Why privacy must be a fundamental right
About 30 years ago there was an oleum gas leak in Delhi from the factory of Shriram Foods and Fertiliser Industries. The noxious gas affected a large number of persons, and resulted in one death. Coming shortly after the Bhopal gas leak tragedy, the Supreme Court started on a path of judicial innovation to craft constitutional doctrines which would safeguard human life and the environment. In time the court permitted representative actions when it treated postcards and letters as petitions and created substantive principles, such as “polluter pays”. The court will now be required to rule on the right to privacy, in an age where data is called the new oil, with little or no protection set for its extraction.
The Indian Constitution has established a stable democratic government since Independence. It has a chapter on fundamental rights that have safeguarded citizens from state excesses. Though these claims may seem lofty, subject to criticism due to inconsistent application, they stand in stark contrast to the complete absence of the mention of any express right or protection afforded to privacy. There is no definite reason for the non-inclusion of privacy as a fundamental right in the Constitution of India. However, the omission of such express language by itself is not a credible basis for denying the existence of privacy.
But what is privacy? Privacy is an internationally recognised human right present and protected by law in almost all democracies. Think of privacy as a foundation that allows a person to build a house to attain a sense of freedom from the eyes of society to the hands of the government. Privacy limits the amount of interference in a person’s ability to take decisions over different aspects of their lives. Privacy is liberty itself.
For any meaningful basis to a constitutional text, a court has to interpret not only its words but its objectives and values. Hence the Supreme Court of India recognised the fundamental right to privacy in the case of Gobind v State of Madhya Pradesh (1975) 2 SCC 148. The Court held that “Subha Rao, J. writing for the minority [in the Kharak Singh case], was of the opinion that the word ‘liberty’ in Article 21 was comprehensive enough to include privacy also. He said that although it is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the right is an essential ingredient of personal liberty…”
For close to 40 years, an unbroken line of decisions linked privacy to the spatial protection of our bedrooms, to our individual choices of diet and sexuality, even informational determination such as the choice of disclosing a medical condition. Running through this list, applying it to our own lives, we can readily recognise that any meaningful human existence requires independence in thought and action which is protected by privacy.
The development of the constitutional law of privacy would have continued unabated but for a technical dispute raised by the government in August 2015. During the hearing of the Aadhaar petitions, it contested the existence of the fundamental right to privacy, stating that the numerical strength of the bench that determined the Gobind case was smaller than earlier decisions of the Court which reached the opposite conclusion. This caused a constitutional reference for which a bench of nine judges was constituted in July 2017 and is expected to give a decision within a month. During the case hearings, the status of privacy as central to our existence in an information society has been a question often engaged by the Court and the lawyers. These are not only concerns about technology and data but properly those of power and control.
A few decades ago, industrialisation was regarded as a panacea for our economic and social ills. Today the same elevated status is being ascribed to technology. While it is undeniable that technological innovation continues to facilitate access to knowledge and communication, this has not been without risks. The most immediate one is the ability of each point of communication to generate vast quantities of personal data. This is gathered every second in large quantities beyond any reasonable conception of informed consent of a user. It is used, stored and disclosed without any rights available. What is more worrying is the ability of modern technology to track smaller amounts of information about information, popularly referred to as meta data. These help build detailed character profiles that can by themselves be used to undermine a person’s ability for meaningful thought and action. It is a form of censorship that enforces conformity and even results in a denial of services. These dangers, if unregulated, will only increase in time. The dangers only grow in concern when the data controller is the government.
The solutions before the Supreme Court seem to require it to not only seize the concerns of today but also gaze into the future. While such a task may seem difficult, it requires focusing on constitutional values that protect individuals as they did during the first wave of environmental litigation. The choices before our constitutional court are clear. It is to evolve and permit the continuation of liberty and freedom through a fundamental right to privacy which stands the test of time.
The Supreme Court must not only seize the concerns of today but also gaze into the future. It must permit the continuation of liberty through a fundamental right to privacy which stands the test of time