RIGHT TO PRIVACY, IT'S SANCTITY IN INDIA

"Civilization is the progress towards a society of privacy. The savage's whole existence is public,
ruled by the laws of his tribe. Civilization is the process of setting man free from men.1 "

INTRODUCTION

The idea of privacy is as old as the history of mankind itself. However, the term privacy cannot
be easily conceptualized. Different scholars have given various meanings to privacy and also it
has various aspects which changes with the change in the society.

Tracing back its history when we go into the debates of Constituent Assembly we find some
discussions on the point of privacy and secrecy. From the Constituent Assembly Debates it can
be concluded that right to privacy was deliberately not included in the Constitution. What could
possibly the intention of legislature behind this is not known.

Talking about right to privacy in post-independence era in India, the Constitution does not
expressly recognize right to privacy but it has been evolved through judicial precedents. For the
first time it was recognized in the case of Kharak Singh2. Also, there are various legislations
which contain some provisions which one can relate to privacy such as Indian Evidence Act,
Information Technology Act, Indian Penal Code, Criminal law, Indian Telegraph Act, Indian
Easement Act, Family law. These laws have been discussed in detail in this article.

Privacy is fundamental to human being and there are various aspects of privacy such as privacy
of space, privacy of body, privacy of information, privacy of choice which has been evolved over
time. And in today's Digital era there is greater need to protect this right. Right to privacy in
today's Digital era, consequences of social media on privacy have been discussed in the article.
We will also discuss the laws which protect privacy and do we have enough laws to cater to the
issues of invasion of privacy which has been recognized as Fundamental Right under Article 21
of the Constitution and sanctity of right to privacy in India.

HISTORY OF THE RIGHT TO PRIVACY

1 Ayn Rand, The Fountationhead (1943)

2 Kharak Singh v. State of Uttar Pradesh ,AIR 1963 SC

1
The need for protection of privacy was felt by human beings from ancient times, however, the
concept was not well defined. When we start discussion on the concept and basis of right it
becomes necessary to trace its historical development in order to find out universally acceptable
definition. The concept of privacy can be traced out in the ancient text of Hindus as well. If one
look at the Hitopadesh it says that certain matter (worship, sex and family matters) should be
protected from disclosure.

But, the need for privacy and its recognition as a right is the product of an increasingly
individualistic society in which the focus has shifted from society to the individual. Earlier, the
law afforded protection only against physical interference with a person or his property. As
civilization progressed, the personal, intellectual and spiritual facets of the human personality
gained recognition and the scope of the law expanded to give protection to these needs.3

The earliest recordings of 'right to privacy' in Indian jurisprudence were in the late 1800s when a
local British court upheld privacy of a pardanashin woman to access her balcony without the fear
of the neighborhood gaze. The jurisprudence has evolved ever since and the right to privacy was
read into ‘Article 21’ of our Constitution by the Supreme Court as an integral part of ‘personal
liberty’.4

Privacy is not a fundamental right was first held by the Hon'ble Supreme Court in the year 1954.
In M.P. Sharma v. Satish Chandra 5, the Court dismissed the existence of a right to privacy on
the basis that the makers of Constitution had not envisaged a fundamental right to privacy.

After nine years, in Kharak Singh v. State of Uttar Pradesh6 majority of the Judges participating
in the decision again rejected the right to privacy held that, "our Constitution does not in terms
confer any like constitutional guarantee." But minority opinion of Subba Rao J. in Kharak Singh
case,7 was in favour of privacy. The silver lining was Justice Subba Rao’s dissent, wherein he
went on to say "…the right to personal liberty takes in not only a right to be free from restrictions
placed on his movements, but also free from encroachments on his private life. It is true our

3 Madhavi Goradia Divan, Facets of Media Law, 2nd edition, at page no.165
4 https://www.theweek.in/content/archival/news/india/brief-history-right-to-privacy.html

5 AIR 1954 SC
6 AIR 1963 SC
7 Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1302
Constitution does not expressly declare a right to privacy as a Fundamental Right, but said right
is an essential ingredient of personal liberty."

Twelve years later, the Supreme Court, when faced with a similar factual matrix in Gobind v.
State of Madhya Pradesh,8 undertook a more elaborate appraisal of the right to privacy. The
Court also accepted a limited Fundamental Right to privacy "as an emanation" from Arts. 19(a),
(d) and 21. However, the right was not absolute; reasonable restrictions can be placed by a
procedure established by law.

Privacy jurisprudence was further strengthened. In the case of the infamous gangster, "Auto
Shanker"9 the Supreme Court asserted that in recent times the right to privacy has acquired
constitutional status. Later on, after taking note of the above-mentioned cases, the Supreme
Court observed: "We have, therefore, no hesitation in holding that right to privacy is a part of the
right to life and personal liberty enshrined under Article 21 of the Constitution. Once the facts in
a given case constitute a right to privacy, Article 21 is attracted. The said right cannot be
curtailed 'except according to procedure established by law.' "10

This is how "right to privacy" evolved through judicial precedents in India. By this time, privacy
had assumed an inherent role in our fundamental rights jurisprudence that helped us lead a
dignified life. And it never faced such a strong challenge earlier as it is currently facing.

MEANING OF RIGHT TO PRIVACY

Talking about its meaning the terms privacy can’t be easily conceptualized. It has been taken in
different ways in several situations. Black’s Law Dictionary says that ‘right to privacy’ is a
generic term encompassing various rights recognized to be inherent in concept of ordered liberty,
and such rights prevent government interference in intimate personal relationship’s or activities,
freedoms of individual to make fundamental choices involving himself, his family, and his
relationship with others. Privacy has also been described as the rightful claim of the individual to
determine the extent to which he wishes to share himself with others and his control over the
time, place and circumstances to communicate with others. It means his right to withdraw or to

8 AIR 1975 SC
9 R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264
10 People's Union for Civil Liberties v. Union of India, AIR 1991 SC 207
participate as he sees fit. It also means the individual's right to control dissemination of
information about himself; it is his own personal possession11.

Whereas, right to privacy means "the right to be let alone; the right of a person to be free from
unwarranted publicity. The term 'right of privacy is generic term encompassing various rights
recognized to be inherent in concept of ordered liberty 12. Right to personal liberty, and the right
to move freely and speech could be described as contributing to the right to privacy13.

CONSTITUENT ASSEMBLY DEBATE ON PRIVACY

There is no constitutional right to privacy as such. Why it has not been expressly mentioned in
the Constitution? The Constitution of India was adopted on 26 January 1950, it nowhere
mentions right to privacy. It appears that the framers of our Constitution had considered
including a right to privacy in the Constitution but, for some reason they did not include it in the
Constitution.

When Munshi presented the first draft articles on fundamental rights on 17 March 1947, it
included Sub-Article (1), which stated that every citizen, within the limits of the law of the
Union, should have:

(e) The right to be informed within twenty-four hours of his deprivation of liberty by what
authority and on what grounds he is being so deprived

(f) The right to the inviolability of his home

(g) The right to the secrecy of his correspondence

(h) The right to maintain his person secure by the law of the Union from exploitation in any
manner contrary to the law or public morality

Dr B.R. Ambedkar’s draft of 24 March 1947 also articulated a similar formulation:

11.AC. Breckenridge, The Right to Privacy (1971)

12 Dr. Avtar Singh, College Law Dictionary, 2nd ed.
13 Govind v. State of M.P., AIR, 1975 SC 1378.
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 of affirmation and particularly describing the place to be
searched and the persons or things to be seized.

Based on these individual contributions, the Draft Report of the Sub-Committee on Fundamental
Rights dated April 1947 included a specific mention of both the right to secrecy of
correspondence as well as the right against unreasonable search and seizure.14

Hence, this proves the fact that the Indian Constitution does not mention privacy. It was not an
accident but outcome of a conscious choice.

JUDICIAL INTERPRETATION OF RIGHT TO PRIVACY

The Constitution of India does not grant in specific and express terms any right to privacy as
such. Right to privacy is not enumerated as a Fundamental Right in the Constitution. However,
such a right has been culled by the Supreme Court from Art. 21 and several other provisions of
15
the Constitution read with Directive Principles of State Policy. 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.16

The right to privacy has several aspects. One such aspect is the right to procreate. This is also
known as "the right of reproductive autonomy". The right to use condoms, the right of a woman
17
to abort, all these falls within the ambit of right to privacy. In State of Maharashtra v.
Madhukar Narayan Mardikar,18 the Supreme Court protected the right to privacy of a prostitute.
The Court held that even a woman of easy virtue is entitled to her privacy and no one can invade
her privacy as and when he likes.

14
https://scroll.in/article/886850/why-did-the-framers-of-the-indian-constitution-not-explicitly-include-the-right-to-privacy
15
M.P. Jain, Indian Constitutional Law of india (7th edition, 2014) page no 1168
16 R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264
17 M.P. Jain, Indian Constitutional Law of india (7th edition, 2014) page no 1169
18 AIR 1999 SC 495
The right to privacy has now become established in India, but as a part of Art. 21, and not as an
independent right. Although it has been recognized under Art. 21 the Court has however, refused
to define privacy saying, "As a concept it may be too broad and moralistic to define it judicially.
Whether right to privacy can be claimed or has been infringement in a given case depend on the
facts of the said case".19

Subjecting a Person to Medical Tests

It is well settled that right to privacy is not treated as absolute and is subject to such action as
may be lawfully taken for the prevention of crime or disorder or protection of health or morals or
protection of rights and freedom of others.20

In Sharda v. Dharmpal,21 Hon'ble Supreme Court ruled that a Matrimonial Court had the power
to direct a party to divorce proceedings, to undergo a medical examination. A direction issued for
that purpose could not be held to be violation of one's right to privacy. The Hon'ble Court
referred to the state of law prevailing in some countries where collecting samples from suspects,
for DNA tests, have not been found to be violation of right to privacy.

Further, in Surjit Singh v. Kanwaljit Kaur,22 the Punjab and Haryana High Court held that
allowing medical examination of a woman for her virginity amounts to violation of her right to
privacy and personal liberty enshrined under Article 21 of the Constitution. Also, nobody can be
compelled, without his consent to submit to D.N.A. test.23

Right to Privacy and Telephone Tapping

Allegations of political opponents and even colleagues being under surveillance have been
endemic in our country under all regimes over the last six decades. It has been held to be a
serious inroad into the right to privacy, a facet of the right to personal liberty.24

19 M.P. Jain, Indian Constitutional Law of india (7th edition, 2014) page no 1170
20
Mr. ‘X’ v. Hospital ‘Z’, AIR 1999 SC
21 AIR 2003 SC 3450
22 AIR 2003 P&H 353
23 Banarasi Das v. Teeku Dutta, 2005 (4) SCC 449
24 Dr. Narendra Kumar, Constitutional Law of India, 9th ed.
Section 5 (2) of the Indian Telegraph Act, 1885 empowers the Central Government or the State
Government or any specially authorized officer, to intercept messages if satisfied that it is
necessary or expedient so to do in the interest of the sovereignty and integrity of India, the
security of the State, friendly relations with foreign States, public order, or for preventing
incitement to the commission of an offence. It can be done in the event of the occurrence of a
public emergency or in the interest of public safety for reasons to be recorded in writing.

In People's Union for Civil Liberties v. Union of India, 25 Hon’ble Court laid down certain
procedural safeguards to be observed before resorting to telephone tapping under section 5(2) of
the Act. Except in cases, when the Indian Telegraph act, 1885 empowers the State to intercept
messages, telephone tapping would be violation of the right to privacy.

Telephone conversation is an important conversation in the privacy of one's home or office

without interference can certainly be claimed as right to privacy. Conversations on the telephone
are often of an intimate and confidential character. Telephone conversation is a part of modern
man's life. Tapping of telephone is a serious invasion of privacy. Right to privacy would
certainly include telephone-conversation in the privacy of one's home or office. This means that
telephone tapping would infract Article 21 unless it is permitted under the procedure established
by law.

Further, act of tapping by the husband of conversation of his wife with others without her
knowledge is illegal and amounts to infringement of her right to privacy under Article 21 of the
Constitution of India.26

Woman's Right o Make Reproductive Choices

In Suchita Srivastava v. Chandigarh Administration,27 a three-Judge Bench of the Supreme

Court, headed by Hon'ble Chief Justice, was moved to determine the scope of "woman's right to
make reproductive choices" in view of the right to privacy secured as an important facet of right
to personal liberty. Court said that it was important to recognize that reproductive choices could
be exercised by the woman to procreate as well as to abstain from procreating. Stating that a

25
AIR 1997 SC 568
26 Royals M. Bhuvaneswari v. Nagaphamender Rayala, AIR 2008 AP 98
27 AIR 2010 SC 235
woman's right to privacy, dignity and bodily integrity, was of crucial consideration, the same
should be respected.

The right to make a decision about reproduction is essentially a very personal decision either on
the part of the man or woman. Necessarily, such a right includes the right not to reproduce. The
intrusion of the state into such a decision making process of the individual is scrutinized by the
constitutional Courts in this country with great care.28

Live-In-Relationship and Privacy

India is a free democratic and secular country and therefore, any person who has attained
majority, has the right to live freely with anyone.29 Allahabad High Court in the instant case
ruled that a person, he or she, who attained 18 years of age, being major according to Section 3
of Indian Majority Act, 1875, was deemed to understand his/her welfare and hence he/she could
go wherever he/she liked and live with anybody. He/she could not be restrained from doing so,
even by the parents. Individual liberty under Article 21, the Court ruled, had the highest place in
our Constitution.

Two adult person living together of their free will has come to be termed as Live-in-relationship,
Hon'ble Justice S.N. Dhingra of the Delhi High Court has recently, 30 defined the concept as "a
walk in and walk out" relationship which entailed no obligation on the parties who enter into it.
People who choose to have a Live-in-relationship, the Court ruled, could not complain of
infidelity or immortality. In the instant case, the woman, a divorcee with a child was in such
relationship with petitioner, a London based solicitor, who was a married person, for five years.
She lodged an FIR against home to prevent him from flying to London. The Court quashed the
FIR.

In appeal the Apex Court referred to the provisions of the Protection of Women from Domestic
Violence Act, 2005, which was enacted to provide a remedy in Civil Law for protection of
women from being victims of domestic violence. The protection under the Act, 2005 is also,
among others available to person living together through a relationship in the nature of marriage

28
B.K. Parthasarathi v. State of Andhra Pradesh, AIR 2000 AP 156
29 Jyoti v. State of U.P., AIR 2004 All. 45
30 Indra Sharma v. K.V. Sarma, AIR 2014 SC 309
i.e. "Live-in-Relationship". Dismissing the appeal, the Apex Court held that the relationship
between the appellant and the respondent as not "in the nature of marriage" for the purpose of the
Act, 2005.

Hence, it can be concluded that the privacy of persons living together in a live-in-relationship has
not been given due importance through the laws, laws do not protect right to privacy of these
persons. There are hardly any laws which provide protection to these people even judicial
precedents do not favour them besides that they have to face many hardships from the society as
well. There is a dire need of strong legislation to protect the rights and privacy of people living
together in a live-in-relationship.

Right to Privacy Is Not Absolute Right

In Mr. 'X' v. Hospital 'Z', the question before the Supreme Court was whether the disclosure by
the Doctor that his patient, who was to get married had tested HIV positive, would be violative
of the patient's right to privacy, an essential component of right to life envisaged by Article 21.

Supreme Court ruled that the right to privacy was not absolute and might be lawfully restricted
for the prevention of crime, disorder or protection of health or morals or protection of rights and
freedom of others. The Court held that the doctors by their disclosure that the patient was HIV
(+), could not be said to have, in any way, either violated the rule of confidentiality 31 or the right
to privacy.

POSTULATES OF PRIVACY

According to Dr. D.Y. Chandrachud, J. "Privacy postulates the reservation of a private space for
the individual, described as the right to be let alone. The concept is founded on the autonomy of
the individual. The ability of an individual to make choices lies at the core of the human
personality. The notion of privacy enables the individual to assert and control the human element
which is inseparable from the personality of the individual. The inviolable nature of the human
personality is manifested in the ability to make decisions on matters intimate to human life. The
autonomy of the individual is associated over matters which can be kept private. These are
concerns over which there is a legitimate expectation of privacy. The body and the mind are

31
See the Indian Medical Council (Amendment) Act, 1964
inseparable elements of the human personality. The integrity of the body and the sanctity of the
mind can exist on the foundation that each individual possesses an inalienable ability and right to
preserve a private space in which the human personality can develop. Without the ability to make
choices, the inviolability of the personality would be in doubt. Recognizing a zone of privacy is
but an acknowledgment that each individual must be entitled to chart and pursue the course of
development of personality. Hence privacy is a postulate of human dignity itself. Thoughts and
behavioral patterns which are intimate to an individual are entitled to a zone of privacy where
one is free of social expectations. In that zone of privacy, an individual is not judged by others.
Privacy enables each individual to take crucial decisions which find expression in the human
personality. It enables individuals to preserve their beliefs, thoughts, expressions, ideas,
ideologies, preferences and choices against societal demands of homogeneity. Privacy is an
intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand
against the tide of conformity in creating a zone of solitude. Privacy protects the individual from
the searching glare of publicity in matters which are personal to his or her life. Privacy attaches
to the person and not to the place where it is associated. Privacy constitutes the foundation of all
liberty because it is in privacy that the individual can decide how liberty is best exercised.
Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of
diversity into the fabric of a plural culture."32

OTHER LEGISLATIVE PROVISIONS RELATED TO PRIVACY

The Indian telegraph Act, 1885

Section 5(2) of the Act permits interception of messages in accordance with the provisions of the
said section. Occurrence of any public emergency or in the interest of public safety are the sine
qua non for the application of the provision of Section 5(2). Unless the public emergency has
occurred or the interest of public safety demands, the authorities have no jurisdiction to exercise
the powers under that provision.

A leading case on Section 5(2) of the Indian Telegraph Act which came up before the Court is
People's Union for Civil Liberties v. Union of India,33 in this case it was held that occurrence of

32
Justice K.S. Puttaswamy (Retd.) and Another v. Union of India and Others, writ petition (civil) No. 494 0f 2012
33 AIR 1997 S.C. 568
public emergency or existence of public safety interest are sine qua non for application of
provisions of Section 5(2) of the Act. It was also held that telephone tapping infracts right to life
under Article 21 of the Constitution. The Supreme Court directed the observance of procedural
safeguards before resorting to telephone-tapping.

The Indian Easement Act, 1882

A right of privacy falls under illustration (b) of Section 18 of The Indian Easement Act, 1882
which reads as follows:- By the custom of a certain town no owner or occupier of a house can
open a new window therein so as substantially to invade his neighbour's privacy. A builds a
house in the town near B's house. A thereupon acquires an easement that B shall not open new
windows in his house so as to command a view of the portions of A 's house which are ordinarily
excluded from observation, and B acquires a like easement with respect to A 's house.

Right of privacy is a valuable right which needs protection. There is an invasion of this right if it
has been recognised by custom. The right to privacy being a customary right it is always open to
the Court to see whether the custom is, in the circumstances, reasonable and whether is has
ceased to be enforceable by desuetude. Be that as it may, the customary right of privacy may be
34
said to exist only in respect of the inner courtyards. There is no natural right to privacy
recognised by law anywhere in India. It is only customary easement arising by virtue of a local
custom. Thus in order to entitle the plaintiff to a decree for a mandatory injunction directing the
defendant to close window put in his own property, the plaintiff must establish that there is such
a customary right in the town where the properties are located, that no owner as to substantially
invade his neighbour's privacy.35

36
The right of privacy, if at all, may be claimed as a customary right. Thus it is not every
infringement of privacy which is actionable. It must be shown that there has been substantial and
material infringement of privacy. The right to privacy can be carried to an oppressive length.

34
Diwan Singh v. Inderjeet, AIR 1981 All. 342).
35 Feel Chand v. Hans Raj, AIR 1971 Mys.322)
36 Pir Agha Mohammed Hussain v. Elias Haji Wahiddino, AIR 1948 Sind. 36 (DB) )
Each case must be decided upon its own peculiar facts in detaining whether there has or has not
been a substantial infringement of right to privacy.37

Family Laws
The privacy of family and friends has been mention in some statutes. Hearing in camera in
certain marriage and divorce statutes may be said to have the aim of privacy in view. It is said
that confidentiality of proceedings is sometimes desirable. This is much more so in regard to
matrimonial proceedings. All the matrimonial statutes provide that at the desire of the parties, the
proceedings may be heard in camera. Section 22 of the Hindu Marriage Act, 1955 provides for
this. Similar provision has been enacted in the Indian Divorce Act, 1869, although the provision
is not as comprehensive as under the Hindu Marriage Act, 1955. Section 53 of the Indian
Divorce Act, 1869 provides that "The whole or any part of any proceeding under this Act be
heard, if the court thinks fit, within closed doors". Under this Act discretion rests with the court,
while under the other three statutes it is mandatory.

The Indian Evidence Act, 1872

There are provisions under the Evidence law which protects the privacy interests of accused
persons in view of the presumption of innocence appears to have been caused by any inducement,
38
threat or promise is inadmissible in evidence. The privacy of communication and official
secrecy has been protected from disclosure as special privilege. The Judicial officers shall not be
compelled to answer any questions as to his conduct in court as such.39

Further, the communication between husband and wife during marriage is regarded as private
and the law accords protection to such communication. Even the person who is or has been
married shall not be permitted to disclose any such communication without the consent of the
other person who made it.40 Further, the affairs of state is regarded as privileged and it is only the
head of the department concerned who can decide either to give or withhold such permission, as
he thinks fit. The communication made to the public officer in his official capacity and

37 Paras Diwan, Law of Marriage and Divorce, 851&852 (Universal Law Publishing Co. Pvt. Ltd.) 3rd Edition 1997
38
Sec. 24 & 25 of Indian Evidence Act, 1872
39
Section 121 Ibid
40
Section 122 Ibid
confidence is also enjoined with the special privilege. 41 As a matter of public policy the police
officer, as well as, revenue officer enjoy the privacy of source of information relating to the
commission of offence. No such officer shall be compelled to disclose the source of such
42
information. The privilege of communication is also available to certain categories of
professionals like barrister, attorney, pleader or vakil. The communication made by such
professional with his clients shall not be permitted to be disclosed except with the express
consent of his clients. However, this protection does not extend over the communication for any
illegal purpose and any fact relating to the commission of any crime or fraud. This privilege is
also available to the interpreters.43

The privilege of confidential communication is not only available to above-mentioned categories

of professionals but is also available to the client and, therefore, the person cannot be compelled
to disclose to the court any confidential communication between him and his legal professional.
The privilege has been also made available to the person who is in possession of such deed or
document.44

Criminal Law

The reputation of a person is integral to one's personality and, therefore it is generally protected
through legal rules in a legal system. Section 499-502 of the Indian Penal Code, 1860 deals with
the offence of defamation which make it a punishable offence. The modesty of a woman has
obtained special treatment in the penal code and cases of any attempt to insult the modesty of
woman just by words, sound, gesture or exhibition is severely punishable.45

There are certain provisions in the Criminal Procedure Code, 1973, which try to safeguard the
privacy of the female. Section 51(2) states that whenever it is necessary to cause a female to be
searched, the search shall be made by another female officer with strict regard to decency.
Section 53(2) states that whenever the person of a female is to be examined under this Section

41
Section 132 Ibid
42
Section 124 Ibid
43
Section 126 Ibid
44
Section 130 Ibid
45
Section 509 of The Indian Penal Code, 1860
the examination shall be made only by or under the supervision of a female registered medical
practitioner. Thus, special protection has been afforded to females under these provisions.

The provision relating to the recording of confessions and statements in Section 164 of Criminal
Procedure Code, 1973, also makes stipulation with a view to protect privacy of a person.
Similarly, if the provisions of Section 165 are not followed when conducting a search by a police
officer, such a search would not be a valid. The provisions of Section 165 are mandatory for the
conduct of a search by a police officer.

Information and Technology Act, 2000

This act makes a provision to protect the information secured from any electronic record, book,
register, correspondence etc. from disclosure to any other person and makes it a punishable
offence. Section 72 of the Act provides- Penalty for breach of confidentiality and privacy.-Save
as otherwise provided in this Act or any other law for the time being in force, if any person who,
in pursuance of any of the powers conferred under this Act, rules or regulations made there under,
has secured access to any electronic record, book, register, correspondence, information,
document or other material without the consent of the person concerned discloses such electronic
record, book, register, correspondence, information, document or other material to any other
person shall be punished with imprisonment for a term which may extend to two years, or with
fine which may extend to one lakh rupees, or with both.

Although, we all these provisions and legislations which are somewhat related to privacy if not
directly related. In modern times due to the development of science and technology and
widespread use of computers, the problem of protecting the privacy of persons has become very
complex and existing laws are not sufficient to deal with privacy related issues of digital era.

INVASION OF PRIVACY

In Puttaswamy case 46 , Justice D.Y. Chandrachud laid down that following tests which are
required to be satisfied for judging the permissible limits of the invasion of privacy under Article
21 of the Constitution, they are:

46 Justice K.S. Puttaswamy (Retd.) and Another v. Union of India and Others, writ petition (civil) No. 494 0f 2012
(a) The existence of a law

(b) A legitimate State interest; and

(c) The said Law should pass the test of proportionality

Privacy and Personal Data

But, India has not yet enacted specific legislation on data protection. However, the Indian
legislature did amend the Information Technology Act, 2000 to include Section 43A and Section
72A, which give a right to compensation for improper disclosure of personal information. The
Indian central government subsequently issued the Information Technology (Reasonable
Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011
under Section 43A of the IT Act. The Rules have imposed additional requirements on
commercial and business entities in India relating to the collection and disclosure of sensitive
personal data or information. The IT Act and Rules do not impose any conditions regarding the
usage of sensitive personal data or information for direct marketing. However, where the
information is collected from a provider of information the prior consent of the provider of
information must be obtained, including the purpose for which the information is being
collected.47

Privacy and Aadhar

Aadhar is a serious invasion into the right to privacy of persons and it has the tendency to lead to
a surveillance state where each individual can be kept under surveillance by creating his/her life
profile and movement as well on his/her use of Aadhaar. It is important to note that the main
privacy concerns brought by the UID project are: territorial and data privacy. The risk that the
UID poses to an individual’s privacy is enormous, as information that is now scattered in the
public domain will be brought into one point of convergence through the UID. Authorities could
misuse this information. Further, there are issues of privacy infringement due to the use of

47
https://www.linklaters.com/en/insights/data-protected/data-protected---india
biometric information in the project. The Collection of, and identification based on biometric
information could be understood as a breach of one’s territorial privacy and one’s data privacy.48

The current focus on the right to privacy is based on the realities of the digital age. India is
rapidly becoming a digital economy problems of ID theft, fraud and misrepresentation are real
concerns. In recent years, several national programmes and schemes are implemented through
information technology platforms, using computerised data collected from citizens. With more
and more transactions being done over the Internet, such information is vulnerable to theft and
misuse. Therefore any system of data collection should factor in privacy risks and include
procedures to protect citizen information

What happens if tomorrow we are told that the right to privacy is not a fundamental right? The
right to privacy will lose its status amongst the Golden Trinity of Article 14, Article 19 and
Article 21 of the Constitution. These rights can only be taken away from us by just and
reasonable law, which is the paramount protection that our Constitution offers us. If privacy is
not a fundamental right, this intrinsic right can be taken away by our legal system. 49 Like in Gian
50
Kaur case, a five judge Constitutional Bench held that the "right to life" is inherently
inconsistent with the "right to die" as is "death" with "life". Later on, in Aruna Shanbaug case, 51
Hon'ble Supreme Court gave recognition to passive euthanasia which is more popularly referred
as mercy killing.

Similarly, Right to privacy is not a fundamental right was first held by the Hon'ble Supreme
Court in M.P. Sharma case.52 And now it has been recognised as Fundamental Right through
various judicial pronouncements. What if again Hon'ble Supreme Court declares that Right to
privacy is not a Fundamental Right? Hence, this right is not secured until legislation enacts a law
protecting right to privacy.

48
https ://www.legalserviceindia.com/legal/article-34-aadhaar-card-an-invasion-to-privacy.html
49
https://www.theweek.in/content/archival/news/india/brief-history-right-to-privacy.html
50
Gian Kaur v. State of Punjab, AIR 1996
51
Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC
52
M.P. Sharma v. Satish Chandra AIR 1954 SC
But all other legislations that we have is not enough there is great need of stringent legislation on
right to privacy. The law which can tackle with the complex issues of privacy in today’s Digital
era.

SUGGESTIONS

Although efforts have been made to define right to privacy but there is no concrete definition of
"right to privacy" in Indian legislation hence the foremost step should be to define the 'right' in
order to protect the right. In current scenario it becomes very important to give a definition
which covers all the aspects of right to o privacy.

Also, we have several laws which protect right to privacy in one way or the other. But in reality
we don't have any law which protects complex issues of privacy in today's digital age related to
personal data, sensitive information etc. Hence, there is need of stringent laws which covers all
the aspects of privacy

The government’s basic obligation is to protect its citizens’ rights. Privacy consciousness is very
low in India. Hence, government should make people conscious about their personal data. The
data controller should be made accountable for the collection, processing and use to which data
are put. The government should also provide internal procedural safeguards with independent
external monitoring for the protection of rights.
 BIBLIOGRAPHY

BOOKS:

1. Dr. J. N. Pandey, Constitutional Law of India, (51st edition)

2. Narendra Kumar, Constitutional Law of India, (9th edition)
3. M.P. Jain, Indian Constitutional law, (7th edition)
4. Madhavi Goradia Divan, Facets of Media Law, (2nd edition)
5. Paras Diwan, Law of Marriage and Divorce, (3rd edition)
6. Dr. Avtar Singh, College Law Dictionary, (2nd edition)
7. Dr. Sigh Avtar, Principles of The Law of Evidence, (21st edition)
8. Sharma S.K., Privacy Law- A Comparative study, (11th edition)
REPORTS:
1. Nationl Law Commission India: 69th Report on Right To Privacy

STAUTES:

1. The Constitution of India

2. The Indian Telegraph Act, 1885
3. The Indian Easement Act, 1882
4. The Hindu Marriage Act, 1955
5. The Indian Evidence Act, 1872
6. The Indian Penal Code, 1860
7. The Criminal Procedure Code, 1973
8. The Information Technology Act, 2000

WEBSITES:

1. https://www.manupatra.com
2. https://www.wordpress.com
3. https://www.indiankanoon.org
4. https://www.indianexpress.com
5. https://www.thehindu.com
6. https://timesofindia.com
7. https://www.theweek.in
8. https://www.britannica.com
9. https://scroll.in
10. https://www.linklaters.com
11. https://www.legalserviceindia.com
12. https://digitalindia.gov.in