A historical perspective
~ Authored by Meemansa Agarwal, in guidance of TB
The year was 1890. Newspaper enterprises and instantaneous photographs had invaded the precincts of private and domestic life. There was a growing demand that the law must prevent the circulation of portraits of private persons in newspapers. Against this backdrop, two young lawyers, Samuel D. Warren, and Louis D. Brandeis published their now famous article entitled ‘The Right to Privacy‘, which has been hailed by several jurists as ‘perhaps the most influential law journal piece ever written’.
The concept of privacy has had a long history. The famed maxim, “the house of every man is his Castle and Fortress” had its genesis in the celebrated Semayne’s case in 17th century England (1605) which established the rights of entry into privately owned property. Throughout the 18th century, the English courts in cases such as R v. Warickshall1 and Entick v. Carrington2 held that officials could not enter a person’s home without a warrant or legal authority. On the basis of English jurisprudence, the fourth amendment to the United States Constitution was adopted as part of the Bill of Rights in 1791 as a crucial safeguard against arbitrary or unjustified government searches and seizures.
These early instances, while not explicitly recognizing a general right to privacy, helped to establish the foundational principles of safeguarding against arbitrary and unjustified government intrusion into private homes and lives.
However, the inflection point in the right-to-privacy discourse came in the 1880s. The American jurist Justice Thomas Cooley in his book “A Treatise on The Law of Torts,”(1880) coined the term ‘Right to be let alone’ which he described as a ‘right to be free from assault or threats of violence.’
Samuel D. Warren and Louis D. Brandeis, through their article ‘The right to Privacy’ further expanded on this concept to mean that “all persons should have the right to prevent publication of ‘matters which they may prefer to keep private’.” Brandeis and Warren argued that the law should recognize and protect an individual’s right to control the use of their own personal information and images. Their goal was “to protect the privacy of private life.” From a prevention action against state transgressions into private dwellings, privacy now became a right against the intrusion of the press and the public into the private lives of individuals, particularly through the use of photography and other new technologies of the time. This was the genesis of the jurisprudence upon which we model our privacy laws today.
When Justice Samuel and Justice Louis wrote their paper, they were worried about the intrusion of press cameras in the private lives of individuals. Their idea of privacy rights have implications even today.
Privacy in India:
The concept of privacy is not alien to Indian society. The difference between public and private conversations (ghar aur bahar ki baat) has existed since the advent of Indian civilization. However, when it comes to protecting privacy as a legal right, people assume it to mean hiding something nebulous or immoral. Privacy was always framed as the right of the privileged or a right that threatens the law and order apparatus of our society.
Post Partition, during the Indian Constituent Assembly debates, several members of the Assembly expressed concerns about the potential for government intrusion into the private lives of individuals, particularly in the context of law enforcement and national security.
Kazi Karimuddin, a criminal lawyer by profession, had moved an amendment to protect individuals from unreasonable search-and-seizure, on the lines of the American, Irish, and German Constitutions which was supported by prominent members such as Babasaheb Ambedkar, H.V. Kamath, and K.M. Munshi.
In fact, the final draft report of the Fundamental Rights Sub‐Committee (Apr. 1947) of the Constituent Assembly had included the provision of “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things seized.” It also included “The right of every citizen to the secrecy of his correspondence”
However, strong notes of dissent were sent by members like B.N Rau and Alladi Krishnaswamy Ayyar, who were concerned with the interference of the right to privacy with investigative powers of the police authorities. They further argued that the right to privacy was not granted in the US Constitution and would prove to be an impediment for law enforcement in pursuit of justice. Other members of the Assembly, expressed skepticism about the need for explicit protections for privacy in the Constitution. Some argued that privacy was already implicitly protected by other constitutional provisions, such as those related to freedom of speech and religion.
In the end, the Assembly did not include an explicit right to privacy in the Constitution, and the two provisions were dropped.
Privacy v. Security:
This conundrum of weighing privacy rights with the security needs of the state has factored heavily in the minds of the courts while delivering judgments. Unfortunately, when pitted against the security interests of the state, the right to privacy was almost always defeated.
For instance, the Supreme Court in M.P. Sharma3 in the year 1954, examined whether the constitutionality of search and seizure of documents pursuant to a FIR would violate the right to privacy. A majority decision by an eight-judge Constitution bench observed that the right to privacy was not a fundamental right under the Constitution.
In the case of Kharak Singh v. State of U.P.4, the Supreme Court had the occasion to consider the ambit and scope of this right when the power of surveillance conferred on the police by the provisions of the U.P. Police Regulations came to be challenged as being violative of Articles 19(1)(d) i.e. the right to move freely throughout the country and Article 21 i.e the right to life of the Constitution. The Court ruled that the attempt to ascertain the movements of an individual was not an infringement of any fundamental right. The minority judgment, however, emphasized the need for recognition of such a right as it was an essential ingredient of personal liberty.
Privacy ( A right to life) Vs. Public interest
However, there were instances wherein smaller benches of the Supreme Court upheld the right to privacy as part of the right to life, but added various exceptions to it. For instance, in the case of Govind vs State of MP5, the court did come to the conclusion that the Right to Privacy is not absolute but rather subject to certain reasonable restrictions where the public interest is superior and the right must be ascertained on a case-by-case basis.
Similarly in R Rajagopal v State of Tamil Nadu6, whilst opining that it would be an infringement of privacy if something is published in relation to an individual’s private affairs without their consent, the court created an exception that if something is published from the public record in relation to an individual, that would not be considered an infringement of privacy.
Informational Privacy: New Dimension to the Right to Privacy in the 21st Century:
In one of the landmark judgments of the 21st century – in the Puttaswamy case a nine-judge bench of the Supreme Court recognized the right to privacy as an intrinsic part of the fundamental right to life and personal liberty under Article 21 of the Constitution of India, in particular, and in all fundamental rights in Part III which protect freedoms in general, and overruled the aforementioned judgments to this extent. Notably, the Court recognized informational privacy as an important aspect of the right to privacy that can be claimed against state and non-state actors. The right to informational privacy allows an individual to protect information about herself and prevent it from being disseminated. Furthermore, in order to limit the discretion of the State in such matters, the Court has laid down the four-fold test to limit the possibility of the State clamping down on the right –
- the action must be sanctioned by law,
- it must be necessary to fulfill a legitimate aim of the State,
- the extent of the State interference must be ‗proportionate to the need for such interference‘,
- there must be procedural safeguards to prevent the State from abusing its power.
Unfortunately, the recent iteration of the data privacy bill fails to pass this four-fold test. The provision of ‘deemed consent’ i.e. instances where data fiduciaries i.e. companies that are collecting and storing our data; are not required to ask for the consent of the data principal i.e. us, for it is assumed that they have already received it, has been significantly expanded.
Section 8 provides that consent will be deemed to have been obtained for the processing of data to provide benefits and services by the State and its instrumentalities. Thus, government health departments and companies such as SBI, BSNL, and state discoms need not take consent from individuals for processing their data.This is particularly concerning with the trend of rapid digitization of government service delivery. Provision for ‘Deemed consent’ along with sweeping exemptions granted to the state processing of data under section 18(2) of the bill have the combined effect of keeping the government out of the purview of the bill. This exacerbates the already existing imbalance between civil society and the state. Again, the interests of the state have weighed over the concerns of data privacy. The concept of data privacy has been treated as a privilege rather than a fundamental right.
While Delivering a speech recently, Justice Chandrachud delved into how the Internet and technology have revolutionised the scope of people’s rights and their interactions with the government and the judiciary, adding that “solutions in the digital age also come with a cost”. The first kind of price, according to him, is “through digital profiling of all persons. Every digital transaction of ours leaves electronic tracks, which contain powerful means of information which provide knowledge of the sort of person that the user is and their interests. All of this data may disclose the nature of an individual‘s personality: food habits, language, health, hobbies, sexual preferences, friendships, ways of dress and political affiliation.”
“The second kind of price is the nature of changes in our society due to the vast amount of information available through the Internet. This can have negative effects…we can become susceptible to false information, we may be unable to verify the truth, or the information we receive may just become what is dictated by an algorithm, without any real choice on our part.” The vastness of this information can also have a numbing effect, where we become so used to hearing about issues that they no longer even affect us,” he pointed out.
A lot has already been written about the implications of the recent ‘Fact-checking unit’ proposed by the government, as provided in the recently amended IT (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 on free speech. However, this provision will also encourage mass surveillance of our content by the government and private players alike. This provision has been challenged by comedian Kunal Kamra before the Bombay High Court.
Artificial intelligence: new opportunities and challenges
Artificial Intelligence, functions on the very data that the big tech companies have collected from us in the past decade. It thinks like us because it has been fed our biases, our preferences, and our creative work, without our consent. Systems are designed to log behaviour every time we interact with the digital world. Digital data is an extension of who we are, what we have been and an indication of what we might become. To keep a balance between the costs and benefits, there is a need for self regulation by digital companies while the government is framing rules to regulate data ownership and processing.
The path ahead:
We are living in a confusing world where we are more concerned about our privacy even as we divulge more of our personal information to private entities to keep pace with the digital market offerings. Add to this, the rapid digitization of every government service has made it mandatory for the general public to opt into the digital public infrastructure and has taken away the choice from the beneficiaries.
The data privacy issues of this information age will continue to pose new opportunities and challenges. As we enjoy more convenient lives in smart homes, with our voice-activated assistants, connected wearables and entertainment platforms that are powered by AI, as consumers, we are spoiled with ordering choices and services. While security systems are more sophisticated (with CCTV cameras), speech and facial recognition allows machines to learn and interpret our conversations, creating new security threats. Cyber crime is far easier and rewarding than going masked for burglary in a bank.
Do we realize the challenges ahead for us and the policymakers?
Citations
- 1. (1783), 168 E.R. 234
- 2. (1765) EWHC KB J98
- 3. M.P. Sharma v. Satish Chandra, (1954) SCR 1077
- 4. AIR 1963 SC 1295: (1963) 2 Cri LJ 329
- 5. AIR 1975 SC 1378
- 6. 1994 SCC (6) 632.