Right to Privacy – Is It Given Now?

In-House Counsel

Right to Privacy – Is It Given Now?

Vasan MS | September 2017

INTRODUCTION

The dialogue on the privacy rights in India had seemed to be transmuted over the years until August 24, 2017, the date will be engraved on the history books for the time immemorial. The Indian Constitution re-figured the agenda of Right to Privacy as the Supreme Court of India on this day through its 9- Judges bench in Justice K S Puttaswamy (Rtd) and Anr vs UOI [Writ Petition (Civil) no 494 of 2012)] ruled that right to privacy is a guaranteed fundamental right as mentioned in Article 21- right to life and personal liberty. SC declared that individual’s privacy is intrinsic to life and liberty and thus comes under the purview of section 21.

THE HISTORY COVERED

The batch of petitions was filed before the Supreme Court challenging the constitutional validity of Aadhar Scheme alleging that the collection of biometric authentication system violated the right of privacy of Indians. The main issues laid before SC were

Whether there is a constitutionally protected right to privacy;
If there is a constitutionally protected right, whether this has the character of an independent fundamental right or whether it arises from within the existing guarantees of protected rights such as life and personal liberty;
The doctrinal foundations of the claim to privacy;
The content of privacy; and
The nature of the regulatory power of the state.

LANDMARK SUPREME COURT JUDGEMENTS CONCERNING RIGHT TO PRIVACY

Sr. No	Case Name	Ratio Decidendi
1	M.P. Sharma vs Satish Chandra [1954 SCR 1077]	Here the 8-judges bench categorically held that right to privacy is not a fundamental right. Below are the key observations made in the case: “A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction.”
2	Kharak Singh vs State of U.P [1964 SCR 332]	Here the 6- judges bench held that: – “the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III.”
3	Gobind vs State of U.P [1975 2 SCC 148]	Here it was held that right to privacy is not an absolute right. It was further held that: “Depending on the character and antecedents of the person subjected to surveillance as also the objects and the limitation under which surveillance is made, it cannot be said surveillance by domiciliary visits would always be unreasonable restriction upon the right of privacy.” It was also held that “as the right to privacy of movement cannot be absolute, a law imposing reasonable restriction upon it for compelling interest of State must be upheld as valid.”
4	PUCL vs Union of India [(2004) 9 SCC 580]	Here the three judges bench held that: – “Right to privacy is subservient to that of security of State.”
5	District Registrar and Collector vs. Canara Bank [(2005) 1 SCC 496]	A division bench held that “every citizen has a right to safeguard the privacy of his own. However, in the case of a matter being part of public records, including court records, the right of privacy cannot be claimed.
6	State of Maharashtra vs. Bharat Shanti Lal Shah [(2008) 13 SCC 5]	A 3-judge bench held that “the interception of conversation though constitutes an invasion of an individual right to privacy but the said right can be curtailed in accordance with procedure validly established by law. Thus, what the court is required to see is that the procedure itself must be fair, just and reasonable and nonarbitrary, fanciful or oppressive.”
7	Supreme Court Advocates-on Record Assn. vs. Union of India [(2016) 5 SCC 1]	5-judge bench held that “the balance between transparency and confidentiality is very delicate and if some sensitive information about a particular person is made public, it can have a far-reaching impact on his/her reputation and dignity. The 99th Constitution Amendment Act and the NJAC Act have not taken note of the privacy concerns of an individual.” In an attempt to strike a balance between right to know and right to privacy, the Court further held that “The right to know is not a fundamental right but at best it is an implicit fundamental right and it is hedged in with the implicit fundamental right to privacy that all people enjoy.”
8	Rajagopal vs. State of T.N. [(1994) 6 SCC 632]	A 2-judge bench defined the right to privacy as the right to be let alone. It held the right of privacy to be implicit in the right to life and liberty guaranteed to the citizens of India by Article 21.
9	Mr X vs Hospital Z [(1998) 8 SCC 296]	Privacy concerning the disclosure of HIV status, the court held that: “Disclosure of even true private facts has the tendency to disturb a person’s tranquillity. It may generate many complexes in him and may even lead to psychological problems. He may, thereafter, have a disturbed life all through. In the face of these potentialities, and as already held by this Court in its various decisions referred to above, the right of privacy is an essential component of the right to life envisaged by Article 21. The right, however, is not absolute and may be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others…”
10	Suchita Srivastava vs Chandigarh Administration [(2009) 9 SCC 1]	Right to privacy concerning reproductive choices of woman, the court held that: “There is no doubt that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution of India. It is important to recognize that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods…”

KEY TAKEAWAYS OF THE JUDGEMENTS PASSED BY 9 -JUDGES BENCH

Privacy as intrinsic to freedom and liberty- The court held that the right to privacy is an element of human dignity. The sanctity of privacy lies in its functional relationship with dignity. Privacy ensures that a human being can lead a life of dignity by securing the inner recesses of the human personality from unwanted intrusion. It further stated that privacy recognises the autonomy of the individual and the right of every person to make essential choices which affect the course of life. In doing so privacy recognises that living a life of dignity is essential for a human being to fulfil the liberties and freedoms which are the cornerstone of the Constitution.
Privacy a Constitutionally protected right: The court stated that the Right to privacy is a constitutionally protected right which emerges from right to life and personal liberty in Article 21 of the Constitution. It further stated that the elements of privacy also arise in varying contents from other facets of freedom and dignity recognised and guaranteed by the fundamental rights contained in Part III;
Right to privacy of LGBT community: Court recognized the privacy rights of LGBT community and stated that “a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders” (as observed in the judgment of this Court) is not a sustainable basis to deny the right to privacy. The bench further held that “Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution…” However, recognizing the fact that challenge to section 377 is pending before a larger bench, remarked that the constitutional validity to be decided in appropriate proceeding.
Not just a common law right – The court held that “Once privacy is held to be an incident of the protection of life, personal liberty and of the liberties guaranteed by the provisions of Part III of the Constitution, the submission that privacy is only a right at common law misses the wood for the trees…”. The court recognized that the central theme is that privacy is an intrinsic part of life, personal liberty and of the freedoms guaranteed by Part III which entitles it to protection as a core of constitutional doctrine. The court also held that “The protection of privacy by the Constitution liberates it, as it were, from the uncertainties of statutory law which, as we have noted, is subject to the range of legislative annulments open to a majoritarian government. Any abridgment must meet the requirements prescribed by Article 21, Article 19 or the relevant freedom…”
Essential nature of privacy – Commenting on the essentials of privacy the court stated that the privacy postulates the reservation of a private space for an individual, described as a right to be let alone. The court further stated that “The integrity of the body and the sanctity of the mind can exist on the foundation that each individual possesses an inalienable ability and right to preserve a private space in which the human personality can develop. Without the ability to make choices, the inviolability of the personality would be in doubt. Recognizing a zone of privacy is but an acknowledgment that each individual must be entitled to chart and pursue the course of development of personality. Hence privacy is a postulate of human dignity itself…”
Informational Privacy is an important facet of right to privacy – Recognizing the need of data information privacy in this digitized e- India, the court stated that “The dangers to privacy in an age of information can originate not only from the state but from nonstate actors as well…”. Thus, the court commended to the Union Government the need to examine and put into place a robust regime for data protection. It further stated that such a regime requires a creative balance between individual concerns and legislative balance of state. The court further remarked that “The legitimate aims of the state would include for instance protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits. These are matters of policy to be considered by the Union government while designing a carefully structured regime for the protection of the data. Since the Union government has informed the Court that it has constituted a Committee chaired by Hon’ble Shri Justice B N Srikrishna, former Judge of this Court, for that purpose, the matter shall be dealt with appropriately by the Union government having due regard to what has been set out in this judgment…”

FUNDAMENTAL RIGHT TO PRIVACY – WHETHER ABSOLUTE?

The court stated that like other rights which form part of the fundamental freedoms protected by Part III, including the right to life and personal liberty under Article 21, privacy is not an absolute right.

It further remarked that a law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. In the context of Article 21 an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. An invasion of life or personal liberty must meet the three-fold requirement of (I) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate state aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.

DIGITIZED INDIA & WAY FORWARD

The Supreme Court also stated that the data collection from the people shall be only reasonable to the extent it is required and be proportionate to the object and purpose for which it is sought for the fulfilment by the law. The Government may collect the data for a specific purpose set out by the Law but it is its prime duty to ensure protection of data and have firewalls to avoid any pilferage or intrusion into such data stored. Further, the court was emphatic in stating that the data so collected for any welfare measures such as distribution of scarce resources and plug the diversion of resources to wrong persons shall be a legitimate ground for the State but ought not be used for any unauthorizedly extraneous purposes.

In this Digitized era, where manual shops have replaced e-commerce portals, a judgement like this restricting absolute use of person’s personal information for various purposes was the need of the hour. The impact of the digital age results in information on the internet being permanent. Humans forget, but the internet does not forget and not let humans forget. Any endeavor to remove information from the internet does not result in its absolute obliteration. The foot prints remain. It has become a greater responsibility bestowed on the Government to have a robust data protection Law in place on person’s personal information and prevent the mis-use / over-use of the same.

This judgement in this context provides guidelines on data regulation, wherein the court has specifically stated that that “formulation of data protection is a complex exercise which needs to be undertaken by the State after a careful balancing of privacy concerns and legitimate State interests, including public benefit arising from scientific and historical research based on data collected and processed”.

The decision of the Supreme Court reaffirms the belief of the people in India on the Institution of legal system – the Courts of India and in particular, the apex body – The Supreme Court of India.

About Author

Vasan MS

Dr. M. S. Vasan is a Senior Vice President – Global Taxation with M/s Hinduja Global Solutions Ltd., He is an advocate and holds doctoral degree in Transfer Pricing. He has authored books on Transfer Pricing and Direct Taxes published by Lexis & Nexis India.