Analysing The Practical Implications Of A Right To Privacy: State Surveillance And Constitution

Abstract

Privacy is the most revered right in our society, integral to human existence, and the greatest bugaboo for the State. Courts, across jurisdictions, have been extremely careless in using privacy and have adopted it as their go-to justification, without adequately clarifying the import and scope of “privacy” as a right. Such “incoherent” judicial decision-making fundamentally lacks doctrinal clarity and conceptual consistency. In addition, the varying theories on privacy have also contributed to privacy’s theoretical indeterminacy. In this Paper, we shall evaluate and critique the existing ideas and notions of privacy, while also attempting to draw out an alternate theoretical framework for privacy, in order to address the needs of contemporary digital world. We believe at a time when there is increasing surveillance by both State and Non-state actors, it is imperative to rethink the contours of “Privacy”. Further, we have addressed the contemporary privacy concerns by evaluating the risks of potential breach by social-media forums, such as Facebook & Google, and argue that “threat on privacy” is not necessarily akin to “loss or breach of privacy”. We have also attempted to deal with the issue of right to privacy over “documented personal information”, in light of the recent Aadhar debate. On that note, we have inquired into the proportionality test adopted by the Supreme Court in Puttaswamy, and then compared it with similar tests used in foreign jurisdictions to judge the legality of legislative actions.

Keywords: Aadhaar, India, Control, External Interference, Informational Privacy, Right to Privacy, Privacy, Internal Reservation, Limitation, Personal Information, Personal Data, Social-Media, Indian Constitution, Constitutional Law, Comparative Law, Data Privacy