Research Paper written by Anubhav Khamroi and Anujay Shrivastava published in Indian Constitutional Law Review, Quarterly Law Journal, 2nd Edition - Indian Constitutional Law Review

June 06, 2017 | Anubhav Khamroi and Anujay Shrivastava

Abstract:

 

“Privacy” is one of the most nebulous terms our society has ever chanced upon. In the recent years, there have been debates on Right to Privacy, its safeguards, reasonable restrictions against this right, various positions and non-recognition of this right by some courts, and the ongoing debate on the existence of a constitutional Right to Privacy. Many Indian jurists have raised the question that – “While there is a right to life, is there a right to privacy?” This raises a very difficult conundrum for constitutional jurists that while one has the right to life, does that also entail the right to enjoy a life of their own choice, devoid of any public scrutiny. There is no clear understanding of the different paradigms of the right to privacy, and there exists a lack of a theoretical framework to help us in this respect. This paper tries to draw out such a theoretical framework by identifying the three paradigms of privacy rights or the “Triangle of Privacy” - Zonal, Rational and Decisional. Further, the authors have also tried to deploy the “integral part test”, derived from Maneka Gandhi decision, to establish the relationship between the right to personal liberty u/a 21 and right to privacy. It is contended that at the heart of liberty is the right to define one's own concept of existence and thus, “privacy” is of the same basic nature and character as “personal liberty”. Finally, the paper calls for a constitutional amendment by the parliament adopting the judicially carved out right to privacy as a fundamental right under Part III of the Indian Constitution.