In this article, we will take a closer look in this debate focusing on the related but distinct concept of privacy and right to privacy. An attempt has been made to throw the light on the recent problem of privacy violation of Indian Citizens. It focuses on the need for protection of privacy l in India and the precautionary measures to deal with this problem in the face of growing threats to privacy. By the end, we will have a clear idea of what privacy and right to privacy. How both are affected by the Constitution of India and what kind of steps taking by the Supreme Court of India. At present Supreme Court is a shield to protect fundamental right of Citizens of India and right to privacy is also a fundamental right under Article 21 of the Constitution.

What is Privacy?

Privacy is a not a new concept. This concept is very much imbibed under Article 21 of the Constitution of India. Privacy has always been valued in the Indian civilization though the context was quite different from the present. I.P. Massey wrote that it would be wrong if we presume that the concept of privacy is alien to the Indian culture.[1]Though no detailed study is there to look into privacy in ancient India, careful study shows people respecting others' privacy in interpersonal relationships.

Words like 'Ekant,' 'Raha, 'Gupta,' 'Upasana' and other similar words depict that concept of privacy were known in ancient culture. After that in Mughal dynasty 'Purdah' or veil system was very much in vogue during this era; in fact, many jurists proclaim that it was brought in India during this era only. The strict observation of the purdah system shows the existence of privacy as a deeply rooted custom, especially concerning women in Muslim society—the feeling of shyness 'Haya' was considered to be vital in one's behaviour.[2]

During British rule the concept of privacy was known to India when British people came here; instead, in the ancient Hindu Jurisprudence, it was quite well recognized. In India, privacy law was under the domain of customary law, and specific legislation was not in existence to protect the privacy of an individual. The development of privacy right during this period was not much as the British Government feared that if privacy is protected as a fundamental right, then more conspiracy will be against them. Initially, no work was done in the field of privacy law, and it was through custom and easement law that the privacy of a person was protected.

Recently, a judgment was delivered by Justice D.Y. Chandrachud that overruled the principles evolved in the Habeas Corpus case in the case of Justice K.S. Puttaswamy And ors. V. Union of India[3], which evolved as a landmark judgment in the history of India with regards to the status of Right to Privacy.

Definitions of Privacy

Justice Thomas M. Cooley is the first scholar who was defined concept of privacy in the years of 1888. According to him, 'Privacy' in general terms means, "the right to be let alone." He also said that:-

"Privacy is synonymous with the right to be let alone."[4]

There are several factors that affect what people consider private. There are huge differences between particular societies and cultures, or scientific development can also lead to a different, urging need for ensuring the protection of privacy.[5]

In the term privacy has been taken from the Latin word "privatus" which means "separated from rest, deprived of something, especially office, participation in the government or solitude".[6]

Pannalal Dhar's point of view Right to Privacy is a right whose contours still remained undefined.[7]

Difference between Privacy and Right to Privacy

Logically and practically, 'Privacy' differs significantly from the 'Right to Privacy'. Privacy is a state of affairs or a condition of life. Consequently, a person may have a large amount of Privacy without having opted for it. In that case he or she may have the right to choose it. On the contrary, a person who needs Privacy or would like to choose it, may not have the right to choose it. Even that person may not be in a position to enjoy the state of affairs called 'Privacy'.

Therefore, 'Right to Privacy' is the right to choose and enjoy the 'condition of life', called 'Privacy'. Right to Privacy is the creation of social structure, conventions and legal policy. Therefore, 'Right to Privacy' came into being only after the establishment of civilized society, whereas the state of affairs called 'Privacy' was there since the inception of human kind. 'Right to Privacy' may try to protect the state of affairs called 'Privacy', but it cannot always determine the claims to close where, when and how one will have Privacy.

Most important point of distinction between the two is that, 'Privacy', being a state of affairs, can never be created or destroyed by human beings, it is a creation of nature and not of law. On the other hand, 'Right to Privacy' is the creation of established legal system and based on principles of law, which are created by human beings. 'Right to Privacy' is the brain-child of man. Hence, 'Right to Privacy' can be created and destroyed by human beings.

Right to Privacy under the Constitution of India and explained by the Apex Court of India

The Indian Constitution does not distinctly acknowledge as a fundamental right to privacy. The concept of privacy was evolved in the year 1960 after the Kharak Singh case[8]. However, the courts have interpreted the right to privacy into the other existing fundamental rights[9]. Privacy is not an absolute right. It means it can be restricted for certain reasons for example to protect national security or public safety or if it conflicts with other rights like the right to freedom of expression[10] as imposed by the State. Recently, in the landmark case[11], the Constitution bench of the Hon'ble Supreme Court has held that Right to Privacy is a fundamental right but subject to certain reasonable restrictions.[12]

The word privacy differs from word confidentiality. We use words privacy, Confidentiality, and information security synonymously but these words have different meaning and different scope. The word confidentiality means keeping information secret from the rest of the world.

Article 21 of the Constitution of India provides that:
"No person shall be deprived of his life or personal liberty except according to the procedure established by law".

The right to privacy has not been specifically recognized as a fundamental right in Indian Constitution. The question whether "right to privacy" is a fundamental right was first considered by the Hon'ble Supreme Court in the case[13], where the issuance of the search warrant under sections 94 and 96 (1) of the Code of Criminal Procedure was challenged. The Hon'ble Supreme Court held that the power to issue search warrant was not in contravention of any constitutional provision.

Thereafter, in this leading case[14], the The right to privacy has not been specifically recognized as a fundamental right in Indian Constitution. The question whether "right to privacy" is a fundamental right was first considered by the Hon'ble Supreme Court in the case[15], where the issuance of the search warrant under sections 94 and 96 (1) of the Code of Criminal Procedure was challenged. The Hon'ble Supreme Court held that the power to issue search warrant was not in contravention of any constitutional provision.

Thereafter, in this leading case[16], the matter before the Hon'ble Supreme Court was that whether the inspection done by the private person at night against an accused would be violation of the right guaranteed under Article 21 of the Constitution of India and therefore raised the question as to whether Article 21 includes the right to privacy? The Hon'ble Supreme Court held that such inspection by the private person was actually the violation of Article 21. Moreover, the court by the majority held that provisions related to the right to privacy could not be interpreted as a fundamental right.

Subsequently, in a case[17], the issue before the Hon'ble Supreme Court was that whether the right to conduct domiciliary surveillance by the police was against the essence of the right to privacy embodied under Article 21 of the Constitution of India. The Hon'ble Supreme Court held that the police rules were not in conformity with the spirit of personal liberty and acknowledged that the right to privacy is a fundamental right as guaranteed by the Constitution of India. The right to privacy is not absolute in nature. It depends on the facts and circumstances of the case. Yet in another case[18] the Hon'ble Supreme Court upheld a similar proposition.

Subsequently, in the case of Mr. X v. Hospital Z,[19] the apex court continued to balance the conflict by recognizing that the medical records are generally considered to be private information of the individual. This right is subject to the exception in the case where nondisclosure of the medical report may endanger the life of other citizens.

Thereafter, in another case,[20] the Hon'ble Supreme Court undoubtedly held that right to privacy is very much incorporated under Article 21 of the constitution.

In this recent case[21], the issue raised before the Hon'ble Supreme Court was whether the 'Aadhaar Card Scheme' in which collecting and compiling the demographic and biometric data of the residents of the country to be used for various purposes is in breach of the fundamental right to privacy embodied under Article 21 of the Constitution of India. Changing the status of right to privacy from its earlier judicial precedent the Hon'ble Supreme Court referred this matter to the nine judges of the constitutional bench to decide the issue. In this case the Supreme Court made the right to privacy more than a common law right and more robust and sacrosanct than any statutory right. The court further held that the invasion of right to privacy must be validated on the basis of principle of natural justice i.e. the procedure established by law and the procedure must be just, fair and reasonable. Now the Aadhaar Card Scheme which was alleged to be in violation of fundamental right of right to privacy will be tested by the same standard by which a law that invade or infringe personal liberty envisaged under Article 21 of the Constitution of India is tested.

Conclusion
At the last I would like to conclude that the right to privacy is important for the general development of the human being. This idea must be characterized appropriately. This right is under danger because of dynamic improvement in the field of technology and overdependence of individual on such technology. Such advancements have attacked the individual's personal as well as private life. Right to privacy and Data protection are twins however not in distinguishable. They are identified with one another. Privacy rights are not supreme. The Indian courts through a number of decisions have proclaimed that it is a fundamental right under section 21 of the Constitution.

End-Notes:

• I.P. Massey, "Constitutionalization of Right to Privacy in India", in B.P. Sehgal (edn.), Human Rights in India, Deep & Deep Publications, New Delhi, 1999) pp. 310,311
• Ibid p. 99
• (2017)10 SCC 1
• Thomas M. Cooley, A Treatise on the Law of Torts, 2nd. Edn.,Callagham & Co., Chicago, 1888, p.29.
• Charles Fried, Privacy, The Yale Law Journal Vol. 77, No. 3. (1968) pp. 475,486
• Pawan Duggal, Textbook on Cyber Law (Universal Law Publication, New Delhi,2nd edn.,2016) p. 19
• Pannalal Dhar, Right to Privacy, AIR Journal Section (Raj.), 1987, p.145.
• (1964) 1 SCR 334.
• Freedom of speech and expression under Art 19(1) (a) and right to life and personal liberty under Art 21 of the Constitution of India.
• Under Art 19(2) of the Constitution
• Justice K S Puttaswamy (Retd.) & Anr. V. Union of India and Ors., WRIT PETITION (CIVIL) NO 494 OF 2012 available at: https://indiankanoon.org/doc/127517806/#:~:text=494%20of%202012%20was%20filed,Article%2021%20of%20the%20Constitution. (Visited at 05:07 PM dated on 03/04/2023)
• Vijay Pal Dalmia, "Data Protection Laws in India" Available at: https://www.mondaq.com/india/x/655034/data+protection/Data+Protection+Laws+in+India. (Visited at 05:25 PM dated on 03/04/2023)
• M. P. Sharma and Ors. v. Satish Chandra, District Magistrate, Delhi, and Ors.1954 SCR 1077
• Kharak Singh v. State of Uttar Pradesh and Ors. (1964) 1 SCR 334.
• M. P. Sharma and Ors. v. Satish Chandra, District Magistrate, Delhi, and Ors.1954 SCR 1077
• Kharak Singh v. State of Uttar Pradesh and Ors. (1964) 1 SCR 334.
• Gobind v State of Madhya Pradesh (1975) 2 SCC 148.
• R. Rajagopal and Anr. V State of Tamil Nadu (1994) 6 SCC 632, "26. We may now summaries the broad principles flowing from the above discussion: (1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone". A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education among other matters. None can publish anything concerning the above matters without his consent — whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy."
• AIR 1999 SC 495
• People's Union for Civil Liberties (PUCL) v Union of India (1997) 1 SCC 301
• K. S. Puttaswamy (Retd.) v Union of India (2015) 8 SCC 735