IS IT ABSOLUTE? IS IT FUNDAMENTAL RIGHT? All your questions answered.
In the recent times, there are an ample of on going cases in which daily media trials have complicated the case and the evidence to sustain such a case are confusing as some are nothing but mere hear-say stories due to which this has lead to chaos.
To establish valid evidence in the amidst of such mess the concerned authorities have choose to invade the individual’s privacy by opting for methods like phone tapping, collecting phone recording, retrieving old chats etc. for the purpose of collecting evidence.
It is said that what a citizen eats, wears or the religion it follows, state should not be concerned with the such choices the citizens make but if a citizen wishes to seek any information or wants to ask any question from the government then he/she may seek such information under the Right to Information Act, 2005 whereas when an individual wants to protect it’s privacy and does not want unnecessary intervention then such individual can seek remedy under Right to Privacy.
Right to privacy can be availed against:
a) State,
b) Journalists and
e) Neighbors
But the main question which lies here is whether the right to privacy is being exploited or not?
There is no such section in any statue that clearly defines right to privacy but this right has been covered under the article 21 of the Indian constitution which states right to life and personal liberty.
Since this right is vast and no specific meaning or definition has been given to this right the main question here is that whether the right to privacy is an absolute right or not?
Even though Right to privacy is now considered as a fundamental right but it is not an absolute right, this right is subject to reasonable restrictions such as:
The Indian Constitution covers right to privacy under Article 21 which is right to life and personal liberty as the name suggests article 21 is multi dimensional in nature. Such a right has vast scope and can be perceived in according to one’s convenience if not clearly defined.
In K.S.Puttaswamy V Union of India, the Supreme Court held that privacy is something that is an individual’s privacy and has to be protected and cannot be exploited by any other individual.
It was only after the above mentioned case that right to privacy was considered as a fundamental right in 2017.
Over the years with the advent of new technologies it has become very easy to get into someone’s personal space and get the required information but this has its own pros and cons as the same technology has also enabled people to edit and morph information against them in their favour by presenting information in such a way.
Supreme Court not only protects the rights of individuals but also strengthens them. Some of the examples of SC judgement which have strengthened the citizens rights are • judgement on section 377, Triple Talaq and Aadhaar Judgement etc.
There have been various judgements that have led to right to privacy being recognised as a fundamental right under article 21, some of the major cases are as follows:
M.P Sharma v. Satish Chandra, 1954
This case related to investigation against Dalmia Group. In this case Dalmia group was accused of money laundering and other malpractices to cover this they made false documents and fraud balance sheets to submit. Government gave investigation orders, an FIR was filed through which 30 or more locations of this company were issued warrants of search and seizure. Dalmia Group challenged this investigation and claimed that during this search and seizure not only the documents of the company were being examined but their private documents were also being examined which is a violation of their fundamental rights.
Supreme Court : an Eight Judge bench held that for the security of the society the state was provided overriding powers of search and seizure. Bench also held that in our India Constitution there is no such concept of Right to Privacy. It further held that the 4th Amendment of the USA Constitution provides Right to Privacy to it citizens but prohibits illegal search and seizure.
Karak Singh V. State of Uttar Pradesh, 1962
This was the case of surveillance- dacoity. Under the Karak Singh was arrested under dacoity but due to no substantial evidence he is granted bail. But no UP Police to collect evidence against Karak Singh it imposes UP Police Regulation and puts surveillance on him. This regulation states that if survillance is imposed on any person then:
Any person coming to that person’s house can be considered as a suspect.
The police can make domiciliary visits to their house.
Along with this their every move i.e income, expense etc. can be tracked.
Karak Singh filed a writ petition challenging this surveillance and police regulation imposed on him. He claimed that all this were violating his fundamental right to movement and right to life and personal liberty.
Supreme Court: a Six Judge bench held that domiciliary visits were deemed unconstitutional but other regulations were held valid. It further said that in constitution Right to Privacy is not guaranteed. The court also held that under Article 19 (1) (d), Right to movement will only be infringed if the restriction is physical restriction.
The minority opinion of J. SUBBA RAO is very important for this as well as further cases. J. Subba Rao said that, ‘Anybody can enjoy freedom of movement anywhere for personal purposes. If the movement is been tracked then how free is it?’
An eight judge bench in M.P Sharma case and six judge bench in Karak Singh case held that in both the cases Right to Privacy is not a fundamental right and is not guaranteed under Indian Constitution. But small judge benches under Gobind V. Union of India and R. Rajgopal V. Union of India recognised Right to Privacy and gave importance to this right.
PUCL V. Union of India, 1997 also known as the Wire Tapping Case.
In this case, the phones of Chandra Shekhar, the former Prime Minister and twenty seven other politicians phones were being tapped by the government. CBI was given the case for investigation. CBI submitted that government was doing wide spread phone tapping after which PUCL submitted a PIL with the Supreme Court saying that the court should give clarity on wire tapping and phone tapping laws in India. Also what protections are available for people against phone tapping should be cleared. Section 5(2) of Indian Telegraph Act was challenged, this section gives power to government for phone tapping and interception for public safety and public emergency.
Supreme Court gave clarifications against phone tapping, it held that:
Right to Privacy will be covered under Article 21, Right to life and Personal Liberty.
Telephonic conversation are of confidential/ intimate nature. Therefore, telephonic conversations will fall under Right to Privacy i.e will be covered under Article 21.
All the guidelines given in this case were codified under Rules 419 (A) of Indian Telegraph Rules. This rule states that only under unavoidable circumstances either Union Home Secretary or State Home Secretary can authorise phone tapping.
Inspite of all these amendments, these guidelines were not followed in Nira Radia Tapes Case.
K.S. Puttaswamy V. Union Of India popularly known as the Aadhaar Case
This is a landmark judgement. In this case India’s national identity project which is Aadhaar project was challenged. It stated that this project infringes people’s Right to Privacy. To support this project Advocate General Of India said that, ‘Indian citizens do not have any right as right to privacy as a fundamental right’. He supported his argument by M.P. Sharma and Karak Singh case. He stated that in both these cases Supreme Court held that Indian Constitution does not guarantee right to privacy.
In both the cases there was an eight judge bench and a six judge bench respectively, so to create a new stand the Supreme Court will now have to make a bigger bench than this which is why in this case a nine judge bench was appointed by the Supreme Court.
In 2017, this nine judge bench made a unanimous decision in which it held that Indian citizens do have a right to privacy which is supported in Article 21. Supreme Court also held that to protect fundamental right to privacy there is no need for a separate declaration, Articles- 14, 19 and 21 this right is sufficiently protected.
After the Puttaswamy case, In 2019 came Vineet Kumar Case in which phones of the bank employees were being tapped on the charge of bribery.
Bombay High Court held that phone tapping can be done under section 5(2) of Indian Telegraph Act if there is a requirement for public safety or public emergency. And this requirement threshold is very high and small level of economic offences can not match this threshold, therefore, under this case even after the charge of economic offence, phone tapping is not permitted and will be illegal and will also infringe Right to Privacy.
CONCLUSION:
Right to Privacy was not a fundamental right earlier but the Supreme Court cleared the confusion in it’s recent Aadhaar Judgement that it is a fundamental right and is protected under Articles 14, 19 and 21. This right can only be infringed by the orders of Union Secretary or the State Secretary. Also the power of infringing someone’s right to privacy can be done only when the economic offense is at a much higher level which can hamper public safety or public emergency. Every individual has the right to feel secure without having the fear that someone is invading their personal space, therefore, it was important for Right to Privacy to be a fundamental right.
About author –
This article is authored by Adv. Shreya Sharma, completed 5 year law in B.A.LLB(HONS.) at AMITY LAW SCHOOL,AMITY UNIVERSITY,NOIDA.
