy;

(ii) A legitimate State aim or need that ensures that the nature or the content of this law falls within the zone of reasonableness and operates to guard against arbitrary State action; and

(iii) The means adopted by the State are proportional to the objects and needs sought to be fulfilled by the law.

Other Incidental Implications

(i) The judgement is most likely to have an impact on the petitions pending before the Supreme Court on the de-criminalisation of homosexuality in India as it expressly recognises an individual’s right to privacy regarding his sexual choices.

(ii)The State shall not interfere in the food choices of an individual as it will have an impact on the various cases which are protesting the beef ban imposed by certain States.

(iii)The judgement made several observations on the complex relationship between personal privacy and big data, particularly in the context of how the judicious use of these technologies can result in the State achieving its legitimate interests with greater efficiencies.

Various aspects regarding right to privacy

Phone tapping and Right to Privacy

The Supreme Court has observed that the Courts will not be tolerating any safeguards through which the protection of citizen can be jeopardized. The police won’t be permitted to proceed by any unlawful or irregular methods. The tapping of telephones being a foray to the right to privacy and freedom of expression. Also, the right to hold a telephone conversation in the privacy of one’s home or office without interference can also be claimed as a right to privacy. Hence, The Supreme Court held that telephonic conversations are private in nature and hence tapping of phones amounts to violation of one’s own privacy.

Gender Priority on Privacy

The right to privacy includes another aspect of gender priority which implies that not only the prevention of incorrect portrayal of private life but also the right to prevent it from being depicted at all. A woman of easy virtue is also entitled to privacy and no one has the right to invade her privacy. It is the basic right of every female to be treated with decency and proper dignity.

Health and Privacy

Privacy is an important matter of concern in the health sector as Health information not only includes information about the health or disability, but also the information related to health services that one may receive. The information regarding health is considered highly sensitive by many people and also the right to life is so important that it supersedes the right to privacy. Therefore, a doctor is under an oath or under medical ethics for not to disclose the secret information about the patient as the disclosure will adversely affect or put in danger the life of other people. The public disclosure of true facts in such a situation may lead to the spar of one person’s right to be let alone and the other person’s right to be informed.

Right to Privacy in context to privacy by the state

The Kharak Singh case was the first case that alarmed the basis of the right to privacy in India. The Supreme Court checked the constitutionality of certain police regulations that authorize the police to do any domiciliary visit and surveillance of persons with a criminal record and thus, the constitutionality of this provision was challenged in the court of law as it was violative of the term ‘personal liberty ‘under Article 21 of the Constitution of India.

Privacy in the context of sexual identities

In the case of Naz Foundation v. Union of India, The Delhi High Court struck down Section 377 of the Indian Penal Code, 1860 and decriminalized sexual relations between consenting adults and interference by the state only if the state was able to establish a compelling interest protected under Article 21 of the Indian Constitution. The Supreme Court of India also held consensual sexual conduct between adults in private is constitutional In the case of Navtej Singh Johar v. Union of India.

Recent Developments in Right to Privacy

The recognition of the right to privacy under Article 21 as a fundamental right is enough to encroach it into any sphere of activity. The extent to which privacy matters in individuals is subjective and differs from person to person. The advancement of technology and the use of social networking sites has made it extremely difficult for the intrusion of such a right. Moreover, Section 43 of The Information Technology Act, 2000 also includes Right to Privacy which makes unauthorized access into a computer resource as an offence. Article 19(1) (a) of the Indian Constitution includes right to press which can also come in conflict with the right to privacy and thus, the concept of ‘public interest’ and ‘public morality’ and other provisions mentioned under Article 19(2) of the Constitution of India comes into the picture. The publication of personal information of an individual without his approval is justified only if it forms a part of public records including court records. The right to privacy may also come in conflict with the investigation of police and therefore Various tests such as Narco-Analysis, Polygraph Test or Lie Detector Test and Brain Mapping tests make an unwarranted intervention into the Right to Privacy of a person. The Supreme Court acknowledged the distinction between physical privacy and mental privacy In case of Selvi and others v. State of Karnataka. This case also establishes the intersection of the right to privacy with Article 20(3) of the Constitution.

Conclusion

Right to privacy is a requisite of right to life and personal liberty under Article 21 of the Indian Constitution. It is not an absolute right and can be subject to certain reasonable restrictions for prevention of crime, public disorder and protection of others. When there’s a conflict between these two derived rights, the one, which advances public morality and public interest, will prevail. The courts to treated the Fundamental Rights as water-tight compartments like in the case of A.K. Gopalan v. State of Madras but later with the relaxation of this stringent stand could be felt in the decision of Maneka Gandhi v. Union of India, the right to life was considered not to be the epithet of mere animal existence, but the guarantee of a full and meaningful life. Every person or individual needs his/her private space and thus, to give each individual that right, the State accordingly is giving those private moments to be enjoyed with those whom they want without the prying eyes of the rest of the world. With every passing day, this right is becoming more and more essential as all our lives being exposed to the media through social networking sites or the spy cameras, the protection is to be given to everyone and it should act in such a manner that no one should think to intrude the right to privacy of the individuals. The privacy should be protected in every aspect but it is subjected to reasonable restrictions under the provision of the Constitution of India and other relevant statutory provisions in force. One needs to understand that privacy should be kept in mind and within the confined limits not to explain to the rest of the world.

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