Authored by: Subhajit Samanta
(Winner of Article Writing Competition by Bare Law 2021)
Privacy is a fundamental right granted to every human being across the world. It is the fundamental principle of human dignity and freedom. The right to privacy is revealed and recognized in all the major constitutions in the world and India is no different from it. In India, a citizen has the right to safeguard the privacy of his own identity, family members, marriage, procreation, and education among other matters which are dropped under article 21 of the Constitution of India. Nothing can publish which are concerning the above-mentioned matters without his consent whether it is truthful, eulogizing, or judgemental. If anyone does so then he will be violating the right of the person concerned and it would be liable in an action for damages. However, this context may be different if he deliberately puts into controversy or voluntarily invites or raises a controversy. Though, this rule is subject to an exception that if any publication of such matters is based on public record including court record it would be admissible. If a matter becomes a matter of public record the right to privacy no longer exists and it becomes a legitimate subject for comment by the press and media among others. Again, an exception ought to be turned out of this rule in the interest of decency under article 19 (2) as laid down in R. Rajagopal v. State of T. N. Hence, a female who is the victim of a sexual assault, kidnapping, addiction or an offense like rape that would not be subjected to the indignity of her name and the incident being published in press or media. The second exception is that the right to privacy or the remedy of action for damage is simply not available to public officials inasmuch the criticism concern the discharge of their public duties and not even when the publication is based on irrelevant facts and statements until the official may establish that the statement has been constructed impulsive disregard of truth and all that with assumed contemner requires to do or it is to prove that he has written after a reasonable verification of facts.
INTRODUCTION
“If we don’t act now to safeguard our privacy, we could all become victims of identity theft”.
Bill Nelson.
Primarily, privacy is a constitutionally protected right that appears of an individual’s life and his personal liberty under article 21 of the Constitution. It also arises in varying contexts of freedom and human dignity which are recognized and guaranteed in part III of the Constitution. Privacy relishes a substantial legal framework internationally for the freedom and dignity of a human being. Article 12 of the Universal Declaration of Human Rights (UDHR) 1948 and article 17 of the International Covenant on Civil and Political Rights (ICCPR) 1966 legally safeguard the persons against any interference with another privacy, family, honor, home, and reputation. In 1979, India was signed and approved the ICCPR without any reservation. Besides, the Charter of Fundamental Rights of the European also acknowledges in the respect of privacy for the family, home, and communications. It also acknowledges the protection of any personal information and collection for a specified legal purpose. Though, the right to privacy has been recognized as the fundamental right in other nations such as the United States, Canada, South Africa, The European Union, and the UK.
RIGHT TO PRIVACY AND ADHAAR CARD
In Justice K. S. Puttaswamy v. Union of India the Aadhaar Card Scheme of the Government of India under which the Government of India was collecting and compiling both the demographic and biometric data of the residents of the country to be used for various purposes then it was attacked on various counts including the violation of the right to privacy. Shri Mukul Rohatgi, the Attorney-General, submitted that in view of Supreme Court’s judgments in M. P. Sharma v. Satish Chandra and Kharak Singh v. the State of U.P. decided by eight Judge Bench and six Judge Bench respectively. The legal position regarding the right to privacy as a fundamental right to privacy was uncertain. The prohibition and divergence of opinion commenced with the judgment of Supreme Court laid down by smaller Benches of two or three Judges in Gobind v. the State of M.P., R. Rajagopal v. State of Tamil Nadu, and Peoples Union for Civil Liberties (PUCL) v. Union of India. Such divergence of opinion was also submitted by the counsel of one of the defendants. Since there emerged to be a certain amount of undetermined contradiction in the law declared by the Supreme Court, it governed the Registry the matter to be put down before the Chief Justice of India for desirable orders. The Court by an interim order directed the Union of India to confer wide publicity in the electronic and print media including radio and television networks that it was not inescapable for a citizen to acquire an Aadhaar Card and the production of an Aadhaar Card not to be a condition for acquiring any benefit due to a citizen as well as the unique identification number or the Aadhaar Card shall not be used by the respondents for any grounds other than PDS Scheme in relation to the dispensation of food grains and cooking fuel such as kerosene and LPG distribution Scheme.
Thereafter, the Supreme Court in Justice K. Puttaswamy v. Union of India by a Bench of nine Judge overruled M.P. Sharma v. Satish Chandra which held that the right to privacy is not guaranteed by the Constitution. It also overruled Kharak Singh v. the State of U.P. to the extent it had held the right to privacy not protected by the Constitution, although invalidating domiciliary visits at night on the ground of violation of ordered liberty was an implicit recognition of the right to privacy. It held in the Kharak Singh case that the Court’s reliance upon the majority decision of A. K. Gopalan v. the State of Madras does not reflect the correct position in view of Maneka Gandhi v. Union of India and R.C. Cooper v. Union of India. The right to privacy is guaranteed as an inherent 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. The decisions are subsequent to the Kharak Singh case that which enunciated the position that privacy is 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 lay down the correct proposition of law.
CONCLUSION
At present, the right to privacy has been inserted in several laws, rules, and guidelines which would be improved to make them in accordance with the fundamental right. Some of these would be included homosexuality and LGBT rights, unauthorized phone taps, generative rights, and juvenile justice. Besides, the Right to Privacy would delegate the power to citizens of the nation who are exploited knowingly and unknowingly with regard to their personal information as well as society would be empowered and the nation will glimpse a revolution towards growth and development on the stripe of equality and justice to its people.
