Should an Inability to Precisely Define Privacy Render It Untenable as a Right?

The article was published in the Wire on August 2, 2017.

Ludwig Wittgenstein wrote in his book, Philosophical Investigations, that things which we expect to be connected by one essential common feature, may be connected by a series of overlapping similarities, where no one feature is common. Instead of having one definition that works as a grand unification theory, concepts often draw from a common pool of characteristics. Drawing from overlapping characteristics that exist between family members, Wittgenstein uses the phrase ‘family resemblances’ to refer to such concepts.

In his book, Understanding Privacy, Daniel Solove makes a case for privacy being a family resemblance concept. Responding to the discontent in conceptualising privacy, Solove attempted to ground privacy not in a tightly defined idea, but around a web of diverse yet connected ideas. Some of the diverse human experiences that we instinctively associate with privacy are bodily privacy, relationships and family, home and private spaces, sexual identity, personal communications, ability to make decisions without intrusions and sharing of personal data. While these are widely diverse concepts, intrusions upon or interferences with these experiences are all understood as infringements of our privacy.

Other scholars too have recognised this dynamic, evolving and difficult to pinpoint nature of privacy. Robert Post described privacy as a concept “engorged with various and distinct meanings.” Helen Nissenbaum advocates a dynamic idea of privacy to be understood in terms of contextual norms.

The ongoing arguments in the Supreme Court on the existence of a constitutional right to privacy can also be viewed in the context of the idea of privacy as a family resemblance concept. In their arguments, the counsels for the petitioners have tried to make a case for privacy as a multi-dimensional fundamental right. Senior advocate Gopal Subramanium argued before the court that privacy inheres in the concept of liberty and dignity under Constitution of India, and is presupposed by various other rights such as freedom of speech, good conscience, and freedom to practice religion. He further goes on say that there are four aspects to privacy – spatial, decisional, informational and the right to develop personality. Shyam Divan, also arguing for the petitioners, further added that privacy includes the right to be left alone, freedom of thought, freedom to dissent, bodily integrity and informational self-determination.

When the chief justice brought up the need to define the extent of the right to privacy, the counsels raised concerns about the right being defined too specifically. This reluctance was borne out of the recognition that by its very nature, the right to privacy is a cluster of rights, with multiple dimensions manifesting themselves in different ways depending on the context. Both advocates, Subramaniam and Arvind Datar, argued that court must not engage in an exercise to definitively catalog all the different aspects of the right, foreclosing the future development of the law on point. This reluctance was also a result of the fact that the court has isolated the question of the existence of the right to privacy and how it may apply in the case of the Aadhaar project. Usually judges are able to ground legal principles in the relevant facts of the case while developing precedents. The referral to this bench is only on the limited question of the existence of a constitutional right to privacy. Therefore, any limits that are articulated by the court on the right exist without the benefit of a context.

On the other hand, the Attorney General (AG) argued that this very aspect of privacy was a rationale for not declaring it a fundamental right. At various points during the arguments, he indicated that the ambiguous and vague nature of the concept of privacy made it unsuitable as a fundamental right. Similarly, Tushar Mehta, arguing for Unique Identification Authority of India, also sought to deny privacy’s existence as a fundamental right as it is too subjective and vague.

The above argument assumes that the inability to precisely define privacy renders its untenable as a right. The key question is whether this lack of a common denominator makes privacy too vague a right, liable to expansive misinterpretations. Conceptions that do not have fixed and sharp boundaries, are not boundless. What it means is that the boundaries can often be fuzzy and in a state of constant evolution, but the limits and boundaries always exist.

At one point during the hearings, Justice Rohinton Nariman wanted the counsels to work on the parameters of challenge for state action with respect to privacy. As mentioned earlier, in the absence of facts to work with, such an exercise is fraught with risks. However, the judges may still be able to articulate the manner in which such limits may be arrived at, without specifying them. Justice Nariman himself later agrees that the judicial examination must proceed on a case by case basis, taking into account not only the tests under Article 14,19 and 21 under which petitioners have tried to locate privacy, but also under any other concurrent rights which may be infringed.

The AG also argued that the infringement of privacy in itself does not amount to a violation of the rights under Article 21, rather in some cases the transgressions on privacy may lead to an infringement of a person’s right to liberty and only in such cases should the fundamental rights be invoked. Thus, the argument made was that there was no need to declare privacy as a fundamental right but only to acknowledge that limiting privacy may sometimes lead to violations of the already existing rights. This argument may have been more cogent had he identified specific dimensions of privacy which, according to him, do not qualify as fundamental rights. However, this might have meant conceding that other dimensions of privacy, in fact do amount to fundamental rights.

It must be remembered that the problem of changing or multiple meanings is not limited to privacy. As the bench noted, drawing comparisons to the concepts of ‘liberty’ and ‘dignity’, these are constitutionally recognised values which equally suffer from a multitude of meanings based on context. The government’s position here is in line with critiques of privacy that Solove seeks to bust in his book. The idea of privacy evolves with time and people. And people, whether from a developed or developing polity, have an instinctive appreciation for it. The absence of a precise definition does not necessarily do great disservice to a concept, especially one that is fundamental to our freedoms.