ABSTRACT
The landmark Puttaswamy judgement has declared the right to privacy as a fundamental right. Such a right will have a significant impact on the construction of provisions that empower law enforcement authorities to undertake searches. In this paper, we exhaustively delineate the jurisprudence in India that relates to the overlap between the power to conduct searches and the right to privacy. Search provisions in India are present in various statutes such as the Code of Criminal Procedure, 1973. The established jurisprudence on privacy prior to Puttaswamy subjected search provisions to a relatively less rigorous standard of legality. In light of the Puttaswamy judgment, we discuss the normative content of the judgement itself, and draw an analysis of the comparative jurisprudence, to recommend the manner in which search provisions should be construed and their legality, analysed. We argue that search provisions are especially vulnerable to a privacy challenge when adequate procedural safeguards are not put in place, and further argue for a rigorous proportionality analysis. Finally, we test some pre-existing search provisions to demonstrate the manner in which Indian courts should determine the validity of searches and search provisions in light of the right to privacy
INTRODUCTION
The Right to Privacy is a human right, enshrined in numerous international covenants and institutions as reflected in Article 12 of the Universal Declaration of Human Rights, 1948, and Article 17 of the International Covenant on Civil and Political Rights, 1966. In the K. S Puttaswamy case, the court ruled that privacy is a fundamental right, protected intrinsically under the right to life and personal liberty. Privacy is a right enjoyed by every human being in their existence. It can extend to other aspects such as bodily integrity, personal autonomy, protection from state surveillance, dignity, and confidentiality
KEY WORDS
Right to Privacy, Article 12 of the Universal Declaration of Human Rights, 1948, Article 17 of the International Covenant on Civil and Political Rights, 1966, K. S Puttaswamy case, Information Technology Act 2000, Article 21, Articles 32 and 226
What is the Right to Privacy
The right to privacy is a fundamental aspect of individual autonomy, allowing people to make personal choices free from unwarranted interference. It encompasses the right to control one’s personal information, maintain confidentiality, and make autonomous decisions without interference.
Need: This right is essential for upholding human dignity and freedom, as it allows individuals to express themselves freely, engage in personal relationships, and participate in society without fear of surveillance or discrimination.
Indian Context: In 2017, the Supreme Court affirmed this right in the landmark Puttaswamy v. Union of India case, recognising privacy as a constitutional and fundamental right under Article 21 of Part III of the Indian Constitution.
International Framework: Article 12 of the Universal Declaration of Human Rights 1948 and Article 17 of the International Covenant on Civil and Political Rights 1966 establish legal safeguards against “arbitrary interference” with an individual’s privacy, family, home, correspondence, dignity, and reputation.
Right to Privacy Evolution.
The Constitution makers did not directly envisage the Right to Privacy, and as such, it does not find a mention in Part III of the Constitution relating to Fundamental Rights. The judiciary has deliberated on the matter and interpreted privacy from the beginning.
M.P. Sharma vs Satish Chandra (1954): The Supreme Court made a passing reference to the right to privacy while deciding whether searches and seizures were unreasonable and offered restrictions on various petitioners’ rights.
Kharak Singh vs. State of UP (1961): The Supreme Court examined the power of police surveillance concerning history sheeters, and it ruled in favour of the police, holding that the right to privacy has not been guaranteed as a fundamental right under the Constitution.
Gobind vs. State of MP & ANR (1975): The Supreme Court introduced the compelling state interest test from American jurisprudence. The court stated that an individual’s right to privacy would have to give way to a larger state interest, the nature of which must be convincing.
PUCL vs. Union of India (1997): The Supreme Court unequivocally held that individuals had a privacy interest in the content of their telephone communications.
Information Technology Act 2000: The Act was amended in 2008 to insert Section 43A, which made companies compromising sensitive personal data liable to pay compensation.
The Government framed eight rules to protect an individual’s privacy, including seeking permission from a company before accessing an individual’s privacy data and fixing liabilities for violation of the same.
Puttaswamy Judgement
A nine-judge Constitution Bench gave a landmark decision on the Right to Privacy in the judgement on “Justice K.S. Puttaswamy (Retd) and Another vs Union of India and Others”,
2017.
Judgment: The Supreme Court ruled that the Right to Privacy is “intrinsic to life and personal liberty” and is inherently protected under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution. In this way, the Court overruled its own eight-judge bench and six-judge bench judgements for the M.P. Sharma and Kharak Singh cases, respectively.
Significance: By making the right to privacy an intrinsic part of life and liberty under Article 21, it is not just an Indian citizen. Now, anyone can move the courts under Articles 32 and 226 to get justice.
By declaring that privacy is inherent to every fundamental liberty provided in Part III of the Constitution, the Supreme Court has made privacy an essential ingredient of other important fundamental freedoms
Right to Privacy Significance
The right to privacy is fundamental for safeguarding individual autonomy, dignity, and freedom. Recognised in the Puttaswamy Judgment, it ensures protection from surveillance, enables free expression, and secures personal data, strengthening democratic values.
Right to Life with Dignity: Privacy is linked to the constitutional right to life and dignity. It offers a shield against actions that could undermine personal respect and ensures that all individuals are treated with honour and respect.
Freedom of Expression: Privacy enables free expression by ensuring individuals can express, explore, and share their ideas without fear of judgment or retribution, which strengthens democratic discourse and personal development.
Protection from Surveillance: Privacy protects against intrusive surveillance, preventing both governmental and private entities from unreasonably tracking individuals’ activities, thus preserving a sense of security and freedom in personal spaces.
Data Protection: In the digital age, privacy safeguards personal data, preventing unauthorised access to sensitive information, which is crucial for protecting identity and financial security and maintaining trust in digital services.
Right to Privacy Challenges
The right to privacy in India is constantly in contention—balancing individual privacy with other fundamental rights, security, and digital inclusivity. The challenges arise in areas like prioritisation over other rights, digital awareness, and communications surveillance, often exposing gaps in regulatory and judicial clarity.
- Conflict with Other Rights: Prioritising the right to privacy over other fundamental rights is challenging. For example, during COVID-19, there was a clash between the right to life and the fundamental right to privacy, and therefore, it became of necessary importance and was prioritised.
- Digital Divide: Many individuals, especially in rural areas, lack awareness and resources to protect their privacy, leaving them vulnerable. For example, a limited understanding of online privacy settings leads to data misuse.
- Communications Surveillance: In modern times, surveillance is carried out via tapping or interception of telecommunication messages, etc. The two most important legislations in this context are the Indian Telegraph Act of 1885 and the Information and Technology Act of 2000.
According to both of these Acts, the government can invade an individual’s privacy based on national security, friendly relations with foreign states, and public order to prevent incitement and the commission of an offence.
- Judicial Clarity: Despite the landmark Puttaswamy v. Union of India ruling affirming privacy as a fundamental right, clear legal frameworks for implementation and enforcement remain limited, complicating privacy protection measures.
Government Steps to Protect Privacy
The Indian government has taken crucial steps to enhance privacy protections, focusing on legislative, regulatory, and surveillance oversight reforms. These initiatives aim to secure citizens’ data, establish clear data protection laws, and ensure balanced privacy frameworks that align with digital age demands.
B N Srikrishna Committee
The government appointed the B.N. Srikrishna Committee, an expert group on data protection led by Justice B.N. Srikrishna. In July 2018, the committee submitted its report, proposing a Draft Data Protection Bill and recommending key principles to safeguard individuals’ privacy and data rights in India.
Statutory Regulation
The government oversees surveillance practices under the Indian Telegraph Act (1885) and Information Technology Act (2000), which permit lawful interception with strict procedural safeguards to balance privacy with national security. Additionally, the National Cyber Security Policy and Indian Computer Emergency Response Team (CERT-In) promote privacy through guidelines on data protection, cybersecurity, and responses to data breaches.
Right to Privacy Way Forward
Ensuring the right to privacy in today’s digital age requires comprehensive measures, including judicial oversight, public awareness, advanced privacy technologies, clear surveillance laws, and strong private-sector accountability to protect individuals’ data and uphold privacy rights.
Strengthening Judicial Oversight: Establish robust judicial oversight mechanisms for surveillance activities, ensuring they are authorised, proportionate, and essential, thus safeguarding citizens’ privacy rights from misuse.
Public Awareness Campaigns: Promote awareness about privacy rights through government and civil society initiatives, enabling citizens to understand data privacy risks and assert their rights in the digital age.
Technology and Privacy Innovation: Encourage the development of privacy-centric technologies like end-to-end encryption and anonymisation techniques, which allow individuals and organisations to protect data without compromising usability.
Clear Surveillance Regulations: Define specific legal frameworks for surveillance, balancing national security with individual privacy, specifying data retention limits, and ensuring transparency in government surveillance practices.
Private Sector Accountability: Enforce accountability for private companies through strict regulations that prevent unauthorised data sharing and profiling and mandate transparency in data collection, storage, and processing practices.
CONCLUSION
On a holistic view of the provisions relating to searches under the CrPC, it appears to be clear that there is a need to harmonise all the provisions regarding the procedural safeguards that have been legislated to ensure that these provisions are not unnecessary intrusions into the right to privacy of an individual. The safeguards against state encroachment of fundamental rights envisaged under Articles 14, 19, and 21 of the Constitution, among others, must be given due regard in constructing the powers to conduct searches in the post- Puttaswamy era. The three-pronged test,181, that is laid down in the opinion of Chandrachud J., must be strictly adhered to in construing such powers. First, there must be a law that authorises the search. Secondly, the law must have a legitimate state aim, which in the present case would be the detection and investigation of crime.182 Finally, the law must be proportionate to the aim that it seeks to accomplish. Only when all these criteria are satisfied can a law encroach upon an individual’s fundamental right to privacy. However, the full extent of the impact of this test will only become clear through the subsequent adjudications of the Supreme Court.
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WRITTEN BY PALAK CHAUHAN
