Right to Privacy.

Author: Ishu Deshmukh, HNLU Raipur.

PRIVACY MEANING

According to Black’s Law Dictionary “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”.

EVOLUTION OF PRIVACY

• Earlier, it was only attached to the property
• Now, with the evolution of technology and democracy, as the awareness among the people is increasing so with the advancement of technology and democracy both the notions of privacy are expanding. Phone tapping is against privacy. Privacy expanded in different shapes and manners and not only restricted to property only.

MEANING OF RIGHT TO PRIVACY

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 is the right to privacy. The Department of Personnel and Training (“DoPT“) had prepared a draft bill on right to privacy in the year 2011, the Right to Privacy Bill, 2011. Although there had been several discussions on the Draft Bill 2011, however the same has failed to materialize into comprehensive legislation on privacy. The provisions in India for right to privacy is somehow scattered which are included in section 43,65,68,70,72 of  IT act, intellectual property rights, article 21, law of contract etc. Besides these laws, there are various judgments which lay down the rules relating to privacy. From the starting When need for recognition of such a right was felt in case Kharak Singh v. State of U.P, the Supreme Court seems to have realised the need for recognising the right to privacy  in case Govind v. State of Madhya Pradesh, the scope and ambit of the right of privacy or right to be left alone came up for consideration before the Supreme Court in case R. Rajagopal v. State of T.N[1], Interference with personal liberty must follow a procedure was said in Naz Foundation vs. Govt. of NCT Delhi and the Final judgment deciding right to privacy is a fundamental right is under Justice K S Puttaswamy (Retd.), And Anr Versus Union Of India And Ors. Besides these cases, there are other cases like aadhar case and WhatsApp case which is yet to be decided and which can also change the structure of right to privacy. By these we can say that the judiciary is playing a great role in deciding the destiny of the right to privacy of individual.

DRAFT BILL 2011

The Department of Personnel and Training (“DoPT“) had prepared a draft bill on right to privacy in the year 2011, the Right to Privacy Bill, 2011. Although there had been several discussions on the Draft Bill 2011, however the same has failed to materialize into comprehensive legislation on privacy.

The bill says, “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 honor 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.”

RIGHT TO PRIVACY & ARTICLE 21 OF INDIAN CONSTITUTION

Article 21 of the Constitution of India states that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. The right to life enshrined in Article 21 has been liberally interpreted so as to mean something more than mere survival and mere existence or animal existence. It, therefore, includes all those aspects of life which makes a man’s life more meaningful, complete and worth living and the right to privacy is one such right.

RIGHT TO PRIVACY AND ARTICLE 19(A)

Many a time, the right to privacy may come in conflict with the right to press the right to press is a right derived from Article 19 (1) (a) in particular. The right to expression of a person may come in conflict with the right to privacy of another person. The question, where there is a conflict, which should prevail over the other, is well explained by bringing in the concept of ‘public interest’ and ‘public morality’. The publication of personal information of an individual without his consent or approval is justified if such information forms part of public records including Court records. Each case is distinct and each right is special.
Any right derived from Article 19 can be derived from Article 21 too, under the wide interpretation of ‘personal liberty’. Though the Court generally applies the test of ‘public interest’ or ‘public morality’ in case of conflict between two derived rights, another interpretation is also possible. A right derived under Article 21 is superior to a right derived under Article 19, since the state enacting law in contravention of such right can be saved under the reasonable restrictions under 19(2) to (5).

DEVELOPMENTS BY CASES-

• Kharak Singh vs State of U.P.

 Facts –The petition under Article 32 of the Constitution of India challenged the constitutional validity of Chapter 20 of the Uttar Pradesh Police Regulations and the powers conferred upon police officials by its provisions on the ground that they violate the rights guaranteed to citizens by Articles 19(1)(d) and 21 of the Constitution of India

Issue-Whether “Surveillance” under impugned Chapter 20 of the Uttar Pradesh Police Regulations constitutes an infringement of any of the citizen’s fundamental rights as guaranteed by Part III of the Constitution

Judgment– The Court repelled the argument of infringement of freedom guaranteed under Article 19(1)(d) of the Constitution, and the attempt to ascertain the movements of an individual was held not to be an infringement of any fundamental right. The minority judgment, however, emphasized the need for recognition of such a right as it was an essential ingredient of personal liberty.

• Govind v. State of Madhya Pradesh

Facts– The petitioner, in this case, had challenged, as unconstitutional, certain police regulations on the grounds that the regulations violated his fundamental right to privacy. Judgment was by Justice Mathew who stated

“Rights and freedoms of citizens are set forth in the Constitution in order to guarantee that the individual, his personality and those things stamped with his personality shall be free from official interference except where a reasonable basis for intrusion exists. ‘Liberty against government’ a phrase coined by Professor Corwin expresses this idea forcefully. In this sense, many of the fundamental rights of citizens can be described as contributing to the right to privacy.”

The scope and ambit of the right of privacy or right to be left alone came up for consideration before the Supreme Court in R. Rajagopal v. State of T.N

Facts– In this case, the right of privacy of a condemned prisoner was in issue. One Auto Shankar, a condemned prisoner, wrote his autobiography while confined in jail and handed it over to his wife for being delivered to an advocate to ensure its publication in a certain magazine edited, printed and published by the petitioner. This autobiography allegedly set out the close nexus between the prisoner and several officers including those belonging to IAS and IPS some of whom were indeed his partners in several crimes. The publication of this autobiography was restrained in more than one manner.

 Issue– Petitioner challenged the restrictions imposed on the publication before the          Supreme Court.

Judgement – The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a “right to be left alone”. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical.

• Naz Foundation vs. Govt. of NCT Delhi

Facts– Naz Foundation, a Non-Profit Organization (NGO), filed public litigation challenging the constitutional validity of Section 377 of Indian Penal Code, 1860 (IPC) which penalizes ‘unnatural offences’ as mentioned in the Act.

Issue – Section 377 of Indian Penal Code, 1860 (IPC) which penalizes ‘unnatural offences is constitutional or not. homosexual intercourse between consenting adults can be legalized or not.

Judgment – The Court also held that Section 377 offends the guarantee of equality enshrined in Article 14 of the Constitution because it creates an unreasonable classification and targets homosexuals as a class. Article 15 of the Constitution forbids discrimination based on certain characteristics, including sex. The Court held that the word “sex” includes not only biological sex but also sexual orientation, and therefore discrimination on the ground of sexual orientation is not permissible under Article 15. The Court also noted that the right to life under Article 21 includes the right to health, and concluded that Section 377 is an impediment to public health because it hinders HIV-prevention efforts.

The Court did not strike down Section 377 as a whole. The section was declared unconstitutional insofar it criminalizes consensual sexual acts of adults in private. The judgment keeps intact the provision insofar as it applies to non-consensual non-vaginal intercourse and intercourse with minors. The court stated that the judgment would hold until Parliament chose to amend the law.

The apex court laid down three categories under which the term privacy must fall for an individual to avail the said right.

Any law interfering with the personal liberty of a person must satisfy a triple test:

• It must prescribe a procedure;
• The procedure must withstand a test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation; and
• It must also be liable to be tested with reference to Article 14. As the test propounded by Article 14 pervades Article 21 as well, the law and procedure authorizing interference with personal liberty must also be right and just and fair and not arbitrary, fanciful or oppressive.

WHETHER RIGHT TO PRIVACY IS A FUNDAMENTAL RIGHT OR NOT?

In case KS Puttaswamy vs Union of India 2012, former judge Justice K.S. Puttaswamy filed a writ petition in the Supreme Court challenging the constitutionality of Aadhaar Project on the grounds that it violates the right to privacy.  The Government argued that there was no such constitutional right of privacy in view of the decision given by eight judges in M.P. Sharma v. Satish Chandra and a decision by four judges in Kharak Singh v. State of Uttar Pradesh.

The case came before a three-judge Bench of the Court which, on 11 August 2015, referred the matter to a larger Bench of the Court.  On 18 July 2017, a five-judge Constitution Bench ordered the matter to be heard by a nine-judge Bench.  In the meantime however, the bench hearing the constitutional validity to Aadhaar passed an interim order restricting compulsory linking of Aadhaar for benefits delivery.

ISSUES

1. Whether the judgment pronounced by the constitutional bench, in the case of M.P Sharma and Kharak Singh that there is no right of privacy in the constitution, is correct.
2. Whether there is a constitutionally protected right to privacy, If there is a constitutionally protected right, whether this has the character of an independent fundamental right or whether it arises from the existing guarantees of protected rights such as life and personal liberty?

DECISION

The court in this case unanimously held that privacy is a constitutionally protected right which emerges, primarily, from Article 21 of the Constitution. However, this is not an absolute right but interference must meet the threefold requirement of (i) Legality; (ii) the need for a legitimate aim and (iii) proportionality. The court also noted that, as informational privacy is a facet of the right to privacy, the Government will need to put in place a robust regime for data protection.

The judgment can be summarized as follows:

1. Decision in MP Sharma has been overruled.
2. Decision in Kharak Singh, to the extent it says Right to Privacy is not part of Right to Life, is also overruled.
3. Right to Privacy is an intrinsic part of life and personal liberty under Article 21.
4. Decisions subsequent to Kharak Singh which held privacy as part of right to life are correct.

IMPLICATIONS FROM JUDGEMENT

• Earlier it was a statutory right and can be amended easily
• And now it is a Constitutional right and can’t be amended easily as it is considered as a part of Basic Structure of the Indian Constitution.