In the preserves of privacy, writes Kapil Sibal

The right to privacy is at the centre of emotive debates across the democratic world. The communications revolution along with the galloping pace of innovative technologies has made the State all pervasive. It also has the potential to become uncomfortably intrusive. The State is now capable of entering my home without knocking at my door. Technology enables conversations to be accessed without the intruders’ presence. Smart TVs have watchful eyes. Consequently, the relationship between the individual and State is undergoing a qualitative transformation. My home is my castle is no longer a truism. Hence, the need to protect the individual’s privacy.

The nature of the right and extent of protection needed was the subject matter of recent proceedings before a constitution bench of nine judges of the Supreme Court of India. First, the nature of the right to privacy. It is an essential attribute of personal liberty, a constitutionally recognised fundamental right. Without privacy, an individual’s liberty is inchoate. It is the very essence of personal liberty. Yet it must be separately recognised. The simplistic definition of the right to privacy as ‘to be let alone’ is under-inclusive. Privacy protects the inner sphere of the individual from State and non-State actors. This inner sphere relates to what I say and do in private, with the legitimate expectation that it won’t be shared.

I exercise my personal liberty in expressing my thoughts in private, but when the State, without my consent, accesses them, it is not my liberty but my privacy that is invaded. I have the liberty to eat what I like within the confines of my home. Prying by the State does not infringe my liberty but violates my privacy. By tracking who I visit, without any legitimate and compelling State interest, will again violate my right to privacy.  Without the recognition of privacy as a fundamental constitutional right, its enforcement will be problematic. Having said that, the right to privacy, though fundamental, is like other such rights, not absolute. Its exercise is subject to legitimate and compelling State interest. My private actions may be subversive or might have the potential of or infringe the law. Thus, the right to privacy should not be a license to be misused for illegitimate ends. Equally, legitimate and compelling State interest must not be a cloak for uncalled-for state intrusion.

Every act of State intrusion must be sanctioned by law and must be proportionate to the legitimate and compelling need for intrusion. The facts of each case will determine the outcome of the challenge. The State must also provide for procedural guarantees against abuse of such intrusions. While we ride on the information highway empowering ourselves, we are voluntarily sharing information with both friends, strangers, the State and other entities, who may, with that information, disempower us. Those sharing personal data voluntarily on technology platforms are aware that it may be shared further.

The concept of privacy, therefore, has to be viewed in light of two qualitative relationships: One between individual and State; the other between individuals and non-State actors. Issues of privacy in respect of both have to be dealt with separately. The first has constitutional implications and the second relates to confidentiality. Thus the right to privacy has both horizontal and vertical attributes.

The right to privacy in the context of State action relates to data, which is shared either by law or otherwise with the State. Such data is shared for specific purposes.  For instance, the data shared for getting a passport is for the specific purpose of exercising the fundamental right of citizens to travel. If any other organ of the State accesses that data and breaches confidentiality between citizens and such authority, that per se would be an invasion of the right to privacy. That is also true of data relating to a person’s physical attributes shared with a government hospital. Access to such data by another government agency to which the citizen has not consented, would also infringe the citizen’s right to privacy.

The relationship between citizens and non-State actors qua which data is willingly provided by the citizen for enhancing the citizen’s own experience is subject to confidentiality to the extent confidentiality can be maintained. There may be platforms where such confidentiality cannot be maintained.  In such cases, where there is a dilution of the right to confidentiality, the citizen should be made aware that when sharing such data, there may be a possibility of it being further shared. The right to privacy also enjoins the State to put in place a robust data protection law, that obligates State and non-State actors to ensure that data shared by the citizens is secure and that the breach of any confidentiality would be visited with legal consequences. The principles underlying such data protection law require a transparent system for management of personal information including putting in place a privacy policy and ensuring that the quality of personal information is secured.

An individual’s persona with all its attributes requires to be protected. That will only happen when our Republic is passionately committed to a liberal democratic environment.

The author is a Member of the Rajya Sabha, and a senior Indian National Congress leader