“I cherish my privacy and woe betide anyone who tries to interfere with that” – Jeff Beck.

The notion of privacy  is an old concept finding its origin in the natural law theories. William Blackstone and Aristotle had tried to  make a distinction between public wrongs and private wrongs. It’s hard to come up with a definite legal definition of ‘privacy’. Even though certain  legal experts define privacy as a right enjoyed by every human being by virtue of  their existence, the boundaries of privacy has always been a matter of dispute. The aspect of privacy can be extendable from physical integrity to dignity, confidentiality and above all freedom of non-disclosure of private information. Over the time, many attempts had been made to give a common framework and predefined dos and don'ts for privacy. We shall see the detailed evolution ,progress and expected improvements in these attempts. 

International Legal Framework  :

International law provides a legal framework on the topic of privacy. The human right to privacy and its protection is outlined in Article 12 of the Universal Declaration of Human Rights (UDHR) .

“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.” (UN 1948, 4; UN 1966, 10).

Across the globe, we can find different versions of legal  conventions supporting the above. There are over 150 national constitution which has mention of right to privacy.Article 11 of the American Convention on Human Rights  or Article 8 of the European Convention  are few among them. Apart from these European union recently introduced GDPR(General Data Protection Regulation). This regulation aims at protecting sensitive data of EU citizens. In digital age, where data is the treasure, regulations like GDPR are seen with utmost importance.

Evolution of right to privacy in India 

The concept of privacy can be traced out in the Upanishads. If we look at the ,Hitopadesh' it says that certain matters (worship, sex and family matters) should be protected from disclosure. But 'Hitopadaesh' never corresponded to a ‘law’ it was just a guidance to ‘positive morality’. Taking this to consideration we could come to the conclusion that even in ancient Indian culture, privacy was a vague concept. 

The Right to Privacy had been very much debatable in India because the Indian Constitution did not expressly grant Right to Privacy. The drafters of the Indian Constitution put forth Right to life as an essential right. The Supreme Court of India has also given various interpretations to Article 21 of the Indian Constitution expressly granting Right to life to all the citizens of India and with the growing times, right to life has been given too much expanding horizon with so many other rights coming within its ambit like right to speedy trial, Right to shelter, and many others. The explanation given by the Apex Court to “life” and “liberty” under the Indian Constitution has always been expansive to the extent that it does not mean mere animal/physical existence.

In modern India an official discussion on the issue of right to privacy occurred for the first time in debates of constituent assembly were K.S. Karimuddin moved an amendment pointing to  the US Constitution, where B.R. Ambedkar gave it only reserved support. This did not secure the incorporation of the right to privacy in the constitution of India. Earlier the stand of supreme court of India was against making right to privacy as a fundamental right .Hon Court even observed  the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right in the M.P. Sharma vs Satish Chandra case.

But later court had taken a lenient approach on privacy specifically in Govind v State of MP case. The observation made was like this “The right to privacy in any event will necessarily have to go through a process of a case-by-case development” , which means right to privacy varies with case or rather this meant right to privacy is a foreign concept and Indian culture might face problem with that, or right to privacy has to be interpreted in an Indian way, which would obviously take time. Maneka Gandhi Vs Union of India Case was considered as  the wide interpretation of Right to Life, which actually helped the Right to Privacy to fall into to the scope of Right to Life. More over Unni Krishnan v State of A.P. case numbered right to privacy as one of the twelve meanings of right to life .

Fundamental right 

In a mile stone judgement on Aug 24 2017, Supreme Court of India declared that privacy is a fundamental right for each of its 1.3 billion citizens protected under the country's constitution.

The ruling is the outcome of a petition challenging the constitutional validity of the Indian biometric identity scheme Aadhaar (Justice K.S. Puttaswamy (Retd) vs Union of India). This judgment reconciles those different interpretations to unequivocally declare that privacy is a fundamental right and also concludes that privacy is a necessary condition for the meaningful exercise of other guaranteed freedoms. With this judgement which withholds "Privacy as the constitutional core of human dignity", India, world’s largest democratic country had joined United states ,Canada, European Union, South Africa and United Kingdom in recognizing privacy as fundamental right.

While adopting this landmark judgement, it is necessary to define the borders of privacy on a case by case basis. This would  be a tedious task considering the various aspects that the term privacy might get involved in. 

Major After effects

1. Article 377:

Making use of the foundation of privacy as fundamental right ,On 6 September 2018, the Supreme Court of India ruled that the application of Section 377 to consensual homosexual sex between adults was unconstitutional, irrational, indefensible and manifestly arbitrary. With this mile stone decision India had joined about 30 countries across the globe , who had decriminalized same sex relationships.

For a country like India where culture and traditions rule the mind of a vast majority of population, this judgement was indeed a milestone. The right of the LGBT community for not being considered as criminals had to be considered much earlier ,but we should be proud that at last we value  them as they are.

2. Aadhar Scheme:

In response to the 27 petitions against the ‘draconian’ nature of  Aadhaar, for which       Government of India had collected many sensitive information of citizens , including biometrics ,Supreme Court of India mentioned collection of basic details of citizen for unification and distribution of privileges  will not contribute to violation of right to privacy. However it had  scrapped article 57(which allowed private entities to use Aadhaar for verification purposes) and article 47(which deprived citizens of any right to file an FIR against anyone violating his or her privacy by illegally using his or her Aadhaar number) of Aadhaar act. 

This judgement is a prime example of the definition of border of privacy. Collection of basic details of citizen which includes demographic and biometric data, is not a violation because its purpose is to provide a digital identification and there by targeted delivery to citizens. Whereas sharing this information with private firms can lead to misuse of the information, and hence this section was dropped. With this court is trying to making it clear the reason for collection of personal information is important , at the same time, the chance of it getting misused should also be prevented.

Privacy in digital age:

 The right to privacy in the digital age is threatened aggressively by data automation If privacy is at risk or threatened, we might miss the chance for personal assessment of the political process, one based on critical evaluation and self-reflection of our choices and preferences.

Data collection, through hacking or simple data harvesting combined with data analytics , allows governments and commercial entities to amass huge banks of information about common citizens and their online behaviour. Privacy incursions occur frequently, affecting our search and digital behaviour patterns. These incursions are not only about a person or in this case a user – they can also affect a group, a family, a community. Government surveillance may include complete tracking of the calls and activities of an individual who they categorize as a threat to nation. But this facility can be used for tracking details for political and business purpose. Private entities who capture and sell  personal data of users are prominent in almost all parts of the world.  The latest scandal involves Facebook users and Cambridge Analytica researchers mishandling the data of over 40 million users. FB claims that its interface is based on the illusion that users are in control of what it is shared. In reality, Facebook users have next to no control what is covertly shared about them. Whether the threat comes from governments or private entities, these occurrences pose a significant question to the right to privacy of an individual. Strict laws need to be formulated for handling privacy intrusions that can happen in a digital age.

Conclusion

With the recognition of privacy as a basic and fundamental right of an individual, India definitely cannot lag behind. The judgment of the Supreme Court is correct and true and with the growing information Technology, privacy needs to be fundamental right. However, it is also true that stringent laws needs introduction after this. An expert committee must be formed to probe into the matter as to how many privacy infringement issues are taking place in India and accordingly legislation exclusively dealing with such problems must be enacted. Data protection laws must be made more stringent and must conform to guidelines. Only one or two sections like section 43A of the IT Act won’t be sufficient to regulate the data protection at such a large scale when schemes like Aadhar are to be implemented.

When it comes to conflict between infringement of privacy and public interest, reasonable care must be taken to choose as to what is more important. Individual interest cannot override public interest. Hence, the Government must take into account the pleasure of larger number of people should try to inflict lesser pain. There must be regulation on the arbitrary use of power by the Government with respect to personal information of the people. One of the greatest advantages that India has is that the Privacy bill, 2011 is still pending in the Parliament. Hence, relevant amendments can be made to it before enacting it as legislation. We shall hope for a well framed structure for privacy which covers all relevant aspects to be implemented in India at the earliest.