Constitutional Right to Privacy: Overview

Constitutional Right to Privacy: Overview

Question: Recently, the DNA Profiling Bill is being tabled in the Parliament. Meanwhile the AG General has argued against right of Indians to privacy. Is there such a thing as constitutional right to privacy? Elaborate.

- DNA Profiling Bill which has recently been tabled in the Parliament may lead to a database with sensitive information which can easily be accessed

- Equally worrying is that AG’s assertion that there is no constitutional right to privacy in the Aadhaar case

- The assertion is also inaccurate in nature on two counts:

- It is erroneous to asset that M. P. Sharma Versus Satish Chandra and Kharak Singh Versus the State of UP have led to a legal doctrine which indicates the non existence of the constitutional right to privacy

- Another is a political angle whereby AG is an office which uses public resources while at the same time denying privacy to public citizens

- Moreover, India has ratified the International Covenant on Civil and Political Rights

- This supports the existence of right to privacy

- UN has also created a Special Rapporteur for upholding the right to privacy

- Whether the principles mirroring the US Fourth Amendment may be read into the Constitution of India is only one aspect of the right to privacy

- M.P. Sharma case explored if there are constitutional limitations to search and seizure by GoI regarding a person’s home or effects

- In the Kharak Singh case, physical surveillance of history sheeters was carried out

- In the M. P. Sharma case, the reference is to the right of persons to be secure in their homes against unreasonable searches and seizures (akin to the American Fourth Amendment), not the complete right of privacy

- M.P. Sharma judgement also says that searches of the kind that are conducted are under the authority of the Magistrate

- Similarly, in the Kharak Singh case, the court was referring to the Fourth Amendment

- Court also found that A21 is a repository for personal liberty leaving open the future reading of rights into the article

- Two cases do not eliminate broad constitutional right to privacy

- Right to privacy cannot be considered in a single case as it is a bundle of rights included from safeguards against authorised collection of personal data to limitations on intruding into private spaces

- Cases emerging from the SC over the years prove this

- Much before the Constitution was framed, women had the right to privacy through Purdah

- Rich history of this right being enforced is just one instance of traditional legal and cultural norms unique to India

- Lawyers can use every strategy to win cases, but the AG is constitutional authority

- Union Government needs to respect the privacy of Indian citizens and safeguard it

- It is essential for the government to clarify its stand so that global image of the nation remains positive

Facts and Stats

- SC has asserted that A21 is the heart of the fundamental right to privacy

- SC has also referred to DPSP to emphasise this fundamental right

- The scope for the fundamental right to privacy first came about in the Kharak Singh case; it was concerned with the regulation validity of the surveillance conducted on suspects

- International concepts of privacy relate to the following statutes:

- A12 of the UDHR

- A17 of International Covenant of Civil and Political Rights

- A8 on European Convention of Human Rights