Privacy is a fundamental human right, enshrined in numerous international human rights instruments. It is central to the protection of human dignity and forms the basis of any democratic society. It also supports and reinforces other rights, such as freedom of expression, information and association. Activities that restrict the right to privacy, such as surveillance and censorship, can only be justified when they are prescribed by law, necessary to achieve a legitimate aim, and proportionate to the aim pursued.
As innovations in information technology have enabled previously unimagined forms of collecting, storing and sharing personal data, the right to privacy has evolved to encapsulate State obligations related to the protection of personal data. A number of international instruments enshrine data protection principles, and many domestic legislatures have incorporated such principles into national law.
Privacy also has implication for the freedom of opinion and expression. The Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression emphasises that the “right to privacy is often understood as an essential requirement for the realization of the right to freedom of expression. Undue interference with individual’s privacy can both directly and indirectly limit the free development and exchange of ideas.”
The Constitution of India does not specifically guarantee a right to privacy, however through various judgements over the years the Courts of the country have interpreted the other rights in the Constitution to be giving rise to a (limited) right to privacy – primarily through Article 21 – the right to life and liberty. In 2015, this interpretation was challenged and referred to a larger Bench of the Supreme Court (the highest Court in the country) in the writ petition Justice K.S Puttaswamy & Another vs. Union of India and Others, the case is currently pending in the Supreme Court.
The constitutional right to privacy in India is subject to a number of restrictions. These restrictions have been culled out through the interpretation of various provisions and judgements of the Supreme Court of India:
• The right to privacy can be restricted by procedure established by law which procedure would have to be just, fair and reasonable (Maneka Gandhi v. Union of India);
• Reasonable restrictions can be imposed on the right to privacy in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence; (Article 19(2) of the Constitution of India, 1950)
• The right to privacy can be restricted if there is an important countervailing interest which is superior (Gobind v. State of M.P.);
• The right to privacy can be restricted if there is a compelling state interest to be served (Gobind v. State of M.P.);
• The protection available under the right to privacy may not be available to a person who voluntarily thrusts her/himself into controversy (R. Rajagopal v. Union of India).
• Like most fundamental rights in the Indian Constitution, the right to privacy has been mostly interpreted as a vertical right applicable only against the State, as defined under Article 12 of the Constitution, and not against private citizens. (Zoroastrian Cooperative Housing Society v District Registrar)
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