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Privacy: Many-splendoured right which needs to be at forefront of civil liberties

ByMadhavi Goradia Divan
Aug 26, 2017 04:20 PM IST

The judgment in Puttaswamy takes privacy far beyond the confines of Article 21 and weaves it into other fundamental rights such as the freedom of conscience, the freedom of assembly and the freedom of occupation.

Fundamental rights were once described by the Supreme Court as “empty vessels into which each generation must pour its content in light of its experience” (PUCL v Union of India (2003) 4 SCC 399).

Close to 70 years of the Republic, Article 21 of the Constitution- the right to life and personal liberty, could hardly be described as an “empty vessel”. On the contrary, it seems to spill over with a myriad rights, rather like a receptacle for pretty much everything that make life worth living.

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The Supreme Court earlier interpreted the right to life under Article 21 as not being about just “animal existence” but the “finer graces of human civilisation which make life worth living” (Port of Bombay v Dilipkumar Raghavendranath Nadkarni (1983) 1 SCC 124).

The overwhelming gamut of rights that have been asserted under Article 21 and endorsed by the Supreme Court cover the right to a clean environment, the right to food, the right to shelter, the right to sleep, even the right to a toilet. And yet, in the challenge to Aadhaar, the State strongly resisted reading into Article 21, the right to privacy -- the very right which ought to be at the forefront of all civil liberties, particularly so in times when the citizen is so besieged by technological intrusion.

Data mining and profiling have turned us into tagged pigeons. Things that make life worth living are not only about the physical aspects of living. In 21st century India, food, clothing, shelter and access to a toilet are still a challenge. Does that render privacy an elitist concern? Must the poor give up their privacy, if they are to avail of social benefits, even if they do not know that such a right exists under their Constitution ?

Ayn Rand famously wrote in The Fountainhead, “Civilisation is the progress towards a society of privacy. The savage’s whole existence is public, ruled by the laws of his tribe. Civilisation is the process of setting man free from men.”

The judgment of the Supreme Court in KS Puttaswamy v Union of India is an enormous leap in the direction of setting men ( and women) free. It is a resounding victory for civil liberties in India. The judgment comes from what is arguably, the most powerful court in the world, an activist court that presides over the destinies of a sixth of humankind.

A bench of nine judges has finally stamped out the brooding spectre of MP Sharma and Kharak Singh. These were two archaic judgments which the Court itself had put past itself over the last several decades when it proceeded to recognise privacy in a myriad different contexts from surveillance and telephone tapping, bank accounts and black money, to matrimonial relationships and dietary choices.

Yet, after so many decades of the evolution of the law of privacy, the State sought to exhume the ghost of those two long forgotten cases decided by larger benches, all in its overzealousness to defend Aadhar and the use of biometrics. The silver lining in the State’s resurrection of those judgments was the reconsideration of those judgments by a larger bench of nine judges and an emphatic declaration of the right to privacy as an inalienable fundamental right.

The judgment in Puttaswamy takes privacy far beyond the confines of Article 21 and weaves it into other fundamental rights such as the freedom of conscience, the freedom of assembly and the freedom of occupation. Although in the past, the Supreme Court had carved out the right to privacy from Article 21, (the Autoshankar case being the most significant of these cases), never before has the right to privacy has travelled so far outside the contours of Article 21 to touch other fundamental rights. Privacy has been described in Puttaswamy as a “travelling right”, a necessity and a pre -condition for the exercise of other freedoms. In present times, somewhat paradoxically, privacy is a pre-requisite of free speech.

Indeed, without the guarantee of privacy and of protection against involuntary leaks of communications intended at select audiences, the citizen is not likely to be able to exercise fearlessly, her right to free speech. In the early years of the Republic, the challenge was to ensure that the right to free speech was guaranteed by the right to the widest circulation (the Sakal Papers case).

Today, unauthorised to an unintended audience or reckless dissemination of communication is a liability for free speech. We are moving from the assertion of the right to circulation to the right to informational self-determination.

The judgment in Puttaswamy recognises the right to privacy against not just the State but private parties as well. It impacts the relationship between the State and its citizens and also between non-state actors and citizens. The State is now under a duty to safeguard the privacy rights of citizens not only against itself but also against non – state actors who have built empires on economic espionage.

The judgement proceeds to recognise several new facets of privacy that the Supreme Court might not have had occasion to address before. For example, the judgment recognises the right to publicity, the right of an individual to control the public portrayal of her image and to control the commercial use of her identity, image or likeness.

It also recognises the right to be forgotten in the context of the digital world, the right to erase information from the public domain that has become irrelevant or stale. Two of the opinions by the Court draw upon the right to privacy to support the rights of the LGBT community, thus firming up the foundations for a relook at the regressive ruling of a two judge bench in Koushal v Naz Foundation (2014)1 SCC 1. The judgment is a harbinger of new, evolving civil liberties and the assertion of privacy as a many-splendoured right.

What impact it will, however, have on Aadhar and the collection of biometrics by the State is yet to be seen.

(The author is an advocate and author of Facets of Media Law)

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