RIGHT TO PRIVACY IN CYBER WORLD

INTRODUCTION

Human rights have always been a part of our human conscience. The concept of human rights can be traced back to the natural law philosophers, such as, Locke and Rosseau. The concept of human rights protects individuals against the excesses of state. The concept of human rights represents an attempt to protect the individual from oppression and injustice. These human rights have been added into the Indian Constitution in the form of ‘Fundamental Rights’.

Basically, the underlying idea is that the certain basic and fundamental rights protect a person and takes them out of the reach of transient political majorities. These are regarded as essential as these should not be tampered, entrenched or violated. The written constitution guarantees a few rights to the people and forbid the governmental organizations to interfere with the same.[1]

The Constitution which lays down the basic structure of a nation’s polity is built on the foundations of certain fundamental values. The vision of our founding fathers and the aims and objectives which they wanted to achieve through the Constitution are contained in the Preamble, the Fundamental Rights and the Directive Principles. These three may be described as the soul of the Constitution and the testament of the founding fathers to the succeeding generations together with the later Part on Fundamental Duties.[2]

One of these rights which cannot be denied to the person is the Right to Privacy. It is a natural right and is derived from Articles 14, 19 and 21 of the Indian Constitution. It is a right which need not be given expressly to a person because this is a human right which the person gets by virtue of his birth.

  • WHAT IS “PRIVACY”?

The word “privacy” is a very simple yet very complicated word. This word does have a specific definition because this is a very multidimensional concept and cannot be explained. It has no legal definition and deserves more enumeration than to be defined. This is a very crucial term and has emerged recently.

The simplest definition of privacy was given by Judge Thomas Cooley in Olmstead V United States[3], he called it, “the right to be let alone,”. According to him, a person has the right to be left alone on his own terms and one should not intrude into other’s life without his permission. Invasion of privacy means “an unjustified exploitation of one’s personality or intrusion into one’s personal activity, actionable under tort law and sometimes under Constitutional law”.

In Gobind vs. State of Madhya Pradesh[4], Privacy, in its simplest sense, allows each human being to be left alone in a core which is inviolable yet the autonomy of the individual is conditioned by her relationships with the rest of society.

According to etymological meaning of privacy has been taken from Latin term ‘privatus’ which means’ separated from the rest’ deprived of something, especially office, participation in the government’ and from ‘privo’ which means ‘to deprive’, is the ability of an individual or group to seclude themselves or Information about themselves and there by reveal themselves selectively.[5]

This clearly shows that Privacy is something which a person is entitled to by birth and there is no need for any written law to confirm it. It should be understood as it is and is a right which cannot be infringed.

  • WHAT IS RIGHT TO PRIVACY?

According to Blackstone’s Law Dictionary, Right to Privacy means “a right to be let alone”; the right of a person to be free from any unwarranted interference.

Recently, a judgment was delivered by Justice D.Y. Chandrachud that overruled the principles evolved in the Habeas Corpus case in the case of Justice K.S. Puttaswamy and ors. v. Union of India, which evolved as a landmark judgment in the history of India with regards to the status of Right to Privacy.

The term Right to Privacy cannot be easily conceptualized. Privacy is a value, a cultural state or condition that is intended towards individual on collective self-realization varies from society to society. Right to privacy as to right to be let alone thus regarded as a manifestation of an inviolate personality, a hub of freedom and liberty from which the human being had to be free from invasion.

The basic thought behind prefacing of such a principle was to protect personal writings and personal productions and its scope extends not only from theft and physical misuse but against publication in any form.

Fundamental rights are basic rights which are inherited in every human being and such rights should be endowed with every citizen of the country along with proper remedies. Certain confidential and furtive part of the human beings cannot be proclaimed at public domain. After the passing of the recent case of 2017, right to privacy has obtained impetus throughout the world and it has been renowned as a fundamental right to privacy.[6]

  • IMPORTANCE OF RIGHT TO PRIVACY

Be it the Ramayana or Mahabharata or Manu Smriti, they have all considered privacy to be an important aspect of an individual’s life. A review of these scriptures proves the existence of rules that would respect the privacy of an individual in ancient Indian society. Kautilya in his Arthashastra written around 321-296 B.C. has prescribed a detailed procedure to ensure right to privacy while ministers were consulted. So, looking from the historical point of view, privacy can be considered to be civil liberty that is indispensable to the freedom and dignity of an individual. From the ancient history of India, as we gradually move further then we will find that by the nineteenth and twentieth century, the so-called privacy was associated with that of inviolability of house of property.

Even though a debate and discussion did take place in the Constituent Assembly regarding right to privacy. The formal proceeding of the Constituent Assembly started with the drafting of the in December 1946 and the Constituent Assembly constituted various committees whose main work was to provide reports to the Drafting committee, which would in turn formulate a draft of the Constitution. It was at the Committee Stage that a Sub-Committee group did try to advocate the right to privacy to be a part of the Fundamental Rights.

From the very beginning, there were strong differences of opinion related to the right to privacy, members like B.N Rau, A. K Ayyar and M.K. Panikkar had a strong objection to right to privacy to be upraised to the status of a Fundamental Right. In fact the most open criticism of right to privacy was done by Alladi Krishnaswami Ayyar and B. N. Rau, who were the members of the Constituent Assembly, the comments of both these members shows their resentment towards the right to privacy.

Ayyar was of the opinion that granting the right to privacy and secrecy in correspondence would be disastrous, it would elevate every private/ civil communication to that of State papers. This would adversely affect civil litigation where documents form an essential part of the evidence and B.N. Rau was primarily concerned with the interference of the right to privacy with investigative powers of the police authorities. Later Both Rau and Ayyar were successful in persuading the Advisory Committee to leave out provisions relating to the right to privacy.

 During the ongoing sessions of the Constituent Assembly, there had been a couple of times when an endeavor was made to include right to privacy within the chapter of fundamental rights. Like on 30th April 1947 one of the members of the Constituent Assembly Somnath Lahiri had presented a proposal to make the right to privacy of correspondence a fundamental right, ‘the privacy of correspondence shall be inviolable and may be infringed only in cases provided by law……..’[7] However this proposal failed to get a positive response in the Assembly. Again after almost a year another attempt was made by Kazi Syed Karimuddin on 3rd Dec 1948 to incorporate “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue but upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.’’[8] 

So, the Indian Constitution failed to recognize the right to privacy as a part of the Fundamental Rights to be conferred to the citizens of India. But over a period of time none other than the Supreme Court of India has played an important role to addressed a number of cases that has dealt with right to privacy in some form or the other and which has helped the right to privacy attain its rightful position as a part of Right to Life and Liberty under Article 21.

In one of the earliest cases, M.P. Sharma v. Satish Chandra[9], where the Supreme Court on the issue of ‘power of search and seizure’ held that privacy cannot be brought under fundamental rights as it was something not related to the Indian Constitution. It was seen that the Supreme Court had a narrow interpretation in this case, limiting itself only to the prescribed statutory regulation.

A decade later there was another important case, which was Kharak Singh v. The State of U.P.[10] that dealt with the issue of surveillance and that whether the surveillance which was defined under the Regulation 236 of the U.P. Police Regulation led to the infringement of fundamental rights or not and that did right to privacy come under fundamental right or not. The verdict that was given by the Supreme Court denied that the right to privacy was a fundamental right and that it was not a guaranteed right under our Constitution and therefore the attempt to ascertain the movement of an individual merely in a way in which privacy is invaded is not an infringement of a fundamental right guaranteed under Part III of the Indian Constitution. And it however held that Article 21(right to life) was the repository of residuary personal rights and recognized the common law right to privacy. However in this case Justice Subba Rao did say that privacy is a facet of Liberty.

The next case was Govind v. State of M.P.[11] Even though this case was alike the Kharak Singh case the approach towards this case was very different. It upheld the validity of Madhya Pradesh Police Regulation Act of 1961, under reasonable restriction. The judicial approach was that there is an existence of right to privacy in terms of the different guarantees provided by Part III of the Indian Constitution. However, the Supreme Court also observed that in the absence of legislative enactment, the right to privacy will necessarily have to go through a ‘case-by-case development’ because just one single case will be inadequate to see the exceptions and consequences of right to privacy. But one cannot deny the fact that this case did broaden the scope of Article 21 so that the right to privacy could fall into it.

In the case of ADM Jabalpur v. Shivakant Shukla[12], the Supreme Court wanted to determine that whether the right to personal liberty is restricted by any restriction other than those which are contained in the Constitution and statute law and it establishes that the right to privacy may not be expressly guaranteed, but it may be implicit due to its inclusion in common law. Justice Khanna had observed: “Article 21 is not the sole repository of the right to personal liberty…no one shall be deprived of his life and personal liberty without the authority of laws follows not merely from common law, it flows equally from statutory law like the penal law in force in India.”

Then it was the Maneka Gandhi v. Union of India[13] case where the Supreme Court in a broader sense interpreted Article 21. The Supreme Court stated that the term ‘natural law’ which included the right to personal liberty and rights of personal security were incorporated in Article 21 of the Indian Constitution.

R. Rajagopal v. State of Tamil Nadu[14] was one of the first cases which elaborated the development and the span of right to privacy in a detailed manner. The apex court had held that the right to privacy was implicit to the right to life and liberty which Article 21 guaranteed. It further recognized that a citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education amongst other matters. None can publish anything concerning the above matters without any consent and also that the right to privacy can be both an actionable claim and also a fundamental right.

Unique Identification Authority of India & Anr. v. Central Bureau of Investigation[15] This was a case that involved the Central Bureau of Investigation that had sought to access a huge database that had been compiled by the Unique Identity Authority of India for investigative purposes of criminal offences. However, the Supreme Court stated that the UIDAI should not be transferring any biometrics information who has been allotted the Aadhar number without the written consent of the individual person to any agency or third party. More so, the honorable Court also stated that no person shall be deprived of any kind of services for want of Aadhar number in case he/she is otherwise eligible/entitled. The various authorities would have to modify their circulars/forms etc. so that compulsory requirement of Aadhar Number is not required in order to meet the requirement of the interim order passed by the Court forthwith.

  • JUSTICE K.S. PUTTUSWAMY (RETD.) & ANR. V. UNION OF INDIA & ORS.[16]

The verdict was the outcome of a petition challenging the constitutional validity of the Indian biometric identity scheme Aadhar. This was a case relating to the Unique Identity Scheme that was discussed along with the right to privacy. The question that was placed before the court was whether a right like right to privacy was guaranteed under the Constitution or not. The Attorney General of India had however argued that privacy did not have a place in the fundamental right guaranteed to Indian citizens. Eventually, the Court decided that the question related to the right to privacy should be left to be discussed by a larger constitutional basis because all those judgments that denied the existence of the right to privacy were declared by the larger benches than the cases where the right to privacy was accepted as a fundamental right. Due to this an unresolved controversy emerged, that compelled the Court to refer this issue to a larger bench so that it could be settled.

The unanimous judgment by the Supreme Court of India (SCI) in Justice K.S. Puttuswamy (Retd) vs. Union of India is a resounding victory for privacy. The order signed by all nine judges declares: The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.

Finally, it was on 24th August 2017, that a historical judgement was made by the Supreme Court of India that stated the right to privacy to be a part of fundamental rights that was protected by the Indian Constitution. The Supreme Court declared that the right to privacy stems from the fundamental right to life and liberty and that it would be having a long lasting consequence. The Nine- Judge bench of the Supreme Court was involved in the case of Puttuswamy vs. Union of India that declared the right to privacy to be protected under Part III of the Constitution of India. The Judgment was in response to the reference made in connection with the challenge to India’s National Identity project called Aadhar.[17]

  • RIGHT TO PRIVACY IN CYBER WORLD

Hacking into someone’s private property or stealing some one’s intellectual work is a complete violation of his right to privacy. The Indian constitution does not specifically provide the “right to privacy” as one of the fundamental rights guaranteed to the Indian citizens but it is protected under IPC.

Cyber space means a non-physical terrain created by computers. Most often than not, in the recent times, citizens (also referred to as ‘netizens’) have been increasingly making use of the cyber space to seclude themselves from their social circle. There is a general belief that these people are private and want to secure their privacy. In reality, it turns out that there is a serious threat of infringement of privacy of an individual in the cyber space.

In order to recognize digital evidence and electronic records, the Information Technology Act (hereinafter referred to as ‘the Act’) came into force on and from 17.10.2000. The preamble of the act would read as follows:- “An Act to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as “electronic commerce”, which involve the use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies and further to amend the Indian Penal Code, the Indian Evidence Act, 1872, the Bankers’ Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934 and for matters connected therewith or incidental thereto.

The Act also recognized few forms of cyber crimes and provided for punishments for the same. The cyber crimes made punishable under the Act are set out from sections 65 to 85. The punishment prescribed thereunder, ranges from imprisonment upto three years to imprisonment to life and any fine amount could be imposed. An upper ceiling limit ranging from Rs.1,00,000/- to Rs.5,00,000 is also prescribed. The cyber crime is an evolving field and therefore with changing times, more and more crimes that emerge from violations committed in the cyber space is detected. The common forms of the cyber crimes have been broadly categorized into cyber crimes against person and cyber crimes against property.[18]

Right to privacy is an important natural need of every human being as it creates boundaries around an individual where the other person’s entry is restricted. The right to privacy prohibits interference or intrusion in others private life. The apex court of India has clearly affirmed in its judicial pronouncements that right to privacy is very much a part of the fundamental right guaranteed under article 21 of the Indian constitution.

Thus, right to privacy is coming under the expended ambit of article 21 of Indian constitution. So, whenever there is some cyber crime which is related to the persons private property or its personal stuff then the accused can be charged of violation of article 21 of Indian constitution, and prescribed remedy can be invoked against the accused.

The legislations with regard to the digital communications are only a handful. Already, the Information and Technology Act has been discussed. The other relevant piece of statute in this regard is The Indian Telegraph Act, 1883 which governs the use of wired and wireless telegraphy, telephones, teletype, radio communications and digital data communications. It gives the Government of India exclusive jurisdiction and privileges for establishing, maintaining, operating, licensing and oversight of all forms of wired and wireless communications within Indian territory. It also authorizes government law enforcement agencies to monitor/intercept communications and tap phone lines under conditions defined within the Indian Constitution. The act came into force on October 1, 1885. Since that time, numerous amendments have been passed to update the act to respond to changes in technology.

The Telecom Commercial Communications Customer Preference Regulations 2010 is one of the pieces of regulations, which prevents the service providers from arbitrary sharing of personal information. Thus, all the service providers have to take necessary measures to protect the privacy and information shared on their networks.

The Hon’ble Supreme Court has also dealt with the right to privacy in the context of interception of phone calls in the case of Amar Singh v. Union of India[19].   

The question, whether interception of telephonic message /tapping of telephonic conversation constitutes a serious invasion of an individual right to privacy was considered by Hon’ble Apex Court in detail in the case of People’s Union case[20], wherein it was held as under:

“17. We have, therefore, no hesitation in holding that right to privacy is a part of the right to “life” and “personal liberty” enshrined under Article 21 of the Constitution. Once the facts in a given case constitute a right to privacy, Article 21 is attracted. The said right cannot be curtailed “except according to procedure established by law.

18. The right to privacy — by itself — has not been identified under the Constitution. 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. But the right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as “right to privacy”.

Conversations on the telephone are often of an intimate and confidential character. Telephone conversation is a part of modern man’s life. It is considered so important that more and more people are carrying mobile telephone instruments in their pockets. Telephone conversation is an important facet of a man’s private life. Right to privacy would certainly include telephone conversation in the privacy of one’s home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law.”  

Recently, Whatsapp, widely used messaging app was also accused of infringing the Right to Privacy of individuals for which Whatsapp convinced its users that the messages sent by the users are encrypted and thus does not infringes the privacy of the people 

  • CONCLUSION

In conclusion, it is clear that Right to privacy had no place in the Indian Constitution in the beginning because it was considered to be a natural right which a person gets by virtue of his birth but then there were no remedies in case the same got infringed. With time evolution of the right took place with precedents and judgements and now has a unique place in the Constitution. It is also found that each individual accessing the cyber space ought to be better informed about the advantages and disadvantages of using the same. It is necessary to be a responsible user of the cyber space and awareness is the key. The law in respect to the right to privacy with respect to cyber space is still in its nascent stage and therefore, the individuals have a key role to ensure that their rights to privacy are not intruded due to ignorance.


[1] M.P. Jain, Indian Constitutional Law, Lexis Nexis, 7th Edition

[2] Available at https://legalaffairs.gov.in/sites/default/files/chapter%203.pdf, Visited on 13 April, 2021

[3] 277 U.S. 438 (1928)

[4]  AIR 1975 SC 1378

[5] Sangh Priy Gautam, “THE RIGHT TO PRIVACY IN EMERGING DIGITAL ERA : INDIAN LEGAL SCENARIO” 2014-2015, (Unpublished work, DR. B.R. AMBEDKAR UNIVERSITY,AGRA)

[6] Available at http://www.legalserviceindia.com/legal/article-676-legal-analysis-of-right-to-privacy-in-india.html#:~:text=Right%20to%20privacy%20is%20a%20requisite%20of%20right%20to%20life,21%20of%20the%20Indian%20Constitution.&text=So%20as%20to%20give%20each,the%20rest%20of%20the%20world., Visited on 15 April 2021.

[7] Available at https://www.constitutionofindia.net/constitution_assembly_debates/volume/3/1947-04-30?paragraph_number=101#3.19.101, Visited on 20 April, 2021.

[8] Available at https://www.constitutionofindia.net/constitution_assembly_debates/volume/7/1948-12-03#7.66.11, Visited on 20 April, 2021.

[9] AIR 1954 SC 300

[10] AIR 1963 SC 1295

[11] Supra note 4

[12] AIR 1975 SC 1378

[13] AIR 1978 AIR 597, 1978 SCR(2) 621

[14] AIR 1995 SC 264

[15] (Crl) No(s).2524/2014

[16] AIR 2014 SC 2524

[17] Sargam Thapa, “The Evolution Of Right To Life In India”, Volume 10 Issue 2 Ser. I, February 2021,PP 53-58

[18] Deepthi Arivunithi, “Cyber Space Vis-à-vis Right to Privacy”, Available at http://tnsja.tn.gov.in/article/Cyber%20space%20vis%20-%20corrected%20new%2012082018.pdf, Visited on 18 April, 2021.

[19] 7 (2011) 7 SCC 69

[20] People’s Union for Civil Liberties (PUCL) v. Union of India, reported in (1997) 1 SCC 301

Auhtor: Anubha Chawla

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