The fundamental rights which are embodied in the Part III of the Constitution are nothing but the basic rights and protection given to the all the human beings. Its demand started during the British period only as in British era these rights were being violated on the large scale by the then government and administration. Therefore, Congress the political started demanding these rights against the Britishers. Hence, when the Constituent Assembly started drafting the supreme law of the land i.e., the Constitution of India, then the Constituent Assembly was of the view that the said constitution should provide protection to its citizens and persons of the nation as many of the framers of the constitution were the victims of the violation of these basic rights. In India, the fundamental rights were the need of the society because of the multi-cultural, multi-religious and multi-linguistic society and in order to provide the sense of the security to the society.
Fundamental rights were also included because of the preamble of the Constitution as it states that people of India have solemnly resolved to constitute India into a sovereign, democratic, republic, socialist and secular all its citizens justice, social and political; liberty of thought, expression, belief, faith and worship; equality of status and opportunity. 1
The part III of the Constitution also protects substantive and procedural rights. 2 Apart from providing basic civil rights to the citizens it also fulfils the important function of giving a few safeguards to minorities, outlawing discrimination and protecting religious freedom and cultural rights. The fundamental rights are the basic structure of the Constitution. 3
Part III starts from article 12-35 and here, the main concern of this paper is article 21, its heading is Protection of Life and personal liberty. The judiciary while interpreting this article has given many aspects and one of the aspects of the said article is right to privacy.
The right to privacy is an element of various legal traditions to restrain governmental and private actions that threaten the privacy of individuals. 4 5 Over 150 national constitutions mention the right to privacy.6
Since the global surveillance disclosures of 2013, initiated by ex-NSA employee Edward Snowden, the inalienable human right to privacy has been a subject of international debate. In combating worldwide terrorism, government agencies, such as the NSA, CIA, R&AW, and GCHQ have engaged in mass, global surveillance.
There is now a question as to whether the right to privacy act can co-exist with the current capabilities of intelligence agencies to access and analyze virtually in every detail of an individual’s life. A major question is that whether or not the right to privacy needs to be forfeited as part of the social contract to bolster defence against supposed terrorist threats.
Privacy uses the theory of natural rights and generally responds to new information and communication technologies. In the United States, an article in the December 15, 1890 issue of the Harvard Law Review, written by attorney Samuel D. Warren and future U.S. Supreme Court Justice, Louis Brandeis, entitled “The Right to Privacy”, is often cited as the first implicit declaration of a U.S. right to privacy. Warren and Brandeis wrote that privacy is the “right to be let alone”, and focused on protecting individuals. This approach was a response to recent technological developments of the time, such as photography, and sensationalist journalism, also known as “yellow journalism”. 7
Privacy rights are inherently intertwined with information technology. In his widely cited dissenting opinion in Olmstead v. United States (1928), Brandeis relied on thoughts he developed in his 1890 article The Right to Privacy. But in his dissent, he now changed the focus whereby he urged making personal privacy matters more relevant to constitutional law, going so far as saying “the government was identified…as a potential privacy invader.” He writes, “Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.” At that time, telephones were often community assets, with shared party lines and the potentially nosey human operators. By the time of Katz, in 1967, telephones had become personal devices with lines not shared across homes and switching was electro-mechanical. In the 1970s, new computing and recording technologies began to raise concerns about privacy, resulting in the Fair Information Practice Principles.
In India, the Article 21, which prevents the encroachment of life or personal liberty by the State except in accordance with the procedure established by law, was, until 1978, construed narrowly as being restricted to executive action. However, in 1978, the Supreme Court in the case of Maneka Gandhi v. Union of India 8 extended the protection of Article 21 to legislative action, holding that any law laying down a procedure must be just, fair and reasonable, and effectively reading due process into Article 21. In the same case, the Supreme Court also ruled that “life” under Article 21 meant more than a mere “animal existence”; it would include the right to live with human dignity and all other aspects which made life “meaningful, complete and worth living”. Subsequent judicial interpretation has broadened the scope of Article 21 to include within it a number of rights including those to livelihood, good health, 9 clean environment, water, speedy trial and humanitarian treatment while imprisoned.
DEFINITIONS OF PRIVACY
In recent years there have been only a few attempts to clearly and precisely define the “right to privacy”. In 2005, students of the Haifa Center for Law & Technology asserted that in fact the right to privacy “should not be defined as a separate legal right” at all. By their reasoning, existing laws relating to privacy, in general, should be sufficient. Other experts, such as William Prosser, have attempted but failed, to find a “common ground” between the leading kinds of privacy cases in the court system, at least to formulate a definition. One law school treatise from Israel, however, on the subject of “privacy in the digital environment,” suggests that the “right to privacy should be seen as an independent right that deserves legal protection in itself.” It has therefore proposed a working definition for a “right to privacy”:
The right to privacy is our right to keep a domain around us, which includes all those things that are parts of us, such as our body, home, property, thoughts, feelings, secrets and identity. The right to privacy gives us the ability to choose which parts in this domain can be accessed by others and to control the extent, manner and timing of the use of those parts we choose to disclose. 10
RIGHT TO PRIVACY
Privacy is very much desired by all citizens, who consider it as the most valuable component of one’s component of one’s liberty. With the growth and development of one’s activities in the society, it has assumed a proportionately increased significance. Changes in the political order and exigencies of life also enhanced the same. No one thus likes any interference in his ways of living and enjoyment of personal freedom. An injury to one’s privacy and private rights is, therefore, regarded as the worst invasion of the fundamental freedom conferred under art 21 of the Constitution.
In Telephone, intercept leakage case of Nira Radia issues was framed regarding –
a. Right to privacy vis a vis the Government.
b. Right to privacy vis-à-vis the press and
c. Right to know the information. Regarding the issue of criminality, or illegality in awarding various contracts to private parties which surfaced in the conversations. The registry was directed to keep CBI investigation in sealed covers and further not to open the sealed covers without the permission of Courts. 11
Collection by Government of biometric data of residents under Aadhaar Card Scheme challenged to be violative of the right to privacy. The question as to the existence of the right to privacy referred to a larger bench. On request to issue an interim injunction restraining government from further collecting biometric the Court as an interim measure directed Government to proceed in the following manner.
The Union of India shall give wide publicity in the electronic and print media including radio and television networks that it is not mandatory for a citizen to obtain an Aadhaar Card; the production of an Aadhaar Card will not be condition for obtaining any benefits otherwise due to citizen; the Unique Identification Number or the Aadhaar card will not be used by the Government for any purpose other than the PDS Scheme and in particular for the purpose of distribution of food grains, etc., and cooking fuel such as kerosene. The Aadhaar Card may also be used for the purpose of the LPG Distribution Scheme; the information about an individual obtained by the UIDAI while issuing Aadhaar Card shall not be used for any other purpose same except as may be directed by a Court for the purpose of Criminal Investigation. 12
In the case of Justice (Retd.) K.S. Puttaswamy v. Union of India, the nine judges bench dealt with the question, whether the right to privacy is a fundamental right under article 21 or not. The bench headed by Justice Khehar ruled on 24th August 2017 that the right to privacy is the fundamental right under article 21 of the Constitution of India.
The court observed that privacy, in its simplest sense, allows each human being to be left alone in a core which is inviolable. Yet the autonomy of the individual is conditioned by her relationships with the rest of society. Those relationships may and do often pose questions to autonomy and free choice. The task before this court is to impart constitutional meaning to individual liberty in an interconnected world. The Attorney General for India urged that the existence of the fundamental right to privacy is in doubt in view of two decisions; the first – M.P. Sharma v. Satish Chandra, District Magistrate, Delhi 13 was rendered by a Bench of eight judges and second in Kharak Singh v. State of U.P. 14 was rendered by six judges bench. Each of the decisions, in the submission of the AG, contained observations that the Indian Constitution does not specifically protect the right to privacy. While addressing these challenges, the three judges’ bench of the apex court previously took note of several decisions of the court in which this right to privacy is to be held constitutionally protected fundamental right.
In the light of the agreement with the view of Hon’ble Dr. Justice DY Chandrachud, in a previous matter on the same, it was confirmed that the right to privacy cannot be denied, even if there is a minuscule fraction of the population which is affected. The majoritarian concept does not apply to constitutional rights and the courts are often called upon to take what may be categorized under the constitution of India. While concluding the subject the court said that the right to privacy is a fundamental right. It is a right which protects the inner sphere of the individual from interferences from both State, and non-State actors and allows the individuals to make autonomous life be unequivocally a fundamental right embedded in Part III of the Constitution of India, but subject to the restriction specified, relatable to that part.
SIGNIFICANT CONCLUSIONS FROM THE JUDGMENT
1. Life and personal liberty are inalienable rights. These are rights which are inseparable from a dignified human existence. The dignity of the individual, equality between human beings and the quest for liberty is the functional pillars of the constitution of India.
2. Judicial recognition of the existence of a constitutional right to privacy is not an exercise in the nature of amending the constitution nor is the court embarking on a constitutional function of that nature which is entrusted to parliament.
3. Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Personal choices governing a way of life are intrinsic to privacy.
4. Privacy is the constitutional core of human dignity
5. Privacy is not lost or surrendered merely because the individual is in a public place.
6. Like other rights in the Part III of the Constitution, including the right to life and personal liberty under article 21, privacy is not an absolute right.
7. Privacy has both positive and negative content.
8. The right of privacy is a fundamental right
9. Privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article of the Constitution.
10. In a country like ours which pride itself on its diversity, privacy is one of the most important rights to be protected both against State and non-State actors.
11. Life and personal liberty are not the creation of the Constitution. These rights are recognised by the Constitution as inhering in each individual as an intrinsic and inseparable part of the human element which dwells within.
12. Technology change has given rise to the concern which was not present seven decades ago and the rapid growth of technology may render obsolescent many notions of the present. Hence, the interpretation of the constitution must be resilient and flexible to allow future generations to adapt its content bearing in mind its basic or essential features.
There is only one thing which I want to suggest after going through various judgments regarding the right to privacy is that the Nine Judges Bench has interpreted the article 21 and then held that the right to privacy is a fundamental right. There should be an amendment in the article 21 with respect to same. As in reality there are many at times the courts have given judgments but due to lack of amendment in the provision, the situation remained as it was before the judgment. For this, there is the latest example of triple talaq verdict, wherein the court held triple talaq is unconstitutional but due to lack of any law or enactment, it is still in practice and because of this the government came up with triple talaq law. So, in order to avoid such a situation, the phrase ‘right to privacy’ must be incorporated in the article 21 of the Constitution of India.
After going through the judgment rendered by the Nine Judges Bench, it is now clear that the court is not only protecting the individuals but also giving importance/respect to all the individuals by recognizing the right to privacy and giving the status of the fundamental right under article 21 of the Constitution. This step is very appreciable as the basic human articles are not given by the Constitution rather they are recognized by the Constitution. When these are not given by the parliament then it cannot be taken away by them by amending the constitution as the fundamental rights are the basic structure of the Constitution and the parliament cannot amend the basic structure of the Constitution. 15
- MP Jain, Indian Constitutional Law, 2017.
- Constituent Assembly Debates on Fundamental Rights.
- Keshavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
- “The Privacy Torts” (December 19, 2000). Privacilla.org
- “Right to Privacy”. faculty.uml.edu. Retrieved 31 March 2018.
- “Right to privacy” on Constitute”. constituteproject.org. Retrieved 31 March 2018.
- Warren and Brandeis, “The Right to Privacy”, 4 Harvard Law Review 193 (1890).
- AIR 1978 SC 597.
- Khosla, Madhav (2011). “Making social rights conditional: Lessons from India” (PDF). Icon (2010). 8 (4): 761
- Yael Onn, et al., Privacy in the Digital Environment, Haifa Center of Law & Technology, (2005) pp. 1–12.
- Ratan N. Tata v. Union of India, (2015) 5 SCC 639.
- K.S. Puttaswamy v. UOI, AIR 2015 SC 3081.
- (1954) SCR 1077.
- (1964) 1 SCR 332.
- Supra note iii.
- The Constitutional Law of India, Sriniwas Gupta, first ed., Thomson Returns, 2018.
- The Constitution of India, P.M. Bakshi, Thirteenth ed. Universal Law Publishing, 2016.
- Indian Constitutional Law, M.P. Jain, Seventh ed., Lexis Nexis, 2016.