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Evolution of Right to Privacy In India

Right to privacy is a facet of right to life and personal liberty enshrined under article 21 of the Indian constitution and right to privacy has been recognized as fundamental right in the recent judicial pronouncement in Justice K.S Putthaswamy v. Union of India. This research paper will deal with USA privacy laws in elaborative manner because India relied on American laws for the purpose of interpreting the privacy matters in Indian domain. Apart from discussion on American laws, author will elaborate the entire journey of right to privacy along with various aspects and dimensions of privacy. The main purpose behind touching upon various areas of privacy, is providing an unambiguous and unequivocal idea about the said right and we all have a rudimentary idea that right to privacy can be considered as an umbrella under numerous areas related with different field are covered. Therefore it is essential to explicate all such concept for providing better understanding to the reader. The author will be providing an explication about "right to be forgotten as well since various petitions are pending in supreme court and arguments are being raised for bringing right to be forgotten under the purview of right to privacy, so all the mentioned areas will be explained in elucidatory form for the basic understanding of the concept.

"Man's house is his castle", the mentioned saying implies about inherited "Right to privacy" in human being. Every human being has certain confidential and surreptitious part of their life, which can't be divulged at public domain. This right to privacy has gained momentum throughout the world and it has been recognized as a fundamental right to privacy. The deliberation on right to privacy commenced after the "Warren and Brandies" debate on right to privacy and this debate will be further elucidated in the research paper. Countries such as USA, UK, India, and international organizations such as UDHR, ICCPR, ECHR, have given valid recognition to right to privacy.

The constitution of India has not guaranteed the right to privacy as an explicit fundamental right to the citizens but nevertheless, the Supreme Court has construed the right to privacy as a part of life and personal liberty under article 21 of the Indian constitution and this right to privacy conundrum has been unraveled by the Indian judiciary in the recent judicial pronouncement in the case ofJustice K.S Putthaswamy v. Union of Indiawherein right to privacy has been recognized as fundamental right.[2]Article 21 of the Indian constitution deals with right to life and personal liberty and justice Khanna has stated that human existence is not mere animal existence, every person deserves to live a dignified life and term privacy is the utmost significant factor regarding enjoyment of life.

Right to privacy has travelled a prolonged journey in order to attain the status of fundamental right in Indian constitution. There are abundance of cases dealing with acceptance and denial of this right henceforth all the aforesaid points will be elaborated further in order to have a categorical understanding about the evolution of "right to privacy" within Indian domain and the contribution of USA privacy laws since Indian judiciary heavily relied upon the American laws for providing unequivocal adjudication of privacy matters.

"Right to be forgotten" is another area that falls under the ambit of right to privacy. The development in the technology is the reason behind initiation of such right in Indian constitution and we all know that internet is accessible by everyone and certain sensitive and vulnerable information might be jeopardizing in nature, therefore it is necessary to protect such right.

Evolution of Right To Privacy In United States of America

In order to have a categorical understanding of right to privacy in Indian constitution, it is indispensable to have a thorough knowledge about USA Privacy laws since Indian judiciary relied upon those laws for the interpretation of private matters. "Warren and Brandies" discussion was a commencement of deliberation on inalienable right of privacy in USA. The constitution of USA mentions about plenty of inalienable rights including the right to liberty and pursuit of happiness and these rights should be protected by statutes, rules and regulations by the government but privacy laws were lacking in USA and then warren and brandies mentioned about application of common laws for the protection of these rights in order to protect the privacy of an individual. The help of common laws was obtained because common laws contained the right to be free from the harassment and exposure and it was the only available remedy for protection of private matters. Right to privacy was subject to the explicit right to free speech and it was unequivocally mentioned in the first amendment of bill of rights, so from this point the inference can be drawn that right to privacy was an implicit one USA constitution.[3]

Warren and Brandies contentions were mainly concentrating upon protection of privacy from technological advancement and the advent of photography. Unauthorized Publication of individual portrays and photographs in the newspaper was an invasion into the privacy of an individuals and a suit was brought by an avid writer in the New York court of appeal regarding violation of privacy and the question was raised about dearth of laws that could provide protection to the privacy of an individual from unauthorized publication of instantaneous photos.[4]This legal action brought awareness regarding safeguarding of right to privacy in American system.

The discussion of warren and brandies on right to privacy explained the actions that fall under the ambit of privacy invasion, and those actions are following;
1.Intrusion into one's private life and affair;
2.Public disclosure of embarrassing private facts;
3.Unwanted publicity of private individuals;
4.Misappropriation of a name or likeness for financial advantage.[5]

The aforesaid points have specifically explicated the category of actions that could infringe right to privacy. Apart from indentifying the actions that could hamper privacy of an individual, they set forth the remedies as well and that was true basis of privacy. Warren and Brandies propounded certain remedial mechanisms with respect to publication of one's private affairs with certain exceptions.
1.Privileged communications are the domain of libel/slander;
2.Speaking gossip and oral communication are outside the purview of privacy rights;
3.Consent to publication is an outright defense; while
4.Truth; and
5.Malice are irrelevant to a breach of privacy action.

Through the aid of above mentioned discussion, we all would have understood the rudimentary idea behind creation and beginning journey of right to privacy within American constitution.

Thorough Study of Right To Privacy In American Constitution

The discussion on right to privacy was initiated by warren & brandies and after several years the privacy right started evolving and in order to attain clear picture of privacy, it is essential to substantiate through the help of numerous case laws pronounced by US Courts.

In the case of Griswold v. Connecticut[6],the supreme court of US held that forbidding use of contraceptives by the state intrudes in constitutional right to marital privacy. Justice Douglas for the majority held that right to privacy has emanated from penumbras of American bill of rights.

In Roe v. Wade[7],the supreme court was dealing with constitutionality of Texas abortion laws and held that American constitution doesn't have explicit right to privacy and in the light of numerous rendered decision of US courts, right to personal privacy or guarantee of certain areas or zones of privacy can be said to be existing under the constitution. The court found that right to privacy is included in 14thamendment of US constitution which deals with right to personal liberty and restriction against state action and court concluded by stating that mentioned right to personal privacy in broad enough and encompasses women's right to take decision with respect to her decision on termination of pregnancy.[8]

In Loving v. Virginia[9]The United States Supreme Court, Mr. Chief Justice Warren, held that miscegenation statutes adopted byVirginiato prevent marriages between persons solely on basis of racial classification violate equal protection and due process clauses of Fourteenth Amendment.

In Eisenstadt v. William Baird[10]The Supreme Court, Mr. Justice Brennan, held that Massachusetts statute permitting married persons to obtain contraceptives to prevent pregnancy but prohibiting distribution of contraceptives to single persons for that purpose violates equal protection clause.

InLawrence v. Texas[11],held that Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct was unconstitutional, as applied to adult males who had engaged in consensual act of sodomy in privacy of home. The mentioned Texas statute was violating right to privacy. The court added the observation and stated that it is the liberty of a person to abstain from unwarranted intrusion by the government into dwelling or other private places.

Indian Aspect of Right To Privacy

Fundamental rights are basic rights inherent in human being and such rights should be entrusted to every citizen of the country along with proper remedial mechanisms. "Right to privacy" has travelled a prolonged journey for the obtainment of status of fundamental right under Indian constitution and how this privacy right attained the status of fundamental right then elucidation of certain prominent case laws is mandatory for substantiating the discussion and for providing a clear and unambiguous idea about right to privacy.

Right to privacy was derived from "protection of life and personal liberty" enshrined under article 21 of the Indian constitution and the discussion on case laws is essential for better understanding of this utmost significant right in the present scenario. In the case Kharak Singh v. State of Uttar Pradesh[12],where the appellant was being harassed by police under regulation 236(b) of the UP regulation, which permits for domiciliary, visits at night. The supreme court held that the regulation 236 is unconstitutional and violative of article 21. The court concluded by saying that article 21 of the constitution to include "right to privacy" as a part of right to "protection of life and personal liberty". Justice Subba Rao equated personal liberty with privacy and he observed that concept of liberty in article 21 was comprehensive enough to include privacy and that a person's house, where he lives with his family is his castle and that nothing is more deleterious to a man's physical happiness and health than a calculated interference with his right to privacy.

In the case of Govind v. State of Madhya Pradesh[13],the court observed that domiciliary visits by the police should be reduced to the clearest cases of danger to the community security and not routine follow up at the end of a conviction or release from prison or at whim of a police officer. In truth legality apart, these regulations ill-record with the essence of personal freedoms and the state will do well to revise these old police regulations verging perilously near unconstitutionality.

In the case of State v. Charulata Joshi[14],the supreme court held that the constitutional right to freedom of speech and expression conferred by article 19(1)(a) of the constitution which includes the freedom of press is not an absolute right. The press must first obtain the willingness of a person sought to be interviewed and no court can pass any order if the person to be interviewed expresses his unwillingness.

In the case of R. Rajgopal v. State of T.N.[15],Justice B.P. Jeevan Reddy observed that right to privacy is implicit in right to life and personal liberty and it is a "right to be let alone". A citizen has right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise or laudatory or critical and if he does so, he will be violating the right to privacy.

The above mentioned rule is subject to an exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon the public records. This is for the reason that once a matter becomes a matter of a public record, the right to privacy no longer subsists and it becomes legitimate subject for the comment by press and media among others.[16]

In People's Union for Civil Liberties v. Union of India[17],The court held that telephone tapping by the government under telegraph act amounts to violation of article 21 and once the mentioned facts in a given case attracts the facet of privacy, article 21 can be invoked since privacy is a part of right to life and personal liberty and this right can be deprived of only by the procedure established by law.

Right to privacy is not mentioned in the Indian constitution but the roots of the privacy can be traced under article 21 and telephonic conversation is a part of confidential information and tapping such private communications is a contravention of right to privacy and this right can be taken away only by the procedure established by law.[18]

Right to privacy is a broader concept and it consists of several dimensions of right to life and personal liberties, yet another dimension was added in right to privacy in the case of Mr. X v. Hospital Z [19],where the appellant's blood was to transfused to another but he was tested HIV(+) at the respondent's hospital and on the account of such information, appellant's marriage was called off and moreover he was severally castigated in the society. The appellant approached the Supreme Court and contended that the principle of "duty of care" includes the duty to maintain the confidential information between the patient and the doctor and such duty of care had correlative right vested in the patient and whatsoever confidential information comes to the knowledge of the doctor, will not be divulged at public domain. The appellant added his contention by saying that respondent has violated the duty of care as well as right to privacy of the appellant, hence liable to pay damages.

The supreme court rejected the contention of appellant and held that right of privacy may arise out of a particular specific relationship, which may be matrimonial, commercial and political as well. Doctor-patient relationship, though basically commercial yet a matter of confidence and therefore doctors are orally and ethically responsible to maintain the confidentiality of such existing relationship. In such situation, revelation of confidential information will result in invasion in privacy right which may sometimes clash with another person's right to be informed. This right however is not absolute and may be lawfully restricted for the prevention of crime, disorder, health, morals and rights of others.[20]

The utmost important observation which was observed in the aforesaid case, wherein the court held pronounced that where there is a clash between 2 fundamental rights, as in this case, right to privacy of an appellant and right to lead a healthy life of another party which is also a fundamental right. In such situation right which is of public interest and morality will alone be enforced.[21]

In Sharda v. Dharmpal[22],the supreme court held that right to privacy is not an absolute right and whenever there is clash between 2 fundamental rights, the right which advances public interest and morality will prevail.
In State of Maharashtra v. Madhukar Narayan Mardikar[23],the court protected the right to privacy of a prostitute. It was held that even a women of easy virtue is entitled to her privacy and no one can invade her privacy.

In Malak Singh v. State of Punjab and Haryana[24],Wherein the application was filed by the applicant for removing his name from the surveillance register maintained by the Punjab police rules and supreme court held that surveillance should be conducted as per rules enshrined therein.

The supreme court has elaborated the concept of privacy in the case of Ram Jethmalani v. Union of India[25],wherein it was held that " Right to privacy is an integral part of right to life. This is a cherished constitutional value, and it is important than human beings should be allowed domains of freedom that are free of public scrutiny unless they act in an unlawful manner. The solution for the problem of abrogation of one zone of constitutional values can't be the creation of another zone of abrogation of constitutional values, the notion of fundamental rights, such as a right to privacy is a part of right to life, is not merely that the state is enjoined from derogating form them against the actions of others in the society, even in the context of exercise of fundamental rights by those others."

Right to privacy took completely different turn during "Aadhaar case" and the question was raised about fundamental status of right to privacy in Indian constitution. In this case , a scheme propounded by the government of India popularly known as "Aadhaar Card Scheme" and under this scheme government was accumulating the personal information related with biometric and demographic data and such confidential information was about to be used for various beneficial purposes provided by the government.

This scheme was challenged through bunch of petitions and it was contended that collection of private information of individuals, is a violation of right to privacy since government had all personal information of every citizen of this country and there was a suspicion about misuse of such covert information by the government. This case attained immense attention because of raising the significant question about the fundamental status of right to privacy.

The nine-judge bench of the Supreme Court has unanimously delivered its judgment in Justice K.S. Puttaswamy (Retd.) v. Union of India holding that privacy is a constitutionally protected right which not only emerges from the guarantee of life and personal liberty in Article 21 of the constitution, but also arises in varying contexts from the other facets of freedom and dignity recognized and guaranteed by the fundamental rights contained in Part III of the Indian constitution.[26]

Judgment can be concluded by mentioning that "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. Privacy safeguards individual autonomy and recognizes the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognizes the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being."[27]

Right To Be Forgotten
The concept of right to be forgotten which is also known as right to delist or right to erasure is on verge of evolution in Indian Constitution. This right is presumed as a part of right to privacy and deliberation is taking place in legislature about creation of such right because people are being cautious about their data protection and personal information which is being shared in public platform.

The etymological background of such right can be traced back in French Jurisprudence where this right used to be known as right to oblivion, and this right was utilized by the offenders, who had served their sentence, to object the publication of their conviction or about the wrong committed by them in order to protect reputation among the society members.

According to this right, any person can ask from search engines like Google, Yahoo or Bing to remove their personal information permanently in order to protect their right to privacy. The commencement of such right took place in European Union and Argentina and it has been in practice since 2006 and this right consists of lawful removal of personal information from online platforms if such request is made by someone and reason behind evolution of such right was that a person should not be further victimized in future for the action executed in the past.

The inception of right to be forgotten in India can be found in the judgement delivered by Karnataka High Court and later on even the Kerala high court recognized such right. In order to have categorical understanding of right to be forgotten, we need to go through the journey of such right so far and the elaboration will be discussed below to have clear understanding of right to be forgotten in Indian context.

The Journey of Right to be forgotten initiated from the landmark decision delivered by Karnataka High Court in the case of Sri Vasunathan v. Registrar General,[28]wherein the father of a girl was asking for the removal of his daughter's name from the copy of the order and he was requesting for an instruction from the high court to give direction to search engines about not mentioning his daughter's name in that order. The petitioner was contending about infringement of his right to privacy because personal information about his daughter on public platform could jeopardize her reputation in the society due to her indulgence in past criminal cases.

The Karnataka high court upheld the women's right to be forgotten and Justice Bypa reddy stated his opinion that, This is in line with the trend in western countries of the ‘right to be forgotten' in sensitive cases involving women in general and highly sensitive cases involving rape or affecting the modesty and reputation of the person concerned."

The Kerala High Court upheld the decision in favor of right to be forgotten. In this case writ petition was filed for the violation of right to privacy and petitioner was asking for the removal of personal information from the search engines in order to protect their identity and failure of Indian Kannon in appearance before the court and seriousness of the issue forced the judges to pass the judgement in favor of right to be forgotten and court ordered Indian Kannon to remove the available personal information of the petitioner.

The Gujarat High Court delivered an entirely different judgement in the context of right to be forgotten and unequivocally denied about the existence of such right. In the case Dharmaraj Bhanushankar Dev. State of Gujarat & Ors.[29]Wherein the petitioner claimed against the publication of a non-reportable judgement by Indian Kannon which was being shown by Google in its search results, and petitioner claimed for the violation of right to privacy under article 21 of the constitution. The court observed that a mere publication of a non-reportable judgement on search engines will not violate right to privacy since there is no legal basis to claim for the enforcement of such right.

In the case of Laksh Vir Singh Yadav v. Union of India, the petitioner asked for the creation of right to be forgotten and his plea was to remove publicly reported court judgements from online platforms. His contention was to remove a criminal case involving his wife and mother by indicating that such information is affecting his employment opportunities and is affecting his right to privacy. This petition is still pending before the Delhi High Court.[30]

We all are aware of the fact that right to be forgotten is not enumerated anywhere neither in constitution nor in any statutes and the most important point should be discussed while debating on creation of such right, that right to be forgotten should be in consonance with right to freedom of speech and expression because removing information from public platform might hamper the right to information and expression. Therefore giving equal importance to both right will be applauded and accepted without having any confusion about it.[31]

The inference can be drawn from the above mentioned discussion that India relied upon the USA constitution for the interpretation of right to privacy within Indian sphere therefore it can be uttered that American constitution has played pivotal and significant role in molding of right to privacy in accurate shape. It was always observed that right to privacy is derived from right to life and personal liberty and the recent judicial precedent about recognition of fundamental status of right to privacy has provided a constitutional protection to private and confidential information and violation of said right will result in stringent legal action against the infringer. The purpose behind establishment of right to privacy is with respect to protection of personal information shared on digital platform and since India doesn't have privacy law as such, fundamental status of privacy will protect this right from being contravened by others. Right to privacy which was pronounced as "right to be let alone" by Justice Subba Rao while dissenting the majority judgement in the case ofKharak Singh v. State of U.P.[32],has finally obtained the correct place in the Indian constitution after various discussions and deliberations took place in numerous cases which dealt with various aspect of right to privacy in Indian constitution.
Therefore the effort of apex court should be commended because providing the fundamental status was a daunting task and despite plenty of protest and problems, the supreme court succeeded in giving the right space to the right to privacy and now a confidential and covert information of private individuals will be under the protection and unauthorized intrusion in private matters will result in rigid punishment.

[1]Fourth Year, BBA, LL.B, VIT School of Law, VIT University, Chennai Campus, [email protected]
[6]381 U.S. 479, 1965
[7]410 U.S. 113 (1973)
[9]388 U.S. 1 (1967)
[10]405 U.S. 438 (1972
[11]539 U.S. 558.2003
[12]AIR 1963 SC 1295
[13](1975) 2 SCC 148
[14](1999) 4 SCC 65 see also Prabha Dutt v. Union of India, AIR 1982 SC 6 Sheela Barse v. State of Maharashtra,(1987) 4 SCC 373
[15]AIR 1995 SC 264:
[17](1997) 1 SCC 301
[19](1998) 8 SCC 296
[22](2003) 4 SCC 493
[23](1991) 1 SCC 57:
[24](1981) 1 SCC 420
[25](2011) 8 SCC 1
[29].SCA No. 1854 of 2015
[32]Supra, footnote 11

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