Right to Privacy though is not a common law right but has been recognized as an equitable doctrine and as most cherished right in a democracy. Privacy is intrinsic to life and liberty and an inherent part of the fundamental rights enshrined in the Constitution. It exists equally in all individuals, irrespective of class, caste, gender or orientation. It plays a significant role in the development of one’s personality, integrity and dignity.
An exact legal definition of “privacy” is not available yet some legal experts tend to define privacy as a human right enjoyed by every human being by virtue of his or her existence. Privacy can also extend to other aspects, including bodily integrity, personal autonomy, informational self-determination, protection from state surveillance, dignity, confidentiality, compelled speech and freedom to dissent or move or think.
Art-21 says that:-
“No person shall be deprived of his life or personal liberty except according to procedure established by law”.
Art.21 confers on every person the fundamental right of life and personal liberty. This right is available to both citizens as well as non-citizens.
Right to privacy is expressly mentioned under the 5th Amendment of the American Constitution, whereas it is not expressly written in Indian Constitution. But it has evolved from case to case.
Right to privacy is a part of the right to “life” and “personal liberty” enshrined under Article 21 of the Constitution. The said right cannot be curtailed “except according to procedure established by law”. The right to privacy by itself has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it.
The privacy of the individual is an essential aspect of dignity. Dignity has both an intrinsic and instrumental value. As an intrinsic value, human dignity is an entitlement or a constitutionally protected interest in itself. In its instrumental facet, dignity, and freedom are inseparably intertwined, each being a facilitative tool to achieve the other. The ability of the individual to protect a zone of privacy enables the realisation of the full value of life and liberty. The family, marriage, procreation, and sexual orientation are all integral to the dignity of the individual.
Life and Liberty:-
In A.K. Gopalan vs. Union of India[1], the hon’ble Supreme Court has defined the expression “life and liberty” in a very narrow concept and held that life and liberty means life of physical existence and freedom from unlawful/arbitrary detention.
But in Kharak Singh vs. State of Uttar Pradesh[2], the hon’ble Supreme Court has defined the expression “life and liberty in a broad terms and followed the difinition of life and liberty” given by Justice field (U.S.) in the case of Munn Vs Illinois[3] (1876) and held that the expression used here is something more than mere animal existence and it contains all those rights by which life can be enjoyed.
Maneka Gandhi’s Case -New Demension
In Maneka Gandhi Vs UOI, AIR, 1978 the S.C. has not only overruled Gopalan’s case but has widened the scope of the words ‘personal liberty’.
Justice Bhagwati observed that – the expression ‘personal liberty’ in Art.21 is of widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have raised to the status of distinct F.Rs and given additional protection U/Art.19.
FOUNDATIONS OF THE FUNDAMENTAL RIGHT TO PRIVACY: THE EVOLUTION OF RIGHT TO PRIVACY
India does not have any law that deals with the concept of privacy as defined and inviolable legal right. Privacy is the most personal human right. Over the years its application has changed and widened.
Right to privacy was demanded for the first time in M.P. Sharma vs. Satish Chandra[4], represents a watershed moment in India’s highest Court in terms of the right to privacy. An eight-judge Constitution bench ruled unanimously that “the right to privacy is not a fundamental right under the Indian Constitution, that search and seizure is necessary for the protection of social security, and that the search and seizure process is a temporary interference for which statutory recognition is not required. It was deemed a reasonable limitation of constitutional rights that could not be declared unconstitutional.” Although the decision was partially overruled in the KS Puttaswamy judgement[5], it still holds as a precedent partially and aids the process of investigation by allowing seizure as a part of due process of law.
The honble Supreme Court dissented that right to privacy is not included under right to life and personal liberty and denied the right to privacy. Right to privacy was discussed again in Kharak Singh vs. State of Uttar Pradesh[6]. The Court held that we can not exactly give right to privacy but this aspect was recognized that without any reasonable cause, no domiciliary visits, whether it is suspected or normal person. The domiciliary visits of the policemen were an invasion on the petitioner’s personal liberty which includes right to privacy also. The term ‘life’ means more than animal existence. The inhibition against its deprivation extends to all those limits and faculties by which life is enjoyed. It is true that in art. 21, the word ‘liberty’ is qualified by a word ‘ personal ‘ but this qualification is employed in order to avoid overlapping between those incidents of liberty which are mentioned in art. 19. An unauthorized intrusion into a person’s home and the disturbance caused to him is the violation of the personal liberty of the individual. Hence the police regulation authorizing domiciliary visits was plainly violative of art. 21 as there was no law on which it could be justified and it must be struck down as unconstitutional. In Justice K.S. Puttaswamy(Retd.) & Anr. vs. Union of India[7], the Court upheld the Aadhar Act, but struck down some of its provisions. The court ruled that linking Aadhar to bank accounts was constitutional. The Court also ruled that private companies could not require citizens to provide their Aadhar numbers for services.
DEFINING THE RIGHT TO PRIVACY
Right to privacy is a part of the right to “life” and “personal liberty” enshrined under Article 21 of the Constitution. The said right cannot be curtailed “except according to procedure established by law”. The right to privacy by itself has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it.
The privacy of the individual is an essential aspect of dignity. Dignity has both an intrinsic and instrumental value. As an intrinsic value, human dignity is an entitlement or a constitutionally protected interest in itself. In its instrumental facet, dignity, and freedom are inseparably intertwined, each being a facilitative tool to achieve the other. The ability of the individual to protect a zone of privacy enables the realisation of the full value of life and liberty. The family, marriage, procreation, and sexual orientation are all integral to the dignity of the individual.
RIGHT TO PRIVACY IS NOT AN ABSOLUTE RIGHT
In the case of Mr. ‘X’ vs. Hospital ‘Z’[8], the Supreme Court of India explored the interplay betweenthe right to privacy and other competing interests, particularly in the context of public health and safety. The court held that while the right to privacy is indeed recognized as a fundamental right under Article 21 of the Constitution, it is not absolute. The court emphasized that certain restrictions can be imposed on this right in the interest of preventing crime, maintaining public order, protecting public health or morals, or safeguarding the rights and freedoms of others.
The case draws a clear distinction between an ethical duty and a legal obligation. Traditionally, under the Hippocratic oath and as enshrined in the Code of Medical Ethics by the Medical Council of India, doctors are bound by confidentiality regarding patient information. However, this ethical obligation is subject to exceptions. Specifically, doctors are allowed to disclose patient information if it serves a larger public interest, such as preventing harm to others.
In this particular case, the court ruled that the disclosure of a patient’s HIV status to a potential spouse was justified. The rationale was that the right to life, which encompasses the right to live a healthy life, supersedes the patient’s right to privacy. The court held that the prospective spouse had a right to be informed about the patient’s health condition, especially given the serious nature of the disease and its potential to harm others.
Thus, the judgment reinforces the notion that privacy rights, while fundamental, can be curtailed under certain circumstances, particularly when they conflict with the safety, health, or rights of others.
CLASHING OF TWO FUNDAMENTAL RIGHTS
In Mr. ‘X’ vs. Hospital ‘Z’[9], the Supreme Court of India addressed the complex issue of clashing fundamental rights. The court had to weigh the patient’s right to privacy under Article 21 against the proposed wife’s right to live a healthy life, also protected u nder Article 21. This case illustrates how the judiciary must navigate conflicts between fundamental rights and determine which right holds greater significance in a given context.
The court concluded that in situations where two fundamental rights are in conflict, the right that aligns with public morality or public interest must prevail. In this instance, the patient’s right to privacy, while important, was seen as secondary to the proposed wife’s right to be informed about the patient’s HIV-positive status. Her right to lead a healthy life, free from exposure to a potentially life-threatening disease, was deemed more crucial.
The judgment underscores the importance of public morality and societal interests when balancing individual rights. It acknowledges that courts cannot operate in isolation from the moral fabric of society, and judges must remain attuned to the values and expectations of the day. The court rejected the notion of absolute detachment, emphasizing that it must act in a way that promotes fairness and protects broader societal welfare.
Thus, in cases where two fundamental rights clash, the judiciary must ensure that the right advancing public interest and moral considerations takes precedence, especially when life and health are at stake.
STATUTORY PROTECTION OF RIGHT TO PRIVACY
Indeed, privacy in India is protected across multiple sectors, with laws governing various facets such as police surveillance, financial confidentiality, health records, and communications. These protections emerge from both statutory provisions and judicial interpretations.
Information Technology (IT) Act, 2000
The IT Act, 2000 is the cornerstone of India’s digital regulatory framework, enacted to address issues arising out of e-commerce, e-governance, cybercrimes, and data protection. Though not initially focused on data privacy, it has been amended and interpreted over time to include some data protection aspects.
Section 43:- This section deals with unauthorized access to a computer, computer system, or computer network. It makes it a punishable offense to destroy, delete, alter, or diminish the value of data without authorization. This is particularly relevant to hacking and unauthorized access cases, including data breaches.
Section 65:- It criminalizes tampering with computer source documents, which include any source code, software, or programs used in a computer, computer system, or computer network. Knowingly altering, deleting, or concealing these documents without permission can lead to legal action.
Section 66:- This section defines hacking, which is altering, damaging, or destroying information stored in a computer system. It covers not just unauthorized access but also deliberate attempts to harm data integrity.
Section 66C:- It addresses identity theft by criminalizing fraudulent digital identity use, which includes using someone else’s digital signatures or any other unique identification.
Section 66E:- This section punishes the violation of privacy, including the capture, transmission, or publication of private images of individuals without their consent.
Section 69 and 69A (Amended in 2008):-These sections empower the government to monitor, decrypt, and intercept digital communications or data for reasons of national security, defense, or to prevent incitement of offenses.
Section 69A specifically empowers the government to block access to certain websites in the interest of public order or national security.
Section 72:- This section provides penalties for breaching the confidentiality and privacy of data. It applies to government officials or intermediaries who misuse personal information accessed in the course of their duties.
Indian Penal Code (IPC), 1860
Section 408:- Deals with criminal breach of trust by a clerk or servant concerning property, which can be interpreted to include misappropriation of digital property (data). The misappropriation of data, including theft or unauthorized use, could fall under this section.
Section 403:-This section penalizes dishonestly misappropriating or converting to one’s use another’s movable property. Again, while this law primarily addresses physical property, it may be extended to digital assets in certain contexts.
Intellectual Property Law (Copyright Act, 1957)
The Copyright Act, 1957 protects creators’ rights, including in the digital space. It is particularly relevant in the case of intellectual property (IP) related to digital data and databases.
Section 65:- It provides penalties for the infringement of copyrighted works, including computer programs. If someone uses a copyrighted computer program without authorization, it amounts to piracy, and the law provides for stringent penalties.
Indian Contract Act, 1872
The Indian Contract Act plays a crucial role in data protection, especially where agreements between parties contain privacy or confidentiality clauses. It governs the enforcement of contracts, including those related to confidentiality and data protection.
Example:- In insurance contracts, an insurer collects confidential personal information from the insured. If the insurer discloses this information without consent, they can face a lawsuit for breach of contract.
Digital Personal Data Protection Act, 2023
The Act is designed to provide a more unified legal framework for personal data protection, emphasizing consent, purpose limitation, and data localization. It imposes strict obligations on data processors and controllers to ensure the privacy of personal data, with penalties for non-compliance.
TELEPHONE TAPPING IS AN INVASION TO PRIVACY
In People’s Union for Civil Liberties vs. Union of India[10]—commonly known as the “Phone Tapping Case”—the Supreme Court of India addressed the constitutionality of telephone tapping under Section 5(2) of the Indian Telegraph Act, 1885. The court ruled that telephone tapping amounts to a significant invasion of an individual’s right to privacy, which is an essential aspect of the right to life and personal liberty under Article 21 of the Indian Constitution.
While recognizing the seriousness of invasion of privacy, the court also acknowledged that this right is not absolute and restrictions can be imposed on it. The court held that telephone tapping by the government is permissible only in the case of a “public emergency” or when public safety is at risk. These conditions were defined narrowly:-
1. Public Emergency:- A sudden and urgent situation affecting the general public, which calls for immediate action to protect the people.
2. Public Safety:- A state or condition where there is a grave threat or danger to the safety of the public at large.
The ruling emphasized that the Central government or the State government or the authorized officers cannot resort to phone tapping merely on the grounds of expedience, even if it believes such actions serve the interests of sovereignty, integrity, or national security. The court underscored that the criteria of public emergency or public safety must be strictly met before invoking the power to tap telephones.
In the case of Rayala M. Bhuvaneswari vs. Nagaphamender Rayala[11], the court held that the act of tapping by the husband of conversation of his wife with others without her knowledge was illegal and amounted to infringement of her right to privacy under art. 21 of the constitution.
The Right to privacy at private law
In R. Rajagopal vs. State of Tamil Nadu[12], popularly known as Auo Shanker case”, the Supreme Court recognized the tort action for the privacy in Indian law. The “ right to privacy” , or the right to e let alone is guaranteed by art. 21 of the constitution. A citizen has a right to safeguard the privacy of its own, his family, marriage, procreation, ,otherhood, child-bearing and education among other matters. None 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.
The High Court of Delhi in Phoolan Devi v. Shekhar Kapoor[13] granted injunctive relief to the plaintiff on a showing that the impugned film violated her right to privacy in depicting her life’s story. Further, the traditional and well-established tort of trespass is a sound basis for protection against physical intrusion of privacy or what has come to be known as peeping tom actions.
Various actions have been preferred to vindicate privacy through actions of defamation or false light. The key shortcoming in such actions is that truth is a complete defence. Truthful disclosure of private information is incapable of protection via such tort actions. This limitation can be overcomed using personality rights as the legal basis for an action for privacy. Personality rights are a species of intellectual property rights that vests in the representation of a person. These rights have been recognised by courts in India as a valid basis for the grant of injunctions.
SUPREME COURT VERDICT ON RIGHT TO PRIVACY
A nine-judge Constitution Bench headed by Chief Justice, J.S. Khehar on 24th August, 2017 gave a landmark decision on Right to Privacy. Supreme Court ruled that Right to Privacy is “intrinsic to life and personal liberty” and is inherently protected under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution. Reading out the common conclusion arrived at by the nine-judge Bench, the Chief Justice said the Court had overruled its own eightjudge Bench and six-judge Bench judgements of M.P. Sharma and Kharak Singh cases delivered in 1954 and 1961 respectively that privacy is not protected under the Constitution.
By making privacy an intrinsic part of life and liberty under Article 21, it is not just a citizen, but anyone, whether an Indian national or not, can move the constitutional courts of the land under Articles 32 and 226, respectively, to get justice.
By declaring that privacy is inherent to each and every fundamental freedom in Part III of the Constitution, the Supreme Court has made privacy an essential ingredient of other important fundamental freedoms, including right to equality, free speech and expression, religion and a myriad other important fundamental rights essential for a dignified existence subject to reasonable restrictions of public health, morality and order.
[1] AIR 1950 SC 27
[2] 1963 AIR 1295, 1964 SCR (1) 332
[3] 94 U.S. 113 (1876)
[4] 1954 AIR 300
[5] AIR 2017 SC 4161
[6] 1963 AIR 1295
[7] (2017) 10 SCC 1
[8] AIR 1995 SC 495
[9] AIR 1995 SC 495
[10] AIR 1997 SC 568, (1997) 1 SCC 301
[11] 2008 (2) ALD 311
[12] 1994 SCC (6) 632
[13] 1995 (32) DRJ 142
Author: Ashwini Singh
Juris Centre 