Abstract: As rightly said by American Judge William J. Brennan “If right to privacy means anything; married or single, then it is the right of every individual to be free from unwarranted governmental intrusion.” The paper reviews the issues and challenges that is faced by the citizens while exercising their right to privacy. The focus of the paper is not only on the challenges faced due to governmental intrusion but also due to the private intrusion. This paper gives a brief meaning of the word PRIVACY and in the later section discuss about its evolutions as a fundamental right. In the third section the authors discuss about the changing scenario of Privacy as a fundamental right. The analysis of the situation prior and post Justice K. Puttaswamy judgement is taken up. The evolution of privacy with reference to medical jurisprudence, investigative techniques and telephone tapping. In the later part the paper describes the reforms post Justice K.S. Puttaswamy judgement. The paper seeks to answer the issues and challenges faced in context of right to privacy by the citizens and the endless efforts of judiciary to render justice to the citizens
I.Introduction
Man to live with dignity needs all the necessary elements and it includes privacy. The core of privacy contains personal information. This personal information has become the biggest issue around the world, either processing or protecting it. The earliest case of privacy dates back to the British era when a local court upheld the privacy right of a Pardanashin woman without the fear of neighbourhood gaze. The jurisprudence has evolved from the time right to privacy is read into Article 21 of our Constitution, when the Supreme Court held that it as an integral part of personal liberty. This evolution from pardanashin case in the 1800s to the present day Justice Puttasawamy case has faced a lot of challenges and struggles. The present victorious status of the right to privacy in India is possible through a series of judgments passed by the courts from the past 60 years.
Privacy as held by the courts time and again is an integral part of personal liberty. The threat to human privacy occurs not from the state but the non-state actors. The growing social media and technology have been a threat to the privacy of humans. Privacy in one sense not only means the right to be left alone but, it also includes the duty of the information holder not to reveal the personal information such as medical or financial status of an individual. Right to privacy has a broader domain and Judiciary is striving its best to reach all the domains and ensure justice to the citizens.
II.MEANING OF THE TERM “PRIVACY”
Black’s Law Dictionary defines privacy as, “right to be let alone; right of a person to be free from unwarranted publicity; and right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned.” Privacy right is a facet of human right and hence, it is inalienable from the personality of a human being. Privacy is not a new right that needs an introduction; it is as old as the common law and needs legal recognition. It is so deeply embedded with the liberty and dignity of an individual that it cannot be denied the status of a fundamental right. The idea of liberty in a democratic nation would be vague if privacy is not given the status of a fundamental right. According to Justice Krishna Iyer, “Personal liberty makes for the worth of human person”. Hence, the notion of dignity and liberty are not independent of privacy.[1]
The apex court of India has failed to define the term “privacy” in its judgments and has given wide interpretations by referring to various scholars and has interlinked privacy with human dignity and has made privacy, the child of the article 21 of the Indian Constitution, which deals with the right to life and personal liberty. The supreme court of India for the first time in case M.P.Sharma v. Satish Chandra[2] blew the air of privacy within constitutional machinery. The constitution bench held that the right to privacy was not a fundamental right under the Indian Constitution. Later in case Kharak Singh v. State of Uttar Pradesh[3] (1962) the supreme court recognized that “privacy was not a guaranteed right under part III of the Indian Constitution”. It, however, held that Article 21 (right to life) was the repository of residuary personal rights and recognized the common law right to privacy. Dissenting judge Justice Subbarao, however, said that even though the right to privacy was not expressly recognized as a fundamental right, it was an essential ingredient of personal liberty under Article 21.[4]
III. EVOLUTION OF PRIVACY HAS A FUNDAMENTAL RIGHT
The right to privacy has now become established in India, but as a part of article 21, and not as an independent right in itself, as such a right, by itself, has not been identified under the constitution. The court has however refused to define privacy saying, “As a concept, it may be too broad and moralistic to define a judicially. Whether the right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case.” This means that whether the right to privacy can be claimed or has been infringed in a given situation would depend on the facts of the said case and the view the court takes of the matter.[5]
IV.Pre Justice K.S. Puttaswamy case
The position of the right to privacy has evolved by judicial precedents. But as a fundamental right to prevail, the judiciary took a time parallel to the cases which emerged with direct challenges by the question whether the right to privacy is a fundamental right under part III of Indian constitution. The observations in Malak Singh’s[6] the case on the issue of privacy indicates that encroachment on privacy infringes personal liberty Under Article 21 and the right to the freedom of movement Under Article 19(1)(d). Without specifically holding that privacy is a protected constitutional value Under Article 19 or Article 21, the judgment of the Court indicates that serious encroachments on privacy impinge upon personal liberty and the freedom of movement. The Court linked such an encroachment with the dignity of the individual which would be offended by surveillance bereft of procedural protections and carried out in a manner that would obstruct the free exercise of freedoms guaranteed by the fundamental rights.
In Gobind v. the State Of Madhya Pradesh, the court contemplated right of privacy included, among others in the right to personal liberty but upheld regulations similar to the one invalidated in the Kharak Singh case because the regulations had a statutory basis. Without any reference to article 21, in State of Maharashtra v.Madhukar Narayan Mardikar Supreme Court held that even a woman of easy virtue is entitled to privacy and no one can invade our privacy as and when one likes.[7]
Further the court by referring above cases in the R. Rajagopal vs State Of Tamil Nadu[8]right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a “right to be let alone”. A citizen has a right to safeguard the privacy of his home, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent – whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.
V.Privacy and medical jurisprudence
The Supreme Court held that disclosure of even true private facts tends to disturb a person’s tranquillity. It may generate many complexes in him and may even lead to psychological problems. He may, thereafter, have a disturbed life all through. In the face of these potentialities, and as already held by the Court in its various decisions referred to above, the right of privacy is an essential component of the right to life envisaged by Article 21. The right, however, is not absolute and may be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others. 65 However, the disclosure that the Appellant was HIV+ was held not to be violative of the right to privacy of the Appellant on the ground that the woman to whom he was to be married “was saved in time by such disclosure and from the risk of being infected”. The denial of a claim for compensation by the NCDRC was upheld.[9]
VI.Privacy in Investigative Techniques
In Selvi v. State of Karnataka case, a bench of three judges of this Court dealt with a challenge to the validity of three investigative techniques: narco-analysis, polygraph test (lie-detector test) and Brain Electrical Activation Profile (BEAP) on the ground that they implicate the fundamental rights under Articles 20(3) and 21 of the Constitution. The Court held that the results obtained through an involuntary administration of these tests are within the scope of a testimonial, attracting the protective shield of Article 20(3) of the Constitution. Chief Justice Balakrishnan adverted to the earlier decisions rendered in the context of privacy and noted that thus far, the judicial understanding had stressed mostly on the protection of the body and physical actions induced by the state. Therefore, it is our considered opinion that subjecting a person to the impugned techniques in an involuntary manner violates the prescribed boundaries of privacy. Forcible interference with a person’s mental processes is not provided for under any statute and it most certainly comes into conflict with the “right against self-incrimination.[10]
VII.Telephone tapping a violation of privacy
Telephone conversations were construed to be an important ingredient of privacy and the tapping of such conversations was held to infringe Article 21 unless permitted by ‘procedure established by law’: The right to privacy – by itself – has not been identified under the Constitution. As a concept, it may be too broad and moralistic to define it judicially. Whether the right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case. But the right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as “right to privacy”. Conversations on the telephone are often of an intimate and confidential character. Telephone conversation is a part of modern man’s life. It is considered so important that more and more people are carrying mobile telephone instruments in their pockets. Telephone conversation is an important facet of a man’s private life. Right to privacy would certainly include telephone conversation in the privacy of one’s home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law. The Supreme court held that telephone tapping infringes the guarantee of free speech and expression Under Article 19(1)(a) unless authorized by Article 19(2). The judgment relied on the protection of privacy Under Article 17 of the International Covenant on Civil and Political Rights (and a similar guarantee Under Article 12 of the Universal Declaration of Human Rights) which, in its view, must be an interpretative tool for construing the provisions of the Constitution. Article 21, in the view of the Court, has to be interpreted in conformity with international law. In the absence of Rules providing for the precautions to be adopted for preventing improper interception and/or disclosure of messages, the fundamental rights Under Articles 19(1)(a) and 21 could not be safeguarded. But the Court was not inclined to require prior judicial scrutiny before intercepting telephone conversations. The Court ruled that it would be necessary to lay down procedural safeguards for the protection of the right to privacy of a person until Parliament intervened by framing Rules Under Section 7 of the Telegraph Act. The Court accordingly framed guidelines to be adopted in all cases envisaging telephone tapping.[11]
VIII. Right to privacy has an integral part of the right to life
Right to privacy is an integral part of the right to life. This is a cherished constitutional value, and human beings must be allowed domains of freedom that are free of public scrutiny unless they act unlawfully. By understanding and appreciating the fact that the situation concerning unaccounted for monies is extremely grave. Nevertheless, as constitutional adjudicators, the court always has to be mindful of preserving the sanctity of constitutional values, and hasty steps that derogate from fundamental rights, whether urged by Governments or private citizens, howsoever well-meaning they may be, have to be necessarily very carefully scrutinized. The solution for the problem of abrogation of one zone of constitutional values cannot be the creation of another zone of abrogation of constitutional values.[12]
Right to privacy has been held to be a fundamental right of the citizen being an integral part of Article 21 of the Constitution of India by the Court. Illegitimate intrusion into the privacy of a person is not permissible as the right to privacy is implicit in the right to life and liberty guaranteed under our Constitution. However, the right of privacy may not be absolute and in exceptional circumstance, particularly surveillance in consonance with the statutory provisions may not violate such a right. In the view of the Court, privacy and dignity of human life have “always been considered a fundamental human right of every human being” like other constitutional values such as free speech. The court took notice of the construction placed by the judgment on the decision in Kharak Singh’s case as having “held that the right to privacy is a part of life under Article 21 of the Constitution” and which was reiterated in PUCL’s case.[13]
IX.POST JUSTICE K.S. PUTTASWAMY JUDGEMENT.
The brief facts: A Bench of three judges of the supreme court, while considering the constitutional challenge to the aadhar card scheme of the Union Government noted in its earlier order that the norms for and compilation of demographic biometric data by the government was questioned on the ground that it violates the right to privacy. The Bench of three judges of the Supreme Court took note of several decisions of present Court in which the right to privacy has been held to be a constitutionally protected fundamental right. These subsequent decisions which affirmed the existence of a constitutionally protected right of privacy were rendered by Benches of a strength smaller than those in M.P. Sharma and Kharak Singh cases. Faced with this predicament and having due regard to the far-reaching questions of importance involving the interpretation of the Constitution, it was felt that institutional integrity and judicial discipline would require a reference to a larger Bench. Hence the Bench of three judges observed in its order to determine whether there was any fundamental right of privacy under the Indian Constitution. The determination of this question would essentially entail whether the decision recorded by Court in M.P. Sharma and Ors. v. Satish Chandra, District Magistrate, Delhi and Ors by an eight-Judge Constitution Bench, that there was no such fundamental right, was the correct expression of the constitutional position.
Judgment: The court held that life and personal liberty are inalienable rights. These are rights which are inseparable from a dignified human existence. The dignity of the individual, equality between human beings and the quest for liberty are the foundation pillars of the Indian Constitution.[14]
Privacy ensures the fulfilment of dignity and was a core value which the protection of life and liberty was intended to achieve. Life and personal liberty are inalienable rights. These are rights which are inseparable from a dignified human existence. The dignity of the individual, equality between human beings and the quest for liberty are the foundational pillars of the Indian Constitution. Life and personal liberty were not creations of the Constitution. These rights were recognised by the Constitution as inhering in each individual as an intrinsic and inseparable part of the human element which dwells within. Privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution. Elements of privacy also arise in varying contexts from the other facets of freedom and dignity recognised and guaranteed by the fundamental rights contained in Part III. Informational privacy was a facet of the right to privacy. The dangers to privacy in an age of information can originate not only from the state but from non-state actors as well. In this case, the Court commended to the Union Government the need to examine and put into place a robust regime for data protection.[15]
X.Conclusion
Right to privacy in its own is of great significance. The way of acceptance of this law and also the implication of it in their daily life is very engrossing. The interpretation of the law relating to privacy has gone through multidisciplinary challenges. Although the interpretation has given shape to privacy, its social acceptance is still on its way. PRIVACY in its core includes the preservation of personal intimacies, an individual’s family life, marriage, his/ her sexual orientation and procreation. There are laws regarding the right to privacy, but when privacy is relating to the social institutions like marriage, sexual orientation the main thought in mind of the people is will the society accept? Every right given by the state has accompanied with it a duty, hence here stands our duty to protect each other’s privacy. Hence we need to respect the privacy of others, to protect our privacy.
[1] Shraddha, “What impact the recent right to privacy judgment will have on existing law?”, Ipleaders, (Feb 22, 2019,08:24A.M. ), https://blog.ipleaders.in/right-to-privacy-judgment-impact/.
[2]M.P.Sharma v. Satish Chandra,A.I.R.1954 S.C. 300 (India).
[3]Kharak Singh v. State of Uttar Pradesh, A.I.R. 1963 S.C.1295 (India).
[4] Priyanka Mittal, “Is privacy a fundamental right? Two cases that supreme court will look at”,LiveMint, (Feb 22, 2019,8:45 A.M.),https://www.livemint.com/Politics/7oHGx6UJfLD0uIDXFwV9CL/Is-privacy-a-fundamental-right-Two-cases-that-Supreme-Court.html.
[5] M.P. Jain, Indian Constitutional Law 1170, (7th Ed, Lexis Nexis Publication,2016).
[6]Malak Singh v. State of Punjab and Haryana, MANU/SC/0157/1980.
[7] Mahendra Pal Singh, V.N. Shukla’s Constitution of India 213, (12th Ed, Eastern Book Company,2016)
[8]. R Rajagopal v. State Of Tamil Nadu, A.I.R. 1995 S.C. 264(India).
[9] Mr X v. Hospital Z, MANU/SC/0733/1998.
[10] Selvi v. State of Karnataka, MANU/SC/0325/2010.
[11] People’sUnion of Civil Liberties v. Union of India and Anr, A.I.R. 1997 S.C. 568 (India).
[12]Ram Jethmalani v. Union of India, MANU/SC/0711/2011.
[13]RamlilaMaidan Incident v. Home Secretary, Union of India, MANU/SC/0131/2012
[14] Dr J.N. Pandey, Constitutional law of India 283, (55th Ed, Central Law Agency,2018).
[15] Justice K.S. Puttaswamy and Ors.v. Union of India (UOI) and Ors., MANU/SC/1044/2017.
