Privacy…is a “Fundamental Right” but we donot know what constitutes “Privacy”!

(This is in continuation of our discussion on Justice Chelmeshwar’s part of the judgement in the Privacy case)

While the nine eminent judges went about their mission to declare “Privacy As a Fundamental Right”, they also encountered the problem defining what is “Privacy”.

The challenge of defining Privacy Rights without a definition of Privacy has confronted law makers as well as law followers which has not been appreciated much in the past. Now it is interesting to see that even the nine judges are unable to agree on how to define “Privacy Right”.

Justice Chelmeshwar uses his Judicial freedom to

-first admit that ” Whether it is possible to arrive at a coherent, integrated and structured statement explaining the right of privacy is a question that has been troubling scholars and judges in various jurisdictions for decades.” and

-then to say “In my opinion, there is no need to resolve all definitional concerns at an abstract level to understand the nature of the right to privacy….Definitional uncertainty is no reason to not recognize the existence of the right of privacy….“.

He then concludes that “for the purpose of this case, it is sufficient to go by the understanding that the right to privacy consists of three facets i.e. repose, sanctuary and intimate decision. Each of these facets is so essential for the liberty of human beings”.

These three facets “repose”, “sanctuary” and Intimate Decision” are picked from academic concepts postulated by a US author Bostwick.

“Repose” refers to freedom from unwarranted stimuli, “sanctuary” to protection against intrusive observation, and “intimate decision” to autonomy with respect to the most personal life choices. All these are covered under the concept of Privacy being “Right to be Left Alone”.

Unfortunately, the definition does not form part of the order and is not handled similarly by other Judges. Hence it remains one of the opinions of the nine judges.

This means that search for an acceptable definition of Privacy continues even after this judgement.

Though Privacy Invasion is recognized  from State as well as Individuals and Companies, the judgement does not provide proper guideline on how the stake holders need to respond.

Of course it is understood that the Government cannot make any laws that infringes on the Privacy Rights subject to “Reasonable Restrictions” as per Article 19 of the Constitution.

However, when Privacy invasion occurs either by the State or another individual or a Company, there is no wisdom on how the affected individual would be compensated. For this we need to await a law from the Government.

Presently law is being contemplated on “Data Protection” which is not directly equal to “Privacy Protection”. In the absence of an agreed definition of Privacy, it is not easy to define what information/data can be considered as “Relevant for Privacy Protection” and has to be protected in the Data Protection Act.

Other judges have used the term “Information Privacy” to identify personal information in data form and state that “Right to control collection and dissemination of such personal information” is “Privacy Rights in the Data world”.

This is acceptable for the Privacy Protection in data form but inadequate when protection of Privacy is to be considered when information is handled orally or through non electronic written form.

The Judgement does not clarify this and therefore the Government formulating Data Protection Act or Companies and Individuals who look at ITA 2008 for Privacy protection in data form are not wiser when privacy has to be protected in non-elctronic form.

Additionally, several stray aspects of life are loosely cited as examples that may define different facets of Privacy. For example, Justice Chelmeshwar reflects on ” Decision to stop medical treatment by a patient”  or a decision of a woman to bear or not bear a child, or abort pregnancy as Privacy issues. The reflections go on into many other areas including right to work and chose the type of work, right to travel, right to chose a place of residence, as other areas where the principles of Privacy can be extended.

Justice Chelmeshwar has even delved into political issues by commenting

“I do not think that anybody would like to be told by the State as to what they should eat or how they should dress or whom they should be associated with either in their personal, social or political life.”

Similarly other judges have included the Right to sexual orientation as part of Privacy in their reflections.

By making such comments in the body of the judgement, all these issues are being projected as part of “Privacy Rights” which in future will come up to Supreme Court in the form of writ petitions from the Citizens of India trying to protect their fundamental rights.

No doubt that this is a feather in the cap of Indian democracy that our Judiciary considers that an information that if I post in my WhatsApp that “I ate Masala Dosa at Vidyarthi Bhavan today ” and some body forwards it outside, it can be contested as “Violation of my Privacy Rights”. But.. is this what Privacy Right protection all about?

Adding these reflections in the Judgement without a proper confirmation on either acceptance or rejection of the same by a majority of judges as a part of the final order has only brought in more confusion to the public and was completely avoidable.

Now individuals and companies are placed in a dilemma if these individual reflections are to be treated as part of the order or ignored. This will only help frivolous litigations in future from which no body but the Privacy advocates benefit.

Considering the vague reflections included in the judgement, it would not be surprising if tomorrow, in a divorce case, husband or wife may claim “Privacy Right” not to be “husband and wife” or  “Transfers in Jobs” may be contested as “Right to Privacy” and so on. The capacity of this judgement leading to nuisance litigations is very high because of the numerous reflections being made part of the judgment document though they are not part of the final order.

For the time being, it may therefore be better to ignore these stray comments since they are not part of the final order or form a majority common decision. Government when it frames the Data Protection law should not give weightage to all these different instances of life as “Privacy Issues” and make life unbearable.

In these facets, the Judgement reflects an attitude of the Court to consider the judgement as an erudite academic essay  without the need for concluding it properly with either acceptance or rejection of a point of view.

Similarly when a decision of multiple judges are involved, if individual opinions are not consolidated into groups with indication of which judge agrees or rejects the issue, and further export it into the final order, the communication to the public remains incomplete.

As a result, after such a judgement, stake holders are not wiser than what they were before. Perhaps they are more confused than before.

The “uncertainty” created out of such “Vague” judgments can be avoided if Judges consider that a Judgement is not written to show case how much the Judge knows about a subject but how much the public needs to know in solving a legal problem.

[P.S: I am aware that it is not customary for anybody to make comments on the judgement particularly when it comes from the highest Court of the land.

But in the hope of Courts rendering judgments which can be read and understood by common people without the need for intermediaries, I have found it necessary to express these views.

Commercially, if there is more the confusion in the market, better it is for consultants like us because some body is needed to interpret the interpretations rightly or wrongly and present it again to some other Court so that debate can continue.

But law is not meant for creating commercial value to consultants and lawyers. Law has to be simple and understandable by the Citizens and other stake holders so that they can comply with them without the assistance of a third party.

Voluntary compliance will suffer if law is vague and complicated and the trend has to change towards law being lucidly explained. This may not be possible in the writing of the law but it is possible in the judgement. Hence even if Law can be vague but Judgement should be precise. I hope we will see short and precise judgement particularly when it involves concepts that need to be understood by Citizens and adopted as part of their life styles.

The touch stone of the “Privacy Judgement” is whether this judgement can be understood by the common man on the street who is the subject who has to enjoy “Privacy” as a “Fundamental Right”. If “Privacy Law” is meant to be understood as a PG Diploma course, then Law of Privacy will remain an elite concept and does not reach to the masses.



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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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