Privacy Law and Practice in India

Right to Privacy and its status in law (whether it is a fundamental right) has been debated for decades and came to a head with two successive judgments of 5- and 9-Judge Constitution Benches of the Supreme Court. 

Right to privacy oversimplified means the right to be left alone. It is the right of any person to have personal space and be free from any unwanted interference. 

Privacy law and practice in India

Privacy as a concept itself has been thought of very subjectively. So when it did land up before the SC in not one, but two Constitution Bench cases in (relatively) quick succession [K.S. Puttaswamy v Union of India, (2019) 1 SCC 1 (let’s call it the “Aadhaar-5J” case) due to differing prior rulings by several smaller benches, including the same case by a 3-Judge Bench; and K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1) (the “Privacy-9J” case) on whether privacy is a fundamental right] on the heels almost, of the 5-Judge Bench in the Aadhaar case, it was pre-ordained that its conclusion would not satisfy everyone.  In the (Aadhaar-5 J.) case, it was argued that the very collection of biometric data violated the “right to privacy”. The danger, say some commentators, lies in the easy replicability of the database and multiple possible sources of leak. 

Complexities of effectively implementing privacy in the digital, internet- and data-driven world have confounded even the most clear-thinking judicial mind. For example, you may think Aadhaar is a wonderful concept with no flaws if we shut our eyes to the possibilities of the humongous database being hacked or misused by the Government. But then, after you open your eyes, would you trust the Government travelling beyond fingerprints and retina scans to, say, DNA profiling? We must answer this question in the backdrop of the fact that the Central Government argued strenuously against recognition of the Right to Privacy as a fundamental right, which was interpreted by many as attempting to arrogate to itself unlimited powers to violate privacy of the citizenry. That the current Government has this tendency is clear from their responses to the ongoing kisan agitation, the new social media and webinar regulations, etc.

The plaintiff in both these SC cases is a nonagenarian retired Judge of the Karnataka High Court, Justice  KS Puttaswamy.

In (Privacy-9 J.), which was all about the whether the Right to Privacy it was held that 

652.3. The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.

While all 9 Judges were unanimous that Right to Privacy is a fundamental right, there were 5 orders delivered in all by the 9 judges. Some excerpts from this landmark decision are given below: 

Privacy is both, a common law right and a fundamental right. (Bobde, J)

Fundamental rights are not a series of isolated points, but a rational continuum of the legal concept of liberty (Chelameshwar, J)

Each and every right could not be written in the Constitution; Courts may read additional rights. (Sapre, J)

Acknowledging the new threats to privacy from digital footprints, observed that privacy was key to freedom of thought and the right to think. (Kaul, J)

Are Privacy laws respected in India?

The Central Government was bound to disappointed with the unanimous decision of all 9 judges that Right to Privacy is indeed an unabridgeable fundamental right. Large parts of what we call the mainstream media is today so beholden to the powers that be, that they have, over the last 10-15 years replaced prime time news with raucous, meaningless ‘debates’ that peddle unbridled lies in the chase for the most valuable asset called TRPs. 

This has created a clear situation where editors and anchors who possess huge power to influence thinking of their viewers and readers, routinely brandish and wield this power without a shred of responsibility. Often, they ‘convict’ people in a media trial where they allege, ‘investigate’, become judge and jury and finally, convict – on prime time television before any court of law gets a chance to give a fair hearing to the accused. We have seen it happen in several prominent cases, like the Arushi Talwar case a few years ago, and more recently, Rhea Chakraborty in the Sushant Singh Rajput case. Indeed, every week or fortnight, the entire media circus sink their fangs into a new ‘victim’ – and last week/ fortnight’s victim is forgotten. 

We cannot forget the role of social media: Tweets, Facebook and Insta posts and the capacity to ‘troll’ have given a digital megaphone to every disgruntled individual so they can channel their frustrations online. Trolling by the IT Cells of political parties and people with extreme views have made vile language and open lies routine and common. 

In the midst of all this depressing news from the third and fourth pillars of our democracy, these two apex court decisions unequivocally upholding the right to privacy as a fundamental right is a bright beacon of hope. 

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A qualified lawyer enrolled with Bombay High Court, Nayan is an enthusiastic reader, mostly of Indian Mythology and World History. Also a binge watcher and enjoys travelling to new places.


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