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Right To Privacy: A Comprehensive Review

Indian law is very flexible. It works according to the need of the society. Various changes in the political, economical and social changes entail the recognition of rights in our country. Our constitution has given us various rights which do not possess an existence in words expressively, but Honorable Supreme court do observes them.

As the common law enlarges itself it also tends to accommodate the growing needs of the people. By the time it has observed that not only physical security was required but also security of spiritual self as well as of feelings and intellect was required. Article 21 of the Indian constitution guarantee us Right to life and liberty and it recognize that Right to life also include Right to privacy.

Before going further let us first understand what the word Privacy means.

According to Black's Law Dictionary right to be let alone; the right of a person to be free from any unwarranted publicity; the right to live without any unwarranted interference by the public in matters with which the public is not necessarily concerned.

It encompasses various rights where one have his personal space, where one is free on any social interaction, where one makes his own fundamental choices about himself, his family and his relationship with others, where one can took off a mask which it wore in front of public.

The concept of privacy in its broad sweep covers a number of prospects like nondisclosure of information, sexual affairs, business secrets and non observance by others. It may be said that the privacy is antithesis of being public, for e.g. if any private letters of any person are published by anyone without his express or implied permission then his privacy would come to be violated. Similarly if one's neighbor peeps into in his house from outside then it would also constitute violation of his right to privacy. Thus privacy is a state of isolation and separation from others. Privacy in general means the right to be let alone.

Scope of Right to Privacy

The question on the existence of Right to Privacy is incomplete without discussing the scope of it. Fundamental rights in our constitution are subject to some limitations in the constitution. So the most significant question regarding the application of the fundamental right is their applicability is the extent and its scope and how and when they can be limited by the state actions. Justice Nariman J. quoted in his judgment, when it comes to restrictions on this right, the drill of various Articles to which the right relates must be scrupulously followed.

Which simply indicates that right to privacy is not merely read as a right under article 21 but it also associated with other right stated in part III.:
Just, fair and reasonable' test and compelling state interest' test
In A.K. Gopalan vs The State Of Madras the majority held that the phrase procedure established by law does not mean the procedural due process or natural justice.

But there is the significant change done by Maneka Gandhi vs Union Of India in the constitutional provision which said that procedure established by law' must be fair, just and reasonable, and cannot be arbitrary and fanciful. Therefore, any infringement of the right to privacy must be through a law which follows the principles of natural justice, and is not arbitrary or unfair.

In Gobind v. State of Madhya Pradesh, the Supreme Court adopts the strict scrutiny test for laws infringing on the right to privacy. The court held that privacy violations could be justified only if there was a compelling state interest involved, and the law was narrowly tailored which meant that the state would have to show that there was no alternate, privacy-preserving way, through which it could achieve its goals.

Between the two just fair and reasonable test and the state scrutiny test justice Chelameshwar J. observe that only the most critical privacy claims will attract the strict scrutiny standard while the others will only attract the fair just and reasonable' standard.

Thus the scope in determining the right to privacy stops short of being prescriptive, and future cases which apply these principles will determine the extent of privacy protections accorded in different cases.

Right to privacy is not an absolute right

The right to privacy is guaranteed by our constitution in Article 21. However fundamental right is subject to some limitation by in order to maintain social order in the country. In order to prevent the terrorism, crime, disorder and related activities many countries tend to curb this trend.

Privacy Technology has invaded in our daily life in every aspect whether such invasion is desired or not. We have come to a phase where knowingly or unknowingly we are authorizing third party to use our personal information. Keeping mandatory providing any personal information by various companies and organization or even by the authorities without proper legislation is the absolute abuse of the right to privacy.

In Govind v. State of Madhya Pradesh it was held "Assuming that the fundamental right explicitly guaranteed to a citizen has penumbrae zones and that the right to privacy is itself a fundamental right, and it must be subject to restriction on the basis of compelling public interests.

The code further observed that:
if there is a conflict between fundamental rights of two parties that right which advances public morality would prevail.
Intrusion in privacy can be made by the legislature, executive and judiciary but the law should be fair and reasonable. It must go into proportionality of intrusion vis-à-vis a purpose sought to be achieved.

There are certain recommendations made by the Justice BN Shreekirshna's committee's are as follows:
  • Processing (collection, recording, analysis, disclosure, etc) of personal data should be done only for clear, specific and lawful purposes. Only that data which is necessary for such processing is to be collected from anyone.
  • Personal data may be processed by the central and state government if necessary for the function of the government. It allows processing of personal data for prevention of offense and contravention of law.
  • Committee suggest the Right to be forgotten which means that once the purpose of using the personal data has ended it must be restrict or prevent any display of the personal data.
  • Personal data will need to be stored on servers located within India, and transfers outside the country will need to be subject to safeguards. Critical personal data, however, will only be processed in India.
  • The committee recommended that sensitive personal data (such as passwords, financial data, sexual orientation, biometric data, religion or caste) should not be processed unless someone gives explicit consent- which factors in the purpose of processing.
  • The committee recommended that the amendment amend Section 8(1)(j) of the RTI Act that pertains to the disclosure of personal information in the larger public interest. The old Section 8(1)(j) said there would be no obligation to reveal personal information which was not related to public authority or interest, or would be an invasion of privacy.

Right to privacy in India

M.P. Sharma v. Satish Chandrawas was the first case in the supreme court where the Right to privacy is considered in context of search and seizure by the state. But a very narrow view is taken and it was held that searches and seizure cannot be held illegal on the ground of volation of any fundamental right as it is conducted under the proper authority.

Kharak singh v. State of UP the petitioner was charged and tried with dacoity but was subjected to domiciliary visits by the authority it was held that that Article 19 does not means that person can move freely from one place to another without a physical restraint but it also involves free movement. The adverb Freely gives it a large purview. If the man is stalked by the third party it would restrict his movements.

The shroud of surveillance cast upon him perforce engenders inhibitions in him and he cannot act freely as he would like to do. Even if authorities are putting surveillance on a person it should be according to the valid law. If the authorities enforcing surveillance as guards, without any reasonable restriction sustaining or protecting their action is must be held that the person freedom under Article 19 1 (a) and under Article 21 is also gets infringed. So the court considered domiciliary visits unconstitutional and stuck it down.

Rayala M. Bhuvneswari v. Nagaphomender Rayal is the case where husband has tapped the telephone call of her wife with other as evidence to seek divorce with her. She denied some portion of the conversation. It was held that the act of tapping by the husband is the intrusion in the personal space of the wife was illegal and it is the violation of her fundamental right to privacy under Article 21 so it cannot be admissible as a evidence even if talks are true.

Mr. X' Vs. Hospital Z' a person was founded HIV(+) and such information is disclosed by the doctor to his prospective wife which results in the calling off marriage. The petitioner filed a suit claiming that his right to privacy has been infringed. It was held by the court that Ms. 'Y', with whom the marriage of the appellant was settled, was saved in time by the disclosure of the vital information that the appellant was HIV(+).

The disease which is communicable would have been positively communicated to her immediately on the consummation of marriage. As a human being, Ms. 'Y' must also enjoy, as she, obviously, is entitled to, all the Human Rights available to any other human being. Moreover, where there is a clash of two Fundamental Rights, as in the instant case, namely, the appellant's right to privacy as part of right to life and Ms. 'Y's right to lead a healthy life which is her Fundamental Right under Article 21.

In R. Rajagopal v. State of T.N. popularly known as "Autoshanker case" the Supreme Court has expressly held the "right to privacy" or the right to be let alone is guaranteed by Art. 21 of the constitution. A citizen has a right to safeguard the privacy of his own ,his family, marriage, procreation, motherhood, childbearing and education among other matters. No one can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right of the person concerned and would be liable in an action for damages. However, position may be differed if he voluntarily puts into controversy or voluntarily invites or raised a controversy.

Right to privacy and Right to Information
Technological advancement has lead the privacy considerably vulnerable to intrusion by the State as well as non state actors. New technologies and practices constantly challenging privacy. It enables routine sharing of personal data and sensitive information (including biometrics and DNA makeup). To curve the disclosure of public records over the internet more than 60 countries have adopted a comprehensive law that gives individuals some control over the collection and use of these data by public and private bodies.

Likewise, access to governmental information widely to the public is become common all across the world. These can be facilitated through new information and communication technologies, and Web sites containing searchable government records are becoming even more widely available. Various international organizations have fragmented stern laws on access to personal information of the governmental bodies held by the public. We need to understand that both privacy and RTI have their significance in their respective discipline and neither the privacy nor access takes precedence over the other. For this both the rights must be considered in a manner that is equal and balance.

The RTI is requisite for the very exercise of democracy. Democracy is based on the consent of the citizens, and that consent turns on the government informing citizens about its activities and recognizing their right to participate. The collection of information by governments is done on behalf of its citizens, and the public is only truly able to participate in the democratic process when it has information about the activities and policies of the government.

Third party information:
A public authority should not straightway reject a written request for information simply on the ground that it relates to a third party. The public authority if satisfied may obtain consent from the third party for disclosure. Right to life includes right to lead a healthy life as to enjoy all the faculties of the human body in their prime condition, and the disclosure that the prospective spouse is a HIV(+) can in no way be said to violate the rule of confidentiality or the right to privacy. Clash of two Fundamental rights, namely right to privacy and the right to live a healthy life the right which would advance the public interest would alone be enforced.

However the unwarranted invasion may trigger the exemption even if the information is associated with the public interest or benefit. But the large public benefit may lead to disclosure of even the personal and sensitive information of the public.

The norms of privacy should be determined and measured to a common standard because a right without description is a right without protection. It may be hoped that when an appropriate case comes before the Apex court, it would make an overall review arid reconsider the existing position regarding the right to privacy. Right of privacy may, apart from contract, also arise out of a particular specific relationship, which may be commercial, matrimonial or even political. It is also subjected to some reasonable restrictions for the prevention of crime and protection of one morals and values.

The right to control dissemination of personal information in the physical and virtual space should not amount to a right of total eraser of history, this right, as a part of the larger right of privacy has to be balanced against other fundamental rights like the freedom of expression, or freedom of media, fundamental to democratic society. Due diligence would ensure that the access to information and data protection laws have compatible definitions of personal information.

End Notes:
  • The Fundamental right to privacy: Part (iii) SCOPE by Amber Sinha
  • Right To Privacy Under Article 21 and the Related Conflicts by hinailiyas
  • Gautam Bhatia, State Surveillance and the Right to Privacy in India: A Constitutional Biography
  • Right to Information in Consance with Right to Privacy by Vartika Phogat
  • AIR 1975 SC 1378.
  • 1963 AIR 1295, 1964 SCR (1) 332
  • AIR 2008 AP 98
  • 2003 (1) SCC 500
  • (1994) 6 SCC 632
  • AIR 1950 SC 27: (1950) SCR 88.
  • 1954 AIR 300
  • [1974] 1 S.C.C. 345
  • (2004) 1 SCC 712
  • AIR 1991 SC 207
  • 1950 AIR 27
  • 1978 AIR 597

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