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TO PRIVACY IN INDIA
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
publication in any form, is in reality not the principle of private property, but
‘Right to Privacy’ has been a pressing issue in India since the introduction of the
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,
privacy against surveillance from the state- this covers both privacy of property
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,
193.
claim is made in relation to personal information, that is, information that causes
identification of a person.5
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
The Preamble to the Indian Constitution emphasises the need to secure all
citizens justice, liberty of thought, expression, faith and worship, and fraternity,
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
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
Fundamental right.
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
law, it does not mean that such protection can be accorded to a guilty citizen to
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,
Whether Right to Privacy can be claimed or has been infringed in a given case
Article 21. It was construed as a right which attaches to the person, also
A Three Judge Bench of the Supreme Court while considering the constitutional
another v. Union of India and others19, the Court while unanimously ruling 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
Court”22 and that a bigger bench would have to be constituted to address this.
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
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
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:
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
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
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
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
While AADHAAR was formally visualised by the UPA Government as part of the
under the BJP Government led by Narendra Modi. The AADHAAR scheme collects
demographic and sensitive biometric information and has been one of the
Some of the major debates revolving the AADHAAR initiative include its usage by
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.
http://indiabudget.nic.in/es2009-10/esmain.htm]
of UIDAI to make complaints, time period for maintaining authentication records
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
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
Right to Privacy is an important and necessary right, and the Supreme Court’s
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
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
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
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
Thus, while I believe that the Right to Privacy must ultimately serve the nation’s
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
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.
Privacy was not a primary concern in India at the time of independence, and was
evolved and today, it is widely relevant. The concept of Right to Privacy has been
and it is only now that the apex judicial body of the country has recognised the
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
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.