INTRODUCTION
The right to privacy is one of the most vital rights of an individual, a right emanating from the intersection of dignity and liberty, indeed, a right that gives other rights meaning. Given the innate primacy of this right, the question of applicability arises, whether it can be enforced only against the state (vertically) or against private parties (horizontally) as well. This right originates in common law and, as conceptualized in the seminal work by Samuel Warren and Louis Brandeis, embodies protections for each individual’s “inviolate personality”. It’s origin in tort follows that it could be horizontally applied i.e., against private parties. From its humble origins in tort as the ‘invasion of privacy’ and ‘breach of confidence’, it has come a long way to today being recognised as an international human right and a fundamental right under Article 21 of the Indian constitution. While its recognition as a fundamental right elevates its status, it also restricts its scope, given the established doctrine in Indian law which limits fundamental rights to be only vertically enforceable i.e., against the state. This established doctrine, however, has been upended by the Supreme Court in its recent decision in Kaushal Kishor.
The rise of social media and information technology has transformed our world. While it has brought us closer to a ‘global village’, it has also taken the privacy breach issue to a new level. These social media companies’ collection, processing, and storage of large amounts of data creates enormous vulnerabilities for potential data leaks. It is also social media that exacerbates the impact of a privacy breach. In such a situation, it is necessary to bring social media companies within the framework of privacy rights enforcement and hold them accountable for their actions or the lack thereof.
This post presents the dual recognition of the right to privacy and its erosion in light of the Supreme Court’s decision in Kaushal Kishor, which extends the application of fundamental rights against private parties. It argues for a unified approach in dealing with privacy cases, allowing individuals to seek compensation against private parties and the government for violating their privacy rights. It further argues for placing the right to privacy at the intersection of constitutional and tort law, making the breach of privacy a constitutional tort.
INDIAN POSITION OF DUAL RECOGNITION
Indian law recognises the right to privacy as a fundamental right within Article 21 of the Constitution. This position emerges from the landmark Supreme Court decision in K.S. Puttaswamy v Union of India, where the Court declared privacy to be an “intrinsic part” of the right to life guaranteed under Article 21 and therefore elevated it to the status of a fundamental right. . While the Court recognised the right to privacy to be a fundamental right within Article 21, it also recognised it as a common law right, leading to its dual recognition.
This dual recognition of privacy as a right paves the way for a distinction in cases of the enforcement of the right to privacy. This distinction was held and articulated by the Supreme Court in R. Rajagopalan v Tamil Nadu, wherein the Court substantiated that the right to privacy has two aspects – a tortious aspect that deals with the breach of privacy of individuals and a constitutional aspect that protects against the breach of privacy by government intrusion. Gautam Bhatia writes, “The court in Rajagopal was concerned about an action between private parties, and therefore, privacy in the context of tort law.” He further critiques the reading of the decision in Rajagopal as one on the constitutional aspect of privacy under Article 21, despite the Court’s clear distinction between the constitutional and tort law aspects. This makes it imperative to understand this distinction and the need for it.
THE ROOT OF THE DISTINCTION
This distinction is significant due to the difference in enforcement mechanisms in both these aspects. While an individual must institute a civil suit to enforce the common law right to privacy, a writ petition alleging the violation of fundamental rights has to be instituted to enforce the constitutional right to privacy. Another significant impact is on the jurisdiction the court exercises while adjudicating the issue, with the exercise of civil jurisdiction for the common law right and writ jurisdiction for the constitutional right.
While this distinction certainly does originate from the different sources for the two aspects of the right to privacy, its need originates primarily from the long-settled position of law that fundamental rights are only vertically applicable, i.e., against the State. This vertical applicability has long been accepted and is evident from the language of the Articles in Part III and their interpretation in P.D. Shamdasani v. Central Bank of India Ltd and Vidya Verma v. Dr. Shiv Narain Verma. These limit the enforcement of fundamental right violations by making them claimable only against the State and its functionaries as defined under Article 12. This leads to the exclusion of the vast majority of cases which deal with the violation of the right to privacy by other individuals and actors. It is the common law or tortious right to privacy that covers cases through horizontal application.
BLURRING OF LINES
The long-established legal position limiting the applicability of fundamental rights against the State has been recently modified by the Supreme Court in its landmark ruling in Kaushal Kishor v State of Uttar Pradesh. The Court modified the settled position of law and propounded that fundamental rights under Articles 19 and 21 can be horizontally applied. This implies that these rights can be enforced against private parties and individuals can approach the courts for such enforcement under writ jurisdiction. The right to privacy falling under the ambit of Article 21 can, therefore, be horizontally applied. While the legal standing of this judgement has been much debated, it follows in the tradition of landmark judicial pronouncements of the Supreme Court, wherein the Court, in certain circumstances, recognised the folly of inhibiting the application of fundamental rights to the “State” alone.
There is also an inherent issue in limiting the application of fundamental rights to the State alone by the very fact that every private act derives its legal validity from the extant legal landscape, which, in turn, is the creation of the State. This further becomes highly relevant in cases involving large multinational corporations that are acquiring power equivalent to the State, and it becomes necessary to protect the interest of right-bearing individuals through constitutional arrangements and accommodate fundamental rights in a modern social setting. This is what Kaushal Kishor aims to achieve – to give effect to the spirit of the right to privacy in today’s world.
RIGHTING THE WRONG
The breach of the right to privacy, like all other rights, asks for a remedy to ‘right the wrong.’ While injunctive relief prevents future damage, monetary compensation is perhaps the only way to compensate for the damage already suffered due to the breach of privacy. It is well settled that courts, in the exercise of their writ jurisdiction under Articles 32 and 226, can grant compensatory damages. In Rudul Shah v State of Bihar, the Court went as far as to declare that the right to compensation is itself a fundamental right under Article 21. This is also in line with Article 9(5) of the ICCPR, which provides for an enforceable right to compensation. While India had initially made a reservation about the applicability of this clause, the Supreme Court affirmed that it was applicable in D.K. Basu v State of West Bengal. The Court finally, in M.C. Mehta v Union of India, reiterated its stand in Rudul Shah and held that under Article 32, the Court could forge new remedies and accordingly grant compensation in appropriate cases. In this way, the Court has effectively devised a public law remedy for the violation of fundamental rights by the State and its functionaries which may be referred to as the constitutional tort law framework.
This framework, with a few notable exceptions, fails to include within its ambit cases against private individuals for violation of fundamental rights. With the ruling in Kaushal Kishor, it should now be possible to extend this constitutional tort law to horizontal application of such rights. Such an interpretation would not be unprecedented. The evolution of the ‘polluter pays principle’ in MC Mehta v Kamal Nath utilises horizontal applicability and directed the polluting corporation to pay compensation for violating people’s right to life. The Supreme Court in Boddhisatwa Gautam v Subhra Chakraborty granted compensation to a rape victim from the perpetrator for the violation of the victim’s right to life. Similarly, in Consumer Education and Research Centre v Union of India, the Court granted compensation by way of a writ petition to the workers for violation of their right to life. While in these decisions, the Court has stressed a high threshold for the grant of compensation, such as that of ‘patent and inconvertible damage’, as formulated in M.C. Mehta v Union of India and reaffirmed in Sube Singh v State of Haryana and Ors, this threshold is liable to be lowered in light of the Court’s ruling in Kishor.
While the Court under its writ jurisdiction can indeed grant compensatory damages, given the massive backlog of cases and slow disposal rate, it is better to create a unified and statutory remedy provision for logistical reasons. It is pertinent to note that while Section 43A of the IT Act provided such a provision for grant of compensation for failure to protect data, Section 44 of the Personal Data Protection Act repeals it. This leaves individuals with no remedy and forces them to invoke the Court’s writ jurisdiction.
THE WAY AHEAD
In today’s digital age, it is necessary to curate a system of enforcing the right to privacy against private individuals, for otherwise, the spirit of the right shall be lost. The Supreme Court’s ruling in Puttaswamy, along with the ruling in Kishor, provides a legal basis for extending the constitutional tort law framework to horizontal applicability. While this writ petition approach is possible, it is better to create an alternate unified framework through statutory law for logistical reasons. Placing privacy breach as a constitutional tort would not only provide adequate remedy to individuals but also deter future breaches, ushering in a new era of digital privacy.
The Author is a student of Jindal Global Law School
Image Credit: Agolia
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