Privacy and the rights based approach

Privacy epistemoligically implies selective expression of a person out of one's own free will. Therefore, a rights based approach to privacy ultimately justifies expression of free will. Howerver, declaring it as a fundamental right has become a contemporary judicial debate on which the Supreme Court bench is to decide soon.

Naming and declaring a right has powerful consequences. In democratic orders like ours, our rights are only as strong as our capacity to assert them. Recognising the right is the first step in opening up the possibility of it trickling down into the people’s consciousness. As governments and technologies become increasingly intrusive, the people of this country must be empowered to safeguard their interests. Irrespective of the outcome, these nine judges will make constitutional history. What is far more important is that they have the opportunity to empower each and every person in India with a right that lies at the very core of personal liberty.

Since the Supreme Court began defending fundamental rights in 1950, it has displayed a deep commitment to preserving the right to ‘life’ under Article 21. Over time, it has tended this right with great care and has declared that it guarantees a right to food, shelter, education, health and clean environment. However, the companion right in Article 21 — to ‘personal liberty’ — has not fared so well.

A right to privacy must not be declared because it is an expansive right without clear boundaries. It also argues that there is no need to declare privacy as a separate right because the phrase ‘personal liberty’ in Article 21 already covers it. This article responds to these arguments by returning to the Supreme Court’s own decisions and to first principles of adjudicating constitutional rights. Despite this, if every time the amplitude within aricle 21 only has to be adjusted to merge more rights then the relationship betweem the State and the Citizen becomes challenging w.r.t. personal 'liberties' and State "Power'

However, as citizens of a democracy in whose service the Constitution and the government exist, surely we must welcome expansive rights. All constitutions, including India’s, are intended to maximise citizens’ freedoms and tightly restrain the government’s capacity to curtail them. In India’s own constitutional history, we have seen that all rights travel the same path to being declared so fundamental that the Constitution and courts must defend them.

All rights, however seemingly precise, see contests about where their boundaries lie. Invariably, they all evolve and expand over time. This is an aspect of constitutional adjudication that we must embrace. Constitutions, including rights, must be capable of responding to contemporary challenges. Even standing alone, a right to privacy embraces a wide range of things — from preventing the state from watching us without cause, to affirming that we can form and choose our identities, to deciding what information about us is collected by the state using the force of the law and how that information is processed and made available to whom. Each of these facets of privacy raises different concerns and places different burdens on the state to justify intrusions. We cannot simultaneously recognise privacy’s importance and also say that it ought not to be named and treated as such.

In an increasingly integrated and transparent m-world, privacy becomes doubtful and hence an important concern within the polity. Agenda setting for the same has progressed on both anti and pro fronts. Now, It remains to be seen whether it can transform from our social ethics to constitutional ethos.

By: Abhishek Sharma