Privacy is an inherent human right and a requirement for maintaining the human condition with dignity and respect. Even though the Right to Privacy is not exclusively mentioned as a fundamental right in the Indian Constitution, yet, it is encompassed as a prerequisite under article 21 which is the right to life and personal liberty.
The Right to Privacy is a dynamic concept that is recognized by both criminal as well as civil Laws in India. While earlier, the right to privacy was not considered to be a fundamental right, the issue was well and finally decided by the Apex Court of the country in the year 2017 vide the landmark judgement in the K.S.Puttaswamy case.
On 24 August 2017, a nine-judge bench of the Supreme Court in Justice KS Puttaswamy vs Union of India passed a historic judgment affirming the constitutional right to privacy. It declared privacy as an integral component of Part III of the Constitution of India. Part III of the Constitution lays down our fundamental rights, ranging from rights relating to equality, freedom of speech and expression, freedom of movement, protection of life and personal liberty and others. An individual’s right to data privacy was upheld vide this judgement and at the same time, the court passed directions that a special committee be framed in order to propose a data protection framework to uphold the right to privacy.
What is privacy?
According to Black’s Law Dictionary, Right to Privacy means “right to be let alone”; the right of a person to be free from any unwarranted interference.’
Jude Cooley explained the law of privacy and has asserted that privacy is synonymous to the right to be left alone. Edward Shills has also explained privacy is ‘zero relationship between two or more persons in the sense that there is no interaction or communication between them, if they so choose’.
The passing of the Puttaswamy judgement has given a new push to the right to privacy being recognized as a fundamental right and India along with various other countries like USA, UK and various international organizations such as UDHR, ICCP and ECHR have also given their valid recognition to the right to Privacy being a fundamental right.
The concept of privacy though recently gaining popularity is not a new concept. Its presence can be traced back to the ancient hindu texts namely the Hitopadesh which enumerates that certain matter such as worship, sex and family matters should be protected from disclosure.
In the recent times however, the right to privacy was discussed initially by K. S. Karimuddin in the debate of the constituent assembly where he, however could not garner ample support and the right was not incorporated in the Indian Constitution. The fact the Right to Privacy cannot be termed to be a fundamental right was held for the first time by the Supreme Court in the year 1954 by an eight-judge bench in M.P. Sharma v. Satish Chandra case, where, while dealing with the power to search and seize documents from the Dalmia Group, the court dismissed the existence of a right to privacy. The right was rejected again 10 years later when a six-judge bench of the Supreme Court in the case of Kharak Singh v. State of Uttar Pradesh held that the right to privacy was NOT a fundamental right. The main stance of the court was that the same cannot be termed to be a fundamental right as it was not incorporated as well as declared to be a fundamental right under the Indian Constitution. Today, years later, after the passing of the Puttaswamy judgement, it is clear that the right to privacy is indeed a fundamental right and it will not lose its status amongst the Golden Trinity of Article 14 (Right to Equality), Article 19 (Right to Freedom) and Article 21 (Right to Life and Personal Liberty).
What is the K.S. Puttaswamy case?
This is a recent(2017) case of Right to Privacy which was brought by 91-year old retired Karnataka High Court Judge Puttaswamy against the Union of India before a nine-judge bench of the Supreme to determine whether the Right to Privacy was guaranteed as a fundamental right under the Indian Constitution.
This case was actually concerned with an issue to a challenge to the government’s Aadhaar scheme (a form of uniform biometrics-based identity card) in which the government made mandatory for availing the government services and benefits. The issue was made before a three-judge bench of the Supreme Court on the basis that this scheme violated the right to privacy. Accordingly, a Constitution Bench was set up and concluded that there was a need for a nine-judge bench to determine whether there is a fundamental Right to Privacy within the provision of Article 21 of Constitution of India.
It was argued by the petitioner before the bench that Right to Privacy is a Fundamental right and should be guaranteed as right to life with dignity under Article 21 of the Constitution. Submissions made by the respondent were that the Constitution only recognized personal liberty which may include Right to Privacy to a limited extent. The nine-judge bench of the Supreme Court unanimously recognized that the Constitution guaranteed the Right to Privacy as an intrinsic part of the right to life and personal liberty under Article 21. The Court however, overruled M.P. Sharma, and Kharak Singh in so far as the latter did not expressly recognize the right to privacy as a Fundamental Right.
It was in fact as a result of the orders passed in this judgement that a committee was formed that was headed by retired Supreme Court judge Justice BN Srikrishna and the said committee submitted its report on 27 July 2018 titled “A Free and Fair Digital Economy – Protecting Privacy, Empowering Indians”, along with a draft Data Protection Bill, to the Ministry of Electronics and Information Technology. The right to Privacy was also relied upon by the apex court in its decision that Section 377 of the IPC, 1860 dealing with ‘carnal intercourse against the order of nature’ was unconstitutional with regards to how it criminalized sexual conduct between two consenting adults. The court reasoned that discrimination on the basis of sexual orientation was violative of the right to equality, that criminalising consensual sex between adults in private was violative of the right to privacy.
The right to privacy was again relied upon in deciding whether the interception of a businessman’s telephone calls was an infringement of his right to privacy? The subject of this case was the Union Home Ministry ordering interception of the said person's communications owing to accusations of bribery of a public servant. The court relying on the Puttaswamy held that there was no lawful justification for these orders and set them aside.
Taking this journey a step ahead, the government tabled its version of the Personal Data Protection Bill in Parliament on 12 December 2019. Immediately after introduction of the Bill, it was sent to a Joint Parliamentary Committee (JPC) for scrutiny.
The Personal Data Protection Bill, 2019 also showed several variations as compared to the draft bill suggested by the Srikrishna Committee. Among the most contentious variations, has been the expansion of the scope of exemptions for the government and enhancement of the powers of the government.
The right to privacy is all pervasive and can be seen in every aspect of our day to day lives. In a recent judgment, the court has even held that pasting posters outside of homes of COVID positive patients is not permissible. This was on the basis that it violated fundamental rights, such as those of right to privacy and the right to life with dignity. It was held that “the affixation of posters led to violation of the right to privacy guaranteed under article 21 of the Constitution of India, reiterated by the Supreme Court of India in the case of Puttaswamy vs Union of India.”
The government strengthening the right to privacy further, released the Draft Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. These guidelines sought to place regulations on two different classes within the digital media ecosystem:
• Regulation of social media and other intermediaries
• Regulation of OTT platforms and digital news media
These rules place a traceability requirement on significant social media intermediaries, to identify the first originator of a particular message, in a bid to tackle challenges like fake news, hate speech and the proliferation of CSAM (Child Sexual Abuse Material) on the internet. The recent development in 2021 when there was a slew of data breaches involving Domino’s, Facebook, Upstox etc. where the personal data of umpteen Indians was compromised, just go to show that there is a need for stricter statutory protections for compromised users. This calls for a major update of India’s Cyber Security Policy, 2013 to ensure that the updated policy addresses the gaps that have come to light during the implementation of the 2013 policy, especially when it comes to strengthening the security of the critical infrastructure. The need of the hour is that the personal data and their right to privacy is protected and upheld.
In the wake of the recent Pegasus Project where thousands of people were found to be the targets of surveillance, there is indeed a strong need to re-evaluate and strengthen the frameworks governing the surveillance activities. The lack of an all-encompassing surveillance framework along with the absence of clear data privacy safeguards is a big challenge that haunts India as a developing nation.
Mark Zuckerberg has rightly said and I quote- The question isn’t what do we want to know about people? It’s what do people want to tell about themselves. The time has now come for all of us to recognize that the concept of privacy is here to stay and gaining momentum by the second. Without privacy there was no point in being an individual and privacy is no longer an option today but a right.