RIGHT TO PRIVACY: IS IT A MYTH?

Abstract

Right to Privacy is considered as a fundamental human right the world over. Privacy is a person’s will to keep to himself information that he doesn’t want to share, including that related to body, property, location etc. It is a person’s willingness to be free from unwarranted interference. While it is imperative to have a clear demarcation of what does a person’s privacy inculcates and what does it not for the local jurisprudence, its absence creates a ruckus with the multiplicity of ways which people’s privacy is being compromised in, in today’s dynamic and digital society.
In this backdrop, the author of this research paper would like to concern himself with: (a) fundamental pertinence of privacy in a person’s life; (b) different ways of compromising privacy in the current times; (c) ways to provide right to privacy to every person in letter and spirit.

Keywords: privacy, interference, demarcation, compromise

INTRODUCTION

Right to privacy is a person’s right to be free from unwarranted interference, or to be let alone. It includes integrity, personal identity and inviolability of the body. It is a manifestation of an inviolate personality. It is a necessity due to multifarious reasons, including respecting a person’s choice to share what he wishes to and not share what he doesn’t with other people and to not use his private or personal details to exploit him or his skillset as a consequence of vested interests. While privacy has been considered as a fundamental human right by many countries including India, the United States of America and the United Kingdom, alongside various significant international organisations such as UDHR, ICCPR and ECHR, there remain many ways and examples where people’s privacy is being compromised in the current times, even when these countries have acknowledged privacy as a human right of fundamental nature. With the advent of internet and smartphones into the dynamic scenario that we’re in, privacy has become all the more a matter of great concern. A breach of privacy might lead to anything from physical and mental symptoms to financial loss to the person concerned. It is, therefore, imperative to protect a person’s privacy and his right to uphold it, more than ever in today’s digital age.

In the present time, even when privacy has been accepted as a fundamental right, a clear demarcation is lacking between what is considered as private enough for a person to keep to himself and what does the local jurisprudence consider out of the purview of privacy for the greater good. With such demarcation lacking, there is a huge amount of subjectivity in interpretations and thus there is a huge potential set of people who might suffer and be exploited due to this ambiguity.
This study would focus on:

The importance of privacy

An analysis of the judgment of Hon’ble Supreme Court in Justice K.S. Puttaswamy v. Union of India which recognised right to privacy as a fundamental right in India

The hindrances in the path of implementation of the right to privacy as given by the said judgment

The possible ways with which we can strengthen the privacy rights that the citizens of our country enjoy, for a collective improvement of the society and people, both collectively and individually.

RESEARCH METHODOLOGY

The proposed study would be engaged in deductive reasoning of enquiry and adopts qualitative method focusing on historical, analytical and consequentialist approach. It intends to rely on primary as well as secondary sources of data including the original judgment in the KS Puttaswamy case, authored by Justice DY Chandrachud, various documents of international organisations recognising the right to privacy as fundamental human right, such as UDHR and ICCPR. Secondary sources of data include analysis done by intellectual academicians and concerned people on developments related to privacy.

REVIEW OF LITERATURE

Primary sources of data, such as KS Puttaswamy v. Union of India judgment; Article 12, Universal Declaration of Human Rights; Article 17, International Covenant on Civil and Political Rights has been used and has been imperative to build the foundations of this research paper. It has helped in a proper understanding of aims and objectives of the national and international community towards provision of right to privacy as a right of fundamental nature. Secondary sources, such as reports of the Central Information Commission and various other national and international journals has been put to use, which has helped in building the paper to inculcate multifarious dimensions of privacy, as a concept, and its legal viewpoints.

GENESIS OF PRIVACY RIGHTS

Keeping private is one’s expectation of non-disclosure of information disclosed in a private place to third parties, which on knowledge of the same, might become a cause for embarrassment or discomfort for a person of ordinary sensitivities. With the protection of one’s body and property, privacy has been at the helm of human affairs since the beginning of human life. Privacy is a natural and instinctive expectation. The right to privacy is our right to demarcate a domain around ourselves, which includes everything that is an essential part of us, such as our body, home, property, thoughts, secrets, feelings, emotions and identity, in such a way that the concerned person can ably decide the parts of this domain which are accessible to others, and to control the extent, manner and timing of such disclosure. The issues of privacy can be seen in the writings of Socrates and many other Greek philosophers. A distinction is made between the outer (public) and inner (private) therein. Even though human being is a social animal, periods of retirement or seclusion or keeping private were accepted even in those times.

In the medieval era, privacy inside the compounds of one’s home and privacy of the body became a norm, which supposedly got transmitted from the Europeans during the colonisation of America. Home is, even today, seen as a primary place of privacy. Moreover, historically, wealth and privacy have been inversely proportional. The poorer a person was, the less he could expect for his privacy, and vice versa. Ever since the 14th century, people used to approach the justice system accusing people for reading somebody else’s letters or even for eavesdropping, signifying the presence of an urge to remain private even then. Later on, as the society progressed, privacy increasingly got limited to personal information, and the urge shifted to control information about oneself. The concept of privacy now surrounds around territorial, bodily and identity information privacy more than anything else. In later times till today, even though the need for privacy and its extent differs from society to society, there exists, however, a universal need for privacy.

DEVELOPMENT OF PRIVACY LAWS IN INDIA

The Right to Privacy in India has been a unique amalgamation of constitutional, common and customary law right scattered over various fields of the law. The Property Law, the Law of Torts and Criminal Law inculcates various provisions which ensure privacy to the concerned people. Without a clear definition, various provisions such as Section 509, Indian Penal Code 1860 accounts for protection of private interests of women, Section 26, Section 163 and Section 164 (3) of the Code of Criminal Procedure 1973 takes into consideration protection of public interest.

Since the original constitution did not explicitly provide for right to privacy, in the initial years post-independence, the courts denied to reading right to privacy as a fundamental right. In MP Singh v. Satish Chandra (eight-judge bench), the court refused to recognise a right against search and seizure of documents, since the constitution makers did not provide for it. Later in the judicial pronouncement of Kharak Singh v. State of Uttar Pradesh (six-judge bench), it was said that right to privacy is not a guaranteed right under the Constitution of India.

However, it was through the dissenting opinion given by Justice Subha Rao in this case that the talks of guaranteeing the right to privacy as a fundamental right under the constitution came into being. The courts over the course of time began to adjust and interpret the Indian jurisprudence and objectives of the legal system in a way consonant with considering the right to privacy important for life and personal liberty of an individual. In Govind v. State of Madhya Pradesh, the Court acknowledged that privacy must protect personal intimacies of home and family matters. This culminated in the nine-judge bench of the Supreme Court delivering the judgment in KS Puttaswamy v. Union of India 2017, which ultimately put right to privacy under Article 21 of the Constitution, thereby making it a fundamental right.

In its backdrop, Sri Krishna Committee was constituted in 2017 to study the need and ways of protecting personal data as a means of privacy infringement in the 21st century. The history of privacy shows a strong connection between privacy compromise and evolution of technology. In the current times, technology generally and internet specifically, is the major source which is compromising the privacy of people, most often without their consent or knowledge. The technical means and methods to collect, store and control people’s information are increasing in leaps and bounds, thereby posing the most serious challenge with privacy issues in the current times.

Right to privacy is now not only conceded, recognised and acknowledged nationally, but also internationally under multiple Conventions, including Universal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR). Privacy in today’s time is one of the most significant pillars on which democracy rests. A violation into a people’s privacy by an alien country is seen as interference with the democracy and sovereignty of the concerned person’s nationality.

PRIVACY BREACH IN MODERN TIMES

With a fundamental change in the society of today than the society of even two decades back and the dynamic nature of the society, there has been a significant change in the common and popular methods of privacy breach. Scott McNealy, founder of Sun Microsystems once mentioned that any ‘secret’ stored ‘safely’ in digital form was subject to instant and inevitable distribution.

The advent and popularity of social media, internet and other digital devices, privacy is being breached in ways previously beyond imagination. With each new technology, new and unprecedented intrusions creeped in in the spheres of the private and intimate. However, with the digital technology, including computing, mobile communications, internet, databases and like, further evolution of the privacy law and protection has become an urgent need. However, unlike the previous technological advancements, the scope, pace and magnitude of the digital revolution has been such that the jurisprudence of privacy law could not develop itself and respond quickly enough to keep the privacy protections robust and relevant in the modern age.

Data protection is one of the most significantly accelerating fields of study in the current time. From the operating system of our smartphones to the various applications which are installed in it, there is multifarious and enormously private information related to us which is relayed to the companies, which might store it themselves, or in some cases, even sell the data to other third party services. There have been reports of humongous user data leaking on the dark web from reputed and supposedly encrypted and secure companies, including Domino’s and BigBasket .

Even though most of the times, these companies through their applications, take consent from the users, thereby relieving them of their liability to that extent, by asking them to tick a checkbox if they agree to terms and conditions, a literature which majority of populace avoids to read, there are certain protests coming up against such data collection and selling, with increase in public knowledge and understanding of privacy. The most recent one is WhatsApp update which took consent from the users to sell the data collected by them to Facebook, their parent company, which was widely contended, forcing WhatsApp to delay the implementation of their update.

While online presence and digital technology is the most significant way of privacy breach in the current times, it isn’t the only one. There can be and are multiple other ways in which a person’s privacy may be compromised and breached, without lawful justification. Privacy breach might be done through surveillance mechanisms, more often than not appointed by government institutions and machinery. There has been a debate around privacy breach done by the government through the ‘Aadhar’ Card, which was instituted to create an identity card for every citizen of the country. Aadhar Card was the main issue in the Puttaswamy judgment as well. While surveillance by government machinery is another possible mechanism of breach of privacy, it is also necessary to fight crime and terrorist, and a fine line needs to be drawn that these mechanisms are only used for the purpose they’re installed and put in place for.

Social media, although a part of the digital advancements, was created with an objective to let people voice their opinions freely, whether in favour or in dissent. However, currently, social media companies and applications are increasingly collecting data about the users, their activities and choices. This data has a huge risk factor if it leaks to wrong hands, since it can put the concerned people in fear and embarrassment and they might be exploited by the vested interests.

Therefore, the dynamics of privacy have changed very rapidly in the past few years. Technology has been the major driver for these changes, and it is an utmost necessity for the privacy laws to evolve to inculcate the new dimensions that privacy has come to bring to the fore.

NECESSITY FOR PRIVACY
Privacy is a social and psychological necessity on an individual level. Privacy matters on an individual level rather than collectively on a social level, albeit the individual privacy rights provide for a sturdy foundation for human rights and democracy for the society as a whole. It is about respecting other people’s space and getting yours to yourself in return. Privacy is a necessity to help a person grow for better without having a fear of exploitation by the society in lieu of his personal information.
Right to privacy also helps people avoid negative emotions of revenge, guilt, vengeance etc. and to avoid criminal psychologies as well. It provides a mechanism to grow, develop and nurture oneself for betterment of individuality and of the society ultimately. There is an increased chance of interpersonal trust between the people if they’re aware of who their data is with, and to what extent, and when they have sufficient power to oversee and control this transmission. It also avoids excessive governmental interference with the citizen’s lives and to avoid excessive control of mass behaviour in favour of the government’s interests rather than of the country, if such a situation is to arise.

K.S. PUTTASWAMY V. UNION OF INDIA
It was the nine-judge bench of the Hon’ble Supreme Court of India in the judicial pronouncement of K.S. Puttaswamy v. Union of India, which unanimously ensured right to privacy as a fundamental right under Article 21 of the Constitution of India.

Facts: Aadhar Scheme was launched by the Government in 2009, under which the world’s largest unique identification system was to be built, where every citizen of India was to be awarded with a unique 12 digit code based on their demographic and biometric data. The objective of this identity mechanism was to assist the government in implementing schemes and distributing subsidiaries. It was argued that Aadhar scheme violated the right to privacy of the citizens by collecting sensitive information. Retired High Court judge brought the lawsuit against the Union of India, challenging the Aadhar scheme to transgressing Article 14(6) and Article 21 of the Constitution of India.

Legal Issues: Whether or not Right to Privacy is a fundamental right under Article 21 of Part III of the Constitution of India?

Held: It was unanimously held by the nine-judge bench in the judgment, authored by Justice DY Chandrachud, that right to privacy is a part of an individual’s dignity and conforms as a natural right, obligating the objectives of Article 21 of the Constitution, which would make it a part of basic structure of the Constitution. Considering both positive and negative facets of privacy, the judgment highlighted that the positive elements restricts state from unfair interference in individuals’ privacy, and the negative elements oblige the government to put an appropriate legislative infrastructure to restrict them from prevailing. This judgment overruled the previous Supreme Court judgments in the M.P. Singh and Kharak Singh cases, thereby amending the jurisprudence of the judiciary, which was now inclusive of privacy as a fundamental human right.

CONCLUSION AND WAY FORWARD

Privacy essentially includes ‘freedom to’ and ‘freedom from’. It is an individual’s right to self-determination. Even though privacy is granted to the citizens as a fundamental human right, it cannot be made absolute. Privacy has to be balanced against another needs, which might include fighting against terrorism, criminal cases etc. A balance needs to be maintained between the necessities of privacy and infrastructural necessities to curb the possible exploitation of privacy laws for crimes against the state or person.

Government is the single most responsible institution to secure to its citizens right to privacy. Government has to undertake an active role in addressing concerns about data security, technological privacy breaches, unauthorised surveillance of the body, territory, identity or personal choices. The government should work and make necessary laws to hold technological companies and service providers for any action that is taken on the basis of data collected and/or stored by them. They should be responsible and accountable for all data under their control.

There must be internal safeguards to protect external intrusions into people’s private spaces. The technology and the national and local laws must be in consonance with the rapidly evolving usage of internet, social media and other technological advancements. Cyber security must be put greater emphasis on and the people must be adequately educated on the whereabouts of the technologies they’re putting into use, the various ways in which they can be exploited by these technologies and on methods to curb the possible exploitative tactics on an individual level.

.Cyber literacy is a must for adequate protection of privacy in today’s time.
There must be a clear demarcation and definition of privacy, and the scope and limits of its overriding by various forces of the government and adequate reasons thereof. Being a concept highly subjective in nature, there remains an ever high chance to multiple interpretations and conflicts on privacy, and the extent of privacy as a fundamental right with the citizens. Privacy holds a great sanctity for strong foundations and vibrant democracy that India aims to possess and become and must therefore be respected in letter and spirit, in a balanced manner.

AUTHOR:

Pranjal Kumar