It is often said that humans are social animals. Yet there are some aspects of human life that the individual wants to keep to himself or the selected person he wants to share them with. Privacy has been declared one of the essential facets of liberty guaranteed to an individual. The term privacy has been derived from ‘privatus‘, a Latin word meaning private, secret, or personal, different from what is public or does not belong to the state. Thus, the word ‘privacy’ entails the sense of something belonging to oneself, something that the individual would not want to share with others.
What is the right to privacy
Privacy means the state of being alone and keeping one’s personal matters and relationships secret. The Black’s Law Dictionary defines it as “the right that determines non-intervention in secret surveillance and protecting an individual’s information. It is of four categories. First, physical: an imposition whereby another individual is restricted from experiencing an individual or situation. Second, decisional: the imposition of an exclusive restriction on an entity. Third, informational: the prevention of searching for unknown information. Fourth, dispositional: the prevention of attempts made to know the minds of individuals.”
Constituent assembly on the right to privacy
The Advisory Committee on Fundamental Rights was tasked with formulating a draft of the fundamental rights of the citizens. Eminent members, like Harman Singh, K. M. Munshi, and Dr. Ambedkar, staunchly advocated for the inclusion of privacy as a right. Inspired by the Czech Constitution, Harman Singh stated in his note on fundamental rights, “Every dwelling shall be inviolable”. Dr. Amedkar, in his note, mentioned the protection against unreasonable searches and seizures. The Sub-Committee on Fundamental Rights proposed two rights. First, the right to the inviolability of one’s home is protection against unreasonable searches and seizures; second, the secrecy of correspondence. However, Sir B.N. Rau, K.M. Pannikar, and A. K. Ayyer dissented against the proposals, citing that it could hinder the process of law enforcement. Finally, the Advisory Committee on Fundamental Rights did not approve, and the rights were not included in the report.
In the Constituent Assembly, Mr. Kazi Syed Karimuddin moved an amendment to protect the privacy of individuals from unreasonable state interference, searches, and seizures along the lines of the American and Irish Constitutions. Dr. B.R. Ambedkar replied, accepting his amendment, that the Criminal Procedure Code has the provision to provide a safeguard against such interference. However, privacy was not given a mention in the Constitution. The amendment to include these rights was moved several times, but the moves could not gather consensus, and the assembly moved forward, leaving the provision undecided.
Article 21 of the Constitution and the right to privacy
Article 21 is the heart of the Constitution of India. It guarantees the right to life and personal liberty to every person, whether a citizen or non-citizen residing in India. It is the base of all other rights that are provided by the Constitution because life is an essential element for enjoying other rights such as freedom, equality, or religion. The Article includes in itself all other rights that are necessary for a human to live to its full potential, such as the right to health, the right to a clean environment, the right to sleep peacefully, the right to livelihood, the right to free legal aid and speedy trial, or the right to privacy.
Previous Supreme Court Rulings Against the Right to Privacy
A.K Gopalan v. The State (1950)- In this case, the petitioner argued that the search and seizure operation carried out in his property violated the provision of Right To Property, as mentioned in Article 19(1). However, the court rejected the argument regarding the right to privacy, saying that the act of police did not obstruct his right to utilise his property. The court also mentioned the caveat of ‘reasonable cause’, which gives police the power to search and seize.
Kharak Singh V. The State of UP- In this case, the petitioner argued that the nightly domiciliary visit to his home by the police violated his right to move freely across India, as enshrined by Article 19 of the Indian Constitution. The petitioner also objected to the police shadowing him. While the court agreed that the nightly domiciliary visits did violate the petitioner’s right to live a dignified and free life, it also agreed that the right to privacy was not a fundamental right, and hence surveillance of his movements did not violate the Constitution.
Justice K.S. Puttaswamy (Retd) vs Union of India (2017)- During the hearing of a petition that challenged the constitutional validity of the Aadhar based biometric system, the Supreme Court of India unanimously agreed that the right to privacy is a fundamental right as enshrined by the Constitution. The court expanded the purview of Article 21 and said that the Right to Life and Liberty, as stated in Article 21, also included the right to privacy. Since Article 21 falls under Part III of the Indian Constitution, which deals with fundamental rights, the right to privacy thus automatically became a fundamental right after the judgement. Since then, the right to privacy has been a fundamental right in India..
The Digital Personal Data Protection Act, 2023
The enactment of the Data Protection Act for India has been long sought. The first draft data protection bill was tabled in Parliament in 2018 under the title Personal Data Protection Bill, 2018. The draft was prepared by the Justice Srikrishna Committee ( a committee formed by the Ministry of Electronics and Information Technology). The bill was sent for reconsideration as it mandated the data fiduciary to maintain at least one copy of serving copy of customers’ information in India so that it would be easy for law enforcement agencies to access the information. This mandatory requirement posed a serious threat to privacy by allowing the state to process the personal data. The regulatory framework established by the bill was given minimal autonomy, and it would have worked largely under the central government.
Other two bills were also presented in the Parliament in 2019 and 2021, but both were withdrawn due to inadequacies present in them in providing a robust legal mechanism to secure the digital data of Indians.
Finally, on 11th August 2023, the Digital Personal Data Protection Act, 2023 (DPDP Act) was enacted, which provides a roadmap for protecting the digital data of individual citizens.
Right to privacy and right to be forgotten
The right to be forgotten is considered part of the broader right to privacy. Whereas, the right to privacy prevents the publication of information, the right to be forgotten requires the removal of information from public resources. In the age of technology, where each and every action of an individual creates a digital footprint, it is pertinent that the right to be forgotten be included in the right to privacy. The right to be forgotten calls for the ability of an individual to get the information removed or deleted from the databases, such as the right of an accused to get his name struck from the list in case he is not convicted. The right to be forgotten entails that an individual is able to remove their digital footprints that have been created by the use of the internet about their choices, preferences, contacts and so on.
Rout v. State of Odisha (2020)
The High Court of Odisha, through Justice S.K. Panigrahi observed that the right to be forgotten is in sync with the right to privacy. Every victim has the right to get materials removed from the internet through an approaching court that is against her dignity and reputation.
In this case, the accused forcibly committed sexual intercourse with his classmate, recorded the incident, and uploaded it to facebook with a fake ID of the victim. After being caught by the police, he deleted the videos. The court, while rejecting his bail plea, observed that the victim or the prosecution may approach the court for proper order to the intermediary to remove the objectionable content from their database.
FAQs
What is the Right to Privacy?
The Right to Privacy is a fundamental human right that allows individuals to control their personal information and protect it from being exposed or misused by others. It includes the right to be left alone, to keep certain personal matters confidential, and to decide who can access one’s private information.
What does the Right to Privacy cover?
- Physical Privacy: Protection from surveillance or bodily invasion.
- Informational Privacy: Control over one’s personal data and how it is used.
- Decisional Privacy: Freedom to make personal decisions without interference, such as marriage, family planning, and lifestyle choices.