Right to Privacy: A Legal Perspective

Fundamental according to the English dictionary means “forming a necessary base or core of central importance; it is a central or primary rule or principle on which something is based upon”, and rights are a set of privileges that are conferred upon a human being because of his existence.

Taken together, fundamental rights are the rights that have been enunciated in the fundamental and core law i.e, the Constitution of India. The nature of these rights is primal and they are justiciable in nature which is to say that the citizens can approach the Court, for their implementation or for their violation.

The evolution of fundamental rights started in the 19th Century with the formation of Indian National Congress. There are six fundamental rights, out of which Right to life and protection of liberty is guaranteed under Article 21.

The scope of these fundamental rights has widened over time by various judicial decisions which have revolutionised the basic structure of the fundamental rights in India. One such decision given by the Apex Court, in the case of K. Puttaswamy v. Union Of India, where the Supreme Court Of India unequivocally declared  ‘Right to Privacy’  as a fundamental right. This right has not been explicitly been enlisted in the constitution but is an extension of Article 21, 19 and 13 of the Constitution and any law framed in contravention to this fundamental rights will not only be prone to judicial review but can also be declared void ab-initio.

‘Privacy’ means a state in which one is not observed or disturbed, according to various international covenants and declarations. The ambit of privacy extends to other aspects like bodily integrity, personal autonomy, informational self-determination, protection from state surveillance, dignity, confidentiality, compelled speech and freedom to dissent or to move or think. According to Black’s Law Dictionary, “right to be let alone, the right of any unwarranted publicity, the right to live without any unwarranted interference by the public in matter with which the public isn’t necessarily concerned”. The necessity of right to privacy is an essential part of human existence and hence becomes the sheer responsibility of the State to protect this essential and elemental and right of the citizens.

Today, however, the absolute establishment of this right to privacy has become perceptibly challenging. With the advent of social media and the emerging social blogging sites, it has become difficult as to where we should draw a line, the regulation of the flow of information to the freedom of posting information that one would like to post , the only filter that comes to the rescue is that of ‘social morality’ or ‘public interest’. The Right to Privacy is not something to protect rather the meaning of every other right is lost when a space to execute that right isn’t guaranteed. That being said various religious texts such as Manusmriti and the Islamic Jurisprudence guarantee the right to privacy in various facets of life.

Right to Privacy is a parent right of the rights like right to be left alone, right to be different, right to physical privacy, right to digital privacy, right to different sexual orientation, right to abortion, right to procreation and contraception etc.

The right to be left alone means the discretion to live alone and to live life according to one’s own will and desire, the right to be different encompasses the right to choose dress up , food, culture and other lifestyle attributes. 

The right to be left alone means the discretion to live alone and to live life according to one’s own will and desire, the right to be different encompasses the right to choose to dress up, food, culture and other lifestyle attributes.  The right to physical privacy means rights over one’s body to choosing one’s religious practices, over his sexual relations which the LGBT  community uses as a major contention for the contending their incarnate sexual relation. The right to abortion, procreation, and contraception are enumerated under this right which gives women the freedom to choose whether they want to bear a child or not.

Medically as well, the disclosure of the data regarding DNA profiling bill, wherein the government creates a database of DNA of each individual could prove to be a serious breach in ones right to privacy. Through DNA profiling  the status of a person’s immune system , his susceptibility to different diseases , his lineage and other highly specific parameters can be extracted and thus  a breach in the digital DNA database(which government ought to create) poses a serious threat as the DNA information can thus be used by adversary against any citizen.

Aadhar Card has been under a major scrutiny as it was contended that it is a project that  violates privacy, Since there is no legislation in India which guards the privacy of the individuals, Nandan Nilekani, advocating the necessity of Aadhar Card simultaneously recommended the presence of stringent laws that could protect the information of the Citizens, and would prevent the State from misusing the information. Since these concerns of misusing the information and the fear of mass surveillance was at its peak it was contended in the Supreme Court, which declared the right to privacy a fundamental right.

The matter of protection of privacy of an individual is a crucial one nevertheless granting absolute privacy could threaten national security owing to the fact that numerous anti-national and terrorist elements would find protection under the umbrella of this right guaranteed by the Constitution. The State needs to come up with efficient policies, plans, laws which make stringent efforts for data protection including a wide variety of information from biometric data, banking information and all the digital data that is at the risk of being exploited. The rise of malware, viruses, ransomware (which effected the major economies of the World) , speaks of the dire need of the immediate State action. There needs to be a balance between the right to privacy of the citizens and the right to social and national security which hold equal importance and should be ensured by the State for its citizens by proper judicial implementation and utilisation of these rights.

As has been rightly adjudged that the country which fails to uphold the right to privacy for its citizens is destined to fail as a democracy and in upholding the right of equality before law.

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