Justice S K Kaul

THE CONCEPT OF ‘INVASION OF PRIVACY’ IS NOT THE EARLY CONVENTIONAL THOUGHT PROCESS OF ‘POKING ONES NOSE IN ANOTHER PERSON’S AFFAIRS’. IT IS NOT SO SIMPLISTIC. IN TODAY’S WORLD, PRIVACY IS A LIMIT ON THE GOVERNMENT’S POWER AS WELL AS THE POWER OF PRIVATE SECTOR ENTITIES

Privacy is an inherent right. It is thus not given, but already exists. It is about respecting an individual and it is undesirable to ignore a person’s wishes without a compelling reason to do so.

The growth and development of technology has created new instruments for the possible invasion of privacy by the State, including through surveillance, profiling and data collection and processing. Surveillance is not new, but technology has permitted surveillance in ways that are unimaginable. Edward Snowden shocked the world with his disclosures about global surveillance.

States are utilizing technology in the most imaginative ways particularly in view of increasing global terrorist attacks and heightened public safety concerns. One such technique being adopted by States is ‘profiling’. The European Union Regulation of 2016 on data privacy defines ‘Profiling’ as any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements. Such profiling can result in discrimination based on religion, ethnicity and caste. However, ‘profiling’ can also be used to further public interest and for the benefit of national security. The capacity of non-State actors to invade the home and privacy has also been enhanced. Technological development has facilitated journalism that is more intrusive than ever before.

The concept of ‘invasion of privacy’ is not the early conventional thought process of ‘poking ones nose in another person’s affairs’. It is not so simplistic. In today’s world, privacy is a limit on the government’s power as well as the power of private sector entities.

The concerns expressed on behalf of the petitioners arising from the possibility of the State infringing the right to privacy can be met by the test suggested for limiting the discretion of the State: “(i) The action must be sanctioned by law; (ii) The proposed action must be necessary in a democratic society for a legitimate aim; (iii) The extent of such interference must be proportionate to the need for such interference; (iv) There must be procedural guarantees against abuse of such interference.”

The right to privacy as already observed is not absolute. The right to privacy as falling in part III of the Constitution may, depending on its variable facts, vest in one part or the other, and would thus be subject to the restrictions of exercise of that particular fundamental right. National security would thus be an obvious restriction, so would the provisos to different fundamental rights, dependent on where the right to privacy would arise. The Public interest element would be another aspect.

The right of privacy is a fundamental right. It is a right which protects the inner sphere of the individual from interference from both State, and non-State actors and allows the individuals tomake autonomous life choices.

It was rightly expressed on behalf of the petitioners that the technology has made it possible to enter a citizen’s house without knocking at his/her door and this is equally possible bo.th by the State and non-State actors. It is an individual’s choice as to who enters his house, how he lives and in what relationship. The privacy of the home must protect the family, marriage, procreation and sexual orientation which are all important aspects of dignity.

If the individual permits someone to enter the house it does not mean that others can enter the house. The only check and balance is that it should not harm the other individual or affect his or her rights. This applies both to the physical form and to technology.

In an era where there are wide, varied, social and cultural norms and more so in a country like ours which prides itself on its diversity, privacy is one of the most important rights to be protected both against State and non-State actors and be recognized as a fundamental right.

How it thereafter works out in its interplay with other fundamental rights and when such restrictions would become necessary would depend on the factual matrix of each case. That it may give rise to more litigation can hardly be the reason not to recognize this important, natural, primordial right as a fundamental right.

Let the right of privacy, an inherent right, be unequivocally a fundamental right embedded in Part III of the Constitution of India, but subject to the restrictions specified, relatable to that part. This is the call of today. The old order changeth yielding place to new.