Introduction
The right to privacy in india is primarily protected by article 21 of the constitution of India .
This article estates and that no one can be deprived of their life or personal liability without
following the procedure established by law.
Right to privacy is a fundamental rights of human that has gained significant importance in
recent years. With that advertisement of technology and the increasing use of internet, the
concept of privacy has become a pressing concern .
What is the Right to Privacy?
The right to privacy is a fundamental aspect of individual autonomy, allowing people to make
personal choices free from unwarranted interference. It encompasses the right to control one’s
personal information, maintain confidentiality, and make autonomous decisions without
interference.
Need: This right is essential for upholding human dignity and freedom, as it allows individuals
to express themselves freely, engage in personal relationships, and participate in society without
fear of surveillance or discrimination.
ORIGIN
The notion of privacy is sometimes, ambiguous because of 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 unrecognised 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 government 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 Thus, privacy finds its origin in the
natural law theories.
It was however, the social contract theorists, i.e.; Hobbes, Rousseau and John Locke who in his book ‘Two treaties on civil govt.’ sowed the seeds of the ‘Right to Privacy’ by advocating the theory of Natural Rights which according to him were inviolable and inalienable. According to Locke setting up a government and making laws was only a secondary transaction between individuals, the primary being preservation of life, liberty and property.
According to him people give up only a part of their natural rights while abandoning the
‘state of nature’ and the remaining natural rights like life, liberty and property are kept intact with
them. Appropriately therefore, in furtherance of this theory in his work “Essay concerning human understanding” John Locke introduces the concept of ‘Tabula Rasa’ which meant that the mind of the individual was a dean state and individuals were free to author their own soul. Individuals were also free to define the content of their character.
International Scenario
The recognition of privacy as a fundamental constitutional value is part of India’s commitment to a global human rights regime. Article 51 of the Constitution, which forms part of the Directive Principles, requires the state to endeavour to foster respect for international law and treaty obligations in the dealings of organised peoples with one another.
Article 12 of Universal Declaration of Human Rights, recognises the right to privacy:
Article 12: No one shall be subjected to arbitrary interference with his privacy, family, home
or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the
protection of the law against such interference or attacks. The International Covenant on Civil
and Political Rights in its Art. 17 provides that ‘No one shall be subjected to an arbitrary and unlawful interference with his/her privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation, and that everyone has right to the protection of the law against such interference or attacks’.
In order to have a categorical understanding of Right to Privacy in Indian Constitution, it is
indispensable to have a thorough knowledge about USA privacy laws since Indian judiciary
relied upon those laws for the interpretation of private matters.
It was developed by Warren and Brandies in the backdrop of the dense urbanisation which
occurred particularly in the East Coast of the United States. “Warren and Brandies”
discussion was a commencement of deliberation on inalienable right of privacy in USA. The
Constitution of USA mentions about plenty of inalienable rights including the right to liberty and
pursuit of happiness and these rights should be protected by statutes, rules and regulations 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 in order to protect the
privacy of an individual. The help of common law was obtained because common laws
contained the right to be free from harassment and exposure and it was the
only available remedy for the protection of private matters. Right to privacy was subject to the
explicit right to free speech and it was the only available remedy for protection of private
matters. Right to privacy was explicit right to free speech and it was unequivocally
mentioned in the first amendment of Bill of Rights, so from this it can be inferred that right to
privacy was an Implicit in USA constitution.
The discussion of Warren and Brandies on right to privacy explained the actions that fall
under the ambit of privacy invasion, such as Intrusion into one’s private life and affair; Public
disclosure of embarrassing private facts; Unwanted publicity of private individuals;
Misappropriation of a name or likeness for financial advantage.
The discussion of Warren and Brandies on right to privacy explained the actions that fall
under the ambit of privacy invasion, such as Intrusion into one’s private life and affair; Public
disclosure of embarrassing private facts; Unwanted publicity of private individuals;
Misappropriation of a name or likeness for financial advantage.
Case law:-
In the case of Griswold vs. Connecticut ,the Supreme Court of U. S held that forbidding use of contraceptives by the state intrudes inconstitutional right to marital privacy. Justice Douglas for the majority held that the right to
privacy has emanated from penumbras of American Bill of Rights.
In Lawrence vs. Texas,held that Texas statute making it a crime for two persons of the same sex
to engage in certain intimate sexual conduct was unconstitutional as applied to adult males who
had engaged in consensual act of sodomy in privacy of home. The mentioned
Texas statute was violating right to privacy. The Court added the observation and stated that it is
the liberty of a person to abstain from unwarranted intrusion by the government into
dwelling or other private places.
INDIAN CONTEXT
Right to privacy is one such right which has come to its existence after widening up the
dimensions of Article 21.
According to Black’s Law Dictionary; Privacy means “right to be let alone; the right of a
person to be free from any unwarranted publicity; the right to live without any interference by the
public in matters with which public is not necessarily concerned”.
Right to privacy is not enumerated as a Fundamental Right in Constitution of India. Art. 21 of
Constitution of India states that “No person shall be deprived of his life or personal liberty except
according to procedure established by law”.
Case law:-
In case of Govind vs. State of Madhya Pradesh the court observed that domiciliary visits by the
police should be reduced to the clearest cases of danger to the community security and not
routine follow up at the end of a conviction or release from prison or at whim of a police officer.
In truth legally apart, these regulations ill-record with essence of personal freedoms and the
state will do well to revise these old police regulations verging perilously near unconstitutionality.
Several other pre-constitutional enactments which codify the common law also acknowledge the
right to privacy, both as between the individuals and the government, as well as between
individuals inter se. These include:
1} S.126-9, The Indian Evidence Act,1872(protecting certain classes of communication as privileged)
2} S.4, The Indian Easements Act,1882(defining easements as the right to choose how to use and enjoy a given piece of land)
3} S.5(2), The Indian Telegraph Act,1885(specifying the permissible grounds for the government
to order the interception of messages)
4} S.5 and 6, The Bankers Books (Evidence)Act,1891(mandating a court order for the
production and inspection of Bank records)
5} S.25 and 26, The Indian Post Office Act,1898(specifying the permissible grounds for the
interception of postal articles) and themselves becoming agents of political power qua the state.
Constitutions like our own are means by which individuals the Preamble people of India create
the state, a new entity to serve their interests and be accountable to them and transfer a part of
their sovereignty to it. The cumulative effect of both these circumstances is that individuals
governed by constitutions have the new advantage of a governing entity that draws its power
from and is accountable to them, but they face the new peril of a diffuse and formless entity
against whom existing remedies at common law are no longer efficacious.
The instances of Right to Privacy can be traced through many ways. Some of which are:
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. The decision to conduct surveillance
must be based on balancing the interference with the right to privacy with the
legitimate public interests which the authorities aimed to protect. 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 sactually
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.
In the case of Kharak Singh vs. State of Uttar Pradesh, the appellant was being harassed
by police under regulation 236(b) of the UP regulation, which permits for domiciliary, visits at
night. The Supreme Court held that the regulation 236 is unconstitutional and violative of Art.
Among the measures of surveillance contemplated by Regulation 236 were the following:
a) Secret picketing of the house or approaches to the house of suspects;
b) Domiciliary visits at night;
c)thorough periodical inquiries by officers not below the rank of sub-inspector into repute,
habits, associations, income, expenses and occupation;
d)The reporting by constables and churidars of movements and absences from home;
e) The verification of movements and absences by means of inquiry slips;
f) The collection and record on a history-sheet of all information bearing on conduct.
The Court concluded by saying that Art. 21 of the constitution to include “right to privacy” as a
part of right to “protection of life and personal liberty”. Justice Subba Rao equated personal
liberty with privacy and he observed that concept of liberty in Art. 21 was comprehensive
enough to include privacy and that a person’s house, where he lives with his family is his castle
and that nothing is more deleterious to a man’s physical happiness and health than a calculated
interference with his right to privacy.
Homosexuality and privacy
Homosexuality is considered as a taboo in Indian society which results in the isolation and
subjugation of those who have different preferences when it comes to choosing a partner for life.
In a landmark judgement for the LGBT community in the country, the Supreme Court lifted a
colonial-era ban on gay sex. The centre, which had initially sought adjournment for filing its
response to the petitions, had later left to the wisdom of the court the issue of legality of the
penal provision [Sec. 377 of I.P.C] on the aspects of criminalising consensual unnatural sex
between two consenting adults. The Centre said that the other aspects of the
penal provision dealing with minors and animals should be allowed to remain same. Sec. 377
refers to “Unnatural offences” and says, “Whoever, voluntarily has carnal intercourse against the
order of nature with any man, woman or animal, shall be punished with imprisonment for life, or
with imprisonment for either description for a term which may extend to 10 years, and shall also
be liable to pay a fine”.
The issue was first raised by Naz Foundation , which had in 2001 approached the Delhi
High Court which had decriminalised sex between consenting adults of same gender by holding
the penal provision as “illegal” . This 2009 judgement of the High Court was
overturned in 2013 by the apex court which had also dismissed the review plea against the
curative petitions were filed which are pending. However, the HC’s judgement was
overturned in 2013 by the SC who found it to be” legally unsustainable”. The Court also
quashed the review petition filed by the Naz Foundation. In 2016, five petitions were filed in SC
by LGBTQ activists claiming that their “rights to sexuality, sexual autonomy, choice of sexual
partner, life, privacy, dignity and equality, along with the other fundamental rights guaranteed
under part- III of Constitution are violated by Section 377”.
Aadhar and privacy
In case of Justice k.s. puttaswamy v.s union of India & others . ,The govt of India decided to provide to all its citizens a unique identity called Aadhar which is card containing 12-digit number. The registration of 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 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 people may be leaked
if proper care is not taken. This will lead to violation of Right to privacy of individuals. It was held
that Privacy is a constitutionally protected right which not only emerges from the guarantee of
life and personal liberty in Art. 21 of the Constitution, but also arises in varying contexts from the
other facets of freedom and dignity recognised and
guaranteed by the Fundamental Rights contained in Part III of the Indian Constitution.
JUDICIAL ENUMERATION OF THE FUNDAMENTAL RIGHT TO PRIVACY
There is nothing unusual in the judicial enumeration of one right on the basis of another under
the Constitution. In the case of Article 21’s guarantee of personal liberty, this practice is only
natural if salmond’s formulation of liberty as incipient rights is correct. By the process of
enumeration, constitutional courts merely give a name and specify the core of guarantees
already present in the residue of constitutional liberty. Overtime, the Supreme Court has
been able to imply by its interpretative process, that several Fundamental Right.
In Unnikrishnan, J.P. vs. State of A. P. A Constitution Bench of this Court held that
several unenumerated rights fall within Article 21 since personal liberty is of widest
amplitude on the way to affirming of a right to Education.
“Just like food and water, people need privacy”. In the verdict of Right to privacy to be declared
as Fundamental Right; opinion by individual judges are:-
Justice A M Sapre: Right to privacy comes with birth, goes with death
The right to privacy of an individual is a natural, cherished, inseparable and inalienable right
which is born with a human being and extinguishes with it. He said that it cannot be
conceived that an individual enjoys a meaningful life with dignity, without such a right.
Justice S K Kaul: Privacy should be protected against state, non-state actors
He expressed apprehension that the growth and development of technology has created new
instruments for the possible invasion of privacy by the state including through surveillance,
profiling and data collection and processing. The judge concluded that “The right of privacy is a
fundamental right. It is a right which protects the inner sphere of the individual from interference
from both state and non-state actors and allows the individuals to make autonomous life
choices.
Justice R F Nariman: Fundamental Right remains despite shifting sands of govts
Right to privacy would remain an inalienable Fundamental Right despite the ‘shifting sands’ of
governments in power. He rejected the government’s argument that since several statutes are
already there to protect the privacy of individuals, it is unnecessary to read a Fundamental Right
of Privacy into Part III of the Constitution.
Justice J Chelameswar: Right to terminate life falls under Right to Privacy
An individual’s right to refuse life-prolonging medical treatment or terminate life is a
freedom which falls within the zone of right to privacy.
He also said tapping of telephones and internet hacking of personal data is another area which
falls within the realm of privacy.
He also touched upon other aspects like consumption of food and a woman’s freedom of choice
on whether to terminate pregnancy.
Justice D Y Chandrachud: Privacy safeguards an individual’s autonomy
He said privacy safeguards an individual’s autonomy and recognises the ability of the
individual to control vital aspects of life.
Justice S A Bobde: Privacy inextricably bound with exercises of human liberty
Right to Privacy is ‘inextricably bound up’ with all the exercises of human liberty and any
‘diminution’ in it would weaken fundamental rights which have been expressly conferred.
CONCLUSION
The Right to Privacy is a Fundamental Right. It is a right which protects the inner sphere of
the individual from interference from both State and non-state actors and allows the
individuals to make autonomous life choices.
The inference can be drawn that India relied upon the US Constitution for the interpretation of
Right to Privacy within Indian sphere, therefore it can be uttered that American Constitution has
pivotal and significant role in moulding of Right to privacy in accurate shape. It was always
observed that Right to Privacy is derived from Right to Life and Personal Liberty.
It is now rightly expressed that; the technology has made it possible to enter a citizen’s house
without knocking at his/her door and this is equally possible both by the state and non-state
actor. It is an individual’s choice as to who enters his house, how he lives and in what
relationship. The privacy of the home must protect the family, marriage, procreation and sexual
orientation which are all important aspects of dignity.
While considering the evolution of Constitutional jurisprudence on the right to privacy, in the
challenge laid to Sec.377 of Indian Penal Code, one of the grounds of challenge was that the
said provision amounted to an infringement of the right to dignity and privacy. The Right to live
with dignity and the right to privacy both are now recognised as dimensions of Article 21 of the
constitution of India.
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