The Right to Privacy – An Anachronism of Democracy

The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury ” – Samuel Warren and Louis D. Brandeis, The Right To Privacy, 4 Harvard Law Review 193 (1890).

 

The right to privacy is a fundamental tenet of an empowered, dynamic society. It is essentially a tool to ensure the safety and security of an individual’s personal space in his interaction with not only the general public but also the State. It is within this realm of privacy that the individual and his rights take a front seat to the interest of the State and its overbearing hand of governance. It thus acts as a safety valve; providing individuals with a sacred space within which their interactions in their personal capacity have no bearing on their life in the public sphere. The preservation of the individual sphere is incredibly important as it ensures a greater likelihood of individual engagement with the State for the common fulfillment of public goals. It is in this regard that the right to privacy, one of the last sustaining rights that an individual holds against a larger State interest, ought to be protected by the law.

There are numerous dimensions to the idea of the right to privacy. These include the privacy of person, privacy of communication, personal privacy and the privacy of personal data [1] The right to privacy of communication vests within individuals the right to communicate by any means without having their phones tapped, electronic modes of communication brought under surveillance and the consequent use of their personal information on public platforms.

The Supreme Court of India has come to the rescue of the common citizen, time and again by construing “right to privacy” as a part of the Fundamental Right to “protection of life and personal liberty” under Article 21 of the Constitution, which states “No person shall be deprived of his life or personal liberty except according to procedures established by law.” This has been reflected in the adjudicatory jurisprudence of the constitutional courts in the country. However, there exists no constitutional remedy to redress the breach of privacy by a non-governmental actor, except under tortuous liability. The third draft of The Privacy Bill of 2011, still under the aegis of the Law Ministry, seeks to address this lacuna in the law. The capacity of the government to use the personal data of individuals for larger interests of national security or socio-economic policies is still under extensive scrutiny. It is in this regard that there have been a timeline of cases that attempt to delimit this capacity and define a threshold for permissible surveillance if a sufficient need has been established.

 

In the case of M.P Sharma v. Satish Chandra [2], the Supreme Court held that the right to privacy does not fall under the protective pall of Article 21 in the determination of the legitimacy of search and seizure surveillances conducted by the police. This view was reiterated in the case of Kharak Singh v. State of Punjab [3], where the Supreme Court concluded that an attempt to observe the movements of an individual of interest is not a violation of a fundamental right as it is only a manner in which the privacy of an individual may have been breached and there is no actual breach of such privacy. In a subsequent ruling however, there was an unprecedented shift of stance wherein the court assessed the primary intention of the Constitution as the creation of an environment that was conducive to the pursuit of happiness of individuals. The individual sphere of personal space was deemed to be paramount to this guarantee of physical and mental privacy.[4]

The case of Govind v. State of M.P [5] was instrumental in setting a precedent for the further course of the right to privacy within the ambit of constitutional guardianship. In a subsequent ruling, Justice Jeevan Reddy established the right to privacy as implicit within the right to life and liberty guaranteed under Article 21. He further enumerated the components of privacy as varying from the basic privacy of one’s personal life to family, marriage, procreation, motherhood, child bearing and education. These remain sacred within the protection of the individual sphere and no one can elicit information concerning such matters without the consent of the concerned party.[6]

In the case of People’s Union for Civil Liberties (PUCL) v. Union of India [7], the Supreme Court held that the telephone tapping by Government under S. 5(2) of Telegraph Act, 1885 amounts to infraction of Article 21 of the Constitution of India. Right to privacy is a part of the right to “life” and “personal liberty” enshrined under Article 21 of the Constitution. The said right cannot be curtailed “except according to procedure established by law”.

Thus, from the judgments given by the honorable Supreme Court, three distinct principles emerge: (1) That the individual’s right to privacy exists and any unlawful invasion of privacy would make the ‘offender’ liable for the consequences in accordance with law, (2) That there is constitutional recognition given to the right of privacy which protects personal privacy against unlawful governmental invasion, (3) That the person’s “right to be let alone” is not an absolute right and may be lawfully restricted for the prevention of crime, disorder, protection of health ,morals or the protection of rights and freedom of others.[8]

The right to privacy is no longer a negative right, restraining the intrusive activities of the State but has evolved into a positive duty, incumbent upon the State’s policy of preservation of institutions that preserve the personal space of individuals.  The right to privacy is a pertinent issue that requires much debate, deliberation and discourse. The role it will play in the future cannot be more pronounced. It is the choice of an individual to protect certain facets of his life and he should be given the basic guarantee that this choice of his would be respected. Just as citizens are guaranteed a freedom to express, they should also be given the freedom to restrict expression. This freedom has its foundations laid in the personal choice of the individual and it is the duty of the State to protect that freedom.

 

 

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