Privacy is an inherent human right, and a requirement for maintaining the human condition with dignity and respect. Acknowledging the same, Indian constitutional jurisprudence witnessed very fascinating development in the post maneka era, where the supreme court gave extended dimension to Article 21.
It was observed that the article 21 has proved to be multi-dimensional and was also considered as the heart of fundamental rights.
Fundamental rights are group of basic human rights enshrined in the Constitution of India which recognized by a high degree of protection from encroachment. The supreme court also held that it is not necessary for a right to be expressly stated in the constitution in order to consider it as a Fundamental Right. Ever changing Political, social, and economic factors of a country can also result in the recognition of new rights. The law develops along with growing demands of society. The constitution of India does not specifically prescribe any right to privacy as such. However, the right to privacy is one such right that came into existence after giving an extended meaning to the word life and liberty mentioned in Article 21.
It was asserted that these two terms are to be construed meaningfully rather than interpreted narrowly.
In order to understand the concept of right to privacy it is essential to know the meaning of the word privacy. Privacy refers to the right of a person to be let alone, the right of a person to be free from any unwarranted publicity; the right to live in the absence of any unwarranted interference by the public in matters with which do not concern the public necessarily. Right to privacy is a right enjoyed by all human beings simply by the efficacy of existence. The right is not limited to the body but also extends to physical integrity, individual autonomy, free speech, consent, objections and freedom to move or think.
The significance of the right to privacy has been realised by all modern societies and it has also been recognized that it is essential not only for humanitarian reasons but also from a legal perspective.
However, it is difficult to conceptualize the terms of privacy and right to privacy. Privacy is governed by the theory of natural rights and often corresponds to new information and communication technologies. Therefore, it is essential to throw light over the new dimensions of article 21 in order to understand the right to privacy and conflicts related to it.
Right to Privacy in India
Article 21 of the Indian Constitution states that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. The right to life enshrined under the article is exhaustive and is not limited to one interpretation.
Therefore, it is interpreted liberally to signify more than mere existence and consequently includes all those aspects of life which makes one’s life more meaningful, complete and worth living and right to privacy is one of these rights. The first instance wherein this issue was put up was in the case Kharak Singh v. State of UP. In this case the supreme court held that Regulation 236 of the UP Police Regulations was unconstitutional as it violated Article 21 of the Constitution. The court upheld that right to privacy was a part of right to protection of life and personal liberty, equating privacy with personal freedom.
The landmark judgement of Maneka Gandhi vs. UOI which acts as a bastion of the Right of Personal Liberty granted by Article 21 of the Constitution.
The judgement presented a new perspective towards the fundamental rights, it interlinked 3 most basic fundamental rights together and laid down following triple test for any law interfering with personal liberty:
● A procedure must be prescribed
● The prescribed procedure must withstand the test of one or more of the fundamental rights granted under Article 19 which may be applicable in a given situation and
● It must stand up to the test of Article 14.
The law and procedure interfering with personal liberty and right of privacy must also be just and fair and not arbitrary, fanciful or oppressive. The judgement widened the scope of Article 21 giving rise to a lot of new rights which have come into the ambit of this, thus revolutionizing and expanding the role of Fundamental Rights.
The case Govind v. State of Madhya Pradesh challenged the validity of the Madhya Pradesh Police Regulations related to surveillance, encompassing domiciliary visits, similar to Kharak Singh v State of Uttar Pradesh. Govind alleged that he was put under surveillance by the police on the basis of false accusations against him. It was held that surveillance through domiciliary visits need not always be an unreasonable encroachment on the privacy of a person by the virtue of the character and antecedents of the person subjected to surveillance also owing to the objects and the limitation under which the surveillance is made. The right to privacy deals with ‘persons not places.
The petition was dismissed by the Supreme Court but reform in the Madhya Pradesh Police regulations was advised as it was observed that they were ‘verging perilously near unconstitutionality’. In this case the right to privacy was accepted as an emanation from Art. 19(a), (d) and 21, but it was held that the right to privacy is not absolute right.
The landmark case of Naz foundation 2009 further developed the concept of right to privacy by striking down the provisions criminalising homosexuality sexual conduct on the basis of invasion of privacy.
Section 377 of IPC and Articles 14,19 and 21 were examined and it was ultimately held that there is no independent constitutionally guaranteed fundamental right to privacy under Article 21 of the Constitution but however the Naz Foundation judgment has provided an unduly broad ambit to the right of privacy.
It can be inferred now that right to life and liberty under article 21 includes right to privacy. Right to privacy denoted to a right to be let alone. Every citizen has a right to protect his own privacy or privacy of his family, marriage, procreation, motherhood, child-bearing and education and much more. Any person would be liable for damages if he publishes anything related to the matters above without the consent of the concerning person.
The Privacy Bill, 2011
The bill states, “every individual shall have a right to his privacy — confidentiality of communication made to, or, by him — including his personal correspondence, telephone conversations, telegraph messages, postal, electronic mail and other modes of communication; confidentiality of his private or his family life; 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 individual.”
The bill safeguards the citizens identity theft, which is inclusive of criminal identity theft as well as financial identity theft.
The Bill prohibits intercepting communication lines in the absence of a secretary-level officer’s permission. Furthermore, the bill mandates that the material collected is destroyed within 2 months of discontinuance of interception. The bill also calls for the constitution of a Central Communication Interception Review Committee with the purpose of examining and reviewing the interception orders passed. furthermore, it is empowered to uphold an interception that is in contravenes with Section 5 of the Telegraphs Act and that the intercepted material is destroyed forthwith. Apart from this, surveillance is also barred except in certain cases mandated by the procedure.
According to the bill, no person who has a place of business and data equipment located in India, shall leak any data pertaining to any person without the consent of such an individual. The bill mandates the constitution of a Data Protection Authority of India in order to monitor development in data processing and computer technology. In addition to that, its function is to examine and evaluate law and how it affects data protection. The authority shall also provide recommendations and receive representation from the public on any matter relating to data protection.
The authority is empowered to investigate any data security breach and issue orders to protect the security interests of the affected individual. The bill provides that an interception not adhering to the guidelines thereof would be deemed as an offence punishable with for a period that may extend up to 5 years or fine which may extend up to Rs. 1 lakh or with both. In addition to that, any individual who obtains any record of information pertaining to another individual from any officer of the government or agency under false pretext shall be punishable with a fine of up to Rs. 5 Lacs.
Aadhar card judgement
In 2011, a new identity document known as the Aadhaar Card was introduced by the Central Government and a new agency, the Unique Identification Authority of India (UIDAI) was set up with the purpose to issue the card.
Aadhaar is a 12-digit unique identity number and is made available to every citizen free of cost. It aimed to serve the purpose of being the primary identity number for all legal Indian residents. A resident needs to submit their biometric data, which includes a scan of their fingerprints and retinas in order to apply for the card. It is the responsibility of UIDAI to store the data in a centralized database.
The Aadhaar Card was progressively made mandatory for numerous welfare schemes by the government. In 2012, the retired judge of the Karnataka High Court, Justice K.S. Puttaswamy , filed a writ petition challenging the Aadhaar scheme before the Supreme Court, claiming that Aadhaar infringes upon fundamental rights guaranteed under the Constitution. Broadly, his objections included:
● The government did not put in place adequate privacy safeguards. Authentication by Aadhaar may be requested by any private entity for any reason subject to regulations by the UIDAI. No checks were put on the power of the government to use the biometric data collected.
● Entitlements granted to the individuals by the State’s social welfare schemes constitute fundamental rights themselves and they cannot be restricted for any reason, including the failure to produce an Aadhaar Card/Number when applying for benefits.
On September 26th 2018, the Court delivered its final judgment. It sustained the constitutional validity of Aadhaar Act. The act enabled better access to fundamental entitlements, such as State subsidies to the deprived sections of the society. It was held that the act was competently passed by Parliament and was not in violation with Articles 14, 15, 19 and 21 of the constitution.
Following are the key findings of the judgement:
a) A Fundamental Right
The Supreme Court ruled right to privacy as a fundamental right and stated that it does not need to be separately articulated as it can be derived from Articles 14, 19 and 21 of the Constitution of India. Right to privacy was deemed as a natural right which subsists as an intrinsic part of the right to life and liberty. It covers all information about a person, safeguards an individual from the scrutiny of the State in their home, of their movements and over their reproductive choices, choice of partners etc. Thus, any action of the state that infringes the right to privacy of an individual is subject to judicial review.
b) Not an Absolute Right
The Supreme Court strived to elucidate that the fundamental right to privacy will always be subject to reasonable restrictions and hence is not absolute. It ruled restrictions can be imposed on right to privacy by the State in order to protect legitimate State interests however it can only do so by following the three-pronged test given below:
a law that justifies an encroachment on privacy must exist;
Nature or the content of such law must fall within the zone of reasonableness and operate to guard against arbitrary State action which must be ensured by a legitimate State aim or need
The measures adopted by the State must be proportional to the objectives and needs sought to be attained by the law.
As a result, all State action that could have an impact on privacy will now have to be tested against this three-fold test.
Right to privacy is inferred as the Right to be Left Alone. It doesn’t mean that one is withdrawing from society, rather it is a reckoning that society will not interfere in the choices made by an individual as long as they do not cause any harm to others.
The right protects an individual's autonomy and recognises their ability to control vital aspects of his or her life as personal choices commanding a way of life are intrinsic to privacy.
Right to Privacy is an integral element of life and personal freedom rights under Article 21. The right to life is considered to not be the expression of mere animal existence, but a guarantee of a complete and meaningful life. Apart from contracts, right to privacy may arise out of a particular specific relationship, which may be commercial, matrimonial, or political. Privacy at its core consists of preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Even though the right to privacy is a fundamental right it is not an absolute right. It is subject to rational restrictions for welfare of the state.
--  Kharak Singh v. State of UP, AIR 1963 SC 1295  Maneka Gandhi vs. Union of India, AIR 1978 SC 597  Govind v. State of Madhya Pradesh, AIR 1975 SC 1378  Naz Foundation v. State (NCT of Delhi), 2009 SCC OnLine Del 1762  Privacy Bill 2011  Justice K. S. Puttaswamy (Retd.) and Anr. v. Union Of India And Ors, (2017) 10 SCC 1
This article is written by Navya Arora of NLC, Bharati Vidyapeeth Deemed University, Pune.