• Abhinav Agrawal

RIGHT TO PRIVACY: YOUR CONCERNS, YOUR RIGHTS, YOUR ACTIONS

Updated: Jan 11


This Article is written by Abhinav AgrawaI

Indian law is very flexible. It works according to the need of the society. Various changes in the political, economical, and social changes entail the recognition of rights in our country. Our constitution has given us various rights which do not possess an existence in words expressively, but Honorable Supreme court do observes them. As the common law enlarges itself it also tends to accommodate the growing needs of the people. By the time it has observed that not only physical security was required but also security of spiritual self as well as of feelings and intellect was required. Article 21 of the Indian constitution guarantee us Right to life and liberty and it recognize that Right to life also include Right to privacy.

Introduction

Before going further let us first understand what the word “Privacy” means. According to Black’s Law Dictionary “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”. It encompasses various rights where one have his personal space, where one is free on any social interaction, where one makes his own fundamental choices about himself, his family and his relationship with others, where one can took off a mask which it wore in front of public.

The concept of privacy in its broad sweep covers a number of prospects like nondisclosure of information, sexual affairs, business secrets and non observance by others. It may be said that the privacy is antithesis of being public, for e.g. if any private letters of any person are published by anyone without his express or implied permission then his privacy would come to be violated. Similarly if one’s neighbor peeps into in his house from outside then it would also constitute violation of his right to privacy. Thus privacy is a state of isolation and separation from others. Privacy in general means the right to be let alone.

Insights of privacy

Like everything mankind has ever achieved, there has been a positive and a negative side to it. Technology has invaded every part of our lives whether the invasion was desired or not, we cannot be sure whether what we say has been heard by a third party as well whether that was desired or not. The proverbial Hindi saying of even walls having ears has never rung truer.

: Suppose you are talking with someone on a telephone and you find that your phone call is being tapped by someone, how do you feel?

That is what exactly happens in Rayala M. Bhuvneswari v. Nagaphomender Rayal in this case where husband has tapped the telephone call of her wife with other as evidence to seek divorce with her. She denied some portion of the conversation. It was held that the act of tapping by the husband is the intrusion in the personal space of the wife was illegal and it is the violation of her fundamental right to privacy under Article 21 so it cannot be admissible as a evidence even if talks are true.

: We have one more interesting case what if you are succumbed with any infected diseases and you find that your spouse came to know about it which directly affects your marriage?

In the case of Mr. ‘X’ Vs. Hospital ‘Z’ a person was founded HIV(+) and such information is disclosed by the doctor to his prospective wife which results in the calling off marriage. The petitioner filed a suit claiming that his right to privacy has been infringed. It was held by the court that Ms. ‘Y’, with whom the marriage of the appellant was settled, was saved in time by the disclosure of the vital information that the appellant was HIV(+). The disease which is communicable would have been positively communicated to her immediately on the consummation of marriage. As a human being, Ms. ‘Y’ must also enjoy right to life and right to being informed, as she, obviously, is entitled to, all the Human Rights available to any other human being.

The court observes that Right to information of Ms. Y has the dominant effect as it concerns with the large public interest. So the petition of Ms. X gets dismissed.

Right to privacy in India

As already discussed Article 21 of the Constitution of India states that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. The right to life enshrined in Article 21 has been liberally interpreted so as to mean something more than mere survival and mere existence or animal existence. It therefore includes all those aspects of life which makes a man’s life more meaningful, complete and worth living and right to privacy is one such right. In Kharak Singh Case has correctly held that the content of the expression ‘life’ under Article 21 means not merely the right to a person’s “animal existence” and that the expression ‘personal liberty’ is a guarantee against invasion into the sanctity of a person’s home or an intrusion into personal security. Kharak Singh also correctly laid down that the dignity of the individual must lend content to the meaning of ‘personal liberty’. The first part of the decision in Kharak Singh which invalidated domiciliary visits at night on the ground that they violated ordered liberty is an implicit recognition of the right to privacy.

In our constitution under Article 19 we have right to move throughout the territory. What we forgot that the word “freely” is also attested with the phrase. Any kind of surveillance on the person over his or her movements can hinder its steps.

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.

Justice BN Srikrishna committe, has submitted its report on data protection

: Processing (collection, recording, analysis, disclosure, etc) of personal data should be done only for “clear, specific and lawful” purposes. Only that data which is necessary for such processing is to be collected from anyone.

: Personal data may be processed by the central and state government if necessary for the function of the government. It allows processing of personal data for prevention of offense and ‘contravention of law’.

: Committee suggest the Right to be forgotten which means that once the purpose of using the personal data has ended it must be restrict or prevent any display of the personal data.

: Personal data will need to be stored on servers located within India, and transfers outside the country will need to be subject to safeguards. Critical personal data, however, will only be processed in India.

: The committee recommended that “sensitive” personal data (such as passwords, financial data, sexual orientation, biometric data, religion or caste) should not be processed unless someone gives explicit consent– which factors in the purpose of processing.

: The committee recommended that the amendment amend Section 8(1)(j) of the RTI Act that pertains to the disclosure of personal information in the larger public interest. The old Section 8(1)(j) said there would be no obligation to reveal personal information which was not related to “public authority or interest”, or would be an invasion of privacy.

A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education among other matters. No one 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 of the person concerned and would be liable in an action for damages. However, position may be differed if he voluntarily puts into controversy or voluntarily invites or raised a controversy.

Current Scenario in our country.

Today, what concerns us is the data privacy infringement. At present, the movement of individuals is subject to permits in various parts of the world, including India. Our data protection bill is still being deliberated but in view of the lockdown that has increased usage of the internet in the country we need to be careful about breach of data,” We want to be particularly cautious about data that maybe getting stored in other countries servers .

India does not have a data privacy law but a personal data protection bill is pending before the Lok Sabha. It is the country’s first attempt at regulating how personal digital data of citizens can be used by the government, enforcement agencies and companies and seeks to provide an iron clad system against any violation. The current level of data protection in India is considered lax and inadequate.

Conclusion

Technological advancement has lead the privacy considerably vulnerable to intrusion by the State as well as non state actors. New technologies and practices are constantly challenging privacy. It enables routine sharing of personal data and sensitive information (including biometrics and DNA makeup). We need to understand that right to privacy is not an absolute right there are just, fair and reasonable restrictions can be put up by the legislature, executive and judiciary. We need to be vigilant toward with whom we are sharing our personal information; if any authority mandates us to give any kind of sensitive information whether it is passed through the proper legislation or not. It may be hoped that when an appropriate case comes before the Apex court, it would make an overall review arid reconsider the existing position regarding the right to privacy. As of now privacy on internet is a myth we need to take some precautions because everything comes at a cost, the question is are you ready to pay the price.

This article is originally published on Legal Service India http://www.legalserviceindia.com/legal/article-2572-right-to-privacy-a-comprehensive-review.html

End Notes

: The Fundamental right to privacy: Part (iii) SCOPE by Amber Sinha

: Right To Privacy Under Article 21 and the Related Conflicts by hinailiyas

: Gautam Bhatia, “State Surveillance and the Right to Privacy in India: A Constitutional Biography”

: Right to Information in Consance with Right to Privacy by Vartika Phogat

::http://content.time.com/time/specials/packages/article/0,28804,2080345_2080344_2080379,00.html

:: https://www.lexology.com/library/detail.aspx?g=e0c55fd3-7347-48db-b0ce-2ca285ae1426

:: AIR 1975 SC 1378.

:: 1963 AIR 1295, 1964 SCR (1) 332

:: AIR 2008 AP 98

:: 2003 (1) SCC 500

:: (1994) 6 SCC 632

:: AIR 1950 SC 27: (1950) SCR 88.

:: 1954 AIR 300

:: [1974] 1 S.C.C. 345

:: (2004) 1 SCC 712

:: AIR 1991 SC 207

:: 1950 AIR 27

:: 1978 AIR 597

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