The concept of privacy will have to yield with concepts such as national interest, state interest, public interest and private interests
Rajeev Dhavan
In 1973, I co-wrote an article "Privacy: Adventures of a Concept" to examine how two great traditions dealt with privacy as an enforceable legal concept. The "common law" tradition explicated privacy as a "bundle of rights" consisting of trespass of the home and body (rape, search and seizure), protecting persona and reputation (passing off, defamation and injunctive relief), defending personal rights of beneficiaries (trusts, especially constructive trust), criminal laws (protection of body, property and reputation), the general concept of negligence and confidentiality of papers and information.
Historical context
The "constitutional tradition" looked at the combination of equality, liberty and due process to examine intrusions into the life and liberty by the state and others. Both traditions did not mature into easily discernible rights which the law would enforce. The question was: would a civil court enforce a right to privacy.
Or, as Ratan Tata claimed, could the Supreme Court enforce a constitutionally guaranteed right to privacy from phone tapping? As a juristic concern, discussions began with the famous Warren Brandies article of 1890 in the Harvard Law Review to produce a continuing rich literature.
The constitutional tradition protected privacy, in various cases in America, Europe, and India but indirectly as an adjunct to existing guaranteed freedoms. The Indian constitutional tradition was besieged by a variety of ambivalent decisions with some brilliant dissents and acceptances which occasioned the present nine-judge bench on privacy on August 24, 2017.
American decisions flirted with privacy in a big way extracted from all kinds of cases including those related to obscene material. In the Paris Adult Theatre case (1973), Chief Justice Rehnquist dealt with the spatial concept of a "zone of privacy" which was permissible in the private domain, but (as he put it) did not extend to “the live performance of a man and woman locked in sexual embrace in high noon in Times Square (claiming) to be engaged in valid political dialogue”. This shows how privacy itself is founded on complex foundations — with each application being increasingly problematic.
Apart from common law and statutory endowments enhancing or restricting privacy, there is also the question of how privacy derives from constitutional text. Is it imbricated Article 21 (life and liberty) and Article 14 (equality) and the entire bundle of freedoms in Article 19? In India’s latest privacy decision (2017), Justice Chandrachud emphatically rejected the argument of many states that statutory protection was the answer?
