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Exploring The Wide Nuances Of Informational Privacy: Analyzing Justice Kaul’s Opinion In Justice K.S. Puttaswamy v/s UOI

Right to Privacy has gained tremendous strength (Momentum) in India and the last few years have been critical to its development and the degree of its formalization. Privacy in ‘stricto sensu' is the ultimate expression of an individual's autonomy. It protects not only an individual's dignity but also his beliefs, freedom of expression, ideas, etc.

Privacy as a constitutionally protected right gained recognition under the veil of personal liberty and individual dignity in the case of K.S. Puttaswamy v. Union of India which overruled the judgments of M.P. Sharma and Kharak Singh and declared the right to privacy as an inherent right under Article 21 of right to life. But with this judgment, the aspect of informational privacy specifically enumerated by Justice Sanjay Krishna Kaul which has been in sidelines for many years gets its recognition with its own sets of caveats and exceptions.

In today's world where the quote data is the new oil  propounded by India's richest man, one may think it is ridiculous to create such a concept but at the same time the idea of Data transfers to third party and erosion of privacy by state poses a serious threat to one's privacy. Hence, it can be said that technology has brought with itself both development and destruction.

There is a strict need to look after the surveillance and profiling of the information as concern rose by Justice Kaul. Informational privacy is an urgent need as it has linkages with other personal data sets and the threat of getting leaked out is obvious by state or state entities. Anyone who encroaches privacy shall be dealt with accordingly like the other fundamental rights.

It has three facets- it is non-rivalrous, invisible, and recombinant which says that there can be multiple users of a single piece of data and data can be used to produce more fake data. The crucial concern is that it is very hard to detect the source of such an attack thus making it more difficult to catch the culprit. It can take any form like profiling by states in the name to protect from terrorist attacks and data sharing and generating by non- state entities etc.

The author in this article will analyze the implication of the judgment and how the subsequent Data protection bill makes a case for the way towards future. This comment positions itself firmly and nicely contributes to this field. It also complements the work done by the reverend jurists and authors as it begins with a historical overview and concludes itself on an analytical note.

Facts
In August 2017, the nine-member Supreme Court bench gave its judgment in K.S. Puttaswamy vs. Union of India. The key issue before the court was the constitutionality of Aadhaar on the grounds that it violates the right to privacy and whether the constitution of India incorporates the right to privacy as a fundamental right within the provision of Article 21.

These issues highlighted above are of utmost importance as Aadhaar is used by the government in such a way that it contains a database of personal identity and biometric information covering every citizen of India. This petition is in response to the Aadhaar project initiated by the government itself which poses some serious threats to the privacy of the citizens of India.

It is contrary to the fundamental rights guaranteed to the citizens of India by the constitution. The other concern came into the picture when the state itself encroaches the rights of its people which were also questioned in the said judgment.

Issues:

  1. Whether the right to privacy a constitutionally protected right and if it is, then whether it is absolute or inherent under the rights such as the right to life and liberty?
  2. What is the nature and scope of privacy and the magnitude of its protection?
  3. Whether the Aadhaar act violates the right to privacy and is unconstitutional on this ground?


Laws Applied By The Judge
In the present judgment, the judges discussed in detail the Indian case laws and dwelled upon the nature of fundamental and constitutional rights. They also based their judgment by referring to the international case laws or by comparing the laws on privacy in various countries like England, South Africa, the U.S, Canada, the European Court of Human Rights which is regulated by General Data Protection Regulation which emphasizes on the concept of consent[1] and the Inter-American Court of Human Rights). They also discussed the fair criticisms done by Bork, Posner stating that Privacy is the terrorist's best friend' thus making a fair argument on the government's side.

The said judgment overruled the unanimous decision of eight judges in M.P. Sharma v. Satish Chandra [2]and a decision by a majority of four judges in Kharak Singh v. State of Uttar Pradesh [3] wherein it was held that right to privacy is a fundamental right. The scope of Article 21 was widened and right to privacy was declared as the inherent right which is constitutionally protected. Right to dignity and right to privacy are two complementary to each other.

The judges discussed many cases relating to the issue of privacy and preamble or the interpretation of the scope of fundamental rights.

The encroachment of right to life and privacy must meet threefold requirement:

  1. legality- that there is a law
  2. need – that there is a need of the law
  3. proportionality- that the purpose of the law is fulfilled.

The issue regarding informational privacy was also discussed specifically by Justice Kaul in his judgment.  According to him, as the state is under the obligation for protection of fundamental rights, with this judgment it becomes imperative for the state to protect the individual's privacy.

This analogy can help apply in protection from private entity thus making the reach of this right even wider. In response to this, the government has formed a committee under the chairmanship of Shri Justice B.N. Srikrishna[4], a former judge of the Supreme Court to deal with the same matter.  Article 51 of the constitution in which the directive principles of the state are enshrined requires the state to endeavor to foster respect for international law and treaty obligations in the dealings of organized people with one another.

The authors shall show India's commitment to follow the guidelines under the international law where recognition of Privacy is there. Justice Rohinton F.Nariman and Dr. D.Y. Chandrachud J. both emphasized the importance to protect liberty and dignity of an individual. There is a need to control dissemination of private information.

The judgment also comprises of the comparative law perspective of the evolution of the right to privacy as a concept. The countries whose case laws were addressed are-:

  1. United Kingdom;
  2. United States;
  3. South Africa; and
  4. Canada

In these countries, right to privacy as a fundamental right is already established and was recognized across their boundaries. The judges also looked into the theories where privacy as a right was criticized by Judith Jarvis Thomson who says that it's only a basic right[5] and by Bork, Posner, and feminist critics.

Another area where the authors supported privacy by exploring its new facets was also contended by Alan Westin who talked about privacy in the terms of self-determination.it is upon oneself to decide that up to what extent the information about them is communicated to others.[6], Roger Clarke and Anita Allen. It also mentions how this concept was neglected in the constituent assembly by the framers of our constitution. Samuel Warren and Louis Brandeis in 1890 that an individual should control the data which he/she is sharing with the public. They mentioned the obligation which an individual has in order to safeguard his rights.

Judgment
While delivering the judgment, the court devoted a good time for discussion over the issues, and finally came out to the decision of declaring right to privacy as a constitutionally protected inherent right given under the provision of Article 21 i.e. right to live with dignity[7]. The case gave four types of privacy- privacy of space, body, information, and choice. The judgment by Justice Krishna Kaul stressed the need to address the issue of Informational privacy which is also emerging with the development of the technology. Privacy can be encroached by both the state as well as non- state entities.

Discursive Argument
Privacy is a dynamic concept which deals with the autonomy of an individual and it is a requisite of both rights to life as well as personal liberty. Many thinkers gave their viewpoints to elucidate on the definition of privacy. Tom Gaiety remarked, “right to privacy is bound to include body' inviolability and integrity and intimacy of personal identity including marital privacy.”[8]Another viewpoint of Jude Cooley who explained the law of as can also be understood as the right to be let alone[9].

Privacy as a right was in existence for ages but it lacked due recognition.
The enumeration of privacy as a natural right can be found in ancient texts like Hitopadesh which stated that there are certain matters like family, sex, and worship which should not be disclosed rather protected[10]. The privacy at that time was more based on the concept of positive morality.

With the passage of time, the definition of privacy got wider.  In consonance to the view of the famous Greek philosopher Aristotle, privacy has those matters which are personal to an individual and should be distinguished from the political affairs.[11] The concept of the linkage of privacy with the person's liberty as simultaneous rights got expression from the work of John Stuart Mill where he succulently stated that there should be a private zone where the liberty of an individual is protected from the state.[12]

In a historic judgment passed on 24th August 2017, the nine-judge bench unanimously recognized right to privacy as an intrinsic part of right to life and liberty. The case marked the new beginning by acknowledging right to privacy as a fundamental right. As far as the Modi government is concerned, the present judgment declared their intrusion of privacy invalid which was shielded by the idea of national security.

The judgment of Kharak Singh v. State of Uttar Pradesh and of M.P. Sharma and Kharak Singh which provided dissenting opinions about right to privacy as a constitutionally protected right was overruled by this same judgment. Hence, the implications of this judgment could be traced as providing channels for further elucidating on the same subject matter.

In the current judgment, Justice Sanjay Krishna Kaul looked beyond the question of discussing the scope of privacy and dwelled upon a different concept of, “Informational privacy”. He acknowledged privacy as a natural right which is not entirely absolute but also has limitations. He showed his concern on the increasing crimes relating to the informational privacy by state as well as non-state entities. Invasion of privacy is possible through surveillance, profiling, and data collection and processing by state.

Furthermore, in the age of information, many people are socially active and provide their information to the public but this creates a problem when the data which a person does not want to disclose gets leaked by non-state entities. He cited the examples of Facebook, Airbnb, Amazon, Uber, etc to explain how these non-state entities have access to personal information like choices, location, and thoughts of individuals.[13]

According to Justice Kaul, individuals are creating big data that gets permanently attached to a person's life forever. This data with the help of metadata can lead to the formation of a detailed individual profile. But with the passage of time, people also change but their past still haunts them through the online data generated in their names. This gives rise to a new concept called, “Right to be Forgotten” which has been gaining importance nowadays.

Hence, it becomes the duty of the state to control it. Some thinkers gave their viewpoints to elucidate the significance of privacy as a right. Roger Clarke derived at a classification where privacy is divided into bodily privacy, privacy of personal behavior, privacy of personal communications, and privacy of personal data aka informational privacy.[14] Anita Allen criticized the general notion of making other people, the scapegoats of their own negligence. She said that everyone has a moral obligation to respect not only other's privacy but also their own.[15]

The author very well connects to her critique and supports the same viewpoint that unless you are not active and protective of your own rights, others also have no duty towards it. But it is sad to note that even after such a landmark judgment emphasizing the importance of protection of Informational privacy and a data protection bill,[16]the government can flaunt their rules and regulation in the name of a pandemic. With the ongoing crisis of COVID 19, there are no checks and bound on the government with regards to data collection, surveillance by all means including the much-publicized Arogyasetu app that has complete access to one's phone.

This judgment has its immense implication in today's world where there was ambiguity w.r.t. to the scope of privacy. State government also worked on the matter of protecting informational privacy by establishing a committee on data protection laws under the guidance of honorable justice B.N.Shrikrishna. This judgment also helped to bring in light the very old and important issue of article 377 where it provided the passage to strike down this legislation by decriminalizing same-sex relationships. Right to privacy as a concept will change many already established concepts by the legislative courts in the near future.

The issues relating to the ban on beef or alcohol consumption in various states will be dealt with accordingly by relying specifically to this judgment. It paved a way to defense for the individuals to carry on their activities without getting intruded by state. When we talk about prostitution, the Indian legislative gives you a very blur idea about its legality. In the light of this judgment, prostitution can be legalized.

Subsequent Events And Conclusion
 According to the author, one way of effectively fighting this evil of erosion of privacy can be dealt with by proper implementation of blockchain technology. But this will come with its own sets of limitations and shortcomings. As seen that there are tension between Blockchain Technology and Common Data privacy Requirement US as well as General Data Protection Regulation EU as there is a difference in the definition of privacy thus its implications.[17]

The fear of information leak by Aadhar can be minimized by creating a personal encryption key to access one's data, this will allow the government to keep data in an encrypted form and individuals the liberty to share only the data they want to by providing encryption keys. Finally, an ecosystem needs to be developed which contains information in the cloud-based system but with appropriate safeguards so as privacy as a right can be upheld.

The Government of India after releasing the Data Protection Bill 2018 invited suggestions from the public and now has come up with new Data Protection Bill 2019. Clause 4 seeks to protect the processing of personal data without any specific clear and lawful purpose [18]but at the same time, it provides a collection of data by government agencies by the approval of the central government in case of security, sovereignty, friendly relation with other nation, etc. [19]And we all know how these loopholes are utilized to infringe privacy.

The present judgment is considered very significant in both the legal arenas as well as the political arena. Privacy is related to an individual, not the place. The case throws light on an old but less recognized concept of privacy which was there for many years but never gained importance. This judgment is very crucial in today's time as with the emerging technological world, crimes like erosion and encroachment of fundamental rights are also taking place.

When we talk about informational privacy, nobody wants to share their personal information with others because when it happens the other person can control his life. It is very important to address this issue which was very well aroused by Justice Kaul and to which the government is also taking a step. By overruling some previous judgment, the Supreme Court saved the individuality and the autonomy of the individual. Right to live with dignity, liberty, and right to privacy are the three rights that move together and their encroachment should be dealt with according to the procedure established by law.

End-Notes:

  1. The General Data Protection Regulation 2016
  2. MP Sharma v Satish Chandra [1954] 1077 SCR (SC)
  3. Kharak Singh v State of Uttar Pradesh (1964) 332 SCR (SC)
  4. Data Protection Committee Report ,2018
  5. Thomson J, 'The Right To Privacy' (1975) 4 Philosophy and Public Affairs
  6. Jeeuw k, and bergstra j, The History Of Information Security: A Comprehensive Handbook (1st edn, Amsterdam Elsevier 2007 2007)
  7. Rana P, 'Right To Privacy In Indian Perspective' (2016) 2 IJL
  8. Cooley T, A Treatise On The Law Of Torts (2nd edn, Callaghan and Company, 1879 1888)
  9. Mongia S, 'Legal Analysis Of Right To Privacy In India' (Legalserviceindia.com, 2019) accessed 13 April 2020
  10. James M, 'Comparative Analysis Of The Right To Privacy In The United States, Canada And Europe' (2014) 2 Connecticut Journal of International Law
  11. Mill J, On Liberty (1859)
  12. Applicability Of Justice Puttuswamy Vs Union Of India To Non-State Entities (samvadpartners, 2019) accessed 13 April 2020
  13. Puttaswamy V. India - Global Freedom Of Expression (globalfreedomofexpression, 2019) accessed 13 April 2020
  14. Protecting One's Own Privacy In A Big Data Economy. (SSRN, 2019) accessed 13 April 2020
  15. Personal Data Protection Bill, 2019.
  16. Shah, P, 'Blockchain Technology: Data Privacy Issues and Potential Mitigation Stratergies'<https://www.davispolk.com/publications/blockchain-technology-data-privacy-issues-and-potential mitigation-strategies> accessed 13 April 2020
  17. Personal Data Protection Bill 2019, cl 4
  18. Personal Data Protection Bill, 2019, cl 34

Written By:

  1. Kritika Tailor and
  2. Arpit Jhanwar

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