Realizing the Power of Privacy by Indira Jaising and Nehmat Kaur

Realizing the Power of Privacy by Indira Jaising and Nehmat Kaur

By Indira Jaising and Nehmat Kaur

 

The universal dignity that extends beyond race, caste, gender, community, and class, but is a shared ideal of having control over one’s ideas or acts is why privacy needs to be protected as a fundamental right. 

The Indian jurisprudence on privacy has evolved from 1954 when an argument for right to privacy was first discussed in the Indian Supreme Court in M.P. Sharma v. Satish Chandra. The Supreme Court in this case, and subsequent cases of Kharak Singh v. State of U.P. and Gobind v. State of Madhya Pradesh resisted to designate privacy as a fundamental right. Although, in Gobind v. State of MP, the four Judge Bench agreed that undue interference in an individual's house, even searches and seizures would violate his Article 21 rights if not authorized with a compelling state interest, but did not agree to right to privacy being a fundamental right.

Subsequent to the Supreme Court holding in Gobind v. State of MP, that assuming privacy is a fundamental right, it could be restricted only with compelling state interest, privacy has been adjudged to have been a part of multiple spheres of an individual’s personality, including the protection of her territorial space and body, control over her personal information, and the decision making power that is dependent on her autonomy. The Supreme Court has upheld the many facets of privacy in the cases of R. Rajagopal v. State of Tamil Nadu, PUCL v. Union of India, and Naz v. NCT of Delhi, Selvi v. State of Karnataka. This journey involves various decisions of the judiciary where the importance of privacy has been discussed in differing contexts, thereby expanding the dimensions of the privacy right of an individual. The most recent judgment of the nine judge bench of the Supreme Court in Justice K.S. Puttaswamy & Ors. v. Union of India & Ors.  not only guaranteed and reassured that privacy is an inherent inalienable fundamental right, but also discussed in much detail its role in ensuring an individual the right to a dignified life that respects her autonomy and liberty. The six separate opinions is an obvious indication that the decision depended on the individual persuasions of individual judges.

Bodily and Spatial Privacy

Privacy has been expanded to include the bodily integrity of an individual, and to protect the control they have on their bodily functions. In the landmark case of Selvi v. State of Karnataka, that held the forcible use of narco-analysis and brain mapping was against personal liberty of an individual, and even voluntarily, the testimony through these methods is inadmissible as evidence. The Supreme Court further upheld a person’s privacy with respect to their mind.

Spatial privacy is one of the earlier components of this right and ensures that “every man’s house is his castle” that should be away from state’s interference. While not agreeing with the formulation that “every man’s house is his castle”, a concept often used to entrench the public private divide and a hands off policy to the concerns of women in the home, the formulation ultimately comes to be recognised in international treaties such International Covenant of Civil and Political Rights as Article 17 that reads as: “1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks.”

The Supreme Court itself in K.S. Puttaswamy recognises the feminist concerns with the doctrine of privacy which could end up being a cover for non interference with domestic violence reinforcing the public private divide. It is therefore necessary to move away from antiquated common law mantras of the home being a mans castle and found the right to privacy firmly on autonomy and dignity and Universal Human Rights for every individual, regardless of gender.

In Justice Chelameswar’s opinion in K.S. Puttaswamy, he states that one of the elements of privacy as being ‘repose’ that includes the right to be away from unwarranted stimuli. Would this perhaps contemplate the future of the right to be forgotten in India? Will this entail the deletion of all data unlawfully collected by internet giants and the State?

Decisional Privacy

The ability of an individual to make autonomous choices without interference of the State is at the core of decisional privacy. This element of privacy gained attention through the celebrated US judgments of Roe v. Wade, and Griswold v. Connecticut when right to make choices regarding their own body- the ability to abort fetuses and access to contraceptives, was upheld by various courts in US. In India, decisional autonomy was argued in the case of Naz v. Delhi NCT when the Delhi High Court discussed the choice of consenting homosexual adults to indulge in sexual activities in private. The autonomy to make decisions regarding one’s own body, is a personal choice that should never be the domain of the state or the government. The sovereignty of the body, lies solely with the individual, and an unwanted intrusion on those actions, and even a fear of such intrusion thereof is a blatant violation of the dignified life guaranteed to her under Article 21. The fear of persecution for engaging in consent based sexual activity by adults in their own house, leads to not only curtailing their freedom to express their sexual orientation, but also reduces her autonomy to make decisions per the will. From this, emerges the facet of decisional privacy.

Autonomy has always been accepted as one of the basic tenets of a dignified living under our constitution. Justice Chandrachud’s words come to mind when he says that privacy includes to be against the tide of conformity, and this is the kind of expression that makes a sustainable democracy.

However, the opposite is equally true, that the fear of persecution and the thought of being under the constant watch, will provide little space for decisional autonomy, thereby curtailing the exercise of freedom of expression, which has from the inception of the Constitution been called as the touchstone of a democracy. Privacy strengthens freedom of expression, which in turn is a core component of functional democracy.

Informational Privacy

Right to privacy also recognizes an individual’s control over her own information; its collection, storage, and disclosure. Justice Kaul articulates this point in his opinion in K.S. Puttaswamy by saying, “it is an individual’s right to control dissemination of his personal information.” The Supreme Court has previously recognized this dimension in the case of R. Rajagopal v. Union of India where it used the phrase “right to be left alone” for the first time while expressing that a person has control over the information they wish to part with, even when contested against freedom of expression. A right to self determination requires a pre requisite of free thought, expression, and can only be actualized if one has the ability to make choices as per her will and autonomy. The decision of Mr. X v. Hospital Z, where the Supreme Court upheld the decision of a medical practitioner to disclose the sensitive health information of an individual to his family members without his consent has attracted much criticism through the years for violating the person’s privacy. Though this case invoked the right to confidentially, it does impact the issue of privacy of an individual, commenting on the judgment, the Supreme Court does put the correctness of the judgment in doubt in that although the latter part of Kharak Singh did not hold privacy to be a constitutional right, it did hold in favour of ‘ordered liberty’ while invalidating the domiciliary visits in Kharak Singh.

Informational privacy has become a supremely important aspect of right to privacy as the overpowering digital revolution enables the pervasive collection and tracking of personal data of individuals on the world wide web. With the Digital India initiative attempting to move governance on a digital medium and provide welfare schemes and benefits through online portals, it is important to safeguard the personal data that is stored of the users, along with delimiting the control the authorities have on its disclosure and use. In a data driven economy, where even democracy is gradually moving onto the digital medium, the accountability of the State needs to be maintained by keeping a system of checks and balances that can be realized only with a comprehensive data protection framework. The concept of informational self determination was argued before the Supreme Court in Binoy Visvam v. Union of India, the case that challenged the mandatory linking of Aadhaar with the PAN, however the Court desisted from deciding on the issues of privacy in that judgment. Self determination implies the autonomy of a citizen to be able to make decisions that impact her lives directly and are in compliance with the law. Informational self determination is a concept that originated in the German Constitutional Court wherein it was rightly highlighted that in the information economy where personal data becomes the currency with which revenue is generated, an individual must have the autonomy to decide how such information about him is used, disseminated, stored, and should have the right to access, amend, and enquire about her personal data.

Liberty, Autonomy, Dignity

Liberty, autonomy, and dignity form an interdependent triad that is impossible to operate without one another, and its origins are grounded firmly under Part III of the Constitution as famously described in Maneka Gandhi v. Union of India as the thread that forms the golden triangle of Articles 14, 19, and 21. The importance of dignity as the primary value underscoring the rights granted under Part III is emphasised by Justice Chandrachud in the Puttaswamy judgment as:

“To live is to live with dignity. The draftsmen of the Constitution defined their vision of the society in which constitutional values would be attained by emphasising, among other freedoms, liberty and dignity. So fundamental is dignity that it permeates the core of the rights guaranteed to the individual by Part III. Dignity is the core which unites the fundamental rights because the fundamental rights seek to achieve for each individual the dignity of existence. Privacy with its attendant values assures dignity to the individual and it is only when life can be enjoyed with dignity can liberty be of true substance. Privacy ensures the fulfilment of dignity and is a core value which the protection of life and liberty is intended to achieve.”

In this judgment, right to privacy has not only been granted the status of a fundamental right as a part of Article 21, but the nine judge constitutional bench has held it to be an inherent inalienable right that is not granted by the State, but is a right by the virtue of being an individual.

Marginalized communities

The importance of privacy as a fundamental right for the vulnerable and marginalized communities cannot be underlined enough, as a breach of their privacy would lead to a further entrenchment of the stigma that may have been perpetrated on them due to their identity. Contributions to this special issue also deal with the exclusion of the marginalised on account of not having Aadhar and its devastating consequences leading to death.

Justice Chandrachud poignantly summed up the current system of information collection, and consequences of the lack of informational privacy in the judgment of K.S. Puttaswamy as, “every transaction of an individual user and every site that she visits, leaves electronic tracks generally without her knowledge. These electronic tracks contain powerful means of information which provide knowledge of the sort of person that the user is and her interests. Individually, these information silos may seem inconsequential. In aggregation, they disclose the nature of the personality: food habits, language, health, hobbies, sexual preferences, friendships, ways of dress and political affiliation.”

Power to the individual over the State and private conglomerates

Information is power, whereas privacy is the power to control spread of information about oneself.  The leverage that the information holder enjoys makes it an unequal relationship, and this relationship becomes even more problematic when the information holder is the State. Therefore, the fundamental right to privacy corrects that unequal balance of power between large conglomerates and the State on the one hand and individuals on the other.

Justice Chandrachud poignantly summed up the current system of information collection, and consequences of the lack of informational privacy in the judgment of K.S. Puttaswamy as, “every transaction of an individual user and every site that she visits, leaves electronic tracks generally without her knowledge. These electronic tracks contain powerful means of information which provide knowledge of the sort of person that the user is and her interests. Individually, these information silos may seem inconsequential. In aggregation, they disclose the nature of the personality: food habits, language, health, hobbies, sexual preferences, friendships, ways of dress and political affiliation

Justice Kaul while enumerating on the extensive amount of data collected by non state entities due to the digital footprints left behind with every click, writes that, “Thus, there is an unprecedented need for regulation regarding the extent to which such information can be stored, processed and used by non-state actors. There is also a need for protection of such information from the State.”  

The Government has appointed a Committee under the leadership of Justice B.N. Srikrshna, to formulate a Data Protection law, (http://meity.gov.in/white-paper-data-protection-framework-india-public-comments-invited) opinions are invited and we are sure that there will be many responses given the active campaigns like Rethink Aadhaar, SpeakForMe, and others.

Many are anticipating that this privacy judgment will have a direct bearing on the petition challenging the validity of the Aadhaar scheme. The mandatory giving up of biometrics, along with its seeding in not only government databases,  access to private entities, the breaking down of the silos between information data bases,  infringes on aspects of decisional as well as informational privacy.

The significance of privacy, and the reason it took nine judges and over 500 pages for the Apex Court to elaborate on this can probably be linked to the dynamic persona of privacy, the malleability with which it extends to every idea, sphere, and act of an individual, and the power to control the spread of such information. Such universal dignity that extends beyond race, caste, gender, community, and class, but is a shared ideal of having control over such ideas or acts is why privacy needs to be protected as a fundamental right. This understanding is important to break barriers that attempt to portray privacy as an elitist concept, when privacy can be the hesitation of talking about a secret in public, and is also the removal of cookies from your browser after you’ve shopped online.

One of our authors who wrote earlier has pointed to the security concerns in the Aadhaar design, which becomes a honeypot for unethical hackers world wide, as a central database makes it more prone and vulnerable to attacks.

We acknowledge this as the third critical moment in Constitution making, the first being the one given to us, the second being the Kesavananda Bharati judgement, which gave us the basic inalienable features of the Constitution, and third being the Puttaswamy judgement,  which restored to us our dignity and control over the State.

Indira Jaising is Senior Advocate, Supreme Court of India, and Founder-Trustee, Lawyers Collective

Nehmat Kaur is a Lawyer working at Lawyers Collective

Image credit: Jorg Kantel/Flickr CC BY-NC-ND 2.0

Disclaimer:"The views in the article are of the author and do not represent the views of the Invisible Lawyer"

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