Right to Privacy under the Indian Constitution and Data Protection

Privacy is a concept that has very much importance in the 21st century. But it is a well-known fact that the development of technology and the internet gives us access to the entire world at our fingertip. Due to this, privacy is now almost a myth. This is because nowadays everyone has access to all internet and technological devices and the companies and anyone with technological knowledge can easily hack other’s devices. Not only this but the companies which provide social media apps are using our information for their own gain with or without our knowledge. There arises the need for a strong law for the protection of privacy of people, especially in a developing and technologically backward nation like India. 

India is still growing in terms of technology. There are still illiterate people who even though have data access can easily be targeted by these companies. Importance must be given to the privacy of people. This is because some matters should be kept from disclosure whatever the era we are living in. Modern gadgets and technological advancements can sometimes form a grave threat to our privacy. So the government has to ensure that the privacy of the citizens must be protected through the enforcement of strong laws.

Right to Privacy Under the Indian Constitution

‘Right to Privacy’ means the right of an individual to take action against an unwanted interference in his personal sphere of life. ‘Right to Privacy’ is now a part of the fundamental rights guaranteed under Article 21, the right to life, and personal liberty. Privacy in the 21st century has become a myth. Hence, there arises the need for governmental intervention. 

Individual privacy protection has not been given enough importance earlier. But nowadays, it is very much required. Fundamental rights are basic rights assured to the citizens of India enlisted in part three of the Indian constitution. The enforcement of fundamental rights has been guaranteed in the Constitution of India itself under Articles 32 and 226 before the Supreme Court and High Court respectively. Therefore, its recognition as a fundamental right depicts the importance of privacy.

We are all part of society, but this often overrides the fact that we are individuals first. Being an Individual human being, each and every person needs his/her private space for certain activities. The Right to privacy ensures the person’s right to be alone or to carry out private activities without any unwanted interference. The right to privacy is an essential component of the right to life and personal liberty under Article 21 of the Indian Constitution. However, it is not an absolute right as it is subjected to certain reasonable restrictions. 

The Supreme Court has widened the scope of Article 21 to form a multi-dimensional article by giving an extended meaning to the provisions in it. The right to privacy is a fundamental right identified by the Supreme Court by extension of the dimension of  Article 21. The landmark judgments following which the Court came to this conclusion are: 

1) Kharak singh v. State of U.P. 

The Supreme Court held that the right to privacy falls within the scope of Article 21 of the Constitution and therefore concluded that an unauthorized intrusion into a person’s home and disturbance caused to him is in violation of the personal liberty of the individual. 

2). Gobind v State of Madhya Pradesh, 

The Supreme Court, however, in this case, qualified the right to privacy and held that a violation of privacy could be possible under the sanction of law.

3).People’s Union of Civil Liberties v the Union of India. 

This case was related to the issue of ‘telephone tapping’ and held that tapping the telephone line of a person is a violation of his right to privacy. Unless it was needed in cases of public emergencies.

Intrusion into privacy may be by:

  1. Legislative Provision
  2.  Administrative/ Executive order
  3. Judicial orders.

The Privacy Bill, 2011

The bill says that “every individual shall have a right to privacy- which includes confidentiality of communication made to, or, by him including his personal correspondence, telephone conversations, telegraph messages, postal, electronic mail and other modes of communication, the confidentiality of his private or his family life; protection of his honor and good name; protection from search, detention or exposure of lawful communication between and among individuals; privacy from surveillance; confidentiality of his banking and financial transactions, medical and legal information and protection of data relating to the individual”.

Constitutionality of Right to Privacy

As we already know, the right to privacy included in Article 21 of the Indian Constitution is a dynamic concept. The right to privacy actually makes Article 21 a multi-dimensional concept. Individual privacy protection has great importance in the era we are living in as technological advancement is increasing day by day. It was in the landmark case of 4). K.S Puttaswamy (Retd.)and Anr. v Union of India and Ors. in 2017 that the right to privacy was given due recognition.

Right to Privacy and Prevailing Data protection laws in India:

Even though the right to privacy is an important right for the protection of an individual’s personal space, there does not exist a strong data protection law in India. For a developing country like India, there must be well-defined privacy laws in order for the protection of the privacy of individuals. Some of the important laws existing in India relating to data protection and individual privacy  are;

  1. Information Technology Act,2008
  2. The Personal Data Protection Bill, 2019

The need for strong privacy protection laws are very much evident now in light of the recent issues and controversies regarding the famous communication app ‘WhatsApp’ and it’s new privacy policy update. This has created a wave in India because WhatsApp is a highly used app in India with almost 70% of the population availing its services. The new controversial policy update from WhatsApp is ‘that the WhatsApp users have to agree within February 8th, 2021 to the new privacy policy which says that WhatsApp will collect data from its users and will share it with its parental company Facebook in order to improve Facebook’s business platforms’. 

Even though it was already happening it was an option. But now if we want to continue to use the app we have to agree to its new terms and policies which will affect the privacy of the users. Right now people are opting for other viable applications such as Signal, Telegram, etc. Even the tweets and posts of people like Tesla CEO, Elon musk and Paytm CEO, Vijay Shekhar Sharma, and many others have helped in the increase of users in applications such as signal by switching from WhatsApp. So, in order to prevent this kind of individual privacy encroachment by companies, the government has to make strong data protection laws.

Conclusion

From all the points discussed above, we can understand that India needs more secure, strong, and viable data and privacy protection laws. Though technological advancements are good for a nation’s development, it also has negative impacts. The lack of right to privacy and strong data protection laws will further lead to the encroachment of other’s personal space and life. The government must ensure that each and every person’s privacy must be protected and ensured through strong laws.

Frequently Asked Questions

  1. What was the role of the Right to Privacy in making article 21 a multidimensional concept?

‘Right to Privacy’ means the right of an individual to take action against an unwanted interference in his personal sphere. ‘Right to Privacy’ is now part of a fundamental right under Article 21, the right to life and personal liberty. The right to privacy is an essential component of the right to life and personal liberty under Article 21 of the Indian Constitution. However, it is not an absolute right as it is subjected to certain reasonable restrictions. The Supreme Court has made Article 21 a multi-dimensional one by giving extended meaning to the provisions in it. Right to Privacy is a right made by the Supreme Court by extending the scope of article 21.

  1.   Which are the existing prominent data protection laws in India?
  •    Information Technology Act, 2008
  •    The Personal Data Protection Bill, 2019
  1. India needs new privacy and data protection laws. Comment your opinion.

Yes, in my opinion, the Indian government must make strong and viable laws regarding data protection and individual privacy concerns. It is already high time because even though the right to privacy is an important right for the protection of an individual’s personal space, there does not exist a strong data protection law in India. Technological advancements are increasing day by day, so there must be proper laws to protect the privacy of people. 

Nowadays, it is easy to encroach into other’s lives without them knowing through processes like hacking. This is a violation of another person’s privacy. The lack of strong laws and provisions will lead to an increase in this threat.  Therefore, it is very much sure that India needs more privacy and data protection laws for the protection of its citizens.

References

1). AIR 1963 SC 1295. In this case, it was held that the expression ‘right to life’ was not limited to bodily restraint or confinement to prison only but something more than mere animal existence. Here, the petitioner was kept under police surveillance, while he was charged with the offence of dacoity.

2). 1975 SCC (Cri) 468. This case is related to surveillance according to Regulations 855 and 856 of Madhya Pradesh police regulations. The court held that though the right to privacy existed, it had not been violated  since the procedure was required by law.

3). (1997) 1 SCC 318

4). (2017) 10 SCC 1. It was in this case,Justice K.S. Puttaswany, a retired  judge of Madras High Court, challenged the constitutional validity of the Aadhaar Scheme. He raised the issue that the scheme was a violation to righ to privacy. A nine judge bench decided this case. The judgement was interpreted as a paving for the way for the decriminalization of homosexuality in India in Navtej Singh Johar (2018) and abolishing the provisions regarding the crime of Adultery through the case of Joseph Shine v Union of India ( 27, September 2018).

Leave a Reply

Your email address will not be published. Required fields are marked *