Analysis of Right to Privacy in Modern Era

Article 21 has been termed as the heart of the Indian Constitution. The Supreme Court had extended the meaning of the word “life” and “personal liberty” giving birth to several rights under the said article. A right to be declared as a Fundamental Right, social and political rights enshrined under Part IV of the Constitution (DPSP) can be read with Part III to create enforceability of the provisions of DPSP.

Article 21 is mainly interpreted and extended in compliance with the International Charter on Human Rights. In earlier times, there was no mention of the term “right to privacy” and law used to give protection to physical dangers only such as trespass in a property, this resulted in the emergence of the right to property considered under the right to life. Later on, it was emerged that security to spiritual self and feelings is also required apart from physical security, therefore, the scope of the right to life was further expanded. The right to be let alone derived and was known to be the right to privacy later on.

Judicial Precedents and Right to Privacy

Right to privacy was derived from Article 21 of the Constitution by interpreting Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil & Political Rights (International Charter on Human Rights). The scope of the right of privacy to be extended from Article 21 came up from Kharak Singh’s case (1962). Only Justice Subba Rao, in this case, equated personal liberty with privacy and he observed that “Concept of liberty in article 21 was comprehensive enough to include privacy and that a person's house, where he lives with his family is his castle and that nothing is more harmful to a man's physical happiness and health than a calculated interference with his right to privacy”. Subsequently, in 1975, the right to privacy was again interpreted in context to Article 19(1)(d) of the Constitution.

If the issues of surveillance and data breach due to an increase in modern technology invades on the privacy of a citizen, then it will amount to an infringement of both Articles 19(1)(d) and 21 of the Constitution. Maneka Gandhi v. UOI (1978) stated the triple test, any law can interfere with the personal liberty of an individual if it satisfies legality, need, and proportionality.

The judgment in Justice KS Puttaswamy v. UOI (2017) where a 9 Judge Bench of the Supreme Court delivered a unanimous verdict and other relevant matters, affirming that the Constitution of India guarantees to each individual a fundamental right to privacy and it is an intrinsic part of Article 14, 19 and 21. This judgment by a 9 Judge Bench overruled the verdicts of MP Sharma v. Satish Chandra decided by an 8- Judge bench in 1954 and the other Kharak Singh v. State of Uttar Pradesh, by 6 Judges in 1962. Both these cases held that the right to privacy is not a Fundamental Right and not protected under the Constitution.

Also in Justice KS Puttaswamy aadhaar judgment, SC upheld the constitutional validity of Aadhaar as it complied with the three-fold test (Triple test in Maneka Gandhi’s case). The three-fold Puttaswamy test (with respect to Aadhaar) states that for testing whether any State action infringes the fundamental right to privacy.

These three criteria are to be met:

1. Legality, which articulates the existence of law.
2. Need, defined in terms of a legitimate state aim. The need in this case was to provide government benefits and subsidies to marginalized and poor citizens through Aadhaar.
3. Proportionality, which ensures a rational nexus between the objects and the means adopted to achieve them.

Right to Privacy is a Fundamental Right but subject to reasonable restrictions. The SC confirmed that the right to privacy is a fundamental right that does not need to be separately articulated under the Constitution but can be derived from Articles 14, 19, and 21 of the Indian Constitution. It is a natural right which subsists as an integral part to the right to life and liberty. It is an inalienable and fundamental right& any action by the State that results in a violation of the right to privacy is subject to judicial review.

Discussing the right to privacy, is it possible to locate the origin of a WhatsApp message without breaking encryption, and what could be its legal implications?

An act of breaking encryption is a direct infringement of the fundamental right to privacy. "Privacy and traceability do not go hand-in-hand. If the government is focusing on enabling traceability, it will amount to infringement of privacy."

Technology as a Threat to the Right of Privacy

In a popular case, Pegasus spyware, a modular malware that can initiate total surveillance on the targeted device, as per actively reads the user's messages and mail, listen to calls, send back the browser history, and more, which basically means taking control of nearly all aspects of your digital life. Reports in Indian media have revealed that the targets of this spyware include lawyers in the Bhima Koregaon case. This resulted in infringement of the rule of law and contempt of the fundamental right to privacy. In the Bhima Koregaon case while WhatsApp’s message didn’t specifically mention Pegasus or the NSO group, Rathod (one of the lawyers in Bhima Koregaon case) stated the possibility of spyware targeting him is very high.

There is an urgent requirement for official disclosure on whether and how this spyware was used in India to hack some citizens. The said WhatsApp incidents can prove that existing guidelines on data security are not adequate in India. Section 69 of the IT Actiterates state interception under certain situations. Here, state agencies have purportedly colluded with WhatsApp. 

In a recent incident, defending user privacy and the messaging platform's protected messages, WhatsApp has claimed that its messages are protected and no third-party can access them. This statement from WhatsApp also came amidst speculations about how the NCB managed to get their hands- on old WhatsApp messages in the Bollywood drug scandal case?

Conclusion

There are several additional implications of this judgement on matters incidental to the principal issue decided by the Court such as expressly recognising an individual's right to privacy regarding his sexual choices or sexual orientation (Naz Foundation’s case), the judgement is likely to have an impact on the petition pending before the Supreme Court on the de-criminalisation of homosexuality in India. Even the State cannot interfere in the food choices of an individual it will have an impact on the various cases protesting the ban on beef imposed by certain States.