I have chosen the topic RIGHT TO PRIVACY IN INDIA

A CRITICAL SYUDY. My SOP for my project was that an Intrusion upon privacy of a person is
gradually becoming the order of the day. It has, therefore become a matter of great concern. What
do we do about it in case there is breach thereof.

Thus my Hypothesis is that the Right to Privacy is accepted as a fundamental right in India and other
Jurisdictions through judicial pronunciations and via statutes

Moving forward let me talk about what Right to Privacy is.

In India, the right to privacy is considered a part of the right to life and personal liberty under Article
21 of Indian Constitution, which is a fundamental right of the Individual. The Supreme Court of India
and other courts through its decision starting from the late 70s have interpreted the right to privacy
as a fundamental right.

Moving forward I have discussed the meaning of the word privacy

WHAT IS PRIVACY

According to the blacks law dictionary; the right to privacy is the privilege of a man to be free from
any outlandish attention; the privilege to live with no ridiculous impedance by people in general in
issues with which the general population is not really concerned. In simpler words. As Frank LaRue
said in the UNCHR that said that The right to privacy is essential for individuals to express themselves
freely.

As we know that right ton privacy is enshrined in Article 21 of the Ic, then let talk about what Artcile
21 is.

CONSTIUTTIONAL ANALYSIS OF ARTICLE 21

Article 21 states that No person shall be deprived of his life or personal liberty except according to
the procedure established by law. Accrong to justice Bhagwati Article 21 embodies a
constitutional value of supreme importance in a democratic society 1. Hence, this means that no one
from the executive shall have the power to interfere with a citizen’s liberty unless and until the
executive can support his actions by some provision established by law. It is important to note that
the word ‘law,’ which is stated in Art. 21 of the constitution means a validly enacted law, and in
order to be valid it must be just fair and reasonable. Moreover, It is also important to note that
Article 21 can only be invoked when a person is deprived of his “life” or “personal liberty” by the
“State” as defined in Article 12 of the Indian Constitution.

Moving fromward Article 21 includes two rights:

1
Francis Coralis v. Union Territory of Delhi, 1981 SCR (2) 516
 Right to Life: The Supreme Court of India has given a broad meaning to the term "Life. According to
it Article 21 includes all those aspects of life, which makes a person’s life meaningful, complete, and
worth living. This was said in the case of Kharak Singh v. State of Uttar Pradesh 2.

 Right to Personal Liberty. As far as Personal Liberty is concerned , it means freedom from
physical restraint of the person by personal incarceration or otherwise and it includes all the
varieties of rights other than those provided under Article 19 of the Constitution.

DEVELOPMENT OF RIGHT TO PRIVACY IN INDIA

Moving forward sir I have done a case analysis of Landmark judgments where the moot question
revolved around the Right to Privacy.

The Indian Constitution's Preamble grants the right of all people of the Country to think, express,
pray, believe, and worship. This shows that for the drafters of the Indian Constitution, the word
"liberty" is essential and expansive.

LEGAL ANALYSIS OF CASES

The first time Right to Privacy was discussed was in a debate in the constituent assembly where K.S.
Karimuddin moved the amendment for the debate. However, this debate did not lead to the
incorporation of the Right to privacy in the Constitution. 

In 1954 in the case of Sharma v. Satish Chandra3, the 8-judge constitutional bench, while dealing
with the powers to search and seal documents from the Dalmia Group, held that there existed no
right to privacy. Their judgment was solely based on the constitution-makers' decision of not adding
the Right to privacy in the Indian Constitution.

raised in 1963, in Kharak Singh v. the State of U.P4case. Justice Subbarao, in his minority opinion,
recognized the need for adding a right which allowed citizens to have privacy  even though the
Constitution of India does not expressly grant it. However, the Supreme Court gave the same
decision as it gave in the case of Sharma v. Satish Chandra

 After 11 years in the case of  Gobind v. State of Madhya Pradesh a very important concept
was delvoped which is known as the citizen's private view or personal liberty was
developed. Accrding to this an individual's privacy should be maintained until and unless his
privacy affects society at large. In this case, S.C. did not entirely dismiss the existence of the
Right to privacy, as it did in the previously mentioned cases. With the rising number of
infringement cases, S.C. had to give the Right to privacy constitutional validity. 

2
Kharak Singh v. State of Uttar Pradesh, 1964 SCR (1) 332
3
Sharma v. Satish Chandra (1954) 1 SCR 1077
4
Kharak Singh v. the State of U.P. 1964 SCR (1) 332
In the lanmark case of Maneka Gandhi (Petitioners) V Union of India the moot question was
whether the provisions under Articles 21, 14 and 19 connected with each other or are they
mutually exclusive. In the judgment the seven-judge bench unanimously linked these provisions
into a inseparable single entity. Now, any procedure has to meet all the requirements mentioned
under these three articles to be held valid. As a result, this judgement enlarged the scope of
personal liberty significantly and preserved the fundamental & constitutional right to life. laid
down the triple test to figure out if any legislation in our constitution is obstructing the right to
privacy.

 It must prescribe a procedure;

 The procedure must comply with the clauses of art.19 of the Indian constitution. 

 It must be valid against art.14

In 1995 in the case of Rajagopal v. State of Tamil Nadu5, S.C. recognized the Right to privacy as a
clear-cut case of torts and hence mentioned that there are remedies available for the infringement
of privacy of an individual

In 1997, the People's Union for Civil Liberty v. Union of India 6, S.C. finally ruled that Art. 21 of the
Indian Constitution contained the right to privacy. The Supreme Court, however, postulated the
significance of the right to privacy as an aspect of individualism.

Moving forward lets come to the landmark judgment of JUSTICE K.S. PUTTASWAMY v. UOI.

The nine-judge constitutional bench unanimously declared that the Right to Privacy is a Fundamental
Rights.

FACTS- The Indian Government agreed that a 12 digit identification number named Aadhar, should
be issued to all its people. Registration was made mandatory for this card. Hence, Ret.J. K.S.
Puttaswamy has filed a petition contesting this Aadhar initiative's procedural legitimacy, alleging that
the right of people to privacy has been abused as the Aadhar registration is made compulsory.
Consequently, no choice is left for all those who do not wish even to register themselves. There is
still an absence of regulations on India's data security, but there is a risk that people's privacy would
be lost if due consideration is not taken. This leads to the breach of people's rights to privacy.

In the judgment it was held that the right to to privacy is a part of the fundamental rights as
enshrined in part 3 of the Indian constitution.  The Court also declared that the right to privacy is not
an absolute right and any invasion of privacy by state or non-state actor must satisfy the triple test
i.e.
1. Legitimate Aim

5
Rajagopal v. State of Tamil Nadu (1994) 6 S.C.C. 632
6
People's Union for Civil Liberty v. Union of India AIR 1997 SSC 11
2. Proportionality
3. Legality

 AADHAR AS CONSTITUIORNALLY VALID: A4:1 majority upheld the Aadhaar Act,

2016. While it ruled that the Act is constitutional, it struck down
individual sections of the Act as unconstitutional. Justice Sikri's majority
opinion (on behalf of Chief Justice Misra, Justice Khanwilkar and himself)
 Justice Bhushan's concurring opinion
 Justice Chandrachud's dissenting opinion

 Section 57 of the Aadhaar Act. UNVALID: This provision allowed Government entities,
body corporates and individuals to use the Aadhaar number for establishing the
identity of an individual for any purpose, pursuant to any law or contract.

SECTION 7 VALID making the Aadhaar number mandatory for receiving subsidies,
benefits and services from the Government (for which expenditure was drawn from
Consolidated Fund of India) was therefore held to be valid. Paased the proportionality
test.

 STATUTORY PROTECTION OF PRIVACY IN INDIA

There are two statues which talk about Right to Privacy. The first one being Information Technology
Act, 2000 and The Personal Data Protection Bill, 2011

Informational Technology Act of 2000 to protect the privacy of an individual while using the internet

 43 and 66 of the Act allows the aggrieved person to file a civil as well as a criminal case
against the defendant for hacking his computer. 

section 72, a person may be imprisoned for 2 years or maybe fined, which may extend to one lakh
rupees, if he discloses any electronic record without the consent of the person whose details have
been revealed.

 Section 69 A provides the power to the central government or designated officer to give
directives to block any information from public access via any computer resource. A very
recent example where the government invoked art. 69A to ban 118 Chinese apps to protect
the sovereignty of India as well as to protect the privacy of India Citizens. 

The Personal Data Protection Bill, 2011

  The bill says, “every individual shall have a right to his privacy — confidentiality of
communication made to, or, by him — including his personal correspondence made
through , telegraph messages, postal, electronic mail etc. This act protects citizens from any
identity theft may it be criminal or financial. 

 The bill does not allow communications to be obstructed, unless and until the Secretary-
level officer has issued orders. Also, this act does not allow surveillance of citizens either by
following a person or by closed-circuit television or by any other electronic mode of
transmission. 

 Any Individual who has a business to collect data of citizens is not allowed to disclose the
data of that person. 

 mandates the establishment of a Data Protection Authority of India. the authority has the
power to investigate any data breach.

 The penalty under this bill would be up to 5 years of imprisonment or 1 lakh rupee fine for
an interception and imprisonment up to 3 years and fine of rupee 50,000 or both for breach
of data.

VARIOUS ASPECTS REGARDING RIGHT TO PRIVACY IN INDIA

 Health and Privacy

Privacy in the medical profession concerning law not only relates to the information regarding health
or disability, but it also includes the services that a patient receives. The information about one’s
medical problem is considered highly sensitive. Hence The courts have made specific guidelines
under which a registered medical practitioner can disclose the secrets of a patient. 

1. the court orders the doctor to disclose the facts 

2. notifiable diseases 7

3.  if there is a specific risk to a particular person or community at large 

the coury held that that the right to privacy is not absolute. It can be restricted for the prevention of
crime, disorder or protection of health or morals or protection of rights.

7
Id Article 7.14
Privacy in context of Sexual Identities 

 In the case of Naz Foundation v. UOI8, the Delhi HC struck down the unconstitutional sec
377 of Indian Penal Code, 1860 which decriminalized sexual relationships between
consenting adults. This case was struck down as it was inconsistent to Right to privacy under
art. 21 of the Indian constitution.
 The Supreme Court of India ruled in a recent case of Navtej Singh Johar v. Union of India
9
that Section 377 of the Indian Penal Code, 1860 was lawful in so far as it related to
consensual sexual behaviour among adults in private.

International Concepts of Privacy

Article 12 of the Universal Declaration of Human Rights (1948) states that “No one shall be subjected
to arbitrary interference with his privacy, family, home or correspondence nor to attack upon his
honour and reputation. Everyone has the right to protection of the law against such interference or
attacks.”

In Article 17 of the International Covenant on Civil and Political Rights (to which India is a party)
states, “No one shall be subjected to arbitrary or unlawful interference with his privacy, family,
home and correspondence, nor to unlawful attacks on his honour and reputation.”

According to Article 8 of the European Convention on Human Rights states, “Everyone has the right
to respect for his private and family life, his home and his correspondence; there shall be no
interference by a public authority except such as is in accordance with law and is necessary in a
democratic society in the interests of national security, public safety or the economic well-being of
the country, for the protection of health or morals or for the protection of the rights and freedoms
of others.

WHAT ARE THESE RESTRICTIONS IN PRIVACY

Right To Privacy-Permissible Restriction

Intrusion into privacy may be by- (1) Legislative Provision (2) Administrative/Executive order
(3) Judicial Orders. Legislative intrusion must be tested on the touchstone of reasonableness
as guaranteed by the Constitution and for that purpose the Court can go into
proportionality of the intrusion vis-à-vis the purpose sought to be achieved. (2) So far as
administrative or executive action is concerned it has to be reasonable having regard to the
facts and circumstances of the case. (3) As to judicial warrants, the Court must have
sufficient reason to believe that the search or seizure is warranted and it must keep in mind
the extent of search or seizure necessary for protection of the particular State interest. In
addition, as stated earlier, common law did recognize rare exceptions for conduct of
warrantless searches could be conducted but these had to be in good faith, intended to
preserve evidence or intended to prevent sudden anger to person or property.

8
Suresh Kumar Kaushal v. Naz Foundation AIR 2014 SC 563 (Supreme Court of India)
9
Navtej Singh Johar v. Union of India AIR 2018 SC 4321
In that case a preliminary question that should be asked is whether Tata’s conversations
would be revealed through an RTI, or whether his conversations would fall under the
exemption of personal information found in section 8(j). It is interesting to note the
structure of this exemption. By the use of word “or” the legislation suggests that
unwarranted invasion of individual privacy may trigger the exemption, even if the
information has a relationship to public activity or interest. But the added caveat says that
the larger public interest could justify the release of even purely private information.

ARTICLE 19 VS 21

 The publication of personal information of an individual without his consent or approval is

justified if such information forms part of public records including Court records. Each case
is distinct and each right is special.

Any right derived from Article 19 can be derived from Article 21 too, under the wide
interpretation of ‘personal liberty’. Though the Court generally applies the test of ‘public
interest’ or ‘public morality’ in case of conflict between two derived rights, another
interpretation is also possible. A right derived under Article 21 is superior to a right derived
under Article 19, since the state enacting law in contravention of such right can be saved
under the reasonable restrictions under 19(2) to (5). The position was different in the Pre-
Maneka era, when Article 21 was not a source of substantive right.

SEASURE

The Court discouraged the unnecessary infringement of the right to privacy of a persons
and held that no authority shall be given untrammelled power to infringe the right to
privacy of a person, the Court held while reversing the conviction for non-compliance of
statutory requirement of search and seizure. Although a statutory power to make a search
and seizure by itself may not offend the right of privacy but in case of this nature, the least
that a Court can do is-to see that such right is not unnecessarily infringed.