Abstract

            “They who can give up on essential liberty to obtain a little temporary safety deserve neither liberty nor safety” ^[1]

Privacy is a form of independence and no one should be deprived of it. Privacy is very important for one’s dignity. The inclination for privacy is a distinct feature of mankind. The intellectual need of humans need solitude to function optimally. Over years’ scholars have tried to define privacy but in the last century the legal aspects of privacy are being looked into. An individual needs solitude in order to understand his or her feelings and values. It is often seen that people may show different type of feeling at their home and their workplace. It can be seen that a person may be bold and stern at his or her workplace but the same person may be vulnerable in front of his or her loved ones. Various aspects of privacy have been discussed. The research includes detailed aspects of privacy and relevant judicial verdicts. The right to privacy can comprise public disclosure of private facts and intrusion upon individual’s seclusion, solitude or private affairs.^[2] There has been a need to create balance between what information should be kept private and what should be publically disclosed. There are various areas where right to privacy has been made applicable.

There are various topics we are going to cover in this research paper such as:

• the scope and validity of right to privacy,
•  it’s availability,
• article 21, part 3 of the Indian Constitution,
• constitutionality of Aadhaar, and
• various case laws pertaining to privacy.

            We have discussed about the international environment, the Indian environment and how privacy works it the dynamic situation. All the above mentioned topics are discussed thoroughly discussed in the nest chapters.

 

INTRODUCTION

            The Right to Privacy under a nine-judge bench of the Supreme Court on August 24, 2017 led by Chief Justice J.S. Khehar, ruled that it is a fundamental right for the citizens of India under the Indian Constitution. To understand the concept of right to privacy as a fundamental right we need to understand three main terms which are being talked about –

1. Right,
2. Privacy, and
3. Fundamental right.

            Right in abstract terms mean ethical correctness, justice or harmony with rule of law. It is for individuals to determine what level of information, when and how that information they want to be communicated to other people. In legal sense it means a privilege or a claim held by a particular person by virtue of law. Any action which is permitted by law is a legal right.

            Privacy in general means to keep one’s personal matter secret, without being noticed by other people and there shouldn’t be any sort of intrusion from anyone. In legal terms, privacy means the right given to a person to have control over access to his or her personal information, the matters of personal or concerning nature should be free from any outside intrusion. It is very difficult to describe privacy as it can have a broad meaning as it can be about non-disclosure of information or non-observance by others, etc. There is an intrinsic need for every individual’s privacy. There is a strong desire for privacy in humans. There are various types of space an individual want viz. ‘personal distance, fight distance, critical distance’. There are various stages of privacy one may desire. There are various zones in which an individual develops a relationship with others. The desire for privacy comes from within and there is a natural urge to pursue it that follows automatically. One must always understand that privacy is a relative concept and it must be observed by various approaches in different disciplines. Privacy has different meanings for different individuals.

            Fundamental rights are a set of rights, which require a greater degree of protection from any sort of encroachment. These are specially established rights implicitly expressed in the constitution and are protected by the Supreme Court. These rights are the central piece of all governance in a country. These are a set of rights which no one should be deprived of as they are the basic necessities to live a meaningful life. In India there are 6 broad categories of these fundamental rights which are guaranteed to each and every citizen of the county. These fundamental rights are contained in part III of the constitution, in articles 12 to 35.

            So right to privacy means the protection of an individual’s information being made public or being used without one’s consent. The right to privacy can’t be easily conceptualised. It is the state’s responsibility to let its people alone in certain spheres of their lives. The right to privacy is a generic term including various other small rights within it. The definition of right to privacy is nowhere clearly mentioned so there is a need to interpret it. In legal terms it may mean absence of any government or official intrusion. The understanding of right to privacy has come into light by case-on-case basis. Right to privacy is important as the absence of privacy may lead to mental distress or financial loss, if the information that is made public is defamatory. Thus, the right to privacy may include public disclosure of personal facts and intrusion upon individual’s solitude or private affairs. There are various international sources of right to privacy from where we can interpret how right to privacy works in the Indian environment. The right to privacy can thus be considered as an evolving issue. In India it is still in an incipient stage. Every individual has confidential part in his/her life which can’t be disclosed at public domain. One important aspect why we need privacy laws is that one’s privacy may be infringed without the individual being aware of. So, to sum up we can simply define that privacy is a basic right everyone should get and there shouldn’t be any infringement of privacy as it is not a fundamental right and no one should be deprived of it as the absence of it may lead to mental, physical or financial loss. These laws exist only as moral laws in a society. In certain cases, where an individual is a public figure his or her definition of privacy will be different and being a public figure there are certain information the people should know, so it is less strict in the case of public figure. We live in a universe ruled by chaos and in this universe one must get peace in his or her private areas and hence the right is required.

            The legal right to privacy is not a new topic for discussion, the debates arising out of it can be dated back to more than 100 years now. The historical changes, technological advancement, the psychological and social needs of people acted as a catalyst in the intrinsic development of right to privacy as a fundamental right.

There are various areas where right to privacy has come under scrutiny.

            The issue of right to privacy most recently came into light in February 2015 when the Supreme Court asked to clarify its stance on Aadhar which was introduced in 2009 and biometrics were required to make it. The constitutional validity of Indian biometric identification scheme was questioned when it asked for profiling of the citizens. After certain hearings finally in July even though there were some demerits, the merits were more than demerits and hence it continued. The history and constitutionality of Aadhar has been discussed further in a separate chapter.

            There rose a great concern for freedom from government’s intrusion into the citizens’ life. Then, there came a need to maintain the minimal conditions required for privacy. So, the recent judicial and legislative recognition of the importance of privacy could be understood from various different perspectives such as historical changes, technological advancement, and the psychological and social needs of people.

            Article 21, Part III of the Indian Constitution^[3] deals with this right. This part of the right to life and personal liberty highlights the ideological treatment. Even in the preamble of India i.e. “liberty of thought, expression, belief, faith and worship”^[4] it is being talked about.

            This judgment has finally put an end to the long historical legal battle from the past 40-50 years.

            The right to privacy is protected as an intrinsic part of the right to life and personal liberty. There was a unanimous ruling given by the nine judge bench of the Supreme Court, who heard the case whether the controversial Aadhar biometric identity scheme was constitutional or not. To understand the topic better, we must value the importance of privacy and various aspects linked to it.

NEED OF RIGHT TO PRIVACY

There are various reasons why we require privacy. Some of them are as follows:

• Privacy is essential for one’s proper development or mental well-being.
• Privacy helps us to create boundaries and helps us from unwarranted intrusion in one’s personal space. These boundaries are necessary for both physical safety and safety personal information.
• It is a very important aspect of one’s public relations.
• At international level, any data breach of a country may lead to the information being disclosed to an enemy state.

 

RIGHT TO PRIVACY IN THE INTERNATIONAL SPHERE

            The constitutions of various countries around the world did not assure a right to privacy although the need to protect one’s personal information has been a matter of concern from a long period of time. The rapid growth in the information technology sector led to the immediate need of privacy laws as individual’s personal data must be protected from any outside intervention. Various countries have amended their own constitutions and added articles and laws pertaining to privacy. On an international level various organisations are working to protect the information of individuals and setting guidelines and laws to protect infringement of privacy. Privacy is one of the most vital features for one’s development and hence it is solidly embedded in the international human rights law. Human rights are laws which are not just mere ideas but a set of laws which have to be followed to provide the dignity one requires. Even as we discuss about it till this day, privacy is still difficult to define as its meaning changes depending upon the context and the environment it is being used in. In many countries privacy has been merged with data protection but it can also be understood as a fence till which one can enter in an individual’s life.

 

RIGHT TO PRIVACY IN THE UNITED STATES OF AMERICA

            It is not clearly mentioned in the constitution but in the US right to privacy is often understood as the right to personal autonomy. There are some amendments made in the constitution to protect the personal needs of an individual. It can also be understood as the “right to be left alone” ^[5]as said by Judge Thomas Cooley. The right to privacy in the States is an amalgamation of the judicial proceedings and the federal constitution. It is considered as a legal right as well as a law of tort. According to law of torts, the right says one shouldn’t be emotionally disturbed because of invasion into one’s personal space or solitude. There shouldn’t be any leak of one’s intimate life to public with a view to humiliate someone. Less protection is provided to public figures. As a public policy people whose rights are infringed have the right to recover the damages caused to them. There was no article related to privacy explicitly in the constitution but the right has taken its place in the constitution by certain provisions. There are various amendments made that protects various kinds of privacy such as privacy of belief, privacy of personal information, privacy against unreasonable searches etc. The right to privacy is covered under First, Fourth and the Fifth Amendment^[6]. The first and fifth amendments discuss about privacy protection and personal autonomy and the fourth amendment restricts and prohibits search and seizure. The right to privacy is also mostly covered under Due Process Clause of the 14^th amendment. It states

• “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; not deny to any person within its jurisdiction the equal protection of the laws.”^[7] Supreme Court states that the various Bills Of  Right  creates a “zone of privacy”. The controversial case Roe v. Wade in 1972, which safeguards a pregnant woman’s autonomy to get an abortion without government’s restriction, it silently recognised right to privacy as a fundamental and in case of any infringement of it by the government needs to be justified by the state. (Roe v. Wade, 1973) The Health Information Portability and Accountability Act (HIPAA) protects a person’s health information and the Federal Trade Commission (FTC) enforces the right to privacy in various privacy policies and privacy statements.

            Justice Anthony Kennedy said while giving the verdict “The petitioners are entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct the crime. Their right to liberty under the due process clause gives them the full right to engage in their conduct without intervention of the government.” (John Geddes Lawrence and Tyron Garner v. Texas, 2003)

Article 11 of the American Convention on Human Rights

            Every individual must live his or her live with honour. There shouldn’t be any forceful intrusions into one’s life or his or her family.

            A person must be aware if any of his information is being collected and how that information is being used. The Privacy Act of 1974 prevents unauthorised disclosure of personal information held by the federal government.^[8]

            The financial institutions must tell their customers what type of information they are collecting and for what purpose under the Financial Monetisation Act, 1999.^[9] There are various acts for specific purposes such as online privacy which even has a sub branch specifically to protect children i.e. The Children’s Online Privacy Protection Act.^[10] The Supreme Court proceeds this right on a case-by-case basis.

RIGHT TO PRIVACY IN THE UNITED KINGDOM

            There have been many cases which has developed a legitimate concern for the need of privacy i.e. respect and protection for one’s private life but still the English Law is reluctant to identify general privacy law for the citizens. The debate that there should have a privacy law in the common law is arising from 1961 when Lord Mancroft introduced a bill. That bill was not passed as there were demerits of that proposal. These have been followed by certain reports given by experts, where privacy was questioned, need to protect one’s personal information was asked, after these reports were reviewed, even the judges felt the needs for privacy law and as well as many cases came into light. The Young Committee’s report led to the idea that the advancement in information and technology and the modern technology requires a greater concern for protection of one’s privacy. After the Young Committee’s report there came Calcutt Committee report it stated that privacy can be legally defined and adopted this method “The right of the individual to be protected against intrusion into his personal life of affairs, or those of his family, by direct physical means or by publication of information.”^[11] This committee further issued statement responding to Lord Chancellor’s department for infringement of privacy that there is an immediate need for some sort of privacy law in the UK. So the government in respond to this defined it, stating:

“Every individual has a right to privacy comprising:

• A right to be free from harassment and molestation; and
• A right to privacy of personal information, communications and documents.”^[12]

            Despite all this a fully-fledged law has not come but minor piecemeal amendments are done in line with the judicial decisions over a large period of time. An English Common Law maxim asserts that “every man’s house is his castle.”

            At present several enactments aiming at safe keeping a person from unwarranted publicity subsist in England. Police and Criminal Evidence Act, 19842^[13], Interception of Communication Act, 19853^[14], Sexual Offences (Amendment) Act, 19764^[15], and Data Protection Act, 19845^[16] are some important legislation containing provisions protecting privacy in England.

RIGHT TO PRIVACY IN AUSTRALIA

            There is no generalised legal right to privacy in Australia. The government is bound by stern confidentiality and secrecy. There are provisions about how the information will be used and when it will be used and to whom can it be released. The government is obliged by the Privacy Act 1988. According to the Privacy Act there are 13 Australian Privacy Principles (APPs) which manage the way data is collected, stored, accessed to and used.

The privacy act includes

• “Being informed what kind of information is being collected and how is it collected
• Being told why is the information being collected
• Personal information provided can only be used for legal purpose
• Finding out what information the government has, correct it if incorrect, out of date or incomplete.^[17]
• Advising that personal information must be stored securely and protected from misuse”

The information collected can only be used in accordance with the privacy act.

UNIVERSAL DECLARATION OF HUMAN RIGHTS

            Article 12 of the Universal Declaration of Human Right states: “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.”^[18] Privacy is one of the main themes of Human Rights and it allows minimum outside interference in one’s personal life.

Governments in every region are also using digital surveillance tools to track down and target human rights defenders and people perceived as critics – including lawyers, journalists, activists on land rights or the environment, and people who support equality for members of the LGBTI community.”  – Michelle Bachelet

            These laws are made but are not absolute since there are some agencies that may access this information for various purposes. In this era of technological advancement, it is very difficult to protect information as there are many sites we are accepting the privacy policy without even reading it, the privacy policy which we accept before using any application or website can access to various information, which we ourselves have consented to so the digital security and fully encrypted network services have become very important for every company.

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

Article 17 of the ICCPR states that:

1. “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks in his honour and reputation.”^[19]
2. “Everyone has the right to the protection of the law against such interference or attacks.”^[20]

            The implementation of the ICCPR is done by The Human Rights committee and also gives general statements on specific issues pertaining to the covenant. There are 167 signatories of the ICCPR.

            Article 8 of European Convention on Human Rights states “Everyone has the right to respect for his private and family life, his home and his correspondence; there shall be no interference by a public authority except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the protection of health or morals or for the protection of the rights and freedoms of others.”^[21] This article discusses about respect for private and family life.

 

 

 

THE RIGHT TO PRIVACY IS ALSO INCLUDED IN VARIOUS OTHER PLACES:

• Article 14 of the United Nations on Migrant Workers ^[22] – It states that there should be no unlawful interference in worker or his family’s personal space.
• Article 16 of the UN Convention on the Rights of the Child^[23]– The child must be protected of any arbitrary interference.
• Article 10 of the African Charter on the Rights and Welfare of the Child^[24]– Privacy of child must be protected

            Over 130 countries now have constitutional statements regarding the protection ones of privacy, in every region of the world. There was a need to protect personal data so in order to protect them various laws have been made at international levels which have been signed by various countries.

            Privacy has become a salient political issue. There was an absence of legislation. Since the constitutions around the world did not have any privacy laws at the time they were drafted, the addition of these laws in the constitution are to a great extent dominated by the judicial decisions. Right to privacy has come a long way and has been explicitly called a fundamental right, it is now included in Article 21 of the constitution which deals with right to life and personal liberty.^[25]

 

RIGHT TO PRIVACY IN INDIA

            In ancient India there were certain subjects which were not meant to be discussed or disclosed to the public domain. In India the fundamental right to life and personal liberty that is worthy of a thorough study of the British Raj to Swaraj has a long history. In the modern times, Indian society is in the middle of a great debate over privacy, since the development and use of new surveillance system by both public and private officials, immediate response to protect privacy was required. There are physical surveillance, it is the observation without ones consent or knowledge, it may be any form of data; data surveillance, it is the collecting, storing, exchanging and integrating comprehensive information about an individual or various groups through computers and other documents or records; and psychological surveillance is the use of mental testing done using various techniques such as emotion-measuring devices, and other processes to extract information which the individual does not know he is revealing, reveals unwillingly, or discloses without full awareness of the exposure of his private personality.

• Evolution – Right to privacy in India is covered in the article 21 of the constitution and has been recently established as a fundamental right after the judgement given in Justice K.S. Puttaswamy v. Union of India. Since Indian constitution is an amalgamation of laws borrowed from various countries, it tries to eliminate those mistakes which were made in the other constitutions. The privacy laws are mainly adopted from United States.

                        Since there was absence of legislation, as the drafting committee chose to ignore the aspect of privacy, there was a need for proper legislation. It is not easy to define right to privacy in an absolute manner since different individuals have different understanding and needs of privacy. But in the last 60 years India has come a long way from eliminating certain regulations violating privacy to providing privacy the status of a fundamental right in a landmark judgement. The definition of privacy cannot be explained in just few words as it cannot have a narrow understanding, so it was decided that its scope will be decided on a case to case basis.

• Available to who all – Article 21 of the Indian constitution which includes the term ‘life’ and ‘liberty’ has a wide definition and so they are viewed in a multidimensional manner.
• Article 21 applies to natural persons.
• The right is available to every person, citizen or alien.
• Thus, even a foreigner can claim this right. It, however, does not entitle a foreigner the right to reside and settle in India, as mentioned in Article 19 (1) (e).Article 19 (1) (e) talks about “freedom to reside and settle in any part of the territory of India by an Indian citizen except for Jammu and Kashmir.”^[26]
• Privacy Bill 2011 states that, “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.”^[27]
• The privacy bill has 15 chapters and 94 sections. The privacy bill was made in coordination with the already existing laws and not in a derogatory manner. Any existing law which is in conflict with any article of the privacy bill enjoys preference under chapter 3 the Privacy Bill.
• There are various types of sub topics clearly mentioned such as confidentiality of family, private life, communication, financial transactions, medical and legal services, protection of honour, good name, search detention, privacy from surveillance, etc.
• The bill makes any infringement with the above mentioned law a punishable offence of imprisonment up to 5 years or a penalty of up to Rupees 1Lakh or both. Also disclosure of any such information is a punishable offence with imprisonment up to three years and a fine of up to Rs. 50,000, or both. It also states any person if under false pretext obtains any information of an individual from an officer of government will be liable to pay a fine of up to Rupees 5Lakhs.
• Various places where partially applicable – No right is absolute. Every right comes with certain reasonable restrictions which is necessary to                                              maintain public order and harmony. The ambit of this right varies from case to case basis. Reasonable restrictions are placed to maintain safety of the state, for public order etc. Restrictions can be placed even if there is a contempt of court. Lack of morality, incitement to an offence or defamation may lead to curtailment of privacy.

 

CONSTITUTION ON PRIVACY

• Under Article 14, 19 and 21 of the constitution the right to privacy is protected, but it is largely covered under article 21 as a fundamental right after the Puttaswamy case judgement was announced.
• Article 21 of the constitution states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.”^[28] The term life in this context has a broad definition. It means that one must have the right to live in a respectful and meaningful manner which makes one’s life worth living otherwise it would be a mere animal existence. Earlier the law would only protect an individual from any physical harm but now it extends to one’s privacy as well. The Supreme Court amended article 21 in accordance with the article 12 of the Universal Declaration of Human Rights and article 17 of the International Covenant on Civil and Political Right, 1996.
• This right cannot be suspended, even at the time of emergency.
• Article 21 includes two rights
• (i) Right to life;
• (ii) Right to personal liberty.
• Justice Bhagwati while giving the Maneka Gandhi v. Union of India verdict stated that, “Article 21 embodies a constitutional value of supreme importance in a democratic society.”
• Justice Iyer, has characterised Article 21 as “the procedural Magna Carta protective of life and liberty.”[29]

SURVEILLANCE BY STATE

            The concerns arose about privacy because no one can enjoy liberty and freedom while under constant watch. Surveillance was possibly the first reason why we need a right to privacy back then. Various police regulation acts felt to be infringing the privacy of the suspects at a personal level which even led to the violation of human rights.

            Phone tapping is listening to or recording of two people communicating in order to obtain some information with their consent. Phone tapping is also a part of surveillance at times and it is felt to be infringing privacy as the person whose phone is being tapped is not aware and it may be used as evidence against him. It was held for phone tapping that if would only be constitutional if it was brought by a procedure established by law. Under section 5(2) of the Indian Telegraph Act detailed guidelines have been setup to provide safeguards.^[30]

SEARCH AND SEIZURE

            Search means the right to visit suspect’s house and search for evidence, Seizure means to collect some evidence and keep it in one’s custody. It is unconstitutional if search and seizure is done without reasonable and probable cause. In the landmark case of Maneka Gandhi v. Union of India, there was laid a triple test to check whether the privacy was being infringed or not. It was held to set a procedure established by law and the procedure should rule out any bizarre or arbitrary law from the ambit of article 21. The banks are given the duty to protect the documents which are with them.[31]

DISCLOSURE OF INTIMATE DETAILS

            Privacy cannot mean withholding all the information but it means the right to withhold some information which may be personal and intimate, it may be about one’s self or one’s family. Privacy is not just merely what kind of information we share it also includes to whom we share certain information and what kind of information are we sharing. We may disclose certain information to an institution but not public at general.

JUDICIAL APPROACH

            The Supreme Court of India opined that “It is important that human beings should be allowed domains of freedom that are free of public scrutiny unless they act in an unlawful manner.”[32]

KHARAK SINGH v. STATE OF UTTAR PRADESH[33]

            The petitioner Kharak Singh who was accused of dacoit, who eventually was released as there was not enough evidence against. He then filed a writ petition under article 32 for the revocation of chapter XX of the Uttar Pradesh police regulation on the basis of its constitutionality, under which he and his house as well as his family members were in constant surveillance. The police in various ways was keeping an eye on his house, following him when he went out, keeping a close watch on the family members, patrolling at night etc. under regulation 236 which was in chapter XX of the U.P. police regulation. The case was judged by a six-judge bench comprising the then Chief Justice Bhuvaneshwar P. Sinha and Justices N. Rajagopala Ayyangar, Syed Jaffer Imam, K. Subbarao, J.C. Shah and J.R.Mudholkar.

            The defence argued there was no infringement of the petitioner’s privacy under the part III of the constitution and these laws were made for the benefit of the public and to maintain public order and enable police to work in an efficient manner and argued that there can be imposed a reasonable restriction. Held in a judgement by Subba Rao and Shah J.J. argued that out of the 5 types of surveillance mentioned under regulation 236 the one dealing with domiciliary visits was violating privacy under article 21 but there was no law which could support it and could strike it off as unconstitutional, so it was advised to the petitioner to file a writ of mandamus, so again a writ petition was filed to stop the domiciliary visits. It was held that picketing was not unconstitutional as it did not stop the suspect to move freely or to deprive him of his ‘Personal liberty’ within the meaning of Article 21. If it would be tangible and direct, then it would be considered as infringement. Picketing here merely means keep a watch on the house and making a record of the visitors as to determine the type of work and circle one is involved into. Although it did not stop anyone from visiting the suspect. The person, whose house has been put under surveillance i.e. the suspect, can be asked questions but it is not compulsory for them to answer the questions asked and he or she has a right to remain silent. No action can be taken against the suspect if he is not willing to answer. It was further stated by the respondent that if the police are involved in trespass of the property, a tort can be claimed against them as the particular action was not in accordance with the law and the petitioner could further recover damages. At this point of time it could not be violative if a fundamental right as it should be clearly established that there are no remedies left before the court and there is no other method. If it is proved that the rights of the petitioner are infringed under article 32, appropriate orders and relief must be provided. The petitioner here was a class A history sheeter and hence could be put under surveillance. A history sheet is a personal record of criminals who were put under surveillance. There were 2 types of history sheet, class A and class B, class A was meant for dacoits, burglars and cattle-thieves and class B for those who are confirmed and professional criminals who commit crimes other than dacoity, burglary, etc. like professional cheats. Being in class A, his house was under surveillance, movements were closely watched, at night it was check that weather the suspect was there or not by entering the house, his acquaintance and friends were questioned, about his habits, expenses, income etc. to know about his life and his lifestyle but all this questioning was not done by officers below the rank of sub-inspector. The lower rank constables followed him and reported their supervisors. It was further alleged by the petitioner that the chaukidar’s misused their authority as the chaukidar’s would come at night and take him to the police station. It was held by the judges that it held section 236(b) unconstitutional. The court also stated dissenting of the surveillance act was not realistic. The states must ensure that the fundamental rights must not be violated, and there should be no overlapping of rights as to create confusion.

            On 16^th December, the six-judge bench held that section 236 (b) i.e. the domiciliary visits at night were held unconstitutional and removed for the Uttar Pradesh Police Regulation. The judgement of Sinha, C.J., Imam, Ayyangar and Mudholkar, was delivered by Ayyangar, Justice Subba Rao and Shah J.J., delivered a separate judgment. AYYANGAR, —this petition under Art. 32 of the Constitution challenges the constitutional validity. Only section 236 (b) was struck of as unconstitutional and everything else remained as is it.

            The Bench also held that “the right of privacy is not a guaranteed right under our Constitution, and therefore the attempt to ascertain the movements of an individual is merely a manner in which privacy is invaded and is not an infringement of a fundamental right guaranteed in Part III (fundamental rights)”. Justice Subba Rao also held “It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty.”[34]

GOVIND v. STATE OF MADHYA PRADESH[35]

            This case was the next big case, the petitioner had challenged the constitutionality of certain police regulations, similar to that of Kharak Singh, but in this case the three-judge bench were more inclined towards making privacy a fundamental right. The decision made was that right to privacy is implicit in right to life and personal liberty under article 21 of the constitution. Although it stated that privacy won’t be an absolute right and reasonable restriction must be imposed for greater and public good.

 

AADHAR CASE[36]

            The Aadhar was launched in January 2009 by the Niti Aayog and now comes under the Unique Identification Authority of India (UIDAI) i.e. a statutory authority set up by the Ministry of Electronics and Information Technology in 2016 under Aadhar act. It is set up as an identification document having a 12-digit unique identification number and contains the biometrics i.e. the finger impression of all the 10 fingers which can be accessed around the country and acted thus the biometric acted as a trigger for the immediate requirement for a privacy law since it feared that the personal information of citizen could be leaked since all the data was eventually stored at one single server. Aadhar can be issued to any resident or to a person holding Indian passport. It does not act as a proof of citizenship it just acts as a valid document to prove residence. It was introduced to provide fringe benefits to various sections of the society. Many concerns arose after the introduction of Aadhar. The main concern arises since all this personal information can easily be hacked and it once happened that the details collected by Reliance Jio were once leaked online. UIDAI itself confirmed that more than 200 government websites reflected these confidential data. The rapid expansion of the Aadhar scheme and the delay in decisions by the court gradually made Aadhar an inseparable part of the citizens. There were privacy and security concerns. Quite some petitions were filed in 2015 stating that Aadhar was violating the right to privacy and immediate action should be taken against it. It even affected some public figures such as Mahendra Singh Dhoni whose personal mobile number was uploaded on e-governance’s twitter account when a snapshot of his Aadhaar application form was uploaded by them. It felt that the data given for Aadhar which eventually leak. The case which was initially heard by a five-judge bench of the Honourable Supreme Court was forwarded to a nine-judge bench which engaged in debate between prominent lawyers and legal scholars that whether privacy is a fundamental right or not. Justice Chandrachud of the nine-judge Bench raised a concern that “I don’t want the state to pass on my personal information to some 2,000 service providers who will send me WhatsApp messages offering cosmetics and air conditioners… That is our area of concern. Personal details turn into vital commercial information for private service providers.”

            The Supreme Court repeatedly asked the government whether it plans to set up a “robust data protection mechanism.”

            “State is obliged to put a robust personal data protection mechanism in place in this digital age” stated the Supreme on the final day of arguments.

            The judgement given by the attorney general said that the constitution makers did not intend to add right to privacy in the constitution and adding it under article 21 of the constitution would lead to rewriting of the constitution. He argued since large number of judge bench gave this verdict the minor verdicts were supposed to be given in accordance with it. There were two main questions asked to the nine judge bench.

1. Is right to privacy a fundamental right?
2. And does Aadhar infringe this right?

            Other than these two questions many questions were asked with respect to Aadhar itself i.e. is it mandatory or optional, is linking of it with PAN compulsory etc.

            The Supreme Court judgement said that there are various places where it is mandatory to hold an Aadhar card like for tax assessment. The court in this verdict did not talk about privacy as it was related to human dignity and would affect article 21 and further passed it on to a larger bench.

JUSTICE K. S. PUTTASWAMY v. UNION OF INDIA[37]

            It was bought up by a retired Karnataka High Court judge, Justice Puttaswamy before a nine-judge bench comprising of justice J.S. Khehar, J. Chelameswar, S.A. Bobde, R.K. Agrawal, R.F. Nariman, A.M. Sapre, Dr. D.Y. Chandrachud, S.K. Kaul and S.A. Nazeer, in Supreme Court to determine whether right to privacy is a fundamental right or no following conflicting decisions of other various Supreme Court benches. The petitioner argued that this was an independent right under right to life. The respondent stated that the constitution only includes personal liberty which may include right to privacy partially. The court heard a series of detailed arguments and debates, on fundamental rights, interpretation for right to privacy and to understand its nature.

            The nine-judge bench unanimously accepted right to privacy as a fundamental right as an intrinsic right under right to privacy under article 21. The court overruled the judgement given in Kharak Singh and Govind.

Some of the judgements given by the judges are as follows:

• Bobde: The Judge observed that consent was essential for distribution of inherently personal data such as health records.
• Chandrachud (on behalf of himself, C.J. Khehar, J. Agrawal and J. Nazeer): This opinion stated that privacy was not surrendered entirely when an individual is in the public sphere. Further, it found that the right to privacy included the negative right against State interference, as in the case of criminalisation of homosexuality, as well as the positive right to be protected by the State. On this basis, the Judges held that there was a need to introduce a data protection regime in India.
• Kaul: on the other hand, recognizes the claims of privacy against the State and non-State actors. In respect of the State, he identifies concerns of surveillance and profiling, whereas, in respect of non-State actors, he emphasizes on the impact of technology, in the form of pervasive data generation, collection, and use in a digital economy. Justice Kaul also elaborates on the influence of big data, in particular, its impact on the actions of an individual and the resultant chilling effect it may have on free speech and expression. He thus observes the need to protect certain information from both the State as well as private actors.
• Finally, Justice Sapre focuses his opinion on the importance of the Preamble to the Constitution, and the principles of liberty, dignity, and fraternity enshrined therein.

Hence, this became the landmark judgement case which made right to privacy a fundamental right and the long 50-60 years of debate came to an end.

 

 

CONCLUSION

            It was the need of the hour to give privacy its due place in the constitution, as infringement of privacy had been a topic of concern since the 1950’s. This need is progressively evolving in the judgements; privacy is now a gift of modern jurisprudence. Scholars’ had been trying to define privacy from a long period of time. However, it did not evolve much on the legal front. Ultimately after long years of debate throughout the world privacy laws have been drafted and legislations have been passed. The development of these laws has been very gradual as even the judiciary was hesitant. By case to case basis privacy has now become a fundamental right. Privacy has now made its place in various constitutions around the world and has got a legal status. However, as any other right, privacy is not absolute; it has its certain restrictions for greater good. The meaning of right to privacy is different for everyone but everyone needs privacy in one form or another. It has been established by law that no one should be deprived of privacy.

 

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[1] Benjamin Franklin, Memoirs of the life and writings of Benjamin Franklin.

[2] Raymond Wacks, Personal Information Privacy and the Law, 20-21 (1994).

[3] Constitution of India

[4] Preamble of Constitution of India

[5] Thomas Cooley coined this phrase “right to be let alone” in his TREATISE ON THE LAW OF TORTS (1879).

[6] The United States Bill of Rights.

[7] Fourteenth Amendment to the United States Constitution adopted on July 9, 1868.

[8] Federal Privacy Act of 1974.

[9] Federal Monetization Act, 1999.

[10] COPPA, Children’s Online Privacy Protection Act of 1998.

[11] Department of National Heritage, Calcutt Committee Report on Privacy and Related Matters) Cm 1102, HMSO 1990).

[12] British press freedom and privacy.

[13] Police and Criminal Evidence Act.

[14] Interception of Communication Act.

[15] Sexual Offenders (Amendment) Act.

[16] Data Protection Act.

[17] Freedom of Information Act, 1982.

[18] Article 12, Universal Declaration of Human Rights.

[19] United Nations- Treaty Series ICCPR, Article 17 part 1.

[20] United Nations- Treaty Series ICCPR, Article 17 part 2.

[21] European Convention of Human Rights, article 8.

[22] United Nations on Migrant Workers

[23] United Nations Convention on the Rights of the Child

[24]African Charter on the Rights and Welfare of the Child

[25] Constitution of India

[26] Article 19 (1) (e), of the Indian Constitution

[27] Privacy Bill 2011

[28] Article 21 of the Indian Constitution

[29] Maneka Gandhi v. Union of India, AIR 1978 SC 597

[30] Indian Telegraph Act, 1885

[31] Supra at 199.

[32] Ram Jethmalani & Others v. Union of India, (2011) 8 SCC 1

[33] AIR 1963 SC 1295

[34] Ibid.

[35] AIR 1975 SC 1378

[36] Justice K. S. Puttaswamy (Retd.) and Anr. v. Union Of India And Ors, (2017) 10 SCC 1

[37] (2017) 10 SCC 1

Authored By:

ISHITA JHA

Student of Law, Amity Law School, Noida, Amity University Uttar Pradesh

Disclaimer: This article has been published in Legal Desire International Journal on Law, ISSN 2347-3525 , Issue 22, Vol 7