RIGHT TO PRIVACY: A MODERN PERSPECTIVE

This article was written by Aman Agarwal, a student of ICFAI LAW SCHOOL, Hyderabad.

“The house of everyone is to him as his castle and fortress as well as for his defence against injury and violence as for his repose”.[1]

The wants of human beings begin from the foremost primary needs akin to food, covering and shelter to secondary wants like education, work and recreation and additional on to desires like recreation, good food, leisure travel, etc. One would possibly assert that the degree of privacy dictates whether or not it’s a wish or a requirement. A basic degree of privacy could be a primary want in any civilised society because the degree of privacy will increase, it evolves into a secondary want and additional to a wish. As civilisation evolves, the law has evolved from guaranteeing the foremost basic wants of humans by changing them to rights so slowly guaranteeing needs not essentially for existence as rights, as and once society has been ready to gather the resources to produce for these wants.

Privacy can be expressed as the individual’s right to be left alone is conditioned by his relationship with the rest of the society. These relationships may pose a question to his autonomy and his free choice. There have been various cases brought before the Supreme Court of India for constitutional interpretation in regards to privacy doctrine and much deliberation has been done on the same

In M.P. Sharma’s case[2] an investigation was ordered by the Union government under the Companies Act into the affairs of a company which was in liquidation on the ground that it had made an organized attempt to embezzle its funds and to conceal the true state of its affairs from the shareholders and on the allegation that the company had indulged in fraudulent transactions and falsified its records. Offences were registered and search warrants were issued during the course of which, records were seized. The question which this Court addressed was whether there was a contravention of Article 20(3).[3]

The doctrinal invalidation of the basic premise underlying the decision in this case still leaves the issue of whether privacy is a right protected by Part III of the Constitution open for consideration. There are observations that the Constitution does not contain a specific protection of the right to privacy. The observations here that the constitution makers had not thought it fit to subject the regulatory power of search and seizure to constitutional limitations by recognizing a fundamental right of privacy (like the US Fourth amendment), and that there was no justification to impart it into a ‘totally different fundamental right’ are at the highest, stray observations

In Kharak Singh[4], The majority was of the opinion that right to privacy is not expressly guaranteed under the constitution of India but the minority was of the view that both are independent fundamental rights, though there is overlapping. There is no question of one being carved out of another. The fundamental right of life and personal liberty has many attributes and some of them are found in Article 19[5]. If a person’s fundamental right Under Article 21[6] is infringed, the State can rely upon a law to sustain the action, but that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned.

 The expression “personal liberty” in Article 21 is generally controlled by the general expression “procedure established by law. The minority Judges were of view, that both are independent fundamental rights, though there is overlapping.

Also Article 21 embodies the right of the individual to be free from restrictions or encroachments. In this view, though the Constitution does not expressly declare the right to privacy as a fundamental right, such a right is essential to personal liberty, but the said right is an essential ingredient of personal liberty. Nothing is more deleterious to a man’s physical happiness and health than a calculated interference with his privacy.

In UK Context

There is no right to privacy in United Kingdom law even when the Human Rights Act 1998, and Parliament has shown an absence of enthusiasm for making such a right. However, the judiciary has developed the belief of breach of confidence in a very manner that has a limited right to privacy, significantly since the Human Rights Act 1998. Though Article eight of the European Convention on Human Rights creates a right to respect for personal life, this can be not a right to privacy. Additionally Article eight should be balanced with Article ten that guarantees freedom of expression, that is important once the press is speculated to have broken a human right to privacy

In R v. Director of Serious Fraud Office[7], the question of the right to silence was discussed. Lord Mustill’s statement “underlines the approach taken by the common law to privacy” that

 “It recognised privacy as a principle of general value” and that “privacy had only been given discrete and specific protection at common law”.

In Wainwright v. Home Office[8], this approach was diluted. It was held that:

“The law can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy”.

In Campbell v. MGN[9], Lord Hope writing for the majority stated that:

If there is an intrusion in a situation where a person can reasonably expect his privacy to be respected, that intrusion will be capable of giving rise to liability unless the intrusion can be justified… A duty of confidence arises when confidential information comes to the knowledge of a person where he has notice that the information is confidential.

In USA Context

Originally American constitution didn’t have separate privacy law but with fourth amendment[10], which exclusively dealt with right to privacy and some scholar also see it consistent with Indian privacy laws and the one that deals with self-incrimination . It has further been developed with the help of major decisions taken by their supreme court in this process of evolution

The 1967 decision of Katz v. United States[11] revolutionized the interpretation of the Fourth Amendment regarding the extent to which a constitutional right to privacy applies against government interference. It was held that the Government’s eavesdropping activities violated the privacy, and constituted a “search and seizure” within the meaning of the Fourth Amendment, and that the Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements.

This also laid down the foundation of reasonable expectation of privacy test. In the landmark decision on the right to abortion, Roe v. Wade[12] where there was a clash between state’s regulation of abortion and liberty and privacy recognized in previous cases. It was held that

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, the Court has recognised that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution

Conclusion

The Aadhaar Act has planted problems hooked up to it when it involves breach of security and ultimately privacy. There are different alternatives to implement Aadhaar which could build it a even, clean and a transparent programme. Digital India is currently being a lot of and a lot of promoted and enforced within the country than ever before, that is additionally a given of the govt. Lack of rigorous privacy laws like that within the United States of America provides a leeway for misuse and unskillful in implementation of information security. The government’s stance and defence within the matter is usually focused towards the target of evasion of corruption by implementing linkage of distinctive identification to PAN, taxation matters, banks, etc. to avoid crimes love tax frauds. Howsoever, the objective is of crucial importance, the privacy of voters is of supreme importance as privacy is currently an elementary right in India.

Further, the motive of the government to eradicate corruption becomes a real understatement once corruption happens within the Aadhaar procedure itself as because of the urgent necessity of getting associate Aadhaar variety (result of the measures of the government) and slow pace of registration; voters are forced to bribe operators within the registration centres. A Well-structured programme just like the SSN[13] with the sole purpose of identification provides a much better framework for privacy implementation within the country. There has to be associate economical and unbiased model of the distinctive identification programme for it to serve each the needs of identification additionally as privacy as a result of the latter isn’t vulnerable to be listed as elementary rights directly link to the standing of democracy in an exceedingly country.

[1] Peter Semayne v Richard Gresham, All ER Rep 62.

[2] M.P. Sharma v. Satish Chandra, District Magistrate, Delhi, AIR1954SC300

[3] Article 20(3) of the constitution of India mandates that no person accused of an offence shall be compelled to be a witness against himself.

[4] Kharak Singh v. State of U P,AIR 1963 SC 1295.

[5] Article 19 of the constitution of India which deals with protection of certain rights regarding freedom of speech etc

[6]Article 19 of the constitution of India which deals with Protection of life and personal liberty no person shall be deprived of his life or personal liberty except according to procedure established by law.

[7] R v. Director of Serious Fraud Office, [1993] AC1

[8] Wainwright v. Home Office [2004] 2 AC406

[9] Campbell v. MGN, [2004] 2 AC 45

[10] “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

[11] Katz v. United States 389 US 347 (1967)

[12] Roe v. Wade 410 US 113 (1973),

[13] 42 U.S. Code Chapter 7.

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