Right to Privacy**

International Recognition of the Right to Privacy

The Right to Privacy is a fundamental human right that protects an individual's autonomy over their personal life and information, shielding them from unwarranted intrusion by the state and, increasingly, by private actors. It recognises the importance of a private sphere for human dignity, personal development, and the exercise of other rights. International human rights law has consistently affirmed this right.

Article 12 UDHR, Article 17 ICCPR

The Right to Privacy is explicitly guaranteed in key international human rights instruments:

• Universal Declaration of Human Rights (UDHR): Article 12 states: "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks." This article lays down the foundational principle that individuals have a sphere of private life that should be free from arbitrary state interference.
• International Covenant on Civil and Political Rights (ICCPR): Article 17 provides a similar and legally binding guarantee for States Parties:

  "1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

  2. Everyone has the right to the protection of the law against such interference or attacks."

Interpretation and Scope of Article 17 ICCPR

The UN Human Rights Committee, in its General Comment No. 16, has provided detailed guidance on the interpretation of Article 17. It clarifies that the right to privacy extends beyond protection from physical intrusion. It encompasses:

• Respect for Private Life: Including freedom from surveillance, intrusion into personal relationships, and collection or dissemination of personal data.
• Respect for Family Life: Including the right to establish and maintain family life free from arbitrary interference.
• Inviolability of Home: Protecting one's dwelling from unlawful searches or entry.
• Secrecy of Correspondence: Protecting mail, telephone calls, emails, and other forms of communication from arbitrary interception or monitoring.
• Protection of Honour and Reputation: Protecting individuals from unjustified attacks that damage their standing in the community (often linked to defamation laws, which must be balanced with freedom of expression).

The Committee emphasizes that any interference with privacy must be both lawful (based on domestic law that is accessible and precise) and not arbitrary. Similar to arbitrary detention, "arbitrary" interference means it must be reasonable and proportionate to the legitimate aim sought, and necessary in the specific circumstances. Even lawful interference must meet the standards of necessity and proportionality, particularly when balancing privacy against competing interests like national security or crime prevention.

The international recognition of the Right to Privacy has become increasingly important in the digital age, where technological advancements have created new challenges for protecting personal information and communications from state and corporate surveillance.

Right to Privacy in Indian Constitutional Law

In India, the recognition of the Right to Privacy as a constitutionally protected right has been a journey primarily shaped by judicial interpretation. While the Indian Constitution does not explicitly mention 'privacy' as a Fundamental Right, the Supreme Court has, over decades, read various aspects of privacy into the existing fundamental rights, particularly the Right to Life and Personal Liberty (Article 21).

Judicial recognition in Justice K.S. Puttaswamy v. Union of India

The definitive and most significant judicial pronouncement on the Right to Privacy came in the landmark case of *Justice K.S. Puttaswamy (Retd.) & Anr. v. Union of India & Ors.* (2017). In this case, a nine-judge bench of the Supreme Court unanimously affirmed that the Right to Privacy is an intrinsic part of the fundamental right under Article 21 of the Constitution.

This judgment overruled earlier decisions that had taken a narrow view on privacy and settled the debate regarding its constitutional status. The Court's decision was a response to petitions challenging the Aadhaar scheme (India's unique identification system) on grounds of privacy violation. While the judgment did not strike down Aadhaar entirely, it firmly established privacy as a fundamental right, setting the stage for future legal developments.

Right to privacy as an intrinsic part of Article 21

The *Puttaswamy* judgment held that the Right to Privacy is not a standalone, distinct right but is an intrinsic and inseparable component of the Right to Life and Personal Liberty guaranteed under Article 21. This means that privacy is essential for the meaningful exercise of the right to live with dignity and autonomy.

The Court's reasoning established that privacy is also inherent in other fundamental rights in Part III of the Constitution, including:

• Right to Freedom (Article 19): Aspects of privacy are crucial for exercising freedoms like speech and expression (e.g., privacy of communication, anonymity), association, and movement.
• Cultural and Educational Rights (Articles 29 & 30): Protecting the cultural and personal space necessary for practicing one's culture.

The Court recognised that privacy has multiple dimensions and extends to various aspects of personal life, including bodily integrity, informational privacy, autonomy over personal choices, and the right to be let alone.

Permissible Restrictions on Privacy

Importantly, the Supreme Court clarified that the Right to Privacy, like other Fundamental Rights, is not absolute. Any infringement on privacy must satisfy a three-fold test:

1. Legality: The interference must be authorised by law.
2. Legitimate State Aim: The law must pursue a legitimate state aim (e.g., national security, preventing crime, public health, protecting the rights of others).
3. Proportionality: The means adopted must be proportionate to the object sought to be achieved. This requires balancing the right to privacy with the state's legitimate interests. The measures taken must be necessary, have a rational nexus with the aim, and there should be procedural safeguards against abuse.

This test aligns closely with the standards for restricting rights under international human rights law (e.g., necessity and proportionality under Article 19(3) ICCPR). The *Puttaswamy* judgment has significant implications for future legislation, government policies, and judicial review concerning issues involving personal data, surveillance, and individual autonomy in India.

Privacy in the Digital Age

The rapid advancements in technology, particularly the proliferation of digital devices, the internet, social media, and data collection capabilities, have created unprecedented challenges for protecting the Right to Privacy. Privacy in the digital age encompasses issues related to the collection, storage, use, and sharing of personal data, as well as state and private surveillance.

Data protection

Data protection refers to the legal frameworks and technical measures designed to govern how personal data is collected, processed, stored, and shared. In the digital age, vast amounts of personal information (from online activities, location data, financial transactions, health records, etc.) are collected by companies and governments. Protecting this "informational privacy" is a major challenge.

• International Standards: While IHRL provides the right to privacy framework, specific standards for data protection have emerged, often based on principles like data minimisation (collecting only necessary data), purpose limitation (using data only for specified purposes), data security, transparency (informing individuals how their data is used), and providing individuals with rights over their data (access, correction, deletion).
• Risks: Without adequate data protection, personal information can be misused for discriminatory practices, identity theft, targeted manipulation, or expose individuals to security risks.

Following the *Puttaswamy* judgment, which highlighted the need for a robust data protection regime in India, the Indian government has been working on enacting comprehensive data protection legislation. The Digital Personal Data Protection Bill, 2023, is the current legislative effort aimed at establishing rules for the processing of digital personal data, outlining the obligations of data fiduciaries (those who determine the purpose and means of processing data) and the rights of data principals (the individuals whose data is being processed).

Surveillance

Surveillance refers to the monitoring of individuals' activities, communications, or location, often by state authorities for law enforcement or national security purposes, but increasingly also by private entities for commercial reasons. Digital technologies have vastly expanded the capabilities for surveillance, including mass surveillance.

• IHRL Standards: Surveillance constitutes an interference with the right to privacy. Any state surveillance must be authorised by law (legality), necessary to achieve a legitimate aim (necessity), and proportionate to that aim (proportionality). Blanket or indiscriminate surveillance is typically considered a violation of the right to privacy. There must be effective oversight mechanisms (judicial or independent) to prevent abuse.
• Challenges: Digital surveillance can be covert, large-scale, and cross-border, making it difficult for individuals to know when or how they are being monitored and to seek remedies. The rise of private surveillance technologies also poses new challenges for state obligation to protect individuals from private interference with privacy.

In India, laws like the Telegraph Act, 1885, and the Information Technology Act, 2000, contain provisions related to interception and monitoring, but concerns have been raised about their alignment with the proportionality standards required by the *Puttaswamy* judgment and international human rights law. Cases related to surveillance technologies, like the Pegasus spyware issue, have brought the challenges of balancing national security with the fundamental right to privacy into sharp focus, underscoring the ongoing need for robust legal safeguards, transparency, and accountability mechanisms to protect privacy in the digital age.