Chapter I

Introduction

1.1 Prologue

What do we mean by privacy? How the idea of privacy protection came? Does
privacy is a basic fundamental right, a human right, or a natural right? How is it
related to other rights? Is the right to privacy absolute? Is in the Digital Era, right to
privacy possible? In the present research thesis, such issues are addressed along with
the other aspect of privacy jurisprudence in the country. In this introductory chapter,
we try to discuss privacy's basic meaning and how jurists and academicians world -
wide attempted to define the term privacy.

Privacy is a value that has been ingrained in the behaviour of people throughout
the world. However, a different kind of privacy may matter to different people and in
different situations. Privacy is a basic need of an individual to lead a life of dignity. It
is not restricted to individuals alone and extends to groups and institutions. Privacy
allows them to determine what, when, where, and how information which they
possess can be shared with others. It enables individuals to restrict others' entry into
the domain of information they hold control over.

Privacy allows an individual to withdraw from the larger society for a limited
period. It maintains the individuality of the person. People are more likely to develop
their feelings and values in these times of solitude.1 During these times, an individual
is at his creative best and develop ideas and solutions that help to deal with not only
individual problems but also societal problems. He/she needs to think freely without
fear of being ridiculed or judged by others. Privacy in the sphere of relationships is
also a necessary component of personality development. An individual should be able
to express his thoughts towards his near ones freely. They help in the emotional
release where an individual can drop the masks he/she wears in his/her public life and

1
John B Young, Privacy 4 (Chichester, Wiley, New York, 1978).

1
vent his/her emotions.2 For a relationship to be trustworthy, individuals should full-fill
their responsibilities without surveillance into their activities.

Privacy is a natural desire of every human being, and they automatically pursue it.
This pursuit has only increased in modern times with the increasing complexities and
challenges posed by life. It is now increasingly accepted that privacy is not just a
desire but an absolute need that should be translated into a right. At its centre, the
right of privacy secures the self and builds a boundary that limits the other.

The study of privacy law necessitates the understanding of the concept of privacy,
which in itself is a humongous task. This is because of the emotional and subjective
connotations attached to it. Privacy is not that easy to define. In every phase, it meant
different things to different people in everyday parlance- freedom of speech, freedom
of thought, freedom from surveillance, protection of reputation, protection from
disclosure of information shared in confidence, etc. Privacy is situational in nature,
and its meaning varies between nations and cultures.

The study of privacy law has become significantly crucial in modern times
because of the rapid strides in technology and communication. The march of
technology has made available an extensive surveillance network that threatens to
eliminate our privacy. Our digital transactions, social media posts, phone calls, travel
history, etc. are now available for tracking.3 The two most potent forces, Businesses,
and Governments, are shaping the technological development of the internet. They
maintain extensive databases of information about individuals. These developments
have necessitated the need to draw a balance between an individual's need for privacy
and society's need for information.

Although the third industrial revolution has been a boon to humanity in terms of
reducing the effort through the use of computers and digital technology, the advent of
data processing and surveillance mechanisms have threatened our traditional patterns
of privacy. Amidst these concerns about our privacy's encroachment, there has been
an increasing focus on the right to privacy and expanding its scope further. It is a

2
Charles Fried, “Privacy” 77 Yale Law Journal 475 (1968).
3
Charles Nesson, “Threats to Privacy” 68 Social Research 107-108 (2001).

2
mechanism to protect ourselves from unwarranted interference in our lives and give
us the freedom to choose how we would like to interact with the world. It protects
individuals from arbitrary and unjustified use of power by businesses and States.

1.2 Concept of Privacy: Origin and Historical Development

Although privacy became a generally accepted right only in the 20th century, it
was as old as humanity. It is evident from the numerous religious and political texts
that were written across the world. For example, in India, the Arthashastra prescribes
house building regulations based on the need for privacy. According to these
regulations, an individual's house should be built at sufficient distance from other
homes. Also, he should ensure that the doors and windows are covered. Another
example of the importance accorded to the privacy of space and property in ancient
times is the condemnation of the usage of a person's property without his consent as
per the Yajnavalkya Samhita and Manusmriti. In addition, the privacy of thought was
offered by the Arthashastra when it has prescribed setting aside forest areas for
meditation leading to self-actualization.4 In ancient Mesopotamia, the code of
Hammurabi restricted intrusion into someone's home without permission. The Roman
law also regulated intrusion into other people's homes. However, during these ancient
times, the concept of privacy had a very narrow definition. Even animal behaviour
studies and social organization studies also suggest that man’s need for privacy may
well be rooted in animal origins.5

1.2.1 Development of Privacy with the Transformation from Primitive to

Modern Societies

With the gradual transformation of primitive societies into modern societies, the
concept of privacy has undergone significant change. While primitive societies had
been aware of privacy as seen in the numerous texts worldwide, privacy became a
right only in the modern era. In fact, many anthropologists opine that there was only a
little or no privacy in primitive societies. John Honigmann explains the development
of the right to privacy through his “increase in scale of life” approach. According to

4
Dr. P.K. Rana, “Right to Privacy in Indian Perspective” 2 International Journal of Law 07-09 (2016).
5
Alan F. Westin, Privacy and Freedom 8 (Atheneum Publication, New York, 1970).

3
Honigmann, primitive man's freedom was restricted due to kinsmen, neighbours, and
ancestors, which he couldn’t escape. On the other hand, the modern civilized man is
free from the pressures of neighbours and kinsmen. He can live relatively aloof in his
house and can easily escape these pressures by moving to a new place.6

Industrial Revolution has given rise to modern societies, which had a significant
impact on the social aspects, thereby contributing to the change in the way privacy
was viewed. It has led to a significant shift towards nuclear families, urbanization,
and greater movement of people. It has also led to a decline in the authority of the
religious bodies and their control over individual lives. All these factors contributed to
the development of the concept of privacy in physical and psychological domains.

Even though modern society structures promote the development and expansion
in the definition of privacy, some factors lead to the infringement of individuals’
privacy. The burden of overpopulation, advanced technological tools, and most
importantly, the modern State’s control restricts the privacy an individual enjoys.
Therefore, it can be said that social transformation is the major factor behind the
changing nature and character of privacy from primitive to modern societies.

1.2.2 Privacy in the Modern Era

The idea of privacy in modern societies varies from society to society, depending
on the political system prevalent in that society. The political system plays a crucial
role in determining patterns of privacy and surveillance undertaken by the State.
Modern societies can be categorized into a continuum that stretches from democracy
to totalitarian States. A comparison of privacy in various societies of this continuum
gives a clear understanding of how political systems determine the definition of
privacy.

In States that lean towards the totalitarian regimes, there is high surveillance by
the government. The government is also very secretive in terms of its affairs, as seen
in China and Russia. These States are opposed to the theory of individualism and

6
John J. Honigmann, The World of Man 154 (Harper & Brothers, New York, 1 st edn.,1959).

4
consider the State's interests above the individuals' interests at all times. Therefore,
spying, eavesdropping, and personal data collection of citizens using advanced
technological tools have been common in these societies.7 In contrast to the States
that lean more towards the totalitarian end of the spectrum, democratic States rely on
the individualistic theory.

In most cases, individual rights prevail over State interests. People's rights are
supreme in a democracy, and therefore right to privacy has become a fundamental
human right in these societies. Thus, individual and group privacy are sine qua non of
the modern democratic States, while disclosure and surveillance for State interests are
absolutely necessary for totalitarian regimes.

Liberal democratic States are based on the ideology of the welfare of the people
by providing freedom and opportunities.8 Privacy is equated with freedom in these
States. They aim to provide physical, psychological, religious, associational, moral,
and intellectual privacy to their citizens. Due to the nature of privacy and its deterring
effect on the right to freedom of speech and expression, there is a constant need to
maintain a fair balance between the two rights in liberal democracies.9 Hence, it can
be seen that the right to privacy is not an absolute right but is subject to reasonable
restrictions in the interests of the State in these modern democratic States.

1.3 Definition of Privacy

1.3.1 Samuel Warren and Louis Brandeis

One of the most influential essays in the history of American law was “The Right
to Privacy,” written by Samuel Warren and Louis Brandeis. They argue that new
rights emerge from the political, social, and economical changes that take place in the

7
Margaret Mead and Elena Calas, “Child-training Ideas in a post-revolutionary context: Soviet
Russia”, in Margaret Mead and Martha Wolfenstein (eds.), Childhood in contemporary Cultures, 179,
190-191 (University of Chicago Press, Chicago, 1955).
8
Hannah Arendt, The Human Condition (Doubleday Anchor Books, New York, 1959).
9
Morroe Berger and Theodore Abel, et.al., Freedom and Control in Modern Society 190 (D. Van
Nostrand Company, New York,1954), available at:
https://archive.org/stream/in.ernet.dli.2015.498862/2015.498862.Freedom-and_djvu.txt (last visited on
Dec. 19, 2016).

5
society. It is necessary to constantly evolve and define the nature and character of
protection in person and property. In the early times, common law protected the
subject only from physical interference with life and property. Gradually, the scope of
the right to life and right to property expanded to recognize the legal value of
sensations and the right to not only tangible property but also intangible property,
respectively.

Louis Brandeis explained that recent inventions and business methods, together
with gossip, have led to encroachment of the privacy of the individual. Newspapers
have been invading the private and domestic life of individuals. The media is
overreaching in every direction and is out of bounds of propriety and decency. So,
they considered if there exists a principle in the common law that can be invoked to
ensure that the privacy of the individual is protected and the nature and scope of such
protection is be defined.

Warren and Brandeis examined the law of slander and libel as a means of
protecting the privacy and concluded that they are insufficient to protect the privacy
of an individual as they only deal with damage to reputation. They then examined
intellectual property law to determine if its principles and doctrines may sufficiently
protect the individual’s privacy. Warren and Brandeis concluded that “the protection
afforded to thoughts, sentiments, and emotions, expressed through the medium of
writing or the arts, so far as it consists in preventing publication, is merely an instance
of the enforcement of the more general right of the individual to be let alone.”10

They had also examined case law regarding a person’s ability to prevent
publication and suggested the existence of the right to privacy based on jurisdictional
justifications used by courts to protect the material from publication.11

10
Samuel D. Warren and Louis D. Brandeis, “The Right to Privacy” 4 Harvard Law Review 193-220
(1890).
11
Thomas M. Cooley, A Treatise on the Law of Torts 29 (Callaghan and Company, Chicago, 2nd edn.,
1888).

6
1.3.2 William Prosser

One of the chief architects of the concept of privacy in the American tort law was
William Prosser. He divided the idea of the right to privacy proposed by Warren and
Brandeis into a concrete set of four torts, thereby systematizing the tort law and
giving it legitimacy.12 Prosser organized the torts as follows:
 Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.
 Public disclosure of private facts that can lead to embarrassment.
 The publicity that can bring the person in a false light in the eye of the public.
 Appropriation, for the defendant's advantage, of the plaintiff's name or
likeness.

Although Prosser gave legitimacy to tort privacy, he was deeply skeptical of

privacy torts. He expressed his concern that an indiscriminate development of tort
privacy may lead to the end of many established doctrines such as defamation law.

1.3.3 Charles Fried

Many theorists use the idea of control in defining privacy, and the foremost
among them is Charles Fried. In his article in the Yale Law Journal, he described
privacy as “control we have over information about ourselves.” Charles Fried was
concerned about the increasing number of insidious intrusions through sophisticated
equipment into areas that weren’t affected earlier and the growing claims to personal
information by public and private agencies. He explained that the concept of privacy
requires a sense of control and power to control aspects of one’s environment. This
control can be given by a legal title to control.13

1.3.4 Edward Shils

Edward Shils has explained privacy as a “zero relationship between two or more
persons in the sense that there is no interaction or communication between them if

12
William L. Prosser, “Privacy” 48 California Law Review 389 (1960).
13
Charles Fried, “Privacy” 77 Yale Law Journal 482-483 (1965).

7
they so choose.”14 Privacy exists when the initiators of the outward flow of
information are the ones about whom this information relates to. It is like a boundary
through which information doesn’t flow from the possessors of information to others.

1.3.5 Adam Carlyle Breckenridge

Dr. Breckenridge conducted a study on the extent to which an individual is

protected from arbitrary and unreasonable intrusions into personal privacy by the Bill
of Rights and the Fourteenth Amendment in the U.S.A. According to him, it is the
right of an individual to decide on the extent to which he wants to share information
about himself with others, depending upon the time, place, and circumstances. It is his
right to withdraw or participate in sharing information or communicating with others
as he deems fit.15 He favours a balance between individual rights and community
interests but the balance is tilted in the favour of individual rights.

1.3.6 Arthur R Miller

In his book “The Assault on Privacy,” Arthur Miller warns that a “Dossier
Society” nurtured by computers is a threat to personal privacy which is fundamental
in a democracy. According to Arthur, the concept of privacy is complicated to define
as it is exasperatingly vague and evanescent as a doctrine and is all things to all men.
He agrees with the view that an essential element in the definition of the right to
privacy is the individual's ability to control the distribution of information relating to
him. In this era of computers and advanced surveillance techniques, human dignity
must be preserved.

1.3.7 Justice Report and Younger Committee Report

In 1970, the Justice Report on Privacy and the Law recommended that a legal
right of privacy should be created, enabling persons whose rights were infringed to
sue in tort law in the U.K. This recommendation faced enormous hostility from the

14
Edward Shils, “Privacy: Its Constitution and Vicissitudes” 31 Law and Contemporary Problems 282
(1966).
15
Adam Carlyle Breckenridge, The Right to Privacy 1 (University of Nebraska Press, Lincoln, 1970).

8
press, which argued that this would fetter the freedom of speech.16 So, the U.K.
government set up the Younger Committee to consider if it was necessary to make
comprehensive legislation on the protection of privacy. It was a remarkable event in
the process of the development of privacy rights in the U.K. The committee noted that
earlier many attempts have been there to define privacy but it could not satisfactorily
be done. So, they instead focused on areas where privacy was threatened and
identified areas where the action was required.17

1.3.8 Prof. Upendra Baxi

Prof. Upendra Baxi, while raising the question of whether to consider privacy as a
value of human relations in India, observed that:
“Everyday experience in Indian setting suggests otherwise, Marriage parties and
midnight music, wedding processions and morning ‘bhajans,’ unabated curiosity at
other people's illness or personal vicissitudes, a manifestation of good neighbour
lines through constant surveillance by the next-door neighbour (a large number of
Indian houses do not use curtains) are some of the common experiences. A question
may arise whether privacy is not after all a value somewhat alien to Indian
culture.”18

1.3.9 Prof. P.K. Tripathi

According to Prof. P.K. Tripathi, the essence of privacy lies in the idea of
exclusion. Although the right to privacy seems to be just one right, which focuses on a
single idea, it is actually a multitude of ideas by different persons at different times.
So, it is situational in nature. Privacy is nothing but the exclusion of others from
private matters, and hence the core of privacy is exclusion. But this idea of exclusion
varies with culture, society, and most importantly, with time.19

16
Justice Report, “Privacy and the Law” 5 (1970).
17
The Younger Committee Report, “Report of the Committee on Privacy” 10 (1972).
18
K.K. Mathew, Democracy, Equality and Freedom Introduction lxxiv note 262 (Eastern Book
Company, Lucknow, 1978).
19
Govind Mishra, “Privacy: A Fundmanetal Right under the Indian Constitution” 8 & 9 Delhi Law
Review 139 (1982).
Prof. P. K. Tripathi made this suggestion in the symposium on “The Right to Privacy” held on Feb. 17,
1982 in the Campus Law Centre, Faculty of Law, University of Delhi.

9
1.3.10 Durga Das Basu

According to D.D. Basu, term privacy is too broad, and it encompasses not only
seclusion from neighbours. It can be termed as a circle around every individual, that
no government ought to be permitted to overstep.20 He suggests that it must be
regarded as a basic human right.

As seen from the above definitions, scholars and jurists are not unanimous about
the definition of privacy. However, the idea of the right to privacy may be summed up
as follows:
1. Every individual has a basic need for private space where he can be sure of
non-interference from others.
2. The idea of privacy varies according to cultures, traditions, societies, and
nations.
3. Indian scholars and western thinkers differ in their definition of privacy in the
sense that western scholars look at the right to privacy as a multitude of rights. In
contrast, Indian scholars believe that privacy is a single concept, and it mainly lies in
the idea of exclusion.

1.4 Different Approaches Related to the Importance and Functions of the

Privacy

Privacy is a natural need of every individual as it contributes to the satisfaction of

the inner mind and leads to a happy life, whether at home or work. However, privacy
needs to be looked at contextually through different approaches.

1.4.1 Sociological Approach

According to the sociological approach, though man is a social animal, he keeps

certain parts of his life to himself. These matters that he keeps to himself vary
depending on the culture to which an individual belongs to. These are the matters
which may be classified as areas of privacy. If these areas of privacy are tinkered

20
Durga Das Basu, Commentary on the Constitution of India 4772 (LexisNexis, India, 59th edn., 2015).

10
with, it can lead to individuals becoming disturbed. A person must be left alone or
spend time alone to develop his personality. He should be able to think freely without
fear of being watched and judged by others. In personal relationships, trust is possible
when individuals are able to perform their responsibilities toward each other without
close surveillance. The confidence that his/her information is private allows an
individual to explore controversial ideas and may also help in increasing creative
thinking.

There are two classes of individuals to whom informational privacy is incredibly

important- those who have a history of anti-social behaviour and need a second
chance in life, and those who are misfits who would like to keep a major part of their
personal life outside the gaze of their colleagues.

1.4.2 Political Approach

The norms of privacy are affected not only by culture, traditions, religion, and
economic life but also by the kind of political regime. Fascist and communist
governments have criticized the idea of privacy as anti-social and individualistic as
opposed to collectivism prescribed by these two ideologies. Modern totalitarian
regimes rely on secrecy for the government and full surveillance of other groups.21 On
the other hand, a liberal democratic system provides for both physical and legal
privacy against both society and the State. Individuals are given the freedom to follow
their own religion without the State interference. They can join any association,
participate in the meeting of various groups, and criticize the government. They have
the freedom to pursue schools of thought that may be against the government or the
dominant section of the society. Liberal democratic regimes create a balance between
institutional privacy and the information disclosure.

1.5 Privacy and Individualism

The physical and psychological relations involving an individual and the people
around him may be grouped into four states of privacy. In the first state, solitude, the

21
Alan F Westin, “Science, Privacy, and Freedom: Issues and Proposals for the 1970's. Part I—The
Current Impact of Surveillance on Privacy” 66 Columbia Law Review 1005 (1966).

11
individual is separated from the group and is free from the observation of others. It is
the most complete state of privacy one can achieve. In the second state, intimacy, a
person acts as a part of a unit such as family and friendship to achieve a frank
relationship between two or more individuals. The third state of privacy, anonymity,
occurs when an individual is in public and is being observed but is not identified or
under surveillance. In the fourth state of privacy, reserve, the individual has the
freedom to limit communication and is respected or disregarded by others depending
on the situation.22

These four states of privacy are extremely useful in understanding the basic
functions of privacy in democratic political setups. These functions can be
categorized into – personal autonomy, emotional release, self-evaluation, and limited
protected communication. Although these functions are categorized into four groups,
these functions are seamlessly connected to each other and should be looked at as a
continuum.

1.5.1 Personal Autonomy

Privacy protects an individual's autonomy, which is essential to understand his

strengths and weaknesses and develop his personality. It ensures that others do not
encroach into the personal matters of an individual and control their lives. If there is
no privacy, this penetration into personal life will leave the individual at the mercy of
those who know his secrets.

The dignity of the individual is given the utmost importance in democratic

societies. They believe in the individuality of a person and maintenance of social
order in a way that guarantees individuality. This may be represented in terms of the
concentric circle's approach. The innermost circle is the core self of ultimate
autonomy in which only the individual has access. The core self consists of the
individual's most valued secrets that are unknown to anyone unless he shares those
secrets to secure emotional relief. The next circle contains intimate secrets that are
willingly shared with close relations or strangers who will not meet again. The next

22
C. Fried, “Privacy” 77 Yale Law Journal 478 (1968).

12
circle consists of matters that are open to the individual's friendship group. These
concentric circles continue until they reach the outermost circle, consisting of casual
conversation and expressions that are open to everyone.

In a world where everyone wears a mask, and there is a difference between the
consciousness and the expressive presentation of people, intrusion into the innermost
core self of an individual by others leads to forced exposure to the world. It may even
lead to nervous breakdown and suicide.

In democratic societies, the ability of individuals to think freely, analytically

approach various issues, and express their opinions without fear is essential to ensure
that they are sustainable. This ability to think freely and develop one's personality is
crucial in a democracy. The individual requires time to think, test his ideas, review,
and arrive at conclusions before he could make them public. This requires autonomy
on the part of the individual.23

1.5.2 Emotional Release

Although man is a social animal, there are so many pressures and tensions in life
that demand privacy during certain times and in certain areas. Every person constantly
plays multiple roles in society, depending on the situation. These are all
psychologically different roles and demand a lot of time and energy from individuals.
People cannot play these roles forever without sufficient relaxation and relief
periodically. During these periods of relaxation, he/she should be able to lay off their
masks that they wear during their social interactions.24 At these times, they can be
themselves without fear of being judged or observed.

Daily life is extremely dynamic, and individuals need a respite from the emotions
and challenges faced by them. While most people may strive for wider and varied
experiences in life, there needs to be quieter times for them to experience life better.
Privacy also acts as a safety release valve by allowing the individuals to vent their

23
C. Rossister, “The Pattern of Liberty”, in Milton R. Konvitz and Clinton Rossiter (eds.), Aspects of
Liberty 257 (Cornell University Press, New York, 1958).
24
John B Young, Privacy 6 (Chichester, Wiley, New York, 1978).

13
anger against other people, their bosses, the system, and society without fear of being
ridiculed and targeted. This is different from freedom of speech and expression in the
sense that in this case, the individual may say things that are grossly unfair and nasty.
This release of stress by momentarily lashing out is common at all levels- from the
common man to the Presidents and high public officials. Privacy in such moments is
paramount for them to handle the pressures of their positions well.

Emotional release through privacy also plays a significant role in one’s life at
times of loss and shock. During such times, comfort is provided by near and dear ones
while respecting the privacy of the individual at the same time. Privacy also acts as a
protective function during periods of anxiety and uncertainty, which is part and parcel
of our everyday life.

1.5.3 Self-Evaluation

Every individual strives to develop his personality by learning from experiences.

They need to organize these learning experiences into a structured pattern, carry on
self-evaluation, and improve their performance.25 But there are huge amounts of
information and experiences that need to be processed to arrive at meaningful
patterns. This cannot be done in the inevitable ups and downs of daily life. Privacy is
essential in such circumstances to allow the individual to process the information,
consider alternatives, and arrive at the best course of action to move forward.

Privacy also helps in planning by providing time to develop new ideas after
processing the information that is readily available. This is particularly important for
individuals in the creative field. We often see many writers, composers, and directors
contemplating solitude to come out with the best stories, books, and scripts. During
solitude times, these individuals are able to run ideas that are not possible in the midst
of others.

The evaluation function of privacy helps people understand the moral dimension
very well. During such times, people consider the morality of their day to day actions

25
Alan P. Bates, “Privacy-A Useful Concept?” 42 Social Force 429 (1964).

14
and measure their performance against their personal and societal ethics. Such
analysis helps them to stay within their moral compass and contribute actively to the
development of an ethical society. Another contribution of privacy in evaluation is its
role in deciding the timing of an action to move from personal reflection to public
conversation. This helps in understanding one's own evaluations compared to the
responses of his/her peers and colleagues.

1.5.4 Limited and Protected Communication

Sometimes people have utterly candid conversations where they express what
they think and feel without any concern about how it affects others. This is an
excellent treat to civilized life, as it affects interpersonal relations. In real life, most of
the conversations are partial and limited, especially in urban setups, where there are
continuous confrontations between individuals not known to each other.

Privacy for limited and protected communication provides opportunities for

sharing confidence and intimacy with those whom we trust. An individual shares
information with them because he knows he can trust them, and this information will
be kept confidential. He/she seek professional advice from persons in positions who
will not use his distress to their advantage. Individuals share information and seek
advice from doctors, psychiatrists, lawyers, ministers, and others, given the guarantee
provided by privacy for protected communication.

1.6 Literature Review

A literature review is an essential aspect of research, and it justifies the rationale

of the study. It provides an overview of historical perspective, development, and new
departures of research in a particular area. It also helps to know the appropriate
research methods and how the study is to be carried out in different fields. The
literature review provides an overview of what work has been carried in the area, i.e.,
the past trend in research can be known.

15
 The present chapter presents a review of some existing studies in the field of
privacy rights. A review of literature provides the account for various studies done by
research scholars.

1.6.1 Book Review

 In their book, Leslie P. Francis and John G. Francis, Privacy: What Everyone
Needs To Know,26 discusses how the concept of privacy is related to security and
autonomy in decision-making. Their work talks about the factual, conceptual, and
philosophical aspects of privacy in this changing technological era. The modern idea
of privacy is discussed and why privacy protection is needed more in the digital age.
Privacy within and beyond families, education, health, and other financial issues are
dealt with, and the importance of privacy in a democracy is assessed.

 In his book, Richard A. Glenn, The Right to Privacy: Rights and Liberties
under the Law,27 discusses the philosophical, constitutional, and common law
foundations of the privacy right. The author simplifies the complicated legal issues
dealing with privacy rights in the 20th century. The major issues related to privacy,
such as marriage, abortion, child-rearing, education, and sexual relationships, have
been elaborately discussed with the help of decided cases by the U.S. Supreme Court.

 In his book, Alan F. Westin, Privacy and Freedom28 highlights the endeavours
made by American society for recognition of privacy rights in their country. He talks
about the conflict between privacy and surveillance in the modern society and
contends that American law is beginning to respond to State surveillance. The scope
of surveillance is just not limited to physical observation but psychological
surveillance. He further discusses the evaluation of American law's past and future
role in this field and the Supreme Court's role in protecting privacy interest as a
constitutional right under the Fourth Amendment. The book's essential feature lies in
balancing privacy and surveillance, as both cannot be denied entirely so that

26
Oxford University Press, New Delhi, 2017.
27
ABC–CLIO Inc., California, 2003.
28
Atheneum Publication, New York, 1970.

16
surveillance can be permitted on limited grounds such as national security and
investigation of major crimes, etc.

 Glenn Greenwald's, No Place to Hide: Edward Snowden, the N.S.A., and the
U.S. Surveillance State29 talk about the appalling revelations of our time regarding
breach of privacy by the government. Chapter four of the book delves into the critical
aspect of privacy, how mass surveillance by the State is inherently repressive, and
how it is used and abused by the authorities for political benefit. He explains that
most people act differently when they know they are being surveilled and tend to
follow commonly accepted social behaviour to avoid the shame of being seen as
deviant.

 Owned: Property, Privacy, and the New Digital Serfdom30 by Joshua A.T.
Fairfield discuss that property law should be given a proper place in the digital field.
Because of not relying on property law, we are not able to protect the privacy of
individual aptly. He advocates that having property law in this field will genuinely
allow consumers to own their data and also protect the creator's interests.

 Right to Privacy in India under Indian Law,31 by Kiran Deshta, talks about the
development and recognition of privacy right in India. Book discusses in detail the
legal and moral norms of ancient India, culture, and social practices related to
privacy. It discusses the various models in existence during British India and
contemporary India for the protection of privacy.

 Chapter 3 (Privacy in American Society) of the book Legislating Privacy,32 by

Priscilla M. Regan, deals with American society's privacy. Book points out that the
concept of privacy cannot be handled in a vacuum and is instead part of a larger
social, cultural, political, and economic world. The chapter explores the historical
backdrop of privacy and other aspects of it in the U.S.A. It looks into the various
survey poles conducted during different periods concerning privacy rights, how the
demand for privacy increased, and people raised concern about their rights.
29
Metropolitan Books, New York, 2014.
30
Cambridge University Press, Cambridge, 2017.
31
Deep &Deep Publications, New Delhi, 2011.
32
University of North Carolina Press, North Carolina, 1995.

17
  Chapter 5,"The Right to Privacy" of the book Facets of Media Law33 by
Madhavi Devan, explains the concept of privacy and discusses how the media's
exponential growth has raised concern for protecting privacy. The evolution of the
privacy law in the U.K. and U.S.A has been dealt in detail along with the International
treaties mentioning the right to privacy. The author has dealt with different privacy
aspect, such as surveillance, search, seizure, privacy in a public place, prisoners'
privacy, balancing privacy and right to information.

1.6.2 Article Review

 William M. Beaney, “The Constitutional Right to Privacy in the Supreme

Court,”34 discusses the right to privacy under various heads and how the Olmsted case
has affected the right to privacy specifically guaranteed by the Fourth Amendment. It
also pointed out the court's role in filling the gap created by Olmsted for protection of
the right to privacy. It is analysed that the validation of administrative searches
without a warrant has narrowed the area protected under the privacy realm. The
concept of privacy right is more feasible to work out if based on the "liberty" concept
in the Fifth and Fourteenth Amendments.

 Louis Nizer, “The Right of Privacy: A Half Century's Developments”35 points

out that political, social, and economic changes require the creation of new rights, and
the right to privacy is a product of time. There has been a discussion on Roberson v.
Rochester Folding Box Co. case(171 N.Y. 538). In the aftermath of that, the decision
was criticized, and there was immediate agitation for a remedial statute. He
highlighted how different States have protected the right to privacy based on natural
justice, the right to pursue, and obtain happiness. Various States' legislatures have not
attempted to extend the right; instead, they have restricted the right while codifying.
Privacy after death and the role of consent have been elaborately discussed.

33
Eastern Book Company, Lucknow, 2ndedn., 2013.
34
William M. Beaney, “The Constitutional Right to Privacy in the Supreme Court” The Supreme Court
Review (1962).
35
Louis Nizer, “The Right to Privacy: A Half Century’s Developments” 39 Michigan Law Review
(1941).

18
  Sheetal Asrani-Dann, “The Right to Privacy in the era of Smart Governance:
Concerns Raised by the Introduction of Biometric-Enabled National ID Cards in
India,”36 talks about the right to privacy of personal data and territorial privacy. The
author compares the privacy right in India with the two Western democracies,
Germany and the U.S. Author explain how biometric national ID cards threaten
privacy and create an environment where the government has enormous power over
citizens. The Indian government needs to revisit the national identity system with a
much more comprehensive examination and assessment.

 Gautam Bhatia, “State Surveillance and the Right to Privacy in India: A

Constitutional Biography,”37 explores India's foundation of privacy and how the
Supreme Court has recognized the right under Part III of the Constitution. The
restriction of "Compelling State Interest" has been discussed, and how that is different
from "public interest" has been looked into the paper. Paper basically look at the
surveillance in the framework of recognized privacy right. He concludes that the
Supreme Court should not ignore its own well-crafted jurisprudence and protect
citizen's liberties by narrow tailoring the restrictions on the right to privacy.

 M.L. Upadhya and Prashant Jayaswal, “Constitutional Control of Right to

Privacy,”38 deals with the origin, development, and dimensions of the privacy right
from the perspective of human rights. The paper analyses the right to privacy from the
aspect of common law right, customary right, and most important as constitutional
right.

 David J. Seipp, “English Judicial Recognition of a Right to Privacy,”39

advocates privacy rights in England. He states that despite the recognition of privacy
in international charters and conventions, both the Parliament and Judiciary have
failed to recognize the right to privacy as a fundamental right. He also points out that

36
Sheetal Asrani-Dann, “The Right to Privacy in the era of Smart Governance: Concerns Raised by the
Introduction of Biometric-Enabled National ID Cards” 47 India Journal of the Indian Law Institute
(2005).
37
Gautam Bhatia, “State Surveillance and the Right to Privacy in India: A Constitutional Biography”
26 National Law School of India Review 127-158 (2014).
38
M.L. Upadhya and Prashant Jayaswal, “Constitutional Control of Right to Privacy” 2 CILQ 39-58
(1989).
39
David J. Seipp, “English Judicial Recognition of a Right to Privacy” 3 Oxford Journal of Legal
Studies 325-370 (1983).

19
legal scholars in England have also not worked in a field similar to the U.S.A. The
author in this work traces the treatment of privacy by English Courts from the
beginning of the 19th century and compares the position with different countries
across the world. A recent change in judicial attitude towards the protection of
privacy rights has been seen in the paper.

 In paper titled "Privacy: A Comparative Study of English and American Law,"

T.L. Yang highlights the development of privacy right by the American courts.
Author compares the privacy right under the English and American jurisdiction. It is
pointed out that privacy is not entirely ignored under English common law, but the
protection of rights is not complete because it is indirectly protected. The right in the
England is only protected incidentally, and the right to peace of mind and emotional
pain are ignored. The paper discusses the history and development of privacy law
through leading cases in the country. Paper was published in International and
Comparative Law Quarterly, Vol. 15, 1966.

 N.A. Moreham, “Privacy in Public Places,”40 looks into the aspect of privacy
when a person is in a public place. The paper discusses the court's stand to protect the
claimant's privacy interest in a public place and whether the notion of "public
privacy" is theoretically sound. The ECtHR cases have been considered to look into
the aspect of privacy in a public place and of public figures. What are the
considerations taken to determine whether there is a reasonable expectation of privacy
or not?

 Gautam Bhatia, “The Supreme Court's Right to Privacy Judgment,”41 article

analysis the underlying themes and implications of the recent privacy case(Writ
Petition (Civil) No. 494 of 2012). The paper discusses that the judgment has
articulated privacy as a three-pronged right: the right to bodily and mental integrity,
informational privacy, and decisional autonomy. The court's focus has been on
individual privacy, and private spaces are protected rather than on home and family.

40
N.A. Moreham, “Privacy in Public Places” 65 The Cambridge Law Journal 606-635 (2006).
41
Gautam Bhatia, “The Supreme Court’s Right to Privacy Judgment” 44 Economic & Political Weekly
(2017).

20
  Graham Greenleaf, “Promises and Illusions of Data Protection in Indian
Law,”42 argues that India's data protection legislation is insufficient to protect the
person's privacy. The paper discusses the lack of legislation in dealing with data
protection and how some of the legal provisions are structured ostensibly to protect
individual rights but, in reality, are doing the surveillance of an individual. The 2008
amendment to the I.T. Act 2000 is not effective in protecting privacy breaches, and
the legislature needs to further develop data protection laws.

 “How the Right to Privacy Became a Human Right,” Oliver Diggelmann and
Maria Nicole Cleis43 acknowledge the right to privacy under international human
rights law. The paper looks into the drafting history of the human right to privacy at
the global and European levels. It has been discussed how the various conventions
didn't discuss privacy rights, and the conceptual basis of the right to privacy is not
cleared.

1.7 Knowledge Gap

Various studies have covered the different aspects of privacy in life. Many of the
papers have focused on the development of the right to privacy as a fundamental right
in the country. Based on a review of the literature on knowledge sharing, certain gaps
have been found in the field of privacy research particularly in India. There has been
no specific study regarding the development of privacy under different time frames in
the country and how courts have done balancing under different circumstances. The
parameters applied by the court are useful in the current situation or not. Application
of international conventions and charters in the field of privacy jurisprudence in India
remains a matter to be studied and how the U.K. and U.S.A privacy development
affected India's privacy right development. Thus, the study intends to fill this gap.

42
Graham Greenleaf, “Promises and Illusions of Data Protection in Indian Law” 1 International Data
Privacy Law 47-69 (2011).
43
Oliver Diggelmann and Maria Nicole Cleis, “How the Right to Privacy Became a Human Right”
Human Rights Law Review 441-458 (2014).

21
 The study's novelty lies in examining the Supreme Court's approach while
adjudicating the privacy issues from 1950 to date. The gap can be found in the Indian
data privacy laws when studied in light of recent privacy issues in the country,
specifically in the Aadhaar scheme and COVID-19 situation. The study of privacy
will not be complete without looking into the restrictions brought by the Supreme
Court to balance privacy right with other interests.

1.8 Aim of the Study

The proposed research work has the following aim, namely:

 Understand the true scope and nature of the right to privacy.
 Study the development of privacy jurisprudence in India.
 Examine the Supreme Court's stand on the right to privacy from 1950 to date.
 Explore the position of the right to privacy in India in comparison with the
U.K. and U.S.A.
 Like to know the effect of global charter and conventions in developing the
right to privacy in India.
 Examine the relevancy of recent issues affecting privacy right in the country.

1.9 Significance and the Utility of the Research

The primary objective of this research is to contribute to the existing knowledge

system of the relevant area of the right to privacy in India by highlighting the
bottlenecks existing in the judicial and legislative sphere. This research aims to
analyse and raise critical issues in the development of privacy jurisprudence in the
country. The aim is to draw attention to the need and importance of protecting privacy
right in the digital and non-digital world.

1.10 Methodology

The study proposed to be undertaken is purely doctrinal and non-empirical

research. The emphasis is upon analysing the statutory provisions and cases by the
Supreme Court, reasoning applied by courts. The approach adopted focuses on

22
analysing cases, legal rules, principles, and doctrines, thus primarily content analysis.
The study's primary focus is to explore the development of privacy jurisprudence in
India, the Parliament, and Judiciary's role in recognizing the right to privacy as a
fundamental right in various jurisdictions. The study would also critically analyse
India's current position regarding data privacy and the difficulty faced by not having
proper legislation to protect privacy. The research also focuses on certain current
issues affecting the privacy rights and how the balancing is to be done in such cases.

The statutory material, subordinate legal materials, and the case laws constitute
the primary source—secondary sources consisting of parliamentary debates,
textbooks, legal articles, etc. The footnoting style adopted is that of the Journal of the
Indian Law Institute, New Delhi.

1.11 Further Chapterisation

Chapter II: Evolution of the Right to Privacy in India

Part I – Evolution of the Right to Privacy in India through Customs and
Legislations
2.1 Prologue
2.1.1 The Right to Privacy during the Hindu Period
2.1.2 The Right to Privacy during the Mughal Period
2.1.3 The Right to Privacy during the British Period
2.1.3.1 Legislations Enacted to Prevent the Different Aspects of Privacy
2.1.3.2 Bills and Reports Introduced to Protect the Privacy Rights
2.1.4 Right to Privacy and the Constituent Assembly Debate
2.1.5 Protection of the Right to Privacy after Independence
2.1.5.1 Protection of Privacy by the Constitution of India
2.1.5.2 Protection of Privacy by the Different Legislations Post- Independence
2.1.6 Sum-up
Part II - Evolution of the Right to Privacy by the Supreme Court of India
2.2 Prologue
2.2.1 Different Phases of the Development of the Right to Privacy by the Supreme
Court
2.2.1.1 1950-1960

23
2.2.1.2 1961-1970
2.2.1.3 1971-1980
2.2.1.4 1981-1990
2.2.1.5 1991-2000
2.2.1.6 2001-2010
2.2.1.7 2011-Till Date
2.2.2 Sum-up
Chapter III: Right to Privacy and Data Protection in India
3.1 Prologue
3.2 Meaning of the Term Data Privacy and Data Protection
3.3 Current Data Protection Laws in the Country
3.4 Reports and Bills Drafted for Protection of Data Privacy
3.5 Analysis of the Personal Data Protection Bill, 2019
3.5.1 Salient Features of the Bill
3.5.2 Certain Points to be Reconsidered in the Bill, 2019
3.6 Comparative Analysis of Personal Data Protection Bill, 2019 with Srikrishna
Committee Draft Bill, 2018
3.7 Sum-up
Chapter IV: Right to Privacy in Other Countries
Part I - An Analysis of Privacy Protection in the U.K.
4.1 Prologue
4.1.1 Historical Background of the Right to Privacy in the U.K.
4.1.2 Role of the Parliament in Enhancing the Right to Privacy
4.1.3 Role of the Judiciary in Enhancing the Right to Privacy
4.1.4 Sum-up
Part II - An Analysis of Privacy Protection in the U.S.A.
4.2 Prologue
4.2.1 Historical Background of the Right to Privacy in the U.S.A.
4.2.2 Role of the Parliament in Enhancing the Right to Privacy
4.2.3 Role of the Judiciary in Enhancing the Right to Privacy
4.2.4 Sum-up
Chapter V: Global Charters and Protection of the Right to Privacy
5.1 Prologue
5.2 Meaning and Development of the Concept of Human Rights

24
5.3 Universal Declaration of Human Rights and Privacy
5.4 International Covenant on Civil and Political Rights and Privacy
5.5 International Legal Obligation to Implement the UDHR and ICCPR
5.6 Implications for Non-Implementation of the UDHR and ICCPR
5.7 Sum-up
Chapter VI: Restrictions on the Right to Privacy
6.1 Prologue
6.2 Constitutional Pre-requisites for Applying Restrictions on the Right to Privacy
6.2.1 Legality, which Postulates the Existence of Law
6.2.2 Law not to be Arbitrary
6.2.3 Test of Proportionality
6.3 Certain Grounds for Reasonable Restrictions on the Right to Privacy
6.3.1 Public Interest
6.3.2 National Security Interest
6.3.3 Search and Seizure
6.3.4 Other Fundamental Rights
6.3.5 Tax, Welfare Schemes, etc.
6.4 Sum-up
Chapter VII: Certain Contemporary Issues Related to the Right to Privacy
7.1 Facebook-Cambridge Analytica Data Scandal
7.1.1 Prologue
7.1.2 Facebook and Data Leak Controversies-A Short Look
7.1.3 Cambridge Analytica-Facebook Data Leak and Privacy Issue
7.1.4 Working of Cambridge Analytic
7.1.5 Effects of Data Leak on Democratic Values and Functions Across the World
7.1.6 Sum-up
7.2 Overview of the Aadhaar Issue in the Light of the Right to Privacy
7.2.1 Prologue
7.2.2 What is Aadhaar
7.2.3 Timeline of Aadhaar Scheme
7.2.4 Analysis of Case from the Privacy Perspective
7.2.5 Sum-up
7.3 AarogyaSetu App and Privacy Issue
Chapter VIII: Conclusion and Suggestion
25