One of the notions that the Supreme Court's nine judge bench decision in Justice KS Puttaswamy (Retd) versus Union of India attempts to dispel is that privacy is a 'recent phenomenon'. In the six opinions delivered, Justice Nariman points to the 17th century judgment of the King's Bench in England in Semayne's case, which contains this immortal line: "The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose."
Justice AS Bobde cites this case and goes back even further, to Kautilya's Arthashastra, to the book of Thessalonians in the Bible and the Quran to find religious and other injunctions against the unbidden entry into another's home. Semayne's case is all the more significant because this right is claimed not just against another person but against the ruler himself (James I of England) and his agents. As far as the law is concerned, therefore, there is enough to suggest that privacy is not a modern creation.
That said, the modern world has created much space for us to exercise our Right to Privacy. It goes without saying that personal autonomy and the freedom to make choices are much greater in a society, where family and community have less hold on the individual. On the other hand, the growth of technology has meant that the government now enters our homes in a metaphorical sense as well. A point illustrated by Justice Sanjay Kishan Kaul when he refers to technology allowing persons to enter one's house "without knocking the door".
Access to one's home computer or laptop is enough to find out what is going on inside the four walls of one's home. Then how do we make sense of the Right to Privacy?
What the court has done, and done well, is to identify the essential core of the Right to Privacy and not make it dependent on the medium or on technology. Bodily autonomy, informational control and the freedom to make choices are concepts which have been distilled over the years by courts and scholars alike to be the essential core of any notion of privacy. None of these become obsolete simply because new technology has come into existence that poses a threat to these or makes the infringement easier.
This argument, that technology has rendered privacy obsolete or less important, has been expressly rejected by the judges in their opinions. Kaul notes the importance of "big data" in the modern economy, especially in the business models of the likes of Facebook, Uber and others.
He speaks of companies which have data about an individual – which while perhaps useful in some ways – and enjoy disproportionately greater bargaining power over such individual. If this were to become the manner in which the government exercises power over an individual, he concludes that no democracy can survive for long as one.
In defending privacy even in times when it is so easy to infringe, the court is defending the very basis of our constitutional government. Privacy, as a legal and constitutional right, is not lost by how many times it is infringed or if it becomes very easy to infringe. As long as humans assert their right to choose and do as they please, the Right to Privacy will be relevant and necessary in any society. What remains, therefore, is trying to understand how to restrain technology from eroding our right to choose and do as we please.
One option is to just recognise the right and allow individuals to access existing legal institutions to enforce it. If your data has been leaked on the internet, you should be able to sue the company which caused the leak for damages. If your intimate images are being shared without your consent, you should be able to get an injunction preventing such circulation and publication. This is necessarily a reactive process, one where legal costs are expensive, or such institutions non-functional, may not be easily accessible.
The other option is to put in place a regulatory mechanism which requires companies using a given technology to follow certain norms and standards.
Such regulations would lay down the norms, prescribe penalties and create enforcement mechanisms for any potential breaches of privacy. This could range from an all-encompassing privacy code applicable to all private entities to specific rules covering telecom operators, ISPs, et al. This is perhaps the preferable route and could minimise the potential for damage to the Right to Privacy.
The imperative for such laws is also found in this judgment as well. Part III of the Constitution of India is not just a set of "negative rights" for the government to adhere to while law making. It also includes positive obligations on the government to make such rights meaningful. To give one instance, the Supreme Court held that the Right to Freedom of Speech included the right to know the asset details and criminal records of candidates for an election.
The guarantee of equality under Article 14 has long been held to include both a guarantee against discrimination and a requirement of positive measures to ensure equal protection under the law. If the Right to Privacy is written across the breadth of Fundamental Rights guaranteed under Part III of the Constitution, (as all the judges have unanimously held) it follows therefore that there are certain positive obligations on the government to protect such Right to Privacy.
What these exact obligations are will become clear going ahead. By no means is this judgment the last word on all matters relating to privacy and many nuances of the scope of the Right to Privacy and how it may be restricted will be worked out in subsequent judgments as the various judges have themselves pointed out in their concurring opinions.
However, what cannot be denied is that a law which fails to protect privacy adequately, which provides no remedy for a breach, which allows the interference of one's choices will also be unconstitutional and struck down by the courts.
The author is a Senior Resident Fellow at the Vidhi Centre for Legal Policy. He writes on matters relating to judicial reforms, constitutional law and public law. He tweets @alokpi
Published Date: Aug 25, 2017 15:50 PM | Updated Date: Aug 25, 2017 15:50 PM