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PRIVACY IS A MYTH IN THE INDIAN CONSTITUTION

Author: Ankur Agnihotri, II year of LL.B. from Campus Law Centre,University of Delhi


Privacy is a state where a person keeps his personal life or personal information secret or it is known only to a few people. In other words, Privacy is a state of being alone or secluded from the outside world.


But the present era is of social media. Most of the person keep themselves updated on social media platforms every single minute. They share every minute of information about their interests, location, plans, goals etc. which causes a major challenge to someone’s Right to privacy. So, the question is our right to privacy really exist? Is everything fine with our right to privacy? Is our data or information secret? Is our data safe or protected from hackers?


Meaning of Privacy

Let us understand the concept of privacy through an example, Suppose you have your own room where you kept all your important documents, files, gadgets, photos and all personal accessories. But on a daily basis if your housekeeper visits your room to clean the room and often touches all your personal accessories. Then, in spite of having your private room your right to privacy is violated to some extent.


But in the same example, if none visits your room and don/t touch anything in your room all your information and data is secluded from the outside world. In simple words, Privacy is the state of keeping our personal data secluded from the outside world or keeping our secrets concealed from the knowledge of others.


Constitutionality of the concept of Privacy

The concept of privacy was thoroughly discussed in the debates of the constituent assembly for the very first time. But the majority of members voted not to include it in the Indian constitution. So, it is not explicitly mentioned in our constitution. Members of a constituent assembly including K.T. Shah, K.M. Munshi and B.R. Ambedkar voted in favour of adding the Right to Privacy to the constitution. Noted constitutional expert K.T. Munshi said, "Every citizen of India has and is hereby guaranteed security of his person, papers, property, house or effects against unreasonable searches or seizure."


However, noted jurist Alladi Krishnaswamy Ayyer, K M Pannikar and eminent constitutional advisor B.N. Rau voted against the adding of these privacy provisions as a fundamental right in the constitution. They all argued that adding of right to privacy in the Indian constitution would impede law enforcement and criminal prosecution of conspirators. They also mentioned the provisions of the U.S. Constitution that did not explicitly guarantee the right to privacy to its people. So the Advisory Committee on Fundamental Rights dropped the proposal to recognise the right to privacy as a fundamental right. Much later Right to privacy was added as a constitutional right and inserted as article 300A in the Indian constitution.


Four years after the Indian Constitution came into force, the Court was given the topic of its protection on account of M.P. Sharma vs. Satish Chandra in 1954 wherein the court held that the act of search and seizure isn't disregarding one's security and that the drafters of the constitution didn't plan to make protection as a principal right.


Another case is Kharak Singh vs. State of UP, Kharak Singh is a dacoit and he was challenged in a dacoity case and was released on bail for finding the evidence. But all his movements were subjected to surveillance, including the night checkings also. So, Kharak Singh moved to the Supreme court saying that his fundamental rights were infringed. The apex court here analyzed the intensity of police reconnaissance and held that privilege to protection isn't ensured under the Indian Constitution.


Later, while hearing a petition filed by Justice K.S. Puttaswamy(Retd.) popularly known as the Aadhar case, the apex court held the Right to privacy to be included as a fundamental right under article 21 of the Indian constitution.


What actually Aadhar case is?

In the year 2012, a retired High court Judge K.S. Puttaswamy filed a petition before the nine-judge constitutional bench of the Supreme Court against the Central govt., case being Justice K.S. Puttaswamy(Retd.) vs UOI and others,2017 challenging the constitutional validity of Aadhar as it is violating the right to privacy.


Bench: Sanjay Kishan Kaul, Dhananjaya Y. Chandrachud, R. K. Agrawal, J. S. Khehar, S. A. Bobde, S. A. Nazeer, R. K. Agrawal, J. Chelameswar, A.M. Sapre JJ.

While arguing before the bench, Petitioner said that the right to privacy is an intrinsic part of the right to life and personal liberty under article 21. As right to life includes all the aspects which are needed for living life smoothly.


From the side of the respondent, it was argued that the constitution of India did not specifically protect the Right to Privacy and on the same ground Article21(Right to life and personal liberty) had no application in cases 1)M.P. Sharma vs.SatishChandra and 2)Kharak Singh vs. State of U.P. After all the criss-cross arguments, the apex court passed a landmark judgement on 24th August 2017, upholding the right to privacy as a fundamental right under article 21 of the Indian constitution.


Article 21

Article 21 of the Indian constitution states that None shall be deprived of his life or personal liberty except according to a procedure established by law. Supreme court of India has described this article as “the heart of fundamental rights”.


In Unni Krishnan vs. State of Andhra Pradesh(1993), Supreme Court gave an expanded interpretation of the right to life. The apex court gave the list of all rights which are covered under Article 21.Some of them are:-

1. Right to shelter

2. Right against handcuffing

3. Right to social justice and economic empowerment

4. Right against Custodial deaths

5. Right to Pollution-free water and air

6. Doctors’ assistance

7. Right to Education

Judgements regarding Right to Privacy

PUCL vs. Association of India

The apex court held that each individual has a security interest in phone interchanges and that tapping the phone is an attack on one's protection. And hence, Telephone tapping was held to be infringing upon article 21 except if it is allowed by a due process of law.


Gobind v. State of Madhya Pradesh

The Supreme Court here adopts the strict scrutiny test for laws infringing on the right to privacy. The court held that privacy violations could be justified only if there was a compelling state interest involved, and the law was narrowly tailored which meant that the state would have to show that there was no alternate, privacy-preserving way, through which it could achieve its goals. In the same case, Court also held that the Right to Privacy is not an absolute right, It is subjected to reasonable restrictions.


Rayala M. Bhuvneswari v. Nagaphomender Rayal

In this case where the husband has tapped the telephone call of her wife with another 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 into the personal space of the wife was illegal and it is a violation of her fundamental right to privacy under Article 21 so it cannot be admissible as evidence even if talks are true.


Conclusion

In today’s era of technology where people keep themselves updated on different social media platforms, various applications demand certain permission and accessibility which they use to assemble data and then sell it to different companies who are in need of such data. These types of acts must be prohibited immediately as Privacy is one of the basic fundamental rights guaranteed under the Right to Life and Personal Liberty.


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