It has been three remarkable years since the nine-judge Bench of the Supreme Court in the Puttaswamy judgment declared ‘right to privacy’ as a fundamental right. In order to provide flesh and bone to the newly envisaged right, the Court propounded the test of proportionality and reasonableness to be applied for impairment of the right.

The judgment was a dossier of privacy rights and principles ruminating in the context of the fundamental right to privacy. While being a guiding light, its content and applicability was left to be determined by subsequent decisions as and when the case arose.

Understanding the privacy principles

Before diving into the subject matter, it would be apposite to recap the principles enunciated in this judgment. Apart from holding privacy as a fundamental right, the majority pressed for negative and positive elements of privacy. While the former delimits unwarranted state intrusion, the later cast a positive duty on state to legislate laws for protection of privacy of individuals.

Justice Sanjay Kishan Kaul also emphasized on extending the claims of privacy against non-state actors in light of pervasive data generation, collection, and use in a digital economy.

Justice DY Chandrachud gave three tests for invasion of privacy rights: legality, legitimate aim and proportionality. Justice J Chelameswar, borrowing from the US example, appended a fourth test i.e. the ‘strict scrutiny test’, meaning thereby privacy claims can be abandoned by the state in justified cases of compelling state interest.

Gary Bostwick’s notion of privacy rights and its subset found its recognition in the concurring opinions of Justice Rohinton Nariman and Chelameswar. The Court opined that “it is sufficient to go by the understanding that the right to privacy consists of three facets i.e. repose (freedom from unwarranted stimuli), sanctuary (protection against intrusive observation) and intimate decision (autonomy with respect to the most personal life choices)”.

Nariman J further recognised that privacy has three different aspects - physical privacy, informational privacy and privacy of choice. The same was also endorsed by Chandrachud J.

Post-Puttaswamy position of law and conflicts

Thomas Hobbes in Leviathan expressed that “Since, the origin of state is the consequence of its people surrendering certain rights to the state, it is the state responsivity to protect them and if in order to protect the same if the state has to put reasonable restrictions on the rights of its people, it can do so”. The jurisprudential views of Hobbes have contextually become a matter of rift in balancing fundamental rights and state sanctioned restrictions.

Privacy, or for that matter any fundamental right, is unequivocally an inherent right accorded to every human being. However, privacy as a right is not absolute and can be limited by imposing reasonable restrictions, the test for which was laid down in the Maneka Gandhi judgment. The interesting situation arises when the contesting claims are between the right to privacy and other fundamental rights.

Recently, the Delhi High Court opined,

“In a contest between the right to privacy and the right to fair trial, both of which arise under the expansive Article 21, the right to privacy may have to yield to the right to fair trial”.

The reasoning can be traced back to the Constitution Bench judgment in Sahara India Real Estate Corporation Limited. In that case, the Supreme Court expressed,

“Under our Constitution no right in Part III is absolute. It must not be forgotten that no single value, no matter exalted, can bear the full burden of upholding a democratic system of government. Underlying our Constitutional system are a number of important values, all of which help to guarantee our liberties, but in ways which sometimes conflict...Consequently, free speech, in appropriate cases, has got to correlate with fair trial. It also follows that in appropriate case one right [say freedom of expression] may have to yield to the other right like right to a fair trial.”

Given the constitutional dilemma of balancing privacy rights with other vested interests, the courts in India in the recent past have been pro-active in upholding the true spirit of the Puttaswamy judgment.

The preservation of privacy in context of anonymization and handling of COVID-19 health data by Sprinklr, after a huge public outcry addressing the legality and usage of Aarogya Setu app on best effort basis in context of privacy by the government, confidentiality and usage of call data of patients, right to privacy and dignity of a victim of rape against the accused right to fair trial, the order of Allahabad High Court for taking down Anti-CAA protestors' names and images, the Supreme Court and Bombay High Court remarks in phone-tapping case as an instance of violation of right to privacy, the Bombay High Court judgment upholding right of a flat owner’s privacy against the installation of CCTV camera’s and the subsequent Supreme Court judgment allowing for installation of CCTV camera in government schools by Delhi government for protection of children against abuse, are few of the many instances leading to further expansion of the roots of the Puttaswamy verdict.

Notably, privacy has also been used as a reasoning in the famous cases of reading down of Section 497 IPC and holding Section 377 IPC as unconstitutional.

Concluding remarks

The realm of privacy after the Puttaswamy verdict has been ever-expanding. The judgment was seen as an equalizer of privacy right against the world at large. However, in this era of technological explosion and data mechanics, enforcement of privacy against non-state actors has been woeful. The current laws under the Information Technology Act, 2000, or the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 have become mechanically insufficient in preserving our privacy.

With the kind of revolution in technology we are seeing and the higher monetary consideration that has been attached to data, privacy law in India is not in a good state. In some connotation, privacy has become a mythical right with a business outlook. The need of the hour is structured enforcement. The State should fulfil its positive obligation and while expediting its approach, legislate the long pending Personal Data Protection Bill, 2019.

Presently, the country is acting in a legislative void, wherein we are only aided by precedents, and not any legislated definite laws addressing finer the concepts of privacy. Recently, the Committee of Experts on Non-Personal Data Governance Framework has released its report and recommended that a separate legislation be formulated to govern non-personal data through a new regulatory body. The move of the government to this effect is really appreciable, but efforts need to bear fruit.

As we observe the third year of privacy as a fundamental right, it should not just remain a mere idle incantation, but must become a living reality for us.

The authors are law students at Symbiosis Law School, NOIDA.