The right to privacy is an inherent human right which is enjoyed by every human being by virtue of his or her own existence in modern society. For long, it has not been recognized as a valuable right inherent in the human personality. In India, the preservation of the private space is important because this right has evolved through judicial pronouncements over various years. The need for its protection against infringement was realized as there is no concrete legislation to preserve a citizens’ right to privacy. The recent nine-judge constitutional bench of the Hon’ble Supreme Court in the case of Justice K S Puttaswamy & Anr v. Union of India & Ors unanimously declared that the Right to Privacy as an intrinsic part of life and personal liberty contained in Article 21 of the Constitution of India. With the declaration of this right as a Fundamental Right, the demand for a stringent law on the subject surfaced. This paper would focus on the recent judicial developments in this sector and the urgency to implement a legal structure like those already in existence in other countries so that the public can maintain its trust upon the government.
In modern society, the right to privacy is a valuable aspect of the personality of an individual. The right to privacy is the right to be left alone to live one’s own life with the minimum degree of interference with his private life, family, and home. Though an individual enjoys protection from state intervention an individual lies somewhat defenceless when a person sitting in some other country is infringing his rights in cyberspace. The term privacy means both physical and digital privacy. There are many ways of protecting private information or data and some of them include encryption, data erasure, strong user authentication, strong passwords, backup solutions, etc. Information such as client details, account details, bank details, personal files, etc should be well protected in the computerized society because if it gets into the wrong hands, it can be misused easily.
2) MEANING OF PRIVACY
The right to privacy is not secured by the Constitution of India. However, the right to privacy is stipulated in numerous International Conventions. The two international instruments containing privacy protections to which India is a party are the Universal Declaration on Human Rights (Article 12) and the International Covenant on Civil and Political Rights (Article 17).
Article 12 of the Universal Declaration of Human Rights, 1948 (UDHR) lays down the provision that no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, or to attacks upon his honour and reputation and that everyone has the right to the protection of the law against such interference or attacks.
The UDHR protects a person’s right to privacy against any arbitrary interference from the State. Similarly, Article 17 of the International Covenant on Civil and Political Rights, 1976 (ICCPR) imposes a duty upon the State to ensure that individuals are protected by law against “arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
The right to privacy is also recognised by Article 7 and 8 of the Charter of Fundamental Rights of the European Union, 2012. The provision mandates the security of personal data and its procurement for specified purposes only.
3) LAWS RELATING TO PRIVACY IN INDIA
The Constitution of India does not explicitly guarantee the fundamental right to privacy. However, the courts have read the right to privacy into the other existing fundamental rights, ie, freedom of speech and expression under Art 19(1)(a) and right to life and personal liberty under Art 21 of the Constitution of India. Privacy is not an absolute right. Like other rights protected by Part III, including the right to life and personal liberty, the right to privacy is subjected to reasonable restrictions mentioned under Art 19(2) of the Constitution that may be imposed by the State. Recently, in the landmark case of Justice K S Puttaswamy (Retd.) & Anr. vs. Union of India and Ors., the constitution bench of the Hon'ble Supreme Court has held the Right to Privacy as a fundamental right, subject to certain reasonable restrictions. There can be no invasion of the right to privacy under Article 21 of the Constitution on the basis of a law that stipulates a procedure that is fair, just and reasonable. The encroachment of the right to privacy must satisfy the following three conditions: i) there must be a law, ii) it must be defined in terms of a legitimate state aim and (iii) there must be a rational nexus between the objects and the means adopted to achieve them. The protection to data provided under the present Indian laws such as the Information Technology Act, 2000 and the rules framed thereunder, the Indian Penal Code 1860, the (Indian) Contract Act, 1872 and other sectoral regulations are insufficient.
4) JUDICIAL PRONOUNCEMENTS
The right to privacy is not explicitly guaranteed in the Indian Constitution. Hence it is left to judicial interpretation. The question before the Courts was whether the right to privacy is a Fundamental Right or not. The answer of this debate can be answered by studying both past and present judgments of the Hon’ble Court.
Past judgements of Hon’ble Supreme Court of India show that the right to privacy is not a fundamental right.
a) In the judgement of MP Sharma vs Satish Chandra (hereinafter M.P. Sharma Case), the 8-judge bench of the Hon’ble Supreme Court that the right to privacy is not a fundamental right because the concept of privacy is alien to the Constitution. The case related to the search and seizure of some Dalmia group of companies as a result of investigations into its affairs. An FIR was framed following which the District Magistrate issued warrants and conducted searches in the meantime. The constitutional validity of these searches were challenged before the Supreme Court under Article 32 of the Constitution on the grounds that they infringed their fundamental rights guaranteed under Articles 19(1)(f) and 20(3) — the right of citizens to acquire, hold and dispose of property and the protection against self-incrimination. However, these rights are not absolute and are subject to reasonable restrictions imposed by the State in the interests of the general public or for the protection of any Scheduled Tribe under Art 19 (5).
b) After M.P. Sharma Case, the right to privacy was invoked in Kharak Singh v. State of U.P case before the Supreme Court challenging the surveillance of an accused person by the police, as defined under Regulation 236 of the U.P. Police Regulations. The six judge bench unanimously held that the right to privacy is not a fundamental right and is only a statutory right.
c) In Govind v. State of Madhya Pradesh and Another Case, Govind challenged the validity of the Madhya Pradesh Police Regulations related to surveillance, including domiciliary visits. This matter similar to the issue in Kharak Singh v. State of Uttar Pradesh. Govind alleged that he was put under surveillance by the police on the basis of false allegations. Justice Mathew observed that the Right to Privacy has to be developed through a step by step observation and the right, in any event, will necessarily have to follow a process of case-by-case development.
Thus, considering the above judicial pronouncements and other legal scenarios it can be concluded that the right to privacy is not a fundamental right.
The landmark judgment of the Hon’ble Supreme Court of India shows that right to privacy is a fundamental right.
The latest judgment of the Hon’ble Court declares that the right to privacy is a fundamental right. On 24th August 2017, a nine-judge constitutional bench of the Supreme Court has delivered a unanimous judgment in Justice K.S. Puttaswamy (Retd.) v. Union of India affirming that the Constitution of India recognizes the right to privacy as a constitutionally protected right. The right to privacy is nowhere mentioned in the Indian Constitution but emerges from the freedom of life and personal liberty enshrined under Article 21 of the constitution. The right to life under Article 21 includes the right to privacy.
Thus the Justice K.S. Puttaswamy case finally settled the law relating to privacy.
The right to privacy should not be confused with seclusion. The threat to privacy is an impediment towards formulating a secured communication over the Internet. Most people of the society cherish a private life secured from unfettered interference of the State. This right to privacy is available to a person’s body, property, communication, and data. In the digital age, we have to acknowledge that India is lagging behind European countries in terms of an effective data protection mechanism. India needs to establish a legal framework considering the specific standards relating to the procurement and assimilation of personal data both online and offline. If data is in the wrong hands, then it has the power to topple the whole system of democracy leading to anarchy and chaos. With more and more transactions being done online, such information is vulnerable to theft and misuse. Therefore a growing economy like India requires a robust data mechanism to secure the privacy of the individuals.