EVOLUTION OF RIGHT TO PRIVACY @LexCliq by Anisha Roy

EVOLUTION OF RIGHT TO PRIVACY

Ancient India

The concept of privacy can also be pragmatic in the ancient text of Hindus. Looking at the Hitopadesh which enumerates that certain matter such as worship, sex and family matters should be protected from disclosure. The very concept is not entirely non-familiar to Indian Culture, but some jurist like Sheetal Asrani-Dann has certain doubts about the right to privacy in India, in view of this, she also explains Upendra Baxi’s view, but, Upendra Baxi is clearly alarmed with kindness, sympathy, humanity or gentleness, which is an unabated curiosity; it is not about ill-will. Even the privacy in ancient time was related to ‘Positive Morality’. Thus, in spite of this, right to privacy was vague in the ancient Indian text.

Modern India

In present time, the issue of Right to Privacy was discussed for the very first time in debate of constituent assembly, where an amendment was moved by K.S. Karimuddin, where B.R. Ambedkar gave it only pretentious support and Right to Privacy was not incorporated in the Indian Constitution. The issue of privacy was dealt with both as a fundamental right under the Constitution and as a common law right since the 1960s. Privacy was not considered as a fundamental right was first held by the Supreme Court in the year 1954 by an eight-judge bench in M.P. Sharma v. Satish Chandra case, while dealing with the power to search and seize documents from the Dalmia Group, dismissed the existence of a right to privacy on the basis that the makers of Constitution.

This desire for a private life made a comeback after ten years (approx) before a six-judge bench of the Supreme Court in the case of Kharak Singh v. State of Uttar Pradesh, it was only to be rejected again. The Supreme Court held that there is no fundamental Right to Privacy but went on to strike down the provision which allowed night visits for violation of ‘personal liberty’. As dissented by Justice Subba Rao, wherein he said that Right to Privacy is still an essential component of personal liberty though such provision was not incorporated as well as declared as a fundamental right under the Indian Constitution.

After eleven long years (approx.), the Supreme Court where a smaller three – judge bench when faced with a similar factual matrix in Gobind v. State of Madhya Pradesh, held the existence of a fundamental right to privacy under Article 21. Though Gobind lost, privacy won for the first time and gained a small recognition under personal liberty under the Indian Constitution.

By this time, privacy had rooted in our fundamental rights. It never faced such a strong challenge of its existence as it faced before the nine-judge bench in the case of K.S. Puttaswamy v. Union of India in 2017 and overruled the decisions of M.P. Sharma and Kharak Singh. After the passing of the recent judgment in 2017 it is clear that right to privacy is a fundamental right and it will not lose its status amongst the Golden Trinity of Article 14 (Right to Equality), Article 19 (Right to Freedom) and Article 21 (Right to Life and Personal Liberty).

 

The right to privacy had its upswing in constitutional law in the second half of the 20th century and was first judicially protected as an autonomous constitutional right in the 1960s. It was recognized as an international human right before it started to play a more important part in national constitutional law. Prior to the adoption of the Universal Declaration of Human Rights (1948) (UDHR) in 1948 the main focus in national constitutions was on the sanctity of the home and correspondence on what has been termed the territorial aspects of privacy. In international instruments such as UDHR, International Covenant on Civil and Political Rights (1966) (ICCPR), and European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (ECHR) the right to privacy and private life is followed by an enumeration of protected rights, such as the right to correspondence, the protection of the home and family etc. Still, mostly due to the subsidiarity principle in international law the definition and hence scope of the right to privacy is primarily determined by national constitutional law, which in its turn is a product of national legal and political culture. Therefore, the interplay between international and European law, on the one hand, and national law on the other, is of great importance for the definition and scope of the right to privacy. For example, the question of surveillance has been dealt with by several European courts—both national and regional—and currently there is a consensus that targeted surveillance isallowed in democratic and rule of law states under certain conditions, it is for example required that a certain set of procedural safe guards are put in place and enforced .

 

The right to privacy is a difficult right to define and conceptualize both legally and theoretically. There have been many attempts to define the conceptual, or rather theideological, basis of the concept of privacy. Two examples could be mentioned here: privacy as a freedom from society, and privacy as dignity. Taking his starting point in US constitutional law, Schulhofer identifies the protection of personal aut onomy as the coreof privacy protected by the Fourth Amendment, thereby potentially adding a thirdconceptual basis. A fourth approach takes it starting point in the following question:

What underlying interests do the right to privacy protect? This question was asked andanswered by Andrei Marmor recently. Marmor argues that the right to privacy rests on people’s legitimate interest in being able to control the way in which they can present themselves to others. His argument builds on the differences in social patterns that is determined by the character of the relationship in question, be it between spouses, colleagues, or close friends. In order to obtain differences in these social interactions and contexts we have a legitimate interest of being able to control the way in which we present ourselves. This approach towards privacy is close to, but separate from, the personal autonomy perspective. The legitimate interest of controlling how you are presented can only be secured if the flow of information is predictable and not manipulated (Marmor) and this is where the legislative framework guaranteeing the right to privacy comes in.

 

From a legal point of view, this is also when the concept of a right to privacy becomes actionable and concrete. If one adopts this point of view, the main question is how personal information has come to be known, not necessarily the actual content of that information. This approach clearly has its appeal in a time of mass- and secret surveillance. Clearly, the scope of the legitimate expectations depends on your role and position in any given context. Politicians, decision-makers, justices etc. all have a more limited sphere of legitimate expectations. A fifth argument connects privacy rights with self-governance. From this point of view, privacy is necessary for all intellectual exercises if privacy cannot be protected we will be restricted in our intellectual quest for knowledge and information, and that would severely restrict our ability to self- governance and hence democracy.

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