IS RIGHT TO PRIVACY AN

IMPORTANT ASPECT OF
ARTICLE 21 OF THE
CONSTITUTION OF INDIA?

Author: GAURAV SHARMA

Declaration: The following essay is based on my own views.

It is not copied from anywhere. Only the cases are taken from the original judgments.
Privacy:

First of all what privacy is, in general term privacy means a stage in which a person is not
observed or not in the eyes of other people.

Basically privacy is a concept where a person is not internally or deeply known by other person.
The right of a person to be free from intrusion into or public concerning matters of a personal
nature — called also right to privacy.1

General thinking about privacy:

We all are in the state of mind that we are safe in term of privacy but it is not, since we are live
in the social environment, we are not actually safe. Now days we are more threatened by social
people rather than the neighborhood in terms of spying, but now people feel mischief by online
or social threat. People are spying even by their relatives by hiding their identity on social sites.

Privacy is like personal data which is not known to me then why it is known to any other person.
Other person has no right to interfere in anyone’s personal matter.

Acharya Chankaya has also written about privacy in anyone’s life. He gives four thoughts that
should not discuss with anyone if you want to lead a happy life. Which are as follows:-

 Don’t discuss your financial loss or profit to anyone, keep it to yourself.

 Don’t share your personal problem to anyone are always ridiculed and look down upon.
 A thing that needs to be kept as a secret is the character of one’s wife.
 A thing that should always remain as a secret is one’s insult by down trodden or the
neglected of society.

That means Acharya Chankya always in favour of privacy, means the privacy should not be
disclosed to other person.

1
https://www.merriam-webster.com/legal/right%20of%20privacy. (Accessed on sept. 21, 2017, 15:00)

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International concept of privacy:

1. Article 12 of Universal Declaration of Human Rights (1948) states that, No one shall be
subjected to arbitrary interference with his privacy, family, home or correspondence, nor
to attacks upon his honour and reputation. Everyone has the right to the protection of the
law against such interference or attacks.2

2. Article 17 of International Covenant on Civil and Political Rights states that,

 No one shall be subjected to arbitrary or unlawful interference with his privacy,

family, home or correspondence, nor to unlawful attacks on his honour and
reputation.

 Everyone has the right to the protection of the law against such interference or
attacks.3
3. Article 8 of European Convention on Human Rights states that, Right to respect for
private and family life:
 Everyone has the right to respect for his private and family life, his home and his
correspondence.
 There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or the economic well-
being of the country, for the prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and freedoms of others.4
4. It is the fourth Constitutional amendment of US Constitution i.e., Right to let alone. US
Supreme Court Justice William O. Douglas said that the Right to be “Let Alone” is
indeed the beginning of all freedom.

2
http://www.un.org/en/universal-declaration-human-rights/. (Accessed on sept. 21, 2017, 17:25)
3
http://www.ohchr.org/EN/ProfesissionalInterest/Pages/CCPR.aspx. (Accessed on sept. 21, 2017, 17:30)
4
https://www.legislation.gov.uk/ukpga/1998/42/schedule/1/part/I/chapter/7. (Accessed on sept. 21, 2017, 18:45)

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Right to Privacy in India:

Humans are the unique creature of God which has some secrets in their life, as different from
animals. If the secrets of a person are leaked this will lead to infringement of his/her right and the
life seems like an animal.

Privacy leakage is that when your one off the friend is uploaded your picture on social media or
in any other context without the knowledge of you. Privacy does not only mean that the
confidential data is privacy.

To protect the privacy there should be a right which protect your privacy, because now your
privacy is selling in the markets. To understand this there is example of daily routine that is the
telecom company, they collect the data from you and sale to it in the market for gain money. they
sale this information to banks, insurance companies by which these sector get your contact and
other detail and they call you for take policies, loans etc. it is a breach of privacy in my opinion
there must be an law which save you from the leakage of privacy.

Right to privacy is a very questionable matter in India, in current as well as in previous scenario.
Whether right to privacy is included under Article 215 of Constitution of India or not?

In the matter of previous scenario, Article 216 is a Fundamental right provided by the Apex Law
i.e., the Constitution of India, states that, “no person shall be deprived of his life or personal
liberty except according to procedure established by law”. It includes all aspect of a human
being’s life more meaningful, the right to privacy is one of them. First time the concept of
privacy in India introduced in case of Karak Singh v. State of U.P.7, the Hon’ble Supreme Court
held that the regulation 236 of Uttar Pradesh police regulation was unconstitutional as it is
clashed with Article 21 of the Constitution of India. It was held by the court that the right to
privacy is a part of right to protection of Article 21.

5
“No person shall be deprived of his life or personal liberty except according to a procedure established by law.”
6
Id.
7
(1963) AIR 1295.

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Where in another case Govind v. State of Madhya Pradesh,8 the Hon’ble Justice K.K. Mathew
accepted the Right to Privacy as a production from Article 19(a), 9 (d)10 and Article 2111, but he
held that Right to Privacy is not absolute right.

Further in case of R. M. Malkani v State of Maharashtra,12 In this case, the Hon’ble Court held
that Section 25 of the Indian Telegraph Act, 1885 was not violated since: “Where a person
talking on the telephone allows another person to record it or to hear it, it cannot be said that the
other person who is allowed to do so is damaging, removing, tampering, touching machinery
battery line or post for intercepting or acquainting himself with the contents of any message.
There was no element of coercion or compulsion in attaching the tape recorder to the telephone.”

So there are some other case like Smt. Maneka Gandhi v. Union of India13 and Naz Foundation
case14 all these are about right to Privacy. There is different contention of different case that right
to Privacy included under Article 21. And it is absolute right some cases by cases judgments
were delivered on this matter.

In the current scenario, it is a debatable topic in current situation. The government of India
introduced a bill i.e., The Privacy Bill, 2011 which says that “ every individual have a right to his
privacy-confidentially of communication made to, or by him-including his personal
correspondence, telegraph message, postal, email and name; protection search, detention or
exposure of lawful communication between among individuals; privacy from surveillance,
confidentially of his banking and financial transaction, medical and legal information and
protection of data relating to individual. This bill gives protection to individual from the threat to
his/her privacy.

8
(1975) AIR 1378.
9
(a) to freedom of speech and expression.
10
(d) to move freely throughout the territory of India.
11
Supra note 5.
12
(1973) 1 SCC 471.
13
(1978) AIR 597.
14
160 Delhi Law Times 277.

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In the year of 2017, the Hon’ble Supreme Court passed a landmark judgment Justice K.S.
Puttaswamy (retd.), and anr. V. Union of India and ors.15on right to privacy is an important aspect of
Article 21.
 Justice Dr D Y Chandrachud said, it may be that isolation as a sensible notion is largely
conked out down but does not mean we demolish it as a constitutional conception. In fact
it is more compulsory now.
 Senior counsel Kapil sibal said, isolation and privateindependence are
different. Isolationdesires to be sheltered because it is at the heart of assortment. Isolation
is the golden fiber that runs from side to side liberty. There can be no independence
without isolation.

The nine judge’s bench including CJI Jagdish Singh Khehar, Chelameswar J., S A Bobde J., R K
Agrawal J., Rohinton Fali Nariman J., Abhay Manohar Sapre J., Dr D Y Chandrachud J.,
Sanjay Kishan Kaul J., S Abdul Nazeer J., they all are agree on the same point that is right to
privacy is a important aspect which must be included in Article 21 of Constitution of India.
Judgment’s are as follows:
i. The decision in M P Sharmawhich holds that the right to privacy is not protected
by the Constitution stands over-ruled;
ii. The decision in Kharak Singhto the extent that it holds that the right to privacy is
not protected by the Constitution stands over-ruled;
iii. 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.

Conclusion:

Yes right to privacy is an important aspect of right to life and personal liberty because privacy
itself indicates that thing which is not in awareness of other people. No one is supposed to
disclose its privacy. Right to personal liberty violates if there is any threat to privacy, because
when you are not free in term of privacy then there is no personal liberty, as personal liberty

15
Writ Petition (CIVIL) NO 494 OF 2012.

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includes freeness. Right to privacy is essential because if all the details are known to other
people it causes harm to that person whose privacy is being leak. Intentionally leaking of data/
privacy may cause harm in following ways:

1. Theft: devoid of your awareness, spyware runs in the surroundings while it records your
Internet browsing way of life and keystrokes, monitors the programs you use and collects
your private information by way of burglary, crackers may use your private information
like debit and credit card number or password by which hackers will hack your account.
2. Abuse: Social media communication is a day by day source of debate for millions of
people around the world. Communicating via social media can guide a person to chatter
about things they usually wouldn’t in a public place. Social media is very injurious in
terms of privacy it is a main motive of online abuse by other people.
3. Hacking: A Hacker is a person who finds and exploits the limitation in workstation
systems and/or networks to increase access. Hackers are usually accomplished computer
programmers with comprehension of computer defense. Hacking consists of breaching
computer system and electronic safeguard, is a serious problem.

In my opinion privacy is an internal part of a person which must not be disclosed to other
because it is disaster for that person, or it may become a very grievous injury to that person.
Injury to privacy is an injury to that person, that injury which caused to person included under
his right to life. That means right to life and personal liberty includes right to privacy.

What are essential for a live are food, shelter, livelihood, liberty, dignity and also his privacy
because privacy create bond with the life and liberty of the person. That means right to privacy is
an essential part of right to life and personal liberty given by the Apex law of India.

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