Constitutional Law

Right to Privacy

By Deepansha Saini

[Article of 1st Runner Up of 1st Online Article Writing Competition 2020 by LL.B_Mania]

Abstract

In 2017, Supreme Court judgement confirmed that right to privacy is a part of article 21 that deals with right to life and liberty. The series of supreme court judgement conveyed the evolution and development of right to privacy. The concept of privacy and its framework is applicable in both public and private domain. This article disscuss various issues and judgement related to privacy and protection provided by law under the ambit of article 21 of the Indian Constitution.

Introduction

“In the 21st century, a government that cannot protect its citizens right to privacy cannot credibly maintain a democratic regime of equal treatment under the law”. Since 2010, the right to privacy is a matter of debate and discussion that whether right to privacy is a fundamental right under the purview of Chapter 3 of Indian constitution or not. However, the recent Judgement  delivered by the  Supreme  Court  in the  case  of  Justice  K.S.  Puttaswamy  (Retd)  v.  Union of  India[1] has  gained more  prominence  to the concept  of  Privacy in India  as  it dealt with  the  issues  related  to  aadhaar  database.

The word privacy derived from  the term  “Privatus”  which  means  separated  from  the rest  of  the  world. The right to privacy is implicitly made part of article 21, right to life and liberty of the constitution. Every citizen has the right to safeguard the privacy of his own, his family, marriage, procreation motherhood, childbearing and education among other matters.

Law of tort also prevent dissemination of any information related to any person without his consent, the field of tort include principle of nuisance, trespass,, defamation, malicious falsehood and breach of confidence, such cases of breach of privacy are subject to compensation under law of tort.

Under law of contract, the parties to a contract may agree to use provision of confidentiality to unauthorised any disclosure of information against the agreement, a breach of contract inviting an action for damages as a consequence of any breach of contract.

The prerequisite of privacy is the reservation of private space from rest of the society, it is an autonomy of an individual to exclude unwanted intrusion. In  other  words,  privacy as explained by Justice  Cooley of  USA  as  “the  right  of  a person to  be  let alone.[2]

The constitution of India has embodied a number of fundamental rights in part 3 of the constitution, which are subject to reasonable restrictions, and act as limitation not only upon the power of the executive but also upon the power of legislature but giving power to judiciary to decide the validity of any right.

The constitution of India under article 21 empower every person living in territory to led dignified life. A nine judge constitution bench of supreme court ruled that right to privacy is a fundamental right. A liberal interpretation, the supreme Court has read several rights in article 21 to make ‘life’ more meaningful and worth living, that includes Right of Privacy.[3]

The right to privacy includes proper collection, regulation, maintenance, use and dissemination of personal information which are subject to penalty in case of violation of such right.

In the Case of  Kharak Singh v. State of U.P. The Hon’ble SupremeCourt of India held that “The Right to be left alone”, falls under Right to Privacy.

Justice KS puttaswamy (Retd) &Anr. v. Union of India & ors.[4]. The unique Identity scheme was discussed along with right to privacy. The provisions of Aadhaar act requiring demographic and biometric information from a resident for Aadhaar number 3 fold test has laid down in this case. Hence, it cannot be set to be unconstitutional. Also collection of data, its storage and use does not violate fundamental right of privacy. In the lead judgement of justice DY Chandrachud, held  the constitutional validity of right to privacy as fundamental right. The three-fold test are:

  • The existence of law;
  • A legitimate state interest and;
  • Such law should pass the test of proportionality.

Unique identification authority of India & Another v. Central bureau of investigation 2014, The Central bureau of investigation sought access to the huge database compiled by the unique Identity authority of India for the purposes of investigation in criminal offences. The supreme court,  said that the UIDAI was not to transfer any biometric without the consent of the person. Hence, it does not breach right to privacy.

 Selvi and others v. state of Karnataka 2010,[5] in this case the supreme court made a difference between physical privacy and mental privacy. The case also established a connection of right to privacy with article 20(3) self incrimination. Subjecting a person to the narco analysis lie detector and BEAP tests in an interlocutory manner violates  prescribed boundaries of privacy. No victim of an offence can be compelled to undergo any of such test. Such a forcible administration would be an unjustified intrusion into mental privacy.

Conclusion

In a democratic regime all men are equal and born free, adhere right to life and personal liberty. Interpretation of law in explicit manner giving constitutional validity to right to privacy in a exclusive manner by the supreme court, it implies that right to privacy is a part of article 21 of the Indian constitution. Justice  Chandrachud, states “We are in  an  information age.  With the  growth and development  of  technology,  more  information is  now  easily available.  The  information  explosion has  manifold advantages  but  also  some  disadvantages.

The  access  to information,  which an  individual  may not  want  to give,  needs  the  protection  of privacy”. Undoubtedly the judiciary is progressive and it  appears  that  the  right to life  and  liberty guaranteed under  article  21  of  Indian Constitution  which protects  an  individual  against  both state  and non-state actors  can  very  well  accommodate informational privacy.


[1] Justice  K.S.  Puttaswamy  (Retd)  v.  Union  of  India  (2017)  10  SCC 1.

[2] Supra  note  5.  

[3] Shorter constitution of India, 14th edition 2008 under article 21

[4] JUSTICE K S Puttaswamy Retd and Another v.Union of India and others 2018 SC 366 Ibid

[5] Selvi v. State of Karnataka,(2010) 7 SCC 263 (379) : AIR  2010  SC 1970

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