Right to Privacy as a Fundamental Right

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Introduction

The Oxford dictionary defines privacy as “a state in which one is not observed or disturbed by other people” or “the state of being free from public attention”. As a result, privacy can also be described as an individual’s right to be alone and express themselves selectively. Information privacy is described by the International Association of Privacy Professionals (IAPP) as “the right to have some control over how your personal information is collected and used.” A legal framework that gives people the legal right to protect their or their data’s privacy is known as the right to privacy.

The right to privacy was debated for the first time in modern India during the Constituent Assembly debate, but it was not included in the Indian Constitution. Since the 1960s, the right to privacy has been debated as a constitutionally protected right as well as a common law right. The concept of Right to Privacy as a Fundamental Right can be understood by studying the evolution of this right that the nation has witnessed.

Evolution of Right to Privacy

M. P. Sharma v. Satish Chandra1

In this case a group called Dalmia group was accused of being involved in embezzlement and other malpractices. In order to cover these practices they were allegedly submitting fraud documents and manipulated balance sheets. Government order to conduct an investigation on this company. An FIR was filed which led to producing search on seizure warrants at almost 30 sites of the group. Dalmia group challenged this investigation and stated that along with the official documents of the group, their personal documents were also being investigated which is a violation of their Right to Privacy.

This case went to Supreme Court and it was held that for the security of the state was provided overriding powers of search and seizure. Bench also stated that the Indian Constitution did not have any concept of right to privacy. It is to be noted that 4th amendment of the US Constitution prohibits illegal search and seizure and provides right to privacy to its citizens.

Kharak Singh v. State of U.P.2

This case deals with the matter of surveillance. In this case Kharak Singh was arrested under the charge of Dacoity but later released because of the absence of any substantial evidence. To collect evidence, the UP Police puts Surveillance on Kharak Singh under U.P Police Regulation. This regulation gave power to police to suspect any person visiting home of the person put under surveillance, to give domiciliary visits any time and to track every movement of the person.

Kharak Singh filed a write petition challenging the surveillance put on him the UP Regulations. He said that his fundamental rights (right to movement and right to life and liberty) were being violated.

In the judgment by a 6 judge bench, Domiciliary visits were deemed unconstitutional but the other regulations were deemed valid. The Supreme Court stated that Indian Constitution does not have the concept of Right to Privacy. Right to Movement under Article 19(1)(D) infringes with the physical restriction.

Justice Subba Rao gave dissenting opinion in this case. He asked, “Anybody can enjoy Freedom of Movement anywhere for personal purposes. If the movement is been tracked then how free is it?”

PUCL v. Union of India3

The former Prime Minister Chandra Shekhar accused the government of tapping telephones of a number of ministers including himself. A CBI investigation was announced to expose Wire Tapping. PUCL filed a PIL in the Supreme Court and asked to give clarity on wire tapping provisions. In this case, section 5(2) of Indian Telegraph Act,1885 was challenged which allowed the government to tap telephones for public safety.

The Supreme Court held that Right to Privacy would be covered under Article 21 of the Indian Constitution which talks about Right to Life and Liberty. Telephonic conversation will be covered under Right to Privacy. With this, Rule 419(A) was inserted in Indian Telegraph Rules which said that S 5 of the Indian Telegraph Act can only be invoked in unavoidable circumstances. It also said that wiretapping can either be order by the Union home secretary or the State home secretary.

Justice K.S. Puttaswamy v. Union of India4

In this case, AADHAR Project was challenged on the bases of Right to Priavcy. Advocate General of India argued that there is no such concept as Right to Privacy. He supported his arguments by M.P. Sharma and Kharak Singh Case. A 9 judge bench was set up. It was held that Indian citizens do enjoy Right to Privacy under Article 21. It also stated that there was no need to announce a separate judicial proclamation to add Right to Privacy. This right can be protected under Article 14, 19 and 21.

Conclusion

With the rapid development of technology in recent years, it has become increasingly important to ensure that the right to privacy is properly protected. Since social media has become so pervasive throughout our lives, it is critical that everybody be protected in such a way that people’s right to privacy is not jeopardized. With the Supreme Court’s recognition of this right as a constitutional right, it has taken on even greater significance. Though privacy should be protected in all aspects, the right to privacy, like other constitutional rights, is subject to appropriate limitations that the government can enforce in such specific circumstances.

[1] (1954) 1 SCR 1077

[2] AIR 1963 SC 1295

[3] (2003) 2 S.C.R. 113

[4] (2017) 10 SCC 1