Right to privacy in India UPSC NOTE

 Issue of executive power and its potential conflict with the right to privacy in India.

  • In August 2017, a nine-judge Bench of the Supreme Court of India, in Justice K.S. Puttaswamy vs Union of India, declared to rousing acclaim that the Constitution of India guaranteed to persons, a fundamental right to privacy. 

  • It was widely believed that the verdict would help usher our civil rights jurisprudence into a new era, where our most cherished liberties are preserved and protected against arbitrary and whimsical governmental excesses.

  • The six separate judgments rendered in the case spoke through a common voice

  • The individual, the verdict affirmed, would be placed at the heart of our constitutional discourse and any state action impinging on our privacy, or indeed on any allied right, would be subject to the most piercing of scrutiny.

  • A notable example of this feature is the use of Section 132 of the Income Tax Act, 1961.

  • Which grants to the taxman, untrammelled police power to forcibly search persons and their properties, and seize goods found during such a search, including money, bullion, etc.

  • While this measure can be undertaken only where the authorities have, among other things, a “reason to believe” that a person has failed to disclose his income properly, the purported foundation underlying a search is subject to little safeguards under the statute.

  • The Gujarat High Court questioned income-tax authorities on a raid conducted on a lawyer, where he and his family members, according to his counsel, were kept in virtual detention for days together.

  • We do not yet know the full facts here, and we perhaps would not until the culmination of the hearings before the court, but it is scarcely

uncommon for actions undertaken through the Income-Tax Act to involve detention of individuals for days on end

  • When these moves are eventually challenged before the courts — there is no prior judicial warrant that the statute prescribes — the invariable result is an imprimatur to the search, with the judiciary yielding to executive wisdom.

  • In its original colonial form, India’s income-tax law, as framed under a 1922 legislation, did not provide the revenue with a power to search and seize. 

  • What was available was only authority that was otherwise granted to civil courts — powers

  • involving discovery, inspection, examination of witnesses and so forth

  • In 1947, the Union government sought to rectify this through the enactment of the Taxation on Income (Investigation Commission) Act. 

  • But this law was struck down by the Supreme Court in Suraj Mall Mohta vs A.V. Visvanatha Sastri (1954) on the ground that it treated a certain class of assesses differently from others, thereby violating the guarantee of equal treatment contained in Article 14 of the Constitution.

Judgment in Justice K.S. Puttaswamy vs Union of India 

  • As Puttaswamy points out, the judges in M.P. Sharma did not have the benefit of the various interpretive devices.

  • The different rights guaranteed in the Constitution are no longer meant to be seen as occupying separate silos

  • Thus, the right to privacy is intrinsic to the right to personal liberty that Article 21 guarantees.

  • Today, should the judgment in Puttaswamy be read properly, the state’s power to search and seize cannot be viewed as a simple tool of social security. 

  • It would represent instead a rule that is subject to the doctrine of proportionality

  • That is, for it to remain lawful, its use must be intended for a legitimate aim.

  • The measure as adopted must be rationally connected to its objective.

  • No alternative and less intrusive means must be available to attain the same purpose.

  • A balance must be struck between the means chosen and the right that is violated.



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Learnerz IAS | Concept oriented UPSC Classes in Malayalam: Right to privacy in India UPSC NOTE
Right to privacy in India UPSC NOTE
Learnerz IAS | Concept oriented UPSC Classes in Malayalam
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