Right To Privacy and Data Protection
This article studies intrusion of technology in private sphere of an individual’s life vis-à-vis Justice K.S. Puttaswamy vs. Union of India.
The past decade has seen such a rapid growth in technology that 21st century can be referred to as Age of Technology. The rapid evolution of information and communication technology has drastically transformed the society. With the development of technology, new forms of technical and social interactions are plausible. However, this brings along with it ethical problems concerning both privacy and autonomy of an individual. Threats like data breach, hacking, and stealing of personal information become prevalent. Data theft is an act of stealing someone’s private information with a malicious intention of misusing it. Due to such malpractices data protection laws become necessary. It becomes important to draw distinction between the right and the wrong use of the Right to Privacy; the extent of government surveillance and intrusion in one’s private life for the welfare of the nation. All this calls for stringent and well-defined legal rules. However, as of now, the legal framework of these laws is not adequate and thus requires quick action.
Jurist like Arthur Miller find that privacy is tough to define as its meaning is ever-changing and transitory. Black’s Law Dictionary defined privacy as- “right to be let alone; right of a person to be free from unwarranted publicity; and right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned.” Privacy is not a new concept that needs introduction; however this concept needs legal preservation and recognition.
The individuals are given right to privacy, which is a definitive right, so as to control the disclosure of private information. The simplest definition of privacy is, if legally backed, the right of an individual to be left alone. This right is a natural human right which means that it is universal and common to all humans; it is far beyond religion, caste, race, culture etc. Privacy is natural right inherent to every individual by the virtue of their existence. Therefore, it is a pre-constitutional right which is recognised and preserved by the legal documents and not created by it. Every human has a right to protect its private information from any unwanted intrusion. This makes Right to Privacy a sacrosanct and inalienable right.
Development of Concept of Privacy
The right to privacy has nowhere been mentioned explicitly in the Indian Constitution which makes this right debatable and subjective. It is expressed as a fundamental rights by the drafters of the Constitution of India. Over the span of time, the Apex Court of India has also interpreted Article 21 in various ways, expanding its horizon intensively and extensively. However, in 2017, after delivering the landmark Aadhar verdict, Indian judiciary has ended a long term battle regarding the concept and idea of privacy. The Supreme Court observed that this concept of privacy must and has evolved from various laws. Before this landmark decision there have various cases regarding in issue. Starting from:
1. Kharak Singh v. State of Uttar Pradesh (1963) – The constitutionality of certain police regulations were challenged in this particular case such as the permission to the police carry out domiciliary visits and surveillance of people having criminal record. It was mentioned by the petitioners that such regulations are violative Right to privacy under Article 21. However, it was recognized as a common right but the court held that right to privacy is not included within the scope of article 21
2. Govind v. State of Madhya Pradesh (1975) - a similar issue as above was raised in this case. However, in this case the court said that right to privacy can be derived from right to life, freedom of movement and freedom of speech and expression. But it is subject to rational and reasonable restrictions and not an absolute right.
3. R. Rajagopal v. State of Tamil Nadu (1994) - in the instant case the court was required to set a balance between the right to privacy and right to freedom of speech and expression. Right to privacy, for the first time, was considered to be implicit in article 21. The court said that no individual has a right to publish other’s personal information without his consent. However, right to privacy ceases to exist when the matter becomes a public record, as public records are excluded from it.
4. PUCL v. Union of India (1996) - in this case interception of telephone calls by the government was challenged. The court stated that “Telephone-tapping is a serious invasion of an individual's privacy. It is no doubt correct that every government, howsoever democratic, exercises some degree of sub rosa operation as a part of its intelligence outfit, but at the same time citizen's right to privacy has to be protected from being abused by the authorities of the day.” Thus, it was held that unless allowed by the procedure established by law, telephone tapping would be against essence of article 21.
5. District Registrar v. Canara Bank (2004) - in the given case provision of the Indian stamp act was challenged. According to this provision, collector or any person who is authorized by the collector, is allowed to enter any premises for inspection. The issue was related to privacy of customer’s records stored in any financial institution like banks. The court observed that it doesn’t matter where the records are stored; those are to be protected under the citizen’s right to privacy.
K.S. Puttaswamy Judgement: A Ray of Hope
The Puttaswamy judgment was a watershed in Indian law as no other Supreme Court judgment has pushed the envelope like this on privacy jurisprudence. In August 2017, the Supreme Court bench of nine judges gave authorisation to the right to privacy in the Constitution of India. This judgement overruled the judgement given in M.P Sharma v. UOI by eight judges bench of the Supreme Court of India, according to which right to privacy was not laid down in the Indian Constitution. The Puttaswamy judgement gave a new vision and meaning to Right to Privacy of the Indian citizens. Right to privacy was stated as a fundamental right under article 14, 19, 21 of the Constitution. The Hon’ble Court said that right to privacy comes in the ambit of Article 21.
In the given case, the constitutional validity of the Aadhar Act was challenged. The National Identification Authority of India Bill was passed in 2010, by the Planning Commission. The project suggested creation of Unique Identification database and was to be implemented in three phases. Under the scheme, a unique identity 12-digit number was to be given to every citizen of India. The registration process required biometrics such as fingerprints, iris scans etc. As a result, retired Justice K S Puttaswamy and Mr. Parvesh Sharma filed a PIL, against the Union of India challenging the validity of Aadhar.
The petitioners contested that the Aadhar scheme failed to comply with the fundamental right of privacy guaranteed by the Article 21 of the Indian Constitution. After this writ petition was filed, a number of orders were passed. On 4th August 2017, the Apex Court of India finally held that the right to privacy is also a Fundamental Right under Article 21 of the Constitution thus creating history. Further, on 26th September 2018, the court held Aadhar card to be valid but struck down certain provisions that were violative of the right to privacy. The court said that the Act is for the benefits of the general public of India. But Section 33(2) and 57 of the Aadhar Act were struck down as they were considered unconstitutional. The Hon’ble bench upheld the validity of Aadhar Act while explaining the objective of Aadhar.
Puttaswamy v. Union of India explained how technology and privacy clash in legal sector. Aadhar definitely proved to be helpful for the public purposes but it created privacy and ethical concerns throughout the nation. The court said that, like the US Constitution, right to privacy is not stated explicitly in the Indian constitution but it is a basic human right that every individual possesses. This judgement incorporated jurisprudential analysis of Indian and global law and precedents from India and other countries like the United States of America, Canada and the United Kingdom. The court reasoned that right to privacy is a part of article 21 that respects human dignity. Dignity is a natural right and a constitution value. The preservation of human body and mind are called for by respect for dignity.
Thus, everyone must be given choice and autonomy to make intimate decisions. The court didn’t view this case solely as a ‘data protection’ case but as a case of all forms of privacy. Privacy concerns in the virtual world were treated the same as in the physical world. The principles followed in the case were similar to the constitutional jurisprudence of both the United States and the European Union. In US, intervention with privacy must be related to lawful state objectives and must be careful of rational expectations. Thus, the Supreme Court decided that right to privacy is intrinsic to right to life, however, it is not absolute and reasonable restrictions must be recognised. There must be a reasonable balance between legitimate state affairs and individual interests. A law that transgresses individual privacy must advance a lawful state purpose and must be proportionate to the requirement.
Data Protection Laws in India
Privacy Laws in India Presently, there’s no specific legislation regarding data protection in India. However, section 43A and 72A have been added in the Information and Technology Act, 2000 through amendments. Subsequently, Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 under Section 43A were issued to impose penalty on authorised disclosure of the personal information. The IT Act provides with both civil (compensation) and criminal (punishment) remedies in case of misuse of private information.
Section 43A states that when a body that possesses or handles any sensitive private data is negligent in securing such data causes any wrongful loss or wrongful gain to an individual must be held liable to pay the damages. Section 72 includes that any disclosure of information without the concerned person’s consent is punishable with imprisonment and fine. After the Aadhar verdict, personal data is protected under article 21 of the Indian Constitution. ‘Informational privacy’ is now considered an aspect of the right to privacy. To constitute legislative provisions for the same, the Government of India has made a committee on data protection headed by Retd. Justice B N Srikrishna. Following the recommendations of the committee, the government issued the Personal Data Protection Bill 2019. If the bill is successfully passed in both the Lok Sabha and the Rajya Sabha, then it will be India’s foremost legislation on protection of personal data.
Following the ideas portrayed in the natural school of law; Indian judiciary has developed the idea of privacy. In India, there’s no explicit law or provision governing the protection of private information. However the Supreme Court has affirmed that the concept of privacy shall evolve and develop with time. Since 1960’s there have been various cases regarding right to privacy and thus the concept has transformed since then. Right to privacy is now included in the golden trinity of article 14, 19 and 21. Through various judgments the scope of article 21 has expanded and the meaning of the words, ‘life’ and ‘liberty’, now have a wider interpretation. Privacy is liberty and liberty is privacy. Right to privacy is also derived from freedom of speech and expression. However the right to privacy is not a pure right. It has certain reasonable restrictions that includes legitimate action by state. It is also to be noticed that unlike the other fundamental rights, the right to privacy is also available against private individuals. This will also have an impact on reciprocity between privacy and freedom of speech and privacy and transparency. In the last, this right has evolved drastically and has various perspectives attached but it still needs transformation and proper legislation in India.
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Name- Adya Kuchhal (2nd Year Law student, B.A. L.L.B. Hons.)
College- Rajiv Gandhi National University of Law, Patiala