Understanding ‘Right To Privacy’ in India and Its Recent Conflicts

IN BRIEF
  • The Supreme Court of India has asserted that Article 21 is the heart of the Fundamental Rights. Article 21 has proved to be multi-dimensional.
  • Right to privacy is one such right which has come to its existence after widening up the dimensions of Article 21.
  • The constitution in specific doesn’t grant any right to privacy as such. However, such a right has been culled by the Supreme Court from Art. 21 and several other provisions of the constitution read with the Directive Principles of State Policy.
  • In this post we will be discussing over a new dimension of Art. 21 that is the Right to Privacy and also the conflicts related to it.

Before we get into a complete discussion of Right to Privacy first of all we need to know what does the word Privacy mean. 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”.

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”.

After reading the Article 21, it has been interpreted that the term ‘life’ includes all those aspects of life which go to make a man’s life meaningful, complete and worth living.

In the earlier times in India, the law would give protection only from physical dangers such as trespass from which the Right to Property emerged to secure his house and cattle. This was considered to be the Right to Life. As the ever changing common law grew to accommodate the problems faced by the people, it was realized that not only was physical security required, but also security of the spiritual self as well as of his feelings, intellect was required. Now the Right to Life has expanded in its scope and comprises the right to be let alone the right to liberty secures the exercise of extensive civil privileges; and the term “property” has grown to comprise every form of possession — intangible, as well as tangible.

International Concepts of Privacy

Article 12 of Universal Declaration of Human Rights (1948) states that “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attack upon his honour and reputation. Everyone has the right to protection of the law against such interference or attacks.”

Article 17 of International Covenant of Civil and Political Rights (to which India is a party) states “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home and correspondence, nor to unlawful attacks on his honour and reputation”

Article 8 of European Convention on Human Rights states “Everyone has the right to respect for his private and family life, his home and his correspondence; there shall be no interference by a public authority except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the protection of health or morals or for the protection of the rights and freedoms of others.”


Right To Privacy In India

As already discussed 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 right to privacy is one such right.

The first time this topic was ever raised was in the case of Kharak Singh v. State of UP where the Supreme Court held that Regulation 236 of UP Police regulation was unconstitutional as it clashed with Article 21 of the Constitution. It was held by the Court that the Right to Privacy is a part of Right to Protection of Life and Personal Liberty. Here, the Court had equated privacy to personal liberty.

After that many more cases came and every time Right to Privacy transformed and It is now a settled position that right to life and liberty under article 21 includes right to privacy.

Right to privacy is ‘a right to be let alone’. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. Any person publishing anything concerning the above matters except with the consent of the person would be liable in action for damages. Position however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.

Prisoner’s Privacy Rights-The protection of Article 21 is available even to convicts in jail. The convicts are not by mere reason of their conviction deprived of all their fundamental rights which they otherwise possess. Following the conviction of a convict is put into a jail he may be deprived of fundamental freedoms like the right to move freely throughout the territory of India. But a convict is entitled to the precious right guaranteed under Article 21 and he shall not be deprived of his life and personal liberty except by a procedure established by law.

The question of the right to be let alone again came on the front in the case of R. Rajagopal vs. State of T.N also known popularly as the Auto Shankar Case. A prisoner had written his autobiography in jail describing the conditions there and the nexus between prisoners and several IAS and IPS officers. He had given the autobiography to his wife so that she may publish it in a particular magazine. However, the publication was restrained in various matters and the question arose whether anyone has the right to be let alone and particularly in jail.

In R. Rajagopal vs. State of T.N.,(1994) Right to Privacy held to be implicit in Article 21. “It is the right to be left alone”. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among many other matters. In this case right of a prisoner to privacy recognised.

CONFLICTING RIGHT TO PRIVACY

Right to privacy, once incorporated as a fundamental right, is wide enough to encroach into any sphere of activity.

The conferment of such a right has become extremely difficult with the advancement of technology and the social networking sites. But the other side of the picture is that right to privacy of a person includes the right to seclude personal information. The extent to which the realm of privacy of each person should remain is subjective, which might differ from person to person. The recognition of right to privacy can also be seen in the Section 43 of Information Technology Act which makes unauthorised access into a computer resource invoke liability.

Today, each person is a Press, taking in view the emergence of blogspots and social networking sites. Many a times, 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 (It guarantees the Freedom of Speech and Expression) 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). The position was different in the Pre-Maneka era, when Article 21 was not a source of substantive right.

The Right to Privacy may come in conflict with the Investigation of Police in several aspects. Narco-analysis, polygraph test and brain mapping tests, in application, make unwarranted intrusion into the right to privacy of a person. The Supreme Court was acknowledging the individual right to privacy by declaring these tests inhuman and unconstitutional. The Supreme Court in Directorate of Revenue and Another v. Mohammed Nisar Holia cited the US Supreme Court judgement which held ‘thermal imaging’, a sophisticated sense enhancing technology which when kept outside the residential house of a person can detect whether the inmate has kept narcotic substance within as infringement on the right to privacy of the said person. The Court discouraged the unnecessary infringement of the right to privacy of a person and held that no authority shall be given untrammelled power to infringe the right to privacy of a person, the Court held while reversing the conviction for non-compliance of statutory requirement of search and seizure. Although a statutory power to make a search and seizure by itself may not offend the right of privacy but in case of this nature, the least that a Court can do is-to see that such right is not unnecessarily infringed.

Recently the Unique Identification Authority of India, which issues Aadhaar Cards, has registered a complaint regarding making use of stored biometric information for Aadhaar authorisation. This issue has raised concerns over how securely information collected from citizens to build Aadhaar, the unique identity number is stored and used. 

Conclusion- As judiciary interpreted that the privacy is a derivative of fundamental rights, hence infringement of privacy is violation of fundamental rights. Recent issue is case of violation of fundamental rights, hence the state should protect the privacy of individual. For effective protection, there is need of strong privacy protection law, hence government should bring it as early as possible. 

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