Introduction:
Right to Privacy has been one of the frequently raised issues in the last few years. This issue was triggered after the government’s Aadhar scheme. Under this scheme, the personal details of the individuals were collected for identification of the beneficiaries for government welfare schemes.[i] Numerous Petitions were filed in the Supreme Court in 2015 stating Aadhar as a breach of Privacy. Also, it was argued that the enrolment of Aadhaar was the means to a “totalitarian state” and was an open invitation for the leakage of personal data.[ii] It was until 2017 when this Right was constituted as a Fundamental Right in the landmark judgment of K.S. Puttaswamy v. Union of India. The Right to Privacy is now a Fundamental Right under Article 21 of the Indian Constitution.
Black’s Law dictionary defines Privacy as “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 states that- “No Person shall be deprived of his life and liberty except according to the procedure established by law.”
Right to Privacy has not only been recognized nationally but Internationally as well. Article 12 of the Universal Declaration of Human rights says that “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attack upon his honor and reputation.” Similarly, Article 17 of the International Covenant of Civil and Political Rights and Article 8 of the European Convention on Human Rights also states about the Right to Privacy.
Historical Background
Privacy is not a newly formed concept. It has been existing since ancient times. Hitopadesha, an ancient literature has described certain matters such as worship, family, sex, etc must be protected from disclosures.[iii] Although the Privacy in ancient times was based on positive morality, still it was a vague concept at that time.[iv] In the modern time, K.S. Karimuddin moved an amendment in the Constituent Assembly, where Dr. B.R. Ambedkar did not pay high attention to this issue.
In the case of M.P. Sharma v. Satish Chandra[v], the issue of considering the Right to Privacy as a Fundamental Right was rejected stating that the drafters of the Constitution did not intend to subject the power of search and seizure to a fundamental right of privacy. However, it was made clear by the Supreme Court that M.P.Sharma did not decide on other questions such as “whether a Constitutional Right to Privacy is protected by other provisions contained in the Fundamental rights including among them, the right to life and personal liberty under Article 21.”[vi]
In the case of Kharak Singh v. State of Uttar Pradesh[vii], this issue was again rejected. In this case, the nightly domiciliary visits of Police regulations were invalidated. However, Justice Subbarao’s dissenting opinion stated that although the Right to Privacy was not recognized as a Fundamental Right, it was an essential ingredient of personal liberty under Article 21.[viii] It was in the case of K.S. Puttaswamy v. Union of India [ix]that a nine-judge bench led by Chief Justice of India J.S. Khehar after intense debates and arguments passed the judgment and declared Right to Privacy as a Fundamental right under Article 21 of the Indian Constitution.
Various Dimensions of Right To Privacy In Indian Constitution
The Supreme Court has recognized the Right to Privacy as an intrinsic part of the Right to Life and Personal Liberty under Article 21 of the Indian Constitution and thus held it to be a Fundamental Right. The various aspects of this Right to Privacy is as mentioned below.
- Health and Privacy:
In the present situation of COVID-19, the Health Sector and the Privacy Related matters have arisen to a peak. The Government of India has launched the Aarogya Satu App which requires the user to provide some specific data such as age, travel data, health condition, etc. These data gets stored and can be later used when a person switches on Bluetooth and location services. There were many issues raised against the violation of privacy through this app. But then according to Article 47 of the Indian Constitution, the Right to Privacy may be superseded by the obligation of protecting and improving public health as states are obliged to keep public health as among its primary duties.
Looking into other scenarios, A Doctor is under an oath or under the medical ethics by which he cannot disclose the confidential information about the patient, else it will put the lives of other people in danger.[x] In the case of Mr. X v. Hospital Z, the Court held that the doctor-patient relationship is commercial, even though it is professionally a matter of confidence and hence doctors are morally and ethically bound to maintain confidentiality.[xi]
- Sexual Identity and Privacy:
In the case of Naz Foundation v Union of India[xii], the Delhi High Court struck down Section 377 of the Indian Penal Code,1860. This case dealt with one of the Privacy related aspects incorporated under Article 21 of the Indian Constitution. The court said that Article 21 which guarantees Right to Life and Personal Liberty also locates Right to Dignity and Privacy and held that Criminalization of Consensual Gay Sex is the violation of the same.[xiii]
In the recent case of Navjet Singh Johar & Ors. v. Union of India, the Supreme Court decriminalized all consensual sex among adults, including homosexual sex.[xiv] Also, the Court held the law relating to consensual sexual acts between adults as unconstitutional.[xv]
- Phone Tapping and Privacy:
Phone Tapping is one of the emerging technological development against the privacy of an individual. In the case of People’s Union for Civil liberties v. Union of India[xvi], Justice Kuldeep Singh held that the Right to hold a telephonic conversation can be claimed as a Right to Privacy. Also, the Supreme court held that Telephonic Conversations are private and thus phone tapping’s are in violation of one’s privacy.[xvii] Although there have been different opinions of the court in different cases depending on the situation. In the case of R.M. Malkani v. State of Maharashtra,[xviii] the Supreme Court observed that the Court will not tolerate safeguards for the protection of the citizen to be imperiled by permitting the police to proceed by unlawful or irregular methods.
- Media and Privacy:
This is one of the heated topics in daily life. In the recent case of the death of the famous actor Sushant Singh Rajput, the unethical role of media has been questioned widely. Showing the color of the cloth around the actor’s neck, some news channels were found harassing members of his family who were too distressed to comment.[xix] Assistant Professor of DCAC Department, Tarjeet Sabharwal said that- “ I today feel that media of today has lost its basic ethical, moral and human sense. Media today is nothing but mockery”[xx]
This is not the only cause, there have been several instances where media is extremely invading one’s privacy and turning the picture around.
Conclusion
Recently Justice D.Y. Chandrachud while delivering the main judgment on behalf of Chief Justice J.S. Khehar, Justice R.K. Agarwal, himself, and Justice S. Abdul Nazeer held that Privacy is an inalienable Human Right.[xxi] The Supreme court has also clarified that the Fundamental Right to Privacy is not absolute and is always subject to certain reasonable restrictions. It also says that Privacy is not an elitist construct.[xxii]
The recent development in the field of technology has also raised severe concerns related to Privacy. Day by day as the essentiality of this right is becoming more and more essential. Today when all our life is exposed through media, social media, secret cameras, it becomes the need of the hour to protect the privacy of an individual. The growing development in the field of law-related privacy seems to show a hopeful result in the coming future, although the fight is tough enough.
References:
[i] Krishnadas Rajagopal, The Lowdown on the right to Privacy, (July 29 2017, 20:12) available at: https://www.thehindu.com/news/national/the-lowdown-on-the-right-to-privacy/article19386366.ece
[ii] Ibid
[iii] Qwerty, Legal analysis of right to Privacy in India available at http://www.legalserviceindia.com/legal/article-676-legal-analysis-of-right-to-privacy-in-india.html
[iv] Evolution of right to Privacy, India available at: https://www.lawteacher.net/free-law-essays/constitutional-law/evolution-of-the-right-to-privacy-constitutional-law-essay.php(last%20visited%20on%20Feb7.,%202019).
[v] AIR 1954 SCR 1077
[vi] Commentary by Jyoti Pandey, India’s Supreme Court Upholds right to Privacy as a Fundamental Right-and It’s about time, EFF, (August 28, 2017) available at: https://www.eff.org/deeplinks/2017/08/indias-supreme-court-upholds-right-privacy-fundamental-right-and-its-about-time
[vii] AIR 1964(1) SCR 332
[viii]Commentary by Jyoti Pandey, India’s Supreme Court Upholds right to Privacy as a Fundamental Right-and It’s about time, EFF, (August 28, 2017) available at: https://www.eff.org/deeplinks/2017/08/indias-supreme-court-upholds-right-privacy-fundamental-right-and-its-about-time
[ix] (2017) 10 SCC 1
[x] Qwerty, Legal analysis of right to Privacy in India available at http://www.legalserviceindia.com/legal/article-676-legal-analysis-of-right-to-privacy-in-india.html; Dr. P.K. Rana’s Right to Privacy in Indian Perspective, 2IJL 07(2016).
[xi] AIR 1999 SC 495
[xii] 160 Delhi Law Times 277
[xiii] Naz Foundation v. Govt. of NCT of Delhi, 160 Delhi Law Times 277, p. 91 (Delhi High Court 2009).
[xiv] Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice, W. P. (Crl.) No. 76 of 2016 (Supreme Court of India)
[xv] “Historic India ruling legalises gay sex”. BBC News. 6 September 2018. Retrieved 6 September 2018.
[xvi] AIR 1997 SC 568
[xvii] Ibid
[xviii] AIR 1973 SC 157
[xix]“Indian Media Turned Sushant Singh Rajput’s Death Into a Circus. We the Viewers, Are to Blame “ (June 15, 2020) available at: https://www.arre.co.in/social-commentary/indian-media-turned-sushant-singh-rajputs-death-into-a-circus/
[xx] Mansi Sharma, The sad demise of ethics & sensitivity in India’s media’s reporting, (June 16, 2020, 07:55 AM), available at:https://www.indiantelevision.com/television/tv-channels/news-broadcasting/the-sad-demise-of-ethics-sensitivity-in-indian-medias-reporting-200616
[xxi] Anurag Bhaskar, “Key Highlights of Justice Chandrachud’s Judgment in the Right to Privacy Case”, August 27, 2017 available at: https://thewire.in/law/justice-chandrachud-judgment-right-to-privacy
[xxii] Ibid.
0 Comments