Adnan1 Abidi / Reuters
The Indian Supreme Court gave people across the country cause to celebrate last week with a landmark ruling upholding a fundamental right to privacy. A nine-judge bench of the Court unanimously upheld the recognition of a fundamental right to privacy under the Constitution. The judgment notes that the right to privacy is an intrinsic part of the right to life and personal liberty. It is also a part of the freedoms guaranteed across the fundamental rights.
The question of whether there is a fundamental right to privacy was initially brought before the Court in the context of a challenge to the government's Aadhaar program. However, the Court found it necessary to rule on the question independently of challenge against the collection and use of personal information for Aadhaar. The recognition of a fundamental right to privacy was (rightly) seen to be an issue of constitutional importance, one that goes beyond a single government program or statute.
What is the right to privacy? Can it be defined?
During the hearings before the Court, arguments were made on the contours and limits to the right to privacy. The respondents i.e. the government, argued that privacy as a concept cannot be defined, and should therefore not be recognised as a specific right under the Constitution. The petitioners on the other hand also noted that it may not be possible to define the right, but argued that it should continue to be discussed on a case to case basis as it has been over the years.
In last week's decision, the Court has gone far beyond the collection and use of personal information (for Aadhaar or otherwise), in identifying the contours of privacy. The right to privacy, in one of its oldest forms, has been described as the right to be left alone. The Court has added that the notion of privacy allows an individual the ability to make choices without the burden of social expectations. It has also recognised that privacy is essential to dignity, life and liberty. Addressing the government's argument that privacy is an elitist concept that only the rich concern themselves with, the Court has also noted that these rights are just as essential to any member of society, irrespective of class boundaries.
Over the years, many theories and classifications of privacy have been developed outside the courts. Some emphasise autonomy and anonymity. Others focus on the manner in which the right must be guaranteed – privacy laws must exist for the common good, whether or not individual citizens expressly ask for / want it. In its judgment, the Court has examined a number of these theories and classifications and adopted different versions of these theories.
Some of the common attributes of privacy recognised across the opinions of the judges are: (i) personal privacy – that relates to a person's body or private space; (ii) the ability to make intimate personal choices; and (iii) the ability to control personal information that relates to the person.
Most importantly, the Court has noted that the right to privacy applies in relation to a person and not to the space that she / her information occupies – i.e. the right to privacy can be exercised in a public space, just as well as it can in a private space.
How this right applies to us on a daily basis:
The Court has noted that the concept of privacy evolves with society, and it is not possible to provide a definitive description of what the right to privacy includes. However, it has provided a few examples to help us interpret this right in the future. Concepts such as the choice of a family life and marriage, choice of food, choice of attire, and the choice to procreate have already been recognised as attributes of privacy by the Court in the past. The judgment upholds these decisions.
In addition, in a huge step forward from the Court's previous position on the issue, the Court has recognised sexual orientation as an essential attribute of privacy and dignity. This particular observation marks a significant shift in the way the Court has approached not only the right to privacy but claims of dignity and equality.
Informational privacy
The third attribute that the Court has discussed extensively is that of informational privacy i.e. protection of personal information of individuals. We live in an era where big data is collected from each of us all the time. Should the government wish to, it can engage in constant surveillance of citizens and non-citizens alike – collecting information that ranges from something as innocent as the amount of time we spend traveling to work, to details of our bank transactions or communications with friends and family. The Court has noted that in this context, privacy maybe challenged by actions of both the government and private actors. This can be concerning because it can lead to (a) a violation of the autonomy of an individual, and their right to privacy itself; or (b) discrimination in the provision of services and benefits or even administration of law enforcement activities.
The Court noted that the government has set up a committee* to look into the data protection laws in the country and recommended that a suitable law is framed by the government soon.
It is important for this committee to keep in mind that the Court in its description of informational privacy has not limited itself to specific types of information – the right applies in relation to all information about a person. This is important given that the data protection laws we have in place today provide the limited protection they do, to specific types of "sensitive" information only.
It is equally important for the committee to remember the Court's observations that privacy doesn't relate to the status of the information to be protected, but to the person whose information is concerned. Personal information cannot be used indiscriminately, simply because information has been shared by someone.
As many have observed since the judgment came out, the right to privacy, like the other fundamental rights can be restricted. The Court has also observed that, especially in the context of informational privacy, laws maybe set in place allowing and regulating the collection and use of personal information if necessary.
Such laws will likely be considered restrictions on the right to privacy, where they concern activities of the State. These restrictions will need to be valid under the various tests outlined in the Constitution, and developed by the Courts over the years. The Court has in its judgments described some of these tests – the laws in question must be fair, just and reasonable, and be the product of compelling / legitimate state interest.
The first example that comes to mind in this context is the Aadhaar Act, which now governs the Aadhaar program. It has also been observed by many that the Aadhaar Act seemingly considers issues of privacy, and regulates the use of personal information. The Aadhaar Act and both existing and upcoming data protection laws will need to be tested against the various constitutional standards set for allowing an intrusion upon a fundamental right. The challenge to the Aadhaar Act is still pending, and will now be heard by the Supreme Court in the context of last week's judgment, among other things. It is hoped that the Supreme Court not only considers the right to privacy in the context of lawful and legitimate interests of the state, but also the very contours that it has described in this judgment.
*Many have noted that this committee has limited representation of independent academic/civil society members.