RIGHT TO PRIVACY AS A FUNDAMENTAL RIGHT IN INDIA
Author: Janaki Nair
Privacy as a separate concept is an extremely new notion with regards to the Indian context. Till recent years, it has been a highly disputed concept and the struggle is still not over by a long way. The Indian society has been built on a ‘collective over individual’ framework, as opposed to the ‘solely individualistic’ framework that has been adopted by a country like the United States of America. Therefore, it is needless to say that, in the fight for the right to privacy, India has taken a lot of inspiration from the scholarly works and jurisprudential works of other countries such as the USA, UK, South Africa, etc. With reference to all these countries, India has tried to recognize a wider right to privacy that stretches across various dimensions.
Even now, the Indian Constitution, by way of the judiciary, has not granted the Right to Privacy as an explicit and separate right in the Constitution. However, it should be acknowledged that this right has gone through a lot of development to get to its present stage – there were a lot of acceptances and denials about its current state in the Indian Constitution. The first recorded discussion was in the year 1948 when Mr. Karimuddin brought up an amendment to protect the citizens from unreasonable search and seizure, which was inspired by the laws of the American and Irish constitutions. Ambedkar did allow the amendment in the Criminal Code although nothing else was talked about regarding its place in the Indian Constitution.
DEVELOPMENT OF RIGHT TO PRIVACY
The first actual case law that brought about the topic of the Right to Privacy in the year 1954 was the M.P Sharma case.The court, in this case, decided that search-and-seizure does not go against any of the fundamental rights and that it was not in the framer’s minds to inculcate the Right to Privacy as one under the Constitution. The next case law pertaining to privacy was in the year 1962 with the case of Kharak Singhwherein the petitioner challenged the surveillance rights of the police on him. The petitioner argued that it violates his rights under A.19 and A.21 of the Constitution. The court favored the State in this decision by stating that the Right to Privacy cannot be a guaranteed right under the Constitution.
In the case of Govindprivacy under Indian Constitution started gaining more momentum. The facts were almost the same as the ones in Kharak Singh as it was related to surveillance of the accused. Even though the court dismissed the petition of Govind, it still directed the state to come up with changes in their police regulations as they were walking “perilously near unconstitutionality”. This was the first small victory of people favoring the Right to Privacy debate as there started being a possibility of the Indian judiciary supporting the Right to Privacy as a fundamental right in the future.
More precedents started springing up after the case of Govind. In the case of Charulata Joshi, the court decided that the Freedom of the Press is not an absolute right and that the press must first and foremost obtain the consent of the person to interview them and publish it in media. Similarly, in a smaller case of the name R. Rajgopal, the court decided that the Right to Privacy does come under the fundamental right enshrined in A.21in the fact that it also encompasses the Right to be ‘left alone’. Anyone publishing anything about an individual’s family and education without the latter’s consent is violating the latter’s right to privacy.
However, there have also been dips in this ongoing debate. In the case of Sharda, the court concluded that the Right to Privacy is not absolute and that it can be forsaken to advance public interest and morality. Supreme Court has also tried explaining the concept further in the case of Ram Jethmalani, where it stated that privacy is something every individual cherishes in his/her lifeand it is important to have free domains undisclosed to the public eye.
The landmark judgment relating both to the birth and status of the concept of the Right to Privacy as a fundamental right was explained in the case of Justice K.S. Puttuswamy. This case, after observation,linked the right’s connection with Article 21 of the Indian Constitution. The A.21, which talks about the right to life and dignity and privacy has been shown in the judgment to encapsulate all the parts of the Constitution such as the Preamble, A.21 itself, sub-set of personal liberty, etc. They overruled the decisions in MP Sharma and Kharak Singh by stating that personal liberty under both A.21 and A.19 should be given a ‘wide interpretation’ and this allows it to include ‘right to privacy’ under it too. The Right to Privacy also resonates with other rights of Part III of the Constitution,such as the Right to freedom of association, speech, and expression, etc.
Although judgments like Puttuswamy did arrive in India, the country still has a long way to go in terms of actually implementing the ratio in these judgments. Right to Privacy had a long journey from complete denials to somewhat acceptances, but this means that the citizens themselves should understand the meaning of these concepts such as Privacy, dignity, etc., in order to work in tandem with the Constitutional values.
M.P Sharma v. Satish Chandra, 1954 AIR 300, 1954 SCR 1077. Kharak Singh v. State of Uttar Pradesh, 1963 AIR 1295, 1964 SCR (1) 332. Govind v. State of Madhya Pradesh & Anr., 1975 AIR 1378, 1975 SCR (3) 946. State v. Charulata Joshi (1999) 4 SCC. R. Rajgopal v. State of Tamil Nadu, AIR 1995 SC 264. Ram Jethmalani v. Union of India,(2011) 8 SCC 1. Justice K.S. Puttuswamy v. Union of India, 2017 10 SCC 1.