EVOLUTIVE JURISPRUDENCE ON PRIVACY: APPROACH VIA A THEORETICAL LENS

We live in the era of digital informational revolution where our entire lives are stored in a digital dossier. We shall not be blind folded that while technology is a pragmatic tool for making our lives better and the same can also be used to breach that sacred private space of an individual. The courts while impinging upon the realm of national security must be exceptionally cautions and watchful as no panoramic prohibition can be juxtaposed against judicial review. The intent of this paper is to contemplate the jurisprudence of law on privacy and discussion on the nature of privacy in digital era.

OVERVIEW

The indefinite and formless concept of privacy can be visualized and understood by Aristotle’s unique distinction between the public discipline of political affairs or ‘polis’ and the personal domain of a person or ‘oikos’. Aristotle’s severance between the private and public departments can be appraised as a cornerstone for restricting or limiting the authority of the government in aspects of certain activities falling under the disciple of public arenas. Contrarily, affairs falling under the category of private discipline is considered more suitable for ‘private reflection, familial relations and self-determination’. While relating this hypothesis with right to privacy and the notion of privacy as a right under constitutional framework, this concept coined by Aristotle blemishes an equilibrium between the sway of power in the hand of the superior authorities and free will or liberty in the hand of the citizens, thereby striking an appropriate balance between the two.

Consequently, the right ‘to be let alone’ speaks about manifestation of an unharmed personality, an elemental of emancipation and liberty from which the human beings must be free from intrusion. The landmark privacy judgment categorically talks about the right to be left alone as a reflection of the unalterable description of the human personality. However, there is a meteoric need to protect the privacy of the being which is of sheer importance when the development and technological changes are increasing growing at light speed thereby threatening to place the people into public gaze and portend to submerge the individuals into a suave web of inter-connected lives.

ESSENTIAL NATURE OF PRIVACY

The concept is funded on the self determination of the individuals. The capacity and capability of any person or individual to build and ascertain on such choice is a paramount illustration of the human personality. The whim of privacy validates the assertion and control among the hands of the common citizens or the individuals which and the same is indissoluble from an individual’s personality. The capability to form opinions and form decisions manifest an impregnable grain of the human character and such a self-determination is directly or indirectly coupled with certain matters which could have be kept as private as well. Such concerns form a legitimate presupposition of privacy at very least.

Recognizing and appreciating a precinct of privacy as a postulate of human dignity while giving due credit to George Orwell for depicting what the world would be like if the absolute power rests at the hands the superior authorities while the citizens having no say whatsoever. One must not be constrained with the big brother eye as visualized by George Orwell in 1984 and therefore, every individual must be entitled to a personal zone where he or she is free of social suppositions.

INFORMATIONAL PRIVACY AND THE DIGITAL ERA

The age of artificial intelligence, information, digitalization has made way for more involuted questions and issues relating to informational privacy. As per the findings of K.S Puttaswamy judgment, Information has three facets: it is non-rivalrous, invisible and recombinant. Firstly, Information can be said to be non-rivalrous in a way that there are multiple users of the product and it is to be understood that such a product which is information is available for everyone in same sense as it is for another, and hence, does not make it less available for another. Secondly, the invisibility nature of data privacy makes it difficult to ascertain and detect. Information has the ability to travel as fast as the speed of light which creates a black area regarding access to data since the collection of information can be the swiftest theft of all. Moreover, it can be disseminated, accessed, and stored without notice which brings out the dangerous aspects of informational age. Lastly, information is chimeric because data can be generated from data leading to over use of data or misuse of unneeded data.

This digitalization age has been correctly regarded as ‘an era of pervasive dataveillance’, or can be understood as the structured monitoring system of individual’s actions through their own information generated and gathered through their use of technology. We are living in the generational age of big data or the assemblage of data sets and these data sets are efficient of being searched since every data is a set of data(s) and hence, every single data has a linkage with other sets of data which can be permanent having an exhaustive scope. The state must have justifiable reasons to collect and store the data of general public apart from reasons of national security.

THE PERSONAL DATA PROTECTION BILL, 2019: INDIA’S PRIVACY LAW

A constitutional Bench comprising of nine judges of the Hon’ble Apex Court of India on August 24, 2017 in Justice K.S. Puttaswamy (Retd.) vs UOI upheld that privacy even though not absolute, is a fundamental right which is enshrined in Article 21 of the Constitution of India relating to Right to Life and Liberty which led to the emergence of a compendious Personal Data Protection Bill 2019 (hereinafter referred as ‘the PDP Bill’). The Bill is currently pending for consideration before the Indian Parliament and may undergo crucial alterations to its current form as per a report submitted by a Joint Parliamentary Committee regarding to analysis of the PDP Bill. It is germane to state that the aforesaid bill is based on the General Data Protection Regulation, 2016 (hereinafter referred as ‘the GDPR’).

CONCLUSION

While talking about the constitutional freedom and right to privacy, often the cast of chilling effect comes into play. This effect is due to the danger of a human being subjected to social opprobrium as reflected in the punishment of crime. However, this chilling effect comes to a halt when debating about the autonomy of the digital data concerning a concluded trial and its contours. The Constitution is not a charter of servitude, therefore, the delinquents of transformative constitutionalism and right to privacy under a democratic state cannot be guided by the notion of prejudice in balance of power constituting the flesh and blood of any constitutional order. Such an act would not only defy the philosophy of natural justice but also threaten the parallel correlation between state and individual under a democratic and republican constitutional structure.

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