RIGHT TO PRIVACY: A CRITICAL ANALYSIS

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW, RANCHI.

Research Paper

Submitted to: Dr. K. Syamala

Associate Professor, Law.

Submitted by: Abhishek Anand

Roll Numbers: 786

I Year – II Semester

B.A. LL.B. (Hons.)

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 ABSTRACT

This research is an attempt to analyze and study the Right to Privacy in India. This research
will analyze its evolution as a fundamental right and will also focus on its impact on
government policies (like Aadhaar scheme), Right to Information and Section 377 of Indian
Penal Code. The author of this research has used the Doctrinal method of research to
complete this paper. After analyzing Right to Privacy from the time of its inception to its
current position in Indian Law fraternity the author of this research has provided significant
suggestions to improve law/provisions made regarding this Right in India keeping in mind
the pace with which laws regarding the protection of privacy of an individual is changing
throughout the world.

INTRODUCTION

Technological advancement and social upliftment of our society have contributed enormously
to the development and prosperity of India in the 21st century. Technological advancement
helped India develop as a superpower by providing it with an advanced computing system,
precise and advanced satellite system and a state of art weapons system and social upliftment
helped the people realize their true self and work for the development of society as a whole
by eradicating socially-evil practices (like triple talaq, etc) and by helping them realise that
humanity comes before religion, caste, sex and social status. But like everything else, this
development and prosperity had its fair share of shortcomings, problems, and complications.
People started using technology do all their day to day work and even government started
providing all its services online with an intention to make it easier and safer and available for
every citizen living in any part of the country. This development was accepted by everyone
without any reservation but slowly people started realizing that instead of making it safer this
dependence on online medium to conduct day-to-day work was making them and crucial data
related to them vulnerable and in risk of falling in wrong hands. From the time of birth till
death everything they did online was recorded and even a tweet or harmless ‘like’ on

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Facebook could give away their crucial information like address of their home or workplace
to anyone in look for it online. Their Right to Privacy which is their supreme right inherently
given by nature was being violated every day. The government started collecting data from
every individual and storing it with itself and sometimes data was even collected without the
consent of that particular person. Also due to lack of proper encryption and security, data
available with the Government was becoming more insecure and prone to hacking.

All this left the citizens with two important questions:

1st question: Can the government collect information with or without the consent of its
citizen?

2nd question: To what extent can the government collect information from its citizens? (if at
all it can)

The search for answers to these two questions led them to the concept of Right to Privacy.

Right to Privacy simply provides for a state in which one is not observed or disturbed by
other people. Individually the term ‘Privacy’ has been defined as “the rightful claim of the
individual to determine the extent to which he wishes to share of himself with others and his
control over the time, place and circumstances to communicate with others. It means his right
to withdraw or to participate as he sees fit. It also means the individual’s right to control the
dissemination of information about himself, it is his own personal possession.”1. It can also
be said that it showcases Zero-relationship between two or more persons in the sense that
there is no interaction or communication between them if they so choose.

Like in every other common law-abiding country, in India also this right was not expressly
provided to the citizens but was derived from or evolved through judicial reviews and
decisions. Our constitution framers didn't explicitly provide for this right in the constitution
but the Supreme Court of India(hereby referred to as Supreme Court) in its various decision
has recognized this Right as a Fundamental right provided for implicitly in Article 21 of our
constitution. The first case decided by Supreme Court regarding this issue was M.P.
SHARMA v. SATISH CHANDRA2 way back in 1954 where the court held that Right to
Privacy is not a Fundamental right and then again in KHARAK SINGH v. THE STATE OF

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Goyal G. And Kumar R. , The Right to Privacy in India: Concept and Evolution 2016, Partridge Publication.

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1954 SCR 1077.

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U.P3 the court upheld its decision previously given in M.P. SHARMA v. SATISH
CHANDRA4. It wasn't until 1975 that smaller bench of Supreme Court started recognizing
Right to Privacy as an implicit part of Article 21 and GOBIND v. STATE OF M.P5 was first
such case where court for the first time held that Right to Privacy was indeed an implicit part
of Article 21.

This paper is an effort to study the evolution of this right in India and to know the validity of
Section 377 of IPC, AADHAAR YOJANA, RTI ACT in reference to Right to Privacy and to
suggest required changes in the laws/provision made regarding Right to Privacy in India.
Also, this paper is an effort to understand and study the extent of Right to Privacy and
situations where it can be curtailed by referring to the judgments of Supreme court in various
related cases.

EVOLUTION OF RIGHT TO PRIVACY IN INDIA:

A 9 member bench of the Supreme Court of India gave a landmark judgment on August 24th,
2017 in which it held unanimously that Right to Privacy is a Fundamental Right under Article
21 of our Constitution which talks about Right to life and personal liberty. But this
development is not something which took place or happened overnight. The development of
this Right to Privacy was a long and slow process and it took the Supreme Court 60+ years to
finally decide upon and include this right as Fundamental Right under Part III of our
constitution.

This tussle for recognization as a Fundamental Right for Right to Privacy started way back in
1954 in M.P. SHARMA v. SATISH CHANDRA6 where the court held that since our
constitution makers have not provided for this Right explicitly in Constitution as it is
provided for in the 4th amendment of American Constitution hence it is not a fundamental
right. The court upheld this judgment in KHARAK SINGH v. The STATE OF U.P.7 where
the U.P. Police Regulations providing for secret picketing, periodical inquiries, reporting of

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1964 (1) SCR 332.
4
M.P. SHARMA (x2).
5
1975 2 SSC 14.
6
M.P. SHARMA (x2)
7
KHARAK SINGH (x3).

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movements and collection of records of history-sheeters was challenged under Article 21 of
Indian constitution. In this case, the court held that above-mentioned acts are just a way
through which Right to Privacy can be curtailed but our constitution doesn't provide for Right
to Privacy and hence this act violates no Fundamental Right.

It was only after 1975 that smaller benches of Supreme Court started recognizing this Right
to Privacy as Fundamental Right which is implicitly included in Right to Life and Personal
Liberty under Article 21 of our Constitution. GOBIND v. STATE OF M.P.8 was the first
case where for the first time Supreme Court held that Right to Privacy is indeed a part of
Article 21 and hence a Fundamental Right. An exception was also provided for by the
Supreme court in this case whereas it was held that if the action of State is of sovereign
nature, then an action against it will not be maintainable in courts. Again in SELVI v.
STATE OF KARNATAKA9 the court held that “understanding of the ‘Right to Privacy’
should account for its intersection with article 20(3) and the importance of personal
autonomy must be recognized in aspects such as the choice between remaining silent and
speaking. An individual decision to make a statement is the product of private choice and
there should be no scope for any other individual to interfere with such autonomy.”10 After
this case, a dozen or more other cases on this issue was decided by the Supreme Court and it
was held in most of the them that Right to Privacy is indeed a part of Article 21. But, none of
these judgments were complete in every sense and hence a need for a full constitutional
bench to decide on this issue was there.

Finally, the supreme court while deciding the Aadhaar card case referred the question that
‘whether Right to Privacy is a Fundamental Right or not?’ to a 9 judges Constitutional bench
on July 18th, 2017 and on August 24th, 2017 the 9 judges bench unanimously declared Right
to Privacy as a Fundamental Right by overruling M.P. SHARMA v. SATISH CHANDRA11
and KHARAK SINGH v. The STATE OF U.P.12 and also held that definition of the term
‘privacy’ is to be decided according to the facts and circumstances of each case related to this
issue of privacy. Thus, finally after a long and slow process of development Right to Privacy
in India was finally evolved and that too with constitutional validity.

8
GOBIND (x5).
9
(2010) 7 SCC 263.
10
SELVI (x9).
11
M.P SHARMA (X2).
12
KHARAK SINGH (x3).

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 THE EXTENT OF RIGHT TO PRIVACY IN INDIA:

In the absence of proper provisions and laws regarding Privacy, the true extent of this Right
to Privacy cannot be determined. Also, this concept is relatively new in India and was purely
developed through judicial reviews and decisions so the maximum or minimum limit of its
extent cannot be determined. The precedents available regarding this right are also very
vague and complicated in nature and thus are useless. To remove this problem regarding the
extent of this right, Supreme Court has in its 9 judges constitutional bench judgment in
Justice K.S Puttaswamy (Retd.) v. Union of India and Ors13 held that this right is not
absolute and is subject to just, fair and reasonable scrutiny by the court, for every new case
that the court faces on this issue and has also provided for the development of the definition
of ‘Privacy’ on case to case basis to decide new cases.

CONFLICT OF RIGHT TO PRIVACY:

Protection of privacy of an individual is very important to provide him a life full of dignity,
liberty, and freedom. In today's world where every and each action of an individual can be
recorded without even his knowledge hence protection of privacy has become very important
and difficult. In this crucial and difficult time, the recognization of Right to Privacy as a
Fundamental Right was a welcome move. But this move had a lot of unwanted consequences.
For example: the government-sponsored scheme Aadhaar which provides every citizen with a
unique no. after collecting their biometric information and other important data like address
and phone number, but this was challenged in court on the basis that it is violating Right to
Privacy as government made it mandatory for every citizen to have Aadhaar to access
government service irrespective of the fact that whether the citizens want it or not and the
court gave judgment against the government and the mandatory nature of Aadhaar was
removed.

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WRIT PETITION (CIVIL) NO 494 OF 2012

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Now, like the above example there are a lot of laws/provisions and policies which are in clear
contradiction of the Right to Privacy but here we will study only two laws/provisions i.e
Right to Information and section 377 of Indian Penal Code and one Government scheme i.e
Aadhaar which seems to contradicts the Right to Privacy, in detail.

SECTION 377 OF INDIAN PENAL CODE vs. RIGHT TO PRIVACY:

India which is regarded as one of the most tolerant countries of the world having a very rich
and vast cultural heritage has Section 377 mentioned in its penal code i.e The Indian Penal
Code which prohibits consensual sex between two homosexual individuals.

Section 377 of the Indian Penal Code states that- Whoever voluntarily has carnal intercourse
against the order of nature with any man, woman or animal, shall be punished with
[imprisonment for life], or with imprisonment of either description for a term which may
extend to ten years, and shall be liable for fine.

Ironically India had a rich and ancient history of homosexuality. Ancient texts like Rig-Veda
which dates back to 1500 BC, talks about homosexuals. Even the Kamasutra contains a
description of homosexual acts. Sculptures and vestiges depicting sexual act between women
can be found throughout India. The society of that time was matriarchal in nature and sexual
preferences of any individual were not judged but were respected.

All this changed with the arrival of Aryans and Britishers. Both of them started suppressing
homosexual behaviors and supported patriarchal nature of the society hence the society
became highly intolerant towards homosexuals.

All around the globe, the laws regarding homosexuals changed with the change in time but in
India, no progress was made despite having such an extensive past related to homosexuals.
Also, the law which criminalizes such activities in India has its roots in 1860 i.e. Pre-colonial
India and has not been amended even once in the last 160+ years.

In 2001, the constitutional validity of section 377 was challenged by an NGO, Naz
Foundation. In this case, it was also prayed to legalize consensual sex between adults. In one
of its landmark judgment of 2009, Delhi high court held that section 377 of IPC does violate

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fundamental rights mentioned under articles 14,15,19 and 21. But when this verdict was
challenged in Supreme Court, it held that since Doctrine of Severability cant be applied in
above-mentioned section and also court held that since the above-mentioned section is pre-
constitutional in nature hence it should have been repealed long back if it violated
Fundamental Rights and since it is not the case hence the decision of Delhi High Court was
not correct and hence was stricken down. Through this judgment in Naz Foundation case, the
Supreme Court left the matter to the legislature to consider whether consensual sexual
activity between two adults of the same sex in private should be allowed or not.

The LGBTQ community was very sad cause this section not only curtailed their Right to Life
but also their Right to Equality and their right not to be discriminated on the basis of gender.
Their last resort i.e the Supreme Court also failed to help them and provide them with their
basic human rights in Naz Foundation case. But recently while giving its landmark judgment
in Justice K.S Puttaswamy (Retd.) v. Union of India and Ors14 where it declared the right to
privacy as a Fundamental Right, the 9 judges bench debated over this issue as well and
decided that a full bench of Supreme Court will review this section and will make necessary
changes in it to accommodate the demands of LGBTQ community people. While writing his
judgment, in this case, Justice Chandrachud, held that “privacy includes at its core the
preservation of personal intimacies, the sanctity of family life, marriage, procreation and
sexual orientation.”15. Also, he and Justice Kaul specifically disagreed with the judgment in
Naz Foundation case and held that “Right to Privacy and protection of sexual orientation lies
at the core of the Fundamental Rights guaranteed by Article 14,15 and 21 of Indian
Constitution.”16

Thus, there is a hope for the LGBTQ community to have equal right to decide with his
consent whom he wants to get intimate with. This is a positive step towards eradicating a
time old discriminatory practice and to treat everyone equally.

RIGHT TO INFORMATION vs RIGHT TO PRIVACY:

14
K.S PUTTASWAMY (x13)
15
Supra 14
16
Supra 15

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After the landmark judgement of Supreme Court in Justice K.S Puttaswamy (Retd.) v. Union
of India and Ors17 making Right to Privacy a Fundamental Right, a debate has started in the
whole country regarding the importance and effect of this judgment on the Right to
Information.

It can be said that both the rights i.e Right to Privacy and Right to Information are both two
sides of the same coin. One empowers us to protect our privacy from being hampered by
others and the other gives us a right to ask for any public matter related document from any
public servant if needed. We can use Right to Information to enhance privacy by revealing
abuses of power and authority whereas the Right to Privacy law can be used to obtain
information in the absence of RTI act.

Right to Information has developed many folds since its inception a decade ago. It has helped
us in keeping a check on the works done by a various government organization and also in
eradicating corruption and other bad practices. but, there were certain instances where the
private information related to an organization or public servant were put in the public domain
for the larger interest of people. Section 8(1)j and section 11 of Right to Information Act
addresses the privacy right of an individual.

The problem that RTI act faces from Right to Privacy is that now people can claim privacy as
a Fundamental right and can decline to provide information important for public good vice-
versa people can use RTI act to ask for any information from anyone after satisfying the
conditions mentioned in section 8(1)j and section 11 of RTI act. This is one problem that
needs to be addressed as soon as possible. Even though the RTI act is complete in all sense
and provides for certain restriction while requesting for information, like Public Good etc.

The only problem that India faces today is that it doesn't have a full-fledged Privacy law and
hence there is so much confusion regarding the extent till which Right to Privacy is
applicable, also the circumstances under which Right to Privacy can be curtailed is not
mentioned anywhere which creates a confusion. Also, some of the terms used in RTI act are
ambiguous and vague and need a proper definition to be complete in all sense.

AADHAAR vs. RIGHT TO PRIVACY:

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K.S PUTTASWAMY (x13)

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Aadhaar which was the ambitious project of our present government to eradicate corruption
and to provide unique identification number (at par with the social security number in
America) to every citizen for faster and accurate transfer of service. Also, the government
planned to use this Aadhaar service for national security but this over-ambitious project hit
the rock bottom after a lot of problems associated with it came forward.

But, since this paper is about Right to Privacy hence we will deal with Aadhaar only with
respect to Right to Privacy.

Aadhaar act,2016 which regulates the Aadhaar scheme has two major problems as far as
privity is concerned:

1st: Aadhaar act,2016 make Aadhaar compulsory for everyone and it is also to be linked
compulsorily to other services like PAN and Phone Number.

2nd: It also provides for the commercial use of Aadhaar data and private parties can access or
private information by providing a sum of fee and also provides for sharing of Aadhaar data
for ‘national security’.

In the first problem, the Adhaar act,2016 provides for the collection of biometric and other
data compulsorily i.e it doesn't respect the autonomy of an individual. Consent of the
individual whose data is collected is of no importance because of the provisions of Aadhaar
Act,2016. But this is the wrong, immoral and unethical thing to do in a democracy where
individuals are given so many rights to provide greater autonomy to everyone. This provision
can be said for using coercion to make people give data and have Aadhaar card.

In the second problem, the security of the data collected is at risk. Private parties can access
our personal and biometric information easily and this availability of data in public domain
makes it a violation of Right to Privacy as my consent is not asked for before sharing it. Also
Aadhaar Act,2016 provides for sharing of data for ‘national security’ (which is a vague term
in itself) this is again a violation of my Right to Privacy as my personal data cannot be shared
for any purpose with anyone without my consent.

This said other problems related to this scheme are no less grave. This project according to
the author was implemented without proper planning and a full review of this act is needed.
The Supreme Court taking into consideration the importance of this issue has constituted a
bench to look specifically into this issue and to know the constituional validity of Aadhaar.

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 PROS AND CONS OF RIGHT TO PRIVACY:

After discussing in detail about Right to Privacy its time that we simply look into the pros
and cons of this right which in turn will help us in realising why Supreme Court designated
this right as a Fundamental right.

Pros of The Right to Privacy :

 It protects our ‘Bodily Privacy’ i.e privacy of our own physcial body. What we do
with our own physcial body is under our control. It thus helps in removing slavery
where humans are forced to work for others without his own concent. It also helps law
maker in making rules and regulaion that are not very cruel or degrading.
 It protects our ‘Spatial Privacy’ i.e privacy of our home and family related issues.it
allows us to live freely without any fear in our houses with our family. it allows us to
take any decison related to our house and family without fear of outside interventions.
 It protects our ‘Communicational Privacy’ i.e privacy of our conversations that we
had with someone. It restricts anyone from interfering in a private conversation and in
using the matter of our conversation as they will.
 It also protects our intellectuality and decision making power. We are free to take any
decison as we may seem fitas long as it doesnt harm others or is illegal. We are free to
have any discussion on any issue and to have our own beliefs and opinions.

Cons of The Right to Privacy :

Right to privacy is a basic right which is provided to everyone because of it is an eesential

element to provide mutuial respect, autonomy to everyone. The cons of the Right to Privacy
is just one :

 It stops us from getting information regarding criminals and people who are a threat to
the peacefull co-exixtece as Right to Privacy is guarnteed to everyone and thus may
stop us from arresting or taking into custody anyone without valid proof. Thus it may
stop us from stopping a crime that may take place in future.

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 CONCLUSION

Right to Privacy is a basic human right which is available to all. In this world where literally
everything is done online, its importance can’t be sidelined ever. It is still a devloping
concept in India and may take some time in completing evolving but the start provivded to its
evolution by the Judgemnet of Supreme Court is really praiseworthy. Like everything, this
Right to Privacy also has some shortcomings which need to be eradicated to make it fully
functional in India.

First, a full fledged law regarding this Right to Privacy should be brought in India to regulate
its evry component. Otherwise, this concept in the absence of proper formulation can turn bad
and may have a negative impact on the society. The law/laws made regarding this must also
clearly point out situations and cicumstances where this right can be curtailed so that there is
no confusion or complication in the future.

Second, the law in contravention to right to privacy( for ex. Section 377) must be removed as
it is one of the most important and basic rights and will superceede every law that hampers or
harms the Priacy of an individual.

Third, other laws which in part govern or use or hamper this Right to Privacy (for example
RTI Act,2016) must be made without any vague or ambigious term for easy governance.
Otherwise, the things will become complicated. Such vague term if present in current laws
must be amended to clear the confusion.

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 BIBLOGRAPHY

CASES:-
 M.P. SHARMA v. SATISH CHANDRA. 1954 SCR 1077
 Justice K.S Puttaswamy (Retd.) v. Union of India and Ors. Writ petiton no 494 of
2012.
 KHARAK SINGH v. The STATE OF U.P. 1964 (1) SCR 332
 SELVI v. STATE OF KARNATAKA. (2010) 7 SCC 263
 GOBIND v. STATE OF M.P. 1975 2 SSC 14

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