This Article is Written by Akansha Sharma.
Overview
When India became free from British rule in 1947, the Constitution became the Guardian of the Citizens of India. The Constitution of India is the Supreme law of this country. Constitution makers ensured that what India and its citizens had gone through, must be rewarded with great freedom and expression in protected rights. Such kind of the Constitution of India, there are certain rights which are provided to all the citizens of India as their Fundamental Rights. These rights work as a shield and a strength to people as Citizens of India. There are total 6 Fundamental Rights such as :
- Article 14 : Right to Equality
- Article 15: Prohibition of discrimination based on religion, race, caste, sex, or place of birth.
- Article 16 : Equal opportunity in Public Employment
- Article 17 : Abolishment of Untouchability
- Abolition of titles ( except Military and Academic )
- Article 19 : Right to freedom.
The Golden triangle in the Constitution of India is said to be made with 3 Articles, Article 14 Right to Equality, Article 19 Right to Freedom of speech and expression, and Article 21 Right of Life and Personal Liberty . The umbrella for Rights is given in such a way that it empowers the citizens of India to be free with using their rights without any fear of any arbitrary action against them. As the Pillar of Constitution, Judiciary has played a prominent role in Continuously interpreting the Constitutional articles from time to time and settled some of very prominent precedents regarding Freedom and Expression.
Article 19: The Right to Freedom
This is the most important and critical article under the constitution as it ensures the freedom of speech and expression to all the citizens of India along with some restrictions for the welfare and harmony. This article provides rights under parts from (a) to (g) . Article 19 provides protection to Freedom of speech and comes with a package of other rights which are also protected under this very article 19. The rights are as follows :
19 (a) – To freedom of speech and expression
19 (b) -To assemble Peacefully and Without Arms
19(c) – To form association or Unions
19(d) – To move out freely throughout the territory of Union of India 19(e) – To reside and settle in any part of territory of India
19(f)- Omitted
19(g)- To practice any profession or to carry on any occupation, trade or Business
As this right provides a bouquet of Rights which are Granted and protected by the constitution of India, it ensures that the very soul of India is not strangled due to changing dynamics of power and politics. To ensure the same Judiciary , has time to time expanded the interpretation of these rights.
Article 21
The Right to privacy has been interpreted by the Supreme court of India. The power of the Supreme court to lay down laws under Article 141 which declares that Decision declared by the Supreme court to be treated as Law for all.
The Right to Privacy is a fundamental right and has been declared by the Apex court in case of
Justice (Retd) K.S. Puttaswamy v. Union of India (2017) – Declared privacy a fundamental right. This case is majorly known as the aadhaar case. In this case, the bench of 9 Judges, passed an Unanimous decision by declaring Right to Privacy as a Fundamental Right under article 21.The judgement challenged the Adhaar process and Privacy issues, The Supreme court held that Aadhaar is constitutional but has limited its usage . This was an Honourable moment of Human Right because in previous judgements and case laws like Kharak Singh vs . State of UP : Supreme court had denied the Right to Privacy as a fundamental right . This judgement was overruled in 2017 by the Apex court and given new safe judgements to ensure Constitutional Supremacy .
In the case of Rajagopal v. State of Tamil Nadu (1994) – The effect brought Strengthened privacy in relation to freedom of speech and media rights. Media being the Fourth Pillar in the Democracy of India, Must be free and Unbiased.
Privacy is ensured to each and every citizen of India as a fundamental right but then, there are restrictions over those rights too, laid under 19(2) to 19(6) . Though, by the Order of The Supreme Court Of India, there has to be non arbitrary restrictions, because arbitrary restrictions will curtail the very essence of fundamental right so it is very important to test the nature of restrictions and so far, it has been found that those restrictions like striking down Section 66A of the IT Act for violating free speech in the case of Shreya Singhal vs. Union of India (2015).
The liberty and freedom of a person is guaranteed by the constitution of india. This article comes with its own restrictions such as :
Article 21 requires following conditions to be fulfilled before a person is deprived of the property :
- There must be a valid law
- The law must provide a procedure
- The procedure must be just, fair and reasonable
- The law must satisfy the requirements of Article 14 and 19 , it must be reasonable.
such kind of test to be done before depriving a person from its liberty as laid down under the constitution.
The Right to travel abroad also comes under the Fundamental Right of Article 19(1)(g) as well as Article 21 . There are some prominent cases which changed the dynamics and upheld the supremacy of Constitution and Fundamental rights such as
Satwant singh v. Assistant passport officer, New Delhi: In this case the petitioner who was an Indian citizen had to travel abroad frequently for business purposes. The government ordered him to surrender his passport. He challenged the action of the government on the ground that it was violative of his fundamental rights under Article 21 .
The Supreme Court Held – the right to travel abroad is a part of a person’s personal liberty within the meaning of Article 21 and, therefore, no person can be deprived of his right to travel abroad except according to procedure established by law . In Fact there is no such law on which the government could justify its action . The expression ‘liberty’ in article 21 is a comprehensive term . ‘Personal Liberty’ in article 21 takes the right of locomotion -To go where and when one pleases , and the right to travel abroad is included in it . It only excludes the ingredients of liberty Mentioned in Article 19.
In other privacy concerns as well, the rights of personal liberty have been upheld by Courts. Such a case is The Virginity test and myth which persists in Indian society, the ruling regarding the same has Upgraded and changed the paradigms of conservative approach, one of such a case was :
Surjit Singh Thind v. Kanwaljit Kaur : In this case the wife had filed the petition to nullify the marriage on ground that marriage never consummated and husband is impotent. The husband took the defence that marriage was consummated and he was not impotent . In defence to prove that the wife is not a virgin, the husband filed an application for the Medical Examination of women’s virginity. The court held that – allowing the medical examination of a woman’s virginity violates her right of privacy under article 21 of the constitution. Such an order would amount to roving enquiry against a female who is vulnerable even otherwise . The virginity test can not constitute the sole basis to prove the consummation of marriage .
Newly Passed Privacy Laws In India
However, it is still seen that the issues concerning Privacy and Law and order still persists . The regulations made by Legislation regarding privacy are not just confusing but also, very much authoritatively dependent on the State. The privacy laws came into critical view when the Launch of Data Protection Laws (2023) came into existence. This law came into existence with liability for Data protection but still, having people concerned about the State having all the authority over all kinds of Personal Data of Citizens and their power to access it .The data theft is prominent and even breach can be done by higher means and hacking cases already prevalent in today’s times. People of a country being obliged to follow the law and delivering their data to the government makes an arbitrary practice regarding personal freedom and expression, which needs to be protected .The misuse of such law could be prominent in future. Hence, more amended and well stated boundary laws should be made to maintain the integrity of Privacy as a Fundamental Right and not just a mere Principle in Constitution.
Under the DPDPA, The Data Holder to be known as Data Principle, will have the right to access, correct, erase and even withdraw their consent about their data sharing , except some exceptions.
Some data security measures over data processors who will be having a hold on data has been made responsible regarding the usage and keeping of data, the data processors must be deleting the data after it has served its purpose,which means no more unnecessary keeping of data and information.
To globalise the law, same as the European Union’s General Data Protection Regulation, the ACT defines data fiduciaries which determines the means and purposes of processing personal data controllers.
Under the same Data Protection and Privacy laws, the Government has decided to make a Data protection board which will adjudicate the violations and non compliance with this act .
Similarly the conplaxoties of this act with existing laws like Right to information act , 2005 . The DPDPA proposes amendments under section 8( 1) (j) of the right to information act , which could exempt the disclosure of personal information of public officials , even if it serves a larger public interest. For example, you might not be able to ask about a service record or enquiry pending upon a public officer because the act may call it personal information which is not entitled to be told in public. It hurts not just the public interest but also, the very purpose of RTI Act, to know and to have a notice of things which goes around this democratic republic.
Where such laws are made which are already in contradiction with present law, the suggestion of change must be taken on a serious note because it is a matter of right and the public in a ever growing society we must not forget the roots of this country’s culture which exists in the Preamble of the constitution of India and states the republic, democratic and secularism as the soul of this Union of India.
References
- The Constitution of India
- Constitutional law of India: JN Pandey
Judgements
- Justice (Retd) K.S. Puttaswamy v. Union of India (2017) – Declared privacy a fundamental right.
- Kharak Singh vs . State of UP
- Rajagopal v. State of Tamil Nadu (1994)
- Shreya Singhal vs. Union of India (2015).
- Satwant singh v. Assistant passport officer, New Delhi
- Surjit Singh Thind v. Kanwaljit Kaur
