Knowledge nugget of the day: Right to Privacy

Justice Puttaswamy famously challenged the constitutional validity of the Aadhaar scheme, which led to the Supreme Court recognising the right to privacy under the fundamental right to life under Article 21 of the Constitution.

Born in 1926, at a village near Bengaluru, Puttaswamy became a judge of the high court in the 1980s and was part of the Andhra Pradesh Backward Classes Commission.

Key Takeaways :

1. In August, 2017, a nine-judge bench of the Supreme Court of India in K. Puttaswamy v Union of India Case ruled unanimously that  “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution”.

2. There were 22 petitioners in all but the lead petitioner who challenged Aadhaar was Justice KS Puttaswamy. The Supreme Court had addressed the issue of privacy in approximately 30 previous judgments. However, the Government of India argued in this case that privacy is not a fundamental right, stating that this had been determined in two judgments made by an eight-judge and a six-judge Bench. As a result, the matter was first referred to a five-judge Bench and then, to this nine-judge Bench.

3. Former Attorney General K K Venugopal had argued that “the right of privacy may at best be a common law right, but [it was] not a fundamental right guaranteed by the Constitution”. The court said that “infusing a right with a constitutional element” gives it “a sense of immunity from popular opinion and, as its reflection, from legislative annulment”, which a common law right would not have.

4. SC in its verdict rejected all arguments of the Union government, overruled the court’s judgments in M P Sharma (1954) and Kharak Singh, and approved the decisions of its smaller Benches, which had found the right to privacy implicit in the right to life and personal liberty.

5. The Right to Privacy has emerged at the center of various controversies in recent years, yet its explicit definition remains unclear in many cases.

Alok Prasanna Kumar writes-

Three elements are considered as the core to the right to privacy: Personal autonomy, the freedom to make choices and the right to determine what happens with information about oneself.

6. Aishwarya Giridhar, Nidhi Singh write- “The SC has explored principles of autonomy, dignity, and identity in relation to privacy to strengthen the framework of constitutional rights. For instance, it decriminalised all sexual relations between consenting adults, including adults of the same sex, relying on the right to privacy linked with freedom of expression, equality, and non-discrimination…The Court also examined the role of privacy in the context of end-of-life care and reaffirmed the right to die with dignity. Since Puttaswamy, the SC has deliberated on and expanded the ambit of the right to privacy.”

BEYOND THE NUGGET: How is the right to privacy protected in other countries?

7. United States: The U.S. Constitution does not explicitly mention the right to privacy, the Supreme Court has interpreted various amendments to imply that this right exists. In particular, the Privacy Act of 1974 was enacted to protect citizens from arbitrary use of their records by federal agencies. This law requires agencies to keep a record of disclosures of the information they maintain. Additionally, there is a federal law that protects the privacy of Social Security numbers from government inquiries, except in cases where information about tax payments must be disclosed or in cases related to child support

8. Germany: Germany’s horrific history under the Nazi regime, characterized by constant government surveillance, has led the country to be extremely cautious about administrative intrusions into individuals’ personal lives. Over time, Germans have worked to evolve and update privacy laws to meet the social and technological needs of the time. As a result, Germany has become one of the strictest countries in terms of enforcing privacy laws.

9. Sweden: Despite being one of the first countries of the world to give a personal identification number to its citizens, required to be used in every interaction with the State, Sweden is also one of the first countries to have a detailed statute on privacy laws online. The 1973 Data Act protected the privacy of personal data on computers. The right to protection of personal data is also found in the Swedish constitution. 

10. Canada: The privacy law in Canada, first implemented in 1977 as part of the Canadian Human Rights Act, has evolved significantly over the years. Initially, it was designed to serve as a means of data protection. In 1983, the law was expanded to include regulations on how the government can access and disclose personal information.

11. European Union: Article 8 of the European Convention on Human Rights (ECHR) provides a right to protection of one’s private and family life subject to certain restrictions. Also, the Data Protection Directive adopted by the European Union in 1995 regulates the processing of personal data within the European Union.

(Sources: Right to privacy in other countries, A to Z of Privacy,)

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