by Sreeker Aechuri 19 March 2019
The case of Justice K.S Puttaswamy (Retd.) V. Union of India and Ors[i] has changed the understanding and legal viewpoint of the concept of privacy in India. The nine-Judge bench has read the right to privacy as a fundamental right guaranteed under the Constitution of India.[ii] The main theme of discussion under the right to privacy is the extent and applicability of such right with the main question being – do private individuals and entities fall under the ambit of this right?
As a general rule, the Indian Courts have refrained from applying fundamental rights against private entities unless expressly provided by the Constitution (Articles 15 (2) and 17). Apart from these exceptions, a vertical application has been used to understand the constitutional right and regulate its relationship between the individual and the State.[iii]
The Courts have evolved the legal jurisprudence regarding the horizontal application of fundamental rights through four remedies[iv]:
- Assimilation of Private Body to State under Article 12 of Indian Constitution
- Positive Rights against the State
- Indirect Horizontality
- Direct Horizontality
The Apex Court in the Puttaswamy Case[v] has chosen to use the second remedy creating a positive obligation on the State by delineating from the Direct Horizontality concept.[vi] By creating a positive obligation, the State has to establish a legal framework for free exercise of the right to privacy which is an additional layer of protection for the individual’s right.[vii]
Justice Chandrachud (on behalf of four judges) has expressed that privacy
“has both a positive and a negative content- The negative content restrains the state from committing an intrusion upon the life and personal liberty of a citizen. Its positive content imposes an obligation on the state to take all necessary measures to protect the privacy of the individual.”[viii]
This positive content has been discussed by Justice Chandrachud (on behalf of four judges) and Justice S.K Kaul limited it to the context of data protection.[ix] Justice Kaul emphasized on the need for State regulation in the aspects of processing and usage of date by Non-State actors.[x] He stressed that the right to privacy protects the individual from the clutches of State and Non-State Actors and allows individuals to act freely and make autonomous life choices.[xi] Both the opinions made it clear that data collection and mining is a complex issue and the rights of an individual can only be protected through an enacted law of the Parliament.[xii]
It is necessary to understand the legal standpoint of the enforceability of right to privacy post the effect of the Puttaswamy judgment. The current legal viewpoint does not provide an individual the right to challenge a Non-State Actor for a violation of his right to privacy.[xiii] The State’s obligation has changed i.e. the Supreme Court has created a positive obligation on the State in the limited context of data protection necessitating the State to create a legal framework for enabling the individuals to freely exercise their right to privacy.[xiv]
Before jumping into any conclusions on the Supreme Court not providing for the direct horizontality application for the fundamental right to privacy, it is important to remember that the right to privacy, in the past was recognized as a ‘common law right’ and is enforceable against the private individuals and entities under the tort law.[xv] It is necessary to understand that the central question of the Puttaswamy case was the question of privacy being a fundamental right or not. So, the framing of the central question precluded the Apex Court from delving into the specific features of privacy as a right.[xvi]
Hence, it is the opinion of some jurists that the Apex Court through the Puttaswamy judgment could not have provided the individuals the constitutional right to privacy against private individuals and entities because it was outside the scope of the question of law dealt in the case.[xvii]
Yet the Apex Court has consciously dealt with some specific
features of the right to privacy despite not being central to the question
dealt with, like the Court creating a positive obligation on the State in the
context of data protection. Hence, the question of horizontal applicability of
the right to privacy cannot be evaded through this frivolous reasoning and the
Court should have expanded the concept of positive obligation into other
specific and complex issues regarding the concept of privacy for safeguarding
the right to privacy of the people.
[i] Justice K.S Puttaswamy (Retd.) V. Union of India and Ors, (2017) 10 SCC 1.
[ii] Mariyam Kamil, How Privacy stacks up, The Hindu, August 28, 2017, https://www.thehindu.com/opinion/op-ed/how-privacy-stacks-up/article19571295.ece
[iii] Gautam Bhatia, The Supreme Court’s Right to Privacy – VII: Privacy and the Freedom of Speech, Indian Constitutional Law and Philosphy Blog, September 5, 2017, https://indconlawphil.wordpress.com/2017/09/05/the-supreme-courts-right-to-privacy-judgment-vii-privacy-and-the-freedom-of-speech/
[iv] Gautam Bhatia, Horizontality under the Indian Constitution: A Schema, Indian Constitutional Law and Philosophy Blog, May 24, 2015, https://indconlawphil.wordpress.com/tag/horizontal-rights-2/
[v] supra note 1.
[vi] The Horizontal Application of the Fundamental Right to Privacy, Tech, Law and Policy Blog, September 5, 2017, https://techlawpolicy.wordpress.com/2017/09/05/the-horizontal-application-of-the-fundamental-right-to-privacy/
[viii] supra note 1, p. 264.
[ix] supra note 4.
[x] supra note 1, p. 507.
[xi] Jayna Kothari, The Indian Supreme Court declares the Constitutional Right to Privacy, OxHRH Blog, October 4, 2017, http://ohrh.law.ox.ac.uk/the-indian-supreme-court-declares-the-constitutional-right-to-privacy/
[xii] supra note 4.
[xiii] supra note 6.
[xv] supra note 3.
[xvi] supra note 3.