The word “private” has the meanings: (1) belonging to a particular person (his/her own body or his/her own property), (2) not sharing thoughts or feelings with others, and (3) not connected with a person’s work or official role. From this adjective, we obtain the abstract noun “privacy”, which means “a state in which one is not watched or disturbed by others”. Thus privacy is something precious to a biological person, and includes the need to be left alone, even while remaining a member of society.
Glenn Greenwald, recounting Edward Snowden’s exposure of US NSA’s clandestine surveillance, writes: “Only when we believe that nobody else is watching us do we feel free – safe – to truly experiment, to test boundaries, to explore new ways of thinking and being, to explore what it means to be ourselves… for that reason, it is in the realm of privacy where creativity, dissent, and challenges to orthodoxy germinate. A society in which everyone knows they can be watched by the state – where the private realm is effectively eliminated – is one in which those attributes are lost, at both the societal and the individual level.”
The Constitutional Preamble secures to all its citizens liberty of thought, expression, belief, faith and worship. Thus the Constitution assures freedom of thought, word and deed. A person is essentially free to think about anything, and there can be no external control on the thought process except perhaps only in very broad terms, such as political or religious propaganda or insidious advertisement. A person’s thoughts are revealed directly or indirectly only through his/her words or deeds. However, administration of certain so-called truth drugs by (illegal) narco-analysis can force inner-most thoughts to surface in words or movements, although the veracity and reliability of such revelations are questionable. Thus, by thought alone, one person cannot violate another person’s privacy. But by expressing his/her thought(s) through words or deeds, another person can be disturbed, and thus constitute invasion of privacy. Hence the need to have reasonable restrictions on the right of expression.
But the issue of privacy calls for somewhat more detailed consideration in the context of the relationship between the State and the individual human being (“citizen” hereinafter), where the right to privacy assumes different aspects and dimensions. [This author prefers to use the word “citizen” instead of “person”, because the word “person” can be extended to corporate bodies which possess the legal fiction of personhood]. To understand the aspects of the right to privacy and its effects on the private and civic life of a citizen, one needs to look at the historic unanimous verdict (Justice K.S.Puttaswamy v. Union of India, “Puttaswamy Judgment” hereinafter) of the Supreme Court’s nine-judge bench on 24 August 2017, in which the right to privacy was pronounced as a fundamental right which, like other fundamental rights, is subject to reasonable restrictions.
It is appropriate to begin with para 3 of the Order, which states that “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.”, and that privacy is a value “whose protection is a matter of universal moral agreement: the innate dignity and autonomy of man”.
Expanding the idea of privacy, the Puttaswamy Judgment (para 142) speaks thus: “Privacy has distinct connotations including (i) spatial control; (ii) decisional autonomy; and (iii) informational control. Spatial control denotes the creation of private spaces. 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.”
This unequivocally places the citizen at the heart of privacy, which is integral to his/her human dignity, liberty and autonomy. Privacy is not created or granted by the Constitution, which only recognizes and guarantees it as a fundamental right of the citizen, who is the basic unit of the Constitution. Para 12 of the Puttaswamy Judgment states that privacy is “an inalienable natural right”. Thus, privacy has a position of centrality in the Constitution of our democratic Republic.
Privacy concerning information about a citizen such as income status, religious persuasion, sexual orientation or other demographic data goes beyond the physical body. Indeed, para 81 of the Puttaswamy Judgment speaks about informational privacy thus: “… [ it ] does not deal with a person’s body but deals with a person’s mind, and therefore recognizes that an individual may have control over the dissemination of material that is personal to him. Unauthorised use of such information may, therefore lead to infringement of this right.”, while para 142 enables the citizen to have control over his/her informational privacy: “Informational control empowers the individual to use privacy as a shield to retain personal control over information pertaining to the person.”
In present times, personal information is digitized and constitutes data, the protection and security of which is vital to the citizen’s control over his/her privacy. The Aadhaar system immediately comes to mind in this connection, noting that the Aadhaar number is seeded (linked) with different silos of information which a citizen may have. UIDAI’s Aadhaar system has captured biometric data of around one billion citizens at enrolment by private operators, who are employed by “Registrars” who in turn are appointed by UIDAI through a MoU. These private operators, essentially contractors, capture biometric data, hold it and transmit it to UIDAI’s database, which is called Central Identities Data Repository (CIDR). There is no check whether the private operator may have made a copy of data before transmitting it or has deleted the acquired data after transmitting it. Further, the UIDAI’s CIDR was created by foreign contracting firms which have close links with their respective governments and intelligence agencies, and have access to data in the CIDR and data-safety features of the CIDR.
Thus the Aadhaar system compromises the security of personal data at a systemic level, thereby disempowering the citizen and making him/her vulnerable through loss of privacy. Notwithstanding that the Aadhaar system was designed long before the Puttaswamy Judgment, it passes comprehension how the designer of the system – reportedly a corporate honcho, expert in information technology – was so negligent and casual about the data security of citizens. The union government having belatedly constituted the Srikrishna Committee to address the issue of data protection and draft an appropriate Bill, is proof enough that data security of Aadhaar is inadequate, and that citizens’ privacy is already a casualty. This could be the reason that the criminal culpability concerning this design flaw is being highlighted in some quarters.
If a citizen has control over his/her personal data, it includes opting to share it with any entity which may demand it, such as a government department which provides benefits, or a bank, or a commercial service provider. However, the State has a responsibility in this, according to para 70 of the Puttaswamy Judgment, which reads: “The State must ensure that information is not used without the consent of users and that it is used for the purpose and to the extent it was disclosed.”
Furthermore, the citizen who decides to part with personal data needs to understand the implications including the risks and consequences, of doing so. The vast majority of the population which has already provided their biometrics to UIDAI and also used their biometrics at many fingerprint recording machines for various purposes, is unaware of these, and may be conned or pressured into parting with his/her data, which may be used for commercial purposes or even illegal purposes. Hence, when a citizen consents to share data, it has to be “informed consent”, and the Puttaswamy Judgment rules that informed consent is central to informational self-determination and by extension, to the citizen’s privacy. Further, even after providing data with informed consent, the citizen continues to retain privacy control over the information, in that the receiver of the data shall use it only for the limited purpose for which it was received, and shall not share it with any other entity.
Regarding decisional autonomy of the citizen, the Puttaswamy Judgment has made it clear that “… liberty enables the individual to have a choice of preferences on various facets of life including what and how one will eat, the way one will dress, the faith one will espouse and a myriad other matters on which autonomy and self-determination require a choice to be made within the privacy of the mind”.
The right to privacy also permits a citizen to be “different” in India’s pluralistic, heterogeneous society, always providing that he/she is not a nuisance to society. Para 168 of the Puttaswamy Judgment says: “… privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity.” This laudable, bold assertion essentially permits deviation from the need to conform – the phrase “tide of conformity” is the key to recognition that individuality is under pressure – and become a “yes-man” or “Ji huzoor” to powerful people in society, ranging from notable persons in public life to teachers in schools who discourage, even abhor, questioning.
The matter before the nine-Judge bench was sharply focused upon whether or not privacy was a fundamental right. It is to be noted that the case came up as a result of the Union of India arguing during the hearings concerning challenges to the Aadhaar system, that privacy was not a fundamental right, and even that a person had no right over his/her own body. [One can well imagine the crushing power of the State over the citizen, had the nine-Judge bench upheld the arguments of the Union of India]. The arguments were however not related to the concrete example of Aadhaar which is yet to be adjudicated, but were conceptual in nature. The Puttaswamy Judgment essentially sets out the parameters within which the State could reasonably restrict or limit the right to privacy of a citizen.
In the current ambience of terrorist threat, and the State having to ensure the safety of citizens, the State would attempt to justify the need for raising the levels of surveillance, which will inevitably impinge upon citizens’ privacy and other freedoms. This would include untargeted or suspicionless “street-corner” surveillance combined with use of advanced facial recognition techniques, besides geospatial tracking of persons through mobiles, credit card use, etc. Modern information technology hardware and software capability enables capture and analysis of metadata (data mining, collection and analysis) for very large populations, and can create a situation of a police state, with shadowy, unaccountable intelligence forces in control. It is in this ambience that the citizen’s protection against a domineering and intrusive State will have to be adjudicated based upon the touchstone of the different aspects of privacy as a fundamental right.
It is in this and similar situations that courts will need to decide on the limits to the fundamental right to privacy, so as to strike a balance between the public good achieved by policies, programs and executive orders of governments on the one hand, and the dignity, autonomy and liberty of the individual citizen on the other, while never losing sight of the high standards set for the State by the historic Puttaswamy Judgment.
In times of growing, overweening and coercive State power over ordinary citizens, the nine-Judge bench has created a foundation for civil liberties in the context of privacy, human dignity and autonomy. However, one can expect litigation in the future on a case-to-case basis, perhaps beginning with Aadhaar. These litigations will surely exercise both the Judiciary and legal fraternity on fundamental rights which the Constitution guarantees every citizen, in the years to come.
Over the years since 26 January 1950, the Supreme Court of India has come a long way in interpreting the Constitution of India and the courageous and unequivocal Puttaswamy Judgment is proof of that. Indeed, in a September 10, 2017, New York Times article titled “India’s Supreme Court Expands Freedom”, Menaka Guruswamy writes: “ … the privacy ruling represents a remarkable shift in the Supreme Court from a reticent post-colonial court on matters of individual liberty to an erudite constitutional court safeguarding freedom in the terrifying times of new India”.
Acknowledgement: The above article is based on a reading of the Puttaswamy Judgment. The author gratefully acknowledges reference to the excellent commentary on the Puttaswamy Judgment in “Indian Constitutional Law and Philosophy”, downloaded on September 11, 2017 from https://indconlawphil.wordpress.com/2017/09/10/the-supreme-courts-right-to-privacy-judgment-round-up/
Major General S.G.Vombatkere is Petitioner No.1 in three PIL cases concerning Aadhaar, which have been clubbed with Justice K.S.Puttaswamy v. Union of India