Pri­vacy is must, walls have ears

The Free Press Journal - - EDIT - Gargi Pa­te­ria

Pri­vacy is a right to be let alone, the right of a per­son to be free from any un­war­ranted pub­lic­ity, the right to live with­out any un­war­ranted in­ter­fer­ence by the pub­lic in mat­ters with which the pub­lic is not nec­es­sar­ily con­cerned, as ex­plained in Black’s Law Dic­tio­nary. Pri­vacy is an in­nate hu­man right which is nec­es­sary for main­tain­ing the hu­man’s state with re­spect and dig­nity. Pri­vacy is not some­thing that peo­ple are merely en­ti­tled to, it is an ab­so­lute pre-req­ui­site. In mod­ern world, pri­vacy en­sures our per­sonal in­for­ma­tion like mails, ad­dress, phone num­ber, bank de­tails and med­i­cal records to be safe and se­cure. “Even walls have ears” sounds true in the cur­rent state of af­fairs. If we don’t act now to safe­guard our pri­vacy, we could all be­come vic­tims of iden­tity theft as tech­nol­ogy has also yielded the risk of pri­vacy in this re­gard. Any­thing you do can be traced through the in­ter­net and could be used in a wrong sense.

The con­cept of pri­vacy be­ing made law came when it came to light that the pri­vate priv­i­leges of any in­di­vid­ual can be me­di­ated by the gov­ern­ment. The right to life is un­doubt­edly the most fun­da­men­tal of all rights which now in­cludes the Right to Pri­vacy and has al­ways been in the am­bit of per­sonal lib­erty, which can­not be cur­tailed in any sit­u­a­tion. There would have been no fun­da­men­tal right worth men­tion­ing if Ar­ti­cle 21 had been in­ter­preted in its orig­i­nal sense. “Life” in Ar­ti­cle 21 is not merely an act of breath­ing or be­ing alive, it in­cludes a thing re­lated to an in­di­vid­ual’s lib­erty, dig­nity. In the re­cent past, there has been de­vel­op­ment in Con­sti­tu­tional Ju­rispru­dence which re­sulted in in­clu­sion of Right to Pri­vacy into Ar­ti­cle 21 as a fun­da­men­tal right. Around the globe most of the gov­ern­ments have tried to pre­serve their cit­i­zen’s con­vic­tions, feel­ings, sen­sa­tions and con­sid­er­a­tions. A per­son has the priv­i­lege to fig­ure out what sort of data has been taken about them and the in­ten­tion be­hind such act. This aids in shield­ing peo­ple from mis­use.

In Kharak Singh vs State of Ut­tar Pradesh, Supreme Court said that the Right to Pri­vacy is a part of Right to Pro­tec­tion of Life and Per­sonal Lib­erty. The court here equated pri­vacy to per­sonal lib­erty. Ap­pli­ca­ble to pro­tec­tion, once con­sol­i­date as a fun­da­men­tal right, right to pri­vacy is suf­fi­ciently wide to in­fringe into any cir­cle of ac­tion. The con­fer­ment of such a right or priv­i­lege has turned out to be a great de­gree of trou­ble with the head­way of in­no­va­tion and the so­cial net­work­ing web­sites. Yet the other side of the coin is that the right to pro­tec­tion of a man in­cor­po­rates the right to de­tach in­di­vid­ual data.

In Govind vs State of Mad­hya Pradesh, Mathew J. ac­knowl­edged the Right to Pri­vacy as a spread from Ar­ti­cle 19(a), (d) and 21, yet Right to Pri­vacy is not ab­so­lute right. As­sum­ing that the fun­da­men­tal rights, ex­plic­itly guar­an­teed to a cit­i­zen, have penum­bral zones and that the Right to Pri­vacy is it­self a fun­da­men­tal right. The fun­da­men­tal right must be sub­ject to re­stric­tion on the ba­sis of com­pelling pub­lic in­ter­est. Ob­ser­va­tion by domi­cil­iary vis­its re­quire not gen­er­ally be a non­sen­si­cal in­fringe­ment on the pri­vacy of a per­son at­trib­ut­able to the char­ac­ter and fore­run­ners of the in­di­vid­ual sub­jected to re­con­nais­sance as like­wise the ar­ti­cles and the im­ped­i­ment un­der which the ob­ser­va­tion is made. The con­cept of Right to Pri­vacy deals with the per­sons, not the places. In Smt Maneka Gandhi vs Union of In­dia & Anr (1978), SC’s 7-Judge Bench said, ‘per­sonal lib­erty’ in Ar­ti­cle 21 cov­ers an as­sort­ment of rights and some have sta­tus of ma­jor rights and given ad­di­tional pro­tec­tion un­der Ar­ti­cle 19. Triple test for any law med­dling with per­sonal lib­erty: (1) it must en­dorse a method; (2) the method must with­stand the test of one or more of the fun­da­men­tal rights con­ferred un­der Ar­ti­cle 19 which may be ap­pli­ca­ble in a given cir­cum­stance; and (3) it must with­stand test of Ar­ti­cle 14. The law and method ap­prov­ing im­ped­ance with per­sonal lib­erty and Right to Pri­vacy should like­wise be cor­rect, just and rea­son­able and not self-as­sertive, whim­si­cal and abu­sive.

In Naz Foun­da­tion Case vs Govt of NCT of Delhi (2009), Delhi HC gave the land­mark de­ci­sion on con­sen­sual ho­mo­sex­u­al­ity. In this case, the Court ex­am­ined the ap­pli­ca­bil­ity of Sec­tion 377 of IPC and Ar­ti­cles 14, 19 and 21. The Right to pri­vacy held to pro­tect a “pri­vate space in which man may be­come and re­main him­self ”. It was said that peo­ple re­quire a po­si­tion of sanc­tu­ary where they can be free from so­ci­etal con­trol – where peo­ple can drop the mask, cease for some time from an­tic­i­pat­ing on the world the pic­ture they need to be ac­knowl­edged as them­selves, a pic­ture that may mir­ror the es­ti­ma­tions of their as­so­ciates as op­posed to the sub­stances of their in­cli­na­tion.

It is cur­rently an es­tab­lished sit­u­a­tion that Right to Life and Lib­erty un­der Ar­ti­cle 21 in­cludes Right to pri­vacy. Right to Pri­vacy is also ‘priv­i­lege to be not to men­tion’. A na­tive has a priv­i­lege to de­fend the se­cu­rity of his own, his fam­ily, mar­riage, mul­ti­pli­ca­tion, par­ent­hood, kid bear­ing and in­struc­tions among dif­fer­ent is­sues. Any in­di­vid­ual distribut­ing any­thing con­cern­ing the above is­sues aside from with the as­sent of the in­di­vid­ual would be sub­ject in real life for harms. Po­si­tion be that as it may, be ex­tra­or­di­nary, if a man de­lib­er­ately pushes him­self into dis­cus­sion or will­fully wel­comes or raises a doubt.

The Supreme Court 9-Judge Con­sti­tu­tional Bench in the case of Jus­tice KS Put­taswamy (Retd.) vs Union Of In­dia has over­ruled its own 8-Judge Bench & 6-Judge Bench judge­ments of MP Sharma Case (1954) and Kharak Singh (1961) both of which said that the Right to Pri­vacy is not pro­tected un­der the In­dian Con­sti­tu­tion. It is a mile­stone that the Supreme Court of In­dia has unan­i­mously pro­claimed Right to Pri­vacy to be an in­sep­a­ra­ble part of Ar­ti­cle 21 of the Con­sti­tu­tion. The Supreme Court has com­pletely held that the Right to Pri­vacy is en­sured as a char­ac­ter­is­tic piece of the Right to Life and Per­sonal Lib­erty un­der Ar­ti­cle 21 of the Con­sti­tu­tion of In­dia and as a piece of the flex­i­bil­i­ties en­sured by Part III of the Con­sti­tu­tion. The judg­ment rep­re­sents a quan­tum jump in the de­vel­op­ment of le­git­i­mate statute re­lat­ing to pri­vacy in In­dia.

Cus­tom­ar­ily, In­dian cul­ture has its un­der­ly­ing foun­da­tions in the joint fam­ily frame­work. There­fore, shar­ing of data has been an es­sen­tial piece of In­dian cul­ture. It is ap­pro­pri­ate to take note of that as on date, In­dia does not have a de­voted law on pro­tec­tion.

Mak­ing Right to Pri­vacy a fun­da­men­tal right has sup­ported the law with moral facts. This in a way has nar­rowed down the gap be­tween what the law is and what the law ought to be. In many mat­ters re­lated to an in­di­vid­ual’s life, each one ought to be free to make his or her de­ci­sion with­out the Gov­ern­ment telling them what can be done and what can­not be. In the ab­sence of pri­vacy, in­di­vid­u­als would be­come vul­ner­a­ble to the con­trol of oth­ers and would lose free­dom which may lead to dif­fi­dence, ir­res­o­lute­ness and would more likely to be on the verge of get­ting ma­nip­u­lated.

In words of Gabriel Gar­cia Mar­quez, “All hu­man be­ings have three lives; pub­lic, pri­vate and se­cret.” Pri­vacy laws are in ex­is­tence be­cause peo­ple have a Right to Pri­vacy and in no way it can be in­fringed, as it is now a fun­da­men­tal right.

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