Setting the Record Straight: Clarifying the Right to Privacy

Bar & Bench July 22 2017

Rishika Taneja and Sidhant Kumar

Privacy (with data protection as its subset) in today’s context is not an abstract human rights concern alone. Over time, it has acquired elevated importance owing to the increasing use of data in our social and economic interactions. Therefore, it is imperative that we have a clear legal basis for the fundamental Right to Privacy.

The Supreme Court, recently sitting as a nine-judge Constitution Bench, (Justice KS Puttaswamy (Retd.) & Anr. v. Union of India & Ors ) has been hearing arguments on the question whether privacy is a fundamental right protected by the Constitution. In essence, the dispute is focused on the validity of two decisions of the Supreme Court as binding precedents.

The Union of India has disputed the position of privacy as a fundamental right by citing two decisions of the Supreme Court in MP Sharma v. Satish Chandra, an eight-judge bench decision and Kharak Singh v. State of Uttar Pradesh, a six-judge bench decision. In effect, the Union, suggested that about fifteen subsequent judgments of the Supreme Court accepting privacy as a fundamental right, at variance with the ratio in the aforesaid judgments, ought to be declared per incuriam.

Broadly, the decisions in MP Sharma and Kharak Singh are based on the understanding of fundamental rights enunciated in AK Gopalan v. State of Tamil Nadu. The decision in Gopalan’s case merely required a ‘procedure established by law’ to pass the muster of constitutionality and opined that each of the fundamental rights are distinct and have an independent sphere of operation.

However, it is a generally accepted proposition of law for the last four decades that the Gopalan doctrine was replaced by the ‘due process’ principles set out first by a seven-judge bench of the Supreme Court in Maneka Gandhi v. Union of India. This is by virtue of the decision of an eleven-judge bench of the Supreme Court in the Bank Nationalisation Case that expressly overruled the Gopalan principles.

As a result of the Bank Nationalisation Case, the principles of expansive interpretation of fundamental rights, due process and the integrated nature of fundamental rights as set out in Maneka Gandhi’s case reigned supreme in our rights jurisprudence. Fundamental rights are not distinct silos, but form a mesh of protection of fundamental freedoms.

Ergo, the concept of privacy as a part of personal liberty resides in a number of rights including Articles 14, 19, 20(3) and 21. In the last four decades, this exposition of the Constitution has led to an expansive interpretation of rights, especially the Right Life and Personal Liberty under Article 21 bringing within its ambit a galaxy of unarticulated rights. In many senses, the attempt to revive the view of rights contained in MP Sharma and Kharak Singh belies the evolved wisdom of our jurisprudence over the past forty years.

The minority opinion in Kharak Singh’s case expressly recognized privacy to be an essential ingredient of personal liberty protected by Article 21, in addition to holding that fundamental rights cannot be considered akin to watertight compartments and laws must comply with the entire body of rights. The majority view in the case that declined to recognize a privacy right based on the decision in MP Sharma was specifically held to be erroneous in Maneka Gandhi’s case.

The minority view in Kharak Singh case is today trite law in view of the reaffirmation of its ratio in Maneka Gandhi, which became the defining precedent in interpreting fundamental rights by virtue of the eleven-judges decision in the Bank Nationalisation Case. Further, the Supreme Court in Mohammed Arif v. Supreme Court of India has re-confirmed the lack of precedent value of the majority view in Kharak Singh case (and by extension, its basis rooted in the MP Sharma case) even as late as 2014.

Buttressing the position discussed above is the fact that even the majority opinion in the Kharak Singh case by necessary implication recognized privacy by holding that the age old common law maxim ‘every man’s house is his castle’ is an important part of personal liberty. The decision in MP Sharma’s case, apart from being based on a subsequently overruled exposition of the Constitution, is based solely on Article 20 (3) and not Article 21, which is dealt by subsequent decisions that have recognized privacy.

In addition to re-affirming a Right to Privacy, the Court must attempt to add juristic content to the four-decade old right. The Court has a choice to catalogue the Right to Privacy or allow for a case-by-case evolution based on broad contours. The ubiquitous use of data in all transactions also requires the definition of the right against private parties.

Most importantly, the court must also recognize that remedying breaches of privacy will require the balancing of other rights, including free speech and interests such as those of efficient governance. It is well accepted that no right is completely absolute; rights are subject to reasonable restrictions within a defined scope. The Supreme Court must in this case define the broad contours of the grounds for reasonable restrictions with respect to a fundamental right to privacy.

Rishika Taneja is a practicing advocate in India with a BCL from Oxford University as a Harish Salve Scholar. Sidhant Kumar till recently was practicing at an international law firm in Singapore and is presently a LL.M. student at Stanford Law School. Rishika and Sidhant are the authors of the book ‘Privacy Law: Principles, Injunctions and Compensation’, Eastern Book Company, 2014.

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