RIGHT TO PRIVACY DISHA GUPTA BASICS OF LAW Sat, Nov 16, 2019, at ,12:32 PM “I cherish my privacy and woe betide anyone who tries to interfere with that” – Jeff Beck INTRODUCTION According to Merriam Webster dictionary, the legal definition of the right to privacy means the right of a person to be free from intrusion into or publicity concerning matters of a personal nature. According to Black’s Law Dictionary, the right to privacy has been defined as the right that determines the non-intervention of secret surveillance and the protection of an individual’s information. This dictionary also states that the word privacy means the right to be alone; the right of any person to be free from any unwarranted publicity; right to live without any unwarranted interference by the public in matters with which public is not necessarily concerned. Privacy right is a facet of human right and hence, it is inalienable from the personality of a human being. It is so deeply embedded with the liberty and dignity of an individual that it cannot be denied the status of a fundamental right. The idea of liberty in a democratic nation would be vague if privacy is not given the status of a fundamental right. According to Justice Krishna Iyer, “Personal liberty makes for the worth of human person”. Hence, the notion of dignity and liberty are not independent of privacy. The right to privacy is a right which an individual possesses by birth. Privacy simply means the right of an individual to be left alone which is recognized by the common law. The notion of privacy is sometimes ambiguous because of the different historical theories of privacy given by three different groups of eminent jurists. However, the fact that privacy is an existing right just like any other human right cannot be denied. DEVELOPMENT OF RIGHT TO PRIVACY IN INDIA The Right to Privacy has been very much debatable in India because the Indian Constitution does not expressly grant the Right to Privacy. The drafters of the Indian Constitution put forth the Right to life as an essential right. The Right to Live with Dignity is imbibed in the Constitution of India under ‘Article21’, which provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The Supreme Court of India has also given various interpretations to Article 21 of the Indian Constitution expressly granting Right to life to all the citizens of India and with the growing times, right to life has been given too much-expanding horizon with so many other rights coming within its ambit like right to speedy trial, Right to shelter, and many others. The explanation is given by the Apex Court to “life” and “liberty” under the Indian Constitution has always been expansive to the extent that it does not mean mere animal/physical existence. “Life” is meant something more than mere animal existence and includes the right to live with human dignity. The Preamble of the Indian Constitution guarantees the liberty of thought, expression, belief, faith and worship to all the citizens of the country. This in itself reveals how important and expansive the term “liberty” was for the drafters of the Indian Constitution. A term of Article 21 of the Indian Constitution which includes the word “personal liberty” reveals that for an individual to lead a dignified life, his/her liberty should be protected which ultimately demands the Right to privacy to be given legal recognition. The Supreme Court of India has time and again emphasized to give an expansive interpretation of the term “personal liberty” under Article 21 of the Indian Constitution. The Supreme Court has stated in a case, “The expression personal liberty is of widest amplitude covering a variety of rights.” The question to recognize a right to privacy arose in Kharak Singh v. State of U.P. wherein Justice Subbarao in his minority opinion expressed a need to recognize such a right even though it is not expressly granted by the Constitution of India. The petitioner, in the aforementioned case, was put under surveillance because of his criminal activities. The surveillance was to keep a watch at the petitioners’ house which also involves secret visits to the petitioners’ house at night. He challenged such provisions of Secret and domiciliary visits of the U.P. Police Regulation as a violation of his right to privacy. The Court, however, refused to give recognition to the right to privacy reason being that the Indian Constitution does not give express recognition to any such right. Herein, the Supreme Court held that Regulation 236 of UP Police Regulation was unconstitutional as it clashed with Article 21 of the Constitution. It was held by the Court that the Right to Privacy is a part of the right to protection of life and personal liberty and equated privacy to personal liberty. Justice Subba Rao also observed that the concept of liberty in Article 21 is comprehensive enough to include privacy. The same view was observed by the Apex Court in M.P. Sharma v. Satish Chandra. IMPORTANT JUDGEMENTS In People’s Union for Civil Liberties v. Union of India, the Court mentioned as follows- “We have; therefore, no hesitation in holding that right to privacy is a part of the right to “life” and “personal liberty” enshrined under Article 21 of the Constitution. Once the facts in a given case constitute a right of privacy, Article 21 is attracted. The said right cannot be curtailed “except according to the procedure established by law”. In this case10 the court held that telephonic conversations are private in nature and hence, tapping of the same amounts to a violation of one’s own privacy. In Naz Foundation Case Delhi High Court gave the landmark judgment on consensual homosexuality. The right to privacy held to protect a “private space in which a man may become and remain himself”. It was said that individuals need a place of sanctuary where they can be free from social control and reflect the realities of their nature. Also in the case of Navtej Singh Johar v. Union of India, the SC held that Section 377 of IPC insofar as it applied to consensual sexual conduct between adults in private is constitutional. Further, the nine-judge bench of the Supreme Court of India had unanimously delivered the judgment in the landmark case of K.S Puttaswamy v. Union of India, the dignity of an individual is a foundational pillar of the constitution and thereby inalienable. The facts of the case were that the government of India decided to provide to all its citizens a unique identity called Aadhar which is a card containing 12 digit Aadhar numbers. The registration for this card was made mandatory so as to enable the people to file tax returns, opening bank accounts, etc. However, the registration procedure for such cards required the citizens to give their biometrics such as fingerprints, iris scans, etc. CONCLUSION With the recognition of privacy as a basic and fundamental right of an individual, India definitely cannot lag behind. The judgment of the Supreme Court is correct and true and with the growing information technology, privacy needs to be a fundamental right. However, it is also true that stringent laws need an introduction after this. An expert committee must be formed to probe into the matter as to how many privacy infringement issues are taking place in India and accordingly legislation exclusively dealing with such problems must be enacted. When it comes to conflict between infringement of privacy and public interest, reasonable care must be taken to choose as to what is more important. Individual interest cannot override public interest. The maxim “salus populi est suprema lex” which means public welfare is the highest law must be maintained in the democracy. Jurisprudentially also, Bentham gave the pain and pleasure theories. Hence, the Government must take into account the pleasure of a larger number of people who should try to inflict lesser pain. There must be regulation on the arbitrary use of power by the Government with respect to personal information of the people.