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Right To Privacy Its Sanctity In India

Privacy is very important for every citizen who are living in any part of the world. Privacy is an important part of life. Privacy simply means the state of being alone, or the right to keep one's personal matter and relationships secret. It is a natural right and it cannot be separated from the human being.

Privacy has different meaning according to the prospective of people. In other words it means that the person does not want to share personal information. There is difference between privacy and secrecy. Secrecy means hiding something from the world or the state of being kept secret. Before understanding the right to privacy sanctity in India it is important to know what is privacy and its origin an acceptance in other countries.

The Greek philosopher Aristotle spoke of a division between the public sphere of political affairs (which he termed the polis) and the personal sphere of human life (termed oikos.)William Blackstone in his commentaries on the law of England (1765) spoke about this distinction while dividing wrong into public wrongs and private wrongs.[1]

Privacy is interpreted differently in many different countries. In western countries, particularly the UK and the USA it is seen as protection against the invasion of one's privacy by the government, companies and other individuals. Some countries have incorporated these rights into their privacy laws and constitutions. Many countries have laws which limit privacy such as in the case of taxation law, which requires individuals to share their personal information regarding earnings and income with government. In some countries freedom of speech may be in conflict with individual privacy laws and in particular where some laws require public disclosure of matters which other countries and cultures consider to be private

The evolution of a right to privacy parallels the development of the humanist tradition. A right of privacy is predicated on the belief that each human being has intrinsic value, that is, is valuable in and of him or herself. Respect for this belief becomes the fundamental source of all human rights.[2]

In 1859, John Stuart in his essay “On Liberty” gave expression to the need to preserve a zone within which the liberty of the citizen would be free from the authority of the state. In late 1890, Samuel D Warren and Louis Brandeis stipulated the need of right to enjoy life which included ‘right to be alone'. The right “to be let alone” thus represented a manifestation of “an inviolate personality”, a core of freedom and liberty from which the human being had to be free from intrusion. It justified the need of being left alone with the early developments in technology, photography, and news paperization.

The intention behind it introduction of such a principle was to protect personal writings and personal productions, not only from theft and physical appropriation but against publication in any form which might not be consensual in nature. Hence, at the time when development and technology change started threatening the individual in public gaze, many eminent jurists regarded the right to be let alone as an added chapter in the law of privacy.[3]

Following are the countries in which right to privacy prevail-
United States Of America
The world's oldest democracy, USA has not exactly mentioned the word 'privacy' in its Constitution. However, the Fourth Amendment to the Constitution is largely seen as the clause protecting that right. The amendment The Fourth Amendment states "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized".

Australia
The country has its own 'Privacy Act' which came into being around 1988. It governs the handling of personal information of individuals.

Japan
In 2015, Japan adopted a system of citizen identification which united personal tax information, social security and disaster relief benefits. It was launched amid protests by critics who were worried by the privacy concerns it posed. The law gave all Japanese citizens and foreign residents a 12 digit My Number. The aim was to make administration more systematic and social welfare benefits more efficient, while also helping to cut down on tax evasion and benefit fraud.

The government will eventually extend the system to bank accounts, as well, to keep track of of people's assets for taxation purposes. It will first be voluntary from 2018 but could become mandatory by 2021. Japanese law in itself does not explicitly provide for a right to privacy. But the right is read into Article 13 of the Japanese Constitution which provides for the right to "life, liberty, and the pursuit of happiness" and for the right for people to be "respected as individuals".

Europe
Member countries of the European Union (EU) adopted the EU Data Protection Directive in 1995 which looks at protection of personal data and regulates free movement of such data. However, come 2018, the European Commission has said that it will be rolling out a new set of rules on data protection. The new rules, the Commission cites, will give citizens lawful control over their personal data. Also important to note is Article 8 of the European Convention of Human Rights (ECHR).

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others, it says.

Brazil
The country's Constitution states:
"The intimacy, private life, honor and image of the people are inviolable, with assured right to indenization by material or moral damage resulting from its violation."

Canada
The Personal Information Protection and Electronic Documents Act governs the collection and usage of personal information.[4]

Golden Trilogy Of Cases On Privacy
Early developments in the history of privacy saw two landmark judgments – the 8-judge bench decision in M.P. Sharma v. Satish Chandra (1954 SCR 1077) and the 6-judge bench decision in Kharak Singh v. The State of U.P. (1964 (1) SCR 332 ). In M.P. Sharma, the process of search and seizure was challenged as it violated Article 20(3) of the Constitution of India. In Kharak Singh, the court dealt with UP Police Regulations which provided for secret picketing, domiciliary visits, periodical inquiries, reporting of movements and collection of records of history-sheeters, violating Article 21 of Constitution of India.

In both the cases, the court dismissed the existence of the fundamental right to privacy envisaged in the constitution.

However, it shall be noted that in both the cases the petitioner's arguments relied on the A. K. Gopalan Case which enumerated that Article 19 and Article 21 are mutually exclusive. The case has been overruled and considered bad in law after the landmark R. C. Cooper Case ((1978) 1 SCC 248) in which the court discarded the theory that fundamental rights are water-tight compartments. Hence, by virtue of this, principles enumerated in Kharak Singh and M. P Sharma should also be overruled.

This was also re-strengthened by Maneka Gandhi v. Union of India (1970) 1 SCC 248), in which court ruled that enumeration in Article 19 does not deprive Article 21 of its expansive ambit. While analyzing the discordant view in the ADM Jabalpur case, the court held that the constitution is not the sole repository of life and liberty. Even if the rights were not granted under Article 21, the state would not be permitted to suspend such rights. For example, as under the 44th Amendment, Article 359, even in an emergency, the power to move to the court for enforcement of rights shall not be suspended for Article 20 and 21.

Later Developments On Privacy In India
Later, three judgments saw and acknowledged privacy as a constitutionally protected fundamental right, namely, Gobind v. State of Madhya Pradesh (1975 2 SCC 14), PUCL v. Union of India (telephone tapping case) and R. Rajagopal v. State of Tamil Nadu ((1994) 6 SCC 632)(Court dealt with a conflict between the freedom of the press and the right to privacy). However, all three judgments were of smaller benches and left the stakeholders in dilemma with regards to interpretation of Privacy under Article 21 of the constitution of India or not. In Rajagopal Case the court held that the right to privacy has two aspects: the first affords an action in tort in damages for the unlawful invasion of privacy, and the second is a constitutional right.

In the Puttaswamy case the arguments before the courts (Respondent) were:
  1. very few people are affected by the right to privacy
  2. Privacy was rejected as a fundamental right in constitutional debates
  3. The statutory protection to privacy exists, and hence there is no need to make it a constitutional right
  4. Privacy is still an elitist construct
  5. Privacy is common law right, not a fundamental right
  6. Substantive due process is not granted in the Indian Constitution and [G] Privacy is civil liberty, not a” personal liberty” as in Article 21.

However, petitioner's arguments on the same were that privacy is a natural and inalienable right, individuals have right to informational privacy, privacy is a concern against the state and non-state actors and privacy have always been legislatively recognized in India vide section 5, Indian Telegraph Act of 1885; Section 26,Indian Post Office Act 1898 and Section 8(1)(i) of Right to Information Bill, 2011 to much later, Privacy Bill,2011.[5]

In the Indian context, a fundamental right to privacy would cover at least the following three aspects:

  • Privacy that involves the person i.e. when there is some invasion by the State of a person's rights relatable to his physical body, such as the right to move freely;
  • Informational privacy which does not deal with a person's body but deals with a person's mind, and therefore recognizes that an individual may have control over the dissemination of material that is personal to him. Unauthorised use of such information may, therefore lead to infringement of this right; and
  • The privacy of choice, which protects an individual's autonomy over fundamental personal choices.

For instance, we can ground physical privacy or privacy relating to the body in Articles 19(1)(d) and (e) read with Article 21; ground personal information privacy under Article 21; and the
privacy of choice in Articles 19(1)(a) to (c), 20(3), 21 and 25. The argument based on ‘privacy' being a vague and nebulous concept need not, therefore, detain us.

We have been referred to the Preamble of the Constitution, which can be said to reflect core constitutional values. The core value of the nation being democratic, for example, would be hollow unless persons in a democracy are able to develop fully in order to make informed choices for themselves which affect their daily lives and their choice of how they are to be governed.[6]

There are various reasons to have right to privacy some of the there are as follows:

  1. Limit on Power
    Privacy is a limit on government power, as well as the power of private sector companies. The more someone knows about us, the more power they can have over us. Personal data is used to make very important decisions in our lives. Personal data can be used to affect our reputations; and it can be used to influence our decisions and shape our behavior. It can be used as a tool to exercise control over us. And in the wrong hands, personal data can be used to cause us great harm.
  2. Respect for Individuals
    Privacy is about respecting individuals. If a person has a reasonable desire to keep something private, it is disrespectful to ignore that person's wishes without a compelling reason to do so. Of course, the desire for privacy can conflict with important values, so privacy may not always win out in the balance. Sometimes people's desires for privacy are just brushed aside because of a view that the harm in doing so is trivial. Even if this doesn't cause major injury, it demonstrates a lack of respect for that person. In a sense it is saying: “I care about my interests, but I don't care about yours.”
  3. Reputation Management
    Privacy enables people to manage their reputations. How we are judged by others affects our opportunities, friendships, and overall well-being. Although we can't have complete control over our reputations, we must have some ability to protect our reputations from being unfairly harmed. Protecting reputation depends on protecting against not only falsehoods but also certain truths. Knowing private details about people's lives doesn't necessarily lead to more accurate judgment about people. People judge badly, they judge in haste, they judge out of context, they judge without hearing the whole story, and they judge with hypocrisy. Privacy helps people protect themselves from these troublesome judgments.
  4. Maintaining Appropriate Social Boundaries
    People establish boundaries from others in society. These boundaries are both physical and informational. We need places of solitude to retreat to, places where we are free of the gaze of others in order to relax and feel at ease. We also establish informational boundaries, and we have an elaborate set of these boundaries for the many different relationships we have. Privacy helps people manage these boundaries. Breaches of these boundaries can create awkward social situations and damage our relationships. Privacy is also helpful to reduce the social friction we encounter in life. Most people don't want everybody to know everything about them – hence the phrase “none of your business.” And sometimes we don't want to know everything about other people — hence the phrase “too much information.”
  5. Trust
    In relationships, whether personal, professional, governmental, or commercial, we depend upon trusting the other party. Breaches of confidentiality are breaches of that trust. In professional relationships such as our relationships with doctors and lawyers, this trust is key to maintaining candor in the relationship. Likewise, we trust other people we interact with as well as the companies we do business with. When trust is breached in one relationship, that could make us more reluctant to trust in other relationships.
  6. Control Over One's Life
    Personal data is essential to so many decisions made about us, from whether we get a loan, a license or a job to our personal and professional reputations. Personal data is used to determine whether we are investigated by the government, or searched at the airport, or denied the ability to fly. Indeed, personal data affects nearly everything, including what messages and content we see on the Internet. Without having knowledge of what data is being used, how it is being used, the ability to correct and amend it, we are virtually helpless in today's world. Moreover, we are helpless without the ability to have a say in how our data is used or the ability to object and have legitimate grievances be heard when data uses can harm us. One of the hallmarks of freedom is having autonomy and control over our lives, and we can't have that if so many important decisions about us are being made in secret without our awareness or participation.
  7. Freedom of Thought and Speech
    Privacy is key to freedom of thought. A watchful eye over everything we read or watch can chill us from exploring ideas outside the mainstream. Privacy is also key to protecting speaking unpopular messages. And privacy doesn't just protect fringe activities. We may want to criticize people we know to others yet not share that criticism with the world. A person might want to explore ideas that their family or friends or colleagues dislike.
  8. Freedom of Social and Political Activities
    Privacy helps protect our ability to associate with other people and engage in political activity. A key component of freedom of political association is the ability to do so with privacy if one chooses. We protect privacy at the ballot because of the concern that failing to do so would chill people's voting their true conscience. Privacy of the associations and activities that lead up to going to the voting booth matters as well, because this is how we form and discuss our political beliefs. The watchful eye can disrupt and unduly influence these activities.
  9. Ability to Change and Have Second Chances
    Many people are not static; they change and grow throughout their lives. There is a great value in the ability to have a second chance, to be able to move beyond a mistake, to be able to reinvent oneself. Privacy nurtures this ability. It allows people to grow and mature without being shackled with all the foolish things they might have done in the past. Certainly, not all misdeeds should be shielded, but some should be, because we want to encourage and facilitate growth and improvement.
  10. Not Having to Explain or Justify Oneself
    An important reason why privacy matters is not having to explain or justify oneself. We may do a lot of things which, if judged from afar by others lacking complete knowledge or understanding, may seem odd or embarrassing or worse. It can be a heavy burden if we constantly have to wonder how everything we do will be perceived by others and have to be at the ready to explain.[7]

There are some reasonable restriction on the right to privacy because this is intrinsic from the fundamental rights article 21.In Indian constitution all rights are not absolute.

The right to privacy as already observed is not absolute. The right to privacy as falling in part III of the Constitution may, depending on its variable facts, vest in one part or the other, and would thus be subject to the restrictions of exercise of that particular fundamental right. National security would thus be an obvious restriction, so would the provisos to different fundamental rights, dependent on where the right to privacy would arise.

The Public interest element would be another aspect.
It would be useful to turn to The European Union Regulation of 2016Restrictions of the right to privacy may be justifiable in the following circumstances subject to the principle of
proportionality:

  1. Other fundamental rights: The right to privacy must be considered in relation to its function in society and be balanced against other fundamental rights.
  2. Legitimate national security interest
  3. Public interest including scientific or historical research purposes or statistical purposes
  4. Criminal Offences: the need of the competent authorities for prevention investigation, prosecution of criminal offences including safeguards against threat to public security;
  5. The unidentifiable data: the information does not relate to identified or identifiable natural person but remains anonymous.

    The European Union Regulation of 2016 refers to pseudonymisation which means the processing of personal data in such a manner that the personal data can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organisational measures to ensure that the personal data are not attributed to an identified or identifiable natural person;
  6. The tax etc: the regulatory framework of tax and working of financial institutions, markets may require disclosure of private information. But then this would not entitle the disclosure of the information to all and sundry and there should be data protection rules according to the objectives of the processing. There may however, be processing which is compatible for the purposes for which it is initially collected.[8]

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