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Right To Privacy In Cyberspace: A Judicial Response In India (By- Praveen Chaudhary)

Right To Privacy In Cyberspace: A Judicial Response In India

Authored By- Praveen Chaudhary

LL.M, Babasaheb Bhimrao Ambedkar

An individual's human rights are a defence against oppression and injustice. 'Fundamental Rights' have been added to the Indian Constitution to include these human rights into the constitution.

The right to privacy is one of these rights that cannot be denied to a person. Articles 14, 19, and 21 of the Indian Constitution establish it as a fundamental right. It is a human right that does not need to be granted to an individual because everyone is born with it.

Meaning Of The Term “Privacy”

The word "privacy" is a simple one, yet it also carries a lot of weight. Because this is such a complex idea that cannot be reduced to a single definition, this word has a meaning all its own. It is not legally defined and demands more enumeration than definition. This is a new and very important term.

The simplest definition of privacy was given by Judge Thomas Cooley in Olmstead V United States[1], he called it, "the right to be allowed alone." His view is that privacy is a fundamental human right, and that anyone who violates that right is liable under tort law and, in some cases, the Constitution. In Gobind vs. State of Madhya Pradesh[2], Each human being has a core of inviolability that is protected by privacy, but the individual's autonomy is influenced by her interactions with the rest of society.

Privateness, as defined by its etymological roots in Latin, refers to an individual or an organization's ability to protect themselves or their information from public view, and to selectively reveal themselves. This is done by allowing them to keep their information private, and then selectively revealing it.[3]

This plainly demonstrates that privacy is a fundamental human right, and there is no need for a written statute to ratify this fundamental right. It's important to recognise that this is a fundamental right that cannot be violated.

Right To Privacy: A Concept

Blackstone's Law Dictionary defines "right to privacy" as "the right of a person to be free from any undue intrusion," or "a right to be left alone."

Justice D.Y. Chandrachud recently gave a ruling that rejected the rules established in the Habeas Corpus decision in the case of a man who was convicted of rape and murder. in the case of Justice K.S. Puttaswamy and ors. v. Union of India[4], which evolved as a landmark judgment in the history of India with regards to the status of Right to Privacy.

It's difficult to put a name on the concept of privacy rights. As a cultural state or condition, privacy differs from society to society, but it is a value that is shared by all. Privacy as a manifestation of an inviolable personality, a nucleus of freedom and liberty from which the human being had to be free from intrusion, is what the right to privacy means.

Personal writings and creations were intended to be protected against theft and physical mistreatment as well as dissemination in any form, which is why this principle was introduced in the first place.

All citizens of the country should have access to the same fundamental rights, as well as the ability to pursue legal recourse if they are violated. Certain aspects of our private selves cannot be revealed to the world. There's been an increase in the worldwide recognition of privacy as a fundamental human right with the passing of the recent case in 2017.[5]

The Significance Of Right To Privacy

It doesn't matter if you're talking about Ramayana or Mahabharata or Manu Smriti; all of these stories value one's right to privacy. These scriptures show that ancient Indian civilization had norms in place to protect an individual's privacy. While ministers were being consulted, Kautilya, in his Arthashastra, published around 321-296 B.C., laid out a specific mechanism for protecting the right to privacy. So, from a historical perspective, privacy is a civil liberty that is essential to the individual's freedom and dignity. As we progress through Indian history, we discover that by the nineteenth and twentieth centuries, the concept of "privacy" had come to mean the inviolability of a person's home.

Despite the fact that the right to privacy was discussed and debated in the Constituent Assembly. Beginning in December 1946, the Drafting Committee was established by the Constituent Assembly and tasked with producing a draught of the Constitution from the different committees established by the Assembly. An attempt was made to include privacy as one of the Fundamental Rights during the Committee Stage.

Members like B.N. Rau, A. K. Ayyar, and M.K. Panikkar were opposed to elevating the right to privacy to the position of a Fundamental Right from the beginning of the process. In fact, members of the Constituent Assembly Alladi Krishnaswami Ayyar and B. N. Rau made the most direct attacks on the right to privacy, expressing their displeasure with the concept in their public statements.

Ayyar believed that providing the right to privacy and secrecy in communications would be detrimental because it would raise every private or civil communication to the status of official documents. B.N. Rau was especially concerned about the interference of the right to privacy with the investigation powers of the police authority, and this would have a negative impact on civil litigation. They later succeeded in convincing the Advisory Committee to remove elements related to privacy rights, thanks to Rau and Ayyar's efforts.

There have been many attempts in the Constituent Assembly's ongoing sessions to incorporate the right to privacy into the aforementioned chapter on fundamental rights. Somnath Lahiri, a member of the Constituent Assembly, made the following proposal during its 30 April 1947 meeting: "The privacy of correspondence should be inviolable and may be infringed only in instances permitted for by law."[6] However, this proposal did not receive support from the Assembly. Almost a year after the first attempt, on 3 December 1948, Kazi Syed Karimuddin made another. He argued that the Fourth Amendment to the United States Constitution, which states that "[t]he people shall have the right to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures," should be enforced.[7] 

As a result, the right to privacy was not included in the list of fundamental rights guaranteed to Indian citizens by the Constitution of India. There are numerous instances that have dealt with privacy issues, and the Supreme Court of India has been instrumental in addressing them. This has helped ensure that the right to privacy is properly recognised as a part of the right to life and liberty under Article 21.

In one of the earliest cases, M.P. Sharma v. Satish Chandra[8], where the Supreme Court on the issue of ‘power of search and seizure’ held that “Indian Constitution does not include privacy in its essential rights, the Supreme Court ruled on the subject of ‘power of search and seizure’ in this case.” When it came to this case, it was clear that the Supreme Court's interpretation was narrow and limited only to the statutory rule.

A decade later there was another important case, which was Kharak Singh v. The State of U.P.[9] that dealt with the subject of surveillance and whether or not the definition of "surveillance" in U.P. Police Regulation 236 constituted an infringement of fundamental rights or not, as well as whether or not the right to privacy is a fundamental right. Because privacy is not guaranteed by our Constitution and because of this, the Supreme Court ruled that “an attempt to track an individual's movements in a way that invaded their private was not a violation of a basic right provided by Part III of the Indian Constitution. However, Article 21 (the right to life) was deemed to be the repository of residuary personal rights, and the common law right to privacy was recognised by the European Court of Justice.” However, Justice Subba Rao stated that privacy is a component of Liberty.

The next case was Govind v. State of M.P.[10]  This case was similar to the Kharak Singh one, although it was approached completely differently. It upheld “the acceptable restrictions of the Madhya Pradesh Police Regulation Act of 1961. As interpreted by the Indian courts, Part III of the Constitution affords an individual the right to privacy. A 'case-by-case growth' of the right to privacy will be necessary without legislative passage, the Supreme Court noted, because only one instance will be sufficient to see the exceptions and repercussions of that right. However, the right to privacy was brought into Article 21's purview by this case, and that can't be disputed.”

In the case of ADM Jabalpur v. Shivakant Shukla[11], “As a result of the Supreme Court's investigation, it established that the right to privacy may not be explicitly protected, but it may be implied because of its incorporation in common law.” "Article 21 is not the exclusive repository of the right to personal liberty," Justice Khanna had noted. In addition to common law, statutory law, such as the penal law in force in India, supports the principle that "no one shall be deprived of his life or personal liberty without the authority of laws."Then it was the Maneka Gandhi v. Union of India[12] case a case in which the Supreme Court construed Article 21 broadly. “Natural law, which includes rights to personal life and liberty, was included into Article 21 of the Indian Constitution, as stated by the Supreme Court of India.”

R. Rajagopal v. State of Tamil Nadu[13] one of the earliest instances to illustrate the development and scope of the right to privacy. The supreme court had ruled that “Article 21's guarantee of the right to life and liberty included an implicit right to privacy. Among other things, it acknowledged that a citizen has the right to protect his or her own private, that of his or her family, and the privacy related to marriage, childbearing, and other aspects of family life. Unless given explicit permission, no one is allowed to publish anything about the aforementioned topics, and the right to privacy is both a claim that can be made legally as well as a basic human right.”

Unique Identification Authority of India & Anr. v. Central Bureau of Investigation[14] “As part of an investigation into criminal offences, the Central Bureau of Investigation (CBI) requested access to a massive database amassed by India's Unique Identity Authority (UIA). Supreme Court rules that UIDAI should not be sharing any biometric information that has been granted the Aadhar number without written authorisation from the specific person to any agency or third-party. It was further emphasised that no one should be denied any type of service simply because they lack an Aadhar number, even if they are otherwise qualified or entitled to get it. In order to comply with the Court's immediate interim decision, relevant authorities must change their circulars/forms, etc., to remove the requirement for an Aadhar Number.”

Justice K.S. Puttuswamy (Retd.) & Anr. V. Union Of India & Ors.[15]

A petition challenging the constitutionality of the Indian biometric identity system Aadhar resulted in the decision. As part of a discussion on privacy and the Unique Identity Scheme, this was an instance that was brought up. The issue before the court was whether or not the Constitution guaranteed a right such as the right to privacy. The Attorney General of India, on the other hand, contended that the right to privacy was not guaranteed to Indian individuals as a basic right. When it came time to decide whether or not there was a constitutional right to privacy, the Supreme Court concluded that the issue should be allowed to be addressed by a bigger bench because of the

number of cases where the right to privacy was proclaimed to be a fundamental one. The Court was forced to refer this matter to a larger bench because of this unresolved disagreement.

The unanimous ruling in Justice K.S. Puttuswamy (Retd) vs. Union of India by the Supreme Court of India (SCI) is a stunning victory for privacy. According to an order signed by all nine judges, privacy is protected as an integral aspect of the right to life and liberty under Article 21 and as part of the constitutional freedoms granted by Part III.

Finally, on August 24, 2017, the Supreme Court of India handed down a landmark decision declaring that the right to privacy is a basic right guaranteed by the Indian Constitution. According to the Supreme Court ruling, privacy is derived from the right to life and liberty, which has a long-term impact. In the Puttuswamy vs. Union of India case, the Supreme Court's nine-judge panel ruled that the right to privacy was protected by Article 3 of the Indian Constitution. Aadhar, India's national identity initiative, had been under attack, and the ruling was in response.[16]

Right To Privacy In The Cyber World

It is illegal to hack into someone's private property or steal someone else's intellectual property. IPC does not explicitly mention "the right to privacy" in the Indian constitution, but it is protected by the IPC and other laws.

Computers have created a non-physical terrain known as cyberspace. Citizens (sometimes known as 'netizens') are increasingly turning to the internet to isolate themselves from their friends and family. Some believe that these people are secretive and seek to keep their personal information safe from prying eyes. An individual's privacy can be seriously violated in cyberspace, according to the actual world.

Beginning on October 17, 2000, digital evidence and electronic documents were legally admissible according to the Information Technology Act (hereafter "the Act"). The bill's preamble reads as follows: "An Act to provide legal recognition for transactions carried out through electronic data interchange and other means of electronic communication, commonly referred to as "electronic

commerce," which involve the use of alternatives to paper-based methods of communication and information storage, and to facilitate electronic filing with the Government agencies and further to amend the Indian Penal Code and IPC, the IPC, and IPC."

Additionally, the Act identified a few types of cybercrime and provided sanctions for those offences. Sects. 65-85 of the Act outline the types of cybercrimes that are covered under the law. Under the terms of the law, a sentence of up to three years in jail and a fine of up to $100,000 can be imposed. Additionally, an upper limit of Rs.1,00,000/- to Rs.5,00,000/- has been set. Because the field of cybercrime is constantly growing, more and more crimes arising from infringements of cyberspace are coming to light. Cybercrimes against people and cybercrimes against property are the two most common types of cybercrime.[17]

The right to privacy is a fundamental human right because it establishes a barrier between an individual and the rest of the world. Interference or intrusion in another person's private life is prohibited by the right to privacy. In its legal declarations, the Supreme Court of India has made it plain that privacy is a fundamental right guaranteed by Article 21 of the Indian Constitution.

Article 21 of the Indian constitution now includes the right to privacy. Article 21 of the Indian Constitution states that anyone who commits a cyber crime that affects someone's private property or personal belongings can be prosecuted with violating the constitution and the authorised remedy can be utilised against the accused.

Only a handful of laws govern the internet communications. The Information and Technology Act has already been talked about.. The Indian Telegraph Act, 1883, which oversees the use of wired and wireless telegraphy, telephones, teletype, radio communications, and digital data communications, is another essential piece of legislation. Therefore, it grants the Indian government sole authority and rights to develop and maintain all types of communications networks in Indian territory, as well as to operate and licence them. Law enforcement authorities

can also monitor and intercept communications and tap phone lines if they meet certain conditions stipulated in India's Constitution. On October 1st, 1885, the law went into effect. Since then, a number of revisions have been enacted to keep up with technological advancements.

There are rules in place to prevent service providers from revealing personal information based only on their customers' preferences. Consequently, it is imperative that all network service providers take the required steps to safeguard the confidentiality and security of data transmitted across their networks at all times.

The Hon’ble Supreme Court has also dealt with the right to privacy in the context of interception of phone calls in the case of Amar Singh v. Union of India[18].   

The Supreme Court gave careful consideration to the question of whether the interception of telephonic messages or the tapping of telephonic conversations constitutes a severe breach of an individual's right to private in the case of People’s Union case[19], wherein it was held as under:

"We have no qualms in declaring that the right to privacy is an element of the right to 'life' and 'personal liberty' contained in Article 21 of the Constitution. At the point that the circumstances present a right to privacy, Article 21 comes into play. There is no legal process that may be used to limit the exercise of the aforementioned right.”

“The right to privacy as such has not been established by the Constitution. It may be impossible to provide a legally binding definition of such a vague and morally nebulous idea. The specifics of each individual instance will determine whether or not a claim of privacy invasion may be made. However, the freedom to talk on the phone in one's own home or business without interruption is an example of a legitimate ‘right to privacy’."

There is a tendency for telephone conversations to be private and intimate. Modern man's life would be incomplete without the use of a telephone. Because mobile phones are deemed so essential, an increasing number of individuals keep them in their pockets at all times.

A man's private life would be incomplete without regular phone calls. A person's right to privacy unquestionably extends to private phone conversations at home or at work. Article 21 of the Indian Constitution prohibits the practise of phone-tapping unless it is permitted by law."

The popular messaging service Whatsapp was recently accused of violating people's right to privacy, but the app's developers were able to persuade their customers that all conversations transmitted through it are encrypted and so do not compromise their private.


It is apparent that the right to privacy was never included in the Indian Constitution because it was viewed as an inherent right that a person receives by virtue of his or her birth, and there were no safeguards against its infringement. It took precedents and decisions over the course of time, but the right now holds a special place in the Constitution. Another finding is that people should be better informed about the benefits and drawbacks of using cyberspace. Being aware of the dangers of the internet is essential if you want to conduct yourself in it responsibly. It is important for individuals to take a proactive role in ensuring that their rights to privacy are not infringed upon owing to misunderstanding of the law in this area.


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