Right To Privacy A Fundamental Right: Supreme Court Of India

Long waiting and huge suspense over what the judgment of Supreme Court will deliver is finally over. The curtains have finally been opened! To start with, the Supreme Court on August 24 has finally declared forthright that the right to privacy a fundamental right and this has brought smiles on the face of billions of people all over the country. A majority of Indians, particularly younger citizens, had taken the right to privacy for granted. The government’s extreme stand, that there was no fundamental right of privacy, compelled the Supreme Court to clarify years of slightly uncertain case-law on this point. The decision in Justice KS Puttaswamy (retd) and Anr versus Union of India and Anr has enormous implications. The court has, with broad brushstrokes, enhanced and highlighted the right. Crucially, it has indicated that the contours of privacy mentioned in the judgment are not limitations to the right but foundations over which it will develop over time.”

There is no definite legal definition of privacy. It can be interpreted to mean various things like bodily integrity, protection from state surveillance, personal autonomy, dignity, confidentiality etc. Briefly stated, it has to be determined separately from case to case. It is not explicitly mentioned in Constitution but deemed to be included in Article 21. Privacy is, as Brandeis and Warren rightly termed in 1894 as “the right most valued by civilized men”, “the right to be left alone”. But in this age of Digital and Internet we see our privacy being invaded repeatedly!

It must be recalled here that even though the two judgments of MP Sharma case and Kharak Singh case had declared that right to privacy was protected by Article 21, a nine-Judge Bench ruling was an imperative in order to overrule the eight-Judge Bench ruling operating in this field. It also must be recalled here that the Centre had exclusively relied on MP Sharma and Kharak Singh case to deny the existence of right to privacy as a fundamental right to pursue the Aadhaar scheme. This alone explains why the former Attorney General Mukul Rohatgi very strongly feels that Centre has lost this case!

Before discussing the judgment threadbare, it is imperative to know the privacy laws of some major countries. Let us discuss them one by one. They are as follows: –

* In USA privacy is not explicitly cited as a right in the US Constitution but it is indirectly safeguarded through the Fourth Amendment against unwarranted search or seizure, and Fourteenth Amendment on due process and so on. Privacy protected by state and sector-specific laws for health information, financial information, children-specific data etc. The Privacy Act of 1974 spells out terms for how records of personal data can be used by federal agencies. US citizens are entitled to take recourse under tort law and can claim damages if their privacy is invaded through electronic or physical snooping into private spaces, public disclosure of private information or appropriation of one’s name or likeness.

* In UK, privacy law has evolved over the years, but in indirect and piecemeal manner. There is a law of trespass on one’s bodily or physical property. Breach of confidence principles have been used to protect commercial information and, to a lesser extent, personal information. UK’s data protection law requires fair processing of personal data and transparency about the purpose of collection along with informed consent. After Brexit, data protection laws are all set to be overhauled again exhaustively.

* Canadian privacy law has evolved over the years from common law, federal and provincial-level statutes, and the Canadian Charter of rights and Freedoms. Currently it has two federal privacy laws, one for the state’s handling of personal information and another for the private sector. Also, we see how provinces have their own legislation, and sectors like bank and credit reporting agencies are governed by their own specific laws.

* Iceland like Switzerland has a secure strongbox for information guarded by the tightest privacy laws in the world. It has adopted the EU’s privacy regulations. It also hosts data centres to store the world’s information safely and several encrypted companies operate out of Iceland.

* In Spain privacy is both a fundamental right under the European Union charter and a strong cultural norm. Citizens have a great degree of control over their own data and can ask for irrelevant information to be removed. There is a formal ‘right to be forgotten’. Businesses have to inform regulators within three days in case of a data breach. Personal data protection is a constitutional right and anyone seeking to collect such data must provide users with “fair processing information”, including their own identity, address, the reason for seeking the data, legal right of the user, whether participation is voluntary or mandatory and the consequences of not parting with the data.

* Singapore passed a data privacy law in 2016 that protects all the personal data ten years after a person’s death.

* The 27-nation EU directive, passed in 1995, restricts the use, sharing, storing and collecting of personal data.

August 24: Supreme Court declares right to privacy as fundamental right that is intrinsic to life and liberty under Part III of the Constitution.

In a session that lasted barely five minutes, Chief Justice JS Khehar read out the unanimous operative part of the verdict of the nine-Judge Bench: “The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.”  There can be no denying it.

Let me also bring out here that the huge ramifications of the landmark judgment which one Judge said “governs the lives of 125 crore citizens of this country” were woven into the landmark judgment which ran into 574 pages! Justice Rohinton Nariman who too was among the 9-Judges who delivered  this landmark verdict said that, “The judgment must be interpreted to respond to the changing needs of society at different points in time.” The top court also ruled that like other fundamental rights, the right to privacy was not absolute and any encroachment would have to withstand the touchstone of permissible restrictions.

In other words, the Bench also said this right will not be ‘absolute’ as it can be curtailed by the State only by a law which is fair, just and reasonable. With the right to privacy issue being finally settled, a five-Judge Bench of the Supreme Court that has been hearing the arguments since 2015 will now test the validity of Aadhaar as per the original petition because the court did not directly address the Aadhaar issue. The Government argued that the Constitution does not guarantee individual privacy. The petitioners argued that enforcing the use of Aadhaar is infringement of privacy.

To be sure, the lead judgment penned by Justice DY Chandrachud for himself, the CJI JS Khehar, Justices RK Agrawal and SA Nazeer, however, asked the government to examine and put in place a “robust regime” for data protection in the modern era. The top court has certainly given a small ray of hope to the government whose Aadhaar scheme has come under intense scrutiny over privacy infringements. It said that, “We commend to the Union Government the need to examine and put into place a robust regime for data protection.”

To put things in perspective, the landmark judgment said that privacy included at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. It was also made clear in the judgment that, “Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognizes the ability of the individual to control vital aspects of his or her life.” It said personal choices governing a way of life are intrinsic to privacy. It also underscored that, “Privacy protects heterogeneity and recognizes the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place.”

As things stand, it is being widely anticipated that the landmark judgment by the Supreme Court declaring right to privacy as a fundamental right might open the floodgates for a litigation explosion. Under the new regime even if true ‘salacious’ details of celebrities and other eminent personalities are published, they will now have the right to sue publications and individuals for violating their right to privacy. By linking individual dignity with privacy, the Apex Court made it clear that, “Privacy protects the individual from the searching glare of publicity in matters which are personal to his or her life.”

Going forward, Justice DY Chandrachud who made this point, explained that privacy attaches to the individual irrespective of whether he is in his intimate, private or public domain. His judgment was supported by CJI JS Khehar, Justices RK Agrawal and S Abdul Nazeer. Justice SK Kaul who supported Justice Chandrachud said, “There is no justification for making all truthful information available to the public. The public does not have an interest in knowing all information that is true. Which celebrity has had sexual relationships with whom might be of interest to the public but has no element of public interest and may therefore be a breach of privacy. Thus, truthful information that breaches privacy may also require protection.” He accepted this may give rise to a flurry of litigations but added that this could never be a cause for not recognising privacy as a fundamental right. Absolutely right!

Elaborating further, Justice SA Bobde, in his separate decision said, “The scope and ambit of a constitutional protection of privacy can only be revealed to us on a case by case basis.” Justice J Chelameswar, in his concurring but separate opinion, laid down possible areas that could give rise to legal proceedings over privacy rights. These include telephone tappings, internet hacking by State, hacking of personal data, and collection of biometric data by Union of India under the Aadhaar scheme.

He further said that, “The right to privacy was very much part of the original intent of the framers of the Constitution, and privacy is key to freedom of thought and the right to think.” He also noted that, “Privacy is nothing but a form of dignity, which itself is a subset of liberty. Thus, from the one great tree, there are branches, and from these branches there are sub-branches and leaves. Every one of these leaves are rights, all tracing back to the tree of justice. They are all equally important and of equal need in the great social order.”

He also said that Facebook, Uber need to be regulated to protect privacy. He said non-state actors needed to be regulated to protect the rights of citizens in the digital age and they should not be allowed to exercise control over people like “big brother”. Justice Kaul also pointed out that, “We are in an information age. With the growth and development of technology, more information is now easily available. The information explosion has manifold advantages but also some disadvantages. The access to information, which an individual may not want to give, needs the protection of privacy. The right to privacy is claimed qua the state and non-state actors. Recognition and enforcement of claims qua non-state actors may require legislative intervention by the state. Digital footprints and extensive data can be analysed computationally to reveal patterns, trends, and associations, especially relating to human behaviour and interactions and, hence, is valuable information. This is the age of big data… A large number of people would like to keep such search history private, but it rarely remains private, but it rarely remains private, and is collected, sold and analysed for purposes such as targeted advertising.”

Justice Kaul further goes on to say that, “Uber knows our whereabouts and the places we frequent. Facebook at the least, knows who we are friends with. Alibaba knows our shopping habits. Airbnb knows where we are travelling to. Social network providers, search engines, email service providers, messaging applications are all further examples of non-state actors that have extensive knowledge of our movements, financial transactions, conversations and shopping habits. As we move towards becoming a digital economy and increase our reliance on internet based services, we are creating deeper and deeper digital footprints.”

Be it noted, Justice Chandrachud raised the other issue of balancing data regulation on internet with individual privacy. He said that, “Privacy concerns are seriously an issue in the age of information. Modern day apps and online transactions profile customer preferences, without users consenting to the same.” He further added: “We commend to the Union Government the need to examine and put in place a robust regime for data protection. The creation of such a regime requires careful and sensitive balance between individual interest and legitimate concern of the State.” He also said that, “Privacy is a concomitant of the right of the individual to exercise control over his or her personality. Natural rights (like privacy) are inalienable because they are inseparable from the human personality. The right to privacy has been traced in the decisions, which have been rendered over more than four decades to the guarantee of life and personal liberty in Article 21.”

On a concluding note, it must be reiterated that right to privacy cannot be curtailed or abrogated by merely enacting a statute but can be done by only a constitutional amendment after complying with certain constitutional prerequisites. The right to privacy includes the right to be left alone. Also, we must remember that right to privacy like other fundamental rights cannot be absolute and is subject to reasonable restrictions. It was rightly held in this landmark judgment that, “Privacy is not an absolute right, but any invasion must be based on legality, need and proportionality.”

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