Privacy: A Notion too Intrinsic

Posted by siddharth sharma
August 11, 2017

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“Those who can give up essential liberty for obtaining a little temporary security, deserves neither security nor liberty” – Benjamin Franklin


In a society like ours, where the most individual of decisions like marriage and child bearing are being taken under societal or family pressures, it surely makes privacy an alien concept. Before elucidating on the Right to Privacy (RTP), let me first define the word “Privacy”. It is a state of being let alone, or away from other people’s attention. It shall not be taken at par or confused with the word ‘secrecy’. Many a times, the government or even common people say that if there is nothing to hide, why to worry about privacy. They cannot be more wrong. I mean to take an example, we all know that we have our private parts in our body, so there shall be no need to hide them, yet we wear clothes. Another example would be like we all know a newly married couple will engage in copulation, so there shall be no privacy. And for God’s sake, why is there the concept of Private Property?? Are houses built as abodes of  privacy, or because of secret missions of national security?? Why are there exclusive private members’ clubs?? For an ephemeral space to be left alone or as dens of terrorism?? These examples goes on to show that privacy, as opposed to secrecy is too intrinsic for human existence. Also, it proves that we have climbed high the civilizational ladder, where in apart from being social animals, we also possess private desires.

 Presently, the discussion has been triggered by the government’s act of making the Aadhar mandatory for the people in availing of public services of any kind. This act of imposition has magnified the larger issue of privacy, which has consequences beyond Aadhar. For this particular reason the Supreme Court (SC) has constituted a ‘9 judges bench’ to decide into the larger issue of privacy and stating that individual cases like the Aadhar will be dealt with separately on its own merits. However, the privacy verdict will have significant impact on it.

To be clear at the outset, the word ‘privacy’ is mentioned nowhere explicitly in the Constitution. This is the basic argument being put forth by the government that our Constitution makers deliberately kept it out of scope for necessary reasons. However, in today’s day and age, this argument seems anachronistic as the Constitution has evolved and travelled a great distance from its original form.

With more than a hundred amendments and with the doctrines of “basic structure” and “judicial review” well intact, we can well dive into the analysis of the issue. The Centre argued in the court that privacy was discarded by the SC in two very early cases ‘M P Sharma and others Vs Satish Chandra, 1954’ by a majority decision of the eight  judges bench and ‘Kharak Singh Vs State of Uttar Pradesh, 1962’ by a majority decision of the six judges bench. It is pertinent to note here that both these decisions were majority decisions and not unanimous ones. Dissenting voices were very much there. For instance, Justice Subbarao (a member of the bench) said in the Kharak Singh case that even though the right to privacy was not expressly recognized as a fundamental right, it was an essential ingredient of personal liberty under Article 21. He also held all surveillance measures to be unconstitutional.

The current petitioners of the RTP on the other hand, have replied by stating that those were narrow and pedantic views taken by the SC. It is noteworthy here that the jurisprudence of the Supreme Court broadened a lot since the 1970s, especially after the “Maneka Gandhi Case” of 1978, where in it was established that Articles 14, 19 and 21 ran in conjunction to each other through a golden thread of  the principles of natural justice and due process of law. The landmark SC Case of “Kesavananda Bharati Vs State of Kerela, 1973” was a major paradigm shift in the jurisprudential history of this country, where in the principle of “Basic Structure” was introduced for the first time. It was evidenced ever since by numerous judgements in favour of the RTP, most prominently in the SC Case Unni Krishnan Vs State of Andhra Pradesh, 1993, where in it was mentioned that Right to Privacy is to be considered under Article 21 of Right to Life and personal liberty, which is considered a part of the basic structure of the Constitution. The only hindrance till now was the size of the bench in all subsequent cases post M P Sharma and Kharak Singh. This issue is being taken care of now in the current hearing, where a larger bench of nine judges has been constituted.

Despite the lack of Constitutional definition of privacy, we do have global precedents. Like the Article 12 of the Declaration of  Human Rights, Article 17 of International Covenant of Civil and Political Rights, 1966 which India ratified on April 10, 1979 without any reservation. Also, Article 7 and 8 of the Charter of Fundamental Rights of the European Union, 2012 recognises the RTP in a very broad manner. Article 8 particularly speaks about data protection and consent of the person and institutional backing for any action taken thereof. As far back as in 1890, two legal scholars from Harvard Law, Warren and Brandeis wrote in the Harvard Law Review (then only three years old) about the intrinsic nature of privacy to human existence.

In the light of things, the government has begun to concede grounds. It is now saying that RTP may be fundamental, but not absolute. Well, but then no rights are absolute. Earlier, the attorney from the Government side was considering Privacy to be a common law right and not a Constitutional right (which by the way, was well established even in the Kharak Singh Case). But, in today’s day and age where it is said that “Data is the New Oil”(quoted by Clive Humbey), it becomes pertinent to explicitly mention the Right to Privacy to be a fundamental right. For then, it will have the backing of the Constitutional remedies of “writs” under Article 32. The victim of infringement by the State will then not have to face the lengthy procedure of justice and daily hustle bustle from  the lowest to the highest strands of the judiciary. Frankly, it will reduce the burden of the judiciary significantly, which is already over burdened by cases. It will also go a long way in restraining the State authorities from surveiling at will and to go through the ‘due process of law’.  

As for the argument by the Attorney General, regarding the desire of the Constitution makers, they clearly stated that the Constitution is a living document, flexible in nature, and there shall be enough scope to amend it with the demands of changing times. Else, there wouldn’t have been article 368 in place.

 These are the times of Big Data. Large private corporations in the digital sector already possesses a lot of personal data. They do influence our lives. But, even advertisers try to do the same, to borrow the term from Noam Chomsky “manufacturing consent”.  Just imagine what will happen when the might of the state will be behind us. Internet-of-things and artificial intelligence are knocking at the door. Without proper backup of a strong “data protection law” and preemptive strike by the Supreme Court, the Frankenstein’s Monster will devour us all. In the demand of current times, it has become imperative to explicitly define RTP as a Fundamental Right, with reasonable restrictions and scope of evolution for the future. Also, ideals in our Preamble like liberty, freedom, justice cannot be enjoyed without privacy. As a result, the very spirit of the Constitution will be defeated. However, proper codification and contours of the law so to be formed from this right shall be well defined along with the back-up of proper institutional mechanism which is of utmost importance to give spine to the law. Also, it is pertinent to note here that the chief architect of the Aadhar project, Mr Nandan Nilekani is himself a prime advocate of a strong data protection law.

The concept of “Nanny State” in itself is distasteful in the first place. When it takes the dangerous turn to become a “Frankenstein State”, alarm bells must ring, civil society must wake up and the whistle must be blown.

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