X

Right to Privacy- Is it an absolute right?

Right to Privacy

The Constitution of India includes the Right to Privacy under Article 21, which requires of right to life and personal liberty. The term ‘privacy’ is a dynamic concept and multi-dimensional under the Indian Constitution. Other laws such as the Laws of Torts, Criminal Laws as well as Property Laws also recognize the Right to Privacy. Privacy is something that deals with the individual privacy and also which needed to be protected earlier before the passing of a landmark case, i.e., K.S. Puttaswamy v. Union of India in 2017 as it was, previously, not considered a fundamental right under the Indian Constitution, but now, at present, it is recognized as a fundamental right, which is intrinsic under Article 21.

Everyone has their own thoughts, feelings, body, property, relationships, and so on. Naturally, this implies that they are entitled to some degree of autonomy in this regard. This is the fundamental right to privacy. Scholars have theorised and analysed it for centuries, with its origins in Greek philosophy by thinkers such as Aristotle, Locke, and others. In 1890, a renowned study published the first modern notion of the right to privacy. It defined privacy as “now the right to life has come to mean the right to enjoy life, — the right to be left alone.” Another significant source of law clarified that privacy is the “right to be let alone; the right of a person to be free from any unwarranted publicity; the right to live without any unwarranted interference by the public in matters with which the public is not necessarily concerned”.

History

The concept of a human “right to privacy” begins when the Latin word ius expanded from meaning “what is fair” to include “a right – an entitlement a person possesses to control or claim something,” by the Decretum Gratiani in Bologna, Italy in the 12th century.[1]

In the United States, an article in the 15 December 1890 issue of the Harvard Law Review entitled “The Right to Privacy,” written by attorney Samuel D. Warren II and future U.S. Supreme Court Justice Louis Brandeis, is often cited as the first explicit finding of a U.S. right to privacy. Warren II and Brandeis wrote that privacy is the “right to be let alone,” and focused on protecting individuals. This approach was a response to recent technological developments of the time, such as photography and sensationalist journalism, also known as “yellow journalism.”[2]

Privacy rights are inherently intertwined with information technology. In his widely cited dissenting opinion in Olmstead v. United States (1928), Brandeis relied on thoughts he developed in the article “The Right to Privacy.”  In that dissent, he urged that personal privacy matters were more relevant to constitutional law, going so far as to say that “the government was identified as a potential privacy invader.” He writes, “Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.” At that time, telephones were often community assets, with shared party lines and potentially eavesdropping switchboard operators. By the time of Katz, in 1967, telephones had become personal devices with lines not shared across homes and switching was electro-mechanical. In the 1970s, new computing and recording technologies raised more concerns about privacy, resulting in the Fair Information Practice Principles.

In recent years there have been few attempts to clearly and precisely define the “right to privacy.” [3]

A Complex Issue in the Current Application of the Right to Privacy

We are currently living in the information age, which includes globalization, technological evolution, powerful location and data surveillance systems, and so on. As a result, it is critical to consider the impact on the application of the right to privacy. According to one school of thought, privacy is a component of basic human dignity as defined by our fundamental rights. As a result, it should be absolute to everyone, regardless of circumstance. Article 12 of the Universal Declaration of Human Rights (UDHR) is frequently invoked in this context, which states that “no one shall be subjected to arbitrary interference with his privacy, family, home, or correspondence, or to attacks on his honour and reputation.” Everyone has a legal right to be protected from such interference or attacks.”

Other scholars, however, believe that privacy must be limited in order to prevent unethical use. This opposing argument clarifies that in times of emergency, personal privacy must be sacrificed for the public good, national security, crime prevention, life protection, and so on. This is especially relevant today, given how multiple countries, including Israel, China, Austria, and India, used smartphone applications to track user health and data in an effort to halt the spread of coronavirus. As a result, we can safely state that privacy is a multifaceted and complex issue.

The Right to Privacy is not absolute

In the Supreme Court judgement (“Ritesh Sinha Judgement”), a three-judge bench of the Supreme Court of India observed that the fundamental right to privacy is not absolute and is limited by certain factors instead. The issue raised before the bench was whether a person can be compelled to submit his/her voice samples for the purposes of identification in an ongoing criminal investigation. The appeal challenged an order in which a chief judicial magistrate had summoned the appellant for recording his voice sample. The voice sample was to be matched with conversations recorded on a mobile phone seized from the co-accused.

The courts in India have on various occasions held that the fundamental rights as enshrined in our constitution are not absolute. Similarly, the Supreme Court in Justice K.S. Puttaswamy vs. Union of India (“Puttaswamy Judgement”) held that the fundamental right to privacy is also not absolute. This is among the first cases to limit the application of the right to privacy since it has been recognized as a fundamental right.

In the Ritesh Sinha Judgement, the Supreme Court held that the fundamental right to privacy “must bow down to compelling public interest”. Since the issue of privacy was not argued upon in front of the bench, it refrained from commenting on what these compelling public interests are or from laying down a test to determine such cases. At this stage, the judgement’s significance lies in the fact that a person may be ordered to give his/her voice sample by a judicial magistrate for the purposes of a criminal investigation.

The judgement has been received with mixed responses. A legal news website lauded the judgement and found it to be “a breakthrough in criminal investigative process”. A Meerut based advocate agreed with the findings of the judgement. Another Delhi based lawyer opposed the judgement and said that the procedure adopted by the court to limit the scope of the fundamental right was incorrect.

Given the lack of clarity on this issue, it is difficult to comment on the kind of compelling circumstances that will limit the scope of the right to privacy or how the courts interpret the application of this right. The Puttaswamy Judgement laid down the foundation for the right to privacy as a fundamental right in India and also identified that it is not absolute, similar to other fundamental rights. However, there is a need for more judgements similar to the Ritesh Sinha Judgement to elaborate on how the right to privacy will operate on a practical, case-by-case basis.[4]

Through this judgement, we came to the conclusion that the Right to Privacy is a fundamental right and not an absolute right.

Conclusion

According to Article 21 of the Indian Constitution, the right to privacy is a requisite for the right to life and personal liberty. The right to privacy is not an absolute right; it may be subject to reasonable restrictions for the prevention of crime, public disorder, and the protection of others; however, it may arise out of a specific relationship that may be commercial, matrimonial, or even political, and where there is a conflict between these two derived rights, the one that advances public morality and public interest will prevail.

“Looking at the previous judgments of the Apex court in its seminal years, one can observe the cachet of the court to treat the Fundamental Rights as water-tight compartments in the case of A.K. Gopalan v. State of Madras, the relaxation of this stringent stand could be felt in the decision of Maneka Gandhi v. Union of India, the right to life was considered not to be the epithet of a mere animal existence, but the guarantee of full and meaningful life.”[5]

“Considering ourselves a part of a society, we often countermands that we are individuals first and in this world each and every person or individual need his/her private space. So as to give each individual that right, the State accordingly is giving those private moments to be enjoyed with those whom they want without the prying eyes of the rest of the world.”[6]

This blog has been written by B.Kripiya Sharma, a student of Lovely Professional University, 2nd-year B.A., L.L.B.

 

References

[1] James Griffin (1 November 2007). “The Human Right to Privacy” (PDF). San Diego Law Review. p. 3. Retrieved 29 September 2020.

[2]  Warren, Samuel; Brandeis, Louis D. (1890). “The Right to Privacy”Harvard Law Review4 (5): 193–220. doi:10.2307/1321160JSTOR 1321160. Archived from the original on 23 October 2008. Retrieved 3 May 2022.

[3] https://en.wikipedia.org/wiki/Right_to_privacy

[4] https://www.ikigailaw.com/supreme-court-right-to-privacy-is-not-absolute/#acceptLicense authorized by Rishwin Chandra Jethi

[5] https://www.legalserviceindia.com/legal/article-676-legal-analysis-of-right-to-privacy-in-india.html

[6] https://www.legalserviceindia.com/legal/article-676-legal-analysis-of-right-to-privacy-in-india.html

Leave a Comment

Your email address will not be published. Required fields are marked *