First use of the expression
Warren and Brandeis wrote more than a century back
that privacy is the "right to be let alone", and focused on
protecting individuals. This approach was a response to then technological
developments of the time, such as photography, and sensationalist journalism,
also known as yellow journalism.
A
right to privacy is also explicitly stated under Article 12 of the 1948
Universal Declaration of Human Rights.
"No
one shall be subjected to arbitrary interference with his privacy, family, home
or correspondence, nor to attacks upon his honor and reputation. Everyone has
the right to the protection of the law against such interference or
attacks."
Was privacy right known to ancient Bharat?
When Puttaswamy traces most of the issues
identified as protecting right to privacy to the West, there is also an attempt
to indigenise the concept, which in the same judgment Justice Chandrachud
incidentally refers to an article published in the blog of M/s Ashna Ashesh and Bhairav Acharya titled Locating Constructs of Privacy within Classical
Hindu Law and
another article by the same author Bhairav Acharya with Vidushi Mardha
suggesting that it was known to Islamic jurisprudence as well. While almost all
judges were describing the privacy law as rooted in western life style, Justice
Bobde obviously thought on the same lines when he wrote:
“Even in the ancient and religious texts of India, a well-developed
sense of privacy is evident. A woman ought not to be seen by a male stranger
seems to be a well-established rule in the Ramayana. Grihya Sutras prescribe
the manner in which one ought to build one's house in order to protect the
privacy of its inmates and preserve its sanctity during the performance of
religious rites, or when studying the Vedas or taking meals. The Arthashastra
prohibits entry into another's house, without the owner's consent…. Similarly,
in Islam, peeping into others' houses is strictly prohibited. Just as the
United States Fourth Amendment guarantees privacy in one's papers and personal
effects, the Hadith makes it reprehensible to read correspondence between
others. In Christianity, we find the aspiration to live without interfering in
the affairs of others in the text of the Bible. Confession of one's sins is a
private act. Religious and social customs affirming privacy also find
acknowledgement in our laws, for example, in the Civil Procedure Code's
exemption of a pardanashin lady's appearance in Court.”
The right to privacy, as we are discussing, goes
far beyond issues of mere civil or decent behaviour or property rights
protecting a person against encroachment. To that extent, we must say that the
articles referred in the judgment and the passage quoted do not establish that
there was any significant jurisprudence on right of privacy or treating it as
something of core value to living or a primordial right akin to a fundamental
right, which we are familiar with as students of Constitution law.
From the property centric to person centric concept
Two law students from Chandigarh have observed in
an article ('Universalis' Rights and 'Particularistic' Restrictions: Note on Justice
K.S. Puttaswamy (Retd.) Case, 4.1 CALQ (2018) 20) that the most direct impact of US jurisprudence
on Justice Puttaswamy as recorded by Chandrachud J. has been
the transformation of the doctrinal position from that of ‘trespass’
property-centric spatial privacy to the person-centric informational
self-determination. [ See Katz v. United States,
389 US 347 (1967)per Harlan J.] This would mean that the right to
privacy no more means to sit calmly between closed doors, but implies that the
person wields his or her privacy even in the public sphere in his or her
relationship with the State. This ultimately finds expression in his
articulation of the three-pronged privacy as recognized by the Constitution of
India laid down by Chandrachud J. when he observes the distinct elements of the
concept of privacy as “spatial control”, “decisional autonomy” and
“informational control.” [K.S. Puttaswamy v. Union of India,
AIR 2017 SC 201.]
Impact of modern technology
We surely must recognise the advancements in
technology and the interest in social media to 'announce' oneself in different
garbs and projecting larger than life images that give privacy a new meaning
and relevance. But, social media pose a privacy paradox: Most users
indicate that they are concerned about their privacy, yet they share personal
information widely on social media platforms. The affordances of social media
(connectivity, visibility, social feedback, persistence, and accessibility) and
their ability to enhance social communication and interpersonal relationships
help to explain their attraction for users. At the same time, the risks to
privacy are real and serious. We review privacy issues in a variety of domains
of social media use including friendships, romantic relationships, parental,
workplace/professional, and therapist/client. Resolving the privacy paradox and
fully protecting privacy will likely require changes in laws, technology, and
individual and social practices. These changes are worth pursuing so that
people can reap the benefits of social media use without losing the many
benefits of privacy.
As a cultural experience
Privacy is a cultural thing. Even in common
parlance, the way we speak, the way we dress and the way we conduct ourselves,
which are manner of social interactions and the way we project ourselves get to
be assessed as cultured or uncultured on how it is socially accepted. This
varies from community to community, from country to country. When I talk about
right of privacy, I am talking about what is so intensely personal to me, of my
illnesses, my biometric details which are a segue to understanding what I am.
Our resistance to let anyone breaches our privacy because, i let the person
know about some aspect about me which is not the way i project myself in
public. My health details, my sexual preference, my education, my family
relationships, my marriage to my wife are all matters where i would choose how
the public will know me or know them through me. If that aperture of public
view is enlarged without my concurrence, the law will protect me. That is not
perhaps the way our elders conducted themselves. They were open to public at
all times. Before the advent of nuclear families, our living was always joint.
Decisions were by karta and personal
preference meant family preference. Our saints lived an open life, making
themselves available to the public 24X 7, the outstanding examples of which
were the ways that i have heard of Bhagwan Ramana and what I have seen of the
Senior Holiness of Kanchi.
Predominant concern of State surveillance
When we are discussing right to privacy as a
fundamental right, we are literally talking about our right against the State
which we can enforce and claim reparation if it is violated. We are worried
about the police State, about the Big brother watching in
dystopian times, where my profile in all my personal dimensions is captured,
stored, analysed and manipulated. If that access is given to some other
non-state actor, i feel threatened that he monitors all my movements and
virtually stripped and paraded naked, as it were. Forget about the biometric
details of what the State parts with. What about the way we leak personal
information by surfing the internet? My travels are monitored, the place where
i stay is purveyed, the person with whom i am staying is also likely to be
known. Employing cookies by your book store, your library, your e-retailer,
your travel agent give away a lot of information about what you read, what you
eat, where you dine and who you meet. In a digital world, there is a kind of
permanence. Can any of the laws that exist to day protect me against these
invasions? The day i have made the small gadget that i hold in my hands as an
absolute necessity, that day, i have surrendered my privacy. Will someone
challenge the idea that a cell phone is no longer a luxury but an absolute
necessity? You cannot open a bank account, you cannot reserve a train ticket on
line without disclosing your cell phone number. The modern technology has
brought to a head where nothing could be truly personal; nothing truly private
and no law could protect privacy absolutely.
The poor and illiterate milieu just do not care
Tracing even movements of persons is easy because
we leave digital foot prints. Every time we turn on the personal computer and
surf the internet; every time we use our cell phones; every time you book
flights and taxis. The registration that the agencies seek is a manner of
creating a dossier for you to map your travel preferences, the fares you are
willing to pay, the resistance that you give to a particular fare and
particular airline and the way you deflect your preference. Whose privacy are
we trying to protect? Does the poor person care? Most of her life is under
public gaze. Even her intimate moments with her partner in the road pavement is
under dimmed street light and not in darkness. For a villager, for a person who
does not use cell phone or computer, what is there to lose? What is privacy to
her? An Aadhar to her is a matter of personal achievement that fills her with
glee. It is a State recognition that she exists; that she inhabits the same
world that a person who zips past in his Mercedes.
Withering away of the concept
We will clamour for protection of privacy so long
as we believe that we should project ourselves in ways different from how we
are, or, we want people to see us only the way we want them to see us. We are
at cross-roads of times when technology still falls short of making minute
invasions and there is still some scope to screen ourselves from being fully
surveyed. When that capability obtains full control, talk of privacy will
become obsolete. At that time, the proponents of right to privacy cannot even
escape to another planet, for if they do so, the gadgets that transport them
will have capabilities to beep back to earth in pellucid language everything of
what goes inside the mind of the person.
