Introduction
Privacy, in general parlance, refers to the freedom of being left alone at your own will, with no external interference in your affairs. It is generally believed to be a basic human right. Similarly, Black’s Law Dictionary defines privacy as the right to be left alone, that is, to be free from unwarranted publicity and to live without unwarranted interference by the public in matters with which the public is not necessarily concerned and Right to Privacy is an important concept to understand.
Universally reputed documents of Human rights, such as the UDHR and ICCPR, in their articles 12 and 17, respectively Recognize the right to Privacy as a basic human right that is applicable across the world. In fact, many democracies around the world, for instance, Europe, have long treated privacy as a critical part of human rights. The global recognition of privacy as a right is not only crucial for the recognition of individual privacy but also for the upliftment of societal values, which include freedom, trust, and respect.
However, in India, Right to Privacy, though not explicitly recognised in any provision of the Indian Constitution, Article 21 and Article 19 (1) (a), (d) protect this right as an intrinsic part of the right to life and personal liberty. And over the years, it has been the centre of debate whether this particular right should be recognised or not. It is through these various discussions in the judgments of cases like Kharak Sigh And MP Sharma being overruled to being accepted as a limited fundamental right in the case of Govind India has seen some dramatic changes in the understanding of privacy as a human right.
Historical Evolution of the Right to Privacy in India
In the transition of the world into a digital era and drastic technological advancement, there has been a great concern over personal privacy and data protection. Historically, India strictly and explicitly denied the right of privacy in the case of Karak Singh v. State of U.P. (1963) In which Kharak Singh, who was charged in a criminal case, challenged the validity of the discretion of the police, allowing the authorities to enter his house at night and monitor his movements. He argued that the act violated his fundamental right of life and personal liberty under Article 21 of the Indian constitution as recognized as an essential right for living a dignified life and protected by due process, as well as violated his constitutional guarantee of freedom of movement under Article 19(1)(d), which upholds the right to move freely throughout India unless reasonable legal restrictions are imposed. To which the Bench strongly declined his claims and stated that the Right to Privacy is nowhere reflected and mentioned as a guaranteed right.
Gradually, after a decade, the definition of a privacy law was interpreted more liberally by the Supreme Court in a landmark case of Govind v State of MP (1975) where the SC acknowledged the right to Privacy as “an emanation” from article 19 (a), (d), and 21, but ruled that this right is not absolute as it could be subject to reasonable restrictions, to promote public interests such as national security and public welfare.
The Kharak Singh and Gobind decisions laid the foundation for privacy rights in India and were developed in subsequent cases. These judgments seem to be slow, but still the judicial movement to focused on privacy as a fundamental part of personal freedom, and finally Justice K.S. Puttaswamy v. Union of India (2017), in which the Supreme Court held that autonomy is a right under the Constitution.
Finally, in the case of Justice K.S. Puttaswamy the SC court overturned the judgment given in the Kharak Singh case to the extent that it held that the right to privacy is not protected by the Constitution and recognized the right to privacy as a fundamental right under the Indian Constitution.
Right to Privacy under Article 21 of the Indian Constitution.
Article 21 of the Indian Constitution is a provision that establishes the essence of life and liberty, and personal dignity. Under the purview of Article 21, there comes the topic of Privacy as personal liberty to live life without being required to disclose any information about oneself without his consent and to live freely knowing that there is no surveillance or monitoring of movement. Supreme Court, before recognising the Privacy right as a standalone right, it acknowledged its presence within the fundamental right guaranteed by the constitution, notably the right to life and liberty under Article 21.
The word personal liberty was interpreted by the Honourable Justice Subba Rao, one of the six judges deciding the Kharak Singh case. He wrote a detailed opinion arguing that even though the Constitution does not expressly state that the right to privacy is a fundamental right, it is an essential ingredient of the right to personal liberty, and that there was nothing more deleterious to a man’s physical happiness and health than the calculated interferences with his privacy.
Followed by the Govind case, another crucial case that shaped the trajectory was- PUCL vs. Union of India case in 1997, commonly known as the Telephone tapping case, in which the Supreme Court emphasized that telephone tapping or interception constitutes a violation of the right to privacy unless it is authorized by a procedure established by law. It is authorized by a procedure established by law where it is just, fair, and reasonable. Then came the turning point in the history of privacy as a right in India in 2017- Justice S.Puttaswamy vs. Union of India, which strengthened the meaning of Personal liberty and situated privacy alongside other fundamental rights in the Constitution of India.
Furthermore, the growing concern over individuals ’ privacy and surveillance has brought notice of these issues, prompting legislative initiatives, like the proposed Data Protection bill, which seeks to create a structured legal framework to protect individual’s Personal Data.
Judicial Recognition: Puttaswamy Judgement and Beyond.
India realised the importance of this crucial right much later than the rest of the world. Before the late 2000s, privacy was never interpreted liberally as it was interpreted in the landmark case of Puttaswamy in 2017. The Aadhar case, in which the government of India’s plan to provide a Unique digital identity to the 1.3 billion people living in the country, exploded. Here, In this case, Justice K.S. Puttaswamy who was a retired judge, challenged the Scheme planned by the government. To which the Government argued that the right to privacy is not at all an absolute right and could be limited in the Intervene of national security or public order. On the other hand petitioners key argument emphasized privacy as a constituent element of human dignity and autonomy. SC in it’s judgment observed that the framers of the Constitution of India left the issue of privacy open and inferred that with changes and advancements in society, this concept can also be interpreted likewise.
In this Judgment, Justice Chandrachud’s opinion was instrumental in shaping this philosophical concept of privacy as a part of constitutional jurisprudence. He believed that privacy is not only a right but also forms part of the very cloth of a free society. He was particularly disturbed by some implication of surveillance as he states “Undeterred Surveillance Infringes on Individual Freedom and erodes the Key concept of Free society. Hence, here the Keher Headed bench of 9 judges overruled earlier Judgments in M.P. Sharma v. Satish Chandra (1954) and Kharak Singh v. State of U.P in 1963, where the bench had refused to give constitutional recognition as a fundamental right to Privacy. The Judgment brought into light privacy is essentially fundamental to the protection of human dignity, liberty and Speech.
The Puttaswamy Judgment further established a landmark precedent for privacy as a fundamental right in India. Judiciary since then had been extra cautious over steps of states and corporate intrusion, where the unlimited control over one’s fundamental right was seen unconstitutional in the case of Anuradha Bhasin v. Union of India. In which Supreme court of India debated Issues of legality related to internet shutdown in Jammu Kashmir. The court acknowledged that these restrictions must be necessary and proportionate. Since Puttaswamy the most concerning issues, social media features like facial recognition, Thumb Impression and Data localization. Also seen in the recent Whatsapp privacy policy which enabled it to share more user data with face book, facing huge public backlash and multiple lawsuits. Here again courts have stated that adequate consent and transparency from users is a must.
Comparative Perspective:- Privacy area globally
Comprehensive data protection laws globally can be looked at by India to improve and widen the scope of the current legislation. As per UNCTAD data, One of the most remarkable legislation has been the EU’s General Data Protection Regulation. Being the benchmark for around 137 countries around the world. The EU Charter of Fundamental Rights is one of the first to give the right to the protection of personal data. Initially, it was introduced as a mere declaration, then later became binding upon the states.
Moving forward to the United States of America, we have seen several laws addressing data privacy, including the Privacy Act of 1974. and the Computer Matching and Privacy Protection Act. However, these laws focus majorly on the protection of personal data held by federal government agencies, neglecting the regulation of data held by private individuals or organizations. Apart from these federal statutes, the US government’s approach to data privacy is characterized by sector-specific regulations rather than a comprehensive and integrated framework. This fragmented legislative landscape has resulted in significant gaps in data protection, particularly in the private sector.
Despite these shortcomings at the federal level, there have been some developments emerging from individual states. Around 15 US states have now enacted legislation inspired by the GDPR framework, with the aim of protecting citizens’ privacy rights in their capacity as consumers. However, the absence of explicit constitutional recognition of data privacy as a fundamental right remains a pressing concern, especially in this evolving technological era.
In the United Kingdom, the data protection laws have seen quite a change in their legislation, after exiting from the European Union. The UK government has incorporated the GDPR into UK National Law, thereby creating UK GDPR. The Data Protection Act, 2018 (DPA) remains as a national data protection law. It deals with the protection and control of how personal information is used by organisations and government departments. The government also provides its citizens with a guide to the data protection exemptions on the Information Commissioner’s office website, where it has laid down its rules for Data Protection Principles to be followed strictly unless an exemption applies.
Challenges in Protecting the Right to Privacy in India
The major challenges that India faces in protecting their right to privacy primarily include rapid technological advancement and inadequate legal framework, where digital platform has compromised citizens’ privacy rights and created unprecedented challenges in data protection. With recent trends like AI image generation and transformation, resulting in haunting events in a person’s life as the rapid advancement of Generative AI has given rise to Deep fake Technology (DT). With this, it also becomes challenging for the government to adapt and bring legal changes at the same pace as technology is evolving. The number of cases of financial fraud and scams multiplies each time, with the delay in law-making and the opposite growth of technology and digital platforms. Another most faced challenge of the state, as well as other governments, is balancing the right to data privacy with other fundamental rights, which becomes the sole reason of a lot of democracies not to constitutionalise this right, as it would go against the conventional state concerns like security.
Hence, the journey of shaping this area of law is not just a mere challenge; it includes a dynamic process and a need to adapt to the pace of development of technology as India continues to digitalise and shifts to better technology.
Conclusion
As we conclude this topic, the journey of privacy jurisprudence in India started from right-based recognition and protection of personal data in the landmark judgement like K.S. Puttaswamy, which has strengthened the scope of this right and emphasised the significance of personal dignity. However, the rapid evolution of the digital landscape continues to bring in more challenges and complexities in safeguarding this right. Therefore, we look ahead to a robust framework for privacy that must include a balance of social and economic opportunities of data-driven technologies and to safeguard individuals’ fundamental rights, especially privacy, freedom, and dignity in alignment with global standards.
About Author
Ngawang Yangchen, a law student at B.M.S. College of Law, Basavanagudi, Bangalore, is beginning her journey as a legal writer with a passion for understanding evolving legal frameworks. Interested in Human Rights Law, Criminal Law, Cyber Law, and Military Law, Yangchen explores the complexities of justice and accountability in an increasingly digital and interconnected world.
References
1. https://www.ijfmr.com/papers/2024/6/31832.pdf
https://unctad.org/system/files/official-document/dtlstict2016d1_en.pdf
https://www.gpo.gov/fdsys/pkg/STATUTE-102/pdf/STATUTE-102-Pg2507.pdf
https://dx.doi.org/10.29121/shodhkosh.v5.i1.2024.3498
https://doi.org/10.1109/ACCESS.2024.3381611
FAQ:-
1. Is the right to privacy a fundamental right in India?
Yes, recognised under Article 21, after the Justice Puttaswamy Case (2017). but not an absolute right and subject to restriction, Article 19 (5).
2. What is the scope of the right of privacy under the Indian Constitution?
Right to Privacy in India though not explicitly mentioned in the Constitution, privacy is interpreted as an intrinsic part of these fundamental rights:- Article 21 ( right to life and Personal Liberty) and to some extent from Article 19(1) (a) and (d)( freedom of Speech and Movement.)
3. How did the Puttaswamy judgment impact the recognition of privacy in India?
The Supreme Court’s Puttaswamy judgment (2017) established privacy as a fundamental right under Article 21, overruling previous cases and requiring that any restriction on privacy be constitutionally justified.
4. What are the challenges in enforcing the Right to privacy in India?
Challenges in enforcing privacy include balancing privacy with national security, rapid technological advances outpacing laws, and inadequate legal frameworks.Public awareness is limited, and government surveillance programs raise concerns about misuse.