Privacy And Puttaswamy For The People's Palate: Part 2 Of 3

Bobde J.'s opinion

In the very first line of the opinion, the gravity of the situation is made crystal clear, the balance needed to be struck between the freedom and liberty guaranteed to each individual under the Constitution and the Aadhaar scheme of the Government of India which is the world's largest exercise to gather and collect data on personal identity and biometric information.

Bobde J., like Chelameswar J., is of the opinion that the judgments in M.P. Sharma and Kharak Singh do not state that there is no fundamental right to privacy in the Constitution. This is based on the reasoning that neither M.P. Sharma nor Kharak Singh had the benefit of a plethora of judgments starting with R.C. Cooper v. Union of India^[1] and the judgment in Maneka Gandhi which finally undid the 'compartmentalized rights' theory that held the field since Gopalan. Gobind which came in 1975 had slightly moved away from the conclusions arrived at in M.P. Sharma and Kharak Singh and was inclined to declare the right to privacy as a fundamental right. But the Court proceeded cautiously as M.P. Sharma and Kharak Singh had not been overruled and this led to confusion regarding the ultimate stance taken by the Court in Gobind.

The argument of the Union of India that the right to privacy may at best be a common law right but could not be a fundamental right under the Constitution was answered by delving into a jurisprudential study of the concept of 'right'. The views of John Salmond and Roscoe Pound are considered wherein the former opines that rights are interests that are sought to be protected on moral grounds irrespective of whether there exists a legal system or not, they are termed as natural rights^[2]. Meanwhile, the latter distinguishes between natural rights and legal rights on the ground that natural rights are interests which are neither created by law nor by the State and legal rights are interests which are indeed a creation of the law and are thus, the work of the State. Therefore, the conclusion that is arrived at per this analysis is that privacy is an inalienable right which is invariably involved with two integral, universal values- dignity and autonomy.

It is then differentiated between the powers and functioning of the present set up of a democratic State and the erstwhile common law monarch. While the power of the former is diffused and spread out over various organs each of which have their limitations and element of autonomy in functioning, the latter involved a single, tangible entity, the sovereign who was considered the fountain of all laws deriving their authority from a higher power. The most important distinction was that the subjects under the monarch were no more subjects, but became citizens with the power to elect their own representatives to form the government, a concept well summarized by the phrase 'We, the people'.

Bobde J. takes this discussion forward by alluding to the accountability in the functioning of the government which led to a problem of enforcement of common law rights against this diffused, omnipresent body. This is where the fundamental rights in Part III come in, providing an armor of protection to the citizens by invoking the jurisdiction of the Supreme Court and the High Courts under Article 32 and Article 226 of the Constitution respectively.

It is a well-accepted practice that the Constitution is empowered to protect natural rights qua the State.^[3] Using this, Bobde J. dismantles the argument put forth by the Union of India, that a right must either be a common law right or a fundamental right. He believes that the distinction is very narrow and lies in the entity against which an aggrieved individual may proceed- in case of a violation of fundamental right, it is the State which is responsible and in case of a common law right, a private entity may be proceeded against in the appropriate forum. Similarly, a valued interest may at the same time be a common law right and a fundamental right, and the remedy would lie accordingly depending on the entity that is interfering with the valued interest.

Bobde J. opines that privacy as a right is expansive much like many other rights in Part III, like the right to equality under Article 14. It is then attempted to define what privacy is. As per Black's Law Dictionary," Privacy is the condition or state of being free from public attention to intrusion into or interference with one's acts or decisions". The right seems to be hinged upon being left alone and free from interference, both of which are applicable in the private sphere but may extend to the public sphere insofar as a bubble around an individual exists to allow him to function and think freely. References to ancient texts and practices are made to indicate the respect for privacy from time immemorial.^[4]

An interesting bit of weaving and interpretation is done here. Privacy as has been established, is excluding others before an individual proceeds to conduct an activity, eg. sleep, eat or work. This essentially means that it is the pre-requisite for any activity and these activities include the enjoyment of fundamental rights. Therefore, 'personal liberty', i.e. freedom to exist sans interference would be empty and lifeless. In Francis Coralie Mullin v. Administrator, Union Territory of Delhi^[5], the view that was taken by the Court was that 'life' must mean something more than mere animal existence, including the faculties of thinking and feeling. This was relied upon by Bobde J. to establish the deep ties between dignity and 'life' as defined above and leads to the inevitable conclusion that life as per Article 21 does not exist without privacy. In this manner, the individual dependence of 'life' and 'personal liberty' was established.

Next, it was shown how privacy may be construed as a 'travelling right' which is to say that it is also the foundation of rights outside Article 21 as well for example, exercising the freedom of speech and expression under Article 19(1)(a) would not be possible without possessing the necessary faculties to think, read and write, all of which may only be honed in a zone of privacy. The same would even apply to a collective right such as the freedom to assemble peaceably under Article 19(1)(b) as privacy would be a necessary pre-requisite to exclude anyone who may not peaceful. Further, Articles 25 and 26 guarantees the right to freely profess, practice and propagate religion and the right of every religious denomination to maintain institutions for religious and charitable purposes, to manage its own affairs respectively. These two integral rights would be rendered null and void if there was no freedom from interference, i.e. privacy, built into the rights.

Using examples of rights that have been enumerated under the umbrella of Article 21^[6], Bobde J. demonstrates that the ambit of personal liberty is expanding continuously and many a right may find a place in the shadow of the tree that is Article 21. The ill-conceived notion that recognition of the right to privacy would inhibit the exercise of the Union's powers was debunked straight away on the ground that only once the right to privacy was recognized, would the implications on the Union's powers be considered. Further, it was no one's case that the right was absolute in nature which was immediately pointed out. Reasonable restrictions to protect and give effect to a compelling state interest may always be put, like the other rights under Part III.

Bobde J. propounds two essential items that make up privacy- choice and specification. Choice would entail which of the various activities an individual would like to undertake in furtherance of their liberty, and to specify whether they want to include anyone in their circle when performing them or exclude everyone completely. To check whether a claim for privacy arises, choice and specification would be taken into account in the establishment of the intent of an individual to be 'private' or not. As for the test used to review the right to privacy, the standard test used for a right under Article 21, i.e. 'fair, just and reasonable' as per Maneka Gandhi. But, he adds, since this right is the foundation for many other Part III rights, when an interference in those rights takes place, the test that is used to curtail those rights will be looked at in addition to the test applicable under Article 21.

Kaul J.'s opinion

The human being, originally an individual creature transformed into what Plato famously remarked as a 'social animal'. Kaul J. opines that as a result of this, an individual was now bound by certain societal norms which may overlap with the right to be left alone to do as one pleases. The evolution of society led to the advent and development of technology and the opinion seeks to dwell upon the nuances of the relationship between technology and privacy.

In a nutshell, Kaul J. describes privacy as an inherent right which is about respecting an individual and that it would be undesirable to ignore a person's wishes without there being a compelling cause to do so. An important aspect of privacy is the individual's desire to control the outward flow of personal information which becomes relevant in the 21^st century. The information age heralded an era of easy access to information via the internet, bringing individuals closer but, at the same time the case for privacy protection became stronger. Technology has enabled the State to invade upon an individual's private space using surveillance, profiling based on preferences etc. and Edward Snowden's revelations were a testament to the degree of invasion. The larger threat being, the infringement of privacy by non-State actors and examples such as Uber, Facebook, Alibaba and Airbnb were cited by Kaul J. to highlight the information that such aggregators possess and the digital footprint being created by every individual as a result of digital economies being born only seems to be getting bigger and bigger.

After alluding to the threat of big data accompanied by a possible abuse of information, it is stressed that there is an emergent need for regulation of use, storage, and processing of information by non-State actors. Kaul J. thereafter changes gears and enters the zone of constitutional discourse. It is opined that the jurisprudence of constitutional democracies around the world is based on justice for all which manifests itself in many qualities such as equality, dignity, fraternity, reasonableness, and fairness. The spirit of justice influenced the framers of the Indian Constitution and the framers paid the ultimate tribute by inserting the fundamental rights as Part III. The Constitution was drafted in a manner that it would survive the test of time and would reflect the change in sentiments or desire and would take into its fold any new rights that may emerge in the future. It is conceded that at the time of drafting of the Constitution, privacy may not have been envisaged as a part of the bundle of rights in Part III. A caveat was put forth, that in the future there may be debates and discussions on whether a certain right is fundamental or not but, it would be remiss to forget that the Constitution was meant to be an all encompassing document covering all those rights that are considered essential for 'peaceful, harmonious and orderly social living'.

Kaul J. comes back to the aspect of dissemination of personal information stating that unlike before, barriers are not only physical but also, informational. As per him, most information regarding an individual would fall under the category of 'none of your business' and in case an individual willingly provides information, it would come attached with an implied covenant of trust. Freedom in a democracy is the existence of autonomy and control over one's actions and now, freedom to control information would be severely handicapped if the individual is kept in the dark about how his information is being used and the manner in which his actions are being monitored. It is opined that while an individual has an established right to protect false and mischievous information from being circulated he also has a right to have certain truths withheld from public as these may lead to unnecessary and half baked conclusions that may be troublesome in nature. For example, the sexual relationships of celebrities may be of interest to public but, would not fall under the definition of 'public interest' thus, would be a breach of privacy.

An important point highlighted is the permanency of information once it has been put on the internet. In the pre-digital era, it was easier for an individual to be forgotten but, now slipping into oblivion seems to be a relic of the past. The General Data Protection Regulation of the European Union recognized the right to be forgotten but, it would not be absolute as certain information would be necessary for performing tasks of public importance like the census or for activities in the area of public health.

Kaul J. attempts to assuage the concerns of infringement of privacy by the State by providing a four pronged test- (i) action must be sanctioned by law, (ii) action must be necessary for the purpose sought to be achieved, (iii) interference must be proportional to the need and (iv) procedural safeguard must be in place to protect against abuse of interference. It can be deduced that (i) and (iv) would go hand in hand as the word 'law' would have to conform to the established understanding of the word as per the Court's interpretation of Article 21, which states that a law must be just, fair and reasonable which would cover most, if not all the procedural safeguards in (iv).

Right to privacy would be subject to enough and more checks in the form of other fundamental rights, national security, public interest including scientific or historical research purposes or statistical purposes, the need to allow the authorities to conduct criminal investigations etc. Concluding his opinion, Kaul J. states that the essential check and balance on the right to privacy would be no harm to another individual or adversely affecting their rights. Further, it was left to future cases to establish the inter-play between privacy and other fundamental rights. The opinion of Chandrachud J. is relied upon to emphasize the incorrect interpretation by the Court in Suresh Kumar Koushal v. Naz Foundation to uphold Section 377 of the Indian Penal Code on the ground that merely a small fraction of the country's population constitute the LGBT community^[7] and it is held in the present opinion that the majoritarian theory would not apply to constitutional rights as it is the duty of the Court to protect the rights of the few as it has been, on occasion termed as a counter majoritarian institution.

Conclusion

Bobde J. is known as a judge who writes few opinions, but when he does, he displays a keen understanding of jurisprudence and constitutional mechanics, like he has done so in this case. Every question that is raised before him is answered in detail by going to the root of the issue, without digressing and breaching areas not under scrutiny for the purposes of this opinion. There is a clear and distinct flow to the opinion- the difference between a natural right and a legal right is briefly examined, arriving at the conclusion that privacy is natural right, then distinguishing between a democracy and a monarchy on the nature of governance which invariably leads to the concept of accountability which is intertwined with the concept of rights and how they are enforced. The discussion then moves onto privacy as a Part III right and how it behaves vis-à-vis other Part III rights as there seems to be apparent connection between the Part III rights and privacy as a concept.

The opinion put forth by Kaul J. takes a modern day understanding of privacy to study its relationship with technology and its 21^st century invasiveness. In this opinion he displays his command and control over a myriad of subjects such as data privacy, data regulation, Constitutional liberties and draws from a wide range of sources, both old and contemporary to emphasize the importance of privacy in the digital age. The opinion reflects a grasp on issues such as invasion by the State and the increasing danger of non- State actors which entails surveillance and profiling by the former and harvesting of data by the latter. Kaul J.'s commitment to protecting individual liberties and keeping them on a high pedestal is well known (as seen in Perumal Murugan and M.F. Hussain). In the present case, the respect for fundamental rights reveals itself with a comparison of Part III rights as the 'grand throne' of the Constitution. This opinion set the tone for the emergent discussion on the nuances of privacy in the Indian context by alluding to the heralding of a digital economy and the influence of 'big data'.