Chapter VIII

Conclusion and Suggestions

Privacy has never been an essential topic for discussion in the Indian legal
jurisprudence. But the recent happening in the country, the introduction of the
Aadhaar Scheme, rendered the consideration of the right to privacy as a fundamental
right. India's right to privacy has been developed mainly in three aspects, i.e.,
physical, informational, and decisional privacy. Privacy is a part of every culture and
society and is recognized as a basic human value. It is an umbrella term which
includes the various aspect of human life. Privacy preserves one’s individuality and
acts as a shield in case of intrusion by an individual or State. The privacy issue is not
that simple; it is related to many realms of life, so can’t be read in isolation. It is an
essential component of many rights, and number of times conflict with other
necessary rights. It is a broad term and cannot be cabined or confined to one aspect of
life.

The very idea of privacy is based on the concept of liberty and freedom. It is
freedom from unauthorized or arbitrary interference into one’s personal affairs. It is a
state of affairs where one does not want anyone's interference; it is a place of
seclusion. A person needs both mental and physical privacy. Several great jurists have
tried to define the term ‘privacy,’ but no specific definition of privacy has been found
yet. The on-going changes in the elements of the individual's private sphere make it
challenging to define the term. All the aspects of privacy cannot be covered in a
single definition. Key issues around privacy are still to be answered, and lack of
definition makes those issues difficult to resolve. The growth of society will always
change the notion of privacy also.

Alan Westin, an American law professor, mainly focused on the three-sphere of

privacy, i.e., political, socio-cultural, and personal. According to him, it is a person's
desire for solitude, intimacy, anonymity, and reserve. Warren and Brandeis define the
term as ‘the right to be let alone.’ Richard Poser highlights one aspect of privacy as
the withholding or concealment of information. For Ruth Gavison, an Israeli law

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professor, it is basically related to one’s accessibility to other information.658
According to many jurist, privacy is the right of a person to decide about themselves.
The Indian scholars have not contributed much in the field of privacy and rather relied
on western scholars only. A number of other jurists tried to define privacy, but all
were futile exercise. As privacy is not a single right; instead, it comprises a bundle of
rights.

All the definitions just give us an idea of privacy, what can be considered private,
and why there is a need for protection. A universal definition of privacy could not be
created as it is too vague and abstract. A different aspect of privacy can be discovered
through these definitions, and legal protection can be demanded. Privacy is a dynamic
right, and it will always develop with the changing time. Its desirability will proceed
from different standpoints. As long as different civilizations and life patterns exist, no
universally accepted definition can be evolved. Broadly privacy can be classified as
individual privacy, social privacy, family privacy, though this is also not exhaustive.

Despite no specific definition, international charters and conventions have

recognized the right to privacy. Art. 12 of the UDHR and Art. 17 of the ICCPR talk
about the right to privacy. These documents grant every individual the right to
privacy. It states that everyone has the right to protect the privacy of his/her family,
home, and correspondence. Persons have the right to protect themselves against the
arbitrary and unlawful interference by the State. These conventions mention the
sphere of privacy but do not define the term privacy, so broader interpretation is
always to be made for its application. These articles contain a broader area of life.
Technological advancement after the incorporation of conventions is kept in mind
while protecting an individual's privacy rights. Flexible interpretation is to be made,
taking into consideration the changing circumstances. No exhaustive list under Art. 12
of the UDHR or Art. 17 of the ICCPR can be provided as regard privacy right. Right
over personal data, privacy over communication through various mediums, sexual
life, family life, etc. falls under the present articles.

658
Ruth Gavison, “Privacy and the Limits of Law” 89 The Yale Law Journal 423 (1980).

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 Everyone has acknowledged the fundamental need for privacy, and State action
has been demanded the protection of privacy rights. Both negative and positive
aspects are present in the privacy right. The negative content primarily impedes the
State actors from encroaching upon the private sphere of the person. The positive
content imposes the obligation upon the State to protect and preserve the individuals'
privacy rights. Considering its nature, the various facets of the right to privacy have
been protected by the governments through multiple legislations.

It is not only that in modern India that privacy rights are talked about and
protected; rather, ancient Indian society was also sensitive towards privacy issues.
Traces have been found from various text and societal norms on how society
considered to protect one’s individual and family privacy. Grihya-Sutras, Ramayana,
and Mahabharata give a glimpse of how privacy was granted to individuals. Person’s
privacy is respected while meditating, sleeping, studying, or engaging in sexual
activity. Women's privacy has been given due respect, and its violation has been
considered as a serious wrong. Across the world, privacy has been recognized in one
or other form; it is not unknown to ancient Englishmen, Americans, or Chinese. The
modern discussion on privacy rights has been mainly adopted from the U.S.A.
jurisprudence. ‘The right to be let alone’ coined by Cooley and adopted and
popularized by Warren and Brandies initiated the demand to create an independent
right of privacy.

India is not having any consolidated legislation dealing with the right to privacy.
The number of statutes and customs are in existence, protecting certain aspects of
privacy. The Indian Easement Act, 1882, since the very beginning, recognized the
right to privacy. Similarly, IPC., 1872, the Indian Post Office Act, 1898, the Official
Secrets Act, 1923, the Special Marriage Act, 1954, the Medical Termination of the
Pregnancy Act, 1971, R.T.I. Act, 2005, J.J. Act, 2015, are dealing with privacy. Due
attention by the legislature is paid to women's privacy issues. But the main contention
has always been regarding the constitutional status of privacy rights.

Though there is no explicit recognition of the right to privacy in the Indian

Constitution, it got a place under the Constitution. Initially, Art. 21 of the Constitution
played a vital role in its recognition. Privacy was safeguarded by the term ‘liberty’

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used under Art. 21. Later on, through judicial activism, courts have recognized the
right to privacy under Art. 19(1)(d) read with Art. 21. The courts further traced the
privacy right under various articles of Part III of the Constitution. The dignity clause
under the Preamble of the Constitution has also been used to uphold the right to
privacy in India. Because of the lack of a clear definition of the right to privacy,
courts are vested with the final power to decide whether any matter covers privacy
rights or not. So, what courts say is privacy.

If we look into the Indian case law, then no doubt Indian courts have recognized
and reaffirmed the right to privacy time and again. But there exist conceptual
inconsistencies, and courts are classifying the privacy into manageable categories.
The judiciary is vested with a wide power when it comes to balancing the rights, so
the judiciary, from case to case basis, has determined the scope of privacy right in the
country. The judicial attitude has differed from case to case on the point of privacy.
Explicit recognition of the privacy right by the court has been from 1975 onwards,
and it evolved and developed in later years. After 1975 privacy was recognized as a
separate fundamental right emanating from different articles of Part III of the
Constitution.

For five decades, the right to privacy has been acting as a constitutional safeguard
against the arbitrary state action. It serves as the legitimate constitutional limit on the
governmental powers and pre-supposes that the judiciary is the correct body to
determine privacy rights limits. Privacy protects freedom and gives the right to make
choices. Privacy is like morality and obscenity; we cannot say what privacy is but
know what it means. Privacy has different notions and challenges in different
situations. It is not a clear-cut concept and is much related to the freedom from
unauthorized interference in one’s life.

Govind, Rajagopal, and PUCL (telephone tapping) are true parents of privacy
doctrine in India. These three cases unmistakably assured the existence of privacy
rights. Fortified by American decisions, the judicial attitude shifted from R.C. Copper
and Maneka Gandhi case, wherein wider interpretation is given to Art. 21, and
interlinking of a fundamental right is permissible. The cases related to privacy have
been diverse, and reasoning employed by the court has been different. Neatly

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sidestepping the majority in Sharma and Kharak Singh, the court firmly anchored the
right to privacy in Indian privacy jurisprudence. Most of the judgments related to
privacy are per curriam. Even in a private matter, the court has deployed the
constitutional protection to a privacy right. However, that can be considered as a
serious mistake by the court.

The most significant decision in respect of privacy right, which has settled the
debate of privacy as a fundamental right, is recently decided privacy judgment. The
case affirmed the right to privacy and focused on the protection of individual privacy
from both State and non-state actors. Individual privacy right is a God-given right,
and this right protects one’s personhood. No one can violate the personhood of an
individual. Privacy right is not restricted to just informational privacy; rather, it has a
broader ambit. After this case, more focus has been there to protect individual
privacy. The court, later on, held s. 377 of the IPC (partial), exception. 2 of 375 IPC,
Sabarimala custom prohibiting entry of women in their menstruating years
unconstitutional on the ground of violation of the privacy of an individual.

As the right to privacy is not an absolute right, restrictions can be imposed on it.
The limits on the right can be imposed only by following just, fair and reasonable
procedure. The court has brought a number of restrictions while defining the scope of
right through various case laws. But the court has always stated that a compelling
state interest must always justify the encroachment on individual privacy. The
curtailment of liberty is permissible only on reasonable grounds, and law curtailing
the right must be narrowly tailored. A proper logical legitimate interest should be
there for infringing the right to privacy. The limitation should be in the interest of the
public at large. The State has to show that there is no other way to achieve their
purpose, and it is the last resort.

The court has applied the proportionality test when two or more fundamental
rights collide. In cases where one right is to prevail at the expense of another, there is
a need for balancing. The proportionality test applied by the Constitutional courts is a
four-test process. The legitimacy, suitability, necessity, and balancing are the court's
four-step for limiting a constitutionally protected right. The trade-offs done by courts
while applying the proportionality test determine that prevailing right is somewhat

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more valued. It is to be remembered that another right is not invalid; instead, it is not
that much required to protect that right for that current situation. In a number of cases,
while balancing the right to privacy with other rights, courts have outweighed the
privacy right, and greater weightage is given to some other fundamental right or any
restriction. But that does not mean, in every situation the right to privacy will be
repudiated.

Thus, the right to privacy is a limited right, and at the time of encroachment upon
the right by legislature or executive, the scope of limitation should also be kept in
mind while drafting the regulation. The curtailment of right is permissible only when
the procedure adopted is fair, just, and reasonable. It should be in accordance with the
principles of natural justice. Proper balancing is to be done by courts, and the test of
proportionality is to be applied while holding the legislature valid or invalid. There is
no doubt that the jurisprudence of the court concerning privacy is still evolving.

It is to be noted that in India, the development of privacy has not been

predominant on sexuality; rather, the focus has been on other aspects also. The U.S.A,
U.K., and India did not have any express legislation to protect privacy. In U.S.A and
India, the law has been developed by judicial pronouncements. The different aspect of
privacy in the U.S.A and the U.K. was also recognized based on varying statutes, such
as the law for breach of confidence, defamation, trespass, etc. The Parliament was
reluctant not to recognize privacy right as a separate right. In the U.K., even the
judiciary refused to acknowledge privacy as an independent common law tort. After
enacting the H.R.A., 1998, and Data Protection Act 1998, the judiciary has
progressively protected individual’s privacy rights. On the other hand, if we look into
the development of privacy right in the U.S.A., the picture is entirely different. It was
through judicial activism that privacy as a separate right got recognition in the nation.

Traditionally in India, the right to privacy concept was quite different from the
western society. Culturally there was a lot of difference between the two.
Traditionally, the joint family culture was prevalent in society, but the traditional
concept started changing with urbanization. People started demanding more privacy
rights, and the old life pattern could not be sustained. The people's life style
magnificently changed with the scientific and industrial advancements and assertion

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for the right to privacy started in the country. It is important to note that later
development in privacy jurisprudence in India has been influenced both by the U.K.
and U.S.A, specifically when it comes to recognizing privacy as an independent right.
If we look into the development of privacy in the U.S.A, then predominantly court
focused on sexual privacy and family privacy. The two most prominent cases that
changed the jurisprudence of privacy right in the U.S.A. were Griswold v.
Connecticut659 and Roe v. Wade.660 While granting the right to privacy to individuals,
the courts not restricted it under the domain of the First and Fourth amendment of the
Constitution. Instead, it brought the Ninth and Fourteenth amendment to rescue
individual's right to privacy. At present, in the U.S.A., privacy rights can be found in
the U.S. Constitution, 1787, the Federal Privacy Laws, and the State Privacy Laws.
Almost every aspect of privacy is protected by various Federal and State laws in the
country. In the U.K., privacy laws developed slowly as the legislature was
apprehensive in giving the independent right to privacy. The fear of judicial activism
was there, as privacy rights cannot be defined. But gradually, over time, the right was
recognized, and the Parliament was not hesitant to give power to the judiciary for
interpretation of privacy rights.

The U.S.A., U.K., and India all have settled the debate regarding privacy as a
separate fundamental right. All have curtailed privacy right in the greater public
interest, i.e., privacy right is not absolute. Analysis of all three jurisdictions gives the
idea that technological advancement has created the need to protect privacy. India is
lagging behind these two countries precisely when it comes to the protection of data
privacy. A serious threat lies over the issue of data protection.

The most important aspect of the right to privacy, which is most discussed today,
is digital privacy. No doubt, technology has brought significant positive changes
across the world and has made life more comfortable. But the evil aspect of the
advanced technology cannot be ignored, especially with reference to a privacy right.
The Warren and Brandies article mainly talked about how technological change
affects the private space of the individual. How encroachment into one’s life has been
so easy. Newly invented optical and acoustic devices can very easily gather our

659
Supra note 123.
660
Supra note 124.

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information. The big brothers have traces of everything we are doing, what we are
watching, what we are buying and eating, our friends and family, where we are going,
whom we are in a relationship, etc. There is an urgent need for the legal protection of
our personal data from both State and non-state actors. No wrongful gain or misuse of
individual data should be there. The ownership over the data should be given to the
individual whose data is taken. A proper balanced procedure needs to be developed to
regulate the circulation of data. A more profound concern needs to be generated to
protect every citizen's data in contemporary India.

Data privacy issues need serious consideration by the legislature. The draft Data
Privacy Bill, 2019, requires a reconsideration to give minimal protection for personal
data. The bill needs to stand the test of time in the era of artificial intelligence and
new challenges in addressing data privacy. The bill creates the monopoly of State
actors, dilutes property rights in data, and private companies worldwide have a
significant compliance burden. The current bill does not correctly address privacy-
related issues in the present world of technology. The sweeping powers given in the
bill to the government opens up the possibility of mass surveillance and thus
encroaches on individuals’ privacy.

New privacy threats will always rise, as modern technologies and infrastructures
will ever grow. A number of problems have been arisen related to the various aspect
of privacy in modern contemporary society. A threat to privacy has been created due
to the change in societal structure and developed technology. So, the act should be
drafted so that it not only caters to the need of the present generation but also the
future generation. The new issues related to privacy gives the judiciary more power in
the field of privacy right. The judicial philosophy and socio-cultural norms determine
the context of privacy in the country.

The countries are facing new challenges against the protection of privacy rights.
The CA and Facebook scandal raised serious concern over the privacy of individuals.
How millions of Facebook users' data was leaked, and the psychological profiling of
voters was done to help Trump in elections. The Aadhaar scheme in India also raised
serious concerns about data privacy in the country. Various problems like identity
theft, correlation of identities, illegal tracking, identification without consent have

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been put forth. However, the Supreme Court has upheld the Aadhaar scheme's
validity and concluded that it does not violate privacy. But the court has mainly relied
on other aspects of Art. 21 than the right to privacy. Jamaica Supreme Court has
struck down the Jamaican National Identification and Registration Act by relying on
the minority opinion of Chandrachud J. in Aadhaar's judgment. The national identity
system needs to be looked at from the privacy aspect also.661

The outbreak of COVID-19 and steps taken by the governments across the world
again raised serious concern with regard to privacy protection. The Governments
(Centre and State) in India are collecting data on a large scale, and people have to
share their data, which is even published by the governments. The AarogyaSetu app
has been launched, which takes demographic information and tracks the location of a
person infected. The app lacks privacy and in absence of effective data protection
legislation number of questions remains unanswered. The government knows through
this app more about you than your parents. So, it is the right of citizens to know about
the app’s safety protocol correctly. Taking medical data or having a record of a
person's health is not always per se invasion of privacy. But it has to be seen that if
the information is taken from individuals, then the conditions set by the court are
fulfilled or not.

The right to privacy gives us the freedom to enjoy a secluded life, but that does
not mean that a human being should be left alone by society to lead a destructive life.
Society has a duty to look after a person who remained secluded for a long time. In
this sense, the right to privacy is limited and can always be curtailed in the public
interest as well as for the larger benefit of mankind as a whole. This is the bottom line
of the right to privacy, and the States should follow this bottom line while enacting
the legislation on the right to privacy.

To be precise, it can be stated that privacy performs different functions in any

society. The privacy right protects personal autonomy and a person's right to live with
human dignity. At the heart of the right to privacy, there has always been a conceptual

661
Ashok Kini, “Jamaican SC Quotes Justice Chandrachud’s Dissent to Strike Down Aadhaar-Like
Programme”, The Wire, Apr. 13, 2019, available at
<https://thewire.in/law/jamaica-supreme-court-aadhaar-justice-chandrachud >(last visited on Oct. 7,
2020).

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vacuum. In the current technological world, privacy is not an isolated event. Instead
the existence of it has been recognized by many countries around the globe. It is not a
regional or national right but a human right recognized under various international,
national, and regional instruments. The right to privacy is part and parcel of the right
to dignity and freedom. It is right to enjoy one’s life without interference, but that
does not mean it is to allow a person to do destructive work. In view of the above
propositions, it can be concluded that India has moved in a very progressive manner
with regard to privacy protection. But there are number of issues that need
consideration in light of the right to privacy.

In light of the discussion made in the different chapters, the following points are
put forward for future consideration:
 The explicit constitutional recognition should be given to the right to privacy
by the Parliament through a constitutional amendment. The uncertainty about its
constitutional basis should be removed by inserting a new article as Art. 21 B or a
new clause in Art.19 be added. The State power is ultimately restricted through
constitutional text only. The Constitution acts as the protector of fundamental rights,
specifically against the governments and its instrumentalities. By not having explicit
recognition, we always have to look to the judiciary for its protection.
Art. 21 B (as suggested by the National Commission to Review)
1. Every person has a right to respect his private and family life, home, and
correspondence.
2. Nothing in clause (1) shall prevent the State from making any law imposing
reasonable restrictions on the exercise of the right conferred in clause (1).

The commission's aforesaid recommendation may work as a foundation for

making a comprehensive amendment in the Constitution dealing with right to privacy,
keeping in view the amazing scientific and technological development.
 The Indian jurist should attempt to explain privacy in the Indian context
broadly. The term privacy cannot be defined, but legislature and judiciary should try
to remove the vagueness so that that right can be enjoyed in a full-fledged manner.
 A Privacy Protection Act should be made so that along with constitutional
protection, statutory protection can be granted. The legislature should regulate privacy

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norms in the country, considering that there is still a massive gap between the privacy
needs of individuals and existing protection in the country.
 Not only State actors rather non-state actors should also be held responsible
for violation of privacy. The lawmakers should take immediate steps to protect and
develop the privacy right as an independent right.
 While drafting legislation the government should keep in mind the
sociological, cultural, and regional factors. All standards of other countries cannot be
applied as such in our country.
 The government should enact less law, intruding on the private affairs of
citizens. The proper balance should be made between the right to privacy and other
fundamental rights like the right to know and free speech.
 Encroachment into privacy right through advanced modern technology is a
present-day problem faced by many individuals. There is a dire need to control breach
of online privacy and frame certain guidelines for protecting the same.
 The emphasis should also be there on the growth of privacy under the tort law
so that more persons can get the remedy easily against non-state actors. The remedy
of damages and injunction should be made to the aggrieved person.
 The limitations on the right to privacy should be clearly specified. And narrow
interpretation should be there to the constraints of privacy rights. It should be kept in
mind by the judiciary that limitations are exceptions, not a rule.
 The government surveillance should be the minimum. The government needs
to understand that privacy is not about hiding information; rather, it is the ability to be
free from unwanted intrusion.
 Defects of the Personal Data Protection Bill should be dealt with proper care.
The country needs a comprehensive law guaranteeing individuals the right over their
data. The control over the collection and distribution of one’s data should be
appropriately regulated.
 Companies should develop and enhance privacy software. Privacy clauses
should not be drafted by corporations pretty much one-sided, i.e., favouring
corporations-the proper balancing needs to be done between an individual, company,
and government. None should have excessive power to exploit others.
 The notion that privacy has only a negative aspect, and there doesn’t exist
positive right, needs to be changed as this restrict the right to privacy.

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  The court while interpreting the right to privacy should not always cede too
quickly to competing interests. The narrow tailoring of fundamental right to privacy
should not be done. As ball will finally come to judiciary only so they need to play a
proactive role in protecting privacy rights.
 Schemes like Aadhaar should be there for distribution of subsidies and
managing other government programmes, but it should not convert system into a
surveillance State. The Aadhaar’s security and privacy measures should be made
more stringent so that identity theft is minimised and other form of forgeries cannot
be done.
 Strict punishment should be incorporated in the act for violation of privacy but
at the time it is to be seen that law does not unduly impede useful innovations in
technology.
 The Aadhaar scheme need some careful unpacking by the government and
judiciary.
 There is a need to understand that data which is collected is not evaporating
rather it is collected. Digital traces of people are mined into trillion dollars by
industries within a year. Data profiling predict personality, drives behaviour, and
influence how you vote, buy etc. So, the government need to regulate these unethical
practices not only nationally but internationally also.
 India needs to follow international legal standards and comply with the norms
of the of the UDHR and ICCPR particularly when India is persevering for a
permanent seat in the UN Security Council.
 Last but not the least people should be made aware about the issues of privacy,
as around half of the country population has access to internet. In 2020, we had nearly
700 million internet users and which will rise upto 974 million by 2025. It is need of
an hour to make people familiar with data breaches and how that is effecting their
rights.

In the meantime, privacy jurisprudence continues to be matter of concern

worldwide. The development of liberal democracy and internationalisation of human
rights has pushed for the individual freedom and liberty. And technological change,
particularly in field of media, communication and infrastructure, have impacted
privacy matters. Debates about essence of privacy will grow and make the topic

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fruitful object of study. The privacy is possible in digital age just we need a
conviction that it is possible. It is work in progress and more remains undone.

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