From Griswold to Puttaswamy: How Privacy Travelled from the US to India

Abstract

Privacy has travelled from the home into every part of digital life. Its modern form protects bodily integrity, personal choice, information and freedom from unjustified state intrusion. This article traces that development from American constitutional doctrine to the Indian Supreme Court's recognition of privacy as a fundamental right in Puttaswamy.

The constitutional landmark case of Puttaswamy, as well as Carpenter, is dealt with in depth. The paper further does a comparative analysis of the evolution of the right in the United States as well as India and how the Courts have interpreted from denial to the acceptance phase. During the study doctrinal comparative analysis has been done to clearly understand the evolution pattern and methods through which courts have interpreted in right to privacy.

Keywords

Right to Privacy, Search and Seizure, Comparative Constitutional Law, Fundamental Rights, India, United States

Introduction

Privacy is an essential or a prerequisite for a fundamental human being. As rightly stated, life is not merely an animal existence. It is much more than that. It is right to live with dignity and freedom. Privacy is interpreted differently across the world. In some countries, it is statutorily available, or in some, it is available in the constitution itself. In contrast, in others, the Court have played a vital role in interpreting the constitution and bringing the people the Right to Privacy.

The United States of America is known across the world as a free country with absolute rights being guaranteed to its citizens, with Privacy being one of them, though it is available under 4th Amendment of the Constitution, but has been judicially interpreted. India is the world's largest democracy, whose courts for the longest time did not recognise Privacy as a fundamental right, despite it being a Universal Human Right available to all. The Universal Declaration of Human Rights also recognises the Privacy as a human right. Accordingly, the world at large has recognised in the International Covenant on Civil and Political Rights that People have the right against unlawful interference in their privacy.

India as a country had ratified both the Convention and Declaration as well; however, only in recent times have the courts recognised that Individuals do exist outside the state's Interference and have the right to live with Privacy under Article 21 of the Indian Constitution, which has widened the ambit of claims of citizens.

Definition of Right to Privacy

The Right to Privacy is a fundamental human right that should be available in all democracies worldwide. It is a fundamental right of citizens that prevents unwanted intrusion by the state. The Term "Privacy" does not have a single meaning; it is a transformative concept that is always evolving among Scholars and Educationists, but in general, it is accepted to mean "the right to be left alone". It is based on the idea that Individuals should be able to keep certain aspects of their personal life and activities private, including those related to the State Government.

The Modern legal roots of Privacy can be traced back to a Harvard Law Review Article titled "Right to Privacy" by Warren and Brandeis, which deeply discussed the need for privacy and states that Individuals should be guaranteed the legal right to be left alone. It has been so recognised under the International Bill of Human Rights as well. Privacy and its ambit have grown with digitisation and will continue to grow and change with time. Privacy has become everything in this digital world, particularly the noise to remain anonymous in a world where nothing can be hidden for a long period of time.

Historical Evolution of Privacy

United States of America

The Constitution came into effect in 1789, and it did not explicitly provide a provision for the Right to Privacy, but it has evolved through judicial Interpretation of 4th Amendment that protects the citizens from unreasonable search and seizures. The Initial interpretation was done very narrowly, and Privacy was considered an aspect of property rights. Justice Brandeis's famous dissent in Olmstead Vs United States, that privacy is the most valued right of a civilised man, laid down the groundwork for the present. He contended that 4th amendment of the Constitution protects the men from government intrusion even when there is no physical entry in the home.

He further equated wiretap with the physical search of men.

The United States Supreme Court in Griswold Vs Connecticut recognised the right to contraceptives and the "right to privacy" under the 4th amendment of the Constitution. Katz Vs United States introduced a reasonable expectation of Privacy test, and the court stated that wiretapping an individual violates his privacy, and Privacy is with the people and not with a place. Through the following judgment, the case overruled the Olmstead case. It marked the transformative shift in Privacy Jurisprudence.

The United States Supreme Court, recognising the technological advancement and the need to protect the citizens from intrusion, held in United States Vs Jones that attaching a GPS device to a vehicle without a warrant constitutes a search and violates the Fourth Amendment.

The Right has been further expanded in Riley Vs California USSC clearly held that Police must obtain a search warrant to check the contents of a Mobile phone, as it is protected from unreasonable searches and seizures under the 4th amendment. It simply means that Privacy extends in the digital ambit as well. It has been further expanded in Carpenter Vs United States, Privacy is available in digital history as well.

The Privacy so recognised is not absolute, as if the State has a proper warrant or authority or permission, then they can intrude upon the Individual's Personal matters. The recent verdict of the USSC in Dobbs Vs Jackson which overruled the constitutional right to abortion, however, has not overruled the right to privacy in other matters, such as contraception and search and seizure law. However, the explanation provided by the Judges of the USSC for overruling the earlier decision deviates from the US Constitution as a living Constitution to formalism.

India

India adopted its Constitution in 1950 after long debates by the framers of the Constitution. It is considered the world's longest Constitution as it deals with all the intricacies to ensure that nothing major is left for future politicians to decide, which may go against the morality of the Constitution. Although the right to privacy has not been directly or explicitly provided in Part 3 of it, but the Indian Courts have been central in reading it into the constitution itself and expanding it over time. The Right to Privacy in India may broadly be divided under two phases.

Phase One: "The Denial Phase"

In the initial phase, the Supreme Court of India conducted a strict Interpretation of the Constitution and refused to recognise the right to Privacy as a guaranteed fundamental right. In the case of "MP Sharma Vs. Satish Chandra", a landmark Constitution bench judgement, the Supreme Court stated that the Framers had knowingly omitted to include Privacy as a fundamental right, and that it has no recognition as such. This judgement is the first major decision on privacy in India. Further in "Khadak Singh Vs. State of UP" the question before the Court was whether a domiciliary night visit and surveillance regulations by the Police on the accused violates the privacy and personal liberty of the Individual.

The Supreme Court held that the Indian Constitution does not guarantee Privacy to the citizens and there is no need to read it as such. However, Justice Subba Rao gave a profoundly effective dissenting opinion stating that the Right to Privacy forms an essential ingredient of personal liberty guaranteed under Article 21 and freedom of movement under Article 19 (1)(d) includes the freedom to move freely without being monitored by the State. And on this very ground he held the surveillance measures as unconstitutional.

Later on, limited recognition can be found in the case of "R. Rajagopal Vs State of Tamil Nadu" as the court recognised a limited right to be left alone. This judgement laid the foundational step for the growth of privacy jurisprudence in India.

Phase Two: "Transformative Interpretation Phase"

The second phase marks a transformative shift in the constitutional interpretation of Right to Privacy. Right to Privacy is ultimately considered as a part and parcel of Article 21 by the Supreme Court. In the case of "K. S. Puttaswamy Vs. Union of India" Justice Chandrachud stated, "Privacy is the constitutional core of human dignity" and the court held that the right to privacy is an inherent part under the right to life and liberty and is very much essential for safeguard of individual dignity. In doing so, the Court overruled the previous cases.

In the case of "Navtej Singh Johar Vs Union of India" the concept of Privacy gets further transformed as Privacy does not only mean the right to be left alone or to enjoy freedom from the interference of the State but the liberty to make personal choices about one's own identity, sexual orientation and partner. Privacy is dignity, and criminalisation of consenting adult same sex relationships violates the fundamental right to equality and discriminates against those individuals.

This judgement has significantly widened the scope of the right further in India and in today's digital era where an individual's personal information regarding identity or relationships can easily be accessed, the fundamental principles of the Navtej Singh Johar judgement assume greater importance.

Analysis

The Right to Privacy, though, is available in both countries -the United States of America and India -and they are very different in comparison to one another. In the United States, the Right has been interpreted through a constitutional provision that explicitly protects against unreasonable searches and seizures, while in India, it is available impliedly under Article 21 of the Constitution.

The US courts' decision is on a case-by-case basis and depends on the reasonable expectation of Privacy Test, while the Indian Courts have taken a wider view. The Courts in the United States mainly protect against State Intrusion in personal life or the Privacy of the individual. However, one thing is obvious: both systems heavily rely on Judicial creativity to fill the gaps in their constitutions that have become very much necessary in the present time.

Contemporary Challenges and Suggestions

The right to Privacy is an essential right of an individual, particularly in the modern digital world. However, there are numerous challenges ahead, as the recent Judgement of the United States Supreme Court in Dobbs Vs Jackson overruled the constitutional right to Abortion available to women in America and shifted the tone towards originalism, and in those lines increased state interference in private matters of individuals.

In India, the Courts have continuously expanded the rights of citizens and limited the powers of the Government, but at the same time, we have instruments like Aadhaar cards, which contain all personal details, from fingerprints to an individual's address. They have become a tool for state surveillance as well as a reason for increased cyberattacks on individuals, as there have always been allegations that the Aadhaar data is not safe.

India does not have a statutory framework providing privacy to the people of the country. Though the recent Digital Personal Data Protection Act 2023 aims to do the same and but have not been implemented as of yet. It carries with itself huge penalty for data breaches but it has given all the control to the Central Government in the name of National Security purposes. It may also become a burden on the growing startups.

Conclusion

Privacy is a basic fundamental human right of the People. The Right has evolved over time in different countries around the world; in some, it is implicitly available in the Constitution, while in others, it is explicitly provided. In both the USA and India, the right has evolved with judicial interference. Both jurisdictions have connected privacy with dignity, liberty and autonomy of individuals. The US relies on the Reasonable Expectation of Privacy Test, while the Indian Courts have expanded life and personal liberty with it.

Yet, Privacy is vulnerable as they are facing numerous challenges from continuously growing state surveillance and the changing stance of the Courts. The Future is also bringing further challenges with AI technology and state surveillance increasing day by day, which require further safeguards in the form of Statutory as well as constitutional protection.

Life under Article 21 means more than physical existence. As technology changes the ways in which the state and private actors observe, classify and influence individuals, privacy must continue to evolve as a condition of liberty, dignity and democratic citizenship.

Primary materials

Key primary materials: Digital Personal Data Protection Act, 2023 and subordinate legislation; Ministry of Electronics and Information Technology.