Right to Privacy: A fundamental right
Introduction to Right to Privacy
Do you know who Alan Turing was? If you don’t then don’t worry I will tell you. Alan Turing was a British Scientist and a great computer genius. He was the one who broke the famous German “ENIGMA” code during World War II and the war ended 2 years earlier and Britain won the war. But in 1952, Alan Turing was charged with indecency and homosexuality. Because of this, he was depressed and committed suicide on 7th June 1950.
The state has no right to interfere in the citizen’s personal life. If anyone wants any information from State or wants to ask any question to the state then he can use the Right to Information (RTI) Act- 2005 against the state. Bur if anyone wants to protect his privacy from the state or media then, in that case, the Right to privacy will be used. This right to privacy is available against an individual as well. Supreme Court does not only protect our rights but it strengthens our rights. This is proved in many judgments like section 377 judgment, Aadhar judgment, Triple Talaq judgment, etc. Let’s understand the concept of the
Right to Privacy through various judgments.
This case relates to an investigation on Dalmia Industries was charged with Malpractices. And to hide it they submitted fraud documents and balance sheets. Government ordered to investigate all this matter. FIR was filed against Dalmia groups and a search and seizure warrant on more than 30 locations was issued.
Now Dalmia groups go to court and challenge this investigation and said during the investigation our private document is also be checked and which violates our fundamental right. On this 8 judges bench of the Supreme Court said that for the security of society the state was provided overriding power of search and seizure. Supreme Court also said that there is no such concept of Right to Privacy in the Indian Constitution (4th amendment of the US Constitution provides the right to privacy to Americans).
This case relates to a matter of surveillance. In this case, Kharak Singh was arrested for a matter of dacoity. But because of a lack of substantial evidence against him, he was acquitted. For gathering evidence U.P. police use UP Police Regulation and impose surveillance on him. This regulation said that anyone who comes to his house is considered suspect. Police can domiciliary visit his house for investigation, and police have the power to track all his movement.
Now Kharak Singh file a writ petition to challenge the validity of surveillance imposed by police and UP Police regulation. He said that all these things violate his fundamental Right to Movement and Right to life and personal liberty. In this case bench of 6 judges held that only domiciliary visits are unconstitutional. But every other Regulation is deemed valid.
Court also said that there is no such concept of the right to privacy in our constitution. The court said that the right to movement infringed if anyone restricts you physically. But in this case, Justice Subba Rao said that anyone can enjoy the freedom of movement anywhere for personal purposes. If the movement is been tracked then how free is it? In this case, this opinion is considered as a minority opinion but in the next cases, this is in majority.
This case is also known as a wiretapping case. In this case, former Prime Minister Chandra Shekhar accused the government that his and the other 27 people’s phones are being tapped. For that order for CBI investigation was passed and CBI said the government is tapping phones. Against this PUCL (People’s Union for Civil Liberty) files PIL in Supreme Court seeking clarification on loss on phone tapping and what kind of protections are available against phone tapping. Section 5(2) of the Indian Telegraph Act was challenged in this case. This section gave power to the government of phone tapping or interception for public safety and public emergency.
In this case, the Supreme Court clarified Phone Tapping and issue guidelines. Supreme Court said that the Right to privacy is covered under the Right to life and Personal Liberty (under Article 21).
Supreme Court secondly said that Telephonic Conversations are confidential or intimate. So telephonic conversations are covered under article 21. To incorporate this guidelines rule 419(A) is codified in Indian Telegraph Rules. These rules said only in unavoidable circumstances Union Home Secretory or State Home Secretory can authorize the phone tapping. But in the Mira Radia Tape case, any of this guideline was not followed.
This case is popularly known as Aadhar Judgement. In this case, India’s national identity project was challenged. This project infringes on citizen’s right to privacy. In support of this project Advocate General of India said that Indians do not have the fundamental right to privacy. This statement is supported by M. P. Sharma and Kharak Singh case.
They said that in both of these cases court said that the Indian Constitution does not guarantee the right to privacy. If the Supreme Court wants to create a new stand than they have to set a bigger bench than above mentioned two cases. So in this case Supreme Court set 9 judges bench. In August 2017 bench of 9 judges gave a unanimous decision and said Indian citizens do have the right to privacy and this is supported under Article 21 court said that there is no need for a separate declaration for Right to Privacy, Article 14, 19, and 21 protect this right sufficiently.
After the Puttaswami case in 2019, in the Vineet Kumar case, the Phones of bank employees were tapped on charges of bribery and this phone tapping was challenged in the case of Vineet Kumar. Bombay High Court said that phone tapping is permitted in case of public emergency and public safety under section 5(2) of the Indian Telegraph Rule. This threshold is very high, Economic offenses at a smaller level cannot match this threshold. Therefore in these charges of economical offenses, you are not permitted to phone tapping. This is an illegal act. It infringes on the right to privacy.
The right to Privacy is an unwritten fundamental right. Because there is no separate clause for this right as other rights. Before 2017 courts do not recognize the right to privacy as fundamental rights. Infect till 1964, in two cases Supreme Court said that there is no concept of the right to privacy because it is not written in the Indian constitution.
In the Kharak Singh case, Supreme Court said if our constitution-makers don’t recognize it as a fundamental right then they have no jurisdiction to import it. But in 2017, in Aadhar Judgement, the Supreme Court recognized it as a fundamental right and said that there is no need for a separate clause for it. It is covered under articles 14, 19, and 21.
-Written by Mahek Raval (Member, Editorial Board, The legal State)
2nd year BBA LLB student, United world School of Law, Karnavati University
 1954 SCR 1077
 (1964) 1 SCR 332
 (1998) 8 SCC 485
 (2017) 10 SCC 1