RIGHT TO PRIVACY: A PUBLIC DEBATE by - Shreya Singh
Rights regime in the largest democracy, quite beyond dispute provides for a multitude of liberties and rightswhich could bring into being a standard life. However, in the case of right to privacy this trend clearly exhibitsa bleak prospect when it was attacked by the Government by called into question before the court recently;added to this is the persisting apathy of the legislature to formulate a comprehensive frame of the privacyprotection in this brave new world of technology. This itself speaks of that privacy fiefdom is not onlyinadequately secure but is also under constant risk of assault. Would ourlegal wisdom warrant it to say thatthe insufficient web of privacy is due to the relatively inadequate number of attacks on privacy in India?
Right oriented assertions have now been occupying the centre stage of socio-legal platform. The terms ‘right’ and ‘fundamental right’ became an interesting source of enquiry for a keen observer. As the social transformation is put on to the fastest track by technological innovations, the legal sphere has also ascribed tothis by bringing up novel aspects and standards of rights and duties. New rights and its offshoots are takingfirm roots with more and newer duties intandem.The usualcorollary of it is that the State is in quandary while granting recognition to rights or its offshoots and it attempts to limit the extents of it and the societyqualmsabout thepotential threats.
Privacy is now gaining new currency with more claims and controversies. In India, the right to privacy although not a new born baby, is neglected and treated like an outsider. It certainly, denied the love and careneed to have been given. At present, there echoes a multitude of questions touching upon privacy and its rightroots. The general tone of which reflects an apprehension of not infrequent violations of privacy resulting inblatant invasion of the enjoyment of life; above all the prospective danger it faces, in particular from public authorities, needs thorough analysis.
Status of Privacy in India
It is true that, in India privacy as a right drawn not as much importance as in the Western world. Also, privacy perception in our society, privacy frame and its developments too is at quite variance to them. In India thematter of privacy now slips to public realm. The right to privacy begins to lose its veil of privacy. The privacy has now been treated at the centre of attention of public debates, especially in the sphere of technology. The basis of many a debate emanates from the legal circle- legal protection of privacy in India. This indeed is caused by, at first place, the legislative erection of right to privacy has not been legally concreted-a comprehensive legislation recognizing and codifying rights concerning privacy is still absent; in second place,the judicial construction of it has also been not solidified; it is still questionable as shown by the recent instance. Therefore this would be of interest given the new and emerging challenges, to deal with the prevailing judicial and legislative measures protecting privacy and toexamine, beyond all, how healthy is privacy physique in India.
The questions regarding the right to privacy have been advancing since years just after the adoption ofthe Constitution. In MP Sharma v. Sathish Chandra1the apex Court was categorical in observing that there was no right to privacy and the makers of the Constitution were not intended to incorporate such a right into the Constitution. Further, in Kharak Singh Case2 the Supreme Court invalidated Uttar Pradesh police regulations with regard to ‘surveillance’. The regulation permitting surveillance by “domiciliary visits at night”, was held unconstitutional. But, again the majority judgment declared there was no right to privacyguaranteed under the Constitution. The minority judgment by SubbaRao J., held right to privacy “is anessentialingredient ofpersonal liberty”.
It was later in the era of Public Interest Litigation Jurisprudence that the court held that the right to privacy isimplicit in the right to life.3In this stage, dilution of principles of locus standi encouraged the initiation of legalprocess by and for the common men. The influence of this era upon the judicial system can be seen in thereadiness of the judiciary to acknowledge a catena of human rights and its overwhelming vigor to enrichdiverse aspects of human rights which were hitherto found no place in the Constitutional reservoir of humanrights4. To consider a recent case which deserves significance in the context of privacy regime is Selvi. v.State of Karnataka5,in this landmark judgment the Supreme Court was unambiguous to state that the involuntary administration of scientific techniques, such as Narco Analysis, Polygraph etc. should create an invasion into the right to privacy and forcible administration of such techniques violates fundamental rights.
Now turn to the legislative arena of privacy. In our country legislative sphere isdevoid of any separate enactments to provide right to privacy; but the efforts are seem to be not far away from this progress as it is revealed by recent Privacy Protection Bill6 and advancements in other legislative enactments, notably, Information Technology Act. After the 2008 amendment, privacy protection under the ITAct ostensibly fortified to address the demands of the mushrooming cyber world.7 However, the provisionsapparently unarmed to meet the current and potential threats exhibited by virtual world.8 It is also right tomention here the risk of judicial intervention would be high as long as the provision is worded ambiguouslyproved by the recent instance.9The judicial trend in India is driving in the direction that the privacy can becompromised in larger public interest.10 Some of the legislative enactments** incorporated the notion ofprivacy include the Right to Information Act, which provide a clause stipulating non- disclosure of informationaffecting the privacy of a person.11 However, when there is an overriding public interest privacy plunges toperil. Credit Information Companies (Regulation) Act, 2005 contains regulations to meet privacy norms whilecollectingcredit information pertainingto individuals.12
Human Rights and Right to Privacy
Bearing in mind the fact that the world is in its every strides thriving to be more open and interdependent onvarious sectors, specially concern for security more often prone to share information with other countries andto receive individual data from them as a matter of necessity; equally, individual privacy envisages a sense ofurgency in its protection on account of technological eruption and ill-use of every scanty information. Aprivacythrustyworld is,itcan beinferred that,not too far.
While every scrap of information is in the brink of misuse, there is aninsatiable demand for protectionsimilar to other fundamental liberties in the zone of privacy and an unwarranted intrusion of which willbreaks the essential bond of dignity of life. The guarantee of right to life under Article 21 presupposes adignified life and not mere animal existence.To define dignity with precision, and in an all-encompassingmeaningis not an error-free task. It may vary with time and circumstances. As quoted in Kharaksingh: “[b]ythe term life as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all these limits and faculties by which life is enjoyed”. Considering the life jurisprudence under Article 21 over the post Kesawananda Bharati period, it has established and is reiteratedwith little waver that basic necessities which make a life dignified is the part of the fundamental right to life2which forms the basic structure of the Constitution. Any intrusion into private zones of life without necessaryand proper legal approval bring out in effect violation of the very sanctity of and existence the dignified life guaranteed under various provisions. The Constitution of India is not a rigid document. The purpose of which is to enable to and ensure for its citizens a meaningful life and to facilitate the enjoyment of that human rights which a civilized society needs. Approach to and treatment of right to privacy as taken by the judiciary in early years, if continued would have yielded undesirable results.
Next I would like to embark upon the friction with regard to the right to privacy and the doctrine of precedent which in variably resulted in reference to a larger bench seeking clarity in and consolidation of the Constitutional protection of right to privacy through K .S Puttaswami
v. Union of India. Court unanimously held that Art. 21 include right to privacy and it is a fundamental right.
It would be appropriate to raise some of the general questions, importance of which are not confined merely tomunicipal limits but were debated by the Common Law countries. In the Common Law world it is an oft-reported subject of contentious debate – the hallowed doctrine of precedent and the holy spout of legal system-justice.In the privacy arena this conflict is arose out of the judgments in Mohitsharmaand Kharaksinghcases where the former indubitably favored to wave away right to privacyand in the latter, the judgesweredivided over the Constitutional guarantee of the same. But the majority again found no components of privacyunder the right to life. The subsequent decisions of the apex court beginning from Gobindcase took a turn ofand break with the past and the precedential authority of the Mohit Sharma and Kharaksinghcases to addressthe dynamic needs of the society. It is a gesture rejuvenation justiceby paying homage to the mechanicalrigidity of the doctrine of precedent where rule is to affirm and follow it till overturned by a larger bench andeverythingdeflectfromittobetreatedasanexception.AstoCardozoj.“adherencetoprecedentshoul dbethe rule and not the exception”.13 Despite this, sometimes it would be better to overrule the previous decisionthan to follow it “to avoid the perpetuation of pernicious error or where an earlier decisions wholly out of stepwith the exigencies of the time.”14 “The familiar techniques whichare used to create doubts about thecontinuingvalidityor relevanceof precedents arethe
The precedent may be criticized or it may be distinguished on fact or laws alternatively the dissentingjudgment in the previous decision may approved, or the law as laid down may be explained away or limited inits import or sought to be harmonized, with the position which is now being developed in the instant case orthe decision may be modified or qualified partly disapproved or may be referred only without any specifictreatment. Sometimesbynecessaryimplicationitmaybyimpliedlyoverruledalthoughtheeffe ctofoverruling is not conspicuous on the face of the decision. In all these cases the precedent decision suffersvaryingdegreesoferosionorauthority.Theextentofinvasionupontheauthorityestablishedbyt heprior
decisionwilldependuponwhattreatmentithasbeenaccordedtointhesubsequentdecision.”15TheCons titution has not only to be read in the light of contemporary circumstances and values; it has to be read
The justification for adopting and bringing our law in tune with the international principles lies in some of theearlier precedents. There are now well founded precedents which add color and credence to our legal frameregarding international law. This is, the apex court went to expressively advocating in favor of and patternedon International Conventions to uphold or to polish the rights regime in India. It is significant to bear in mindand to take a glimpse of this slow but seminal transformation of judicial commitment towards InternationalConventions nurturing human rights. In PremshankerShukla case1 in 1980 the Supreme Court observed “neverforget the core principle found” in international law and quoted while taking a heavily critical stand onhandcuffingprisoners.
However,theideaof21stcenturyIndianrightjurisprudenceofinternationallawwouldbearadifferentta gand taste. In the landmark case which granted recognition to third gender in India, where appeared a ferventjudiciary advocating for to manifest international standards in right based issues and to attach that principlesinto our legal texts. The Court after a deep enquiry into the international law observed, “Due to the absence ofsuitable legislation protecting the rights the necessity to follow the international Covenants to which India is aparty and to give due respect to other non binding International Covenants and principles.” Further it states,“Article 51, as already indicated, has to be read along with Article 253 of the Constitution. If the parliamenthas made any legislation which is in conflict with the international law, then Indian Courts are bound to giveeffect to the Indian law, rather than, the international law. However, in the absence of a contrary legislation,municipal courts in India would respect the rules of international law”. As to harmonization of internationallaw with municipal law, it is said that “[y]et they are persuasive principles of public policy and the silence ofthe domestic law can be an occasion for the Court to read principles of international law into constitutionalprovisions to effectuate existing constitutional guarantees.” Therefore, nothing is preventing the courts tofollowinternational principles to uphold right to privacy in India.
Right to Privacy as A Fundamental Right
The position in respect of privacy as seems from a series of recent cases is that, the right to privacy is a part ofthe fundamental right of Article 21 where it has been incorporated over time. There have certain groundswhere we judge some other interests as superior and can place that over the right to privacy if protection ofprivacy likely to cause considerable difficulty or danger to society. There have been several instances thejudiciary ‘disregarded’ the right to privacy in this manner17. To arrive at a balance with respect to the right toprivacy and other competing interests particularly when the court hasemphasized it throughout privacylitigations that the right is seldomqualified to be enforcedon all occasions, the necessity for clarity deservesgrave attention. What is obvious is that the judicial inclination is more to surrender individual privacy than tosuccor as to other interests or liberties. Indeed, to hold privacy as absolute or non violable amounts to creatinga danger. But, in fact what substantially qualified to suppress the right to privacy constitutes a grey area,changingwith time.
Although the stand taken by the judiciary for a long time to held at bay the right to privacy may seem only asambiguous- the Constitution was not permitting such a right. In the case of the legislature, even the rapidinnovations in the technological regime, was not provoked it to take a firm stands on the issue. The legislativeactions in this regard, evidently plagued with unwarranted delay. “The constitutional scheme envisages certainrights as basic human rights, which constitute the essence and contours of human personality. The emergenceof constitutional governance has led to protection of certain rights as fundamental. Regardless of theoriesrelating to the rationale of their codification, these rights are considered essential to human liberty, dignity, social order and cohesion. They are fundamental in the sense that human liberty is predicated on their availability and vice versa, and thus they cannot be waived.”18 However, what in fact, add a right to the category, which demands constitutional protection–to the fundamental right list. The rules or principles which decide this found wanting. It would hardly possible or it would not be desirable to frame any such fixedrequirements to address the position. The American Supreme Court while discussing the issue of privacy,confronted with the same problem of conferring right which has the force of enforceability. ‘How would judges beable to determine whether an un-enumerated right were “fundamental”?
‘In determining which rights are “fundamental”, judges are not left at large to decide case in light of theirpersonal and private notions. Rather, they must look to the ‘traditions and (collective) conscience of ourpeople’ to determine whether a principle is so rooted (there) as to be ranked as fundamental ….. The inquiry iswhether a right involved is of such a character that it cannot be denied without violating those fundamentalprinciples of liberty and justice which lie at the base of all our civil and political institutions’.2Further,‘freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom ofthoughts, belief, expression and certain intimate conduct’. It means, there should be some space where letindividual to be alone. Any intrusion into this area of personal liberty per se demeans the dignified life unlessprovided bydueprocessof law.
The Supreme Court ofIndia while discussing a question as to fundamental rights quoted that “according to Dr. Amartya Sen the justification for protecting fundamental rights is not on the assumption that they are higher rights, but that protection is the best way to promote a just and tolerant society”.19 “Indeed, nothing is more deleterious to a man’s physical happiness and health than a calculated interference with his privacy”20
The judgment of Puttuswamy’s case gives different perspective to the privacy view , J chellameswar held that right to food also included under the privacy concept.when we compare that with the current political scenario we understands the foreseeing of the judicial machinery.
To respond in advance and in adequate to the emerging threats against privacy, our legal web of privacy needsto be woven with a strong thread. Thus from the above I would conclude that the ﬁght to consider right toprivacy as a fundamental right within the ambit of Art. 21 which was going for a long time has come to an endby the decision given in the Puttswamy’s case. Even though this concept of aadhaar and issuance of aadhar has provided so many beneﬁts and has saved precious time of an individual by making an instant transaction. This concept of aadhar violates the individual’s privacy and also it can be treated as a national hazard sinceany one can easily access our personal details for a data breach. In criminal trial, scientiﬁc techniques can beused to extract information from the accused or the witness or the suspect without violating their right toprivacy and right against self- incrimination only when they make statements voluntarily and by followingprocedure established by law. A similar kind of scheme was introduced in England as a trial and error methodbut this scheme was discarded on the ground that it violates individual liberty. The AADHAAR scheme in India has had a similar impact and therefore is an infringement to personal liberty as protected under Article 21 of the Constitution.
 KharakSinghv.StateofUttarPradesh,AIR1963 SC1295
 Gobindv.StateofM.P.,(1975)2SCC148;RRajagopalv.StateofTamilNadu,AIR1995SC264; PUCLv.UnionofIndia,AIR1997 SC568;Dist.Registrar andCollector,Hyderabad and Anr.v. CanaraBank,AIR2005 SC186.
 PrivacyProtectionBill,2013,availableathttp://cis-india.org/internet- governance/blog/privacy-protection-bill-2013-updated-third-draft.
 BENJAMINN.CARDOZO,THENATUREOFTHEJUDICIALPROCESS149(UniversalL awPublishingCo.10thIndianreprint2012).
 EDGARBODENHEIMER,JURISPRUDENCE,THEPHILOSOPHYANDMETHODOF THELAW429(UniversalLawPublishingCo. 7th Indianreprint2011).
 A. LAKSHMINATH,JUDICIALPROCESS,PRECEDENTININDIAN LAW131(EasterBookCo.3rded.2009).
 SUPREMECOURTPROJECTCOMMITTEEONRESTATEMENTOFINDIANLAW,R OILPUBLICINTERESTLITIGATION103(UniversalLawPublishingCo. 2011).
 IRCoelho v.StateofTamilNadu,AIR2007 SC861
 KharakSinghv.State ofUttarPradesh, AIR1963SC1295.
 Supreme CourtAdvocates-on-RecordAssn.v.UnionofIndia,(1993)4SCC441.
 Insertion of new section 43 A directs corporate bodies dealing with sensitive personal data to maintain reasonable securitypractices.Also sections 43,66E,67A,67B etc.aresomeofthemshowing morestrictapproachto privacyprotection.
 Redressal mechanisms provided by the Act for violation of privacy not seem to be effective. And the Act is inadequate tocope with theproblems ofprivacy violation by other than state institutions. There is also needs to draw a visible line ofseparationbetweenprivacyandotherfundamental rights
 Mr. ‘X’ v. Hospital ‘Z’, (1998)8 SCC 296; Mr.K.J.Doraisamy v. The Assistant General Manager, SBI (2006)4 MLJ 1817 –Inthese casesprivacyclaimsweredownplayedbycertainotheroverridingpublic interests
 SUPREME COURT PROJECT COMMITTEE ON RESTATEMENT OF INDIAN LAW, ROIL PUBLIC INTERESTLITIGATION103(UniversalLawPublishingCo. 2011).
 IRCoelho v.StateofTamilNadu,AIR2007 SC861
 KharakSinghv.StateofUttarPradesh,AIR1963 SC1295.
1 Student at Law College Dehradun, Uttaranchal University