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Indian Journal of Law and Legal Research Volume II Issue I ISSN: 2582 8878
RIGHT TO PRIVACY
Kriti Kumari, The ICFAI University, Dehradun
ABSTRACT
"Privacyisn't negotiable. It's the right of every American" - Jackie Speier
"Life andpersonalliberty are inalienableto human existence" - D. Y. Chandrachud
The article is an effort to reflect the concept and to focus on various facets of right
to privacy in India. Law changes according to its social transformation. Right to
privacy is one amongst such right which has arisen after widening up the scope of
Article 21. In this article, our main focus on right to privacy. In the landmark
judgement in Indian history, Supreme Court consistently ruled that the right to
privacy is a fundamental right of every Indian citizen. It is an inherent human right
and only necessity for maintaining the human condition with dignity and respect.
Right to privacy while not expressly mentioned in the Indian Constitution, is an
inherent right under Right to life guaranteed by Article 21 of the Indian
Constitution. Therefore in this article we will discussing over a new dimension of
article 21 that in the right to privacy. The foundation of secrecy does not hold the
right to privacy, it lies on the foundation of dignity.
Keywords:- Privacy, Fundamental Right, Article 21, Indian Constitution,
Inherent Right, Negotiable.
1
Indian Journal of Law and Legal Research Volume II Issue I ISSN: 2582 8878
"Forto be free is not merely to cast off one's chains, but to live in a way that respects and
enhances the freedom of others."
-
Nelson Mandela
INTRODUCTION
Before we start complete discussion of Right to Privacy first of all we need to know about that
what does word privacy means, and definition of privacy.
According to Black's Law Dictionary 'Right to Privacy' means "the condition or state of being
free from public attention to interruption into or interruption with one's acts or decisions"1
which concludes to the right to be let alone; the person right 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 inevitably concerned. The right to privacy is derived from an English
Common Law maxim which states that "Every man's house is his castle" 2 . The existence of a
"private" element in an individual's life has also been recognized by Jeremy Bentham3
.
"Privacy" is especially difficult concept to define and cannot be understood as a static and one-
dimensional concept. It can only be a interpret as a group of rights4.
Privacy has also been considered as a "type of social isolation5 ; "right against unwarranted
intrusion by the state" 6; a "right against the intrusion on an individual's personal life or affairs"'
but presently right to privacy has become a major issue observing to concerns raised against
government's initiatives to collect personal data from citizens. The right to privacy has been
expand by the Supreme Court over a period of time. With the expansive interpretation of the
phrase "personal liberty" this right has been read u/a 21 of the Indian Constitution. The
expression of "personal liberty" contain the right of privacy alsos, however it cannot be treated
as an absolute right, some limitations on this right have been imposed.
EVOLUTION OF RIGHT TO PRIVACY IN INDIA
1 Black's Law Dictionary, Eighth Edition, South Asian Edition, Pg1233.
2 Semayne's case ((1603) 5 Coke's Rep. 91a: 77 ER 194 (KB).
3 Glenn Negley, Philosophical Views on the value of Privacy, 31 LAW & CONTEMP. PROBS. 321-22 (1966).
4 J. L. MILLS, THE LOST RIGHT 4 (Oxford University Press 2008)
5 Mannheim, Karl & John Stephen Eros, Ed., "An Introduction To The Study Of Society" (Literary Licensing,
Llc 2013).
6 Basu, Durga Das, Commentary On The Constitution Of India 4772 (3rd Ed. Lexis Nexis 2016).
7 Great Britain And David Calcutt, "The Calcutt Report Of The Committee On Privacy And Related Matters" 7
(Stationery Office Books 1970).
8 R. Rajagopal v. State of Tamil Nadu (1994) 6 SCC 632.
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Indian Journal of Law and Legal Research Volume II Issue I ISSN: 2582 8878
"Privacy makes possible individuality, and thus, freedom" 9 . The right to privacy is considered
as the most comprehensive and one of the most valued right by a civilized man1 0 .Privacy is
defined as 'the state of being is free from intervention"l or disturbance in one's private life or
affairs" 12Privacy as a universal concept and a legal right are two different issues which must be
dealt separately. Though everyone has their own definition of privacy, but the fundamental idea
on which the concept of privacy drives has existed from centuries but the courts are still
promote the concept of legal right of privacy through the judicial proclamation1 3
.
BEFORE 1975: RIGHT TO PRIVACY NOT EXPRESSLY RECOGNISED
Right to privacy has not been defined as a Fundamental Right in constitution of India. In 1954,
the case of M. P. Sharma v. Satish Chandra1 4 , the Supreme Court rejected the argument that
there exists a right to privacy under Article 20 (3)15, due to absence of any provision analogous
to the 4th Amendment of the US Constitution.
The scope of this right is first evolved in Kharak Singh v. The State of Uttar Pradesh
&
others16 , which was concerned with the validity of certain regulations that permitted
surveillance of suspects. This right to privacy is considered as the right to be let alone. In the
context of supervision, it has been held that supervision if intrusive and seriously encroaches
on the privacy of citizens, can be infringe the freedom of movement is guaranteed by the Article
19(1) (d) and Article 21 of Indian Constitution. Although, the Supreme Court began to accept
certain points of the minority view7, the right to privacy was still waiting for its place in Indian
constitutional jurisprudencel.
DURING (1975-2000): RIGHT TO PRIVACY IMPLIED IN ARTICLE 21 OF INDIAN
CONSTITUTION
In Govind v. State of Madhya Pradesh 9, Justice Mathew accepted that, the right to privacy
as an emanation from Article 19 (1) (a), (d) and 21, but right to privacy is not absolute right.
9 Robert S. Peck, The Right to Be Left Alone, 15 HuM. RTS. 26, 27 (1987).
10 Olmstead v. United States, 277 U.S. 438,478 (1928).
" Sharda v.Sharam Pal, Air 2003 SC 3450.
12 District Registrar & Collector v. Canara Bank, 2005(1)
SCC 496
1 Griswold v. Connecticut, 381 U.S. 479, 483
(1965).
14 AIR 1954 AIR 300.
15 Article 20 of The Constitution of
India.
16
AIR 1963 SC 1295.
17 State of West Bengal v. Ashok Dey, AIR 1972
SC 1660.
18 Jain, M.P., The Supreme Court and Fundamental Rights in S. K. VERMA, KUSUM (EDS.), FIFTY YEARS
OF THE SUPREME COURT (Oxford University Press 2015).
19 1975 AIR 1378, 1975 SCR (3) 946
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Indian Journal of Law and Legal Research Volume II Issue I ISSN: 2582 8878
"The fundamental rights clearly guaranteed to a citizen have penumbral regions and that the
right to privacy is itself a fundamental right, the fundamental right must be question to
restriction on the very root of entrancing public interest" 20 . Surveillance by which the
domiciliary visits are not always be an unreasoning invasion in privacy of a person owing to
the character and antecedents of the person subjected to surveillance as also the objects and
limitation in which the surveillance is setup. The privacy right deals only with 'persons not
places'. In this decision, Justice Mathew taking the US jurisprudence 21 into consideration,
observed that the right to privacy exists within the penumbral zones of the Fundamental rights 22
explicitly guaranteed under Part III of the Constitution. 23
In another case Smt. Maneka Gandhi v. Union of India & Anr24 , the Supreme Court held
that 'personal liberty' under article 21 shelters a variety of rights and some have status of
fundamental rights and has been given additional protection under Article19 of the Indian
Constitution.
The Triple Test for any law intrusive with personal liberty:
1. It must prescribe a procedure;
2. The procedure must endure the test of one or more fundamental rights conferred under
Article 19 of Indian Constitution which may be applicable in a given situation;
3. It must withstand test of Article 14. The law and procedure authorizing interference with
personal liberty and right of privacy are also must be the right just and fair and not arbitrary,
fanciful or oppressive.
In P.U.C.L. v. Union of India25 , the Supreme Court of India, while laying down the standards
for telephone wire tapping had observed that the right to privacy is an integral part of the
fundamental right to life protected under Article 21 of the Constitution and this right shall be
available only against the state. Prior Justice P.N Bhagawati had also observed that the right to
life and personal liberty also includes the right to live with human dignity and all that goes
along with it, namely, the basic necessaries of life such as proper nutrition, clothing and shelter
and facilities for reading, writing and expressing oneself in varied forms, freely moving about
and mixing with fellow human beings. The actions which may damage individual's dignity will
20 Bowers v. Hardwick, 478 U.S. 186 (1986).
21 Charles Henry Alexandrowicz-Alexander, American Influence on Constitutional Interpretation in India, 5
AM. J. COMP. L. 98, 100 (1956).
22 Griswold v. Connecticut, 381 U.S. 479.
510.
23 Jane Roe v. Henry Wade, 410 U.S.
24 1978 AIR 597, 1978 SCR (2)
621.
2s (1997)1 SCC
30.
4
Indian Journal of Law and Legal Research Volume II Issue I ISSN: 2582 8878
constitute the violation of his right to live and it would have to be in accordance with reasonable,
fair and just procedure recognized by the law which stands the test of other fundamental rights."
Hence, one could observe from the above cases that the Supreme Court had acknowledged that
the human dignity implies expressing oneself in diverse forms and acknowledges the worth of
all individuals in the society 26
.
2000 TO PRESENT: RECGONITION AND SAFEGUARDSALONG WITH
REASONABLE RESTRICTIONS TO THE RIGHT TO PRIVACY
In Mr X v. Hospital Z 27 , the apex court held that, right to privacy in doctor patient relationship
is not absolute. Right to healthy life would justify breach of secrecy or right to privacy of
another person.
In another case Directorate of Revenue v. Mohd Nisar Holla 28 , the court held that an
individual who does not break any law would be entitled to enjoy his life and liberty which
include the right not to be disturbed. A right to be let alone is recognized to be a right under
article 21.29
In the most recent landmarks judgement of the case K.S. Puttaswamy (Retd.) and Ors. v.
Union of India (UOI) and Ors30 , the apex court of India held that, if the observations made in
M.P. Sharma and Ors. v. Satish Chandra and Ors3 1.and Kharak Singh v. State of U.P.
and Ors3 2 . are read literally and putative as law, the fundamental rights guaranteed under the
Constitution of India and more particularly right to liberty under Article 21 of the Indian
Constitution would be denuded of vigor and vitality. Institutional integrity3 3 and judicial
discipline 34 requires that assertion made by superior benches of this Court cannot be overlooked
by the smaller benches without appropriately clearing up the reasons for not following the
decrees pronounced by the larger benches. It is better that the ratio decidendi in the two cases
is scrutinized and the jurisprudential correctness of the subsequent decisions of this Court where
the privacy right which is contend or referred be examined and dependable decided by a bench
of appropriate strength.
26 Francis Coralie Mullin v. The Administrator, Union Territory of Delhi & Others, (1981)2 SCR 516.
27 (1998)8 SCC 296.
28 (2008) 2 SCC
370.
29 Gobind v. State of M.P. [(1975) 2 SCC 148].
30 2015 (8) SCALE 747.
31 1954 AIR 300.
32 AIR 1963 SC
129.
33 Indore Development Authority v Shailendra (Dead) Through LRS. & Ors, Civil Appeal No.20982 Of 2017
34 State of Haryana v M/s G.D.Goenka Tourism Corporation Limited, SLP No. 8453/2017
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Indian Journal of Law and Legal Research Volume II Issue I ISSN: 2582 8878
Lord Denning contended for the knowledge of right to privacy that, "English law should
recognize a right to privacy3 5 . Any infringement of it must give a cause of action for damages
or an injunction as the case may require. It should also recognize a right of certainty for all
correspondence and communications which expressly or impliedly are given in confidence.
None of these rights is absolute. Each is subject to exceptions. These exceptions are to be
allowed whenever the public interest in acceptance outweighs the public interest in privacy or
secretness. In every reason it is a balancing exercise for the Courts. As each case is decided, it
will form a precedent for others. So, body of case law will be established." 36
The Apex Court has admitted that personal liberty is taken as a compendious term to embrace
the varieties of rights which maintain the 'personal liberties' of an individual other than those
dealt with in Article 19(1). The court held that, while Article 19(1) deals with particular types
or parts of freedom, "personal liberty" in Article 21 takes in and encompasses the residue. 3 7
However, the right to privacy may not be absolute and in exceptional circumstances
surveillance as per statutory provisions may not violate such a right.
TECHNOLOGY AS A THREAT TO PRIVACY
At presently we are live in technological era it has its own advantages as well as limitations.
While on the positive side, the world has become more open in the sense of communication at
the national as well as international level; while on the negative side technological era has
brought in new ethical and judicial problems.
There are some challenges that pose as the greatest threat to the right to privacy in the present
times:
1. Telephone tapping:
It constitutes a grave invasion to the right to privacy. The telephonic conversation amounts to
the exercise of the right to freedom of speech and expression of a person, which is protected by
Article 19(2). In India the Telephone tapping is given u/s 5 (2) of the Telegraph Act, 1885; but
only under certain special circumstances.
2. Data protection in the telecom sector:
35 Lord Denning, 'What Next in Law', 1982, Lexis Law Publishing
36 Ibid
3 Kharak Singhv. State of U.P. AIR 1963 SC 1295.
6
Indian Journal of Law and Legal Research Volume II Issue I ISSN: 2582 8878
Right to privacy refers to the specific right to an individual to control the collection, usages as
well as disclosure of personal information. This personal information could be in any form like
family records, educational records, medical records, communications, financial records, etc.
Information Technology Act, 2000 was enacted to provide a comprehensive supervisory
environment for e-commerce. Section 69 of this act empowers the controller to direct any
government agency to intercept any computer resource. It is also requires that the users either
disclose the encryption keys or face imprisonment for up to 7 years. Section 72 of this act is
the only express provision in the act that is connected with privacy and breach of
confidentiality.
3. Real-Time tracking:
Now a days the Global Positioning System (GPS) tracking is one of the most common ways
for tracking vehicles. Although it is a great technology, it is fairly possible that a person's right
to privacy may be violated during the process, as this technology provides ample information
after investigating the activity of the person. Hence, it would not be wrong to say that GPS
tracking is the double edged sword, having both positive and negative facet.
4. UIDAI (Unique Identification Authority of India):
It is a body of the government which works as an issuing authority of Unique Identity Card
(UID) to every person. A UID is an identity issued by the UIDAI to provide a unique identity
to every person after acquiring his/ her personal information i.e. Fingerprints, Iris pattern,
Name, Address, and Date of birth, etc. This includes a person's biometric information, hence
it can be considered as the most private details of any individual. A bill was introduced in 2010
to up lift the confidentiality of the biometric information, allowing it to be shared in the interest
of national security.
In the UIDAI and Anr. CBI, the C.B.I sought access to the huge database that was compiled by
the UIDAI, in order to investigate a criminal offense. It was held by the Supreme Court that
UIDAI was not assumed to transfer any bio-metrics without the consent of the person so
involved.
SIGNIFICANT ASPECTS OF RIGHT TO PRIVACY
Following are the significant aspects that are related to the right to privacy while enacting laws
that Indian Legislature must keep in mind while making privacy laws.
1. Protection from illegal and arbitraryinterference
7
Indian Journal of Law and Legal Research Volume II Issue I ISSN: 2582 8878
By the Private and the government parties- The law makers must ensure that an individual's
right to privacy must not interfered with an arbitrary and unlawful fashion. Currently, the
judicial precedents forbid abuse of the right to privacy of an individual by Government
agencies. A comprehensive law must provide for protection from imposition by the
Government as well as private parties. The legal framework must also address problems
relating to trespass upon individual privacy, audio and video surveillance and interception of
communications (including digital and electronic communications). It must also try and
prohibit/restrict the use of cutting-edge technology to trespass upon privacy rights and personal
data. Currently, the right to privacy on the Internet is being endangered due to numerous
elements such as web cookies 38 , unsafe electronic payment systems, Internet service forms,
browsers 39 and spam mail. 4 0
2. Protection of Medical Records
Medical records were used chiefly by physicians and medical insurers. However, with the
formation of electronic records and large databases of medical data, the number of health
professionals and organizations with access to medical records has increased. While such
availability allows for research that can recover the understanding of diseases and treatments
across large populations, the number of parties with routine access to personally identifiable
medical data has raised concern about the possible misuse of this data41 . It is necessary for such
data is not collected and sold to researchers in the field of biomedical science, without the
consent of the patients. With the arrival of the internet, it has become increasingly difficult to
track such data and not only does it amount to an invasion of privacy, but it also amounts to
breach of duty of concealment that medical professionals owe their patients. However, in
interest of the general public if any action taken in that regard cannot be termed as
unconstitutional as under Article 47.42
3. Protection of financial records
As the cases of fraud are increasing rapidly it is also needed that to pass special guidelines in
order to prevent frauds and various other crimes. Financial records of individuals must be
38 http://www.cookiecentral.confaq/
39 An Internet Browser interprets HTML the programming language of the Internet, into the words and graphics
that are seen my Internet users when viewing a web page.
40 3Spam is the use of e-mail addresses for a purpose that consumers have not consented for and constitute a
violation of personal rights.
41 "US Report to Congressional Requesters on Medical Records
Privacy",www.epic.org/privacy/medical/gaomedical-privacy399.pdf.
42 M. Vijaya v. Singareni Collieries Co. Ltd., AIR 2001
AP 502.
8
Indian Journal of Law and Legal Research Volume II Issue I ISSN: 2582 8878
protected from being distributed and circulated among banks and financial companies without
the consent and knowledge of its holder except in accordance to the procedure established by
law, as it may result in the misuse of such information which will also result in the breach of
right to privacy of an individual and may also lead to various other crimes such as kidnapping,
extortion etc.
4. Preventing excessive monitoring of employees by the employer
Another major concern, especially among the working class is the excessive surveillance of
employee's Activities by their employers. This is an issue of rising importance and must be
dealt with in a inclusive manner. This shares to personal information as discussed earlier. This
is done by so-called electronic eyes. The explanation by companies for the use of such
technology is to increase efficiency. Stair, however, in argument of this practice, evidently
points out the ethical problem pertaining to the use of this technique. According to him the
privacy of an individual in the workplace is endangered by these devices. This can also lead to
a feeling of anxiety and of all time being monitored the so-called panoptic on phenomenon. 43
CONCLUSION
In the present era of the growing information technology, the term "privacy" has been defined
as the right of the individual to limit the extent to which he desires to share of himself with
others. The constitutional makers might not have envisioned the said right in the constitution,
but the technology we are experiencing presently is far unlike and advanced form of the lives
of generations who drafted the constitution. In this regard the judgement of the Hon'ble
Supreme Court is amended in the sense that it provided for the "Privacy" to be a right under
the ambit of part III of the Indian constitution.
So, there is a need for changing in the method of resolution for the newly emerging problems
and solutions must undergo a procedure of re-engineering.
4 Stair, R.M. Principles of Information Systems. A Managerial Approach. Boston: Boyd & Fraser, Pg665, 1992.
