11 Aug Right To Privacy

According to Black’s Law Dictionary Privacy means “right to be let alone; the right of a person to be free from any unwarranted publicity; the right to live without any unwarranted interference by the public in matters with which the public is not necessarily concerned.”  In the constitutional or legal context the term privacy eludes a definition because of the progressive nature of its scope.

Though right to privacy is a fundamental Human Right under Article 12 of the Universal Declaration of Human Rights, 1948, it finds no mention in the Constitution of India. However, this has not stopped the Indian judiciary from expanding the scope of Fundamental Rights under the Constitution and bringing the Right to privacy within their purview. Through various judgments over the years, the Indian judiciary has interpreted the other rights in the Constitution as giving rise to a right to privacy primarily through Article 21.

Article 21 of the Constitution of India states that “No person shall be deprived of his life or personal liberty except according to procedure established by law”.  The term ‘life’ in Article 21 means and includes all those aspects of life which go to make a man’s life meaningful, complete and worth living. The judiciary has interpreted the right to life to protect civil and political rights, the right to fair trial and even the right to be alive. The Apex court has expanded the meaning of the term to render justiciable traditional socio-economic rights to food, water, education, health and even good governance.

The American Supreme Court has talked about the right to privacy as an aspect of the pursuit of happiness which requires certain liberties to be guaranteed by the state so that citizens don’t lose their freedom and individuality, as long as it does not encroach upon the rights of others. This right to privacy is not only a right against the state, but against the world.

The question of the right to privacy being a Fundamental Right had arisen before the Supreme Court in Kharak Singh v. The State of U.P., wherein Jeevan Reddy J. held that “the right to privacy is implicit under Article 21. This right is the right to be let alone. In the context of surveillance, it has been held that surveillance, if intrusive and seriously encroaches on the privacy of citizen, can infringe the freedom of movement, guaranteed by Articles 19(1) (d) and 21. Surveillance must be to prevent crime and on the basis of material provided in the history sheet”.

In Naz Foundation vs. Govt. of NCT Delhi, the Apex Court held that: “Any law interfering with personal liberty of a person must satisfy a triple test:

(i) It must prescribe a procedure;

(ii) the procedure must withstand a test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation; and

(iii) It must also be liable to be tested with reference to Article 14. As the test propounded by Article 14 pervades Article 21 as well, the law and procedure authorizing interference with the personal liberty must also be right and just and fair and not arbitrary, fanciful or oppressive.”

In December 2011, the Planning Commission of India directed the constitution of a committee under the chairmanship of Justice A.P. Shah to identify issues affecting the right to privacy and prepare a report on the same in order to provide a base for the drafting of a Privacy Bill for India. Since then there have been a number of drafts for a privacy bill in India but none of them have been turned into a law.

The implementation of programmes like Unique Identification Number, National Intelligence Grid, DNA profiling, Crime and Criminal Tracking Network, etc. by the government and the use of technology by people for their day-to-day affairs, have given rise to increasing concerns about invasion of individual privacy.

The call for a comprehensive legislation for protection of an individual’s right of privacy is a need of the hour, especially with increasing reach of the internet in the country. Being new to the privacy protection game, India has a unique opportunity to draft a modern Privacy Bill covering all aspects of privacy in today’s rapidly developing world.