The journey of Article 21 in the context of the Right to Privacy

Introduction to the Right to Privacy

It has been 71 years of the making of our constitution and from that time many amendments have been faced by our constitution in various provisions. But I am talking about that part of the constitution which has now been considered as one of the most important articles of our Indian constitution and it has faced many changes in its meaning and now the scope of this article has become much wider than it was at the beginning of 1990s. 

The bare language of Article 21 of the Indian Constitution says like that-  NO PERSON SHALL BE DEPRIVED OF HIS LIFE OR PERSONAL LIBERTY EXCEPT ACCORDING TO PROCEDURE ESTABLISHED BY LAW, NOR SHALL ANY PERSON BE DENIED EQUALITY BEFORE THE LAW OR THE EQUAL PROTECTION OF THE LAWS WITHIN THE TERRITORY OF INDIA. 

But this article includes much more rights than it states in bare language, the scope of the article is much wider than its bare language.

The right to privacy is considered to be the most essential fundamental right of a person and it is considered as a facet of the right to life and personal liberty enshrined under Article 21 of our Indian constitution and the Right to Privacy is recognized as a fundamental right in many judicial pronouncements.

The journey of ARTICLE 21 in the context of RIGHT to PRIVACY is very long, from “KHARAK SINGH VS UNION OF INDIA1” to “GOVIND VS STATE OF M.P2” in 1975 to “R.RAJGOPAL VS UOI3” in 1994 to “JUSTICE K.S. PUTTUSWAMY & ANR. VS UOI & ORS” in 20154. The journey of the right to privacy is very long and it has gained much more meaning to its real definition.

The right to privacy means every person has the right to certain confidential and surreptitious part of their life, which cannot be disclosed in public. And this right of a person is required to be protected by the effect of law and right to privacy is basic human rights in most or we can say in all the countries of the world.  

Following are some landmark judgment given by the honorable Supreme Court in the context of the right to privacy:

• KHARAK SINGH VS STATE OF U.P. [AIR1963SC1295][1] – A minority opinion recognized the right to privacy as a fundamental right. The minority judges said that the right to privacy was both the right to personal liberty and freedom of movement as well.
• GOVIND VS STATE OF M.P[2] In this case, the SC confirmed that the right to privacy is a fundamental right. The right was said to include and protect personal intimacies of the home, marriage, family, motherhood, etc. but it also observed that it was subject to “compelling state subject”.
• R.RAJGOPAL VS UNION OF INDIA[3]– The apex court said that the right is a part of the right of a person to personal liberty that is guaranteed under the Constitution. It further recognized that the right to privacy can be both an actionable claim and also a fundamental right.
• PEOPLE’S UNION FOR CIVIL LIBERTY VS UNION OF INDIA[4]– This case before the Supreme Court extended the right to privacy to communications. The court laid down regulations in interception provisions in the country like such orders were to be issued by the home secretaries only, the necessity of the information was the considered, etc. Further, it capped two months onto the life of an interception order.
• JUSTICE K.S. PUTTUSWAMY & ANR. Vs UOI & ORS”[5] in 2015.- The Unique Identity Scheme was discussed along with the right to privacy. The question before the court was whether such a right is guaranteed under the Constitution. The attorney general of Indian argued that privacy is not a fundamental right guaranteed to Indian citizens.

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The right to privacy (article 21) is essential because it ensures that there will not be any intervention in a person’s private life which should not be made in public and it ensures the protection of the individual. The right to privacy is a right to be let a person in his own life and right to let alone or we can say right to take their own space. 

We have to understand the right to privacy in its real context it is not a right against physical restraint but it is a right against psychological restraint or encroachment of right.

We need to understand this right as an example, considering a condition of war, suppose we are in a state of war and if government keeps an eye on our all activities and surveillance on our social media activities then we cannot hold the government guilty of infringing our fundamental right of privacy this right is not absolute, it can be dismissed at the time any kind of emergency.

But if we are in normal circumstances like at peace and if the government does anything like this then it will be a violation of our fundamental rights or a woman or a man is indulge in some private act at their personal place or their own premises and a person without their permission enters into their premises then it will be trespass and also that person will be guilty of intervening in a person’s privacy i.e. he /she will be held liable for infringing a fundamental right to privacy of a person. 

The right to privacy is not explicit in the constitution of India, so it is a subject of judicial interpretation and the discretion of judges. Judicial interpretation and fundamental rights bring it within the purview of the fundamental right.

Conclusion:

Right to Privacy (article 21) not only means having our own space in our daily life or in our practical life or in physical matters but it also refers to the virtual world and digital privacy.

It means we have the right to privacy for our internet social life also but it is sometimes infringed by the government also for the purpose of serving security they sometimes keep surveillance on our social media activity and our Google activity but we cannot ask the government any question regarding that so there is need to some improvement in implementing our right to privacy on physical as well as the virtual world.

 

 

NIKITA JAISWAL

(Writer, The Legal State)

 

[1] KHARAK SINGH VS UNION OF INDIA- on 18 December 1962 Equivalent citations: 1963 AIR 1295, 1964 SCR (1) 332

[2] Govind vs State Of Madhya Pradesh & Anr on 18 March 1975.Equivalent citations: 1975 AIR 1378, 1975 SCR (3) 946

[3] R. Rajagopal vs. State Of T.N on 7 October, 1994,Equivalent citations: 1995 AIR 264, 1994 SCC (6) 632

[4] People’S Union Of Civil Liberties … vs. Union Of India (UOI) And Anr. on 18 December, 1996 , Equivalent citations: AIR 1997 SC 568, JT 1997 (1) SC 288, 1996 (9) SCALE 318, (1997) 1 SCC 301, 1996 Supp 10 SCR 321, 1997 (1) UJ 187 SC

[5] Justice K S Puttaswamy (Retd.), and ANR. Vs. Union of India and Ors. [AUGUST 24, 2017] Citation : 2017

604 SC  Judgment Date : Aug/2017