RIGHT

TO PRIVACY IN INDIA

Privacy is the desire of an individual to be free of intrusion.1 Samuel D Warren and

Louis Brandeis who gave the modern conception of ‘Right to Privacy’,2 define it as-

"The principle which protects personal writings and all other personal

productions, not against theft and physical appropriation, but against

publication in any form, is in reality not the principle of private property, but

that of an inviolate personality."3

‘Right to Privacy’ has been a pressing issue in India since the introduction of the

AADHAAR scheme of the 12-digit unique identification number as a method of

mandatory identification for every Indian. However, privacy can be viewed

outside the scope of AADHAAR too.

According to Bhairav Acharya, there are four parts to privacy in India. First is

privacy from the press- in cases of absence of freedom of privacy from the press,

there can be unwarranted disclosure of embarrassing private facts. Second is

privacy against surveillance from the state- this covers both privacy of property

as well as communications. The third privacy claim is of decisional autonomy,

where privacy is the core essence of liberty, the deprivation of which prevents

people from making fundamental choices for themselves. The fourth privacy

1 Black, G. (2011). Publicity Rights and Image. Oxford: Hart Publishing. P. 61-62,

Available at: http://www.duhaime.org/LegalDictionary/P/Privacy.aspx

2Justice K. S. Puttaswamy (Retired) and another v. Union of India and others Writ Petition

(Civil) No. 494 of 2012

3 Warren and Brandeis (1890). The Right to Privacy. Harvard Law Review. Vol.4, no. 5-

193.
claim is made in relation to personal information, that is, information that causes

identification of a person.5

RIGHT TO PRIVACY AND THE CONSTITUTION

The concept of Right To Privacy has existed since the framing of the constitution

even though the framers in the Constituent Assembly did not explicitly express it.

Privacy right was viewed as a basic human right, and not included in Chapter 3 of

the Constitution, which lays down the fundamental rights. Privacy was chiefly

viewed as the citizen’s Right to Privacy in his home.6

The Preamble to the Indian Constitution emphasises the need to secure all

citizens justice, liberty of thought, expression, faith and worship, and fraternity,

assuring the dignity of an individual.

Madhabhushi Sridhar believes that in any non-accountable administration,

privacy of an individual becomes very vulnerable. In principle, anybody who feels

that their privacy has been infringed can file a writ petition under Article 32 or

Article 226, and challenge the state that holds data of personal information, for

selective disclosure of misuse of their data.8

5 Acharya, B. (2015). ‘The Four Parts of Privacy in India’. Economic and Political Weekly,

[Online]. Vol. 50, Issue No. 22, 30 May, 2015. [Accessed 21 December 2017].
6 Constitution of India Bill (1895). p.CIB-18.
8 Sridhar, M, (2017). Right to Privacy and RTI Act. Economic and Political Weekly,

[Online]. Vol. 52, Issue No. 38, 23 Sep, 2017. [Accessed 24 December 2017]
JUDICIAL INTERPRETATIONS

Several judicial decisions over the years have shaped the interpretation of Right

to Privacy.

The Eight Judge Bench of the Supreme Court in M P Sharma v. Satish Chandra,

District Magistrate, Delhi9, and the Six Judge Bench of the Supreme Court in

Kharak Singh v. State of Uttar Pradesh 10 held that Right to Privacy was not

specifically protected by the Constitution. However, in Gobind v. State of Madhya

Pradesh 11 and in R. Rajagopal v. State of Tamil Nadu 12 , it was upheld as a

Fundamental right.

In R M Malkani v. State of Maharashtra13, the Supreme Court followed the same

line of reasoning as in the Kharak Singh case while declaring Section 25 of the

Indian Telegraph Act, 1885 as valid. It observed that even though Article 21

contemplates deprivation of life or liberty through a procedure established by

law, it does not mean that such protection can be accorded to a guilty citizen to

vindicate the law.

In PUCL v. UOI14, the petitioner challenged the constitutional validity of Section

5(2) of the Indian Telegraph Act, 1885 on the premise of Right to Privacy being a

fundamental right under Articles 19(1) and 21 of the Constitution. In this case,

the Court construed telephone conversations to be an important ingredient of

9 (1954) SCR 1077
10 (1964) 1 SCR 332
11 (1975) 2 SCC 148
12 (1994) 6 SCC 632
13 (1973) 1 SCC 471
14 (1997) 1 SCC 301
privacy and held that phone tapping amounted to infringement of Article 21,

unless permitted by a 'procedure established by law'. It was observed that "Right

to privacy as a concept it may be too broad and moralistic to define it judicially.

Whether Right to Privacy can be claimed or has been infringed in a given case

would depend on the facts of the said case.”

In District Registrar and Collector, Hyderabad v. Canara Bank15, Right to Privacy

was reaffirmed as emanating from the liberties guaranteed by Article 19 and

Article 21. It was construed as a right which attaches to the person, also

recognised as a right in India's international commitments under the Universal

Declaration of Human Rights (UDHR) and International Covenant on Civil and

Political Rights (ICCPR).

A Three Judge Bench of the Supreme Court while considering the constitutional

challenge to the AADHAAR scheme on grounds of violation of Right to Privacy17,

referred the question of privacy in view of conflicting decisions to a Nine Judge

Bench to ensure institutional integrity.18 In Justice K. S. Puttaswamy (Retired) and

another v. Union of India and others19, the Court while unanimously ruling that

Right to Privacy is a fundamental right as part of Article 2120 observed that

privacy which has not been couched as an independent fundamental right does

not detract from the constitutional protection afforded to it once the true nature

15(2005) 1 SCC 496
17Jairam Ramesh v. Union of India (W.P.(C) 231/2016)
18Justice K. S. Puttaswamy (Retired) and another v. Union of India and others Writ Petition

(Civil) No. 494 of 2012

19Writ Petition (Civil) No. 494 of 2012
20 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.”

of privacy and its relationship with those fundamental rights which are expressly

protected is understood.21 In 2015, the bench declared that “there appears to be

certain amount of apparent unresolved contradiction in the law declared by this

Court”22 and that a bigger bench would have to be constituted to address this.

The Central Government, backed by the Telecom Regulatory Authority of India,

Unique Identification Authority of India (UIDAI) and various State Governments

argued that citizens did not have absolute right on their body.23 However, on

August 24, 2017, the Supreme Court held that Right to Privacy is “intrinsic to life

and liberty”. It was declared as a fundamental right, specifically under Article 21

of the Constitution, and also as an integral part of the rights to free speech,

freedom of religion, and others. In six separate opinions, the nature of privacy, its

source in the Constitution, its aspects, as well as the circumstances in which the

state might limit it were described.24

IMPLICATIONS OF THE PUTTASWAMY JUDGEMENT

This empowering judgement of the Supreme Court presents a paradigm shift in

the Court’s understanding of what constitutes fundamental rights under the

Constitution. From earlier being considered as an aspect of the existing

21Justice K. S. Puttaswamy (Retired) and another v. Union of India and others
22 Puttaswamy v Union of India 2015: para 12
23 The Times of India (2017). ‘Citizens don’t have absolute right over their bodies:

Government’ [online] Available at: https://timesofindia.indiatimes.com/india/citizens-

dont-have-absolute-right-over-their-bodies-government/articleshow/58486260.cms
[Accessed 26 Dec. 2017]
24 Bhatia, G. (2017). The Supreme Court's Right to Privacy Judgement. Economic and

Political Weekly, [Online]. Vol. 52, Issue No. 44, 04 Nov, 2017. [Accessed 21 December
2017].
fundamental rights, it has now become an integral component of fundamental

rights as a whole. 25

With Right to Privacy being recognised as a fundamental right, online data

protection laws have a greater responsibility of ensuring an individual’s privacy

online, where invasions of data privacy are difficult to detect. The anonymity

available in the internet and the secure encryption of digitised data make the

internet a powerful tool of conspiracy.26

Alok Prasanna Kumar believes that the impact of this judgement goes beyond

data protection. The constitutional validity of the draconian “beef ban” laws,

which not only criminalises the trade but also affects the rights of individuals to

choose what they eat, have been examined through the lens of this judgement.

Suchana Seth has addressed its impact on the use and misuse on artificial

intelligence and machine learning technology.27

The judgement is a significant development for the future of legal interventions

involving sexual minorities. Justice Chandrachud’s opinion held that privacy

includes, at its core, preservation of personal intimacies and sexual orientations.

25 Kumar, P. (2017). Privacy After Puttaswamy Judgement. Economic and Political Weekly,

[Online]. Vol. 52, Issue No. 51, 23 Dec, 2017. [Accessed 24 December 2017].
26 Posner, A. (2008). Privacy, Surveillance, and Law. The University of Chicago Law

Review, vol.75.
27 Ibid.
The Court observed that Right to Privacy recognises personal choices governing a

way of life, that it is not lost merely because an individual lives a public life.28

However, some ambiguities have risen. Firstly, while privacy was upheld as a

fundamental right, it has not been clearly defined. It is now upto the adjudicators

to define what the term entails.29 Secondly, “privacy” can be used as a tool by

public servants to avoid accountability. Thus, there is need for more debate and

discussion before the contents of the Puttaswamy judgement are concretised as

core rights under the constitution.

AADHAAR AND THE RIGHT TO PRIVACY

While AADHAAR was formally visualised by the UPA Government as part of the

Economic Survey of 2009-10,30 it was given legislative backing in March 2016

under the BJP Government led by Narendra Modi. The AADHAAR scheme collects

demographic and sensitive biometric information and has been one of the

primary causes behind the controversy of privacy rights in India.

Some of the major debates revolving the AADHAAR initiative include its usage by

private agencies as a proof of identity, over sharing of information collected,

including disclosure to intelligence or law enforcement agencies, exclusive power

28 Sheikh, D, (2017). Queer Rights and the Puttaswamy Judgement. Economic and

Political Weekly, [Online]. Vol. 52, Issue No. 51, 23 Dec, 2017. [Accessed 24 December
2017].
29 Gandhi, S, (2017). First Define 'Privacy'. Economic and Political Weekly, [Online]. Vol.

52, Issue No. 35, 02 Sep, 2017. [Accessed 26 December 2017].

30 Economic Survey 2009-10, (2010). Government of India. [Available at-

http://indiabudget.nic.in/es2009-10/esmain.htm]
of UIDAI to make complaints, time period for maintaining authentication records

as well as ambiguity in specifying biometric information.31

The current BJP Government has called for mandatory linking of the AADHAAR

card for availing all essential and non-essential services. The government

believes that privacy is an elitist concern and that with linking of the AADHAAR

card, fraud transactions and ghost names of beneficiaries will reduce. It aims at

curbing corruption and welfare leakages through this move.

Overall, the Puttaswamy judgement has been hailed with a lot of enthusiasm.

However, it has also been criticised since the Court has left a certain level of

ambiguity over whether the call by the government for mandatory linking of the

AADHAAR is justifiable or not.

POSSIBLE STEPS TO MITIGATE CONCERNS

Right to Privacy is an important and necessary right, and the Supreme Court’s

recognition of this right as a fundamental right is a positive move. It serves as a

safeguard and puts a check on the actions of the government.

There have been many reports of faulty AADHAAR cards being issued. For

instance, due to a technical glitch, over 5000 people in Madhya Pradesh had the

same birth date on their AADHAAR card. 35 In another instance, the UIDAI

31 The Hindu (2017). Nine Issues to Debate on Aadhaar Bill. [online] Available at:

http://www.thehindu.com/news/national/nine-issues-to-debate-on-aadhaar-
bill/article8341611.ece [Accessed 26 Dec. 2017].
35 India Times (2017). Unique Identification? 5000 Villagers in MP Have Same Birthday

on AADHAAR Card. [online]. Available at-

accepted breach of data in response to an RTI query, where around 210

government websites had made AADHAAR details public.36 Such lapse on part of

the issuing authority lowers the confidence of the people on the government.

While the AADHAAR scheme seems like it will serve the greater good, the

introduction of mandatory linking reflects that the government seems to be in a

rush, not taking adequate care to ensure that sufficient measures for data

protection are in place. The common defence to linking the AADHAAR is that

other countries too have a similar system (like the Social Security Number that is

prevalent in the USA). However, first world countries like the USA that have such

a system in place also have the necessary institutional arrangements and

protection systems to keep the sensitive data safe. India, currently, does not have

such provisions and it is in this direction that steps must be undertaken. The

UIDAI must equip itself to ensure that technical glitches and breach of data must

not occur at any cost.

Thus, while I believe that the Right to Privacy must ultimately serve the nation’s

interests and that it cannot be absolute in any democratic setup, proper

evaluation of every aspect needs to be done. The government must take up the

task of reforming and strengthening the UIDAI and only after this is achieved

should the linking of AADHAAR be made mandatory for all citizens.

https://www.indiatimes.com/news/india/unique-identification-5000-villagers-in-mp-
have-same-birthday-on-aadhaar-card-336547.html [Accessed 28 December 2017]
36 Economic Times (2017). 210 Govt Websites had Made Aadhaar details public: UIDAI.

[online]. Available at-

https://tech.economictimes.indiatimes.com/news/corporate/210-govt-websites-made-
public-aadhaar-details-uidai/61719345 [Accessed 28 December 2017]
CONCLUSION

Privacy was not a primary concern in India at the time of independence, and was

deliberately omitted from the Constitution. However, it has tremendously

evolved and today, it is widely relevant. The concept of Right to Privacy has been

examined and re-examined several times through various judicial judgements,

and it is only now that the apex judicial body of the country has recognised the

privacy right as a fundamental right of every citizen.

The declaration of privacy as a fundamental right has far-reaching implications.

The government must examine the extent of privacy in the background of a

globalised information based society. The validity of the AADHAAR scheme will

have to meet the challenge of privacy as a fundamental right. Indirect issues such

as implications on sexual minority communities and the beef ban among others

will also have to be addressed. Thus, while this move is being widely celebrated,

the state is bestowed with the mammoth task of balancing an individual’s privacy

with national and economic security of the country.

BIBLIOGRAPHY

Acharya, B. (2015). ‘The Four Parts of Privacy in India’. Economic and Political
Weekly, [Online]. Vol. 50, Issue No. 22, 30 May, 2015. [Accessed 21 December
2017].

Bhatia, G. (2017). The Supreme Court's Right to Privacy Judgement. Economic
and Political Weekly, [Online]. Vol. 52, Issue No. 44, 04 Nov, 2017. [Accessed 21
December 2017].

Black, G. (2011). Publicity Rights and Image. Oxford: Hart Publishing. P. 61-62,
Available at: http://www.duhaime.org/LegalDictionary/P/Privacy.aspx

Economic Survey 2009-10 (2010). Government of India. Available at-
http://indiabudget.nic.in/es2009-10/esmain.htm]

Economic Times (2017). 210 Govt Websites had Made Aadhaar details public:
UIDAI. [online]. Available at-
https://tech.economictimes.indiatimes.com/news/corporate/210-govt-
websites-made-public-aadhaar-details-uidai/61719345 [Accessed 28 December
2017]

Gandhi, S. (2017). First Define 'Privacy'. Economic and Political Weekly, [Online].
Vol. 52, Issue No. 35, 02 Sep, 2017. [Accessed 26 December 2017].

India Times (2017). Unique Identification? 5000 Villagers in MP Have Same
Birthday on AADHAAR Card. [online]. Available at-
https://www.indiatimes.com/news/india/unique-identification-5000-villagers-
in-mp-have-same-birthday-on-aadhaar-card-336547.html [Accessed 28
December 2017]

Kumar, P. (2017). Privacy After Puttaswamy Judgement. Economic and Political
Weekly, [Online]. Vol. 52, Issue No. 51, 23 Dec, 2017. [Accessed 24 December
2017].

Posner, A. (2008). Privacy, Surveillance, and Law. The University of Chicago Law
Review, vol.75.

Sheikh, D, (2017). Queer Rights and the Puttaswamy Judgement. Economic and
Political Weekly, [Online]. Vol. 52, Issue No. 51, 23 Dec, 2017. [Accessed 24
December 2017].

Sridhar, M, (2017). Right to Privacy and RTI Act. Economic and Political Weekly,
[Online]. Vol. 52, Issue No. 38, 23 Sep, 2017. [Accessed 24 December 2017]

The Hindu (2017). Nine Issues to Debate on Aadhaar Bill. [online] Available at:
http://www.thehindu.com/news/national/nine-issues-to-debate-on-aadhaar-
bill/article8341611.ece [Accessed 26 Dec. 2017].

The Times of India (2017). ‘Citizens don’t have absolute right over their bodies:
Government’ [online] Available at:
https://timesofindia.indiatimes.com/india/citizens-dont-have-absolute-right-
over-their-bodies-government/articleshow/58486260.cms [Accessed 26 Dec.
2017]

Warren and Brandeis (1890). The Right to Privacy. Harvard Law Review. Vol.4,
no. 5-193.