Abstract
The evolution of human beings can be answered within the realms of changingeras, based on the advancement of tools and themechanical mindset. It is the notion of progress that has brought humans to survive on this planet throughthe evolution of time. The most rampant technological growth can be previewed in the Millennium Era and upon the advancement of the internet and fibre optics. The 21st Century saw a wide demand for computer-based technology, which in the coming decades not only transformed the way and outlook of human working and assessment, but also enslaved the human brain into a fast modern digital era. The ways of communicationhave evolved into a specific sphere of networking with the use of electronic media and a flourishing market of smart electronic devices with wireless technologies. The rights which are fundamental to the inherent existence of humans on earth are now not to be severed only towards preserving of body or mind of a person, but also towards the acts of personal privacy in public and private arenas of one’s life. The trans-boundary sharing of Data and the expanding use of internet technology have brought an obligation upon the states to prevent, protect and legislate upon the extensive data pooling in this digital economy. This review article shall focus on the several constraints faced by the government and citizens in the development of a new thought of digital rights and its incompatibility with the inherent advancement of new threats to national security and the use of surveillance monitoring techniques.
Keywords: Human Rights, Privacy, Digital Rights, National Security, Digital Era
INTRODUCTION
The idea of personal privacy is not relatively new to India. The Ancient Administrative system of governance, which is based on Vedic literature and Upanishads, mandated certain acts to be done in seclusion from the outside world, like ‘meditation’, thus enumerating the concept of autonomy of privacy. Politico-legal texts like ‘Arthashastra’ also demonstrate reverence for the individual’s privacy in a welfare society.[1]
As Dr. Leon A. Pastalan defined, “Within the definitional frame of reference, there are four delimitable modes of privacy – solitude, intimacy, anonymity and reserve. Privacy for our purposes may be defined as the right of the individual to decide what information about himself should be communicated to others and under what conditions”.[2]
The Constitution of India is an ever-evolving document, adaptive to the changing conditions of the world around it, which is an unarguable reality that cannot be refuted. In addition to several other basic rights, it acknowledges the privacy rights to be inherent in the many rights that fall within the purview of Article 21. It states that“no individual shall be deprived of his life and personal liberty except according to the method prescribed by law,” which means that no one has the authority to take away a right to lead a dignified life, except those who have been given the power to do so as per the law of the nation. Since the right to privacy is connected to an individual’s life and liberty, Article 21 guarantees protection for this fundamental human right.[3]
For the first time in 1994, the Apex Court of India accepted the legal presence of any ‘person’s privacy in a society’ and ‘the right to be left alone’ undisturbed in the famous Auto Shankar case. In this case, the SC made it clear that the right to privacy of an individual is a part of the Right to freedom of speech and expression under Article 19(1)(a), which is granted to any individual, being a ‘convict’ and even the press.[4]Further, SC in State of Maharashtra v. Madhukar Narain[5], decided that a lady has the same access to right to privacy as a woman to protect her against the allegations put against her as any other person, and that no one has the right to breach her privacy.
In the famous ‘Phone Tapping’ case of People’s Union for Civil Liberties v. Union of India[6], said that the government should not use this power to conduct surveillanceactivities, unless there is a public interest, an emergency or a danger to the public. It also said that Article 21 of the Constitution protects citizens’ rights to life and liberty, including their right to privacy.[7]These arguments are founded on the Constitution of India’s provision of reasonable limits to freedom of expression, which may be found in the document.[8]It was noted by the Supreme Court in R.M. Malkani v. State of Maharashtra[9] that the court would not accept measures for the protection of citizens being jeopardized by allowing the police to continue illegally or irregularly[10]. The government is not permitted to place prior restraints on the dissemination of defamatory information about its officials; if it were to do so, it would be in contravention of Articles 21 as well as 19(1)(a) of the Constitution.[11]
However, in the year 2017, the ‘right to privacy’ was finally acknowledged as a basic human right. The landmark decision by the Supreme Court in the case of Justice K. S. Puttaswamy (Retd.) and Another v. Union of India[12], established that the privacy right is inherent under Articles 14, 19 and 21 of the Constitution of India.[13]It was argued that the state and non-state organizations may both be held liable for violating people’s privacy when it comes to protecting the personal information of citizens.[14]This decision was hailed as a constitutional victory, which inter alia, accepted a new “right to informational privacy”.
[1]Anjali Kumari, “Need of Privacy Law in India” 4(3) International Journal of Law Management & Humanities 1956 (2021).
[2] Leon A. Pastalan, “Privacy as a Behavioural Concept”, 45(2) Social Science 93, 95 (1970).
[3]Sonam Rawat, “Revisiting Right to Privacy in Indian context”, 4(4) International Journal of Law Management & Humanities 4036 (2021).
[4]Vijay P Dalmia, “Data Protection Laws In India – Everything You Must Know – Data Protection – India” Mondaq.com, (2017), available at: https://www.mondaq.com/india/data-protection/655034/data-protection-laws-in-india–everything-you-must-know (last visited June 10, 2022).
[5] AIR 1991 SC 207.
[6] AIR 1997 SC 568.
[7]Nivedita Baraily, “An Analysis of Data Protection and Privacy Laws in India” International Journal of Law Management & Humanities, 2021, available at: https://www.ijlmh.com/an-analysis-of-data-protection-and-privacy-laws-in-india/ (last visited June 10, 2022).
[8]Abraham, “Data Privacy: Finding the Right Balance Between Data Personalisation and Consumer Privacy” 5(1) IJLMH 1541 (2022).
[9] 1973 SCC (1) 471.
[10]B. Madhana, “A Study on Law Relating to Data Protection in India” 4(3) IJLMH 6186 (2021).
[11]Ibid.
[12] (2017) 10 SCC 1
[13]“A study on Right to Privacy in light of K.S. Puttaswamy v Union of India,” International Journal of Law Management & Humanities, available at: https://www.ijlmh.com/paper/a-study-on-right-to-privacy-in-light-of-k-s-puttaswamy-v-union-of-india/ (last visited June 10, 2022).
[14]Ibid.