Right to Privacy: Its Sanctity in India
The article 'Right to Privacy: Its Sanctity in India' is a Comprehensive Study of the importance of privacy under our Indian Constitution, along with various judicial pronouncements to strengthen the Constitutional Provisions.
The article 'Right to privacy: Its Sanctity in India' by Prachi Panwar is a Comprehensive Study of the importance of privacy under our Indian Constitution along with various judicial pronouncements to strengthen the Constitutional Provisions. The article also throws light on the historical background of the Right to Privacy and various debates associated with it. The author suggests the strategies required to reinforce the right to privacy.
Introduction
Privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty provided under Article 21 of the Constitution. The idea of privacy is as old as the history of mankind itself. It can be concluded from the Constituent Assembly Debates that the Right to Privacy was deliberately not included in the Constitution of India. When we talk about the right to privacy in the post-independence era in India, it has been observed that the Constitution does not expressly recognize the right to privacy but it has evolved through judicial precedents.
For the first time, the right to privacy was recognized in the case of Kharak Singh v. State of UP.[1]. There are various legislations present which contain some provisions that one can relate to privacy such as Indian Evidence Act, Indian Penal Code, Information Technology Act, Criminal Law, Family Law, Indian Easement Act, and Indian Telegraph Act.
There are various aspects of privacy such as privacy of space, the privacy of information, the privacy of body, and privacy of choice which has been evolved over time and in today’s digital era there is a greater need to protect this right.
History of the Right to Privacy
The need for the protection of privacy was felt by human beings from ancient times, however, the concept was not well defined. The jurisprudence has evolved ever since and the right to privacy was read into ‘Article 21’ of our Constitution by the Supreme Court as an integral part of ‘personal liberty’.
Privacy is not a fundamental right was first held by the Hon‘ble Supreme Court in the year 1954. In M.P Sharma v. Satish Chandra[2], the Court dismissed the existence of a right to privacy on the basis that the makers of the Constitution had not envisaged a fundamental right to privacy.
After nine years, in Kharak Singh v. State of Uttar Pradesh[3], the majority of the judges participating in the decision again rejected the right to privacy and held that “our Constitution does not in terms confer any like constitutional guarantee.”
Meaning of Right to Privacy
Black’s Law Dictionary says that the ‘right to privacy’ is a generic term encompassing various rights recognized to be inherent in the concept of ordered liberty, and such rights prevent government interference in intimate personal relationships or activities, freedoms of individuals to make fundamental choices involving himself, his family, and his relationship with others. Privacy has also been described as the rightful claim of the individual to determine the extent to which he wishes to share himself with others and his control over the time, place and circumstances to communicate with others.
Constituent Assembly Debate on Privacy
There is no constitutional right to privacy as such. The Constitution of India was adopted on 26 January 1950, and it nowhere mentions the right to privacy. It appears that the framers of our Constitution had considered including a right to privacy in the Constitution but, for some reason they did not include it in the Constitution.
The right of the people to be secure in their persons, houses, persons and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.
Right to Privacy and Telephone Tapping
Section 5(2) of the Indian Telegraph Act, of 1885 empowers the Central Government or the State Government or any specially authorized officer, to intercept messages if satisfied that it is necessary or expedient so to do in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, or for preventing incitement to the commission of an offence. It can be done in the event of the occurrence of a public emergency or in the interest of public safety for reasons to be recorded in writing.
In People’s Union for Civil Liberties v. Union of India[4], Hon’ble Court laid down certain procedural safeguards to be observed before resorting to telephone tapping under section 5(2) of the Act. Except in cases, when the Indian Telegraph act, of 1885 empowers the State to intercept messages, telephone tapping would be a violation of the right to privacy.
Further, an act of tapping by the husband into the conversation of his wife with others without her knowledge is illegal and amounts to an infringement of her right to privacy under Article 21 of the Constitution of India.
Live-In-Relationship and Privacy
India is a free democratic and secular country and therefore, any person who has attained majority has the right to live freely with anyone. Allahabad High Court in the instant case ruled that a person, he or she, who attained 18 years of age, being major according to Section 3 of Indian Majority Act,1875, was deemed to understand his/her welfare and hence he/she could go wherever he/she liked and live with anybody. He/She could not be restrained from doing so, even by the parents. Individual Liberty under Article 21, the court ruled, had the highest place in Constitution.
Right to Privacy is not an absolute Right
In Mr. ‘X’ v. Hospital ‘Z’, [Appeal (civil) 4641 of 1998], the question before the Supreme Court was whether the disclosure by the Doctor that his patient, who was to get married had tested HIV positive, would be violative of the patient’s right to privacy, an essential component of the right to life envisaged by Article 21.
Supreme Court ruled that the right to privacy was not absolute and might be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others. The Court held that the doctors by their disclosure that the patient was HIV (+), could not be said to have, in any way, either violated the rule of confidentiality or the right to privacy.
Invasion of Privacy
In the case of K.S Puttaswamy v. Union of India[5], Justice D.Y. Chandrachud laid down the following tests which are required to be satisfied for judging the permissible limits of the invasion of privacy under Article 21 of the Constitution. They are:
(a) The existence of a law
(b) A legitimate State interest; and
(c) The said law should pass the test of proportionality
Privacy and Aadhar
Aadhar is a serious invasion of the right to privacy of persons and it has the tendency to lead to a surveillance state where each individual can be kept under surveillance by creating his/her life profile and movement as well as his/her use of Aadhar.
The current focus on the right to privacy is based on the realities of the digital age. India is rapidly becoming a digital economy problems of ID theft, fraud and misrepresentation are real concerns.
What happens if tomorrow we are told that the right to privacy is not a fundamental right? The right to privacy will lose its status amongst the Golden Trinity of Article 14, Article 19 and Article 21 of the Constitution. These rights can only be taken away from us by just and reasonable law, which is the paramount protection that our Constitution offers us.
Suggestions
Although efforts have been made to define the right to privacy there is no concrete definition of “right to privacy” in Indian legislation hence the foremost step should be to define the ‘right’ in order to protect the right. In the current scenario, it becomes very important to give a definition which covers all aspects of the right to privacy.
Also, we have several laws which protect the right to privacy in one way or the other. But in reality, we don’t have any law which protects complex issues of privacy in today’s digital age-related to personal data, sensitive information etc. Hence, there is a need for stringent laws which covers all aspects of privacy.
The government’s basic obligation is to protect its citizens’ rights. Privacy consciousness is very low in India. Hence, the government should make people conscious of their personal data. The data controller should be made accountable for the collection, processing and use into which data are put. The government should also provide internal procedural safeguards with independent external monitoring for the protection of rights.
Conclusion
With the recognition of privacy as a basic and fundamental right of an individual, India definitely cannot lag behind. An expert committee must be formed to probe into the matter of how many privacy infringement issues are taking place in India.
References
[1] 1963 AIR 1295,1964 SCR(1) 332
[2] 1954 SCR 1077
[3] 1964 SCR (1) 332
[4] AIR 1997 SC 568
[5] (2017) 10 SCC 1
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