How we got around to talk about privacy

In 1973, I co-wrote an article "Privacy: Adventures of a Concept" to examine how two great traditions dealt with privacy as an enforceable legal concept. The "common law" tradition explicated privacy as a "bundle of rights" consisting of trespass of the home and body (rape, search and seizure), protecting persona and reputation (passing off, defamation and injunctive relief), defending personal rights of beneficiaries (trusts, especially constructive trust), criminal laws (protection of body, property and reputation), the general concept of negligence and confidentiality of papers and information.

Historical context

The "constitutional tradition" looked at the combination of equality, liberty and due process to examine intrusions into the life and liberty by the state and others. Both traditions did not mature into easily discernible rights which the law would enforce. The question was: would a civil court enforce a right to privacy.

Or, as Ratan Tata claimed, could the Supreme Court enforce a constitutionally guaranteed right to privacy from phone tapping? As a juristic concern, discussions began with the famous Warren Brandies article of 1890 in the Harvard Law Review to produce a continuing rich literature.

The constitutional tradition protected privacy, in various cases in America, Europe, and India but indirectly as an adjunct to existing guaranteed freedoms. The Indian constitutional tradition was besieged by a variety of ambivalent decisions with some brilliant dissents and acceptances which occasioned the present nine-judge bench on privacy on August 24, 2017.

American decisions flirted with privacy in a big way extracted from all kinds of cases including those related to obscene material. In the Paris Adult Theatre case (1973), Chief Justice Rehnquist dealt with the spatial concept of a "zone of privacy" which was permissible in the private domain, but (as he put it) did not extend to “the live performance of a man and woman locked in sexual embrace in high noon in Times Square (claiming) to be engaged in valid political dialogue”. This shows how privacy itself is founded on complex foundations — with each application being increasingly problematic.

Apart from common law and statutory endowments enhancing or restricting privacy, there is also the question of how privacy derives from constitutional text. Is it imbricated Article 21 (life and liberty) and Article 14 (equality) and the entire bundle of freedoms in Article 19? In India’s latest privacy decision (2017), Justice Chandrachud emphatically rejected the argument of many states that statutory protection was the answer?

Son overrules father

Why, then, Justice Chandrachud asks, have a Bill of Rights at all? Indeed, it was precisely the failure of statutory provisions that led to his father and others’ catastrophic decision in the Emergency Detention case (1976) that ignored constitutional fundamentals in favour of statutory restrictions. Chandrachud the son overruled Chandrachud the father. His father would have approved.

But once we advance the cause of constitutional over statutory protection, how and from where will the architecture of privacy be drawn? Chandrachud broadly defines the content of privacy as the right to “of each human being to be left in a core which is inviolable”. What is this "core"? He rightly recognises that individuals live in a network of “relationships” including the “overarching presence of state and non-state entities” regulating “social existence... bearing upon the freedom of the individual” (and)... the opportunities and dangers to liberty in a digital world”.

Are we doing no more than expanding the scope of liberty with which Chandrachud discerns an “overlap” both privacy and liberty being founded on “individual autonomy”. This is inferred in the judgments of Chandrachud, and Bobde.

The rejection

But Nariman rejects Gopal Subramaniam’s argument that privacy is interchangeable with liberty, a view espoused more sensitively by Justice Chelameshwar. Indeed, if this was so, what was the "hoo-haa" about this revolutionary privacy decision. Nariman locates the concept of privacy in “the cardinal value of fraternity which assures the dignity of the individual”. This is a fresh approach distinct from the mechanical repetition of past doctrine. But we still need to explore the contours of privacy as an enforceable idea.

Apart from defining the scope of privacy, we also have to deal with the nature of restrictions that can be imposed on those sub-rights which are enclosed by the wider concept of privacy as a constitutional right. Privacy will have to yield with concepts such as national interest, state interest, public interest and private interests.

Justice Chelameshwar deals with past decisions with greater generosity, asks for conceptual clarity and examines contemporary problems of created by state intrusions in homes while doubting whether “anybody would like to be told what they should eat, how they should dress or whom they should be associated with, in their personal, social or political life”.

If we are unhappy with how privacy has been differently treated by judges, its recognition as a constitutional idea achieves a lot. It will affect the Aadhaar decision and overrule Justice Singhvi’s decision to criminalise homosexuality. But, the very idea of privacy enables a fecundity of thinking.

(Courtesy of Mail Today.)

Also read: Why no one is stopping North Korea from firing ballistic missiles