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Right To Privacy Post Puttaswamy: Still Illusory

The right to privacy is recognized as a basic human rights under Article 12 of the Universal Declaration of Human Rights Act, 1948, which reads thus:

"No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attack upon his honour and reputation."

More than 150 nations across the globe have specific mandate to the right to privacy in their respective Constitutions. However, when our Constitution was adopted in early 1950, the Constitution makers did not think it imperative to have a specific Article which guarantees Right to Privacy to the citizens. The Apex Court in a catena of judgments categorically held that Right to Privacy is not a fundamental right guaranteed by the Constitution of our country.

Right to Privacy is important for the protection of human dignity and is one of the important pillars of a democratic country. Right to Privacy is not just about privacy of human body but it extends to integrity, personal autonomy, data, speech, consent, objections, movements, thoughts, and reputation of an individual. All modern societies recognise that privacy is essential not only for humanitarian reasons but also from a legal point of view.

According to Merriam-Webster Legal Dictionary the right of privacy has been defined as:
"The right of a person to be free from intrusion into or publicity concerning matters of a personal nature." According to Black's Law Dictionary, right to privacy has been defined as "right to be let alone; the right of a person to be free from any unwarranted publicity; the right to live without any unwarranted interference by the public in matters with which the public is not necessarily concerned".

The scope of Right to privacy was dealt with in the case of R. Rajagopal vs State of T.N 1994 SCC (6) 632 and the Apex Court concluded thus
  1. The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone". A citizen has a 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 and whether laudatory or critical.

    If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.
  2. The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others.

    We are, however, of the opinion that in the interests of decency (Article 19(2)) an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised in press/media."

As early as in 1954, an eight member Constitution Bench of the Apex Court in M. P. Sharma & others vs. Satish Chandra, District Magistrate, Delhi & others 1954 AIR 300, 1954 SCR 1077 repelled the plea of fundamental right to privacy and held thus:

A power of search and seizure is in any system of jurisprudence in 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 American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction. Nor is it legitimate to assume that the constitutional protection under article 20(3) would be defeated by the statutory provisions for searches.

Again in 1964, a six member Constitution Bench of the Apex Court in Kharak Singh vs. State of Uttar Pradesh (1964) 1 SCR 332 reiterated that the right to privacy is not a guaranteed right under the Constitution and held thus:

Having given the matter our best consideration we are clearly of the opinion that the freedom guaranteed by Art. 19 (1) (d) is not infringed by a watch being kept over the movements of the suspect. Nor do we consider that Art. 21 has any relevance in the context as was sought to be suggested by learned Counsel for the petitioner. As already pointed out, 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.

However, with advancement of law pertaining to human rights, there were dissenting judgments by smaller benches of the Apex Court and the right to privacy was gradually being recognised. To resolve the controversy, the matter was referred to a Nine Judge Constitution Bench of the Apex Court to reconsider the correctness of the dictum of M. P. Sharma & others vs Satish Chandra, District Magistrate, Delhi & others (supra) & Kharak Singh vs. State of Uttar Pradesh (supra).

The Court made detailed hearing of the matter in the case of Justice K.S. Puttaswamy (Retd.) and Another v. Union of India and Others, (2017) 10 SCC 1 and unanimously acknowledged the existence of Right to Privacy as an extension of the fundamental rights enshrined under Articles 19 and 21 of the Constitution and as an element of human dignity. The said judgment has given a new perspective to the Right to Privacy of the citizens. The Court after elaborate discussion & analysis of all the various judgments passed by the Apex Court earlier concluded thus:

83. Let the right of privacy, an inherent right, be unequivocally a fundamental right embedded in part-III of the Constitution of India, but subject to the restrictions specified, relatable to that part. This is the call of today. The old order changeth yielding place to new."

The Court disposed the reference thus:
The reference is disposed of in the following terms:
  1. The decision in M P Sharma which holds that the right to privacy is not protected by the Constitution stands over-ruled;
  2. The decision in Kharak Singh to the extent that it holds that the right to privacy is not protected by the Constitution stands over-ruled;
  3. The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.
  4. Decisions subsequent to Kharak Singh which have enunciated the position in (iii) above lay down the correct position in law.

However, the ground reality remains that with the advent of virtual intelligence, the details of every citizen are on public domain and can be scrutinized. With our Government's endeavor to bring in transperancy, all details are available on the click of the computer. With global surveillance through satellites and IT tools, the intelligence agencies can access and analyse virtually every detail of an individual's life. It cannot be denied that in view of national security & threats of terrorism our personal privacy is being eroded. Social networking, whatsApp, Facebook, Twitter, Instagram etc. are considerably denting the invaluable Right to Privacy.

It is true that post Puttaswamy, a citizen can move to the Court on violation of his fundamental right to privacy. But has there been a seesaw change in the thinking & working of the executive post Puttaswamy? Is right to privacy a ground reality for our citizens or is it an illusory right just to embellish the law books. Has the working of our police, wherein our Right to Liberty and Right to Privacy are being violated, changed with the pronouncement of Puttaswamy's judgment?

The Government, the Parliament and the Apex Court should devise new legislation/methodology to balance the right to privacy and freedom of expression. Data, which is a precious resource in the digital era should not be left unregulated.

Privacy rights are necessarily subject to rational limitations for the protection of crimes, morality, human rights, national security and tirade against terrorism. However, post Puttaswamy a marked difference looked imperative in the attitude of law enforcement authorities, Courts, Press and the general public at large but it is a matter of grave concern that nothing noticeable has happened in the Five years post the Puttaswamy landmark judgment. It is also astonishing that to the best of my knowledge, in only 5 reported matters the bench of the High Court/Apex Court has just cited Puttaswamy case in the last 5 years and therefore it would be futile to expect a paradigm change in the scenario concerning Right to Privacy post Puttaswamy.

No marked difference in the pre & post Puttaswamy is visible. In-fact, in the post Puttaswamy period, the Media Trials, abusive TV debates on contemptuous topics, rising police interference, controversial social media chats, data leakages at different levels & derogatory comments by politicians regarding their opponents have further violated the right to privacy. Probably, greater awareness of the dictum of Puttaswamy is required so that the common man, executive & Press has elaborate knowledge of the enlarged Right to Privacy so that it could be respectfully honoured in consonance with the dictum of the apex court.

Written By: Inder Chand Jain
Email: [email protected], Ph no: 8279945021

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