Right to Privacy as a fundamental right

Introduction: Right to privacy in its simplest sense means ‘right to be left alone’. Black’s Law Dictionary defines it as the “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”. The right to privacy, in the context of the Indian Constitution, went through a long struggle to be finally recognized as a fundamental right under Article 21. As per Article 21,

No person shall be deprived of his life or personal liberty except according to the procedure established by the law.”

 Earlier in the case of A.K. Gopalan v. State of Madras [1], the words stated in Article 21 were given very narrow interpretation; therefore, the question regarding privacy rights didn’t arise. The issue came into light in Kharak Singh v. State of U.P. [2], where police went for regular visits to the appellant’s house under Regulation 236 of UP Police Regulations violating his privacy. The Supreme Court held the regular and night checks on the appellant by the police to be in violation of Article 21. It should be noted that the terms ‘life and personal liberty’ do not amount to mere physical existence but a life with dignity and opportunities.  However, despite the order being in favour, the right to privacy wasn’t recognized as a fundamental right in Kharak Singh case [3]. The same was followed in M.P. Sharma v. Sarish Chandra [4].

It was finally in the case of Justice K.S. Puttaswamy v. Union of India [5], where the controversy emerged regarding the Indian government’s Aadhar Card scheme poking public’s demographic and biometric data. It was held in 2017 by a three-judge bench in Puttaswamy case [6] that the right to privacy is a fundamental right under the wide realm of Article 21.

Various Aspects of Right to Privacy:

  1. Disclosure of medical information and Right to Privacy: Right to privacy is not an absolute right; when public interest or individual safety is concerned right to privacy might take a backseat. In Mr. ‘X’ v. Hospital ‘Z’ [7] the patient was reported HIV positive due to which his marriage got cancelled. The appellant (patient) approached court on the ground of disclosure of his medical information thus invading his ‘right to privacy’. It was held by the Supreme Court that right to privacy might be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others [8].
  1. Telephone Tapping and Right to Privacy: The Supreme Court in People’s Union for Civil Liberties v Union of India [9], held Section 5 of the Indian Telegraph Act, 1885 to be ultrawires considering the ‘right to privacy’. The act authorized the Central or State government to intercept phones in the certain circumstances as mentioned. It is the right of an individual to text or call from one’s home/office telephone whilst enjoying his privacy. Thus, phone tapping is considered as a foray to an individual’s privacy.
  1. Homosexuality and Privacy: Every individual deserves privacy and freedom to make choices regarding their sexual identity. The long stretched taboo regarding LGBT community was finally settled by striking down section 377 of the Indian Penal Code, 1860. The issue was raised by Naz Foundation [10] claiming sexual relations and one’s sexual identity as an attribute of right to privacy. Further in National Legal Services Authority vs. Union of India8 [11] transgender was recognized as a third gender and instructions were forwarded to the government to treat them as minorities and provide them with reservations in education, jobs, etc.
  1. Women’s right to make reproductive choices: A women is free to make reproductive choices for her. It was observed by a three judge bench in Suchita Srivastava v. Chandigarh Administration [12] that a women’s acceptance to procreate or refusal to procreate are the part of her ‘right to privacy’ provided by Article 21 of the Indian Constitution. 
  1. Right to Information and Right to Privacy: The RTI Act, 2005 does not allow the disclosure of the information which interferes with the privacy of any individual unless that information is required for a greater public good. Section 8(1)(j) of the RTI Act provides that there is no obligation to disclose personal data of a public servant which has no ties with public activity or interest. The Supreme Court in R.K. Jain v. Union of India [13] denied the disclosure of note sheets in Annual Confidential Report (ACR) of a public servant pertaining to Section 8(1)(j) of the RTI Act.

Protection of Privacy- By Government :

  • Personal Data Protection Bill, 2019: The Personal Data Protection Bill was recommended by Justice B.B. Srikrishna considering the growing importance of data and digitalization. It aims at protecting personal data of individuals by establishing a Data Protection Authority. The PDPB also prescribes the manner in which personal data is to be collected, processed, used, disclosed, stored, and transferred. [14] Obligations have been assigned to data fiduciaries (any entity that processes and uses the personal data) to use data only for lawful purposes whilst ensuring the privacy of the individual whose data is concerned. Further, heavy penalty will be imposed in case of violation of the provisions laid down in the bill. Robust data protection is need of the hour for India and therefore suitable provisions with stringent execution are necessary.

Conclusion: A human life means a life where a person can grow and live with dignity. The right to privacy is an essential facet of Right to life and liberty under Article 21. An individual cannot live his life by being under watch all the time. The right to privacy is a fundamental right under the Constitution of India. However, it must be noted that it is not an absolute right; this implies that when larger interests like health, national security etc are involved privacy of an individual can be infringed. The right to privacy has now taken a new direction with growing digitalization. Cybercrimes are increasing at a fast pace, personal data are often leaked for self-serving purposes; further, the awareness regarding ‘data dignity’ is negligible. The invasion of privacy and personal data of people without one’s consent is purely scandalous and unacceptable. The right to privacy is not a sacrosanct principle but still, a basic necessity for every individual and its violation should only be confined to lawful purposes.

References:

  1. AIR 1950 SC 27.
  2. AIR 1964 SC 1295.
  3. Kharak Singh v. State of U.P., AIR 1964 SC 1295.
  4. AIR 1954 SC 300.
  5. AIR 2015 SC 3081.
  6. Justice K.S. Puttaswamy v. Union of India, AIR 2017 SC 4161
  7. AIR 1999 SC 495.
  8. Dr. Narendra Kumar, Constitutional Law of India, Allahabad Law Agency, Tenth edition, 2018, p- 374.
  9. AIR 1997 SC 568.
  10. Naz Foundation vs. Govt. of NCT of Delhi, 160 Delhi Law Times 277 (Delhi High Court 2009).
  11. WP (Civil)No 604 of 2013.
  12. AIR 2010 SC 235.
  13. (2013) 14 SCC 794.
  14. Angelina Talukdar, India; Key Features of The Personal Data Protection Bill, 2019, https://www.mondaq.com/india/data-protection/904330/key-features-of-the-personal-data-protection-bill-2019

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