Privacy: A Utopian Dream

The Constitution of India gives to “we the people” what are known as fundamental rights. These rights were so inalienable to a human being that the drafters deemed it fit to put them in the text of the Constitution. These were brought in to reinforce the dream of having a dignified life, which of course, becomes part and parcel of human autonomy. This dream was envisaged by the drafters because of the struggle for freedom. One such fundamental right acknowledged in the Constitution was the right to life under Article 21.

Article 21 of the Constitution states that “no person shall be deprived of his life or personal liberty except according to procedure established by law.” Having a life with liberty forms the basic fabric of the Constitution. Life and Liberty cannot be denied to any person except as per the procedure established by law. When the Constitution was drafted, the Constituent Assembly had already debated the pros and cons of not using “due process” under Article 21.

The Courts in India have interchanged the periphery of Article 21, which was circled by “procedure” established by law to read it as “due process”. Article 21, today, stands as the vanguard of fundamental freedoms of an individual. It has been read to include the right to health, the right to sleep, the right against noise pollution, the right to shelter, the right to food, and so on and so forth.

Privacy as a Right

Privacy, the right of an individual to be private about his affairs and that might include his personal details, was never envisaged as a particular right in the Constitution. In 1954, in the matter of M.P. Sharma and Ors. v. Satish Chandra and Ors. (AIR 1954 SC 300), the Supreme Court, while addressing the issue of powers of search, seizure, and constitutional propriety, held that the drafters of the Constitution had not drafted the right to privacy in the text of the Constitution and therefore, the same could not be read as part of the Constitution. It is pertinent to note that in the entire case, the parties did not argue about the right to privacy, however, the Hon’ble Court made these observations, which eventually one would see did not hold ground for much long.

The M.P. Sharma debacle was followed by the Supreme Court in Kharak Singh v. State of U.P and Ors. (AIR 1963 SC 1295), wherein the majority of judges held on the lines of the M.P. Sharma case. Kharak Singh involved a challenge to Regulation 236 of the U.P. Police Regulations, which involved secret picketing of a habitual criminal’s house, nightly domiciliary visits, periodic inquiries by police officers, as well as tracking and verification of habitual criminals. It is very interesting to note that Justice Subba Rao, giving a minority opinion in the Kharak Singh judgment, held that the right to personal liberty under Article 21 of the Constitution takes in not only the right to be free from restrictions placed on movements, but also free from encroachments on one’s private life. Justice Subba Rao, under Article 21, read privacy as an essential right.

It was the Maneka v. Union of India (AIR 1978 SC 597) judgment by the Supreme Court that turned the tides. It upheld the inter-relationship of fundamental rights. It further led to reading of rights in the Constitution, which otherwise did not form part of it. The Court in the Maneka Gandhi case upheld the minority view held earlier in the Kharak Singh case that had read the right to privacy in the text of the Constitution. Post the judgment on the Maneka Gandhi case, significant strides have been made to read the right to privacy under the Constitution. This led to marking of the periphery of right to privacy. Finally, in the case of Justice Puttaswamy v. Union of India ( (2017) 10 SCC 1), the Supreme Court gave its stamp to the right to privacy as a fundamental right.

The Justice Puttaswamy case

The petition filed by Justice Puttaswamy was a case that sought to challenge the constitutional validity of the Aadhaar card scheme. The judgement was rendered by a nine-judge bench that referred the case by a three-judge bench. While referring to the case, the three-judge bench held that judgment on the M P Sharma case had been rendered by a Bench of eight judges and the judgment on the Kharak Singh case by a Bench of six judges. Both these benches have held that the right to privacy is not a constitutional right. However, much smaller benches, subsequently have held it to be a constitutional right.

In order to bring judicial propriety, it was appropriate to refer the question to a larger bench of nine judges. The nine-judge bench held that the right to privacy can be read to be part and parcel of different Articles under Part III of the Constitution. In the Puttaswamy case, an argument was raised by the Union that since privacy as a concept is covered by different statutes, namely, the Information Technology Act, 2000, the Credit Information Companies (Regulation) Act, 2005, the Right to Information Act, 2005,  the Collection of Statistics Act, 2008, the Protection of Children from Sexual Offences Act, 2012, the Juvenile Justice (Care and Protection of Children) Act, 2015 and the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016, there is no need to accord “privacy” the status of  a fundamental right.

However, this argument was negated by the Court on the basis that a fundamental right stands on a different pedestal than a statutory right. The Court further in the Puttaswamy case, commended the Union of India to make law regarding the protection of personal data. It held that informational privacy also forms part of the right to privacy.

The Puttaswamy Judgement led to the formation of the Justice B.N Srikrishna Committee in 2017. The Justice B.N Srikrishna Committee was given the task to (i) examine various issues related to data protection in India, (ii) recommend methods to address them, and (iii) suggest a draft data protection Bill. The draft Bill, known as the Personal Data Protection Bill, 2018, was presented to the Ministry of Electronics and Information Technology by the Committee on 27 July 2018, with the objective of protecting the autonomy of individuals with respect to their personal data, specify norms of data processing by entities using personal data, and set up a regulatory body to oversee data processing activities. The said Bill was never tabled before the Parliament.

The Government of India, in line with the Personal Data Protection Bill, 2018, tabled the Personal Data Protection Bill, 2019 before the Lok Sabha. The Bill was thereafter referred to a Joint Parliamentary Committee that gave its recommendations on the Bill in 2021. However, the Bill was withdrawn by the Government of India this year.

*A Fundamental Right

It is underscored that though privacy has been given the status of a fundamental right and individuals can get the same enforced against the State, a robust law, for the protection of personal data, that forms part of the informational privacy of an individual is the need of the hour. As held by the Hon’ble Supreme Court in the Puttaswamy case, privacy can only be curtailed by the State, based on a law that is reasonable and has proportionality attached to it.

In today’s world, everything is information driven. Therefore, it becomes more important that the personal data of individuals be protected from private players. Unless this is done, Privacy appears to be a utopian dream.