“I cherish my privacy, and woe betide anyone who tries to interfere with that”– Jeff Beck, British Player Singer.

Privacy is an absolute pre-requisite. Without it, there is no point in being an individual. Sunshine laws are part of democracy, built on people’s trust and mandate transparency, openness and disclosure to the public or upon inquiry into certain governmental activities. The object is to promote ethical standards in governance and engender greater public trust. In India, Right to Information Act, 2005 is in force as a sunshine law protecting citizens’ right to seek information on certain governmental activities, with exceptions like national security, defence, law enforcement.

The unwillingness of the Government to state on affidavit clearly whether it has used the controversial spyware, Pegasus, for snooping on civilians and the compelling circumstances that led to the Supreme Court’s Order passed on October 27, 2021 in Manohar Lal Sharma v. Union of India, by constituting an Independent Expert Committee to inquire into the alleged snooping row to determine the truth and get to the bottom of the issue, must be seen as an attempt to strengthen the legitimate expectations of citizens in democracy, founded on constitutional values and rule of law. Apart from the implications of the issue on the contours of the right to privacy, it has also generated other questions touching the inviolate personality and right to human dignity of the citizens.

‘Orwellian’ Concern 

The Court has observed that the petitions raise an ‘Orwellian Concern’ of   surveillance affecting the entire citizenry due to the potential chilling effect. Indiscriminate spying of citizens cannot be allowed except in accordance with law. Surveillance and the knowledge that one is under the threat of being spied on can affect the way an individual decides to exercise his or her rights and this might result in self-censorship, having particular concern in relation to freedom of the press. 

Court has also taken the view that mere invocation of national security does not render the court a mute spectator and that no omnibus prohibition can be called for against judicial review. The question as to whether the protection claimed against disclosure of information comes within the scope of national security could be examined by the Court, as according to the Court, national security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning. 

Connotations of Privacy

Today it has become highly relevant to identify the connotations and ambit of privacy in the light of impact of technology in a globalised world dominated by Internet, Information Technology and Spywares. How use of spyware is different from surveillance, domiciliary visits and monitoring the movements of citizens is the first area of concern. 

In an age where Information Technology governs virtually every facet of our life, does it not require that the constitutional meaning of ‘individual liberty’ has to be properly identified and determined? How lack of independent scrutiny and reporting mechanisms in matters affecting privacy result in lack of accountability? Should not democracy protect people’s rights including privacy rights? What should be the degree of transparency, openness, accountability and sunlight required in a constitutional order? The Pegasus controversy has given us an opportunity to comprehend privacy right meaningfully.

Our desire to check the government, to ensure that it remains open to public scrutiny, is the cornerstone of our democracy. Government cannot violate the trust that it owes to the people. Our Constitution enshrines citizens’ rights and freedoms, restricts the reach of the Government. People should be vigilant in keeping its government open to the sun, to continue to be transparent and accountable.

Nine Judges of the Supreme Court of India had assembled in 2017 to determine whether privacy is a constitutionally protected value. At the end, they unanimously and unambiguously concluded that privacy is a fundamental right and a constitutional right constituting the foundation of constitutional culture, based on the protection of human rights. Constitution has been founded on it and it shows a way of life that it seeks to protect.

With the historical verdict rendered in Puttaswamy case(2017), the Supreme Court has redefined in a signified way the concepts of liberty and entitlements that fall within its protection. The Judgment shows the way by which new challenges to democracy have to be addressed in terms of a constitutional understanding of where liberty places an individual in the context of a social order. Needless to say the autonomy of an individual is conditioned by her relationship with the rest of the society.

International Human Rights Law

The International Human Rights regime establishes right to privacy and prohibits arbitrary or unlawful invasions on the right. Restrictions on privacy are permissible only if they are necessary and proportionate to achieve a legitimate purpose in democracy and are provided for in law. The alleged use of the controversial spyware on civilians, if true, cannot be justified, unless it is found to be absolutely necessary in democracy and intended for legitimate purposes.

The government’s surveillance measures need to comply with international standards on privacy and civil liberties. Under International Law, the State has an obligation to ensure that victims of right violations have an effective remedy. The remedial bodies must have full and unhindered access to all relevant information, necessary resources and expertise to conduct inquiry and the capacity to issue binding orders. Exceptions cannot be granted to the Government on vague and overbroad grounds. Similarly, there is a need to limit the government’s discretionary powers in this arena by mandating prior judicial authorisation for access to data and surveillance offending privacy on a case-by-case basis. 

Privacy as Constitutional Right

Privacy right is important to an individual. The ringing words of a great American Jurist William J Brennan is worth to be cited. “If the right to privacy means anything, it is the right of the individual, married or single to be free from unwarranted governmental intrusion”.

Today there is a struggle going on in the Society between liberty and authority. The tyranny of the majority could be reined in only by the recognition of civil rights, such as the right to privacy, free speech, assembly and expression. The reason for protecting privacy is the dignity of the individual. Legitimate concerns of the State or governmental authorities may limit privacy. However, it cannot go to the extent of interfering with the intellectual faculties of the citizen, including his opinions and communications without compelling and reasonable justification.

Conscience is the most sacred of all properties and it commands right to control over one’s conscience. A citizen’s thoughts, emotions and sensations demand a legal recognition. It is in this context that Thomas Cooley, a prominent American Jurist comprehended privacy as the right to be left alone, let alone. 

Governmental inquiry into the controversial Pegasus is not a substitute for an independent court monitored inquiry by an Expert Body. This is the reason for the Court’s intervention. Court’s relevance and interference in matters involving people’s rights cannot be seen as an attempt to abrogate or throttle the doctrine of separation of powers or as an attempt to gain administrative function conferred upon the executive.

An Abiding Principle

Privacy is not an elitist construct. It is part of the substantive due process. Privacy is an abiding principle that protects property rights and expounds the concept of personal liberty which does not rest on any element of feudalism or any theory of freedom which has ceased to be of value. The sanctity of the home and the protection against unauthorised intrusion is an integral element of “ordered liberty” which is part of personal liberty guaranteed by Article 21. 

The inspirational words of wisdom shared by Justice Frankfurter of the US Supreme Court in Wolf v Colorado (1949) beautifully enunciate the concept of privacy. “Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a person’s house, where he lives with his family, is his “castle”; it is his rampart against encroachment on his personal liberty”.

Privacy as Constitutional project

Individual rights are political trumps held by individuals. Privacy needs to be protected as a constitutional project. The Supreme Court in Ram Jethmalani v. Union of India (2011) observed that the solution for the problem of abrogation of one zone of constitutional values cannot be the creation of another zone of abrogation of constitutional values. The Court further held that the notion of fundamental rights such as right to privacy as part of right to life is not merely that the State is enjoined from derogating from them. It also includes the responsibility of State against the actions of others in the society, even in the context of exercise of fundamental rights by those others.

We have adopted a democratic way of life, founded on rule of law. Democracy accepts differences of perception, acknowledges divergences in ways of life, and respects dissent. The reflections of dignity are found in lamps of freedom. When histories of nations are written there are also judicial decisions at the forefront of liberty such as Puttaswamy case, upholding privacy as an inalienable right and fundamental constitutional value.  It remains as the evidence of India’s commitment to a global human rights regime, emanating from constitutional obligation under Article 51 and from a member State’s obligation under UDHR and ICCPR. 

Privacy has travelled much from property, private physical space and it now protects people and not merely places, on ‘reasonable expectation of privacy’ doctrine. Thus, there is a necessity to ensure that privacy is safeguarded in law and practice.  The Supreme Court in Puttuswamy case was not adding a new right into the broad spectrum of rights, but was only reinforcing what was already in existence and being held as inherent and inalienable.

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal they stand for many dimensions of privacies of life. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the founders fought. The question of technological invasions affecting privacy must satisfy statutory and procedural safeguards and must be in accordance with law. 

Need for balancing

Technological developments which have made surveillance more pervasive affect citizens’ privacy. There has to be a delicate balancing between the interest of the individual in maintaining privacy with the interest of the State in maintaining law and order, national security. The jurisprudence on human dignity cannot be easily forgotten. Criticisms of privacy cannot outweigh its noble existence as a core constitutional value.

Privacy is not absolute. Compelling State interest may limit it.  The advances in technology has increased the vulnerability of individuals to having their actions, words, images, personalities communicated without their consent, beyond the protected circle. The Pegasus controversy has given us the opportunity to examine the diameters of privacy on a test of predominant constitutional values and values of justice and as integral component of ordered liberty.

Democracy can survive only when citizens have an undiluted assurance that the Rule of Law will protect their rights and liberties against any invasion by the State. The brooding spirit of the law recognises this heaven of freedom. Under the Constitutional Jurisprudence, the government is not only accountable to the Parliament, but equally to the Supreme Court which has a constitutional duty to protect the Fundamental Rights of the citizens. It is this glorious message that seems to be conveyed from the order of the Court.

(The writer is a prominent Lawyer, an acclaimed writer and a distinguished academician based in Kochi)