RIGHT TO PRIVACY

 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.