Privacy
is a fundamental human right, enshrined in numerous international human rights
instruments. It is central to the protection of human dignity and forms the
basis of any democratic society. It also supports and reinforces other rights,
such as freedom of expression, information and association. Activities that restrict the right to
privacy, such as surveillance and censorship, can only be justified when they
are prescribed by law, necessary to achieve a legitimate aim, and proportionate
to the aim pursued.
As innovations in
information technology have enabled previously unimagined forms of collecting,
storing and sharing personal data, the right to privacy has evolved to
encapsulate State obligations related to the protection of personal data. A number of international instruments
enshrine data protection principles, and many domestic legislatures have
incorporated such principles into national law.
Privacy also has
implication for the freedom of opinion and expression. The Report of the
Special Rapporteur on the promotion and protection of the right to freedom of
opinion and expression emphasises that the “right to privacy is often
understood as an essential requirement for the realization of the right to
freedom of expression. Undue interference with individual’s privacy can both
directly and indirectly limit the free development and exchange of ideas.”
The
Constitution of India does not specifically guarantee a right to privacy,
however through various judgements over the years the Courts of the country
have interpreted the other rights in the Constitution to be giving rise to a
(limited) right to privacy – primarily through Article 21 – the right to life
and liberty. In 2015, this interpretation was challenged and referred to a
larger Bench of the Supreme Court (the highest Court in the country) in the writ
petition Justice K.S Puttaswamy & Another vs. Union of India and Others,
the case is currently pending in the Supreme Court.
The
constitutional right to privacy in India is subject to a number of
restrictions. These restrictions have been culled out through the
interpretation of various provisions and judgements of the Supreme Court of
India:
•
The right to privacy can be restricted by procedure established by law which
procedure would have to be just, fair and reasonable (Maneka Gandhi v. Union of
India);
•
Reasonable restrictions can be imposed on the right to privacy in the interests
of the sovereignty and integrity of India, the security of the State, friendly
relations with foreign States, public order, decency or morality, or in
relation to contempt of court, defamation or incitement to an offence; (Article
19(2) of the Constitution of India, 1950)
•
The right to privacy can be restricted if there is an important countervailing
interest which is superior (Gobind v. State of M.P.);
•
The right to privacy can be restricted if there is a compelling state interest
to be served (Gobind v. State of M.P.);
•
The protection available under the right to privacy may not be available to a
person who voluntarily thrusts her/himself into controversy (R. Rajagopal v.
Union of India).
•
Like most fundamental rights in the Indian Constitution, the right to privacy
has been mostly interpreted as a vertical right applicable only against the
State, as defined under Article 12 of the Constitution, and not against private
citizens. (Zoroastrian Cooperative Housing Society v District Registrar)
