Right to Privacy

Introduction

Privacy is a fundamental human right enshrined in many international treaties. It is important

for the protection of human dignity and is one of the important pillars of a democratic
country. It supports the rights of self and others.

Privacy is a right that all human beings enjoy by virtue of their existence. It also extends to
physical integrity, individual autonomy, free speech, and freedom to move, or think. This
means that privacy is not only about the body, but extends to integrity, personal autonomy,
data, speech, consent, objections, movements, thoughts, and reputation. Therefore, it is a
neutral relationship between an individual, group, and an individual who is not subject to
interference or unwanted invasion or invasion of personal freedom. All modern societies
recognize that privacy is essential and recognize it not only for humanitarian reasons but also
from a legal point of view.

The terms of privacy and the right. to privacy cannot be easily conceptualized. Privacy uses
the theory of natural rights and often corresponds to new information and communication
technologies. Privacy is our right to maintain the territory around us, including everything
that belongs to us, including our bodies, homes, possessions, thoughts, feelings, secrets,
identities, etc. Your privacy allows you to choose what parts of this area can be accessed by
others and to control the scope, method, and duration of the parts you choose to disclose.

A recent development in the Indian jurisprudence is the widening of the scope of Article 21
particularly post the case of Maneka Gandhi vs. UOI (1978). The Supreme Court has time
and again laid down that Article 21 is the basic foundation of fundamental rights. Article 21
has proven to be multi-faceted. The scope of Article 21 has been widened by reinterpreting
what constitutes life and liberty in specific circumstances. These terms, that is life and liberty,
are not one size fits for all terms.

In order to understand the Right to Privacy, it becomes necessary to look into what
constitutes privacy. According to Black’s Law Dictionary, “right to be let alone; the right of a
person to be free from any unwarranted publicity; the right to live without any unwarranted
interference by the public in matters with which the public is not necessarily concerned”. In
order to widen the scope of Article 21, the Supreme Court has decided to interpret it along
with the Universal Declaration of Human Rights.

The right to privacy is not formally advocated as a fundamental right in the Constitution. The
right to privacy came into light in Kharak Singh v the State of U.P (1962) where the main
issue was pertaining to surveillance of suspects. The right to privacy was invoked in this case
to challenge the surveillance of an accused person by the police. Kharak Singh was arrested
for dacoity but was released due to lack of evidence. The Uttar Pradesh Police subsequently
brought him under surveillance, which was allowed under Chapter XX of the Uttar Pradesh
Police Regulations. Kharak Singh then challenged the constitutional validity of Chapter XX
and the powers it conferred upon police officials, as it violated his fundamental rights under
Article 19(1)(d) (right to freedom of movement) and Article 21 (protection of life and
personal liberty). The 6-judge bench held that domiciliary visits at night was unconstitutional,
but upheld the rest of the Regulations. More importantly, the bench held that the right of
privacy is not a guaranteed right under the Constitution.

K.S. Puthuswamy V. Union of India

A nine-judge bench of the Supreme Court of India held unanimously that the right to privacy
was a constitutionally protected right in India, as well as being incidental to other freedoms
guaranteed by the Indian Constitution. The case, brought by retired High Court Judge
Puttaswamy, challenged the Government’s proposed scheme for a uniform biometrics-based
identity card which would be mandatory for access to government services and benefits. The
Government argued that the Constitution did not grant specific protection for the right to
privacy. The Court reasoned that privacy is an incident of fundamental freedom or liberty
guaranteed under Article 21 which provides that: “No person shall be deprived of his life or
personal liberty except according to procedure established by law”. This is a landmark case
which is likely to lead to constitutional challenges to a wide range of Indian legislation, for
example legislation criminalising same-sex relationships as well as bans on beef and alcohol
consumption in many Indian States. Observers also expect the Indian Government to
establish a data protection regime to protect the privacy of the individual.

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.

In Naz Foundation Case (2009) Delhi HC gave the landmark decision on consensual
homosexuality. In this case S. 377 IPC and Articles 14, 19 & 21 were examined. Right to
privacy held to protect a “private space in which man may become and remain himself”. It
was said individuals need a place of sanctuary where they can be free from societal control-
where individuals can drop the mask, desist for a while from projecting on the world the
image they want to be accepted as themselves, an image that may reflect the values of their
peers rather than the realities of their nature.

It is now a settled position that right to life and liberty under article 21 includes right to
privacy. Right to privacy is ‘a right to be let alone’. A citizen has a right to safeguard the
privacy of his own, his family, marriage, procreation, motherhood, child-bearing and
education among other matters. Any person publishing anything concerning the above
matters except with the consent of the person would be liable in action for damages. Position
however, be different, if a person voluntarily thrusts himself into controversy or voluntarily
invites or raises a controversy.

The conflict between Right to Information and Right to Privacy

In the case of R. Rajagopal v. the State of T.N (1994), the Supreme Court held that the right
to privacy is a ‘right to be let alone’.

In Mr. X v. Hospital Z (1998), it was laid down that if there is a conflict between two
fundamental rights including the right to privacy then the right that furthers public morality
or public interest would be enforced.

Ratan Tata approached the Supreme Court against the publication of the intercepts of his
conversation with Neera Radia. Tata alleged that as Radia’s phone was tapped by government
agencies for the purpose of investigating a possible offence then, the recorded conversation
must have been used for that purpose alone. Tata thereby pleaded for the protection of his
right to privacy.

By the use of the word “or” the legislation suggests that unwarranted invasion of individual
privacy may trigger the exemption, even if the information has a relationship to public
activity or interest. But the added caveat says that the larger public interest could justify the
release of even purely private information. In addition, what constitutes “personal”
information has not been defined in the legislation.

The Privacy Bill, 2011

The bill says, “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 gives protection from a citizen's identity theft, including criminal identity theft
(posing as another person when apprehended for a crime), financial identify theft (using
another's identity to obtain credit, goods and services), etc.

The bill prohibits interception of communications except in certain cases with approval of
Secretary-level officer. It mandates destruction of interception of the material within two
months of discontinuance of interception.
The bill provides for constitution of a Central Communication Interception Review
Committee to examine and review the interception orders passed and is empowered to render
a finding that such interception contravened Section 5 of the Indian Telegraphs Act and that
the intercepted material should be destroyed forthwith. It also prohibits surveillance either by
following a person or closed circuit television or other electronic or by any other mode,
except in certain cases as per the specified procedure.

As per the bill, no person who has a place of business in India but has data using equipment
located in India, shall collect or processor use or disclose any data relating to individual to
any person without consent of such individual.

The bill mandates the establishment of a Data Protection Authority of India, whose function
is to monitor development in data processing and computer technology; to examine law and
to evaluate its effect on data protection and to give recommendations and to receive
representations from members of the public on any matter generally affecting data protection.

The Authority can investigate any data security breach and issue orders to safeguard the
security interests of affected individuals in the personal data that has or is likely to have been
compromised by such breach.

The bill makes contravention of the provisions on interception an offence punishable with
imprisonment for a term that may extend up to five years or with fine, which may extend to
Rs. 1 lakh or with both for each such interception. Similarly, disclosure of such information is
a punishable offence with imprisonment up to three years and a fine of up to Rs. 50,000, or
both.

Further, it says any persons who obtain any record of information concerning an individual
from any officer of the government or agency under false pretext shall be punishable with a
fine of up to Rs. 5 Lacs.

Later developments in Right to Privacy

Right to Press vs. Right to Privacy

With the advancement of social networking sites and technology, the right to privacy being
given the status of a fundamental right becomes extremely difficult. However, on the other
side, the right to privacy of a person includes their right to seclude information that is of
personal nature.

Now, every person can be a press, this can be ascertained from the rise in social networking
sites and blog spots. The right to privacy often comes in conflict with the right to press. The
right to press is a right derived from Article 19 (1) (a). The right to expression of a person
might come in conflict with another person’s right to privacy. Thus, to decide in such
situations the concept of public morality and interest are brought in. Each case is distinct and
each right is special.

Test of public morality

Any right that has been derived from Article 19 can be derived from Article 21 as well. This
is possible due to the wide interpretation of the term ‘personal liberty’. While the Court
applies the test of public morality or public interest generally in case of conflict between two
rights that are derived, a different interpretation is also possible. A right derived from Article
21 holds more superiority vis-à-vis a right derived from Article 19. This is because the state
enacting law in contravention of such right can be saved under the reasonable restrictions
under Article 19(2) to (5). This position was not followed in the pre- Maneka era as Article 21
was not interpreted to be a substantive right.

Right to privacy and police investigation

The right to privacy may also come in conflict with several aspects of the police
investigation. Narco–analysis, brain mapping tests and polygraph tests lead to unjustified
intrusion into one person’s right to privacy. The Supreme Court has acknowledged the right
to privacy by branding these tests to be unconstitutional and inhumane.

Right to privacy and thermal imaging

The Supreme Court in the Directorate of Revenue and Anr v. Mohammed Nisar Holia (2007)
laid down that “thermal imaging”, an advanced technology that can enhance the feeling when
being locked out of a person’s house. It can detect whether the prisoner has stored drugs. The
internal substance violates the rights and privacy of the person. The court discourages
unnecessary infringement of a person’s right to privacy and believes that no unlimited power
shall be granted to infringe a person’s right to privacy. The court revoked the conviction and
seizure that violated the statutory registration requirements. Although the statutory power of
separate search and seizure may not infringe on the right to privacy, in a case of this nature,
the court can at least ensure that the right will not be unnecessarily infringed.

The Supreme Court’s Aadhaar judgement and the Right to Privacy

The Aadhaar Act grants residents the right to receive an Aadhaar number by submitting
biometric and demographic information as part of the enrolment procedure.
The Supreme Court was tasked with determining whether the Aadhaar Act’s provisions were
infringing on the right to privacy, which was declared a fundamental right by the Supreme
Court in 2017. In this regard, it’s worth noting that a number of services supplied by both
private businesses and the government required an individual to link their Aadhaar number
for authentication, effectively making obtaining an Aadhaar number necessary for the vast
majority of people. As a result, the question was not so much whether this constituted an
infringement of the right to privacy, but rather whether it was a legitimate exemption. Certain
sections of the Aadhaar Act were overturned or read down by the Supreme Court because
they failed to meet the aforesaid proportionality standard. Apart from these provisions,
however, the Supreme Court found that the Aadhaar Act, as a whole, serves a legitimate state
goal and is proportionate, making it a justifiable exception to the right to privacy.

The Right to Privacy in the age of Facebook

In its case, the Facebook-owned company claims that requiring intermediaries to identify the
originating source of information on its platforms might put journalists and activists in India
at risk of retaliation, as well as infringe on people’s fundamental right to free speech and
expression.

Government steps to protect privacy

Personal Data Protection Bill 2019: To provide for the protection of individuals’ privacy in
relation to their personal data, and to establish a Data Protection Authority of India for these
purposes and matters relating to an individual’s personal data. Based on the B N Srikrishna
Committee’s recommendations (2018).

Information Technology Act, 2000: Provides protection against some data breaches involving
computer systems. It includes safeguards to prevent unwanted access to computers, computer
systems, and data stored on them.

Way Forward

Parliament and the Supreme Court should conduct a thorough examination of the Right to be
free (RTBF) and devise a method for balancing the competing rights to privacy and freedom
of expression. Data is a precious resource in the digital era that should not be left
unregulated. In this scenario, India’s time for a strong data protection regime has arrived.

Right to Privacy and Media

Safeguarding Identity of Children

The Juvenile Justice (Care and Protection of Children) Act lays down that the media should
not disclose the names, addresses or schools of juveniles in conflict with the law or that of a
child in need of care and protection, which would lead to their identification. The exception,
to identification of a juvenile or child in need of care and protection, is when it is in the
interest of the child. The media is prohibited from disclosing the identity of the child in such
situations.

Similarly, the Convention on the Rights of the Child (CRC) stipulates that:

Article 16

No child shall be subjected to arbitrary or unlawful interference with his or her privacy,
family, or correspondence, nor to unlawful attacks on his or her honour and reputation.

The child has the right to the protection of the law against such interference or attacks.

Article 40 of the Convention, states that the privacy of a child accused of infringing penal law
should be protected at all stages of the proceedings.

Safeguarding Identity of Rape Victims

Section 228A of the Indian Penal Code makes disclosure of the identity of a rape victim
punishable. In the recent Aarushi Talwar murder case and the rape of an international student
studying at the Tata Institute of Social Sciences (TISS) the media frenzy compromised the
privacy of the TISS victim and besmirched the character of the dead person.

In the TISS case, the media did not reveal the name of the girl, but revealed the name of the
university and the course she was pursuing, which is in violation of the PCI norms. In
addition to revealing names of individuals, the PCI norms expressly states that visual
representation in moments of personal grief should be avoided. In the Aarushi murder case,
the media repeatedly violated this norm.

Right of privacy and Sting Operations

Section 5 of the Cable Television Networks (Regulation) Act, 1995 and the Cable Television
Network Rules (hereafter the Cable Television Networks Act), stipulates that no programme
can be transmitted or retransmitted on any cable service which contains anything obscene,
defamatory, deliberate, false and suggestive innuendos and half truths. The Rules prescribes a
programming code to be followed by channels responsible for transmission/re-transmission
of any programme.
In R. Rajagopal v. State of T.N the Supreme Court of India has held that freedom of the press
extends to engaging in uninhabited debate about the involvement of public figures in public
issues and events. But, as regards their private life, a proper balancing of freedom of the press
as well as the right of privacy and maintained defamation has to be performed in terms of the
democratic way of life laid down in the Constitution.

Social Media and Privacy Related Laws In India

Laws related to social media and privacy in India are clearly insufficient. The Indian
judiciary and legislature have proved to be far behind expectations when it comes to the
framing of laws in this arena. Some rules and legislations have been issued, those too are
primarily related to defamation.

In the Kharak Singh v State of UP, often called the PUCL case, it was held that tapping of
phones amounts to a breach of privacy. Extending this reasoning, it can be reasonably held
that sharing of information by WhatsApp with Facebook, post its update, is an obvious
breach of privacy of its users.

Now let’s come to the Information and Technology Act, 2000. The concept of privacy in this
act is comprehended in a very liberal and traditional sense. The act of knowingly sending
pictures of a person’s private parts, without his permission, then Section 66E of this act is
violated. Social media finds only a mention in Section 79 of this act. This section clarifies
that if any person posts or uploads anything derogatory to some other, then the medium on
which it is posted, that is Twitter, Facebook etc, is not to be held liable for the acts of such
person. Beyond this, nothing is mentioned in the whole article with regard to social media.
Let us understand this by a simple example- If X, a Facebook user posts something
derogatory to Y, another Facebook user, then Facebook is not to be blamed for X’s act.

This concept has however evolved with time, in the case of Shreya Singhal, it was held that it
is Facebook’s duty to remove any material posted by them which is objectionable. This has to
be done by Facebook, applying its discretion, after complaints regarding the same are
received.

Conclusion

Privacy rights are essential elements of life and personal freedom rights under Article 21.
Privacy rights are not absolute rights. They are subject to rational limitations for the
protection of crimes, disadvantaged, or morality, or the protection of other human rights. If
there is a contradiction between the two derived rights. If one looks at the later judgments of
the Apex Court one can observe the desirability of the court to treat the basic rights as water-
tight compartments. This was felt foremost within the case of A.K Gopalan v. the State of
Madras (1950) and also the relaxation of this stringent stand may well be felt within the
decision of Maneka Gandhi v. Union of India (1978). The right to life was considered to not
be the embodiment of mere animal existence, but the guarantee of a full and meaningful life.

Being a part of society often overrides the very fact that we are individuals first. Each
individual needs their private space for whichever activity (assuming here that it shall be
legal). The state accordingly gives each person the right to enjoy those private moments.
Clinton Rossiter has said that privacy could be special reasonable independence that may be
understood as a trial to secure autonomy in a minimum of some personal and spiritual
concerns. This autonomy is the most special thing that the person can enjoy. They’re truly
free humans there. This is often not a right against the state, but against the planet.