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Right to Privacy

Right to Privacy – Definition

• Privacy can be defined as the ability of an individual to be left alone and express themselves selectively without being observed and disturbed.
• In other words, privacy is an individual’s right to seclusion, or right to be free from public attention and interference.
• In recent contexts, it is often associated with information privacy which stands for “the right to have some control over how your personal information is collected and used”.
• Right to Privacy thus stands for a legal framework that provides individuals with a legal right to protect their or their data’s privacy.

Indian Context

• In India, the Right to Privacy comes under Article 21 (Right to Life and Personal Liberty – a Fundamental Right) of the Indian Constitution which says: “No person shall be deprived of his life or personal liberty except according to procedure established by law”.
• The Right to Life enshrined in Article 21, therefore, includes all those aspects of life which make a man’s life more meaningful, complete and worth living.
• To make human life something more than mere survival and mere existence or animal existence, the right to maintain one’s privacy is essential leading to the Right to Privacy becoming an intrinsic part of Article 21.
• India is a signatory to the Universal Declaration of Human Rights (1948) which includes a provision on the protection of the privacy of individuals in Article 12.
• Article 12 speaks against arbitrary interference with any individual’s privacy, family, home or correspondence, or attacks upon his/her honour and reputation.
• It also desires the Member States to protect such laws that deal with the right to privacy of individuals.
• India has also ratified the International Covenant on Civil and Political Rights (‘ICCPR’).
• Article 17 of the ICCPR provides for the protection of the privacy of individuals.
• States party to ICCPR have a positive obligation to adopt legislative and other measures to prohibit interference and attacks on the privacy of individuals as well as to protect this right.

Cases related to Right to Privacy

• The issue was raised for the first time in the case of Kharak Singh v. the State of U.P. & Others, 1962 where the Supreme Court held Regulation 236 of the U.P. Police regulation unconstitutional on the grounds of violating Article 21 of the Constitution.
• The Court held that the Right to Privacy is a part of the Right to the Protection of Life and Personal Liberty (Article 21) equating privacy to personal liberty but did not consider it a fundamental or constitutional right.
• In Govind v. State of Madhya Pradesh, and Another,1975, the Supreme Court accepted the Right to Privacy to be emanating from Articles 19(a), (d) and 21, but did not consider it an absolute right.
• Further, in Smt. Maneka Gandhi v. Union of India & Anr(1978), and Naz Foundation Case (2009), the courts ruled against interference with the personal liberty and privacy of individuals and held the Right to Privacy valid settling the position that the Right to Life and Liberty under article 21 includes Right to Privacy.
• However, Justice K.S. Puttaswamy v Union of India, 2017 remains to be a landmark judgement regarding this issue since it affirmed the constitutional right to privacy.
• It declared privacy as an integral component of Part III (Fundamental Rights) of the Constitution of India.
• Thus, the Supreme Court finally settled the principle declaring privacy as a fundamental right.

BN Srikrishna committee

• However, following Justice K.S. Puttaswamy v Union of India, 2017 judgement and issues regarding the regulation of informational privacy in the digital age, a committee headed by Justice BN Srikrishna was appointed to study the key issues and suggest recommendations.
• The Committee submitted its report in 2018 titled “A Free and Fair Digital Economy – Protecting Privacy, Empowering Indians”, along with a draft Data Protection Bill, to the Ministry of Electronics and Information Technology.

The recommendations included:

• Processing of personal data only for “clear, specific and lawful” purposes” and “only necessary data to be collected”.
• Problematic exceptions that allow data processing only when ‘necessary’ for the function of central and state governments and prevention of offence and ‘contravention of the law’.
• Right to be Forgotten.
• Data localisation.
• Explicit consent of users is necessary when the processing of “sensitive” personal data is carried out.
• Setting up of a Data Protection Authority.
• Amendments in RTI (Right to Information) and Aadhar Act.

Reasonable restrictions on Right to Privacy in India

• The sovereignty and integrity of India.
• The security of the State.
• Friendly relations with foreign States.
• Public order, decency or morality.
• Contempt of court, defamation or incitement to an offence

Criticisms of the law

• Critics argue that the law undermines freedom of expression and the public’s right to access information.
• They also claim that the law is difficult to enforce and can lead to the censorship of legitimate information.
• Others argue that the law is too narrow in scope and does not provide adequate protection for individuals’ privacy.

Way Forward

• Right to Privacy is a sensitive issue in India. It thus needs to be dealt with immense care by the executive and legislative bodies keeping in mind the interests of all the stakeholders.
• Harmonising the legal framework which regulates communications surveillance in India, establishing an independent and effective oversight mechanism with a mandate to monitor all stages of interceptions of communications and establishing independent accountability mechanisms and clear standards for India’s security and intelligence agencies may help.
• Furthermore, review and reform of regulations, all licensing agreements, the proportionality of data retention requirements and adoption and enforcement of a comprehensive data protection legal framework meeting international standards would help India to achieve its constitutional goals.