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Right to Privacy: Recent Legal Development

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Privacy in a general term means a state in which a person is free from public attention. Privacy is part of everyone’s life, everybody needs his/her privacy, to do any private act, which should not be a part of the public view, hence violence of that is also the violence of his/her dignity. Everyone is entitled to live with dignity, and Right to Live with human dignity is available to every person and even the State has no authority to violate it1. Hence, in this article, we will talk about Right to Privacy and the recent Legal Developments that occurred.

Article 21 under Indian Constitution

Article 21 of the Indian Constitution, is the basic but among the most important Fundamental rights. It provides every person with the right and the entitlement to live. Article 21, states that No person shall be deprived of his life or personnel liberty except according to procedure established  by law. 

Article 21 not only guarantees us the right to live but also gives us the right to live with dignity. Article 21 is not exhaustive and can be interpreted in many ways, hence under this Article, many new rights have been emerged like – Right to Livelihood, Right to medical care, Right to Shelter and many more, also including our Right to Privacy. and that is why it is one of the most important Fundamental Rights provided by the constitution.

Need for Right to Privacy.

We all know that generally, privacy means, not to be interfered by the public while doing a private act. We also know that Article 21 provides the Right to live and live with personal liberty. When someone is doing a private act, he does not want to be interfered or surveyed by someone he does not want to. Hence, it becomes the duty of the state to protect the privacy of the person. That is why such a right has been culled by the Supreme Court with Article 21 and Directive Principles of State Policy.

The mere mention of Right to Privacy emerged in Judiciary in the famous case of Khadak vs State of Uttar Pradesh.2This case raised the question of whether Right to Privacy could be implied from the existing Fundamental Rights?

At that time the majority of the Judges said that our constitution doesn’t provide a guarantee of this right3. Justice Subba Rao, had a different opinion, as per him “The right to Personal Liberty is not only a right to be free from restrictions placed on his movements but also free from encroachments on his private life. It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty.”

Legal Developments under Right to Privacy.

Surveillance (1975):  

It is always a debated topic whether the State should survey and interfere with the Privacy of its citizens, to protect them. In Govind vs State of Madhya Pradesh4, the Supreme Court stated that Right to Privacy is not absolute, and there should be some restrictions which are established by the law. The same thing was being observed in 1991 by the court in PUCL vs UOI5, in which the petition challenged the 1951 law that did not bind any political candidate to disclose his information. A court in this matter states that it is a right of a voter to know about his candidate, but at the same time asking for personnel information of the candidate will attract Right to Privacy.

Defining Right to Privacy (1994): 

After many cases related to Right to Privacy. The Supreme Court decided to define what thigh can attract a person’s Right to Privacy. In R. Rajagopal vs State of Tamil Nadu6, the court defined what right to privacy is; According to them:

  1. Right to Privacy means, ‘Right to be let alone”. All citizens have 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 truthfully or otherwise and whether laudatory or critical. If he does, so, he would be violating the Right to Privacy of that 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.
  2. The rule aforesaid is subject to exception, that any publication concerning the aforesaid aspect becomes unobjectionable if such publication is based upon public records including Court Records. This is the reason that once a matter becomes a matter of public records, the Right to Privacy no longer subsists and it becomes a legitimate subject for comment by the press and media along with others. Except, for any female who is the victim of a sexual assault, kidnap, abduction or alike offence should not further be subjected to the indignity of her name and the incident being published in press or media.
  3. Another exception to the Rule in (1) is that, In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available.

All the Principles given by the court in this judgement are broad principles. They are neither exhaustive nor all-comprehending.

Tapping of Phones (1997) : 

Privacy relating to the tapping of Phones is a very heated issue. On one side, it becomes a necessity to record someone’s mobile, on the other hand, the same attracts Right to Privacy. These issues arose during the network boom in India when new telephone service providers emerged and people were using telephones or their mobile phones to communicate rather than postal service. As the networks were connected to each other, it became easy for the state to track and record a telephonic conversation. Hence, in PUCL vs UOI (1997)7, the court ruled that whether the right to privacy can be claimed or has been infringed in a given case would depend on the facts of that case. The court also ruled that telephonic conversation are a part of a person’s private life, hence Right to Privacy can be attracted if his/her’s phone has been tapped, until and unless it is permitted under procedure established by law.

But, still under some circumstances tapping of telephones are permissible under law8. Any competent authority under section 5(2) of Telegraph act, 1885, can pass an order to intercept recording if the recordings were the interest of:

  1. Sovereignty and Integrity of India.
  2. Security of the State.
  3. Friendly relation with the state.
  4. Public order.
  5. For the prevention of incitement to the commission of an offence.

Criminalizing the infringement of Privacy (2000): 

A person can always take remedy when his privacy has been violated by the state, but in the matters of infringement of privacy by an individual, there was not any statute to provide a remedy. Later, in 2000 a bill was passed and the Information Technology act, 2000, was formed. This act was made with the objective to provide legal recognition to the transaction done via electronic devices. But this act also has some flavour of privacy too. Section 66E of this act was specially made to protect the Violation of privacy. In which, the violation of privacy can cause person imprisonment up to 3 years or 2 Lakh rupees fine, or both.

IPC does not have offences that infringe privacy, until 2013. With Criminal Criminal Law Amendment act, 2013. After passing of this act new terms like Stalking and Voyeurism came out which resonates with Privacy. The act added 354C i.e Voyeurism and 354D i.e Stalking, under IPC.

Beginning of Puttaswamy Era (2017):

We have already discussed the PUCL vs UOI case, regarding Phone tapping and its constitutionality. In 2017, aadhar was promoted by the government as the sole identification method for Indian Citizens. It was supposed to be linked to every account and documents and every Indian citizen was supposed to compulsorily use it as an identification card. As the card has basic information regarding an individual, there was a serious threat of Privacy infringement by the State. Because of this, Justice K.S. Puttaswamy, filed a petition in Supreme Court, regarding the Right to Privacy of the Indian citizen. The case also popularly known as the Puttaswamy case9, upheld the PUCl (phone tapping) case, and became the landmark judgement regarding the matters of Right to Privacy. The 9 judge bench, in this case, ruled “Right to Privacy as a Fundamental Right” of every citizen, which is protected by Article 14, 19 and 21 of the Indian Constitution. This landmark judgement was also used in the decriminalizing of Homosexuality.

This judgement also influenced the government in creating a new and updated statute regarding the Right to Privacy of the citizen. Hence, in 2019, New Personal Data Protection Bill, 201910 was discussed. Still that bill was heavily criticized for not being using a consent-based system.

Privacy and Sexual Orientation (2018): 

2009 and 2018 was a very important year regarding Human Rights and Right to Privacy. There was always stigma regarding LQBTQ community in India. Their sexual orientation was considered unnatural and hence, any sexual activity with the LGBTQ community was considered as an offence under Section 377 of IPC. In 2009, in Delhi High Court, NAZ Foundation filed a petition against Government of NCT of Delhi11, which deals with Human Rights of LGBTQ community and decriminalizing of homosexuality under 377 of IPC. The Delhi High Court Benched ruled in favour of the NAZ foundation and decriminalized homosexuality. Later, the decision was appealed in 2013, and the Supreme struck down the Delhi High Court’s order. With LGBTQ and Human Rights movement, the decision was later in 2018 was overturned by a 5 judge bench in the historic and landmark case of Navtej Singh Johar vs Union of India12, where homosexuality was again decriminalized, and it was also noted that having specific sexual orientation is a matter of personal privacy and no one should interfere with it.

COVID and Privacy situation:  

Covid became a very unexpected scenario to the whole world. The pandemic has ceased the machinery of every nation. It also digs up new legal aspects. With such a widespread pandemic, the number of cases has also increased day by day, and hence governments across the world have taken measures to deal with the same. The Indian government too has taken measures, like creating “Arogya Setu” app, which takes users information and alerts people regarding covid patients. Many have criticized this app and also alleged it of taking user information and also a tool of the government to track people. Government has denied all the claims mentioned above.

Many State Governments too are using their own applications. One of which is “Sprinklr” which is used by the State of Kerala. This app has been criticized on the basis that its data is being handled by a third party, which is not based in India. High Court of Kerala has given an Interim order to the State Government to anonymize all data collected by it and has also ordered Sprinklr to give back all data taken by it to State Government.

Endnotes

1.  People’s Union for Civil Liberties vs State of Maharashtra, (2014) 10 SCC 635 : 2014 AIR (SCW) 5940.

2.  Khadak Singh vs State of Uttar Pradesh, AIR 1963 SC 1295.

3.  MP Jain, “Indian Constitutional Law”, 8th ed., p. 1219 (2019)

4.  Govind vs State of Madhya Pradesh, Air 1975 SC 1378

5.  PUCL vs UOI, AIR 1991 SC 207

6.  R. Rajagopal vs State of Tamil Nadu. Writ petition (c) No. 422 of 1994.

7.  PUCL VS UOI, AIR 1997 SC 568

8.  Indian Telegraph act, 1885. s.5(2)

9.  Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors.  WRIT PETITION (CIVIL) NO 494 OF 2012

10. “Personal Data Protection bill, 2019,” Pub. L. No. 373 of 2019, accessed December 16, 2019, http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/373_2019_LS_Eng.pdf

11.  NAZ Foundation vs Govt. of NCT of Delhi, WP(C) No.7455/2001

12.  Navtej Singh Johar vs Union of India, WRIT PETITION (CRIMINAL) NO. 76 OF 2016 

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Aniket Kotnala

Student, Manipal University, Jaipur

Aniket has a keen interest over criminology and criminal trials. He’s exploring his interests in the field of law and wants to become a great criminal litigator. For any Clarifications, feedback, and suggestion, you can reach him at aniketkotnala2088@gmail.com

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