Right to Privacy

Context:

Recently, a Judge of the Madras High Court has said that a recent order passed by another judge of the same court, mandating the installation of CCTV cameras inside spas [massage and therapy centres], appears to run counter to the Supreme Court’s landmark judgement in K.S. Puttaswamy case (2017).

• In this case, the Supreme Court declared that the right to life and personal liberty guaranteed in Article 21 also implicitly includes a right to privacy.

Introduction

“Man’s house is his castle”, the mentioned saying implies about inherited “Right to privacy” in human being. Every human being has certain confidential and surreptitious part of their life, which can’t be divulged at public domain. This right to privacy has gained momentum throughout the world and it has been recognized as a fundamental right to privacy. The deliberation on right to privacy commenced after the “Warren and Brandies” debate on right to privacy and this debate will be further elucidated in the research paper. Countries such as USA, UK, India, and international organizations such as UDHR, ICCPR, ECHR, have given valid recognition to right to privacy.

The constitution of India has not guaranteed the right to privacy as an explicit fundamental right to the citizens but nevertheless, the Supreme Court has construed the right to privacy as a part of life and personal liberty under article 21 of the Indian constitution and this right to privacy conundrum has been unraveled by the Indian judiciary in the recent judicial pronouncement in the case of Justice K.S Putthaswamy v. Union of India wherein right to privacy has been recognized as fundamental right. Article 21 of the Indian constitution deals with right to life and personal liberty and justice Khanna has stated that human existence is not mere animal existence, every person deserves to live a dignified life and term privacy is the utmost significant factor regarding enjoyment of life.

Right to privacy has travelled a prolonged journey in order to attain the status of fundamental right in Indian constitution. There are abundance of cases dealing with acceptance and denial of this right henceforth all the aforesaid points will be elaborated further in order to have a categorical understanding about the evolution of “right to privacy” within Indian domain and the contribution of USA privacy laws since Indian judiciary heavily relied upon the American laws for providing unequivocal adjudication of privacy matters.

“Right to be forgotten” is another area that falls under the ambit of right to privacy. The development in the technology is the reason behind initiation of such right in Indian constitution and we all know that internet is accessible by everyone and certain sensitive and vulnerable information might be jeopardizing in nature, therefore it is necessary to protect such right.

Evolution of Right To Privacy In United States of America

In order to have a categorical understanding of right to privacy in Indian constitution, it is indispensable to have a thorough knowledge about USA Privacy laws since Indian judiciary relied upon those laws for the interpretation of private matters. “Warren and Brandies” discussion was a commencement of deliberation on inalienable right of privacy in USA. The constitution of USA mentions about plenty of inalienable rights including the right to liberty and pursuit of happiness and these rights should be protected by statutes, rules and regulations by the government but privacy laws were lacking in USA and then warren and brandies mentioned about application of common laws for the protection of these rights in order to protect the privacy of an individual. The help of common laws was obtained because common laws contained the right to be free from the harassment and exposure and it was the only available remedy for protection of private matters. Right to privacy was subject to the explicit right to free speech and it was unequivocally mentioned in the first amendment of bill of rights, so from this point the inference can be drawn that right to privacy was an implicit one USA constitution.

Warren and Brandies contentions were mainly concentrating upon protection of privacy from technological advancement and the advent of photography. Unauthorized Publication of individual portrays and photographs in the newspaper was an invasion into the privacy of an individuals and a suit was brought by an avid writer in the New York court of appeal regarding violation of privacy and the question was raised about dearth of laws that could provide protection to the privacy of an individual from unauthorized publication of instantaneous photos.[4]This legal action brought awareness regarding safeguarding of right to privacy in American system.

The discussion of warren and brandies on right to privacy explained the actions that fall under the ambit of privacy invasion, and those actions are following;
1.Intrusion into one’s private life and affair;
2.Public disclosure of embarrassing private facts;
3.Unwanted publicity of private individuals;
4.Misappropriation of a name or likeness for financial advantage.

The aforesaid points have specifically explicated the category of actions that could infringe right to privacy. Apart from indentifying the actions that could hamper privacy of an individual, they set forth the remedies as well and that was true basis of privacy. Warren and Brandies propounded certain remedial mechanisms with respect to publication of one’s private affairs with certain exceptions.
1.Privileged communications are the domain of libel/slander;
2.Speaking gossip and oral communication are outside the purview of privacy rights;
3.Consent to publication is an outright defense; while
4.Truth; and
5.Malice are irrelevant to a breach of privacy action.

Through the aid of above mentioned discussion, we all would have understood the rudimentary idea behind creation and beginning journey of right to privacy within American constitution.

What are the Concerns regarding Right to Privacy in India?

• Having no privacy is like having a perpetual warrant in your name. If you feel you are under constant surveillance you will never enjoy freedom and liberty which are your fundamental rights.
• Unregulated access to data can lead to the suppression of dissent and censorship. Journalists, Human Rights Activists etc. can be put under an invisible prison of surveillance.
• People who are leading a lifestyle which is deemed a taboo by a certain section of the society might be vilified or targeted. For example homosexuals. 
• Surveillance by Police also causes a concentration of power and puts civil liberties at serious risk. 
• Law enforcement officials across the world are also accused of unauthorised data collection, data mining to predict travel plans etc to put citizen’s reputation at risk. 
• Private details like travel details, shopping history financial details etc are used to create online granular profiles which are then sometimes used to spread specifically crafted fake news. This has increased the potency of fake news in the country. 
• GDPR(General Data Protection Regulation)rules framed by the European Union (EU) has become a model for the world when it comes to privacy. Right to be forgotten is also in effect in the EU. 
• SC in previous judgements has also asserted the need for a right to reputation. The society must be mature enough to understand in order to preserve reputations privacy is crucia

What were the landmark judgements regarding Right to Privacy ?

• Kharak Singh vs. State of UP – Extending the dimension of ‘personal liberty,’ the apex court for the first time declared right to privacy to fall under the purview of Article 21.
• The court defined the right of personal liberty in Art. 21 as a right of an individual to be free from restrictions or encroachments on his person, whether those restrictions or encroachments are directly imposed or indirectly brought about by calculated measures.

• Govind vs. State of MP – The top court held that right to privacy cannot be made an absolute right.
• Subject to reasonable restrictions, the right to privacy could be made valid.
• The right to privacy will have to go through a process of case by case development.

• Rajagopal vs. State of T.N – The court defined privacy as part of Article 21 and as a right to be let alone.
• A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing 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.
• Further the court stated an exception in this case where a person voluntarily involves himself into a controversy or invites one, that person would not fall under the right to privacy.

• Naz Foundation vs. Govt. of NCT Delhi – The top court cited Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights which define privacy as no arbitrary interference with home, family or honour and reputation.
• The court laid down the procedure for interference.

Supreme Court over Right to Privacy

• The apex court laid down three categories under which the term privacy must fall for an individual to avail the said right.
• Any law interfering with personal liberty of a person must satisfy a triple test.
• It must prescribe a procedure;
• The procedure must withstand a test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation;
• It must also be liable to be tested with reference to Article 14.

Source: The Hindu

You can find many articles on CONSTITUTION and JUDICIARY (part of GS II) in our website. Go through these articles share with your friends and post your views in comment section.