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
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.
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.
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".
The country has its own 'Privacy Act' which came into being around 1988. It
governs the handling of personal information of individuals.
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
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
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.
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
The Personal Information Protection and Electronic Documents Act governs the
collection and usage of personal information.
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
(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
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
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:
- very few people are affected by the right to privacy
- Privacy was rejected as a fundamental right in constitutional debates
- The statutory protection to privacy exists, and hence there is no need to
make it a constitutional right
- Privacy is still an elitist construct
- Privacy is common law right, not a fundamental right
- 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.
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
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,
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.
There are various reasons to have right to privacy some of the there are as
- 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.
- 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.”
- 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
- 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
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.
- 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
- 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.
- 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
- 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
- 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.
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
- Other fundamental rights: The right to privacy must be considered in
relation to its function in society and be balanced against other
- Legitimate national security interest
- Public interest including scientific or historical research purposes or
- Criminal Offences: the need of the competent authorities for prevention
investigation, prosecution of criminal offences including safeguards against
threat to public security;
- 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
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;
- 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.