Right to Privacy: An Overview 

By | October 12, 2021
Right to Privacy

This article titled ‘Right to Privacy: An overview’ is written by Pratishtha Malhotra and discusses the evolution of the Right to Privacy as a Fundamental Right.

I. Introduction

The concept of privacy predates recorded history for thousands of years. Different academics have interpreted privacy in different ways, and it has a variety of facets that shift as society changes. Going back in time, we may discover arguments on privacy and secrecy in the Constituent Assembly debates.

According to the debates in the Constituent Assembly, the right to privacy was omitted from the Constitution on purpose. It is unclear what the legislature was trying to accomplish with this. As for the right to privacy in India, the Indian Constitution does not explicitly acknowledge it but it has developed via court decisions in the post-independence period. It was discovered for the first time in the case of Kharak Singh[1].

Some of the few examples of legislation that include laws relating to privacy are the Indian Evidence Act; Information Technology Act; IPC; and the Indian Easement Act.

Personal Liberty, according to Supreme Court Justice Krishna Iyer, “gives human beings value.”

As a result, the concept of dignity and liberty are intertwined.

II. Evolution of Right to Privacy in India

To accept the foundation and idea of the right to privacy, we must first trace its historical evolution. Even in the ancient Hindu texts, the idea of secrecy may be found. Although privacy has become more important in our culture, the emphasis has moved away from society and toward the individual[2].

For the first time in Indian law, a British court recognised the right of a Pardanashin woman to enter her balcony without fear of being seen in the late 1800s[3]. Since then, the law has developed, and our Supreme Court included the right to privacy as part of “personal liberty” into “Article 21” of the Constitution on India.

Despite the passing of nine years, the majority of the Judges in Kharak Singh v. State of Uttar Pradesh[4]  denied the right to privacy; they observed that “our Constitution does not in words provide any similar fundamental protection.” Fortunately, Justice Subba Rao’s dissenting opinion said “…the right to personal liberty includes in not just a right to be free from limitations imposed, but also free from encroachments on his private life.”

Even though the right to privacy is not explicitly stated as a Fundamental Right in our Constitution, it is an important component of human liberty.

Later, in Gobind v. State of Madhya Pradesh[5], the Apex court conducted a more thorough assessment of the right to privacy when confronted with similar facts. They agreed that there was an emanation of privacy rights from Articles 19(a), (d), and 21 that the court recognised as well.

That is how India’s “right to privacy” has developed via case laws.

III. Privacy Policy and Data Protection framework in India

The pace of development in terms of technology has been a progressive one. Privacy laws have faced more battles and investigations than some other laws. With the rapid growth of technology, the need for data protection laws has grown. In India, there is no particular legislation on data protection. However, there are certain laws and acts, which have some provisions with regard to data protection, they are:

1. The Indian Telegraph Act, 1885

As per section 5[6] of the act, under this, the power is given to the government to take possession of any licenced telegraph in case of public emergency or in the interest of public safety. Section 5(2), talks about that the government can also order interception of communication in the interest of public emergency.

PUCL v. Union of India[7] is a landmark judgement on section 5(2) of the Indian Telegraph Act, in this, the Supreme Court of India observed that telephone tapping is a serious invasion of privacy and wiretapping violates Article 21’s right to life. It also directed the government to follow procedural procedures.

2. Indian Penal Code, 1860

IPC, 1860 Sections 499-502 deals with the crime of defamation. IPC provides that when a male attempts to offend a woman’s modesty by way of words, gestures or exhibits any object, is punished with imprisonment[8].

4. The Indian Evidence Act, 1872

This act provides to safeguard the privacy rights of an individual who is presumed innocent. Special privileges have been given to preserving the privacy of communication and secrecy[9]. Additionally, communication between a husband and wife is considered private and is protected by law[10]. Section 126 of the act provides for privileged communication between attorney and client.

5. Information and Technology Act, 2000

The IT Act, 2000 was the first legislation passed by the parliament for legalising the digital era. It provides regulation to prevent the exploitation of databases and provides for heavy penalties to prevent cyber-crime. Under this legislation, it is a crime to disclose any electronically stored information (such as a record, book, or communication) to a third party without the owner’s consent. Sec. 72 of this act provides a penalty for violating such confidential information.

6. Personal Data Protection Bill, 2019

The Minister of Electronics and IT, Mr Ravi Shankar Prasad, introduced the Personal Data Protection Bill, 2019 in Lok Sabha in 2019. This bill is proposed for the protection of personal data and regulations for the organisations processing such personal data.

All the incorporated bodies in India whether it is public or private will come under this bill. This bill also refers to the ‘sensitive personal data’ that requires more oversight[11]. The data fiduciaries have an obligation to safeguard and prevent the misuse of data. The bill also provides the grounds for processing personal data by fiduciaries based on consent given by the individual. Under this bill, a Data Protection Authority will be constituted to protect the interest of individuals.

Offences included in this bill are[12]:

  1. transfer of personal data, without the consent of the individual, is a violation of the proposed bill and is punishable with a fine of Rs. 15 crores or 4% of the annual turnover of the fiduciary or whichever is higher, and
  2. if the data protection officer fails to conduct a data audit, shall be punishable with a fine of Rs. 5 crores or 2% of the annual turnover of the fiduciary or whichever is higher.

IV. Recent Developments regarding Privacy Policy in India

The Supreme Court in its most recent ruling in the case of K.S. Puttaswamy and Ors. v. Union of India and Ors.[13], overruled the judgement of M.P Sharma and Ors. v. Satish Chandra and Ors. , and Kharak Singh v. State of UP. The Apex court held that the right to privacy is protected under Articles 14, 19, and 21 of the Indian Constitution. In this case, the constitutional validity of the ‘Aadhar scheme’ was challenged on the ground that it violates the right to privacy of individuals by collecting biometric information. The bench unanimously decided that the right to privacy is an intrinsic part of the right to life and personal liberty enshrined under Article 21 and a part of the freedoms guaranteed under Part III of the Constitution of India.

V. Conclusion

Privacy has become more important in this age of technological growth, and the Supreme Court’s decision that it is a fundamental right under Article 21 of the Constitution is accurate in this respect. The Data Protection Bill, which is likely to be passed shortly, will play a significant role in protecting online data.

There must be guidelines on the misuse of power by the government with respect to the personal information of an individual. If a conflict arises between the violation of privacy and public interest, it has to be decided rationally as to what is more important.


References

[1] Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 116.

[2] Madhavi Goradia Divan, Facets of Media Law, 2nd edition, at page no.165

[3] Dia Ravi, Judicial Interpretation of data protection and privacy in India, IPLEADERS, (Oct. 11, 2021, 9:55 AM), Available Here.

[4] Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1302

[5] AIR 1975 SC

[6] Indian Telegraph Act, 1885, S 5, No. 13, Acts of Parliament, 1885 (India)

[7] PUCL v. Union of India, AIR 1997 S.C. 568.

[8] Sec. 509 of The Indian Penal Code, 1860

[9] Sec. 24 & 25 of Indian Evidence Act, 1872

[10] Sec. 121 of Indian Evidence Act, 1872

[11] Dia Ravi, Judicial Interpretation of data protection and privacy in India, IPLEADERS, (Oct. 11, 2021, 1:15 PM), Available Here.

[12] PRS Legislative Research, Available Here, (last visited Oct. 11, 20121)

[13] 2015 (8) SCALE 747


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Author: Pratishtha Malhotra

Amity Law School, Noida

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