This Article is written by Saksham Suneja student of Modi Law College, Kota.
“WITHOUT PRIVACY THERE WAS NO POINT IN BEING AN INDIVIDUAL”
– JONATHAN FRANZEN
Privacy is the foremost demand; every man seeks to live happily in this modern era. The Internet has engrossed the whole world and with the advancement of Information and Communication Technology, social media has become a new tool or tactic to grow faster in all spheres. However, this has a flip side too; it can endanger an individual’s privacy to great extent. Therefore, it becomes very important to protect citizen’s privacy within the purview of fundamental rights of Constitution of India.
WHAT IS PRIVACY?
According to the Black Law’s Dictionary, privacy is considered as the right to be let alone, right of person from any warranted publicity, and the right to live without any unwarranted interference by the public in matters, public is not necessarily concerned.
Term “right to privacy” is a generic term which encompasses various rights such as:-
- Right of bodily integrity
- Personal autonomy,
- Protection from state surveillance,
- Dignity and
- Informational self determination.
Article 21 of the Indian Constitution states that “no person shall be deprived of his life or personal liberty except procedures established by law”. It does not exhibit only mere animal existence or more than needed for survival, this right is fundamental to an individual’s existence. Right to life has a much wider meaning and it embraces all those aspects which make man’s life meaningful, worthful, and complete. Right to privacy, livelihood, health, etc. are such rights covered under it.
There is no separate fundamental right of right to privacy and the first time the issue was raised in the case of:-
MP SHARMA V. SATISH CHANDRA CASE (1954 AIR 300, 1954 SCR 1077)
In this case, allegations like money laundering, practicing forgery, and cooking of books was imposed on Dalmia Group of Industries. The government ordered the investigation process for the same and FIR was filed to “search and seizure” at thirty locations of the company. Dalmia Group challenged the investigation process by saying that during the process, officers had also seen their private documents which have nowhere any relation with the case and this led to the infringement of their fundamental right of right to privacy.
The eight Judge bench of the Supreme Court held that to ensure the security of the society, the state had ultra-virus powers of “search and seizure”. Court also quoted in their judgment, “there is no such concept of Right to Privacy in the Indian Constitution”.
After 10 years, the demand for the right to privacy was again becoming a moment of talk in the case of:-
KHARAK SINGH V. STATE OF U.P. (1963 AIR 1295, 1964 SCR (1) 332)
In this case, Kharak Singh was arrested under the charges of dacoity but because of no available evidence, he was set free and in order to collect proof against him, UP Police issued surveillance on him under the UP Police Regulation Act.
The Surveillance includes:-
- Everyone who visits him may be considered a suspect.
- Domiciliary visits at night.
- Tracking of every movement and expenses.
Kharak Singh issued writ petition in the Supreme Court challenging the surveillance as infringement of his Fundamental right of Right to Movement (Article 19) and Right to life (Article 21).
The six Judge bench of Supreme Court tried to widen the scope of Article 21 and held only domiciliary visits at odd hours as unconstitutional but not Right to Movement because it violates only when there is some sort of physical restrictions and upheld the M.P. Sharma judgment that Right to Privacy is not guaranteed in the Constitution.
Justice Subha Rao dissenting view became important in future, he said “if freedom of right to movement would be tracked then how far it is legit to declare as free”?
It raised a question on the accountability of the Constitution, that even in the 21st century Government cannot protect the right to privacy of its citizen then, how it will be able to maintain the principle of equality among them?
The cases though didn’t declare privacy as a essential right but at the same time it gave rise to ambiguous thoughts among citizen regarding laws, punishment and applicability but they agreed upon one thing that, “it should be protected”.
DECLARATION OF PRIVACY AS FUNDAMENTAL RIGHT
GOBIND RAO V. STATE OF MADHYA PRADESH (1975 AIR 1378, 1975 SCR (3) 946)
The Court accepted the limited fundamental right of right to privacy under Article 19 (a), Article (d) and Article 21. Though it was not absolute and limited restriction can still be imposed by the procedure established by law.
JUSTICE K.S. PUTTASWAMY (Retd.) v. UOI (WRIT PETITION (CIVIL) NO 494 OF 2012)
This case is famously known as ‘Aadhar Case’. In this the National Aadhar Project was challenged, (a form of unique biometric based identity card) infringing the right to privacy because it has all personal data right like Biometric, signature and Demographic data of the citizen. In order to support the government that there is no right to privacy as guaranteed by Constitution, Auditor General of India gave reference of earlier judgments of Court in the case of MP Sharma v. Satish Chandra and Kharak Singh v. State of U.P.
In order to give a new stand Supreme Court constituted a nine Judge bench and by overruling its past judgments, unanimously held that Indian Citizen do have a fundamental right of Right to Privacy within the purview of Article 14, 19 and 21 of Indian Constitution and there is no need to constitute any other legislation to enforce it. Though, this right is subject to some sort of reasonable restrictions.
PHONE TAPPING, INFRINGEMENT OF PRIVACY?
PUCL v. UOI (AIR 1997 SC 568, JT 1997 (1) SC 288, 1996 (9) SCALE 318, (1997) 1 SCC 301, 1996 Supp 10 SCR 321, 1997 (1) UJ 187 SC)
This case is popularly known as ‘Wire Tapping Case’. Former Prime Minister Chandra Shekar imposed an allegation that government is tapping his and twenty-seven other ministers phones. CBI investigated in the matter and busted the malpractice of the government of phone tapping.
People’s Union for Civil Liberties (PUCL) filed a PIL under Section5 (2) of Indian Telegraphic Act, asking Court to give justification on the powers of government on Wire and Phone Tapping.
The Court considered telephonic as highly confidential and therefore protect it under Right to Privacy within purview of Article21 and also codified Section 419(A) under Indian telegraphic Rules, as only in unavoidable reason tapping can be done that too with the prior permission of Home Secretary
VINEET KUMAR V. CBI (WRIT PETITION NO. 2637 OF 2019)
In 2019 bank employee’s filed a suit in the Court because their phone was being tapped under the charges of bribery, they consider it as the infringement of Right to Privacy. The Court held that the phone tapping can be done under Section 5 (2) of Indian Telegraphic Act only in the case of public emergency and safety. The Court added that in this case the level of economic offence is low; therefore it was the infringement of fundamental right of Right to Privacy.
It was seen that after the landmark judgment of Puttaswamy case, right to privacy started getting recognition.
SOCIAL MEDIA: ASSAILMENT OF PRIVACY
The use of internet and the influence of social media have become a “new life” and “a new food” without which it feels unimaginable to live in this world. From ten years to seventy-five years is a consumer of social media, it gave rise to new ‘kinship’ in which people are virtually connected.
Social media is a “new left hand”, which makes our work easy, helps us to grow, learn and showcase skills, can share thoughts publically and also earn money.
We knowingly or unknowingly shares lot of private data on various social media apps like; WhatsApp, Facebook, Instagram and Twitter etc., which eventually led to the infringement of one’s privacy and also gave a birth to the new crime i.e. cybercrime. Fake allegation, leaking of bank details, aadhaar and pan card details, sharing pictures of individual’s private part, defamation and stalking has became so common.
In India, laws for social media and privacy are inadequate. Our judiciary and legislature may lacks in functioning when it comes to the framing of laws and also in enforcing them.
By analyzing the judgment given in PUCL case 1997, it can be rationalize that if an individual has a right to privacy for not being taped on the phone, than he also has a right to privacy for all the conversation done through any social media platforms. There are many provisions of the Information Technology Act, 2000 which protects individual privacy such as; Section 66E, Section 72 and Section 43 and punishment of which is defined in Section 66 and sometimes Section 67A.
In the Ritu Kholi Case 2001, a man named Manish hacked her email address which allows him to access all her pictures. He followed her on a chat website, and abused her. She was threatened to pose nude for him or pay him 1 lakh rupees and also leaked her phone no. which led to the receiving of almost 40 obscene calls at odd hours of the night for three consecutive days.
Police traced down the IP address and booked him under the Section 509 of the Indian Penal Code, 1860 and under the Information Technology Act, 2000.
But the Court gave some directions that the information and data of the user will not be shared till 25 Sept 2016 and instructed WhatsApp to take required actions as soon as possible.
WhatsApp, the most used messaging app always claimed that it ensures total privacy and every chat is end-to-end encrypted, then how NCB was able to manage to take out old chats of various celebrities in the Sushant Singh Suicide case? The answers to this question; Nation still wants to know!
Right to privacy is an essential need of every individual’s life. In the above case, we have seen the struggle of declaring it as basic or a fundamental right but even after this the cases of violation does not end. India has many regarding right to privacy in IT Act and some of the penal provisions are also applicable but nowadays no app or site is safe. So it’s important there should be more effective laws and proper implementation of Supreme Court guidelines but an individual should also take proper safety measures like read T&C before signing in, should not give any unnecessary permission to apps, do not download any data from corrupted sites and immediately report to the Cyber Crime Portal or Police if any incident such as leaking of your data, hacking, harassment and stalking happens.
- J.N. PANDEY, Constitution Law of India, Central Law Agency 2019
- IT ACT,2000 https://www.indiacode.nic.in/bitstream/123456789/1999/3/A2000-21.pdf
- Kharak Singh v. State of U.P. 1963 AIR 1295, 1964 SCR (1) 332
- Kuber Sharma, Cyber Crimes: Prevention better till foolproof firewalls in place, Dec 22, 2003 HINDUSTAN TIMES https://www.hindustantimes.com/india/cyber-crime-prevention-better-till-foolproof-firewalls-in-place/story-Q1Y65K560aIKWIMdrClIrO.html
- Right to Privacy under Article 21 and the Related Conflicts http://www.legalservicesindia.com/article/1630/Right-To-Privacy-Under-Article-21-and-the-Related-Conflicts.html
- Suprateek Neogi, Right to privacy and Social Media, Oct18, 2018 http://rsrr.in/2018/10/27/right-to-privacy-and-social-media/