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The Extent of Four Walls

The author, Parikshith Maliye is a second year student at St. Joseph's College of Law, Bengaluru.

In the age of surveillance democracy it becomes important to understand just how much of your secrets are actually still secrets and to understand what the lawmakers in India think of the same. Should any authority have complete and undeniable access to all your private data?

Since time immemorial, the right to privacy is an issue that has fuelled a constant debate on whether or not the state must, at times, exercise surveillance on its citizens. The need for privacy doesn’t necessarily date back to a certain point of time in history, but is a result of the evolution of the society. The growing society often brought about changes in the way of livelihood and the method of existence. This led to the creation of secrets amongst families and various other social institutions which thereby led to the concept of privacy.

The concept of privacy is built on the fundamental principle of “To each his own” which basically translates to let a person live his own life. This society evolved over a period of time and a new political entity was created called “the state”. The state was entrusted with the power to legislate and make laws that will regulate the conduct of human society and thereby also aims to achieve a society free of chaos and anarchy. But this power was initially not absolute and the state often found itself tied down at the helm of the societal needs and the pressure it therefore exerts in case of bad governance.

It was then that humans decided that the new political entity and the pre-existing social structure be distinct from each other and that the daily lives of each must not intertwine with each other. This was, amongst others, the fundamental principle on which the idea of liberalism was founded. So, what was the entire debate about? Why was this right not made a mention of in the natural rights that was propounded by the likes of John Locke, Thomas Hobbes and St. Thomas of Aquinas, who were the champions of the concept of natural rights? Why is it now being contested and implemented in many world regimes as an inalienable natural right enshrined to every individual?

Right to privacy

The right to privacy is often seen as an inalienable right that must be guaranteed to each and every individual irrespective of any differences of any sorts. So, it comes as no surprise when 80 major countries of the world have included this explicitly in their laws or constitutions as a fundamental right. Some of these countries are Australia, India, France, Germany, Spain, United Kingdom, United States of America. But what’s fascinating to this article is the fact that the right to privacy is not explicitly mentioned in the Constitution of India, which is the protector of the rights of the citizens and in one particular case, to non-citizens too.

Privacy usually means “the right to be let alone or the right to be free from any unwarranted publicity”. But the need for privacy has emanated over a period of centuries and hasn’t been a concept that came into being one fine day. There are, as there is with any other man-made construct, a positive and negative aspect to this privacy; or more aptly, the extent to which any individual may exercise privacy. There is a thin line that differentiates and separates governance and surveillance of an individuals’ private life. This thin line is something that most world governments try to understand but just fall short of doing that.

Article 8 of the European Convention on Human Rights promises to its signatory nations’ citizens that the privacy of every human will be respected and protected by law just as any other legal right. But any such right can be subject to restriction if there is a threat to the nation or public security.

The European convention provides for the rule of privacy but with a reasonable restriction. The restriction provided here is in the interest of national security, public safety or the economic well-being of the country. This can be viewed as a normal or reasonable amount of withholding of the right to a private life. It can be observed that while the government recognizes the right to privacy of every individual, it places certain restrictions on the same. This is done to ensure that the sovereignty and dignity of the nation remains undeterred. The restrictions as provided by the Indian law are-

1. Legislative provisions - the legislative provision that can restrict an individuals’ privacy needs to be tested on the grounds of reasonableness in the eyes of the constitution; and the intrusion into an individuals’ private affairs must have a logical and reasonable purpose that it seeks to achieve.

2. Administrative/Executive orders - These types of orders must keep in mind the facts and the circumstances of the case and must also be reasonable.

3. Judicial orders - Under judicial orders, the most important feature is with reference to search and seizure warrants and how the same is not an invasion of privacy. The rule is that such search and seizure warrants must keep in mind the security of the state and state interest and must be necessary to protect the same. This was pronounced first in the following case-

M.P Sharma v Satish Chandra

In this case, the constitutionality of search and seizure of documents of a person against whom an FIR is filed, was questioned. The eight-judge bench was to determine whether this was a direct breach of an individual’s privacy. The court held that although the privacy of an individual is being interfered with, it is only a temporary one and that such temporary ones need not have a statutory provision that gives sanction to such a law.

Privacy in the modern age

With the advent of the internet into modern day society, the means of communicating with other people also changes. This brought up new business opportunities for those of a capitalist mind. New social media platforms and modes of communicating came up which provided the people with a choice on how they wish to communicate. But the fundamental element in all such internet related companies is the storage and usage of data by these companies for various other purposes. This, more often than not, led to the age of surveillance where many world governments, who wish to keep in check the various activities of citizens, would store and use every individual’s personal data. This personal data includes the biometrics, the social media information about the person, private messages sent to and from the person of interest, cloud data that a person stores etcetera.

The motive or aim behind such companies is to store the data of individuals for purposes relating to advertising and aiming the said ads to relevant audiences based on their personal information. But this is also not an innocent motive for storage of private data, it is still an unwarranted use of data. But something that seems to conveniently go wrong in these social media platforms is the protection of every users’ data. The data stored by these companies may be of importance to them but the same is somehow always subject to cyber hacks that invade upon privacy of people. Not only cyber hacks, but of late these companies are seeing potential business opportunities arise out of the data they contain. These business opportunities come in the form of governments, opposition parties, large MNCs that choose to keep in check their employees, and - the most important but unnoticed one - intelligence agencies. When a company employs measures to invade the personal space of its own customers seeing a business opportunity, why wouldn’t the same company sell private data to interested parties? After all it is a much higher paying business opportunity that requires very little or no effort at all and the interested party is given the task of ensuring that no legal consequence befalls the company in the near or distant future.

The recent news brings to our attention the infamous WhatsApp spygate that involves an Israeli company and the software it created “Pegasus”. It is reported that this controversy revolves around the government seeking software which would enable it to keep a check on the private messages that an individual sends to another. This software may be used and directed to every person living in India but the aim of the established government is to direct this software mainly to those individuals who are of interest to the state and may seem a potential threat to the national integrity and the security of the nation. The pro-surveillance camp presents its argument that the protection of the state and its reputation is of paramount importance and that this need supersedes and must supersede any fundamental or any other legal right of the citizens that the state houses. This camp also believes that those who aren’t afraid of doing any anti-state activities or those who have nothing to hide will more than happily cede their fundamental right to privacy. But an important aspect easily forgotten by them is that every individual may have nothing to hide and that despite not indulging in anti-state activities there are certain things that no person wishes to share with any third party, let alone the state.

On the other side of this debate we have the pro-privacy camp who whole-heartedly believe that anti-state elements need to be essentially wiped out from the state but this is not and can never be at the expense of the essential rights that every individual possesses. The essential rights spoken about here are the natural rights that predate society itself, the fundamental rights under the constitution and any other human rights.

The question then arises, how will the state keep an eye on the growing anti-state elements in the society? Is there a way to do so without even remotely interfering with the rights? It seems as though this is a debate that necessitates further discussion and debate in a totally different topic.

The Privacy Protection Bill, 2011 in India regulates and controls the ways in which any authority may interfere with people’s internet data that they collect. It provides for terms and conditions that must be made available to the user before entering such a website and also mandates that the privacy policy of the government is published on every page of the website at the bottom of the page. In case of a violation of the privacy policy by the company then they may be sued in a court of law for violating the statutory provisions. This bill is a major step in ensuring the privacy of any individual is not violated and that it is more or less absolute. The right to privacy is still an implicit right and not absolute in nature as of yet and the same has been made clear in certain cases when it has come up but no statute has recognized it as of yet. But one part of the right to privacy is in the protection of the data collected and it is a very important need for this part to be protected. While the right to privacy itself has never been protected by a statute, it is a very progressive step that the lawmakers have taken in ensuring that data collection in India is regulated. The data collected and stored is regulated by a body that is to be established by this bill. There have been 5 separate bills that have been introduced in the Parliament over the past 8 years but none have completed the transformation to become an Act. This is the problem at hand, that the lawmakers have not yet realized the need for data privacy but it is one that is understandable as those who have been in power hesitate to pass the bill in fear of not having surveillance over citizens of its country.

Another ambit of privacy is the use and collection of Biometrics of citizens. The collection of the same could also be misused widely and this started a furious debate amongst the intelligentsia of the country. This was in context with the collections of biometric data by the Unique Identification Authority of India for the issuing of Aadhaar cards for people of this country. This was challenged in a very recent and landmark judgement passed in 2018 -

Justice KS Puttaswamy and Anr v Union of India

A retired high court judge of Karnataka filed a petition in 2012 seeking the court to verify the constitutionality of the Aadhaar cards issued to citizens. This card was encouraged to be affiliated to various public schemes and rights that citizens may avail. Another important aspect of this case was that the UIDAI was set up as the result of an executive order and had no legislative provision or statute to back such a scheme. The legality of an executive order and how far it may go to make a law or establish an authority was challenged. A nine-judge bench was constituted and this was done in an effort to overturn the judgements in the Kharak Singh and MP Sharma cases which each had six and eight-judge benches. The court held in this case that the right to privacy was an implicit right up until now but in this case, it was held that the right to privacy was a fundamental right under Article 21 and must be guaranteed to every individual. The judgement was also famous for the reason that it was a unanimous decision.

All these factors have in some ways ensured that the right to privacy is guaranteed to citizens of this country. While the need for privacy in free living societies is still a growing fight, it is important to realize why some countries have implemented it and have ensured that every citizen enjoys such a right. Privacy has emerged out of society over a period of centuries and the establishment of a political authority only thereby strengthens the move for privacy. In the modern world where there is a growing need for keeping in check certain aspects of society in order to ensure there is no chaos spread, the need for surveillance can be understood but as this article has tried to point out, it is not something that has to be at the expense of any individual’s liberties. Privacy is not a new concept that may be something that some elements of society refuse to accept. But it is something that has been existent for thousands of generations. It needs to be understood that privacy ranges on different levels and can include many things people choose to be private about, like who they are talking to, where they are going on vacation, their secrets that they wish to keep a secret. These are some of the many examples that prove that every individual is in some way or the other private about at least one aspect of life. Even the most extroverted or outgoing person will have something or someone that they choose to be private about. In such a society, the need therefore arises for there to be a guarantee of such an important right. But seeing the growing age of surveillance democracy and the way every aspect of our life is being watched and every move we make is seen by someone, really makes one wonder what the extent of four walls really is in today’s world.

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