Many international treaties recognise privacy as a fundamental human right. It is a natural right that all humans have as a result of their existence. Physical integrity, individual autonomy, free speech, and the freedom to move or think are all included. This indicates that privacy encompasses integrity, personal autonomy, data, voice, permission, objections, movements, thoughts, and reputation in addition to the body. As a result, it is a neutral interaction between an individual, a group, and an individual who is not subject to interference, unwelcome invasion, or personal freedom invasion. All modern societies understand the need of privacy, not only for humanitarian reasons but also from a legal one.

The concept of privacy is based on natural rights philosophy and frequently corresponds to modern information and communication technologies. Our right to maintain the territory around us, which includes all that is ours, such as our bodies, houses, possessions, thoughts, feelings, secrets, identities, etc., is known as privacy.

The expansion of the reach of Article 21 in Indian law, particularly following the case of Maneka Gandhi vs. UOI, 1978, is a relevant development in Indian law. The Supreme Court has repeatedly stated that Article 21 is the bedrock of fundamental rights. Article 21 has shown to be a multifaceted document. Its scope has been expanded by redefining what constitutes life and liberty in various situations. These words, namely, life and liberty, are not universally applicable.

It is vital to investigate what constitutes privacy in order to comprehend the Right to Privacy. “Right to be left alone; the right of a person to be free from any unnecessary publicity; the right to live without any unwarranted public intrusion in things with which the public is not necessarily concerned”, according to Black’s Law Dictionary. The Supreme Court has opted to read Article 21 in conjunction with the Universal Declaration of Human Rights in order to broaden its reach.

The right to privacy is not explicitly stated in the Constitution as a fundamental right. The right to privacy was established in Kharak Singh v. State of U. P. (1962), a case involving the surveillance of suspects.

Right to Privacy in India

Right to life can be construed in any way, thus it encompasses all aspects of life that make a person’s existence more meaningful, including the right to privacy. The Supreme Court first addressed this issue in Kharak Singh vs. the state of UP (1962), ruling that Regulation 236 of the UP Police Regulations was unconstitutional because it violated Article 21 of the Constitution. The right to privacy is included in the right to life and personal liberty, according to the Court. The Court in this case equated privacy with personal liberty.

Maneka Gandhi vs. UOI (1978) laid down the triple test for any law interfering with personal liberty:

 (1) It must prescribe a procedure;

(2) the procedure must withstand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation and 

(3) It must withstand the test of Article 14. 

Interference with personal liberty and the right to privacy must be legal, just, and fair, not arbitrary or coercive. It is now widely accepted that Article 21’s right to life and liberty includes the right to privacy as well.

Conflict between Right to Information and Right to Privacy 

In the case of R. Rajagopal v. the State of Tamil Nadu (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 decided that if two fundamental rights, including the right to privacy, conflicted, the right that promotes public morality or the public interest would prevail.

Ratan Tata filed a petition with the Supreme Court to have the intercepts of his discussion with Neera Radia made public. Radia’s phone was tapped by government entities for the sake of investigating a probable crime, according to Tata, thus the recorded conversation had to be utilised solely for that purpose. Tata called for his right to privacy to be protected as a result.

The phrase “or” implies that an unjustified violation of individual privacy may trigger the exemption, even if the information has a connection to public activity or interest. However, the additional caveat states that the dissemination of even entirely private material may be justified in the wider public interest. Furthermore, the regulation does not define what constitutes “personal” information.

The Privacy Bill, 2011

The bill safeguards persons against identity theft, including both criminal and financial identity theft. Intercepting communication lines without the authority of a secretary-level officer is prohibited under the bill. The content gathered must be deleted within two months of the end of the interception. It establishes a Central Communication Interception Assess Committee to evaluate and review the interception orders that have been issued. It also has the responsibility to ensure that any interceptions that are in violation of Section 5 of the Telegraphs Act are destroyed right away. Surveillance is likewise prohibited, unless the procedure specifies otherwise.

According to the bill, no one whose place of business and data equipment is located in India may leak any personal data without their consent. The Data Protection Authority of India is established under the Privacy Bill. The Indian Data Protection Authority is responsible for keeping track on advancements in computer technology and data processing. This is done in order to assess the law and assess its impact on data security. In addition, the authority is responsible for receiving recommendations and representing the public on any data privacy issue.

The authority has the jurisdiction to investigate any data breach and impose orders to protect security interests. The bill stipulates that non-compliance with the bill’s guidelines may result in jail or a fine. It further states that anyone who acquires any record of information about an individual from a government or agency official under false pretences faces a fine of up to Rs. 5 lakhs.

Later developments in Right to Privacy

·         Right to Press vs. Right to Privacy

With the rise of social networking sites and technology, establishing the right to privacy as a fundamental right has become very challenging. On the other hand, a person’s right to privacy includes the ability to keep personal information private.

As evidenced by the development in social networking sites and blog locations, anyone can now be a press. The right to privacy frequently clashes with the right to freedom of expression. Article 19 (1) establishes the right to freedom of expression (a). A person’s right to freedom of expression may collide with another person’s right to privacy. As a result, the concept of public morality and interest is used to make decisions in such situations. Each situation is unique, and each right is unique.

• Test of public morality

Article 21 can be used to derive any right that was obtained from Article 19. Due to the broad interpretation of the term “personal liberty,” anything is possible. In the instance of a dispute between two derived rights, the Court normally uses the test of public morality or public interest, but a different interpretation is also feasible. In comparison to a right derived from Article 19, a right derived from Article 21 has more superiority. This is because a state that passes legislation infringing on such a right can be protected under Article 19(2)’s reasonable restrictions (5). Article 21 was not interpreted as a substantive right in the pre-Maneka era; hence this position was not followed.

·         Privacy and police investigation

Several parts of the police inquiry may conflict with the right to privacy. Narco–analysis, brain mapping exams, and polygraph examinations all result in unjustifiable invasions of a person’s privacy. By declaring these tests unlawful and inhumane, the Supreme Court has recognised the right to privacy.

·         Privacy and thermal imaging

In the case of Directorate of Revenue and Anr v. Mohammed Nisar Holia (2007), the Supreme Court held that “thermal imaging,” an advanced technology, might improve the feeling of being locked out of one’s home. It can tell if a prisoner has any narcotics in his or her possession. Internal substance infringes on a person’s rights and privacy. The court opposes unwarranted invasions of a person’s right to privacy and considers that no infinite power to infringe on a person’s right to privacy should be granted. The conviction and seizure that were made in violation of the statutory registration requirements were revoked by the court. Although the statutory authority of separate search and seizure may not infringe on the right to privacy, the court can at least ensure that the right is not infringed unduly in a case like this.

·         SC’s Aadhaar judgment and the Right to Privacy

Residents have the right to receive an Aadhaar number by submitting biometric and demographic information as part of the enrolment process under the Aadhaar Act. The Supreme Court was tasked with evaluating whether the terms of the Aadhaar Act infringed on the right to privacy, which the Supreme Court proclaimed a fundamental right in 2017. In this regard, it’s worth mentioning that a variety of services provided by both private firms and the government required an individual to link their Aadhaar number for authentication, effectively requiring the great majority of people to obtain an Aadhaar number. As a result, the question became whether this was a legal exception rather than whether it was an infringement of the right to privacy.Because they failed to meet the aforementioned proportionality test, the Supreme Court annulled or read down some portions of the Aadhaar Act. Apart from these provisions, the Supreme Court determined that the Aadhaar Act as a whole is reasonable and serves a legitimate state aim, making it a permissible exemption to the right to privacy.

Privacy in the age of Facebook

In its argument, the Facebook-owned corporation contends that requiring intermediaries to identify the source of material on its platforms might expose Indian journalists and activists to reprisal and infringe on people’s fundamental right to free speech and expression.

Government steps to protect privacy

• Personal Data Protection Bill, 2019:To establish a Data Protection Authority of India for these purposes and matters relating to an individual’s personal data, and to provide for the protection of individuals’ privacy in connection to their personal data. Based on the recommendations of the B N Srikrishna Committee (2018).
• Information Technology Act, 2000:The year 2000 saw the enactment of the Information Technology Act. It provides security against some computer-related data breaches. It has protections in place to prevent unauthorized access to computers, computer systems, and the data they contain.

Conclusion

Under Article 21, privacy rights are vital parts of life and personal freedom rights. The right to privacy is not an absolute right. For the protection of criminals, the disadvantaged, or morals, or the preservation of other human rights, they are subject to justifiable constraints. If the two derived rights are in conflict with each other. When one examines the Apex Court’s later decisions, one can see the court’s desire to treat essential rights as watertight containers. This was especially evident in the case of A.K. Gopalan v. the State of Madras (1950), and the easing of this strict stance may also be seen in the Maneka Gandhi v. Union of India judgement (1978).

Being a part of society frequently takes precedence over the notion that we are first and foremost individuals. For whatever activity, each person requires their own personal space (assuming here that it shall be legal). As a result, the state grants each individual the right to enjoy such private moments. According to Clinton Rossiter, privacy could be an unique kind of reasonable independence that can be viewed as a test of securing autonomy while minimizing some emotional and spiritual concerns. This autonomy is the most unique feature that a person can possess. They’re true free people over there. This is frequently a right against the planet rather than the state.

This article is written by Nupoor Agarwal, 2nd year BBA LLB (Hons.) student of School of Law, NMIMS, Navi Mumbai during her internship with LeDroit India.