Journey of Right to Privacy in India
This Research Paper is written by Vanshika Gupta, a Third Year B.A LL.B (Hons.) Student at University of Petroleum and Energy Studies, Dehradun.
ABSTRACT
The journey of Right to Privacy to Privacy in India is seen through various facts and circumstances of different cases, the conceptions of privacy under various heads as discussed in the paper were invoked by the Supreme Court of India. Many researchers have noted the absence of the term right to privacy in India. This isn’t to contend that there was no well-known thought of security in antiquated or archaic India.
The advancing law in India perceived the right to privacy and proclaimed such a principle as principal right. Yet, there is a consistent comprehension among the legitimate scholars that the idea of privacy couldn’t be settled.
INTRODUCTION
The Right to Privacy is a Fundamental Right[1] guaranteed under Part III of the Constitution, and which is protected under Article 21 of the Constitution of India, which talks about the right to life and liberty which is pronounced in the recent judgment of Justice K.S Putthaswamy v. Union of India[2]. Every human being has a certain intimate and surreptitious part of their life, which is not meant for public exposure. In today’s time, the issue of privacy is very crucial and of utmost importance. The attempts made by many legal theorists, jurists, and philosophers in past years, have failed to bring a useful, distinct, and coherent concept of privacy.[3]
The concept of privacy appears to encompass everything, and therefore it appears to be nothing in itself. J.Thomas Mc. Carthy[4] observed:
“It is apparent that the word “privacy” has proved to be a powerful rhetorical battle cry in a plethora of unrelated contexts….. Like the emotive word “freedom,” “privacy” means so many different things to so many different people that it has lost any precise legal connotation that it might once have had.”
RIGHT TO PRIVACY IN INDIA BEFORE INDEPENDENCE
Many researchers have noted the absence of the term Right to Privacy in India. This isn’t to contend that there was no well-known thought of security in antiquated or archaic India. The fact of the matter is being made that the nearby language variations don’t catch features, for example, the almost untouched security of one’s home, correspondence, musings, convictions, confidence as we as a whole the need of shielding individual data from abuse by open or private organizations or its business use without the educated assent regarding the individual.
- Evolution of the Right to Privacy
The idea of privacy can be followed out in the old content of Hindus. On the off chance that one glance at the Hitopadesh it says that specific issues (love, sex, and family matters) ought to be shielded from exposure. This not so much strange to Indian Culture, however some legal adviser like Sheetal Asrani-Dann has questions about the advancement in India, on the side of this, she additionally clarifies Upendra Baxi see, “Regular encounters in the Indian setting (from the indication of good neighborliness through consistent reconnaissance by nearby neighbors to unabated interest at others’ sickness or character changes) recommend something else.” However, Upendra Baxi is worried about thoughtfulness, compassion, humankind, or delicacy, which is an unabated interest; it isn’t about hostility. Yet, Hitopadesh cannot be dependent upon ‘Positive Law’, even in old times, it was identified with Positive Morality, so in this sense, it very well may be said that in old Indian content there was ambiguity about the privilege of security.
In the precedent of the RTI Foundation of India M P Sharma & Ors. vs Satish Chandra, District Magistrate, Delhi & Ors[5], in this case, the statement of the court on Right to Privacy, it was only stating a factual point that the Right to Privacy is not a Fundamental Right under part III of the Indian Constitution and they od not to propose into another extant Fundamental Right.
THE RIGHT TO BE LET ALONE
The Right to Privacy which is defined as a “right to be let alone” was argued to be legally recognized. It was observed that the Right to Privacy has been interrupted by photographs and newspaper publications. It was also argued by the authors Samuel Warren and Louis Brandies that the Right to Privacy can be derived from a common law[6] and to declare that the principle of Right to Privacy was “that of inviolate personality”.
In which the surveillance right Based on Regulations 855 and 856 of the Madhya Pradesh Police Regulations purporting to be made by the Government of Madhya Pradesh under Section 46(2)(c) of the Police Act, 1961 was questioned as it was violative of the Fundamental Right, which is guaranteed under Articles 19(1)(d) and 21 of the Indian Constitution.
In the above case, it was noted by Justice Mathew that serious problems are being faced by legal scholars while determining the scope of the Right to Privacy. The concept of the right to be let alone is very broad; it is viewed as a type of seclusion.
LIMITED ACCESS TO THE SELF
Under limited access to self-help, the concept of the Right to Privacy is recognized as the desire of an individual to seclude itself from the surroundings. Therefore, the concept of limited access to self-help is somewhat related to the concept of the right to be alone. Under this subhead basically, a person is free from the interference of the government and press. Under this concept of privacy, “privacy constitutes the right to decide how much knowledge of personal thought and feeling… private doing and affairs…. the public at large shall have.”[7] Under this, the individual attains a right to exclude others from watching the activities of an individual when he is in its private space.
This concept of self-help was invoked by a minority opinion in the precedent of Kharak Singh v The State of UP and Ors[8], in this case the judges held that Article 21 of the Constitution of India comprises the Right to Privacy as a part of Fundamental Right and personal liberty. Justice Subhao observed the concept of the Right to Privacy, he said that Article 21 was comprehensive enough to include privacy and that a person’s house, where he lives with his family is his castle and that nothing is more deleterious to a man’s physical happiness and health than a calculated interference with his right to privacy.
In the case of R M Malkani v State of Maharashtra[9], the Supreme court observed that Article 21 of the Constitution contemplates procedure established by law about deprivation of life or personal liberty. The phone conversation of an honest resident will be secured by Courts against illegitimate or oppressive obstruction by tapping the discussion. The privacy isn’t for the guilty citizen against the efforts of the police to vindicate the law and prevent the corruption of public servants. It must not be understood that the Court will tolerate safeguards for the protection of the citizen to be imperiled by permitting the police to proceed by unlawful or irregular methods.[10]
In the landmark judgment of Justice K.S. Puttaswamy (Retd.) v. Union of India[11], Supreme Court observed that privacy is protected by the Fundamental Right under Article 21 of the Constitution, also it arises in fluctuating settings from different features of opportunity and poise perceived and ensured by the central rights contained in Part III of the Indian Constitution[12].
THE CONCEALMENT OF CERTAIN MATTERS FROM OTHERS
The word privacy can be interpreted in two ways, one being left alone and the other meaning being concealment of certain matters from the public interference.13]. Under this subhead, the word privacy means seclusion of certain information from public distribution. This secrecy of facts can also be considered as a subset of the limited access to self-help.
The concept of secrecy under privacy can be observed from the precedent of Mr. X v Hospital Z[14], in this case, Justice Saghir Ahmad, Judge of the Supreme Court of India said that the doctor must conceal the conversation between the doctor and the patient to themselves except in the cases where the public interest is involved.
In the case, it was observed that the Right to Privacy is not absolute and is imposed on certain reasonable restrictions to maintain public peace and law and order in society.
The Supreme Court judgment in the case of Bihar Public Service Commission v Saiyed Hussain Abbas Rizwi[15], dealt with the provisions of Section 8(1)(g)28 of the Right to Information Act, 2005. A person claiming to be a public-spirited citizen sought information under the statute from the Bihar Public Service Commission on a range of matters relating to interviews conducted by it on two days. The commission disclosed the information save and except for the names of the interview board. The High Court directed disclosure. Against such an order of the High Court, the matter went to the Supreme Court of India.
In the above precedent, Justice Swatanter Kumar observed that public interest is to be interpreted keeping in mind the balance factor between the Right to Privacy and the Right to Information with the reason tried to be accomplished and the reason that would be served in the bigger public intrigue, especially when both these rights arise out of the sacred qualities under the Constitution of India.
Similarly, in the case of Advocates on Record Association v Union of India[16], which involved the issue of privacy of disclosure about the candidate under consideration for appointment as a Judge of the Supreme Court. It was observed by Justice Lokur that concerning sensitive information it is difficult to maintain the balance between transparency and the Right to Privacy. He further added that the Right to Privacy is a fundamental concern but at best it is an implicit Fundamental Right and it is hedged in with the implicit Fundamental Right to Privacy that all people enjoy.
Thus the decisions in the above judgments which are observed by various courts, while maintaining the balance between transparency and Right to Privacy under Secrecy was applied that disclosure of private information of an individual in public would be a violation of an individual’s privacy right for some people but not others. Therefore, although most theorists would recognize the disclosure of certain secrets to be a violation of privacy, many commonly recognized privacy invasions do not involve the loss of secrecy. Therefore, it is argued that secrecy as the common denominator of privacy makes the conception of privacy too narrow.
CONTROL OVER PERSONAL INFORMATION
Privacy is a concern of many individuals or groups of individuals. It was held by the U.S. Supreme Court that it is the right of every individual or institution to have control over the flow of information concerned with the particular individual or the institution[17].
This concept of control over personal information was discussed in the precedent of District Registrar and Collector, Hyderabad v Canara Bank[18], in this case, the Apex Court observed that even if the documents cease to be at a place other than in the custody and control of the customer, privacy attaches to persons and not places, and hence the protection of privacy is not diluted. The reasonable exception was taken into consideration where parting with the provided information does not amount to infringement of the right to privacy. This principle of control over the information was invoked in the said precedent.
Therefore, the control over the personal information can be considered as a subset of the limited access conception. The theory of control over the information is too narrow and vague as it fails to define the types of information and also excludes the aspects of privacy that are not informational.
THE PROTECTION OF ONE’S PERSONALITY, INDIVIDUALITY, AND DIGNITY:
“Personhood” refers to “those attributes of an individual which are irreducible in his selfhood”[19]. Under this view privacy is a form of protecting personhood. Privacy is a unified and coherent concept protecting against conduct that is “demeaning to individuality”, “an affront to personal dignity.” or an “assault on human personality”[20].
In the case of Suchita Srivastava v Chandigarh Administration[21], in this case, the statutory recognition of the right is relatable to the constitutional right to make reproductive choices that have been held to be an ingredient of personal liberty under Article 21. The Apex Court reasoned the presence of such a privilege from a lady’s entitlement to security, poise, and substantial trustworthiness.
In another case of Selvi v State of Karnataka[22], the apex court decided that the privacy rights of the individual or a group and intrusion with the mental faculty of an individual were treated as being violative of his privacy right, mostly under the conception of privacy under the “personhood” heading.
CONTROL OVER, OR LIMITED ACCESS TO, ONE’S INTIMATE RELATIONSHIP OR ASPECTS OF LIFE:
This concept of intimacy limits access to information and marks the value of privacy for the development of personal relations. Intimacy, according to Charles Fried “is the sharing of data about one’s activities, convictions or feelings which one doesn’t impart to all, and which one has the privilege not to impart to anybody. By giving this right, protection makes the ethical capital that we spend in fellowship and love”[23].
The apex court dealt with the telephone tapping in the case of PUCL v Union of India[24]. The court held that Conversations on the telephone are often of an intimate and confidential character thus the tapping of the telephonic calls by the government amounts to a violation of the Privacy Rights under Article 21 of the Constitution and thus can be invoked.
The critics considered the idea of Intimacy catches the component of private life that comprises a cozy relationship with others. However, it doesn’t catch the element of private life that is given to the self alone. In all, privacy under the “intimacy concept can be too broad if it does not adequately define the scope of “intimacy”.
CONCLUSION
This article talks about the evolution of the Right to Privacy, as a broad concept. It was observed that the Right to Privacy falls under the Fundamental Right of Article 21 which talks about the Right to life and personal liberty. In the recent landmark judgment, various heads of Right to Privacy were invoked by the judges regarding the Right to Privacy. The international instruments and statutes[25], across the globe show that the Privacy Rights are recognized as being paramount to human existence.
However, there is a unanimous understanding among the legal theorists that the concept of privacy could not be settled as each of the conceptions of privacy as dealt above under present work show that each concept elaborates upon the certain dimension of privacy and contains many insights. But settling upon any one of the conceptions results in either a reductive or an overly broad account of privacy. There are serious attempts made by legal scholars in defining the concept of privacy.
[1] In India, privacy rights are declared as fundamental rights with decisions in Justice K.S. Puttaswamy (Retd) v Union of India reported in (2017) 10 SCC 1 (Nine Judge Bench). The ruling in Puttaswamy overruled the judgments of M. P. Sharma v Satish Chandra reported in (1954) SCR 1977 (eight-judge bench) and Kharak Singh v State of UP reported in (1964) 1 SCR 332
[2] (2017) 10 SCC 1
[3] Prof. Arthur Miller has declared that privacy is “difficult to define because it is exasperatingly vague and evanescent. The Assault on Privacy by Arthur R. Miller, Ann Arbor Michigan: University of Michigan Press, 1970. In 1971 Prof. Arthur Miller warned that a “Dossier society” natured by computers threaten to destroy the essence of the personal privacy that is fundamental to democracy. Professor Miller in his book suggests, the present state of the law on privacy is unsettled and strained as social philosophers and legislators are applying the doctrine to changes far beyond their original contemplation. Accordingly, to philosopher Julie Innes, the legal and philosophical discourse of privacy is in a state of “chaos”: Privacy, Intimacy and Isolation, New York, Oxford University Press, 1992
[4] The Rights of Publicity and Privacy 2nd E. 2019 by J. Thomas McCarthy and Roger E.Schechter
[5] [AIR 1954 SC300]
[6] Harvard Law Review Vol.IV December 15, 1890 NO.5
[7] See Privacy Law: Cases and Materials by Richard C. Turkington & Anita L. Allen, West Group; 2nd edition (August 1, 2002)
[8] 1963 AIR 1295, 1964 SCR (1) 332 six judge bench
[9] (1973) 1 SCC 471 =1973 AIR 157 = 1973 SCR (2) 417
[10] Ibid, at page 479 (para 31)
[11] (2017) 10 SCC 1
[12] In India, privacy rights are declared as fundamental rights with decision in Justice K.S. Puttaswamy (Retd) v Union of India reported in (2017) 10 SCC 1 ( Nine Judge Bench). The ruling in Puttaswamy overruled the judgments of M. P. Sharma v Satish Chandra reported in(1954) SCR 1977 (eight-judge bench) and Kharak Singh v State of UP reported in (1964) 1 SCR 332
[13] The Economics of Justice by Richard A. Posner, Harvard University Press; Reprint edition (January 1981)
[14] 4 (1998) 8 SCC 296
[15] (2012) 13 SCC 61
[16] (2016) 5 SCC 1
[17] US Dept of Justice v Reporters Comm. For Freedom of the Press, 489 U.S.749,763 (1989)
[18] (2005) 1 SCC 496
[19] Address at the American Law Institute, 52nd Annual Meeting, California law review, Volume 81, Issues 1-3 34
[20] Privacy as an Aspect of Human Dignity by Edward J.Bloustein, New York University, School of Law, 1964
[21] (2009) 9 SCC 1
[22] (2010) 7 SCC 263
[23] An Anatomy of Values: Problems of Personal and Social Choice by Charles Fried, Harvard University Press, 1970
[24] (1997) 1 SCC 301
[25] Data Protection Act, 1998 (United Kingdom), Data Protection Directive ( European Union), Data Protection and Privacy law (Russia), Electronic Communications Privacy Act ( United State), General Data Protection Regulation ( European Union), Global Privacy Enforcement Network Information Privacy, Information Privacy Law, Personality right, Privacy Act of 1974 (United State), Privacy Act, 1988 (Australia), Right to be forgotten, Source:https://en.wikipedia.org/wiki/Privacy law.