Right to Privacy and Rule of Law in India

Abstract

The term “Privacy” is used frequently in ordinary language as well as in philosophical, political and legal discussions, yet there is no single definition or analysis or meaning of the term that is comprehensive to give the full idea of privacy. The concept of privacy has broad historical roots in sociological and anthropological discussions about how extensively it is valued and preserved in various cultures. One of the most cherished human rights is right to privacy. It is a fundamental human right, enshrined in numerous international human rights instruments. It is central to the protection of human dignity and forms the basis of any democratic society. In general parlance privacy is the ability of an individual or group to seclude them or information about themselves and thereby reveal them selectively. Privacy is sometimes related to anonymity, the wish to remain unnoticed or unidentified in the public realm. It is right to be let alone. It’s a negative right imposing negative duty on the rest of the world. In the context of India the position of law on right to privacy was clarified by Supreme Court in Justice K Puttaswamy v. Union of India, here court held that privacy is a constitutionally protected right which emerges, primarily, from Article 21 of the Constitution. However, this is not an absolute right but interference must meet the three fold requirement of (i) Legality; (ii) the need for a legitimate aim and (iii) proportionality. Mean to say that right to privacy shall be asserted and enjoyed in accordance with rule of law. We can define the society of law, or the rule of law, as an arrangement in which the individual is able to plan his own life by adhering to rules by which he will avoid all penalties enforced by law. Such a definition entails several assumptions. It assumes generality that rules lay down general standards of conduct for all citizens equally. It assumes that the rules will be stated with sufficient clarity, that there is little or no question what forms of behavior are permitted or prohibited by the rule. It assumes that the rules are coherent, that is, that there is an established hierarchy to determine which rules govern in cases of conflict and that there are not conflicts in the rules governing the same situations. It assumes that the rules are backed by authoritative enforcement, that there is governmental structure responsible for determining cases of conflict under the rules. In the present paper the author intends to explain the relation between Right to Privacy and Rule of Law. Further effort is made to explain how realization of right to privacy in India is difficult in the absence of certain basic aspects of rule of law in relation to right to privacy. Also it is emphsised that absence of certain aspects of rule of law vis-à-vis right to privacy strikes at constitutionalism.