Right to Privacy in India: Evolution and Legal Analytical Study

“Privacy is an inherent human right, and a requirement for maintaining the human condition with dignity and respect.”- Bruce Schneier

The Right to Privacy is an important ingredient of the Right to Life and Personal Liberty embodied under Article 21 of the Constitution of India. The term ‘privacy’ is a dynamic concept which needed elucidation. The scope of Article 21 is multi-dimensional under the Indian Constitution. The Right to Privacy is also recognized under various other laws viz. Law of torts, Criminal Laws as well as Laws relating to Property.

This article will dwell on various dimensions regarding Right to Privacy- national and international aspect, reasonable restrictions, various case laws and latest development.

Introduction

According to Black’s Law Dictionary, Right to Privacy denotes “right to be let alone”; ‘the right of a person to be free from any unwarranted interference.’

Gillian Black, in her book on Publicity rights[2], propounded that ‘privacy is the desire of an individual to be free of intrusion.’ In the European Convention on Human Rights, the following can be found in Article 8 (1):

“Everyone has the right to respect for his private and family life, his home and his correspondence.”[3]

In R v. Edwards[4], Justice Cory of Canada’s Supreme Court used these words to define privacy:

“… the state or condition of being alone, undisturbed, or free from public attention, as a matter of choice or right; freedom from interference or intrusion.”

“An important aspect of privacy is the ability to exclude others from the premises. The right to be free from intrusion or interference is a key element of privacy.”

Every human being has certain confidential and concealed part of their life, which can’t be broadcasted at public domain. The right to privacy has gained impetus throughout the world and has been recognized as a fundamental right to privacy. The cogitation on right to privacy commenced after the “Warren and Brandies” debate on right to privacy. Countries like USA, UK, India, and various International organizations such as UDHR, ICCPR, ECHR, have recognized the right to privacy.

Right to privacy has travelled an elongated journey to secure the status of fundamental right in Indian Constitution. The Constitution of India had not guaranteed the right to privacy as an absolute fundamental right to the citizens but the Supreme Court has elucidated the right to privacy as a part of the right to life and personal liberty under article 21 of the Indian Constitution and the problem relating to the  right to privacy has been resolved by the Indian judiciary in the recent judicial pronouncement in the case of Justice K.S Putthaswamy v. Union of India wherein right to privacy has been recognized as a fundamental right.[5]

Evolution of Right to Privacy as Fundamental Right-

Since India relied on American laws for the purpose of interpreting the privacy matters in Indian domain, it is crucial to have a thorough knowledge about USA Privacy laws. “Warren and Brandies” discussion was a commencement of deliberation on inalienable right of privacy in USA. The Constitution of United States of America mentions about sufficient inalienable rights including the right to liberty and pursuit of happiness which should be protected by various rules, regulations and statutes by the government but privacy laws were lacking in USA and then Warren and Brandies mentioned about application of common laws for the protection of these rights so as to protect the privacy of an individual. The help of common laws was acquired because common laws contained the right to be free from the harassment and exposure and it was the only available remedy for protection of private matters. Right to privacy was subject to the absolute right to free speech and it was unequivocally mentioned in the first amendment of bill of rights, so from this the inference can be drawn that right to privacy was an implicit one in USA Constitution.[6]

The discussion of Warren and Brandies on right to privacy explained the actions that fall under the purview of privacy invasion, and those actions are following;

  1. Intrusion into one’s private life and affair;
  2. Public disclosure of embarrassing private facts;
  3. Unwanted publicity of private individuals;
  4. Misappropriation of a name or likeness for financial advantage.[7]

Warren and Brandies propounded certain remedial mechanisms with respect to publication of one’s private affairs with certain exceptions.

  1. Privileged communications are the domain of libel/slander;
  2. Uttering gossip and oral communication are outside the purview of privacy rights;
  3. Approval to publication is an explicit defense; while
  4. Truth; and Malice are irrelevant to a breach of privacy action.[8]

Right to Privacy And Indian Constitution:

In the landmark case of Justice K.S. Puttaswamy v. Union of India, on 24th August, 2017, Supreme Court had given its verdict on Right to Privacy, declaring it as a fundamental right of a citizen, thus, putting an end to the ancient legal battle from nearly past 50 years.

Facts of the case:

This is a recent case in relation to Right to Privacy which was brought by 91-year old retired Karnataka High Court Judge K.S Puttaswamy against the Union of India before a nine-judge bench of the Supreme Court to determine whether the Right to Privacy was guaranteed as a fundamental right under the Indian Constitution. It was argued by the petitioner before the bench that Right to Privacy is a Fundamental right and should be guaranteed as right to life with dignity under Article 21 of the Constitution. Submission made by the respondent was that the Constitution only recognized personal liberty which may include Right to Privacy to a limited extent.[9]

Decision of the Supreme Court[10]

The nine-judge bench of the Supreme Court recognized that the Constitution guaranteed the Right to Privacy as an essential part of the right to life and personal liberty under Article 21.

Scope of Right to Privacy

This right is an expansion of right to life. Since no right is absolute and every right is subjected to some restriction; this right has also some restrictions. The following are the main exceptions to the right to privacy:

  • Search and Seizure

In M.P. Sharma Case[11], Supreme Court avoided to follow the American way to invalidate the ‘search and seizure’ on the ground that they do not have the power to import such law, it is a work of legislation. Thus, a power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that is necessarily regulated by law.

  • Reasonable Restriction

In Govind Case[12], Supreme Court put restriction on the fundamental right against the reasonable restrictions to prevent the commission of crimes.

  • Public Record

After R. Rajagopal alias R. R. Gopal v State of Tamil Nadu[13] which explained the issue of right to privacy in detailed. It was observed that the right to privacy no longer subsists in case of matter of public record including Court records.

Various Legal Aspects regarding Right to Privacy:[14]

  • Phone Tapping and Right to Privacy

Phone tapping and right to privacy is affected by new technological developments relating to a person’s correspondence and thus, has become a debating issue. In R.M. Malkani v. State of Maharashtra[15]the Apex Court observed that the Court will not tolerate safeguards for the protection of the citizen to be imperiled by permitting the police to proceed by unlawful or irregular methods. Telephone tapping being foray of right to privacy and freedom of expression and also government cannot impose restrictions on publishing defamatory materials against its officials that make it violative of Article 21 and Article 19(1) (a) of the Constitution.

In People’s Union for Civil Liberties v. Union of India[16], Justice Kuldip Singh observed that right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as right to privacy. In this case the Supreme Court held that telephonic conversations are private in nature and hence phone tapping amounts to violation of one’s own privacy.

  • Gender Priority on Privacy

Another aspect of right to privacy includes gender priority that implies not merely preventing the incorrect portrayal of private life but the right to prevent it being depicted at all. Even a woman of easy virtue is granted privacy and no one has the right to invade her privacy. Every female has the basic right to be treated with decency and proper dignity.[17]

But in case of Harvinder Kaur v. Harmander Singh[18] the Delhi High Court held that though sexual relation constitutes most important attribute of the concept of marriage, but they do not constitute its whole content.

  • Health and Privacy

Health is an important matter of concern in relation to privacy and is also one of the major aspects of right to privacy. Information relating to health not only involves information about the health or disability, but also the information related to health service one may receive. It’s a human propensity that the information regarding health is considered highly sensitive by many people. The right to life is so important that it supersedes right to privacy. A doctor is under an oath for not to disclose the confidential information about his patient as the disclosure may adversely affect the life of others as well.[19]

  • Right to Privacy in context of Privacy by State

The first case that alarmed the basis of right to privacy in India was the Kharak Singh case[20], where a seven judge bench of the Supreme Court was required to check the constitutionality of certain police regulations that authorizes the police to do any domiciliary visit and surveillance of persons with criminal record and the constitutionality of the provision was challenged in the above case as it was violative of under the term ‘personal liberty ‘under Article 21 of the Constitution of India.[21]

  • Power to Search and Seizure[22]

The Court held that any legislation obtrusive on the personal liberty of a citizen must in order to be constitutional, laid down the triple test by the Supreme Court in the case of Maneka Gandhi v. Union of India.[23]

This triple test requires any law interfering in the concept of Personal Liberty under Article 21, to meet certain standards. These are:

  1. It must prescribe a procedure;
  2. The procedure must withstand the test of one or more of the fundamental rights conferred under Article 19, which may be applicable in a given situation.
  3. It must also be liable to be tested with reference to Article 14.” The impugned provision was held to have failed this test. Whether the financial records were stored in a citizen’s home or in a bank were not of so much material.
  • Privacy in context of Sexual Identities

One of the aspects relating to right to privacy, which has embedded its space under Article 21 of the Indian Constitution was read down in the case of Naz Foundation v. Union of India[24], in which the Delhi High Court ‘struck down’ Section 377 of the Indian Penal Code, 1860, in order to decriminalize a class of sexual relations between consenting adults and intrusion by state only if the state was able to establish a compelling interest, was one of the critical arguments, protected under Article 21 of the Indian Constitution.

In a recent case of Navtej Singh Johar v. Union of India[25]The Supreme Court of India held that Section 377 of Indian Penal Code, 1860 insofar as it applied to consensual sexual conduct between adults in private is constitutional.

  • Right to Privacy and Security of State [26]

India implemented a broad range of data sharing and surveillance schemes after the Mumbai  terror attacks in 2008 in order to increase public safety by tackling crime and terrorism.

Recent Developments in Right to Privacy[27]

Once after the recognition of right to privacy under Article 21 as a fundamental right, it will be enough to encroach into any sphere of activity. With the advancement of technology and the social networking sites the intrusion of such a right has become extremely difficult. The extent to which privacy is significant in individuals is subjective and differs from person to person. Section 43 of The Information Technology Act, 2000 includes Right to Privacy which makes unauthorized access into a computer resource an offence.

Article 19(1) (a) of the Indian Constitution includes freedom of press which sometimes comes in conflict with right to privacy. Then the question arises as to where is a conflict between Right to Privacy of any individual and right to press of another person?

Such question is well answered by bringing the concept of ‘public interest’ and ‘public morality’ and other provisions mentioned under Article 19(2) of the Constitution of India. The dissemination of personal information of a person without his consent is justified, if such information forms part of public records including Court records.

In various aspects, right to privacy may come in conflict with the investigation of police. Several tests such as Narco-Analysis, Polygraph test or Lie Detector test and Brain Mapping tests make unwarranted intervention into the Right to Privacy of a person.

In Selvi and others v. State of Karnataka[28] the Supreme Court acknowledged the distinction between physical privacy and mental privacy and also this case establishes the intersection of the right to privacy with Article 20(3) of the Constitution.

The Personal Data Protection Bill, 2018

A final report and a draft bill were released in July 2018, which was called as the Personal Data Protection Bill, 2018. The Personal Data Protection Bill provided for the establishment of a Data Protection Authority to oversee activities that involve processing of data. The need to protect personal data under the fundamental right to privacy arose. There was a need to create a collective culture that foster a free and fair digital economy as well, and was to be taken into consideration, respecting the informational privacy of individuals, progress and innovation.[29]

Another objective behind the formulation of such a bill was to protect the autonomy of individuals in relation with their personal data. It should specify about the flow and usage of personal data in order to create a relationship between persons and entities processing their personal data and also laid down norms for cross-border transfer of personal data, alongside, it also provided remedies for unauthorized and harmful processing and ensured the accountability of entities processing personal data.

Conclusion:

The following inferences can be drawn from the above discussion that India depended upon the Constitution of United States of America for the interpretation of right to privacy within Indian sphere hence it can be said that American Constitution played significant role in molding of right to privacy in accurate shape. It was also observed that right to privacy is derived from right to life and personal liberty and the recent judicial pronouncement about recognition of fundamental status of right to privacy has provided a constitutional safeguard to private and confidential information and violation of said right will result in stringent legal action against the infringer. The purpose behind establishment of right to privacy is with regard to protection of personal information shared on digital platform and since India doesn’t have privacy law as such, fundamental status of privacy will protect this right from being violated by others. The effort of Supreme Court should be appreciated because providing the fundamental status was a formidable task and despite of various protests and problems, it succeeded in giving the right space to the right to privacy and now confidential information of private individuals will be under the protection and unauthorized invasion in private matters will result in rigid punishment.

[1] 5th Semester LL.B, University Law College, Gauhati University, Guwahati (Assam), [email protected]

[2] Black, Gillian, Publicity Rights and Image (Oxford: Hart Publishing, 2011), page 61-62

[3] http://www.duhaime.org/LegalDictionary/P/Privacy.aspx

[4] R v. Edwards (1996) 1 SCR 128

[5] Shubham, “Evolution of Right to privacy in India”,available at:http://www.legalserviceindia.com/legal/article-276-evolution-of-right-to-privacy-in-india.html(last visited on September 12, 2019).

[6] https://nationalparalegal.edu/UnderstandingWarrenBrandeis.aspx

[7] https://nationalparalegal.edu/UnderstandingWarrenBrandeis.aspx

[8] Shubham, “Evolution of Right to privacy in India”, available at:http://www.legalserviceindia.com/legal/article-276-evolution-of-right-to-privacy-in-india.html

[9] http://www.legalserviceindia.com/legal/article-676-legal-analysis-of-right-to-privacy-in-india.html

[10] http://www.legalserviceindia.com/issues/topic1609-justice-ksputtaswamyretd-vs-union-of-india.html (last visited on September 14,2019).

[11] https://www.newsnation.in/india/news/right-to-privacy-case-what-are-mp-sharma-and-kharag-singh-cases-that-sc-will-examine-before-pronouncing-verdict-180284.html

[12] Govind V State of Madhya Pradesh, AIR 1975 SC 1378

[13] AIR 1995 SC 264

[14] http://www.legalserviceindia.com/legal/article-676-legal-analysis-of-right-to-privacy-in-india.html

[15] AIR 1973 SC 157

[16]  AIR 1997 SC 568.

[17]  Dr. P.K. Rana,” Right to Privacy in Indian Perspective”

[18]  AIR 1984 DEL 66

[19] Supranote15

[20] 1963 AIR 1295, 1964 SCR (1) 332

[21] Astha Saxena, “Evolution of Right to Privacy as Fundamental Right”, available at:http://www.legalservicesindia.com/article/2445/Evolution-of-Right-to-privacy-as-Fundamental-right.html( last visited on September 12, 2019)

[22] ibid

[23] AIR 1978 SCR (2) 621.

[24]  160 Delhi Law Times 277.

[25]Decided on 06.09.2018, “available at: https://globalfreedomofexpression.columbia.edu/cases/navtej-singh-johar-v-union-india

[26] https://privacyinternational.org/state-privacy/1002/state-privacy-india

[27] http://www.legalserviceindia.com/legal/article-676-legal-analysis-of-right-to-privacy-in-india.html

[28] http://www.legalservicesindia.com/article/1630/Right-To-Privacy-Under-Article-21-and-the-Related-Conflicts.html

[29] ibid

This article is authored by Arpita Deb, Student of Bachelor of Laws (LL.B) at University Law College, Gauhati University.

Also Read – Transformative Constitutionalism – The Saga Of Social Change

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