What do you comprehend by the term – Privacy? Many people take it as secrecy. But does privacy just mean to have secrecy? No! It is a much wider term. It can be considered as a value, integrity, a cultural state, and intimacy to keep one’s identity veiled. A state where one can choose the way of life according to one’s preferences and not get their liberty and freedom invaded by intruders. Right to Privacy in modest language means – a right to be let alone. 

Privacy is not something that I’m merely entitled to, it’s an absolute prerequisite.

Marlon Brando

Privacy as a definition has its ambiguities and evolving understandings of various contexts and conditions are what have made this war difficult. As per Henry Campbell Black’s law dictionary, the right to privacy ‘determines the non-intervention of secret surveillance and the protection of an individual’s information.’ This also includes four aspects: physical, decisional, informational, and dispositional.

The Constitution of India does not provide any direct provision for the Right to Privacy. In making the Right to Privacy a constitutional right under the Constitution of India, the Indian Judiciary has played an important role. Hence, it is understood by various judicial interpretations of words stated under Article 21 of the Constitution, which further reads as “No person shall be deprived of his life or personal liberty except according to a procedure established by law.” 

In recent times, the issue of the Right to Privacy was first brought up in the ‘search and seizure’ case of M.P. Sharma v. Satish Chandra. The Supreme Court here held that the right to privacy was something that was alien to the Constitution of India and therefore cannot be brought upon by the citizens for consideration of it as a right under the fundamental rights of the Constitution. 

The desire for a Private Life

Every human being desires a life of his own; a choice of his own that is unambiguously an absolute right from the time of the birth of every individual living. In an era where information technology controls nearly every area of our lives, the challenge before the Court was to impart constitutional value to individual liberty in an integrated environment.

Previously, there have been tons of cases on privacy, but none of them were given considering it as a right under Part III of the Constitution. But with the emergence of new challenges in society, the deliberation on privacy has to be analyzed in context to a more global information-based culture. In the case of K.S. Puttaswamy v. Union of India, the nine-judge Bench of the Supreme Court while anticipating the constitutional challenge to the Aadhar card system of the Union Government gave a judgment that declared the right to privacy to be considered as a right under Part III of the Constitution and was said to be an intrinsic right under the right to life and liberty, i.e., under Article 21. 

Right to Privacy now includes – 

• Preservation of one’s intimacies, the sanctity of family life, sexuality, procreation, home, and sexual orientation.
• Freedom to be left alone.
• Safeguards of human sovereignty recognize the right of the individual to regulate crucial facets of his or her life.
• Personal decisions regulating a way of life are intrinsic to privacy.
• Defense of heterogeneity and appreciation of plurality and uniqueness of our community.

Homosexuality and Right to Privacy

India, though carrying the baggage from its history, always had a dream of living in futility. The hypocrisy of being a nation that preaches the right to freedom for its people causes the fate of a minority to be determined by Section 377 of the Indian Penal Code. Simply stated, Section 377 is an old-fashioned statute that makes gay sexual activity an offense punishable by life imprisonment and curbs the basic rights covered by the Indian Constitution under Articles 14, 15, and 21. 

In the year 2018, a landmark judgment came by the five-judge Bench of the Supreme Court, who said that consensual sex between same-sex was legal and decriminalized the 158-year-old law which reinforced and created an atmosphere of impunity by putting up the idea that declared gays to be abnormal and unnatural. Therefore, after years of struggle and battle, Section 377 of IPC was struck down and scraped away by the Supreme Court of India. This marked a new dawn in the history of the right to privacy. 

Section 377 applies to ‘unnatural offenses‘ which specifies that anyone who knowingly has carnal intercourse with any man, woman, or animal against the order of nature shall be punished with life imprisonment or imprisonment of any form for a period of up to 10 years, and shall also be liable to pay a fine.

Other aspects of Right to Privacy

• Right to Procreate – This means that a person has a right to have their autonomy in regards to the reproductive choices they make. It includes the right to use contraceptives, abortion, and use of condoms.
• Virginity Test – This means that a woman’s medical examination cannot be done to prove her being a virgin. The test necessarily cannot determine the same and is a violation of her liberty and dignity which directly means that her right to privacy is being infringed. 
• Telephone Tapping – This means that the State has no right to intervene and listen to any personal conversation on the phone unless in an emergency. It is considered to breach the person’s right to privacy in the eye of the Court for conversations held on the phone are thought to be intimate and confidential.
• Aadhar Card – The scheme which asked for every individual mandatory biometric for the access of governmental benefits and policies was said to create a state of surveillance by making demographic profiling of individuals. The Court said that it was thus infringing the fundamental right of privacy of an individual and the scheme was then made no more mandatory.

Conflicts due to Right to Privacy

• Freedom of Press – Media & Privacy have always conflicted with one another. Though the journalists have been given the liberty to distribute views and opinions considering in the interest of the masses yet the government needs to put in more thought while excusing them from the accountability to protect privacy under the PDPB. Headlines have long posed a fundamental concern about the relative weight of privacy versus the public interest. Instead of presenting what the public is interested in, television sources should have to explain what is in the public interest.

• Narco Analysis/ Polygraph Test/ Brain Mapping Test – These are some of the sub-headings under the Deception Detector Tests (DDT) and are important health-related, scientific, ethical, and legal aspects of it. The central controversy that emerges from DDT is its legality to confess the offense by using barbaric degrading procedures. It also goes against the theory of Nemo Tenetur Seipsum Accusare i.e., ‘No man, not even the accused himself, may be forced to answer any question that could appear to prove him guilty of a crime of which he has been accused.‘ The right against self-incrimination thereby requires human privacy to be protected and humane norms to be followed in the enforcement of criminal justice.

Conclusion

Article 21 exists under the virtue of human beings. It is not an absolute right but consists of other Articles as well. Right to Privacy is still expanding day by day and sees its new dimension covering all the more areas. With the remarkable judgment on Section 377, India saw a break in its stereotypical society, and a whole new dimension of progression set in. People, however, generally tend to forget and avoid the basic right to privacy that we have been entitled since our birth. Right to marry, right to adopt, etc. these are some of the very basics right to privacy that an individual in this country has been inferred upon. But are all of us equally enjoying these rights as our basic fundamental rights? 

Considering ourselves a member of society, we always counteract that we are humans first and that every person or individual wants his/her private room in this universe. The State then offers such private moments to be shared with those they like without the prying eyes of the rest of the world to give every citizen the right.

This right to privacy is becoming more and more important as the day goes forward. Security is to be extended to everyone for all our lives are revealed to the internet by social networking sites or spy cameras, and it should function in such a way that no one should care about violating the individual’s right to privacy. Privacy should be covered in any respect, but the provisions of the Constitution of India and other similar legislative provisions in place are subject to appropriate restrictions. It needs to be known that anonymity should be kept in mind and not clarified to the rest of the world within restricted limits.

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Editor’s Note
The right to privacy has been a debatable topic in recent years, particularly in the Indian context. This article explains the meaning of privacy, the importance of the right to privacy, and what is included in the sphere of the right to privacy.

The article further explains the relationship between homosexuality and the right to privacy. The author has also enlisted various other aspects related to the right to privacy as well as the conflicts that surround this right. The author has concluded by saying that all citizens must be able to enjoy the right to privacy as a basic fundamental right just like other fundamental rights enshrined in the Constitution of India.