This article is written by Riddhi Patni, a student of Maharashtra National Law University, Aurangabad
The Right to Privacy is one of the most challenging issues to address. One of the most difficult concepts to define is privacy, which cannot be understood as a static and one-dimensional concept. It can only be interpreted as a set of rights. It is clear from the facts that an identity is stolen every 79 seconds, recognising that privacy concerns are the wildest increasing crime of these days. The right was recently enshrined in Article 21 of the Indian Constitution by the Supreme Court. Still, it has become a contentious issue due to concerns raised about the government’s initiatives to collect personal data from citizens. Not only is the right to privacy at stake, but so is the Data Protection Bill. Article 21 of the Indian Constitution includes the right to privacy as a requirement of the right to life and personal liberty. The term privacy, in particular, is a dynamic concept that needed to be clarified. Under the Indian Constitution, the scope of Article 21 is multifaceted.
INTRODUCTION TO PRIVACY
According to Black’s Law Dictionary, “the right to privacy means the right to be left alone; the right of an individual to be free from unwarranted interference”. Recently, Justice D.Y. Chandrachud delivered a judgement that overruled the principles developed in the Habeas Corpus case in the case of Justice K.S. Puttaswamy and ors. v. Union of India , which evolved as a landmark judgement in India’s history regarding the status of Right to Privacy. The terms privacy and right to privacy are difficult to grasp. To better understand this, consider how privacy has been interpreted in various situations. According to Tom Gaiety, “the right to privacy entails the inviolability of one’s body as well as the integrity and intimacy of one’s personal identity, including marital privacy”.
Fundamental rights are basic rights that every human being inherits, and such rights should be granted to every citizen of the country, along with appropriate remedies. Certain private and secret aspects of human beings cannot be revealed to the public. Following the recent case of 2017, the right to privacy has gained momentum around the world, and it has been recognised as a fundamental right to privacy. Various countries, including the United States, the United Kingdom, and India, have given convincing recognition to the right to privacy, as have international organisations such as the UDHR, the International Covenant on Civil and Political Rights, and the European Convention on Human Rights .
VARIOUS ASPECTS OF THE RIGHT TO PRIVACY
Phone Tapping and Right to Privacy
Phone tapping and the right to privacy are being impacted by new technological developments relating to a person’s correspondence, which has become a contentious issue. The Supreme Court stated in R.M. Malkani v. State of Maharashtra that it will not tolerate safeguards for citizen protection being jeopardised by allowing the police to use unlawful or irregular methods. Telephone tapping is a violation of the right to privacy and freedom of expression, and the government cannot impose restrictions on publishing defamatory materials about its officials, which violates Articles 21 and 19(1)(a) of the Constitution.
Gender Priority on Privacy
This other aspect of the right to privacy is gender priority, which implies not only the right to prevent the inaccurate portrayal of private life, but also the right to prevent it from being depicted at all. Even a woman of simple virtue has the right to privacy, and no one has the right to intrude on it. Every female has the fundamental right to be treated with decency and dignity. Health and Privacy
The health sector is a major source of concern in privacy, as well as one of the most important aspects of the right to privacy. Health information includes not only information about one’s health or disability, but also information about health services that one may receive. Many people have a human tendency to regard health-related information as highly sensitive. The right to life is so important that it takes precedence over the right to privacy. A doctor is bound by an oath or by medical ethics not to reveal confidential information about a patient if doing so would jeopardise or endanger the lives of others.
Privacy in context of Sexual Identities
One aspect relating to the right to privacy, which has been enshrined in Article 21 of the Indian Constitution, was read down in the case of Naz Foundation v. Union of India, in which the Delhi High Court struck down Section 377 of the Indian Penal Code, 1860, so as to decriminalise a class of sexual relations between consenting adults and intrusion by the state only if the state was able to establish one of the critical arguments, protected by Article 21 of the Indian Constitution, was a compelling interest. The Supreme Court of India ruled in Navtej Singh Johar v. Union of India that Section 377 of the Indian Penal Code, 1860, as it applied to consensual sexual conduct between adults in private, is constitutional.
RECENT ADVANCES IN THE RIGHT TO PRIVACY
It will be sufficient to encroach into any sphere of activity once the right to privacy is recognised as a fundamental right under Article 21. The infringement of such a right has become extremely difficult with the advancement of technology and social networking sites.
The degree to which privacy is important to individuals is subjective and varies from person to person. Section 43 of the Information Technology Act of 2000 includes a Right to Privacy provision that makes unauthorised access to a computer resource a crime.
The right to press is included in Article 19(1)(a) of the Indian Constitution, which can sometimes conflict with the right to privacy. Then the question arises as to where there is a conflict between an individual’s right to privacy and another person’s right to press. Such a question is well answered by bringing up the concepts of public interest and public morality, as well as other provisions mentioned in Article 19(2) of the Indian Constitution. Personal information about an individual may be published without his consent if it is part of public records, including court records.
In several ways, the right to privacy may conflict with police investigations. Various tests, such as Narco-Analysis, Polygraph or Lie Detector tests, and Brain Mapping tests, infringe on a person’s right to privacy. The Supreme Court recognised the distinction between physical and mental privacy in the case of Selvi and others v. State of Karnataka , and this case also establishes the intersection of the right to privacy with Article 20(3) of the Constitution.
THE PERSONAL DATA PROTECTION BILL (PDPB), 2019
The Minister of Electronics and Information Technology introduced the Personal Data Protection Bill, 2019, in Lok Sabha. The purpose of this Bill is to provide for the protection of individuals’ privacy in relation to their Personal Data and to establish a Data Protection Authority of India for these purposes and matters relating to an individual’s personal data. The Bill proposes to repeal Section 43-A of the Information Technology Act of 2000 by removing the provisions relating to compensation payable by companies for failure to protect personal data. The Personal Data Protection Bill, among other things, specifies how personal data should be collected, processed, used, disclosed, stored, and transferred.
The PDPB proposes to protect “Personal Data” relating to a natural person’s identity, traits, and attributes, as well as “Sensitive Personal Data” such as financial data, health data, official identifier, sex life, sexual orientation, biometric data, genetic data, transgender status, intersex status, caste or tribe, religious or political beliefs.
When we consider ourselves to be members of a society, we frequently argue that we are individuals first, and that in this world, each and every person or individual requires his or her own private space. To ensure that each individual has that right, the state is providing those private moments to be enjoyed with those they choose away from the prying eyes of the rest of the world. This right is becoming increasingly important as time passes. With all of our lives being exposed to the media via social networking sites or spy cameras, everyone needs to be protected, and it should act in such a way that no one thinks of invading an individual’s right to privacy. Privacy should be protected in all aspects, but it is subject to reasonable restrictions under the provisions of the Indian Constitution and other relevant statutory provisions in force. One must understand that privacy should be kept in mind and should be kept within the confines of not explaining to the rest of the world.
Following the enactment of the PDPB into an Act, there are several compliances that organisations processing personal data must follow in order to ensure the privacy of individuals relating to their Personal Data. Individual consent would be required for the processing of personal data. Organizations will have to review and update data protection policies and codes based on the type of personal data being processed to ensure they are consistent with the revised principles, such as updating their internal breach notification procedures, implementing appropriate technical and organisational measures to prevent data misuse, and appointing a Data Protection Officer to be appointed by the Significant Data Protection Officer .
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