In general, the right to be free from secret surveillance and to determine whether, when, how, and to whom, one’s personal or organizational information is to be revealed. In specific, privacy may be divided into four categories
- Physical: restriction on others to experience a person or situation through one or more of the human senses;
- Informational: restriction on searching for or revealing facts that are unknown or unknowable to others;
- Decisional: restriction on interfering in decisions that are exclusive to an entity;
- Dispositional: restriction on attempts to know an individual’s state of mind.
Thus, the right to privacy is a legal frame work that provides individual’s right to protect their or their data’s privacy.
EVOLUTION OF PRIVACY
• EARLIER- privacy was attached only to property
• NOW- notion expanded
o information and technology
o NARCO test, e.t.c.
“RIGHT TO PRIVACY”- IN DIFFERENT COUNTRIES
USA: The world’s oldest democracy, USA has not exactly mentioned the word ‘privacy’ in its Constitution. However, 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”.
JAPAN: 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”
AUSTRALIA: The country has its own ‘Privacy Act’ which came into being around 1988. It governs the handling of personal information of individuals
EUROPE: Article 8 of the European Convention of Human Rights
“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,”
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.
BRAZIL: The country’s Constitution states, “The intimacy, private life, honor and image of the people are inviolable, with assured right to indentation by material or moral damage resulting from its violation.”
SWEDEN: Despite being one of the first countries of the world to give a personal identification number to its citizens, required to be used in every interaction with the State, Sweden is also one of the first countries to have a detailed statute on privacy laws online. The 1973 Data Act protected the privacy of personal data on computers. The right to protection of personal data is also found in the Swedish constitution.
1. 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.
2. It is not explicitly mentioned in the Constitution.
3. “K. Puttaswany v. Union of India, 2017” – the landmark judgement of 9 judges bench declares “ right to privacy is a fundamental right” under the Constitution.
K.PUTTASWANY V. UNION OF INDIA, 2017
A nine-judge bench of the Supreme Court has ruled that Indians enjoy a fundamental right to privacy that it is intrinsic to life and liberty and thus comes under Article 21 of the Indian constitution. The bench comprised of Chief Justice J S Khehar and Justices J Chelameswar, S A Bobde, R.K. Agrawal, Rohinton Nariman, A M Sapre, D Y Chandrachud, Sanjay Kishan Kaul and S Abdul Nazeer
JUDGMENTS THAT WERE OVERRULED
1. M.P Sharma v. Satish Chandra, 1954
2. Karak Singh v. State of UP, 1962
3. ADM Jabalpur v. Shirkant Shukla, 1976
4. Suresh Kumar v. Naz Foundation, 2013
(A) Life and personal liberty are inalienable rights. These are rights which are inseparable from a dignified human existence. The dignity of the individual, equality between human beings and the quest for liberty are the foundational pillars of the Indian Constitution;
(B) Life and personal liberty are not creations of the Constitution. These rights are recognized by the Constitution as inhering in each individual as an intrinsic and inseparable part of the human element which dwells within;
(C) Privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution. Elements of privacy also arise in varying contexts from the other facets of freedom and dignity recognized and guaranteed by the fundamental rights contained in Part III;
(D) Judicial recognition of the existence of a constitutional right of privacy is not an exercise in the nature of amending the Constitution nor is the Court embarking on a constitutional function of that nature which is entrusted to Parliament;
(E) Privacy is the constitutional core of human dignity. Privacy has both a normative and descriptive function. At a normative level privacy sub-serves those eternal values upon which the guarantees of life, liberty and freedom are founded. At a descriptive level, privacy postulates a bundle of entitlements and interests which lie at the foundation of ordered liberty;
(F)Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognizes the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognizes the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being;
(G) This Court has not embarked upon an exhaustive enumeration or a catalog of entitlements or interests comprised in the right to privacy. The Constitution must evolve with the felt necessities of time to meet the challenges thrown up in a democratic order governed by the rule of law. The meaning of the Constitution cannot be frozen on the perspectives present when it was adopted. Technological change has given rise to concerns which were not present seven decades ago and the rapid growth of technology may render obsolescent many notions of the present. Hence the interpretation of the Constitution must be resilient and flexible to allow future generations to adapt its content bearing in mind its basic or essential features;
(H) Like other rights which form part of the fundamental freedoms protected by Part III, including the right to life and personal liberty under Article 21, privacy is not an absolute right. A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. In the context of Article 21 an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. The law must also be valid with reference to the encroachment on life and personal liberty under Article 21. An invasion of life or personal liberty must meet the three-fold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate state aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them; and
(I) Privacy has both positive and negative content. The negative content restrains the state from committing an intrusion upon the life and personal liberty of a citizen. Its positive content imposes an obligation on the state to take all necessary measures to protect the privacy of the individual.
Thus the Supreme Court has, in an unanimous verdict, affirmed that personal privacy is a fundamental right under the Constitution of India. This unequivocally puts to rest any further attempts to create mechanisms for intrusion into the personal lives of people in India
IMPLICATION OF RIGHT TO PRIVACY
Ongoing legal case on Aadhar
On legality of marital rape & abortion
Right to choose one’s food
Pending lawsuit over social media data sharing
Affecting government bodies or project collection personal data.
Restrictions on Article 21, under which privacy is being read.
1. “The first requirement that there must be a law in existence to justify an encroachment on privacy is an express requirement of Article 21. For, no person can be deprived of his life or personal liberty except in accordance with the procedure established by law. The existence of law is an essential requirement.”
2. “Second, the requirement of a need, in terms of a legitimate state aim, ensures that the nature and content of the law which imposes the restriction falls within the zone of reasonableness mandated by Article 14, which is a guarantee against arbitrary state action. The pursuit of a legitimate state aim ensures that the law does not suffer from manifest arbitrariness.”
3. “The third requirement ensures that the means which are adopted by the legislature are proportional to the object and needs sought to be fulfilled by the law. Proportionality is an essential facet of the guarantee against arbitrary state action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law.”