The Constitution of India includes Right to Privacy under Article 21, which is an essential of right to life and individual freedom. Stressing on the term privacy, it is a powerful idea which was needed to be explained.
“Privacy is a special kind of independence, which can be understood as an attempt to secure autonomy in at least a few personal and spiritual concerns, if necessary in defiance of all the pressures of modern society. It is an attempt, that is to say, to do more than maintain a posture self-respecting independence towards other men; it seeks to erect an unbreakable wall of dignity and reserve against the entire world.” –Clinton Rossiter, “The Free Man in the Free Society”, The Essentials of Freedom
Introduction
As per Black’s Law Dictionary, Right to Privacy means “right to be let alone”; the right of a person to be free from any unwarranted interference. In 2017, a judgment was delivered by Justice D.Y. Chandrachud that overruled the principles evolved in the Habeas Corpus case in case of Justice K.S. Puttaswamy and ors. v. Union of India, which advanced as a milestone judgment throughout the entire history of India concerning the status of Right to Privacy.
The Constitution of India includes Right to Privacy under Article 21, which is an essential of right to life and individual freedom. Stressing on the term privacy, it is a powerful idea which was needed to be explained. The extent of Article 21 is multi-dimensional under the Indian Constitution. Law of Torts, Criminal Laws and Property Laws also recognize the right to privacy. Privacy is something that deals with the individual privacy and which ideally should have been expressly guaranteed well before the passing of a milestone case of K.S. Puttaswamy v. Union of India in 2017 as it was, previously, not considered a fundamental right under the Indian Constitution. Nonetheless, our Indian judiciary has, at present carved out a distinctive precinct concerning the privacy and a result of that is Right to Privacy, it is, presently, perceived as an essential right, this is inborn under Article 21.
There are plenty of cases on privacy, however, none of the cases were supportive of thinking about privacy as a fundamental right, until the case of K.S. Puttaswamy v. Union of India in 2017 where the right to privacy was finally given its due acknowledgment. Right to Privacy is not just recognized nationally but also universally under different Conventions. Right to Privacy, being a dynamic concept is incorporated under provisions of various legislations and also embraces various aspects. Learning about privacy in-depth, we will come to know about the different dimensions of such a right with certain reasonable restrictions.
In the present case, the division bench of Kerala High Court comprising Hon’ble Mr. Justice Devan Ramachandran and Hon’ble Mr. Justice T R Ravi passed an interim order on 24 April 2020 in the matter of Balu Gopalakrishnan & Anr. v. State of Kerala & Ors. communicating its reservations especially towards the terms related to data confidentiality under the agreement entered into between the Kerala government and Sprinklr Inc., a foreign data analysis company (hereinafter Sprinklr). The High Court likewise directed that going ahead, the Kerala government should take earlier assent from the residents notifying them that their information is probably going to be gotten to by outsider specialist organizations.
Factual Background
The Kerala government entered into an agreement with Sprinklr to access online digital software to process and analyze the information of patients and vulnerable and susceptible to COVID-19 in Kerala. However, due to such a situation of public emergency, at the hour of execution of the agreement, a “standard structure contract” was executed between the parties.
Issues
Are there are sufficient protections to guarantee the classification of the information gathered?
And how might the information be managed in the light of securing the right to privacy of the citizens, in the wake of analysis?
Contentions raised by the parties
- The petitioners alleged that: (i) the agreement scarcely has any shields against the commercial and unapproved abuse of information endowed to Sprinklr; and (ii) if there should be an occurrence of any data penetration by Sprinklr, the Kerala government will have no legitimate plan of action under the watchful eye of the courts in India since the agreement awards selective ward to the courts in New York. The applicants additionally presented that the agreement abuses Article 299 (1) of the Constitution of India.
- The Kerala government presented that the agreement was executed to defeat the “most pessimistic scenario projections” and the chance of an abrupt spike in cases because of the flare-up of COVID-19. The Kerala government had foreseen that following and following of residents would be vital with the help of a versatile data innovation framework and the accessible in-house innovation was not well-prepared. The Information Technology Department of the legislature bolstered these disputes and affirmed that the assurance frameworks on Amazon Cloud Service make it incomprehensible for anybody including Sprinklr to break the information classification.
- The Union of India (UOI) objected that elite locale that allowed the New York court jurisdiction is unsatisfactory and that the State of Kerala ought to have depended on equipped Indian substances to keep up such ‘delicate clinical information’. The UOI likewise communicated worries about the secrecy of the information and expected to penetrate.
Interim Order
The division seat imparted its fears in regards to the best possible insurance of information and saw that the COVID-19 pandemic ought not to transform into an “information pestilence” at a later stage.
Given the abovementioned, the court:
- Directed the Kerala government to give just anonymized information to Sprinklr and in future notify and take explicit assent from the residents before their information is given to Sprinklr or some other outsider agency;
- Issued an authoritative request that any leftover or auxiliary information accessible with Sprinklr will be given back to the Kerala government;
- Issued an injunction to Sprinklr prohibiting it from breaking the terms of secrecy and from leaving behind the information so given under the agreement to any outsider;
- Directed that Sprinklr will not manage the information depended upon them in criticism of the secrecy arrangements set out in the agreement and will endow back all the information so given by the Kerala government when Sprinklr’s commitments under the agreement are finished; and
- Prohibited Sprinklr from publicizing or speaking to any outsider concerning the information or utilizing the name or logo of the Kerala Government, straightforwardly or in a roundabout way, for any business advantage.
Comment
Amidst the scene of COVID-19, mankind is seeing a different universe in each space. Data security laws are so far floating on doubtful waters in India and thus, such ambiguous times require taking compulsory consent of COVID-19 affected inhabitant’s focus towards the distress of seeing the data protection laws. Further, the principles set by the Kerala High Court were to ensure that the Kerala Government becomes more equipped and capable of fighting the pandemic. It is interesting to see that without any range of experience to Indian Courts, how these principles are realized and followed by Sprinklr, and whether such guidelines will help avoid the “data curse”.
Lately, in almost all nations there has been a typical worry to protect the person’s private life from the various assaults and breaches. Such assaults have been both from the private agencies as well as the public authorities. Though the right to respect for private life, the home and communications is loudly proclaimed, we find that the rules of law on which such right is based are, tragically, as Professor Nelson comments not without some harshness, destined paradoxically not to be applied, or possibly not regularly or to their full extent. The Report of the European Convention on Human Rights and the Right to Respect for Private Life, the Home and Communications is concerned with the extent of the protection afforded under the right given by the European Convention on the Human Rights to persons under the jurisdiction of the fifteen states parties to the treaty.
Right of privacy is defined as the right to be let alone, the right of a person to be free from unwarranted publicity, and the right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned. The term right of privacy is a generic term incorporating different rights perceived to be characteristic in the idea of freedom and such a right stops the involvement of government in close relationships and acts, the opportunity of the person to settle on crucial decisions including himself, his family, and his relationships with others. Privacy laws forbid an attack on an individual’s right to be left alone and confines access to individual data and overhearing of private communications. The right to privacy is only the privilege to live as one chooses.[1]
Right to privacy is fundamental to every individual. Shadow over privacy means shadow over human dignity also. Justice Mathew[2] rightly stated that,
“there can perhaps be no objection in regarding intrusion upon our privacy as a dignity tort. The harm caused by this intrusion is incapable of being repaired and the loss suffered indignity is not susceptible to being made good of damages. The injuries to spiritual element in our otherwise mundane composition.”
Indian society is a community-centric society, wherein collaboration and not individualism is the norm of existence. Along these lines, in some cases, it is questioned whether privacy is a value of human relations in India. Positively, it is not right to assume that the idea of privacy is strange to Indian culture. A man’s house is his castle is an incomparable and legitimate truth which is upheld in all societies and cultures and India is no exception to it. Regardless of because different social and economic factors, the right to privacy in India had not been acknowledged in public law as it has been in other technologically advanced countries.
Privacy is not an absolute right. It is dependent upon certain confinements like different rights. Even though there is no express arrangement of the right to privacy in the Constitution of India, yet it is perceived as a principal right that emerged from different fundamental rights. Therefore, this right is restricted similarly as other principal rights are constrained. It cannot go past those rights under which it has emerged. In each right, reasonable restrictions are permitted. In any case, what are reasonable restrictions? The Constitution of India nowhere defines the expression “reasonable restrictions.” The test of reasonableness must be applied to every statute questioned and no norm or general guideline of reasonableness can be set down as relevant to all classes. The test of reasonableness differs from case to case depending upon the conditions.[3] Generally, those limitations are reasonable which are in the interests of the general public, the security of the State, public order, decency or morality, etc. The guideline on which the power of the State to force limitation is based is that every individual right of an individual is held dependent upon such reasonable limitations and regulations as may be necessary or expedient for the protection of the general welfare. Freedom must be restricted to be evenly guaranteed. For the freedom of one must not annoy the freedom of others. In the expressions of Patanjali Shastri, J.,
“man as a normal being wants to do numerous things, however, in a common society his wants must be controlled, directed and accommodated with the activity of comparable wants by other individuals.“[4]
Further, in the expressions of Das, J.,
“Social intrigue in singular freedom may well be subordinate to other more prominent social interests.”[5]
Privacy is the acknowledgement of individual independence and unharmed character. It looks for protection of human pride in a reasonable tune. The social status and honour of an individual can be safeguarded out of the conceptual basis of privacy. It obeys the sacred relation with spouse, family, and recognizes a person’s home as his castle. Privacy harmonizes social and individual relationships. It gives a place for genuine human emotions. It does not allow commercial exploitation of an individual’s personality. Finally, it encircles a person’s inner zone[6] intending to restore his status at the art of his fellow member of society. Further, the contours of the right to privacy remained undefined and an attempt has been made to analyze the scope, extent, and effects of this right.
Right to privacy in India is an unusual combination of constitutional, customary, and the common law right dispersed over different legal fields. As a customary right, it is treated as an easement framing some portion of enacted law. As a part of our constitutional rights to life and liberty, it is viewed as the representation of the progressive development of human rights and basic freedoms. In spite of the fact that it has so far not been created as a different autonomous tort, its need is being felt by all, as without progress, the rise of a systematic social order might be postponed. It is, consequently, the acknowledgment of a right of special importance and possibility, adding another dimension to our democratic and welfare-oriented jurisprudence. Rise, improvement, and acknowledgment of this right demonstrate that our jurisprudence is dynamic and is constantly evolving and bringing the law closer to the lives of the people.
Today, democratic societies have come to understand that privacy is at the core of every human right. In spite of the fact that in England there is no constitutional safeguard of human rights against the State, the common law perceives that an individual has certain rights, for example, the privilege to the right to speak freely, to personal liberty and the like which the State would protect against invasion by other persons, in so far as the ambit of such rights is not abridged by legislation. There is, however, no such acknowledgement of the right to privacy, despite forceful advocacy by progressive thinkers such as Lord Denning.[7] Privacy rights in the United States, Great Britain, and India give an interesting range for comparison because of differences among them in terms of industrial and technological as well as Constitutional development. Privacy as essential human rights addresses fundamental needs and qualities related to man’s social nature. Certainly, the level of technological and economic development creates pressures to protect these privacy values through legal enforcement techniques. But even in the absence of such development, the value and the basic human right to privacy may prevail irrespective of legal recognition.
It might be summarized that the concept of privacy has been acknowledged throughout the world. It is a basic requirement of human character accepting inside it the high feeling of morality, dignity, decency, and value orientation. For the conservation of society, good and social qualities cannot be overlooked. The significance of the concept of the right to privacy however not explicitly worded in the Constitution or the statute cut out through the procedure of judicial interpretation[8] can be valued by the way that any kind of interruption either by the Government or individual is taboo and violation of which is redressable through the action of law. Subsequently, it can be said that the courts have taken the esteemed idea of the right to privacy to another and uncommon stage with enthusiasm to translate the way of thinking of right to life and individual freedom into the real world. To be honest, the privacy right in India is still in a condition of development. It needs to experience a case to case improvement. Technological discoveries in modern times can be said to an imminent threat to the citizen’s privacy. In the age of the computer, it is hard to recognize the encroachment of the right to take legal action. In such circumstances, privacy seemingly is breached and subject to die an unnatural death. Further, during a time of changed communications, privacy is obviously under seized however law-makers have indicated short concern on the issue. While in numerous different nations, there is currently an assortment of laws set up that tries to ensure those rights, Indian laws regarding the matter linger behind. The attitude of the lawmakers and the official has been fairly disappointing. So far, the law of privacy has been downgraded to a penumbral status and has never enjoyed the status of an all-around characterized right. Henceforth, we have to make some solid administrative move before we lose control of our overdoing of bringing crisis under control.
[1] Pravin Anand and Gitanjali Duggal, Privacy in Michael Henry (ed.), International Privacy, Publicity and Personality Laws, 233(2001).
[2] Govind v. State of M.P, (1975) 2 SCC 148.
[3] Golak Nath v. State of Punjab, AIR 1967 SC 1643 and 1655; Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545 and 579
[4] A. K Gopalan v. State of Madras, AIR 1951 SC 27.
[5] Havel, Václav, and Paul Wilson. “The Power of the Powerless.” International Journal of Politics 15, no. 3/4 (1985): 23-96. Accessed June 21, 2020. www.jstor.org/stable/41103710.
[6] William Cohen and John Kaplan, Constitutional Law – Civil Liberty and Individual Rights, 516(1982).
[7] Denning, What Next In Law? 219 (1982); Bridge et. al, Fundamental Rights, 56 (1973).
[8] Upendra Baxi (ed.) K. I^ Mathew on Democracy, Equably and Freedom, LXIIl (1978).
