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RIGHT TO PRIVACY IN INDIA

Submitted during Internship under Legal Specs by Archit Jangid from Himachal Pradesh National Law University, Shimla.

ABSTRACT

The Supreme Court's extension of Article 21's scope in the post-Maneka Gandhi case is a highly intriguing development in Indian constitutional law. According to the Supreme Court, Article 21 is the foundation of Fundamental Rights. Article 21 has shown to have many facets. Giving the words "life" and "liberty" in Article 21 a wider connotation has allowed for the expansion of its parameters. It is not appropriate to read these two words in Art. 21 narrowly. These are organic concepts that must be understood in their proper context.

According to the Supreme Court, a right need not be specifically identified as a fundamental right in the constitution in order to be treated as such. New rights are recognised as a result of the country's political, social, and economic changes. The law is constantly evolving to satisfy societal needs.

One such right that has emerged as a result of expanding the scope of Article 21 is the right to privacy. Private life is not specifically protected by the constitution as a right. However, the Supreme Court has taken such a right from Article 21 and several other constitutional clauses when they are interpreted in conjunction with the Directive Principles of State Policy. In this essay, we'll talk about the Right to Privacy, a new aspect of Article 21, as well as the difficulties it raises.

INTRODUCTION

In recent years we have seen that in many cases the Supreme Court has protected and strengthened citizens’ rights for example homosexuality, and the Aadhar case judgement. The right to privacy is a legal right against the government or non-governmental entities to protect the privacy of individuals.

We can see that the right to privacy has got recognition in more than 150 countries. In India, the first attempt to protect privacy against state interference was made in the constituent assembly in 1949. An amendment was proposed by Mr. Kazi Syed Karimuddin that Article 20 protects individuals from illegal search and seizures. However B N Rau, the constitutional advisor of the constitutional assembly, and Alladi Krishnaswami Ayyar opposed the Proposal of Inclusion of the right to privacy in Fundamental rights.

EVOLUTION OF THE RIGHT TO PRIVACY

Earlier property was attached only to the property but with the evolution of innovation and technologies we have examples like phone tapping, Government policies, the Narco test and truth serum however narco test is done only with consent but it is also a type of breach of privacy.

Earlier the right to privacy was a statutory right, it was not mentioned in the constitution of India but as various judgements were delivered by the Supreme Court of India it became a constitutional right as well as basic structure of the Constitution. It also includes the right to be left alone physically as well as digitally.

TYPES OF RIGHT TO PRIVACY

Right to privacy includes various types of rights, there are following types of right to privacy.

  1. Right to practice beliefs and have different practices and heterogeneity, so it includes right to be different ,

  2. Right to privacy is very important for the dignity and personality of an individual. Privacy helps to take decisions, form personality and dignity

  3. Third, we have digital privacy. Recently we have seen the Aadhar judgement related to this topic as well as the Information Technology Act 2000 and data protection laws.

  4. The Supreme Court in the case of Suresh Kumar Kaushal v. Naz Foundation (2014) held that sexual orientation comes under the right to privacy under article 21 of the constitution.

STATUTORY PROVISIONS OF THE RIGHT TO PRIVACY

There are the following statutory provisions in India for the protection of privacy laws.

  • Article 21 of the Indian Constitution is the right to life and personal liberty which also includes the right to privacy.

  • Article 19 of the constitution in which there are six freedoms are mentioned which also lead to the development of the right to privacy.

  • Article 14 of the constitution also protects the right to privacy to some extent.

  • There are some restrictions as well, under articles 13 and 19. Article 13 talks about judicial review, in which the Supreme Court declares the law void which is consistent with Fundamental rights. Also in article 19 unauthorizedfreedoms are subject to reasonable restrictions for the welfare of the public.

  • The IT Act of 2000 also discusses compensation and penalties for misuse or improper disclosure of any person's data. If a person accesses a computer system or any data stored on it in an unauthorised or illegal way, they may be held personally liable under the Act.

RIGHT TO PRIVACY IN THE CONTEXT OF JUDICIARY

We have witnessed in many cases the development and safeguarding of the protection of individuals’ right to privacy. Following are some important cases of the Supreme Court.

  1. In the case of M.P. Sharma v. Satish Chandra (1954), in this case, the Dalmia group was accused of Money laundering and various malpractices, to conceal that they are depositing false documents and fraud balance sheets, the government ordered an investigation, an FIR was filed according to which on the warrant of search and seizure on 30 places. Dalmia group challenges that during the search all the documents are being checked including private documents which violated the fundamental right to privacy. SC observed that the state has overriding powers to search and seizure for the security of the state and there is no such concept of right to privacy in our constitution.

  2. In the case of Kharak Singh v. State of UP, this case related with surveillance under this case Kharak singh was arrested on the charge of Dacoity, but he was released by the court for not having substantial evidence against him, then the UP police uses U.P. Police Regulations according to which anyone could be made suspect, police were allowed to track him and domiciliary visits. Kharak Singh filed a writ petition, SC with six Judges bench held the domiciliary visits unconstitutional rest were valid.

  3. In the case PUCL v. UOI (1997) which is also called the wire Tapping case, in this case, the former PM Chandra Shekhar put an accusation on the government that govt. is tapping the phones of 27 politicians including himself. CBI investigated the matter and disclosed the acts of the government. PUCL filed a writ petition under which section 5(2) was challenged.

SC issued some guidelines that right to privacy would be included under Article 21 of the constitution and telephonic conversation would also be covered under right to privacy.

  1. Finally in the case of K.S. Puttaswamy which is also called the Aadhar case. In this case the Aadhar project was challenged that It violates the right to privacy of the people, the AGI of India argues that there is no such Fundamental right to privacy to the Indian citizens by mentioning M.P. Sharma and Kharak Singh case. In this case the 9 judges bench of the SC said unanimously that Indian citizens do have right to privacy, and also that right to privacy is protected under article 14, 19 and 21 of the constitution of India.

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