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Critical Analysis on Right to Privacy

"Why have you closed your door, what's so private"- Aren't we all

familiar with this sentence? We all must have heard it at some point of time in our life. So to understand what privacy is, we will start with its definition. In broad terms, privacy is the right to be let alone or to be free from interference or intrusion. Every person has a private and superstitious aspect of their life that cannot be revealed in public.

Having said all these, do we at all have the 'Right to Privacy?
The answer is 'Yes'

The Supreme Court of India has held privacy as a fundamental right under the Constitution of India. The right to privacy will find a place under Article 21, part III of the Constitution. This will ensure the dignity of a person, as mentioned in India's Preamble.

The right to privacy can be defined both negatively and positively.

Individuals are protected from unwelcome intrusion into their lives by both state and private actors, notably elements that determine their identity such as sexuality, religion, and political affiliation, i.e., the inner core of a person's private existence, under the negative right to privacy.

The positive right comprises states' commitment to eliminate barriers to the independent formation of individual identities

What are the various features of the Right to Privacy?
Privacy is a constitutionally protected right emerging primarily from the guarantee of life and liberty in Article 21 of the Constitution. Privacy connotes a right to be left alone. It safeguards individual autonomy and recognizes one's ability to control vital aspects of his/her life.

Privacy is not an absolute right, but any invasion must be based on legality, need, and proportionality. Informational privacy is a facet of this right. Dangers to this can originate from both state and non-state actors.

The Right to Privacy (4 Harvard L.R. 193 (Dec. 15, 1890)) is a law the review article was written by Samuel D. Warren II and Louis Brandeis, and published in the 1890 Harvard Law Review. It is "one of the most influential essays in the history of American law and is widely regarded as the first publication in the United States to advocate a right to privacy articulating that right primarily as a "right to be let alone".

Warren and Brandeis begin their article by introducing the the fundamental principle that "the individual shall have full protection in person and property." They acknowledge that this is a fluid the principle that has been reconfigured over the centuries as a result of political, social, and economic change.

Limitations To The Theory:
Warren and Brandeis discuss the remedies and constraints of the newly established right to privacy. The authors admit that determining the exact bounds of the new theory is impossible, although some guiding ideas from tort law and intellectual property law are applicable.

The applicable limitations are:
  1. The right to privacy does not prohibit any publication of matter which is of public or general interest." Warren and Brandeis elaborate on this exception to the right to privacy by stating:
    In general, then, the matters of which the publication should be repressed may be described as those which concern private life, habits acts, and relations of an individual, and have no legitimate connection with his fitness for a public office which he seeks or for which he is suggested, . . . and have no legitimate relation to or bearing upon any act done by him in a public or quasi-public capacity.
  2. The right to privacy does not prohibit the communication of any matter, though in its nature private, when the publication is made under circumstances that would render it a privileged communication according to the law of slander and libel.
  3. The law would probably not grant any redress for the invasion of privacy by oral publication in the absence of special damage.
  4. The right to privacy ceases upon the publication of the facts by the individual, or with his consent.
  5. The truth of the matter published does not afford a defence.
  6. The absence of "malice" in the publisher does not afford a defence.
  7. Concerning remedies, a plaintiff may institute an action for tort damages as compensation for injury or request an injunction.
As a final remark, Warren and Brandeis advise that criminal sanctions be applied for abuses of the right to privacy, but they omit to specify, instead deferring to legislative authorities.

The article "immediately" garnered a positive response and remains a benchmark in contemporary discussions about privacy law.

International Scenario:
The International Covenant on Civil and Political Rights in its Article 17 states that 'No one shall be subjected to an arbitrary and unlawful interference with his/her privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation, and that everyone has the right to the protection of the law against such interference or attacks.

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 honor and reputation. Everyone has the right to protection of the law against such interference or attacks.

Article 8 of the European Convention on Human Rights states:
"Everyone has the right to respect his private and family life, his home, and his correspondence; there shall be no interference by a public authority except such as is by law and is necessary for 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."

The Supreme Court of the United States ruled in Griswold vs. Connecticut that prohibiting the use of contraception by the state violates the constitutional right to marital privacy. According to Justice Douglas, writing for the majority, the right to privacy arose from the penumbras of the American Bill of Rights.

In Lawrence vs. Texas, it was determined that Texas legislation making it a crime for two people of the same sex to engage in particular intimate sexual behaviour was unconstitutional as applied to adult men who engaged in a voluntary act of sodomy in the privacy of their own home. The Texas legislation in question violated the right to privacy. The Court added the comment and emphasized that it is a person's freedom to refrain from unjustified government interference in one's residence or other private locations.

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

The right to privacy is not enumerated as a Fundamental Right in Constitution of India. Article 21 of the Constitution of India states that:
"No person shall be deprived of his life or personal liberty except according to procedure established by law".

The Supreme Court stated that privacy is not absolute and cannot prohibit the state from enacting laws imposing reasonable limits on residents. It was remarked that the word "right to privacy" was too "amorphous."

The court stated that to recognize privacy as a concrete right, it must first define it. However, because an element of privacy pervades all of the fundamental rights contained in the Constitution, this would be almost impossible.

The ruling of the nine-judge Bench on whether or not privacy is a basic right will be critical to the petitioners' contention that Aadhar, which requires people to share their biometrics, is illegal.

The Bench questioned the petitioners' contention that the right to privacy is non-negotiable during the day-long hearing in front of a full courtroom.

"If people have put themselves in the public realm using technology, is that not a surrender of their right to privacy" Justice Chandrachud asked.

Supreme Court Declares Right to Privacy a Fundamental Right
In a landmark decision on August 24, 2017, the Supreme Court of India proclaimed the right to privacy to be a basic right guaranteed by the Indian Constitution. The Court's ruling has far-reaching implications since it declares that this right flows from the basic right to life and liberty.

Previous Supreme Court Rulings against the Right to Privacy
A.K Gopalan v. The State (1950)
In this instance, the petitioner claimed that the search and seizure operation carried out on his property violated the guarantee of the Right to Property specified in Article 19. (1). However, the court dismissed the right to privacy claim, stating that the police action did not interfere with his ability to use his land. The court also highlighted the proviso of 'reasonable cause,' which provides police the authority to search and seize.

Kharak Singh V. The State of UP
In this case, the petitioner contended that the police's nightly domiciliary visit to his residence infringed his freedom to freely roam across India, as guaranteed by Article 19 of the Indian Constitution. The petitioner also took issue with the cops following him around. While the court agreed that the nightly domiciliary visits did violate the petitioner's right to live a dignified and free life, it also agreed that the right to privacy was not a fundamental right, and hence surveillance of his movements did not violate the Constitution.

Supreme Court Ruling That Upheld the Right to Privacy (Article 21)
Justice K.S. Puttaswamy (Retd) vs Union of India (2017)
The Supreme Court of India unanimously decided during the hearing of a suit challenging the constitutional legality of the Aadhar-based biometric system that the right to privacy is a basic right contained in the Constitution. The court broadened the scope of Article 21 by ruling that the right to life and liberty included in Article 21 now includes the right to privacy.

Because Article 21 is within Part III of the Indian Constitution, which deals with basic rights, the right to privacy became a fundamental right following the judgment. Since then, the right to privacy has been recognized as a basic human right in India.

Smt. Maneka Gandhi v. Union of India & Anr (1978)
In this decision, the Seventh Circuit Court of Appeals ruled that the term "personal liberty" in Article 21 includes a wide range of rights, some of which have the status of basic rights and are thus afforded special protection under Section 19.

Triple Test for any law interfering with personal liberty
  1. It must prescribe a procedure;
  2. The method must pass the test of one or more of the basic rights provided under Article 19 that may be relevant in a specific context, and
  3. It must pass the Article 14 test. The legislation and method authorizing interference with personal liberty and the right to privacy must also be just and fair, rather than arbitrary, whimsical, or oppressive.

What are the 'reasonable restrictions that can be put on the fundamental Right to Privacy?
Right to privacy is an absolute right or not?
  • The court ruled that Privacy is not an absolute right.
  • The government can introduce a law that "intrudes" into privacy for public and legitimate state reasons.
  • But an individual can challenge this law in any of the constitutional courts of the land for violation of his/her fundamental right to privacy.

There are many grounds on which government can impose restrictions.
  • What are the various grounds on which restrictions can be imposed?
The right to privacy can be restricted by the procedure established by law and this procedure would have to be just, fair and reasonable.

Reasonable restrictions can be imposed on the right to privacy on the following grounds:
  • Interest in the sovereignty and integrity of India.
  • The security of the State.
  • Friendly relations with foreign States.
  • Public order, decency, or morality
Concerning contempt of court, defamation, or incitement to an offense; (Article 19(2) of the Constitution of India, 1950).

The right to privacy can be restricted if there is an important countervailing interest that is superior to it.

The right to privacy can be restricted if there is a compelling state interest to be served.

The protection available under the right to privacy may not be available to a person who voluntarily introduces him- or herself into controversy

The conflict between the Right to Information and the Right to Privacy
In the case of R. Rajagopal v. the State of T.N (1994), the Supreme Court held that the right to privacy is a 'right to be let alone.

In Mr. X v. Hospital Z (1998), it was established that whenever two basic rights, including the right to privacy, conflicted, the right that furthered public morality or public interest would be enforced.

Ratan Tata filed an appeal with the Supreme Court in response to the disclosure of intercepts of his discussion with Neera Radia. Tata claimed that because Radia's phone was tapped by government agents to investigate a probable crime, the recorded conversation had to be utilized solely for that reason. Tata thus requested that his right to privacy be protected.

By using the term "or," the statute implies that an unreasonable violation of individual privacy may trigger the exemption, even if the information is related to public activity or interest. However, the additional proviso states that the dissemination of even entirely private material may be justified in the wider public interest. Furthermore, the regulation does not specify what constitutes "personal" information.

What is the Personal Data Protection Bill, 2019?
The Personal Data Protection Bill was passed in Parliament on December 11, 2011.

The Bill aims, 'to provide for the protection of the privacy of individuals relating to their data, specify the flow and usage of personal data, create a relationship of trust between persons and entities processing the personal data, protect the rights of individuals whose personal data are processed, to create a framework for organizational and technical measures in the processing of data, laying down norms for social media intermediary, cross-border transfer, accountability of entities processing personal data, remedies for unauthorized and harmful processing, and to establish a Data Protection Authority of India for the said purposes and for matters connected therewith or incidental thereto.'

In 2018, an expert group led by Justice BN Srikrishna wrote the Bill for the first time. The national government submitted a Bill draught in the Lok Sabha in 2019, which was referred to the Joint Committee of Parliament (JCP) in December 2021 and eventually tabled in Parliament after multiple delays.

The instances of the Right to Privacy can be traced in many ways:
  1. Surveillance and Privacy
    A person is kept under surveillance so that his or her actions may be traced and no future crimes are committed. The decision to undertake surveillance must be based on weighing the interference with the right to privacy against the genuine public interests that the authorities are attempting to defend.

    Some of the things to be taken into consideration before keeping a person under surveillance is:
    • The individual's criminal history, including whether or not the person has committed crimes that necessitate putting him or her under surveillance.
    • The frequency with which the individual commits a crime, i.e., whether he or she commits a crime at regular intervals or not.
    • The level of crime committed, i.e., it is of such egregious character that it is required to trace the person's actions for public security.
    In the case of Kharak Singh vs. State of Uttar Pradesh,
    The appellant was harassed by police under UP rule 236(b), which allows for domiciliary visits at night. The Supreme Court ruled that Regulation 236 is unconstitutional and violates Article 21.

    Among the measures of surveillance contemplated by Regulation 236 where the following:
    • Secret picketing of the house
    • or approaches the house of suspects;
    • Domiciliary visits at night;
    • thorough periodical inquiries by officers not below the rank of sub-inspector into repute, habits, associations, income, expenses and occupation;
    • The reporting by constables and churidars of movements and absences from home;
    • The verification of movements and absences utilizing inquiry slips;
    • The collection and record on a history sheet of all information bearing on conduct.
    The Court finished by stating that Article 21 of the Constitution includes the "right to privacy" as part of the "right to life and personal liberty."
  2. Homosexuality and Privacy
    In Indian society, homosexuality has been deemed taboo, resulting in the isolation and oppression of people who have different tastes when it comes to selecting a life partner.

    The Supreme Court overturned a colonial-era ban on homosexual sex in a landmark decision for the country's LGBT community. The centre, which first requested an adjournment to file its answer to the petitions, eventually left the matter of the legitimacy of the penal provision [Sec. 377 of I.P.C] on the elements of criminalizing consensual unnatural sex between two consenting adults to the wisdom of the court.

    Other sections of the criminal provision dealing with children and animals, according to the Centre, should be left unchanged. "Whoever, willingly has sexual intercourse against the order of nature with any man, woman, or animal, shall be punished with imprisonment for life, or with imprisonment for either description for a time which may extend to ten years, and shall also be obliged to pay a fine," states Section 377.

    The matter was originally highlighted by the Naz Foundation, which approached the Delhi High Court in 2001, which decriminalized sex between consenting individuals of the same gender by declaring the punitive clause "invalid."

    This 2009 High Court decision was reversed in 2013 by the Supreme Court, which also denied the review plea against the pending curative petitions. However, the HC's decision was reversed in 2013 by the Supreme Court, which declared it "legally untenable."

    The Court also dismissed the Naz Foundation's review appeal. In 2016, five petitions were filed in the Supreme Court by LGBTQ activists claiming that Section 377 violated their "rights to sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity, and equality, as well as the other fundamental rights guaranteed under Part-III of the Constitution."

    The Supreme Court recognized the right to privacy as a basic right under the Constitution in 2017. It also stated that "sexual orientation is an important aspect of privacy." In 2018, the Supreme Court declared that consenting to adult homosexual intercourse is not a crime, and Articles 14 and 21 of the Indian Constitution contradict the current situation under Sec 377. It also stated that Section 377, which deals with sex with minors, non-consensual sexual activities, and bestiality, remains in effect.
  3. Patient Information and Privacy
    The disclosure of a patient's personal information by a medical practitioner is a serious problem concerning the right to privacy. All patients have the right to privacy, and clinicians must keep information regarding their health problems and treatment plans strictly secret unless it is necessary to convey such information in the interest of safeguarding others or for public health reasons.

    In the matter of X vs. Z. Hospital, the doctor informed a patient's fianc´┐Że that the patient is HIV positive. The patient did not marry that individual and later sued the doctor, claiming that it was an invasion of her right to privacy. The court, on the other hand, took a different stance and declared that the doctor cannot be held accountable for any breach of privacy rights because this disclosure is important for the public benefit.
  4. Cyberspace and Personal Information
    The current period is distinguished by two characteristics: excessive reliance on technology and virtual space. However, lurking behind the convergence of these two lies a universe of strong challenges and perils. Cyberspace is the new frontier for obtaining personal information, and its potential is only now being realized. For example, in cyber phishing, a person exchanges his credentials with a disguised trustworthy site but later becomes a victim of fraud. The internet is quickly becoming the epicentre of the personal information business.

    Cybercrime is defined as any illegal behaviour in which a computer or network serves as the source, goal, tool or location of the crime. According to the Cambridge English Dictionaries, cybercrime refers to crimes done with or about computers, particularly through the internet. Cybercrime encompasses crimes involving the use of information or the use of electronic means in the commission of a crime. Cyberspace crimes can be perpetrated against individuals, property, governments, and society as a whole.

    Many sorts of profit-driven criminal actions can be conducted as a result of cybercrime, including ransomware attacks, email and internet fraud, identity theft, and scams using financial accounts, credit cards, or any other payment card. Cybercriminals may seek to steal and resell personal and business data.

    Cyber Crime Laws In India
    The Information Technology Act of 2000 and the Indian Penal Code of 1860 both include cybercrime in India. It is the Information Technology Act of 2000 that addresses cybercrime and Internet commerce. However, in 2008, the Act was revised to include a definition and punishment for cybercrime. Several adjustments were also made to the Indian Penal Code 1860 and the Reserve Bank of India Act.

    Rajesh Aggarwal of Maharashtra's IT department (representative in the present case) directed Punjab National Bank to pay Rs 45 lakh to Manmohan Singh Matharu, MD of Pune-based business Poona Auto Ancillaries, in Poona Auto Ancillaries Pvt. Ltd., Pune v. Punjab National Bank, HO New Delhi & Others (2018).

    In this case, a fraudster deposited Rs 80.10 lakh from Matharu's PNB, Pune account after the latter responded to a phishing email. Because the complainant reacted to the phishing email, she was asked to share her culpability. However, the bank was ruled responsible since no security checks were performed on bogus accounts established to deceive the Complainant.

    If the IT Act is not sufficient to cover specific cyber crimes, law enforcement agencies can take help from IPC.
  5. Aadhar And Privacy
    'May I see some ID?' This is something we hear all the time. We take it for granted since it is so frequent. But a lot depends on what we generate. Having an ID is required to access specific companies, join the fast-track queue at the airport, or even withdraw cash from an ATM.

    Similarly, if you do not have the proper identification, you may be denied emergency medical care, denied access to a secure website, or turned away at the border.

    An Aadhar is a 12-digit random unique identifying number provided by the Government of India to Indian citizens. The Aadhar Card is issued and managed by the Unique Identification Authority of India (UIDAI). Any resident of India, regardless of age or gender, may freely enroll to receive an Aadhar number.

    Aadhar was implemented largely to facilitate direct payment of subsidies into citizens' bank accounts. However, the government has recently expanded the scope of Aadhar.

    The fundamental basis for the case of invasion of privacy was that the Government of India requested biometrics from individuals to issue them with Aadhar Cards. The Aadhar plan requires all people to have an Aadhar card; otherwise, they may face difficulties opening bank accounts, paying taxes, and so on. The main argument was that the Aadhar Act does not make Aadhar enrollment mandatory, hence the system is not infringing any rights because everyone is supplying their biometrics willingly.

    The Indian government unquestionably offers different security advantages to the country's impoverished. If a citizen does not receive Aadhar, he or she will be denied this benefit. This will eventually deprive them of advantages and establish various unjustified classes of people, violating Article 14 of the Indian Constitution once more. Another argument for the scheme's illegality is that there is a trace of undue influence present.

    The Doctrine of Colourable Legislation arose from the principle that what cannot be done openly cannot also be done indirectly. The Aadhar Act is unquestionably a kind of colorable legislation in which the government exerts excessive control over some segments of society, both directly and indirectly. If a citizen had to choose between privacy and assistance programs, they would undoubtedly prioritize food and shelter.

    The Aadhaar Act grants residents the right to receive an Aadhaar number by submitting biometric and demographic information as part of the enrolment procedure.

    The Supreme Court was entrusted with evaluating whether the terms of the Aadhaar Act violated the right to privacy, which was deemed a fundamental right by the Supreme Court in 2017. It's worth mentioning in this respect that a lot of services provided by both private firms and the government needed an individual to link their Aadhaar number for authentication, essentially making acquiring an Aadhaar number mandatory for the great majority of people.

    As a result, the issue was not so much whether this was an infringement of the right to privacy as it was whether it was a legal exception. Certain provisions of the Aadhaar Act were invalidated or read down by the Supreme Court because they did not fulfill the aforementioned proportionality test. Aside from these provisions, the Supreme Court determined that the Aadhaar Act as a whole serves a legitimate state aim and is reasonable, making it a valid exemption to the right to privacy.

    The government of India resolved to grant all its inhabitants a unique identification called Aadhar, which is a card with a 12-digit number, in the case of Justice K.S. Puttaswamy vs. Union of India and ors. The registration of this card was made essential for people to file tax returns, register bank accounts, and so on.

    However, the registration process for such cards requires people to provide biometrics such as fingerprints, iris scans, and so on. Retired Justice K.S. Puttaswamy filed a petition challenging the constitutional legitimacy of the Aadhar project, claiming that people's right to privacy has been violated since Aadhar registration has been made mandatory.

    As a result, people who do not wish to register have little choice but to do so. Furthermore, due to a lack of data protection legislation in India, there is a risk that people's private information would be disclosed if necessary precautions are not followed. Individuals' right to privacy will be violated as a result of this.

    It was determined that privacy is a constitutionally protected right that stems not only from the guarantee of life and personal liberty in Article 21 of the Constitution but also from the other facets of freedom and dignity recognized and guaranteed by the Fundamental Rights contained in Part III of the Indian Constitution.

    Modern Approach Toward Right To Privacy
    The judicial enumeration of one right based on another under the Constitution is not rare. If Salmond's conception of liberty as incipient rights is valid, this behavior is only appropriate in the situation of Article 21's guarantee of personal liberty. Constitutional courts just name and describe the core of protections already there in the residual of constitutional liberty through the process of enumeration. Through its interpretation process, the Supreme Court has been able to infer that certain Fundamental Rights.

    In Unnikrishnan, J.P. vs. the State of A. P31, a Constitution Bench of this Court found that certain unspecified rights fell within Article 21 since personal liberty is of the greatest amplitude on the path to asserting a right to education.

    Right to privacy will remain an inherent Fundamental Right notwithstanding the shifting sands' of governments in power, according to Justice R F Nariman. He rejected the government's contention that because various legislation already exists to safeguard persons' privacy, it is superfluous to include a Fundamental Right to Privacy in Part III of the Constitution.

    Justice D Y Chandrachud: Privacy safeguards an individual's autonomy
    He said privacy safeguards an individual's autonomy and recognizes the the ability of the individual to control vital aspects of life.

The first thing to remember when discussing privacy in India is that the vast mass of the public does not always comprehend what it entails. It is occasionally mistaken with shame. It is also mixed up with the emotion we experience when we do something that does not satisfy our standards or our sense of what is right.

Modern Indian languages do not appear to have a specific term that encapsulates the notion of privacy; instead, they are frequently some form of the words for isolation, closeness, or secret, implying a conceptual ambiguity. However, privacy is more than just hiding something or keeping it hidden. At its foundation, it is the right to be left alone. It is expected that society will not interfere with a person's choices as long as they do not hurt others.

It means that one's right to eat whatever one wants, drink whatever one wants, love and marry whom one wants, and wear whatever one wants, among other things, are rights that the state cannot infringe on. Naturally, the notion of privacy appears confusing. If you've grown up in a culture where everything you do is predetermined by someone else and the punishment of disobedience is enormous, having the freedom to choose what you want in such critical situations sounds like a pipe dream.

However, there is a widespread misperception in India that the poor do not understand or care about privacy. The Supreme Court proceedings on the right to privacy must be understood from this perspective. Although the nine-judge panel determined that there is a basic right to privacy guaranteed by the Constitution in the specific situation of the Aadhaar issue, privacy encompasses far more than data protection or governmental monitoring.

A basic right to privacy proclaimed and guaranteed by the Constitution would imply that all individuals have the right to be left alone by the state unless such intrusion is required by just, reasonable, and fair legislation. The judgment's effects would extend well beyond the Aadhaar system and law. The Supreme Court's precedent on privacy might influence the creation of precedents controlling reproductive rights, homosexual rights, meat prohibitions, and prohibition, among a slew of other problems that the Indian state and society are wrestling with.

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