Right to Privacy
A Fundamental Right in the Digital Age
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Introduction
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The internet is increasingly becoming an indivisible part of our daily lives. Today, as individuals, we are simultaneously present in our corporeal ‘flesh- and-blood’ form and as our many digital avatars, such that it is no longer possible for us to demarcate the boundaries between them. Our ‘I’-ness or subjectivity does not reside any more in one single place at one specific point of time; our digital ‘bodies’ have their own presence on websites and servers, far away from our physical bodies. This has very important implications for the legal concept of the citizen as an individual. We, as citizens, can now have multiple presences in cyber space and time.
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We are also digital beings in our interactions with the world, when we like posts on social-media, forward memes to our friends, buy things using e- commerce apps, transfer money to people, digitize our health-records, use search-engines for information, renew our passports, pay our taxes, and use various kinds of private and government services. Each time we interact digitally, we generate digital data about ourselves. These can be used to reconstruct the characteristics of our personality – in ways that even we ourselves are not aware of – to predict our social, political, and economic behaviour.
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In fact, the digital data that we generate, is the most important asset that modern tech companies seek. It determines their market value, whether these are the established giants, like Google, Facebook, Amazon, or the latest tech startup. It is also sought after by political parties, to target tailormade messages to voters, and even spread disinformation. Most importantly, the digital presence of citizens can be used by governments to surveil them, invade their personal space, and even track down dissenters.
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This project’s hypothesis is that our current digital age, where our data is constantly being accessed by both governmental and private agencies, requires more stringent laws that protect the citizen’s privacy. It is in this context, that I shall investigate the Supreme Court of India’s landmark judgment – commonly known as the Puttaswamy judgment – where it upheld the citizen’s right to privacy and recognised it as an existing fundamental right in the Constitution of India. At the same time, I will also look at the whether this judgment is widely known amongst the socio-economic class that I inhabit, and what is the perception of the right to privacy among my friends, peers, and neighbours.
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Sources and Limitations
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My research is primarily based on an analysis of the Supreme Court’s judgment ‘Justice K.S. Puttaswamy (Retd.) and Anr v. Union of India and Ors, Writ Petition (Civil) No. 494 of 2012.’ I have also referred to commentary on, and analysis of the judgment, by legal experts and scholars. Finally, I have done a survey amongst my friends, peers, and neighbours to gauge popular perceptions of the right to privacy.
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There are certain inherent limitations of my analysis. The first is the possibility of selection bias, when it comes to the scholars I have chosen to refer to. Most of the commentary on the Puttaswamy judgment, that is available in the public domain, is by liberal scholars, who support the Supreme Court’s ruling that the right to privacy is a fundamental right. This could have skewed my own assessment of the validity of the ruling.
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The second is that the survey is confined to people I could readily access, who are part of a small socio-economic group, of upper-middle class people. Even if my survey accurately captures the perception of the right to privacy among this group, it is only representative of a minuscule minority of India’s citizenry, and that too within a small geographical zone.
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The Supreme Court’s Judgment on Right to Privacy
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The issue of the right to privacy came up before the Supreme Court in the context of the government’s Aadhaar drive. The architecture of Aadhaar gave the government the ownership of each citizen’s demographic and biometric data. This was legally challenged by several petitioners, including Justice (retd.) K.S. Puttaswamy, who argued that this is an invasion of a citizen’s privacy. The petitioners asserted that citizens should be able to access services and subsidies provided by the government and state agencies, without having to part with their personal information. The government’s argument was that when an individual citizen interacts with the state, they have exited their private space and entered the public domain. Thus, any interaction with the state in the public domain could not be treated as private property. In other words, data generated by an individual citizen, in their interaction with external institutions – whether public or private – could not be protected by their right to privacy.
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In the jurisprudence about privacy, that existed as precedents in front of the Court, privacy had been defined in terms of the family and the home. In various previous judgments the Supreme Court had ruled that the state had no jurisdiction within the physical space of the home and the social space of the family. While this protected the household’s right to privacy as a whole, within the home, it did not accord the individual their right to privacy either vis-a-vis the family or outside the home. In fact, precedents suggested that once the individual stepped outside the home, into the public, their right to privacy was not constitutionally guaranteed. As long as duly ratified laws existed that allowed the state to surveil and confront citizens outside their homes, individuals could not claim that their privacy had been invaded.
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The Supreme Court, therefore, recognised that the Aadhaar dispute could only be resolved by addressing a deeper, much wider, question – whether the individual’s privacy is their fundamental right and also whether that right to extends to the public sphere, beyond the home. The case was, therefore, referred to a nine-bench constitutional bench as it went to the very heart of the Constitution of India. This is a rarity in the history of Indian jurisprudence; Puttaswamy was only the 15th case to be tried by a nine-judge bench, from the time the Supreme Court of India was established.
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The Supreme Court had to settle several key questions:
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Is the fundamental building block of the Indian republic the family or the individual?
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Is privacy an indivisible aspect of an individual’s identity and dignity?
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Does an individual have absolute rights over their personal information?
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Can an individual have the right to decide for themselves, against the wishes of the family, society, or the state?
The Supreme Court’s Puttaswamy judgment has been seen as a watershed in constitutional jurisprudence in India. It not only recognised that the Right to Privacy is a fundamental right, but it also established the individual citizen as the fundamental unit of the constitution. Along with that the Court also recognised the dignity of the individual as a core constitutional value. The Supreme Court also rejected ‘originalism,’ (the idea that courts must stick to the letter of the Constitution as intended by those who wrote it) by saying that the Constitution needs to adapt to social and technological change. Finally, the Court also alluded to precedents in laws from other democracies to establish the foundations of its judgment, thus arguing that Indian laws cannot exist in isolation from what is happening in the rest of the world.
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Individual as the fundamental unit
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Before the Puttaswamy judgment, the Supreme Court had recognised the home and the family as the proper domain of privacy. The state could not intervene inside these domains. The obverse of this was that the individual did not have any right to privacy within the home and did not have any decisional autonomy within the family. This also meant that if the family as a unit had agreed to share personal information, then every member was bound to share it as well. Similarly, individuals could not seek the intervention of the state in the case of marital rape or familial opposition to sexual orientation.
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The Puttaswamy judgment clearly makes the individual citizen the central unit of the constitution, in matters of privacy. This has also redefined the spatial idea of privacy; it is no longer restricted to the home, but extends to any interaction an individual has with entities outside the home, which involve parting with an individual’s personal information. At the same time, the Court continues to uphold that the home and family are private domains, where the state cannot enter, because these are the spaces where an individual can find shelter and flourish.
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Dignity as a core constitutional value
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The Puttaswamy judgment recognises the dignity of the individual as a core constitutional value. It says,
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“To live is to live with dignity. The draftsmen of the Constitution defined their vison of the society in which constitutional values would be attained by emphasising, among other freedoms, liberty, and dignity... Dignity is the core which unites the fundamental rights because the fundamental rights seek to achieve for each individual the dignity of existence.”1
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The Supreme Court argues that privacy is an inseparable part of individual diginity, and any action that invades the privacy of an individual also undermines the individual’s dignity. Since, dignity is the “core which unites the fundamental rights” it follows that privacy itself is a fundamental right.
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The individual’s rights over personal information
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One of the key aspects of privacy in the digital age is the rights of the individual citizen/consumer with respect to their personal information. We are constantly having to part with our personal information for the convenience of getting internet-based services. We are even letting the government and corporations track our present location to use maps, share live locations, order food, avail of government services and several other things.
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This information can be used to track, target, and surveil us. Our behavioural patterns, choices, likes and dislikes, can be used to influence our economic and political decisions. Personal data can be used to influence voters to swing elections, as was seen in the Cambridge Analytica case, where personalised data about American voters was allegedly collected from Facebook and used to target specific messages to individuals and influence them to vote for Donald Trump. Thus, ownership of personal data is essential for a citizen to maintain their autonomy in any democracy. Without this privacy of personal information, democracy itself will get undermined. In the words of the Supreme Court,
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“...(F)rom the right to privacy in this modern age emanate certain other rights such as the right of individuals to exclusively commercially exploit their identity and personal information, to control the information that is available about them on the ‘world wide web’ and to disseminate certain personal information for limited purposes alone.’ 2
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The Supreme Court has effectively had made the right to informational self- determination an integral part of the right to privacy. The individual citizen, therefore, has the right to restrict anyone from accessing their personal information, or commercially exploiting it.
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The individual’s right to decisional autonomy
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Privacy also means that an individual has complete autonomy and ownership of their person. This means that the family, society, or state, cannot impose their will on an individual’s decisions and choices. The Puttaswamy judgment
clearly states that fundamental rights cannot be subject to the will of majorities or what is acceptable to society. In the case of sexual orientation, the Supreme Court says,
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“The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion. The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection.... Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual” 3
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The Supreme Court has explicitly made all personal choices a matter of an individual’s private decisional autonomy and has given the individual citizen the right to keep it private. This is an expansion of the position held by precedents in the Supreme Court on what constitutes the private sphere. In the words of the Puttaswamy judgment, privacy includes
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“... the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation... Privacy
safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy.” 4
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The Puttaswamy judgment firmly places the individual as the central decision- making entity in a democratic society, and gives them the right to keep these decisions private. The judgment states this succinctly;
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“Decisional autonomy comprehends intimate personal choices such as those governing reproduction as well as choices expressed in public such as faith or modes of dress. Informational control empowers the individual to use privacy as a shield to retain personal control over information pertaining to the person.” 5
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Conclusion
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We live in a digital world, where we are constantly being tracked, monitored, and managed by both the state and corporate entities. The author Shoshana Zuboff has famously termed it the stage of “Surveillance Capitalism,” 6 where we are told that parting with our personal information is an inevitable cost of making the most of what the contemporary world has to offer. Tech companies say that the only way they can customise our experience as consumers, is by collecting more and more information about us. And government agencies tell us that constant surveillance is the only way to keep us safe.
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Our personal information is digitized and turned into valuable data, which is used as a source of corporate power and also to control us as citizens. Whoever controls this data – or large chunks of it – can exercise immense power, without entering the formal political system of electoral democracy. In the age of AI and deep-fakes, personal data can be used to manipulate people and alter their behaviour. This has already emerged as a threat to democracy in various parts of the world. Therefore, the individual citizen’s privacy has become more important than it ever was, for democracies to function properly.
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It is in this context, that the Supreme Court’s Puttaswamy judgment has been heralded as something that has the “potential to reshape India’s national fabric.”7, which would have “far-reaching impact on civil-liberties and fundamental rights jurisprudence in Indian in years and decades to come.” 8 It firmly establishes that the right to privacy is a fundamental right, which cannot be amended by any government, nor can it be changed to suit the tastes and beliefs of any electoral majority.
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End Notes
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K. S. Puttaswamy v. Union of India, (2017) (Sup. Ct. India Aug. 24, 2017), Para 107 (Plurality opinion of Justice Chandrachud)
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Ibid, Para 54 (Separate opinion of Justice Kaul)
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Ibid, Para 126 (Plurality opinion of Justice Chandrachud)
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Ibid, Para T, 3 (F) (Plurality opinion of Justice Chandrachud)
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Ibid Para 141 (Plurality opinion of Justice Chandrachud)
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Zuboff, Shoshana, The Age of Surveillance Capitalism: The Fight for a
Human Future at the New Frontier of Power. Profile Books, 2019.
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Guruswamy, Menaka, ‘Justice K.S. Puttaswamy (Ret’d) and Anr v. Union of India and Ors, Writ Petition (Civil) No. 494 of 2012’ The American Journal of International Law, Vol. 111, No. 4 (October 2017), pp. 1000
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Bhatia, Gautam, ‘The Supreme Court’s Right to Privacy Judgment.’ Economic and Political Weekly, Vol. 52, No. 44 (November 4, 2017), pp. 22-25
Bibliography
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1. Justice KS Puttuswamy (Retd) and Anr. Vs Union of India and Ors, Writ Petition (Civil) No.494 of 2012 (Supreme Court of India, August 24, 2017)
https://main.sci.gov.in/supremecourt/2012/35071/35071_2012_Judgement_24- Aug-2017.pdf
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Bhatia, Gautam, The Transformative Constitution: A Radical Biography in Nine Acts. Harper Collins, 2019.
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Zuboff, Shoshana, The Age of Surveillance Capitalism: The Fight for a Human Future at the Frontier of Power. Profile Books, 2019.
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Baghai, Katayoun, ‘Privacy as a Human Right: A Sociological Perspective.’ Sociology, Vol. 6, No.5, Special Issue: The Sociology of Human Rights (October 2012), pp. 951-965.
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Bhatia, Gautam, ‘The Supreme Court’s Right to Privacy Judgment.’ Economic and Political Weekly, Vol. 52, No. 44 (November 4, 2017), pp. 22-25
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Guruswamy, Menaka, ‘Justice K.S. Puttaswamy (Ret’d) and Anr v. Union of India and Ors, Writ Petition (Civil) No. 494 of 2012’ The American Journal of International Law, Vol. 111, No. 4 (October 2017), pp. 994-1000
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Noorani, A.G., ‘Right to Privacy.’ Economic and Political Weekly, Vol. 40, No. 9 (Feb. 26 - Mar. 4, 2005), p. 802.
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Revathi, Raddivari, ‘Evolution of Privacy Jurisprudence: A Critique.’ Journal of the Indian Law Institute, Vol. 60, No. 2 (April-June 2018), pp. 189-199.