THE LAWGICAL SOCIETY

Right to Privacy under Article 21: Evolution and Contemporary Challenges: Author: Aryaman Bandi

So what exactly is right to privacy you may wonder? The right to privacy is a fundamental aspect of individual autonomy, while allowing people to make personal choices free from unwarranted interference. Furthermore, the right to privacy is a important aspect of an individual’s dignity, liberty and personal freedom. Before, the Indian Constitution didn’t mention privacy as a separate fundamental right, but the SC has slowly developed and recognised privacy as a part of Article 21. This Article will thereby examine the evolution of this right to privacy in India, from the earlier approach to it’s recognition as a fundamental right in the case Justice K.S Puttaswamy v. Union of India

ARTICLE

Aryaman Bandi

9/22/20265 min read

Abstract

So what exactly is right to privacy you may wonder? [1] The right to privacy is a fundamental aspect of individual autonomy, while allowing people to make personal choices free from unwarranted interference. Furthermore, the right to privacy is a important aspect of an individual’s dignity, liberty and personal freedom. Before, the Indian Constitution didn’t mention privacy as a separate fundamental right, but the SC has slowly developed and recognised privacy as a part of Article 21. This Article will thereby examine the evolution of this right to privacy in India, from the earlier approach to it’s recognition as a fundamental right in the case Justice K.S Puttaswamy v. Union of India. This Article also explores contemporary challenges arising from digital technology, data collection, social media and AI. It also argues that protecting privacy in the digital age requires a balance between individual rights, national security and legitimate State interests.

Keywords

Privacy, Article 21, Article 14, Article 19, The DPDP Act 2023, unanimously, contemporary

Introduction

Privacy is something which most citizens value, although they might not think about it every single day. From personal photographs, important and personal conversations with different people, and financial information, a large part of our lives is now all connected to various information that we expect to remain private. However with the rapid growth of technology, protecting the privacy of people has become very difficult. Different companies, the Government, and Social media platforms collect and process large amounts of personal information, which ultimately raises important questions about how far an individual’s private can be accessed or monitored.

The Indian Constitution hasn’t expressly mentioned the right to privacy as a Fundamental Right. [2] However, the Indian Judiciary has slowly expanded the meaning of Article 21, which guarantees the right to life and personal liberty and also includes various other aspects of privacy. This development was made in 2017 in the case [3] Justice K.S Puttaswamy v. Union of India 2017 where a 9 judge bench of the SC unanimously recognised privacy as a Fundamental right.

This recognition of privacy under Article 21 has had significant implications for individual liberty and dignity. Also, the Digital age created new challenges involving surveillance, data protection, social media and AI. This Article will be explaining the evolution of the right to privacy in India, explores the contemporary challenges all while considering the balance between individual freedom and legitimate state and technological interests.

Legal Framework

The right of privacy in India is understood as a constitutional right arising from Article 21 which deals with Protection of life and Personal liberty. The Constitution doesn’t openly use the word “Privacy”, the SC has interpreted Article 21 to include dignity, personal choice and autonomy. Privacy has connection to other rights such as Article 14 (Equality and Protection against arbitrary state action) and Article 19 (freedoms of speech, movement and association).

There were a few other case laws which had occurred before the K.S Puttaswamy case. The 1st case was [4] M.P Sharma v Satish Chandra (1954), where the SC had taken a restrictive approach towards constitutional privacy. Another case [5] Kharak Singh v State of Uttar Pradesh (1963) in which the SC had considered issues relating to surveillance with different opinions on existence and scope of privacy right. Later decisions included other case laws such as [6]Gobind v. State of Madhya Pradesh (1975) and [7]R. Rajagopal v. State of Tamil Nadu (1994) which slowly strengthened privacy protection. Finally came the turning point of the case Justice K.S Puttaswamy v. Union of India dated back in 2017 where a unanimous 9 judge Constitution Bench held that Privacy is a constitutionally protected Fundamental Right which is associated with Article 21 and connected with the freedoms and dignity under part III.

Core Analysis

1)Evolution of the Right of Privacy in India

The right to privacy has slowly developed through various judicial interpretation. Earlier, the SC was hesitant to officially recognise privacy as a Fundamental Right. However, later on various judgements connected privacy with other rights such as personal liberty, dignity, and individual freedom under Article 21. The evolution reached it’s end in the case Justice K.S Puttaswamy v. Union of India (2017), where a 9 judge Constitution Bench unanimously recognised privacy as a Fundamental right under Article 21. This judgement was reached because it was declared that privacy is an essential component of the right to life and personal liberty under Article 21.

2) Privacy and Digital Technology

In the recent years, digital technology has grown drastically which has completely changed the nature of privacy. Different people consistently share their personal information on social media, mobile applications and online payment. Commercial companies collect and analyse large amounts of personal information of people, which ultimately makes it difficult for individuals to understand how their personal info is being used. This raises doubts about informed consent of the people, data security and how truly secure is their information and unauthorised sharing of this personal info. The DPDP Act 2023 represents an important legislative development in addressing these problems.

3) State Surveillance and the Right to Privacy

State surveillance is another important problem/challenge to privacy. Various measures taken by the Government such as digital monitoring, phone call interception and collection of personal information can only be justified in situations involving national security, preventing terrorism and prevention of major crimes. However, various critics argue that excessive surveillance violates privacy rights and may lead to a police state. The principle which was established in the Puttaswamy case requires restrictions on privacy to have a legitimate lawful basis and satisfy requirements such as legitimate state purpose and proportionality. The main problem is ensuring that the Government’s security surveillance doesn’t interfere into the private life people of the citizens.

4) Privacy in the Age of AI

Artificial Intelligence has presented us with new and complex questions regarding privacy protection. AI has started replacing Company employees who are in charge of collecting personal information of people and processing it. Humans have limitations and they are not capable enough to process enormous amount of information at once and even if they can, it’s time consuming. But with AI entering with field, it can process large amounts of information at once within a span of seconds, can even recognise unique faces, analysis different behaviours and create detailed profiles of individuals. Facial Recognition and automated Decision-making can affect privacy of individuals when they are aware that their data is being processed by the AI. The main challenge is to ensure that AI development does not come at the cost of dignity and control over personal info.

Counterarguments and Limitations

[8] Right to privacy is an important fundamental right but it has various limitations. Although it’s as essential right, it cannot be created as an absolute right. Privacy can be restricted in certain circumstances such as when Government routinely limit privacy to prevent terrorism or crack criminal networks or a legitimate investigation. Although at the same time, broad surveillance and data collection can create unnecessary interference with personal freedom. Another such limitation is the difficulty in regulating developing technologies such as AI, where existing laws can struggle to address forms of data misuse. Hence, privacy protection requires a careful balance between individual rights and legitimate State and technological interests.