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RIGHT TO PRIVACY

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 Volume 4 Issue 1
March, 2018

SN 2394-7829

NTERNATIONAL JOURNAL OF LEGAL RESEARCH& GOVERNANCE

THINK BEYOND OTHERS

LAW

MAINTRA
LAW MANTRA PUBLICATION
 International Journal of Legal Research & Vol-4. I ssue I
Governance

RIGHT TO PRIVACY

R. Ranjan
Abstract
n any case,
Privacy signifies, "The condition
state of being free
or
regarding interruption into from open thoughtfulness
or
impedance with
one's demonstrations or choices which
there is Sure data in
regards to any person which he or she might not want to unveil implies
Wilh
anybody. What is by all accounts fundamental to
shield others from security is simply the ability to isolate and
interfering it in any capacity. These interruptions might be physical or
visual and may take
any of a few structures inchuding behind one to
peeping guides. Till now,
straightforwardly or through instruments, gadgets or innovative spying
Indian
Courts haven't perceived the
on 24th August 2017, where a 9
privilege to protection as a major ideal, until in late judgmen
seat judge in Justice K.S. Puttaswamy versus Union India
had overruled a
59-year-old choice and included ideal to security as a basic directlyofunder
Article. 21 of Constitution of
India, growing
its points of view

1. Introduction

Privacy has been a hotly debated topic for a while now and it has acquired a new
meaning post the famous decision of the Supreme Court delivered on August 24, 2017 in the
case of Justice K. S. Puttaswamy v Union of India', which renders clarity on the nature of

right to privacy. The concept of privacy is interpreted in myriad forms by different people. It
has been discussed and debated at length in innumerable jurisdictions across the globe and
has evolved with changing needs of the society. Many landmark cases across jurisdictions
such as those of Roe, Griswold, Prince Albert', and from the domestic forum., Rajagopal
PUCL cases etc have managed to contribute and build up on this nebulous concept and give
it perceptible contours. Right to privacy now has many hues and shades to it, each one of
which has been evolved by the painstaking effort of the judiciary, thereby ensuring it can be
realised by each and every individual in the world.

2. What is the nature of right to privacy?

There had been a lot of confusion and ambiguity surrounding the nature of right to
privacy, whether it was a statutory or constitutional or fundamental right for many decades

LLB from BHU and LLM student at NLSIU, Bengaluru.

Decided on 24h August, 2017.
35 L Ed 2d 147.
14 L Ed 2d 510.
47 ER 1302.
$ (1994) 6 SCC 632.

(2003) 4 SCC 399.

87
Tnternational Journal of Legal Rescarch & Governance Vol -4. Issue
now. Courts from time to time had been fraught with
ascertaining the scope and ambit of this
right thereby determining if in fact
violation of right to privacy has occurred in a
a

case. They have relied

gven
on
forcign jurisdictions for guidance in such uncertain times but in this
case, it can be observed that no
country across the globe guarantees an explicit right to
privacy. It has been evolved by of
interpretation and the contours determined on a case
means
to case basis in
most countries. Hence, judicial
interpretation has been the primary factor in
development of the concept of right to privacy. The courts across the world,
by trial and
error, and in consonance with the
changing times, have developed this slippery slope of
privacy and given it more concrete
form. The courts have
developed many such rights by
way of judicial interpretation such those of
as
right to food, right to a clean environment,
right to health etc.

3. First footprints of right to privacy

Right to privacy first appeared under the judicial lens in the case of M.P. Sharma v
Satish Chandra'. In this case, the facet of privacy figured in the context of search and seizure
provided under the Criminal Procedure Code. The issue was if the petitioner had a right to
privacy in light of a search being conducted at his premises
without notice, thereby violating
his private space. The court (8 judge bench) here referred to the aspect of 4th Amendment of
the United States Constitution for guidance. At this point of time, the 4th amendment had

been used for ascertaining the right to privacy in the context of search and seizure operation
and held that there could be such a right. However, the question before this court was if such
a concept could be invoked in the context of Article 20(3) of the Constitution. The court
refused to admit such a right to privacy in this specific context referred to while leaving the
question of a general right to privacy untouched.

Another case that significantly dealt with the aspect of right to privacy is that of
Kharak Singh v State of U.P". In this case the issue of privacy came up in the context of a
prisoner who had been charged with the offence of dacoity and later acquitted due to
insufficieney of evidence. His movements were watched even after being acquitted and
surprise visits were conducted to his house at sporadic intervals, this being provided under
Regulation 236 of UP Police regulations. The question before the seven- judge bench was if

7 AIR 1954 SC 300.

*(1964) I SCR 332.

88
 nternational Journal of Legal Research & Governance Vol -4. Issue I

Regulation 236 (b) violated Article 21 of the constitution". The court analysed the meaning or
personal liberty clause appearing in Art. 21 and held that it infringed the said fundamental
right. However, with regard to right to privacy, the court ruled in the negative due to the
absence of a provision similar to that of the 4th amendment of the U.S. Constitution. 1he
court refused to
interpret Art. 21 as including right to privacy due to the binding opinion
rendered in A. K. Gopalan v State
of Madras0, where it was held that fundamental rights do
not have the attribute of
travelling entities i.e. each fundamental right guaranteed under a

specific provision is confined to it and nothing more can be imputed/ inferred. Hence, the
court here contradicted itself while admitting the surveillance of the movements of an
individual to be a violation of
Art.21 and at the same time denying a right to privacy'

4. Influence of foreign
jurisdictions
Right to privacy became more tangible post the decision of Gobind v State of Madhya

Pradesh(Gobind). A significant feature of this decision is the reliance it placed on foreign

jurisdiction and sought guidance from the decided cases there in determining the contours of
this right in the domestic forum. The facts and issue of Gobind were similar to that of Kharak
Singh. Here the court undertook a more comprehensive analysis of right to privacy3. At this
point of time, mindboggling developments had taken place in the United States with regard to

right to privacy. The two landmark cases of Griswold v Connecticut and Roe v Wades
brought in new winds of change in the area of right to privacy, thereby expanding its ambit

and giving it a new meaning.

In the case of Griswold v Connecticut, the issue of right to privacy came up in the

light of constitutionality of a Connecticut statute which made it a crime to use or counsel

anyone in the use of contraceptives. The court here adopted an innovative approach and
interpreted the constitution in light of a novel concept of "penumbral rights". Penumbral
rights refer to those rights that are not observed on a bare perusal of the text of the provision.
They are visible on examining the inner layers of the statute and can be said to be implied

RISHIKA TANEJA & SIDHANT KUMAR, Privacy Law- Principles, Injunctions and Compensation, EBC, 1t
Edition. 2014, at 23.
AIR 1950 SC 27.
IThe Right to Pri vacy Hearing: Problems && Prospects., https://indconlawphil.wordpress.com1
12 (1975) 2 SCC 148.

Supra.n.9,25.
14 Supra.n.5

15 Supra.n. 2

16 ELLEN ALDERMAN & CAROLINE KENNEDY, The Right to Privacy, at 57.

Supra.n. I 1.

89
International Journal of Legal Rescarch & Governance Vol -4. Issue

Within the scope and ambit of the specific provision", Right to privacy was held to be one

Such penumbral right within the scope of the 1, 3d, 4th, 5th and 9th Amendments to the U.S.

constitution. As a result, the statute was struck down thercby treading the path for a new
course of marital privacy.
Similarly, in the case of Roe v Wade, the issue of right of an unmarried pregnant

Woman to abortion came up before the bench. The court held that the woman had a right to

abortion by adopting the penumbral right approach by which a right to reproductive

privacy/choice vested in her. Here reproductive privacy was translated in the form of a choice
to opt for abortion. However, a caveat was added that this right to abortion must be balanced

With compelling state's interest of imposing reasonable restrictions taking into account the

health of the mother20

Both these decisions had a significant influence on the bench in Gobind case. Here the

court took note of these two cases and the underlying concepts and arrived at the conclusion

that there was a fundamental right to privacy under Articles 19()(a), 19(1)(d) and 21 of the

Constitution. Matthew J however added the caveat of the right not being an absolute right
and subjected to restrictions in the form of state interest. He also stated that the right had to
be evaluated on a case-to case basis. Hence Gobind for the first time recognised a right to

privacy in India. Many cases since then have followed suit which recognised an implicit right

to privacy under Article 21 of the constitution. Some of the prominent ones include PUCL
Union of India" where telephone tapping was construed to be a violation of privacy, R.
Rajagopalv State of T.N.4 which defined right to privacy as a "right to be let alone"25. This
case is well known for recognising right to privacy as being vested under the broader horizon
of Art. 21 and for laying down a skeletal framework for ensuring a balance between right to
privacy and right to freedom of speech and expression under Art. 19(1)(a). However, all the
subsequent cases that have recognised this right to privacy are smaller benches of three

judges.

19
Supra.n.16
Id.
20 Id, 58.

2 Supra.n.9 at 25.
22 ld.
25 Supra.n.ó

24 Supra.n.s

25 Id.

90
 Tnternational Journal of Legal Research & Governance Vol-4. Issue T

5.
Overlapping zones of fundamental rights
One of the main reasons for rejection of right to privacy as an independent right in

Kharak Singh case was due to the reliance on the binding opinion of A.K. Gopalan case

where fundamental rights were held to be confined within the specific provisions and n0 new

rights could be accommodated nor could there be overlapping of rights. However, this was
struck down by eleven
an
-judge bench in the case of R. C. Cooper v Union of India"and
later by a seven-
judge bench in Maneka Gandhi v Union of India?7, In both these cases, it
was held that fundamental rights could not be boxed into fixed provisions and overlapping of
fundamental rights is valid and
permissible.

6. Crystal clarity on the nature of right to privacy

The case of Justice
K.Puttaswam v Union of India2, decided on Aug 24, 2017,
finally lays to rest all questions and doubts on the nature of right to privacy. A bench of 9
Judges gave a unanimous verdict and declared right to privacy as a fundamental right=. This

case is a milestone in the constitutional history of Indian judicial system and is predicted to

have far-reaching effects on many aspects of lives of the citizens. The case began back in

2015 when a bunch of petitions were filed challenging the constitutional validity of Aadhar

programme launched by the government with the intention of creating a biometric database
containing intrinsic details of all the people in the country. It was argued that Aadhar

programme violated the right to privacy of individuals in terms of obtaining all their personal
details thereby posing high risk of misuse of the collected information by the government0
A three- judge bench sought to decide on the validity of the Aadhar Act but reached a
crossroad with regard to nature of right to privacy. With a resolve to determine the nature of

right to privacy first before assessing the validity of Aadhar, the question was referred to a
five- judge bench of the Supreme Court which in turn formed a nine -judge bench, This

262017 case.
27Right to Privacy a Fumdamental Right., savs Supreme Court in manimous verdict, THE WIRE, (August 25,
2017 at 10:00pm), at https://thewire.in/I70303/supreme-court-aadhaar-right-to-privacy/
28 The Aadhar Dehate: "The State has n0 right o/ eminent domain on the human
body', THE WIRE, (August
15, 2017at 10:00pm), https://thewire.in/|29622/aadhaar-income-tax-supreme-court/
29ld.
30Id
262017 case.
27Right to Privacy a Fmdamental Righi, says Supreme Court in unanimous verdict, THE
WIRE, (August 25,
2017 at 10:00pm), at
https://thewire.in/70303/supreme-courl-aadhaar-right-to-privacy
28 The Aadhar Dehate: "The Stale has n0 righi of eminent domain on the human
15, 2017 at 10:00pm),
body', THE WIRE, (August
291d.
https:/thewire.in/129622/aadhaar-income-tax-supreme-court/

91
 Tnternational Journal of Legal Rescarch & Governance Vol -4. 1ssue I

Dench was faced with two questions being if the ratio of M. P. Sharma and Kharak Singh n

holding tight to privacy as a non-fundamental right was correct and if right to privacy 1s In
fact fundamental
a
right", The bench by a 9:0 majority overruled the cases of M. P, Sharmna
and Kharak Singh and held right to privacy to be a "fundamental right",

7. Adherence to international obligations-

The court in the cases of
Gobind, and many other cases that followed and the just
decided of K. S.
case
Puttaswamy
Union of India took cognisance of India's obligation to
v

comply with international obligations under Article 51 of the Constitution, Art. 12 of UDHR,
and Art. 17 of ICCPR35, These conventions guarantee inalienable human
rights to
individuals to which India has ratified. It observed that
was
right to privacy is one such
inalienable human right of individuals which cannot be taken
away under any
circumstances. There are certain inalienable rights vested in every human being by birth
which he cannot be deprived of. International conventions have been adopted in many cases
where there is n0 domestic law governing the field or where it is not inconsistent with the

current domestic laws, with a prominent instance being that of Vishakha v State of
Rajasthan"", where the court took note of provisions in conventions of CEDAW and ICCPR
and led to the passing of a domestic law prohibiting sexual harassment of women at

workplaces.
It was held in this case as well as some of the other prior cases that right to privacy comes

within the broadened ambit of Art. 2l of the Constitution. Art. 21 which guarantees right to
life assures a life with dignity. Hence, right to privacy is an integral aspect of dignity and

fundamental freedom of an individual.

8. Critical appraisal of the case of Justice K. Puttuswamy v Union of India-

This case can be termed as one of the ife chang1ng moments in the history of India. It

gave complete clarity to the concept of right to privacy in India. Some of the critical features

of the judgment are as follows-

30Id.
33
Right 1o privacya Fundanmental Righi, says Siupreme Court in Unanimous Verdict, THE
2017 at 8:10 pm), https://thewire.in/ WIRE, (August 25,
34
1997 6 SCC 241. 170303/supreme-courl-aadhaar-right-to-privacy

92
 Vol -4. Issue
International Journal of Legal Rescarch & Governance

S t a t u t o r y right no bar- One of the contentions put forth was that right to privacy

was a statutory right and hence it could not be made a fundamental right, However,

it was held that a statutory right would be at the mercy of the legislature, Granting it

the status of a fundamental right would ensure that it is not trammelled upon by the

State'o, This is essential since right to privacy is the core of the concept of "life with

dignity'.
Overlapping of fundamental rights- The case expressly overruled the basIs of

reasoning in M. P. Sharma that fundamental rights cannot fit in multiple categories of

rights. It upheld the reasoning of Cooper case thereby putting the last nail in the

coffin
Sexual privacy- One of the most laudable features of this case is that it touched upon

the aspect of sexual privacy as well, by referring to the case of Suresh Kumar Koushal

V Naz Foundation" and criticised the case for not recognising sexual orientation of a

person as a facet of privacy under Art. 2136, It observed that sexual orientation is a

matter of personal opinion and the state could not interfere with it. This is praise
worthy as by casting a doubt on the legality of the judgement, there is a ray of hope

for the LGBT community in India, notwithstanding their numeric minority.

Elitist Concept- The court also noted that right to privacy should be available to all
the strata of the society irrespective of their economic rights. It laid down in black and

white that civil and political and social and economic rights go hand in hand. If an
individual is deprived of either of them, then that would not result in the overall

personality development of the individual. Hence, a person needs right to privacy as

much as his right to food or shelter.
Aspect of inalienable rights- The most laudatory feature of this judgment is that byy
declaring the right to privacy as a fundamental right it has placed it in the magic circle
of inalienable human rights". This is very essential as it assures the individual of
dignity which is the very essence of being human.

35
Exclusive right to
privacy: Read
5,2017
he9:00
complete written of lawyers in the landmark hearing,
submissions
LIVELAW (August
Submissions-lawyers-landmark-hearing/
at
pm).http:/www.livelaw.in/right-privacy-read-complete-written-
30 Supra.n.55,

3" (2014) 1 SCC 1.

38
Samanwaya Rautray, From Aadhar to food, Supreme Court s privacy ruling opens Pandora"'s box for Modi
Govl, ECONOMIC TIMES, (August 27, 2017 at 7:00pm),
http://economictimes.indiatimes.com/news/politics-
and-nation/supreme-court-rules-right-l0-privacy-lS-Iunctamental-right/articleshow/60203260.cms
93
 International Journal of Legal Research & Governance Vol -4. Issue T

9. What is the of data

concept privacy?
Data privacy has occupied a central place in recent times due to the rapid

advancement in information and communication technology and the whole world being
available with one click of the mouse.
While it has made life much easier in terms of making
etficient and economical modes of
exchange and transmission of information from one place
to another, it also calls into
question the aspect of "informational or data privacy
Informational or data privacy has become much vital in the recent times due to a large
amount of information being collected by the state as well as private entities. Be it social
networking websites such as Facebook, Imgur or banks, hospitals, restaurants etc, each one of
them has substantial information collected on a
particular individual. This data collected
reveals many aspects of that person in terms of his/her food
habits, likes, dislikes, the last
place that they visited for a vacation, weddings, etc. All these things can, on certain level, be
characterised as private information. Similarly, the hospital that one last visited would have
collected many intrinsic details pertaining to their health record, specific allergies, weight,
height, blood group, etc. Now in the modern digital world, data with respect to person is
given more weightage than that of physical things in his/her possession. For instance, studies
estimate that one's personal data combined with an individual's purchasing habits may be as
valuable as $ 1200 or more3. What happens if this information is made available in the
public domain? The reactions of the people would vary depending on what one construes to
be private information. But on a general note, it would be violation of their privacy. This is

the aspect of data privacy i.e., when personal data ofa person is revealed. This is also a vital

facet of the right to privacy.

Recently, the Aadhar project initiated by the Unique Identification Authority of India
(UIDAI) has been considered to be the world's largest project « e r on collection of personal
data. It involves collecting of
person's highly personal data
a such as those of
fingerprints,
retina scan, etc by the Government thereby having a database on every Indian. The Aadhar
card was envisaged to be an umbrella solution for multiple problems such as eradication of
poverty, hunger, circulation of fake currency notes etc.
However, it is alleged that it has not
helped solving or making more efficient mechanisms available for access to food. For
in

instance, according to statistics collected from food depots in

Rajasthan, around 33 lakh

39
Agnidipto Tarafder & Arindrajit Basu, Why hdia s poor must have
19, 2017 at 11:00 pm),
a
right to privacy, THE WIRE, (August
https://thewire.in/168T 75/indias-poor-must-right-privay/
94
 International Journal of Legal Rescarch & Vol -4. Issue 1
Governance

Tamilies cannot access their PDS ration cach month

post the linking of PDS with Aadhar"
However, it has bcen criticised on
multiple fronts, the primary ground being VIolation or
one's privacy. This
constitutionality
case on of the Aadhar scheme and Act is currently
pending before the honourable
Supreme Court.
10. Data
privacy in other
jurisdictions:
The concept and the legal framework on data privacy in other
more advanced and
jurisdictions are much

comprehensive than in India. Most countries across the globe have

recognised data privacy as an
integral facet of right to privacy and have well framed
legislations safeguarding the rights of the public with regard to their data.
Position in U.S.A-
The legal framework for data
privacy in U.S.A is spread over legislations. There are
two primary laws in this
regard namely, the Privacy Act of 1974 and the Computer
and
Matching
Privacy Act. They provide for protection for the data held the federal
by government
and do not deal with information held
by the private entities2, In U.S.A, data protection laws
are
provided on a sector basis rather than the
subject basis. They encourage self -regulation of
industries rather than
framing of specific laws.
However, when self-regulation is not able to
achieve the objective then specific laws are framed for the particular
industry. Hence,
different standards of data privacy are laid down for
different sector depending on their
needs. For instance, the Fair Credit
Reporting Act regulates the use of individual personal
and financial information by consumer credit reporting agencies"
A recent case on data privacy is that of Riley
California". In this case, the court by
v

a unanimous opinion held that going through an arrested

person's contents of his cell
phone
during the period of his arTest constituted a vi1olation of his right to privacy. It was observed
that a cell phone serves multiple purposes more than for mere
communication purposes and
tracking down the contents and other intricate details would infringe upon the person's right
to his data privacy.

40
The Wire Staff., Right to privacy mulii-/aceted, so can1 be
jundamental, Centre tells SC, THE
28, 2017at 10:00 pm), WIRE, (July
41 Privacy
Act https:/thewire.in/162199/right-to-privacy-supreme-court/
of 1974 5 U.S.C. S. 552a,
(August 23, 2017 at
https://it.ojp.gov/PrivacyLiberty/authorities/statutes/1279
42 Tbid. 10:00pm),
43
The Fair Credit Reporting Act. 15 USC 1681 (1992), (August
https://epic.org/privacy/financial/fcra.html 23, 2017 at
44
573 US (2014)
10:00pm),

95
 International Journal of Legal Rescarch & Governance Vol -4. Issue 1

Position in the
European Union (EU)-
One of the main
developments in EU was the implementation of the Data Protection
Directive in 1995,. Its main aim
was
harmonising the privacy laws of all the states of the
Union and
providing a common, uniform law thercby casing the administrative 5

Case of S and Marper v the United

process
Kingdom'o;
The case of S &
Marper is one of the most
important cases on data privacy in the
European Union. This case involves the legality of
retaining of personal information
belonging to a person such as those of DNA samples,
retention of these data
fingerprints, etc. The aspect of
was
questioned. There were two applicants in this case, S and Marper,
who questioned the legality of retention of their data. i.e., their DNA
samples, fingerprints etc
by the police long after the
proceedings had ceased. Applicant S had been acquitted and the
proceedings against Marper had been discontinued due to withdrawal of
the application by
injured person. However, their DNA samples and fingerprints continued to be retained by the
police. Hence, they challenged this retention of their data.
Laws on data
privacy in various
jurisdictions were studied and it was observed that
U.K. allowed for indefinite retention of
these data even if the person had been
acquitted,
while this had not been the case in other
jurisdictions. The applicants contended that this
retention of their datainfringed their right to private life under Article 8 (1) of the European
Convention on Human Rights (ECHR)"*.
They argued that this retention of their data would
create a negative
impression about them in the society and that these data are highly personal
information considering they contain the information
genetic code of these persons. The
government on the other hand, while acceding to the point that they were indeed personal
data of these persons, also contended that mere retention of these data would not constitute
violation of Article 8 (1). The government based their contention on
the basis that such
retention was essential to prevent future detection and of investigation crimes thereby aiding
the maintenance of law and order and that it would be
protected within the ambit of Art. 8 (2)
of the convention. Art. 8(2) allows for interference with
right to private life by public
a
authority where it justified in the light of the circumstances and With the aim of preventing
Crimes49

45 Supra.n.41. p.10.

46

47
30562/04[2008] ECHR 1581.
Id. atl 5.
4 Id, at 18.
49
Td.

96
 International Journal of Legal Rescarch & Governance Vol -4. Issue I

However, the court on an examination of the Article held that retention of both
cellular samples and DNA profiles constituted an interference with applicants' right to their
private lives within Art. 8
(1) of the convention 0, The court held that cellular
samples, DNA
samples and
fingerprints all constituted intricate personal information capable of revealing
multiple things about a person.
As to whether it constitutes
reasonable interference under Art. 8(2), the Court ruled
a

in the negative and held that the current step undertaken was
the
disproportionate in its extent to
intended objective of
prevention of crime. In light of scanty evidence on relation between
retention of data and
prevention of crime, the court ruled that it cannot be
conclusively held
to be an effective measure for future detection of crimes.
Hence, the court agreed that it
would cast a
negative impression of the applicants in the eyes of the society and fails to strike
a balance between the
applicants' and the society interests.

10. Position in India:

In India, aforementioned, right to privacy has very recently been accorded

as
the
status of a fundamental right. One of the earliest cases that addressed the
facet of data privacy
is that of District
Registrar &
Collector, Hyderabad Canara BankS. This case
v
mainly dealt
with general right to privacy however, it was also noted that there is always an
underlying
assumption that the collected data will not be leaked over to third parties or even
private
entities.
Data protection has a very limited framework in India as of now. It is
mainly
protected under the Information Technology Act of 2000. Some of the sections that
provide
some sort of safeguards for data include those of sections
43, 43A, 65, 66, 70, and 72. Section
43 of the Act deals with unauthorised access of the
computer system. It mposes penalty for
violation of the provision. Many terms have been
provided to clarify on what constitutes
unauthorised access.
Section 65 deals with the aspect of computer source
penalises anyone who code and
destroys or tampers with it. Protection against hacking is proVided under
Section66, which
safeguards against destroying, altering, and diminishing the utility of data.
Section 72 expressly provides protection for privacy of data. Section 43 A deals
with
the aspect of sensitive private information collected by a
body corporate. If it proves to be
negligent in handling this data or does not observe the
reasonable security practices and
S0 Supra.n.46

SI
AIR 2005 SC 186.

97
 International Journal of Legal Rescarch & Governance Vol-4. 1Issue I

procedures, then it is bound to make compensation to the affected person. In this section, it
has not been defined as to what exactly constitutes sensitive personal data. It is left to the

discretion of the government. This may prove to be disadvantageous in pursuing a Claim

under this section.

There the
was
Privacy Bill introduced by the Department of Personnel Training
(DoPT) in 2010 which related to protection against the use of electronic/digital recording
devices in public spaces2,

11. Implications of K.S.

Puttuswamy judgment on data privacy-
The aforementioned
judgment has implications on data privacy as well. The Court
expressly recognised informational or data privacy as a facet of right to
privacy protected
under Art. 21 of the Constitution. The Court after
having perused the state of right to privacy
and data privacy in other
jurisdictions lamented over the urgent need for a robust legal
framework and gave directions to the State to implement the same with a caveat that it should
not be violative of Art. 14 & 21.

The court has directed the Centre to

up with a well- rounded data protection
come

regime as soon as possible for safeguarding the interests of the society. In this regard, there
has been a committee formed under former Judge, Justice B.N. Srikrishna to form a draft data
protection regime in this regard". There is another Bill on data policy put forth recently as a
Private Member's Bill on data privacy called the Data &
(Privacy Protection) Bill, 2017.

12. Way Ahead

Right to privacy has come a long way since the inception of the constitution and has
now created niche for itself in the broader scheme of the framework of
a
human rights and
natural, inalienable rights well. Looking beyond the framework of
fundamental rights, it is
one of those attributes that define human
a
being at his core. It constitutes an integral
component of his identity. Certain constitutions across the world, such as that of Germany,
have placed it on a higher pedestal by granting it the status of a
"personality right".
The judgment of Justice K. Puttuswamy v Union of India is also
likely to have a
significant impact on the beef ban case
pending before the Supreme Court Bench. The Court
52
Harvinder Singh & Devika Chadha, Supreme Court to decide on
personal data he negotiated?, FIRST POST, (August 16, 2017 at Aadhar- ivacy issue: Can your right over
10:00pm),
53
Krishnadas n-aadhar-privacy-1ssue-today-can-your-right-Over-personal-www.tirstpost.com/india/supreme
court-to-decide-oRajagopal, Panel to drafl dala data-be-negotiated-3829139.html
protection bill, Supreme Court told,
http:/ www.thehindu.com/news/national/centre-constitutes-new-panel-under-former-se-judge-to-prepare-draft-
data-protection-law/larticle|9402660.ece.
THE HINDU,

98
 Vol -4. Issue I
International Journal of Legal Research & Governance

also a d d r e s s e d this aspect indirectly by stating that there is an element o f p r i v a c y i n v o l v c a m

an
the food tha one consumes and the clothes that one wears. Right to privacy Occupies

integral place and an individual has complete freedom in the confines of his/her home
The contours of right to privacy as not yet fully known and need to be developed with

passing time. Newer areas of right to privacy keep getting added due to changing life

conditions and advancement in science and technology. With this, the essence of right to

privacy also acquires new shades and colours and the umbrella of protection under

fundamental rights needs to be extended to these as well. In this regard, the Court also laid

down that the exercise of this right would be subjected to reasonable restrictions and

legitimate state interest. It did not say 'compelling state interest'. There has been a difference

of opinion on the standard to be imposed whether legitimate or compelling state interest. The

former is more diluted in its effect than the latter. Hence, there is ambiguity in this regard.
With regard to data privacy, India is lagging far behind the world with no framework
in this area. This is a pitiable state of affairs and a robust legal structure has to be laid down
as soon as possible. In this regard, certain features of data protection laws of other countries

may also be emulated.

In this regard, it is noteworthy to mention at this stage the concept of "right to be

forgotten implemented in the European Union. This is a laudatory feature of the European
Data protection laws as it provides a second chance at a new lease of life for an individual.

An individual who has committed crime or any other act considered undesirable by the

society, can after a period of time, after paying for his misdeeds get this information taken
down. This is beneficial for the person and an integral aspect of privacy since continued

access to this information would tarnish their reputation. This aspect needs to be incorporated

in our domestic framework.

Another point that needs to be addressed at this juncture is that of the enforcement of

this fundamental right to privacy. Even though a fundamental right to privacy has been

assured, it is enforceable only against the state. But what about enforcement against private

entities? This is not necessarily addressed. Hence, even the data protection law should

provide for adequate safeguards against private entities. This aspect of enforcement of right

to privacy against private or non-state actors needs to be looked into greater details

With every facet of an individual's life being brought under the lens of the public eye,

this right to privacy being granted the status of an inalienable fundamental human right,

assures the individual of the basic human dignity, the core of existence of human life.

99

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