The apex court’s ruling on right to privacy has shown that the Constitution is a dynamic code. The Government must now frame a law which must adhere to the touchstone of permissible restrictions on fundamental rights
On August 24, the Supreme Court delivered a landmark judgement in the case of Justice K S Puttaswamy (Retd) vs Union of India and Ors (writ petition (Civil) No 494 of 2012) holding the ‘right to privacy’ as a constitutional right. The apex court has once again shown that the Constitution of India is truly a dynamic code. So dynamic that, at the age of 67, it is ready to accommodate the futuristic dimension of ‘informational privacy’.
In past too, the precincts of the Supreme Court and the various High Courts, have echoed with passionate arguments on right to privacy, sometimes to defend the right of individuals against various acts of surveillance by the state, while other times to defend individual’s privacy and reputation. While the courts have been eager to grant relief, giving more and more nuanced interpretation to the right to life and other fundamental right in Part-III of the Constitution, the right to privacy was not a constitutional right. With the nine-judge Bench holding that the ‘right to privacy’ is a constitutional right, it is appropriately being hailed as the beginning of a new era of individual liberty with wide range of ‘entitlements that flow out of its protection’.
Article 21 of the Indian Constitution lays down that “no person shall be deprived of his life or personal liberty except, according to procedure established by the law”. This right to protection of life and personal liberty is available to both, citizens and non-citizens. The court came to the conclusion that “privacy of the individual is an essential aspect of dignity” and it is a “constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution”.
In tracing the foundation of the right to privacy to the Part-III of the Constitution, the court has responded to the challenges and opportunities posed by information technology. As the court put it: “This is the call of today. The old order changeth yielding place to new...”. The challenge for the ‘new order’ is to find a solution wherein the constitutional guarantee of the right to privacy will be assured and protected in this era of information technology.
Even as the issue of Aadhaar remains to be decided based on this verdict, the court has passed the baton to the Government, which now has to come out with a legislation on data protection that will effectively address the issues pertaining to collection, transmission and protection of data while ensuring that the right of privacy remains available to individuals.
The task is monumental and will require innovative solutions. We are live in a digital world and we leave our digital foot prints everywhere. The use of laptop, computer, smart phones, GPS and other technology ensures that various entities constantly aggregate information about us often from us. This ‘aggregation’ means that most aspects of an individual’s life are no longer private.
Thus, most forms of interaction with technology render us under constant surveillance — from our location to our food habits, shopping preferences, sleep patterns and all this does not even require physical proximity, let alone a warrant of search. As we use information technology, we submit information at all points in our interaction with technology — that check-in setting on social media or your dietary preference for the travel site — there is a wide spread lack of awareness of the value that such information commands. This information which is being collected, stored and utilised, some for the purpose of providing intended service while others for reasons one, is not even aware of.
In elevating the right to privacy to the status of the constitutional right, the Supreme Court has spoken unambiguously in favour of the autonomy of the individual and the need for its protection in this age of information technology and all pervasive influences. These influences are highly intrusive due to the intimate nature of information sought and our own dependence on technology. From school fees to rail tickets to insurance policies, there is no escaping technology. Information is knowledge and knowledge is power, however, the Supreme Court has now held that every power would now need to be exercised subject to respect for the right to privacy of the individual.
As we discuss the future of informational privacy, it needs to be borne in mind that fundamental rights are ordinarily enforceable against State or State agencies, or those ‘authorities’ acting as instrumentalities of the State. Also, since the right to privacy flows from the right to life and liberty under Article 21, which is available to ‘person’ and has been seen as an essential trait of human personhood, what has to be seen is whether a juristic, or artificial entity, such as a corporation or company, can assert right to privacy, which intrinsically vest in a ‘person’.
The threat to right to privacy is no more from the State but a lot from private players who have unhindered access to information on each and every aspect of individual's private life. Therefore, it remains to be seen how the Government will respond to these twin challenges ie, making both, state and non-state actors responsible and accountable to protect the right to privacy and also providing remedies for redressal of grievances of juristic or artificial entities.
In the history of our Constitution, the scope of Part-III has been broadened by giving a liberal interpretation to the definition and the meaning of state and the state’s instrumentalities. Noted lawyer, Harish Salve, while assisting the court as amicus in the case of Janet Jeyapaul vs SRM University, (2015) 16 SCC 530, made erudite submission by pointing out that the expression “any person or authority” used in Article 226 is not confined only to statutory authorities and instrumentalities of the state but may in appropriate case include any other person or body performing “public function/duty”, thereby emphasising the activity aspect of the entity in order to make it subject to the writ jurisdiction of the court.
There is, of course, an inherent danger in bringing private entities performing public functions within the fold of Part-III through judicial pronouncements, as it would open a flood gate for actions under many other laws such as Prevention of Corruption Act etc, there is nothing to stop the Government from bringing out an effective legislation thereby making ‘right to privacy’ horizontally applicable on non-state actors. In fact, it would be imperative that the individual is given a legal tool to enforce its right to privacy against private companies, corporations and other non-state actors by bringing an action in the court and seeking injunctions and compensation for violations of its right to privacy.
Similarly, corporations and companies have substantial stake in protecting its sensitive data which is equally vulnerable against both state and non-state actors. It is well settled that while certain fundamental rights like Article 14, are available to artificial or juristic personalities, like companies, Article 19 rights are, however, unavailable. The shareholders or directors can approach the court for relief, only if they can establish that the impugned action impairs their rights. In the case of ‘right to privacy’ it will remain to be seen if some form of protection and remedy is made available for such juristic person.
The role of the Government must not be limited to provide a just, fair and a reasonable legal framework and to justify an invasion into the privacy of the individual by the state. It will also have to ensure that various non-state stakeholders, who are collecting, storing and using data, do so in a manner that the right to privacy of individual is safeguarded. Information Technology Act will not be sufficient for this purpose. Such a safeguard cannot only be for present usage of such information but for future evolutions that takes place in technology. The apex court has nevertheless laid down the broad expectations and any law on informational privacy will have to adhere to the touchstone of permissible restrictions on fundamental rights.
(The writers are associated with TRS law Offices)