RIGHT TO PRIVACY IN INDIA

This article was written by Vaishali Malhotra, a student at Kurukshetra University.

Abstract

After jurisprudentially overlooking at privacy, there are two eminent scholars namedBlackstone, Aristotle; both  find differentiation between the private wrong as well as public wrong. Along with the notion of the scope of the privacy it was found to be as old as the origin of natural law theories. The concept of privacy is an inherent part of human background and personality and can be alienable from human being. In Indian constitution there is not expressly mentioned for the same but can be categorised right under the right to life and personal liberty that is given under or guaranteed under Article 21 of Indian Constitution which declares right to privacy as a fundamental right which can positively complementary to the existing Indian laws such as equality that is given after decriminalizingSection 377 of Indian penal code etc. Moreover, right to privacy has been equally recognised by the Article 8 of EuropeanConvention and Article 12 of Universal Declaration of Human Rights 1948 which is based upon the human rights itself.

Introduction

Many eminent jurists like Aristotle,  William Blackstone and Arthur Miller create a verified distinction between public and private wrong where is they elaborated it as wrong against the whole society where as a private wrong means the wrong that is against  a particular individual or particular private person. The Greeks were the first to recognise the distinction between private wrong and public wrong and make a clear relation between the individual and the state for the welfare of the society as a whole. Now comes to the concept of privacy which is not a new concept that needs introduction but  it is as old as the existence of common law and needs just a legal recognition by the law of India which has been done few months back. It is a human right which has been mentioned under Universal Declaration of Human Rights ,1948. The human right of privacy with the human dignity and the responsibility that is itself a fundamental right to be given to an individual.If a developing country like India which is called itself as a democratic country does not recognise right of privacy as a fundamental right then its idea of democratic recognition is vague and totally narrow. Right to privacy is a right which human being causes by birth itself. In simple words,Right to privacy means the right of an human being to be left alone which is recognised by the law of India. The scope of right to privacy is ambiguous and uncertain in India. Right to privacy is a natural right which each and every human beings should possess. Natural rights are those rights which are given by the god itself or are considered to be as divine rights which are itself sovereign in nature.

Historical Background of Right of Privacy

Right to privacy uses the concept of natural rights which means the rights which are divine in nature as well as sovereign in nature. In December 15 , 1890 an article was published in Harvard law review that was written by the Attorney Samuel Warren as well as United States Supreme Court judicial officer named Louis titled” The Right to Privacy” which was the first article in written form which is based upon the Right of privacy.

Right to Privacy in different countries

Position of United States of America

Constitution of America does not expressly recognised or include the right to privacy.Supreme Court of US provides  the notion of Constitution of America implicitly right to privacy against the Government intervention in the various amendments like first amendment, third amendment, fourth amendment and fifth amendment. This decision has been given by the Supreme Court of US in the cases named as  Pierce vs Society of sisters, Lawrence versus Texas etc.

Based upon the above said decisions US provides right to privacy and recognise it as based upon the right of torts  that is:

1. Intrusion upon seclusion or solitude or into private affairs.
2. Public disclosure of embarrassing private facts
3. Publicity which places a person in a false right in the public eye.
4. Appropriation of name or likeness.

This four privacy torts were introduced by William Prosser in article named ” Privacy” in 1960.

Position in Australia

If we talk about Australia, infringement of Right of privacy is offensive in nature that is if  any person look or peep into any private or classified material then he will be charged for the same offence. Along with this if any public servant or bureaucrat without having any authorisation access to the public computers then also they will be charged. So we can say that there are strict rules in Australia regarding the Right to privacy.

Position  in India

Recently on August 24, 2017 a nine judge bench of Supreme Court headed by Chief Justice named as JS Khehar give the ruling regarding the Right to privacy as of fundamental right for the of India under the Constitution of India which can be found under Article 21 and additionally under the part III rights . Along with this this ruling by the Supreme Court clear the way of decriminalizing Sec 377 of IPC  in India on 6 September 2018 by legalizing intercourse between two consensual persons in private area.

Upliftment of right to privacy in India

The matter of Right to privacy in India is a very controversial issue nowadays as Constitution of India does not expressly recognise Right to privacy or drafted in the Indian Constitution or a make a separate provision for the Right to privacy. The Supreme Court of India has also integrated Article 21 of Indian constitution providing right to life that includes right to privacy as a natural right. The origin of article 21 is wide it includes right to speedy trial, right to shelter and many more. Article 21 of Indian constitution the supreme court of India stated that the expression personal liberty under Article 21 of the Constitution is of widest amplitude covering variety of rights including Right to privacy.

   Kharak Singh vs State of  Uttar Pradesh

In this case also there was a question raise for the recognition of Right to privacy in Constitution as the Justice Subbrao also expressed that there should be a recognition of right to privacy in Indian Constitution.

Also in the case named M.P Sharma vs Satish Chandra 1954 also same view of having a particular on the recognition of Right to privacy in the Indian Constitution.

Justice K.S.Puttaswamy(Retd) vs Union Of India on 26 September, 2018 -A Critical Evaluation

Law can’t be static and should be constant as per the changes in the environment in every  field whether it is political, economic, social economic which demand changes in the law system for the equitable welfare of society. Here also in this case the recognition has been made and considering Right to privacy as a fundamental right with the need of day to day environment and social conditions. After this casefinallyRight to Privacy has been declared as a fundamental right under Article 21 of Constitution of India providing Right to life and personal liberty.

Facts of the case

Government of India has decided to provide separate Unique Identity to all the citizens of the country called as Aadhar which is a card containing 12 digit aadhar card number. The Government of India made it mandatory for each and every individual to have an Aadhar card attaining unique Identity. In this case retired Justice S Puttaswamy challenging the constitutional validity of the Aadhaar Card project that made it mandatory for each and every individual to have Aadhar card which in his views is a violation of Right to privacy of the citizens of country.

Verdict and judgement of the case

Supreme Court held right to privacy is a fundamental right and it is true that privacy cannot be an absolute right as we discussed earlier that privacy is a natural right and inalienable right . Supreme Court urged that no one can deny the status of fundamental right because Liberty without privacy and dignity without privacy would be of no use.

Implications of the judgement

There are many implication after the judgement that has been given by Supreme Court of India that are described below:

• Right to privacy comes under the as fundamental rights with the ambit of Article 21 of Indian Constitution
• Verdict in the judgement MP Sharma case overruled that too by 9-0 majority.
• Clears the way of non – discrimination of homosexuality in India by its recent judgement.
• Widens the horizons of Freedom of Speech with the context of Journalism.

Significance of this judgement

• Directly or indirectly citizen share lot of personal data in the social sites which can be misused by anybody not only by government but also by any big MNC or a company
• It establishes a relation between state and individual right to privacy as a fundamental right.
• Because of right of privacy considered as fundamental right clear the lane of section 377 of IPC which is now an illegalized provision
• DNA profiling bill wallet the right to privacy Article 21 of Indian Constitution.
• This work also razor challenge on the validity of privacy policies social networking sites and applications including Facebook and WhatsApp etc.

Advantages of this judgement

1. This judgement ensures the dignity of an individual and the protection of human rights of an individual.
2. It provide restriction on the governmental bodies when they try to enter into our privacy.
3. It widens the scope of Freedom of speech

Disadvantages of this judgement

1. It provide the restrictions on the police and intelligence agencies to private information.
2. It also prohibits DNA Profiling bill.
3. What is obstacle for the implementation and the punishment of welfare schemes like Aadhar card.

Conclusion

As per my view on the privacy recognised as fundamental right under the Ambit of article 21 of Indian Constitution is a need of our Indian law system. According to my view the judgement of Supreme Court is correct and true as it was a need with the growing technology and issues increasing day by day. Enforcement committee for privacy-related issues and privacy infringement issues. When there is a dispute between infringement of privacy and Public Interest reasonable care should be taken to choose what is most significant with the degree of its necessity.