September Activity – Week 1 & 2 – Information Handout for Students

1. To abide by the Constitution and respect its ideals and institutions, the National Flag, the National Anthem.
2. To cherish and follow the noble ideals which inspired our national struggle for freedom.
3. To uphold and protect the sovereignty, unity and integrity of India.
4. To defend the country and render national service when called upon to do so.
5. To promote harmony and the spirit of common brotherhood amongst all the people of India and to renounce practices derogatory to the dignity of women.
6. To value and preserve the rich heritage of our composite culture.
7. To protect and improve the natural environments including forests, lakes, rivers and wildlife.
8. To develop the scientific temper, humanism and the spirit of inquiry and reform.
9. To safeguard public property and not to use violence.
10. To serve towards excellence in all spheres of individual and collective activity.

Freedom refers to enhancing the autonomy of the individuals with regard to their personal data in deciding its processing which would lead to an ease of flow of personal data.

The Supreme Court held that the Right to Privacy is a fundamental right derived from the right to life and personal liberty as well as other fundamental rights securing individual liberty in the Constitution. Privacy itself was held to have a negative aspect i.e. the right to be left alone, and a positive aspect i.e. the right to self-development. The sphere of privacy includes a right to protect one’s identity. This right recognises the fact that all information about a person is fundamentally his/her own, and he/she is free to communicate or retain it to himself/herself. The core of informational privacy, thus, is a right to autonomy and self-determination in respect of one’s personal data.

Privacy too can be restricted in well-defined circumstances as mentioned below-

1. There is a legitimate state interest in restricting the right. 
2. The restriction is necessary and proportionate to achieve the interest. 
3. The restriction is by law.

Justice J. Chelameswar has remarked- “It goes without saying that no legal right can be absolute. Every right has limitations. This aspect of the matter was conceded at the bar. Therefore, even a fundamental Right to Privacy has limitations. The limitations were to be identified on case-to-case basis depending upon the nature of the privacy interest claimed. Having emphatically interpreted the Constitution's liberty guarantee to contain a fundamental right of privacy, it was necessary to outline the way such a Right to Privacy could be limited.”

Reference Website

Based on the Right to Privacy, The Personal Data Protection Bill 2019, was introduced in the Lok Sabha by the Minister of Electronics and Information Technology, Mr. Ravi Shankar Prasad on 11th December 2019. The Bill seeks to provide protection of personal data of individuals and establishes a Data Protection Authority for the same.

Right to Privacy is not just about data. There is an ever expanding scope of privacy, as per various judgements given by the High Courts/Supreme Court. There is no specific legislation on the Right to Privacy, but it’s a fundamental right. What this means is that whenever someone feels that his/her Right to Privacy has been violated, he/she can approach the higher courts- High Courts and Supreme Courts- directly. 

This includes someone touching you without your permission. For example, inappropriate touching by security guards at airport checkup points are a violation of the Right to Privacy. Privacy can also be extended to other aspects, including bodily integrity, personal autonomy, informational self-determination, protection from state surveillance, dignity, confidentiality, compelled speech and freedom to dissent or move or think.

Case 1 – Surveillance by the State

Ramesh saw a huge number of policemen around his house. The police suspected that there were some suspicious activities going on in his neighbourhood. Ramesh felt threatened even  though he was an innocent citizen of India now. He had a few cases against him in the past. He had served his sentence in jail and now returned to a normal life. However, the police suspect his involvement in a new case that has come up. Do you think that his residence should be put under surveillance by the police?

Actual Case: In the Govind v. State of Madhya Pradesh Case, Mathew J. accepted the Right to Privacy as an emanation from Article 19 and 21, but the Right to Privacy is not an absolute right. Like other fundamental rights, it is also subject to restrictions to safeguard public interests. Surveillance by domiciliary visits need not always be an unreasonable encroachment on the privacy of a person owing to the character and previous actions of the person subjected to surveillance as also the objects and the limitation under which the surveillance is made. The Right to Privacy deals with ‘persons not the place.’

Reference Website

Case 2 – Personal Liberty

Suresh is a 25-year-old businessman from Kolkata. He was prohibited from flying abroad because there were allegations against him that he was involved in some activities related to business fraud committed by the company. However, he believes that he must be allowed to go to London to secure an important deal for his company. Moreover, he promised to return within a week. But his request to fly was denied. Do you think it is okay to ban someone’s right to fly abroad if he/she is facing any allegations? 

Actual Case: In the Smt. Maneka Gandhi v. Union of India Case (1978), the Supreme Court’s seven-judge bench said ‘personal liberty’ in Article 21 covers a variety of rights and some have the status of Fundamental Rights and have been given additional protection under Article 19. The Court thus recommended a Triple Test for any law interfering with personal liberty: (1) It must prescribe a procedure; (2) The procedure must withstand the test of one or more of the Fundamental Rights conferred under Article 19 which may be applicable in each situation; and (3) It must withstand test of Article 14. The law and procedure authorising interference with personal liberty and right of privacy must also be right, just and fair and not arbitrary, fanciful or oppressive.

Reference Website

Case 3 - Aadhaar Card Data

John is a resident of Kerala. He went to buy a sim card without any document of identity proof. After purchasing a sim, he just had to give his fingerprint. All the data from his Aadhaar automatically came to screen and got submitted to the sim provider. Do you think John’s sensitive information should be passed to the sim provider when he buys a sim?

Actual Case: The Supreme Court, in its final judgement on Aadhaar upheld its validity and further stated that the Aadhaar Act does not violate the Right to Privacy when a person agrees to share his/her biometric data. However, the Supreme Court barred private companies from making use of the Aadhaar card for the purpose of KYC authentication. At the same time, the apex court held that Aadhaar will still be in use for various other purposes which would include PAN card and ITR filing.

Reference Website

Case 4 – Tapping Telephones

Ram Ratan is the CEO of a big organisation. He was on a call with the Chief Financial Officer of his company. They were talking about important decisions for the organisation. However, since Ram Ratan is suspected to have been involved in some suspicious activities, his calls were tapped by police officers. After a few years, Ram Ratan was released by court in the case. However, he still feels that he is being tapped by the police. Do you think tapping the telephone is always wrong? What can be the exceptions to this?

Actual Case: Telephone tapping constitutes a serious invasion of an individual’s Right to Privacy. Is it constitutionally permissible in India? If so, within what limits and subject to what safeguards? The questions posed above have been fully considered by the Supreme Court in the People’s Union for Civil Liberties v. Union of India Case. The case was filed as a protest against the rampant instances where phones of various politicians were tapped by the CBI. The court ruled that ‘telephone conversation is an important facet of a man’s private life’. The right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as “Right to Privacy”. So, tapping of telephones is a serious invasion of privacy. This means that telephone tapping would violate the fundamental right under Article 21 unless it is permitted under the procedure established by law. The abovementioned procedure has to be “just, fair and reasonable”.

Reference Website

Case 5 - Dignity and Confidentiality

John and Mary are a married couple from Goa. Lately, they have been finding their differences irreparable. Mary used to check John’s phone in his absence. She always suspected that John was unfaithful. She even tried to damage his reputation among his colleagues by sending messages to them from his phone. John got frustrated and decided to get divorced. Do you think John’s dignity was hampered because of  Mary’s actions?

Actual case: In the Rayala M. Bhuvneswari v. Nagaphomender Rayala Case, a man filed for divorce. To support his case, he produced a hard disc containing the recorded conversations his wife had with certain other people in the US. When she denied some portions of the conversation by pointing out that it was not her voice, the Court held that the act of tapping her private conversations by the husband without her knowledge was illegal and amounted to infringement of her Right to Privacy under Article 21 of the Constitution. These talks, even if true, cannot be admissible as evidence. The wife therefore cannot be forced to undergo a voice test.

The Court observed that the purity of the relation between a husband and a wife is the basis of marriage. The husband recording her telephone conversations with her friends and her parents in India without her knowledge is a clear infringement of her Right to Privacy. If the nature of the husband is such where he has no faith in his wife regarding the conversations she engages in, then the institution of marriage itself becomes redundant.

Reference Website

Case 6 – Be Alone

Kalia was arrested in a case related to theft. He was in jail with other inmates. Since it was during the time COVID was spreading, he wanted to be shifted to a single cell in jail. He was suspicious that some of the jail inmates might have COVID. Do you think he should have the right to be left alone? 

Actual Case: In the R. Rajagopal v. State of T.N. Case (1994), also known as the Auto Shankar Case, the Right to Privacy was held to be implicit in Article 21. The court held that “It is the right to be left alone”. A citizen has the right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education among many other matters. In this case, the Right to Privacy of a prisoner was recognised. A prisoner had written his autobiography in jail describing the conditions prevalent there and had described the nexus between prisoners and several IAS and IPS officers. He had given the autobiography to his wife so that she could get it published in a particular magazine. However, the publication was restrained due to  various concerns. The question of whether one has the right to be left alone in jail was given voice.

Reference Website

1. Student Data Privacy: The Case of Delhi University
2. Right to Privacy background

Video 1: Right to Privacy is Fundamental Right [7 minutes video]

Additional Reference Video 1: Fundamental Rights Indian Constitution [16 minutes video]

Additional Reference Video 2: Fundamental Duties in Indian Constitution [9 minutes video]

Additional Reference Video 3: Do we have a Right to Privacy in India? [11 minutes video]

Additional Reference Video 4: Supreme court on right to privacy [3 minutes video]

Recommended Movies: The Social Dilemma [2020] and Searching [2018]. Both these movies are available on NetFlix.