Privacy and beyond


Way back in 1962, Morris L. Ernst and Alan U. Schwartz wrote that the right to privacy is “perhaps the most personal of all legal principles. It is also one of the newest, since only the most sophisticated of societies have the interest and the ability to nurture that subtle and most personal possession of man, his dignity. As such, its violation is one of the most personal and intimate sort.” (Privacy : The Right to be Let Alone, MacMillan Publishing Company). Around 50 years later, in an emblematic judgment on Thursday, the Indian Supreme Court belatedly concurred.

Nine judges of the Supreme Court unequivocally held that the right to privacy is a fundamental right under the Indian Constitution. The judgment offers a promising foundation for the constitutional rights jurisprudence in India. Notably, the judgment has put an end to the dilemma on the issue created by the conflicting judicial views on the topic. The eight-judge bench in M.P. Sharma (1954) case held in clear terms that the Constitution of India does not contemplate privacy as a fundamental right. Kharak Singh (1962) case, though, recognised the significance of privacy, was reluctant to treat it as part of fundamental rights, the primary promise of the constitution. Subsequent judicial views that attempted to hold otherwise could not, however, do so, due to the numerical superiority of the benches that decided M.P. Sharma and Kharak Singh cases. This had led to a doctrinal uncertainty on the right to privacy, which required to be resolved by the larger bench. Historically, in the 1950s or 1960s, privacy as a right did not meet a formidable opponent in technology or even in the Indian state. The value of privacy enhances when the intrusion is accelerated.

There is a cause for serious alarm when even certain state governments in the country failed to preserve the personal data of individuals. Equally challenging is the job of preserving the data from the powerful corporates who virtually hold monopoly in the digital age. In an era where technology is a constant interruption in daily life, it is significant to note that the judgment also took note of novel notions of informational privacy and data protection. Referring to the data protection directive of the European Union, it suggests that India should have an appropriate legislation on the subject.

However, privacy has extra-technological dimensions. It involves multitudes of taste, affinities, desires and orientations. It extends to transgender rights, a significant minority right, which any egalitarian society is bound to recognise. The judgment makes a fascinating read when it in effect “overrules” the earlier smaller bench decision of the Supreme Court that mercilessly negated the claims put forth by the sexual minorities in Naz Foundation (2013). Thus, the judgment recognises privacy as multi-dimensional. It has also added a flavour of modernity to the very text of the Constitution. One hardly finds a more vigorous addition to the Indian Constitution by judicial prescription.

However, even according to the present judgment, the right to privacy remains not as an absolute right, which means that restrictions are even now permissible. Therefore, each case of privacy infringement will have to be decided on its own peculiar facts. Whether a law or state action infringes upon the citizen’s right to privacy will be judicially answered by verifying the nature of the right claimed and its breach. This is why democratic vigilance for protection of privacy becomes an imperative for the future.

Kaleeswaram Raj is a lawyer at the Supreme Court and the Kerala High Court. Thulasi K. Raj is a lawyer at the Kerala High Court.

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