Right To Privacy
Anushtha Parmar, B.A.L.L.B. (Hons.)
Email Id : firstname.lastname@example.org
Date : 19/05/2021
Right To PrivacyINTRODUCTION 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. BRIEF OUTLINE OF THE TOPIC: Through this project, we will discuss about the privacy, it's development in India and impact of various judgements on modern era. In this research work we will also discuss about the recent landmark judgements and some issues and challenges regarding the privacy laws. A detailed analysis of the topic with various aspects regarding it. Phone tapping, decriminalization of homosexuality, search and seizure power, adhaar issues, and about the current judgements regarding POSCO acts by the Bombay High Court. Critical analysis of adhaar judgement, and recent developments in Right to privacy. 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 5th and 14th 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". The question to recognize a right to privacy arose in Kharak Singh v. Sate of U.P., AIR 1963 SC 1295. The same view was observed by the Apex Court in M.P. Sharma v. Satish Chandra AIR 1954 SC 300. In Govind v. State of M.P. 1975 SCC 148. ADM Jabalapur v. Shivkant Shukla and so on... ISSUES AND FUTURE CHALLENGES The issue of Right to Privacy was discussed for the very first time in debate of constituent assembly, where an amendment was moved by K.S. Karimuddin, where B.R. Ambedkar gave it only support and Right to Privacy was not incorporated in the Indian Constitution. The issue of privacy was dealt with both as a fundamental right under the Constitution and as a common law right since the 1960s.Privacy was not considered as a fundamental right was first held by the Supreme Court in the year 1954 by an eight-judge bench in M.P. Sharma v. Satish Chandra case, while dealing with the power to search and seize documents from the Dalmia Group, dismissed the existence of a right to privacy on the basis that the makers of Constitution. After eleven long years (approx.), the Supreme Court where a smaller three judge bench when faced with a similar factual matrix in Gobind v. State of Madhya Pradesh, held the existence of a fundamental right to privacy under Article 21. Though Gobind lost, privacy won for the first time and gained a small recognition under personal liberty under the Indian Constitution. By this time, privacy had rooted in our fundamental rights. It never faced such a strong challenge of its existence as it faced before the nine-judge bench in the case of K.S. Puttaswamy v. Union of India in 2017 and overruled the decisions of M.P. Sharma and Kharak Singh. After the passing of the recent judgment in 2017 it is clear that right to privacy is a fundamental right and it will not lose its status amongst the Golden Trinity of Article 14 (Right to Equality), Article 19 (Right to Freedom) and Article 21 (Right to Life and Personal Liberty). Aadhaar Database is one of the largest government databases on the planet, where a 12 digit unique-identity number has been assigned to the majority of the Indian citizens. This database contains both the demographic as well as biometric data of the citizens. An IIT graduate was arrested for illegally accessing the Aadhaar database back in August 2017 for accessing the database between 1 Jan and 26 July without authorisation. He created an app called 'Aadhaar eKYC' by hacking into the servers related to an 'e-Hospital system' that was created under the Digital India initiative. The eKYC app would then route all the requests through those servers. POCSO Act was enacted to deal with evil and to impart speedy justice. Special courts were formed. The observations [in the January 19 judgment of the HC] have badly shaken the belief of the petitioners and like-minded people. The accused was sentenced to the minimum three years' imprisonment under Section 8 of the POCSO Act . Mr. Venugopal said that in future, because of the order, an accused could claim innocence under POCSO by arguing that the child he assaulted was clothed and there was no "direct physical skin-to-skin contact" between them. DETAILED ANALYSIS OF VARIOUS ASPECTS OF RIGHT TO PRIVACY Phone Tapping and Right to Privacy Phone tapping and right to privacy is affected by new technological developments relating to a personal correspondence and hence has become a debating issue. In R.M. Malkani v. State of Maharashtra, the Supreme 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. As per the observation made by Justice Kuldip Singh in the case of People's Union for Civil Liberties v. Union of India 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 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 the prevention the incorrect portrayal of private life but the right to prevent it being depicted at all. Even a woman of easy virtue is entitled to 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. Health and Privacy Health sector is an important matter of concern in privacy and also one of the major aspects of right to privacy. Health information not only includes information about the health or disability, but also the information related to health service one may receive. It is a human tendency that the information regarding health is considered highly sensitive by many people. In case of Mr. 'X' v. Hospital 'Z' it was held that doctor- patient relationship though basically commercial, is professionally a matter of confidence and therefore, doctors are morally and ethically bound to maintain confidentiality. 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 of Privacy by State The first case that alarmed the basis of right to privacy in India was the Kharak Singh case, 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. Power to Search and Seizure 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. This triple test requires any law interfering in the concept of Personal Liberty under Article. 21, to meet certain standards: It must prescribe a procedure; 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 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 aspect 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 in which Delhi High Court struck down. Section 377 of the Indian Penal Code, 1860 so as 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 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. RECENT DEVELOPMENTS IN RIGHT TO PRIVACY 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 matters in individuals is subjective and differs from person to person. 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 sometimes come in conflict with right to privacy. Then a 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 responded by bringing the concept of a public interest and public morality and other provisions mentioned under Article 19(2) of the Constitution of India. The publication of personal information of an individual without his approval is justified, if such information forms part of public records including Court records. In several aspects, right to privacy may come in conflict with the investigation of police. Various 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 case of Selvi and others v. State of Karnataka 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 by the committee 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. It was felt to recognize the need to protect personal data under the fundamental right to privacy. There was also a need to create a collective culture that foster a free and fair digital economy was to be taken into consideration, respecting the informational privacy of individuals, progress and innovation. Additionally, the objective behind the formulation of such a bill was to protect the autonomy of individuals in relation with their personal data. It should also specify about the flow and usage of personal data so as to create a relationship between persons and entities processing their personal data and also laid down norms for cross-border transfer of personal data, not only this, it also provided remedies for unauthorized and harmful processing and ensured the accountability of entities processing personal data. A RECENT LANDMARK JUDGEMENTS Landmark Case: Justice K.S. Puttaswamy v. Union of India Brief Facts of the Case: This is a recent case of Right to Privacy which was brought by 91-year old retired Karnataka High Court Judge Puttaswamy against the Union of India before a nine-judge bench of the Supreme to determine whether the Right to Privacy was guaranteed as a fundamental right under the Indian Constitution. This case was actually concerned with an issue to a challenge to the government. Aadhaar scheme (a form of uniform biometrics-based identity card) in which the government made mandatory for availing the government services and benefits. The issue was made before a three-judge bench of the Supreme Court on the basis that this scheme violated the right to privacy. Accordingly, a Constitution Bench was set up and concluded that there was a need for a nine-judge bench to determine whether there is a fundamental Right to Privacy within the provision of Article 21 of Constitution of India. 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. Submissions made by the respondent were that the Constitution only recognized personal liberty which may include Right to Privacy to a limited extent. Decision of the Supreme Court The nine-judge bench of the Supreme Court unanimously recognized that the Constitution guaranteed the Right to Privacy as an intrinsic part of the right to life and personal liberty under Article 21. The Court however, overruled M.P. Sharma, and Kharak Singh in so far as the latter did not expressly recognize the right to privacy as a Fundamental Right. Other case- Regarding skin to skin contact POCSO Act was enacted to deal with evil and to impart speedy justice. Special courts were formed. The observations [in the January 19, 2021 judgment of the HC] have badly shaken the belief of the petitioners and like-minded people. The accused was sentenced to the minimum three years' imprisonment under Section 8 of the POCSO Act . Mr. Venugopal said that in future, because of the order, an accused could claim innocence under POCSO by arguing that the child he assaulted was clothed and there was no "direct physical skin-to-skin contact" between them. CONCLUSION AND SUGGESTIONS Right to privacy is a requisite of right to life and personal liberty under Article 21 of the Indian Constitution. Right to privacy is not an absolute right, it may be subject to certain reasonable restrictions for prevention of crime, public disorder and protection of others but, it may, apart from contract, also arise out of a specific relationship that may be commercial, matrimonial or even political and also where there is a conflict between these two derived rights, the one, which advances public morality and public interest, will prevail. Looking at the previous judgments of the Apex court in its seminal years, one can observe the cachet of the court to treat the Fundamental Rights as water-tight compartments in the case of A.K. Gopalan v. State of Madras, 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 a mere animal existence, but the guarantee of full and meaningful life. As every day is advancing, this right is becoming more and more essential. With 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. Privacy should be protected in every aspect but it is subjected to reasonable restrictions under the provision of Constitution of India and other relevant statutory provisions in force. One needs to understand that privacy should be keep in mind and within the confined limits not to explain to rest of the world Suggestions : From the above mentioned discussions in detail, it may be suggested: Protection from Citizens Identity Theft A separate legislation regarding right to privacy should be made so as to provide protection from the theft of citizens identity whether it may be theft of personal identity or financial identity which may take account of criminal identity theft and financial identity theft. Prohibition of interception of communications There may be prohibition of interception of communications except in certain cases but only with the approval of Secretary- level officer. Constitution of a Central Communication Interception Review Committee A Central Communication Interception Review Committee may be constituted to examine and review the interception orders passed by the concerned authority. Establishment of Data Protection Authority A data protection authority may be established which might protect data and whose function will be to monitor the development in data processing. Imposition of Penalty Penalty should be imposed upon such person who tries to obtain any information from any resource or any officer of government under any pretext.
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