Right To Privacy in India

The Harvard Law Review article "The Right to Privacy," written in 1890 by Boston legal partners Samuel D. Warren and Louis Brandeis, is credited with establishing the concept of a personal privacy invasion as a new tort. The Boston Partners offered a solution to press invasions of privacy in their published paper. Regarding the essay, eminent jurist and Harvard Law School Dean Roscoe Pound (1916–1936) said, "it did nothing less than add a chapter to our law."

The international community recognises the right to privacy as a fundamental human right that forms the cornerstone of several other rights. The 1948 Universal Declaration of Human Rights (UDHR) and the 1966 International Covenant on Civil and Political Rights (ICCPR) both acknowledge privacy as a right. People are legally protected from "arbitrary interference" with their privacy, family, communication, home, reputation, and honour under Articles 12 of the UDHR and 17 of the ICCPR.

In 2017, the Supreme Court of India recognised and affirmed the right to privacy as a fundamental right. Article 12 of the 1948 Universal Declaration of Human Rights Act recognises the right to privacy as a fundamental human right. Scroll through the article to know more.

Right to Privacy - Article 21 Of The Indian Constitution

Article 21 of the Indian Constitution guarantees that no one can be deprived of their life or personal liberty except by a procedure established by law. This right includes the Right to Privacy, as confirmed by the Supreme Court in the landmark Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) case. The Court ruled that privacy is an essential part of the Right to Life and Personal Liberty.

Here are some key points about the Right to Privacy under Article 21:

• Definition and Scope: The Right to Privacy protects personal autonomy and information from unwarranted intrusion.
• Judicial Interpretation: Recognized by the Supreme Court in Puttaswamy v. Union of India (2017) as part of the Right to Life and Personal Liberty under Article 21.
• Implications: Affects data protection, limits on state surveillance, and personal decision-making autonomy.
• Legislative Framework: Prompted the development of data protection laws like the Personal Data Protection Bill.
• Challenges and Future: Balancing privacy with security and other interests remains an ongoing challenge

History And Evolution Of The Right To Privacy In India

Every citizen of the nation should be granted fundamental rights, which are fundamental freedoms that are ingrained in every human being combined with appropriate corrective measures. The journey of the "right to privacy" to become a fundamental right under the Indian constitution has been a long one. To support the discussion and provide a clear and unambiguous understanding of the right to privacy, it is necessary to explain some significant case laws.

A.K. Gopalan V. State Of Madras

Background:

The case A.K. Gopalan v. State of Madras (1950) was one of the first significant constitutional issues in India after independence. A.K. Gopalan, a well-known communist leader, was arrested under the Preventive Detention Act of 1950, sparking debate over the boundaries of state authority and the defense of individual rights. The key constitutional articles in question were:

• Article 19: Protects the right to free speech and expression.
• Article 21: Upholds the right to life and individual liberty.

The central issue was whether the State’s preventive detention policies violated the constitutional rights of Indian citizens.

Judgment:

The Supreme Court delivered a landmark decision in this case. It upheld Gopalan’s detention, ruling that the Preventive Detention Act did not violate the Constitution. The Court interpreted Articles 19 and 21 separately, deciding that the procedure established by law under Article 21 was sufficient for preventive detention, without needing to assess its impact on the freedoms protected by Article 19. This judgment played a crucial role in shaping the interpretation of fundamental rights and civil liberties in India, setting a precedent for how state authority and individual freedoms are balanced under the Constitution.

Gobind Vs State Of MP

Background:

The case is important to the development of the right to privacy in India because it was the first time the Supreme Court addressed privacy in-depth as a constitutional matter. The petitioner contested the police monitoring laws under the Madhya Pradesh Police Act, arguing that these laws infringed upon his fundamental rights guaranteed by Articles 19(1)(d) and 21 of the Constitution.

Judgment

The Supreme Court upheld the laws, ruling that they were a fair limitation on the rights of repeat offenders and served a legitimate public purpose in preventing crime. Although the right to privacy is not explicitly stated in the Constitution, the Court acknowledged that it is derived from other fundamental rights. The ruling demonstrated the early recognition of privacy as a constitutional concern, even though it is subject to state interests. It also emphasized the necessity for state regulations to balance private rights with public security.

MP Sharma Vs Satish Chandra

Background

An important early case in the development of the right to privacy in India involved the Dalmia Group, which contested the legitimacy of search and seizure regulations under the Code of Criminal Procedure in 1953. The issue at hand was whether these regulations violated constitutional rights.

Judgment

The Supreme Court held that the search and seizure actions did not violate Article 20(3), which protects against self-incrimination. The Court determined that these actions were brief and constituted legitimate limitations on property rights. Additionally, the Court found that the right to privacy was not explicitly guaranteed by the Constitution, emphasizing the necessity of state authorities' powers, such as search and seizure, for maintaining social security and their intended unrestricted use. This decision is noteworthy as it reflects the early court position that prioritized governmental authorities over the right to privacy—a perspective that would evolve significantly in subsequent years.

Kharak Singh V. State Of UP

Background

The seminal case Kharak Singh v. State of U.P. (1963) has been pivotal in shaping the development of the right to privacy in India. The Supreme Court was tasked with evaluating whether certain practices, specifically domiciliary visits by police, infringed upon constitutional rights.

Judgment

The Supreme Court held that the right to life under Article 21 extends beyond mere existence but did not yet recognize privacy as a constitutional right. The Court upheld other forms of monitoring, asserting that they did not restrict freedom of movement. However, it declared the practice of domiciliary visits unlawful, citing their invasion of personal liberty. This case is significant because, while it did not explicitly establish privacy as a fundamental right, it was the first to acknowledge the concepts of privacy and human dignity, laying the groundwork for future legal advancements in the field.

Legislative Framework Related To Right To Privacy In India

The following is the legislative framework:

Information Technology Act

The Information Technology (IT) Act, 2000, is a key legislative framework in India that addresses issues related to cybersecurity, electronic commerce, and data protection. Some of the key provisions related to privacy include:

1. Section 43A: This section mandates that companies possessing, dealing with, or handling sensitive personal data must implement reasonable security practices and procedures. Failure to do so can result in compensation to the affected individuals.
2. Section 66E: It penalizes the violation of privacy by capturing, publishing, or transmitting images of a private area of any person without their consent.
3. Section 72A: It deals with the breach of confidentiality and privacy by service providers. If a service provider discloses personal information without consent and causes wrongful gain or loss, they can be punished with imprisonment and fines.
4. The IT (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011: These rules, notified under Section 43A, define "sensitive personal data" and outline the requirements for processing such data, including obtaining consent and implementing security measures.

Personal Data Protection Bill, 2019

The Personal Data Protection (PDP) Bill, 2019, represents a significant step towards establishing a comprehensive legal framework for data protection in India. Key aspects of the bill include:

1. Scope: The bill applies to the processing of personal data by the Government, companies incorporated in India, and foreign companies dealing with the personal data of individuals in India.
2. Data Principal and Data Fiduciary: The bill introduces the concepts of "data principal" (the individual whose data is being processed) and "data fiduciary" (the entity that determines the purpose and means of processing data).
3. Consent: It mandates explicit consent from individuals before collecting and processing their data, ensuring that consent is free, informed, specific, clear, and capable of being withdrawn.
4. Data Protection Authority (DPA): The bill proposes the establishment of a Data Protection Authority to oversee and enforce the provisions of the law, including handling grievances related to data breaches.
5. Rights of Individuals: The bill grants individuals rights such as the right to access, correction, erasure, and data portability, enhancing control over their personal information.
6. Cross-border Data Transfers: It places restrictions on the transfer of sensitive and critical personal data outside India, ensuring that such transfers are subject to adequate safeguards.
7. Penalties: Non-compliance with the bill’s provisions can lead to severe penalties, including fines of up to 4% of the global turnover of the company or ₹15 crores, whichever is higher.

The PDP Bill aims to provide robust protection for personal data while balancing the need for data processing by businesses and the government. However, it has raised concerns about potential overreach by the state, particularly in the exemptions granted to the government for national security and law enforcement purposes.

Other Relevant Laws

Indian Penal Code (IPC), 1860: Certain provisions of the IPC are relevant to privacy protection:

• Section 354C (Voyeurism): Penalizes the act of watching or capturing the image of a woman engaging in a private act without her consent.
• Section 499 (Defamation): Addresses privacy in the context of protecting an individual's reputation against false statements.
• Section 509: Punishes individuals who insult the modesty of women, which can be extended to cover violations of privacy.

The Supreme Court On Right To Privacy

In the historic case of Justice K.S. Puttaswamy and Anr. v. Union of India and Ors., the Indian Supreme Court declared in 2017 that the right to privacy is a basic right in the country. The nine-judge panel, presided over by former Chief Justice of India J.S. Khehar, unanimously concluded that Articles 14, 19, and 21 of the Indian Constitution provide the right to privacy. The court also decided that all information about an individual and their decisions falls under the purview of their right to privacy, which is an essential component of their right to life and personal liberty.

Nine-judge On August 24, 2017, the Constitution Bench, presided over by Chief Justice J.S. Khehar, rendered a historic ruling regarding the right to privacy. According to the Supreme Court, the right to privacy is "intrinsic to life and personal liberty" and is thus inalienably safeguarded by Article 21 as well as by Part III of the Constitution's guarantees of freedom. The Chief Justice read out the unanimous decision reached by the nine-judge bench, stating that the court had disregarded its own eight-judge bench and six-judge bench rulings from the M.P. Sharma and Kharak Singh cases, which were rendered in 1954 and 1961, respectively, and which declared that the constitution did not protect privacy. To overturn these two judgements, Chief Justice J.S. Khehar-led five-judge Bench had submitted the issue of whether or not privacy is a fundamental right to the numerically stronger nine-judge Bench

Understand The Scope Of Fundamental Rights In Light Of The Right To Privacy

The scope of basic rights was broadened by the Supreme Court of India's historic 2017 opinion in K.S. Puttaswamy v. Union of India, which held that the right to privacy is an essential component of the right to life and personal liberty. The court further declared that privacy is guaranteed under Articles 14, 19, and 21 of Part III of the Constitution. If someone's basic right to privacy is breached, this verdict permits anyone—including non-citizens—to immediately approach the Supreme Court or High Courts to seek justice. People who have the right to privacy are shielded from being watched in various spheres of life, such as their eating habits, partners, decisions, and travels. It is not unqualified, nevertheless, and may be subject to reasonable restrictions to safeguard the interests of the state.

International Perspectives On The Right To Privacy

The right to privacy, on the other hand, has emerged as one of the most important human rights of the contemporary era and is now recognised in a variety of cultures and places around the world.

The modern privacy benchmark at an international level is the United Nations Declaration of Human Rights (UDHR) 1948, Article 12:  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.

The International Covenant on Civil and Political Rights (ICCPR) 1966, Article 17 specifies that “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home, or correspondence, nor to unlawful attacks on his honour or reputation and everyone has the right to the protection of the law against such interference or attacks.”

In addition to the above Articles Article 8 of the European Convention on Human Rights, which came into effect on 3rd Sept 1953, while respecting one’s private and family life, allows public authority’s interference only under exceptional circumstances.

It reflects that the right to privacy is not absolute and that the government can intervene in one's private life for national security and public safety reasons. Furthermore, private rights cannot be obtained by jeopardizing the health, morals, rights, and freedoms of others.

Article 16 of the UN Convention on the Protection of Children (UNCPC), Article 14 of the UN Convention on Migrant Workers (UNCMW), and Article 11 of the American Convention on Human Rights; all these have set out the right to privacy in terms similar to the UDHR.

India is a signatory to both these international conventions, the UDHR and the ICCPR. However, to date, no consequent legislation specifically for privacy has been enacted in India to protect the right to privacy, at present, we are in line with the pending Data Protection Bill 2021.

Future Perspectives

The Supreme Court and Parliament should conduct a thorough examination of the requirements to develop a system that strikes a balance between the incompatible rights to privacy and speech. Data is a precious resource in the digital era that has to be controlled. The time has come for the Indian government to develop a strong data protection policy in this regard.

Challenges Facing the Right to Privacy in India

India has several challenges with the right to privacy, such as:

• Internet Confidentiality: Concerns over internet privacy have grown as social media and messaging applications are used more often.
• Insufficient Knowledge of Consent: Uninformed consent is a worry when it comes to the government, service providers, and commercial companies collecting and using personal data.
• Data Security: Data protection is becoming increasingly important as digital technology is used more and more.
• Technology for Surveillance: Privacy rights have come under scrutiny with the introduction of surveillance technologies such as biometric identification and face recognition.

Conclusion

The Indian judiciary's attitude to individual liberty has changed significantly during the course of the right to privacy's history, leading to the right's recognition as a basic right. Historically, as seen by early rulings in instances like A.K. Gopalan, MP Sharma, and Kharak Singh, where state interests were given precedence over individual private, privacy was not expressly guaranteed by the Indian Constitution. The Supreme Court's historic 2017 ruling in Justice K.S. Puttaswamy v. Union of India, however, signalled a sea change by confirming the right to privacy under Article 21 as a fundamental component of life and personal liberty.

By recognising privacy as a necessary component of human dignity and individual liberty, this ruling broadened the definition of basic rights. The acknowledgement of this right has opened the door for more robust legal safeguards in the digital era, underscoring the necessity of comprehensive data protection regulations, even while it is not absolute and is subject to reasonable constraints. The right to privacy, which strikes a balance between the rights of the person and the interests of the state, continues to be essential to democratic freedom as India grapples with issues like internet confidentiality and monitoring.