This article has been written by Smriti Katiyar, an Associate, Editor at LawSikho. This article has been edited by Zigishu Singh (Associate, Lawsikho) and Smriti Katiyar (Associate, Lawsikho).
Table of Contents
In 1890, in a classic article that many scholars now regard as a seminal work on privacy, Samuel Warren and Louis Brandeis described privacy in terms of being let alone or being free from intrusion. “This conception of privacy, as non-intrusion, is also evident in the writings of two U.S. Supreme Court justices: Louis Brandeis in Olmstead v. the U.S. and William Brennan in Eisenstaedt v. Baird. “We should first note that some versions of the no intrusion theory tend to confuse the condition (or content) of privacy with a right to privacy.” “This confusion is especially apparent in the writings of no intrusion theorists, such as Brandeis, who defines privacy as the right to be let alone”, and Brennan, who describes privacy as the “right of the individual . . . to be free from unwarranted government Intrusion”
According to Fried, “Privacy is not simply an absence of information about us in the minds of others, rather it is the control over the information we have about ourselves.” Miller embraces a version of the control theory when he describes privacy as the individual’s ability to control the circulation of information relating to him.
We observe privacy with such notions as liberty, solitude, autonomy, and secrecy. Nissenbaum points out that although we have privacy norms (that is, explicit privacy laws and informal privacy policies) that protect personal information considered to be intimate and sensitive for example, medical records and financial records normative protection does not generally extend to personal information considered to be neither sensitive nor intimate. She also indicates that most normative accounts of privacy have a theoretical blind spot when it comes to questions about how to protect personal information in public contexts or in what she calls spheres other than the intimate. Her analysis of this problem illustrates some of the controversies associated with the practice of mining personal data from public sources. At first glance, such a practice might seem innocuous because of the public aspect of the data involved.
A definite legal definition of ‘privacy’ is not available. Some legal experts tend to define privacy as a human right enjoyed by every human being by his or her existence. It depends on no instrument or charter. Privacy can also extend to other aspects, including bodily integrity, personal autonomy, informational self-determination, protection from state surveillance, dignity, confidentiality, compelled speech, and freedom to dissent or move or think. In short, the right to privacy has to be determined on a case-by-case basis. Privacy enjoys a robust legal framework internationally.
Article 12 of the Universal Declaration of Human Rights, 1948 and Article 17 of the International Covenant on Civil and Political Rights (ICCPR), 1966, legally protect persons against arbitrary interference with one’s privacy, family, home, correspondence, honor, and reputation. India signed and ratified the ICCPR on April 10, 1979, without reservation. Article 7 and 8 of the Charter of Fundamental Rights of the European Union, 2012, recognizes the respect for private and family life, home, and communications. Article 8 mandates the protection of personal data and its collection for a specified legitimate purpose.
Privacy is not a concept like other rights. Moreover, our notions of privacy have changed and will continue to change. If there is one major catalyst for this change, it has been technology. Built homes are a simple example of how we develop a sense of privacy which is influenced by technological development. Once we have a conception of home, we also have conceptions of a bedroom, living room, toilet, and kitchen. These spaces and conceptions created by very simple processes of technology create specific ideas of privacy. Two common ways of understanding privacy are secrecy and anonymity. We believe that our bank balance must be private. Companies do not normally make public the salaries of all their employees. Universities do not make public the marks or grades of their students in a way that violates the privacy of the student.
These notions of privacy are based on the need for security and protection. We do not want to divulge certain things about our wealth or life practices since they may be used by others to potentially harm us. So privacy becomes a way of protecting individuals or groups. But we also often overthrow privacy arguments for security purposes. We do not object to giving our biometrics when we apply for visas or when we join some private jobs.
Contemporary technology has made possible many innovations that have changed the very meaning and significance of privacy. From smartphones to the darknet, the fundamental trajectory is one to do with privacy. However, there are two worrisome aspects. In any discussion on privacy, there is a deep suspicion of the government and state, most times rightly so. But this suspicion does not extend to technology and its private agents, those that are responsible for the breakdown of the value of privacy today.
Today, in times of growing privatization, the greatest challenge to privacy comes from the private sector. It also stems from indifference to our privacy. We do not seem to value privacy today as in earlier times. Social experiments have shown that people are willing to have private information about them made public if they receive some monetary advantages
We do this all the time.” When we search for a book or a ticket, we start getting advertisements related to these searches in our supposedly private emails. What we read, search, buy, talk and perhaps even think, gets stored, used, and circulated. Everything is tracked and rerouted. We have no clue about the amount of information about our private lives that is out on the Web. All because we get free emails and free Internet access! Today, privacy has been deeply compromised through the offering of ‘free’ goods.
The state and private players
Very often when we worry about questions of privacy, it is about the role of the government or the state. The state too can do much with the information on individuals that it collects through various voluntary as well as coercive means. The concern about privacy thus was a concern about the potential misuse of such information. However, information about individuals is arguably much more in the private domain today than it is within various governments. Moreover, the mining of this information is taken up far more assiduously by the private compared to government institutions.
“The idea of privacy has always had a troubled relationship with privatisation. Private companies often have rules that protect them from being transparent in hiring policies, in affirmative action or even making public the salaries of all their employees. Private groups know best the power of the idea of privacy. They use this notion to protect themselves from governments and the public. They also realise that the greatest market that is perennially available to them is the market of trading information on privacy.”
A related problem is that the government has begun to look more and more like the private sector. Today, almost all politicians are rich entrepreneurs and hold powerful business interests. The public-private binary does not function in any useful sense as far as the governing class is concerned. Thus, privacy is not only open to manipulation by the government but even more so by the private sector. This is so especially because it is the private sector that is at the forefront of developing technologies that facilitate this mining, storing, and sharing of information.
The Trojan horse through which the state and private players enter our domains of privacy is through contemporary technologies. These technologies have now come to be seen as necessary. The fact that we so unthinkingly buy into this story shows the success of how these technologies have colonised us so effectively. The price we pay for modern technologies is not only money. The economic model that runs consumerism of modern technologies is quite different from the model of selling groceries. We are seduced by the number of free things we get in a technological gadget. The websites are free; we can download millions of books and songs for which we had to pay earlier. Why are we being given so much that is free? Like almost everything else in this world, there are always hidden costs. The major cost that we pay is the cost of our privacy — the information on each one of our private lives and, through this information, more effective control on how we act and behave.
This raises deeply troubling questions about making privacy a fundamental right. How will the Supreme Court judges be able to give a judgment on privacy as a fundamental right without also making possession, and the making, of technology as ‘rights’? How can they do this without imposing controls on predator technologies that enter the social world in the guise of making our lives comfortable? Some might argue that technology is only an intermediary tool that enables certain things, both good and bad.
But to hold this view is to be blind to the changing modes of technological domination through digital and Internet technologies. Technology is no longer outside human and social processes; it co-creates and co-constitutes the human and the social.
A historical and legislative insight into the concept of privacy
The expression “privacy” is utilised regularly in the common language just as in philosophical, political, and lawful conversations and legal discussion, yet there is no single definition or investigation or importance of the term in a broader picture. The idea of privacy and protection of privacy has wide recorded roots in sociological and anthropological conversations about how broadly it is esteemed and saved and preserved in different societies. Additionally, the idea has chronicled origin in notable philosophical conversations, most outstandingly Aristotle’s differentiation between the open circle of political movement and the private circle related to family and household life. However authentic utilization of the term isn’t uniform, and there remains disarray over the significance, worth, and extent of the idea and the concept of privacy.
At present, privacy is a general idea, incorporating (in addition to other things) opportunity of thought, authority over one’s body, isolation in one’s home, command over data about oneself, opportunity from observation, assurance of one’s notoriety, and insurance from searches and cross-examinations. Consistently savants, legal theorists, and law specialists and jurists have regretted the extraordinary trouble in arriving at a fantastic origination of protection. Arthur Miller has announced that security is “difficult to define because it is exasperatingly vague and evanescent.”
“Privacy is the ability of an individual or group to seclude themselves, or information about themselves, and thereby express themselves selectively. The boundaries and content of what is considered private differ among cultures and individuals but share common themes. When something is private to a person, it usually means that something is inherently special or sensitive to them. The domain of privacy partially overlaps security (confidentiality), which can include the concepts of appropriate use, as well as protection of information. Privacy may also take the form of bodily integrity.”
The right not to be exposed to unsanctioned intrusion of privacy by the administration, that is to say the government enterprises or people, is a piece of numerous nations ‘privacy laws, and now and again, constitutions. Practically all nations have laws which limit security here and there. A case of this would be law concerning tax assessment, which ordinarily requires the sharing of data about close to home pay or profit. In certain nations individual privacy may struggle with the right to speak freely of certain laws and a few laws may require open divulgence and full public disclosure of data which would be viewed as private in different nations and societies.
Privacy could also be voluntarily sacrificed, normally in exchange for perceived benefits and often with specific dangers and losses, although this is often a strategic view of human relationships. For example, people could also be able to reveal their name if that permits them to market trust by others and thus build meaningful social relations. Research shows that folks are more willing to voluntarily sacrifice privacy if the info. gatherer is seen to be transparent on what information is gathered and the way it’s used. In the business world, an individual may volunteer personal details (often for advertising purposes) to gamble on winning a prize. A person can also disclose personal information as a part of being an executive for a publicly-traded company within the USA pursuant to federal law. Personal information which is voluntarily shared but subsequently stolen or misused can cause fraud.
Understanding the concept of universal individual privacy
The concept of universal individual privacy is a modern construct primarily associated with Western culture, British and North American in particular, and remained virtually unknown in some cultures until recent times. According to some researchers, this concept sets Anglo-American culture apart even from Western European cultures such as French or Italian. Most cultures, however, recognize the ability of individuals to withhold certain parts of their personal information from wider society—closing the door to one’s home, for example.
The distinction or overlap between secrecy and privacy is ontologically subtle, which is why the word “privacy” is an example of an untranslatable lexeme, and many languages do not have a specific word for “privacy”. The distinction hinges on the discreteness of interests of parties (persons or groups), which can have emic variation depending on cultural mores of individualism, collectivism, and the negotiation between individual and group rights. The difference is sometimes expressed humorously as “when I withhold information, it is privacy; when you withhold information, it is secrecy.”
A broad multicultural literary tradition going to the beginnings of recorded history discusses the concept of privacy. One way of categorizing all concepts of privacy is by considering all discussions as one of these concepts:
1. The right to be let alone.
2. The option to limit the access others have to one’s personal information.
3. Secrecy, or the option to conceal any information from others.
4. Control over others’ use of information about oneself.
5. States of privacy.
6. Personhood and autonomy.
7. self-identity and personal growth.
8. protection of intimate relationships.
The need for privacy as a fundamental right
Exercise the limit on power
“Privacy is a limit on government power, as well as the power of private sector companies. The more a person knows about us, the more power he or she can have over us. Vital decisions in our lives are made using personal data. It can be used to influence our position in society; and it can be used to impact our decisions and mould our behaviour. It can be used as a tool to exercise control over us. And in the hands of a malicious mind, personal data can cause great harm to us.”
Respect for individuals beings
“Privacy is about respecting individuals. If someone has a valid reason to keep something private, it is offensive to not pay attention to that person’s wishes without an appropriate reason to do so. Of course, the aspiration for privacy can cause clashes with essential values, so privacy may not always win out in the balance. Sometimes people’s desires for privacy are rendered unimportant because of the view that the harm in doing so is minor. Even if this doesn’t cause severe injury, it shows a lack of respect for that person. In a sense, it is saying: “I care about my interests, but I don’t care about yours.”
Reputation management and protection
“Privacy enables people to manage their self-esteem. Our relations, chances are given to us and overall well-being is affected by how others judge us. Shielding reputation depends on protecting against not only inaccuracy but also certain truths or knowing personal details about others. People judge badly, they judge in haste, they judge out of context, they judge without listening to the full story and they judge with hypocrisy. Privacy can lend a hand to people from getting into such exasperating and troublesome judgments.”
Maintaining and creating appropriate social boundaries
“People tend to make boundaries from others in society, which are both physical and informational. We need places of solitude to retreat to, places where we are free of other’s gaze to get our peace. To make ourselves at ease. We make informational boundaries for the varied relationships we have. Privacy helps in the management of these boundaries. Negligence towards these boundaries can lead to awkward social situations and damage our relationships. Privacy reduces social friction. People don’t want others to know everything about them or want to know everything about others; hence phrases “none of your business” and “too much information” came into being.”
“In relationships, be it personal, professional, governmental, or commercial, we all depend on mutual trust. Breaches of confidentiality are breaches of trust. In professional relationships, this trust is key to maintaining candour in the relationship. We trust other people we interact with as well as do business in the same way. If the trust is broken in one relationship it acts as a hindrance for us to trust in another relationship.”
Control over one’s life
Personal data affects nearly everything we can think of. It is essential to so many decisions made about us like, “Will our loan be sanctioned or not?” or “Will we get our dream job?. It determines whether we have been involved in illegal activities, been searched at the airport, or been enquired by the government. Without knowing how our data is being used, we cannot correct it or to object when this data usage causes us harm, and in turn, makes us helpless. We cannot have autonomy and control over our own lives if so many decisions about us are being taken without our participation and awareness.
Freedom of thought, speech, and expression
“The key to freedom of thought is privacy. A watchful eye over everything that one reads or watches can push us from discovering ideas outside the mainstream. It is also the key to protect from speaking unpopular messages. And privacy doesn’t just provide a shield from fringe activities. We may want to censure people we know to others yet not share that criticism with everyone. A person might want to discover ideas that their family or friends or colleagues don’t like.”
Freedom of social and political activities
“Privacy provides a shield to our ability to relate with others and engage in politics. A major component of freedom of political association is the capacity to do so with privacy if one selects. We protect privacy at the ballot because of the concern that failing to do so would chill people’s voting their true conscience. Privacy of the associations and activities that lead up to going to the voting booth is important due to the fact that is how we form and discuss our political beliefs. The watchful eye can disrupt and unduly affect these activities.”
Ability to change and have second chances
“Many of us are not static; we change and develop throughout our lives. Great value lies in the ability to have another chance, to be able to move further on a mistake, to be able to reinvent oneself. This ability is nurtured by privacy. It permits us to grow and mature without being shackled with all the mindless things we might have done before. Certainly, not all misdeeds should be protected, but some should be because we want to cheer up and facilitate growth and improvement.”
Not having to explain or justify oneself
“One of the major reasons why privacy matters is not having to explain or justify oneself. One may do a lot of things and activities if judged from afar by others having zero knowledge or understanding, which may seem odd or embarrassing or worse. It can be a heavy burden if we continuously have to imagine how everything we do will be understood by others and have to be ready to explain.”
Privacy as a Trade-off
It is often misconstrued that the only martyr of national surveillance is personal privacy. This is largely true, however, the impacts of personal privacy (or the lack of it) on consumer behaviour remains to be largely undocumented. A hit to privacy may have widespread economic consequences to the government as well as for-profit organisations. This phenomenon manifested itself on 6 October 2015 at the European Court of Justice.
The Safe Harbour Privacy Principles were intended to prevent private companies in the European Union or the United States from accidentally leaking private customer data stored in their systems. In a verdict in July 2000, the European Commission(EC) decided that US companies which adhere to seven principles and register that they meet the “safe harbour scheme” (a series of self-certifications), were allowed to move customer data from the EU to the US. This is referred to as the Safe Harbour decision.
This decision was quashed by the European Court of Justice, stating “legislation permitting the public authorities to have access on a generalised basis to the content of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life”
The decision, though made in the aftermath of revelations by former CIA employee and contractor Edward Snowden, has a much larger impact on businesses not just in the US but across the world. Organisations are now keen to understand the impact of the latest privacy protection laws in states and what they can do to actively comply as well as go farther to boost consumer confidence without compromising the revenues. In this case, the loss of trust of the European consumer in US companies has the potential to hurt their bottom-line in the long haul. It is now imperative for businesses to assess privacy protection, benefits from data sharing, pecuniary interests, and national security as four important pillars of consumer satisfaction and balance them in the best way possible.
Individuals sub-consciously evaluate the trade-offs between the public and private status of their data. Companies, the legal system as well as the government need to quantify the economic worth that people assign to the security of personal data. It is imperative to organizations because depending on customers’ value assigned to privacy, managers can evaluate positive or adverse reactions at each step.
Ever-increasing global concerns over privacy have now given businesses a compelling reason to include it in their broader business strategies. Even so, organisations are fully aware that not using consumer data for targeted marketing campaigns can put them at a severe competitive disadvantage. Often the privacy guidelines recommended by the state are cost-intensive and businesses resort to providing the bare minimum levels of privacy protection guided by the competition. For instance, for European firms, these are mainly based on taking customers’ consent as mandated by the General Data Protection Regulation (GDPR). Such lackadaisical approach of businesses is a result of a widespread assumption that however strong the consumers’ concerns over piracy, their purchasing behaviour seldom reflects these concerns.
However, a survey conducted by CISCO in 2019 has indicated that such a strategy may be myopic at best. This survey, with 2601 respondents revealed that about a third of consumers concerned about privacy are either willing to or already have changed brand loyalties as a result of the privacy protection policies of the respective firms. This group is called privacy activists and the remaining is called privacy non-actives.
The single biggest takeaway from the CISCO survey is how the privacy activists and privacy non-actives react to opportunities of trade-offs between benefits of data sharing and privacy of personal data. To the surprise of many, privacy activists were more likely to share data in lieu of benefits. More than 3/5th were comfortable with providing their buying records for customized services, compared to only 30% of non-actives. Several other trade-offs later it was established that privacy actives were roughly twice as likely to be comfortable to trade-offs as compared to non-actives. Although counterintuitive, it is clear from the study that the more privacy-conscious or informed the consumers are, the more likely they are to understand the benefits of sharing data. This conclusion also finds resonance in Alessandro Acquisti’s paper “Privacy in Electronic Commerce and the Economics of Immediate Gratification, 2004” where he explains further using mathematical modeling and using the concept of marginal utility.
Businesses and policymakers can use this understanding to balance the privacy standards and the benefits accrued from sharing of data. For businesses, the starting point can be reaching out to their customers and finding out their opinion on the sufficiency or insufficiency of privacy measures taken by the firm. Overtures like these can help start discussions regarding fair rewards for the use of their data.
Rather than clamping down on firms by using austere rules on piracy, policymakers can address the issue of information asymmetry and bounded rationality faced by the consumers when faced with privacy challenges. According to the survey, most consumers complain that they do not know what the company is doing with their data. For instance, only 11% of users understand the purpose or meaning of cookies and the benefits or consequences of opting out or opting in, only less than half understood that cookies give away the geographic location of the computer. The role of the policymaker is to educate the consumers on privacy challenges, understanding disclosures, and trade-offs, so that they can make more informed decisions based on their privacy expectations.
On a broader level, the state needs to find a justified valuation of individual privacy when trade-offs are made for benefits. The first attempt towards this goal was made by the 104th United States Congress in the form of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) signed by President Bill Clinton. Enacted with the motive of protecting personally identifiable information from theft and fraud, the Act essentially traded off privacy protections for increased administrative costs. Now, in order to understand the worth of this trade-off to the patients, it is essential to quantify their individual privacy valuations. Multiple researchers have forayed into answering this puzzle in diverse contexts. We will discuss some of them here. A study by researchers at Humboldt University Berlin reveals a disjunction between the privacy preferences as stated by the consumers and their actual behaviour in market conditions. It appears to support our inference from the CISCO survey that even the most privacy-conscious individuals are likely to trade off private information for their choice of benefits.
The study employs standard multivariate clustering techniques (k-means), to categorise subjects into four groups with different privacy-attitudes: Privacy fundamentalists (highly privacy conscious subjects), marginally concerned users, pragmatic users (further subdivided into identity concerned and profile concerned). The identity concerns being talked about here are name, address, or/and e-mail, while profile concerns are interests, hobbies, health, and related personal data.
The results of the study are useful to understand the privacy discourse as it has proceeded in the IT age. It is one of the first of its kind to provide empirical evidence of consumers’ actions regarding sensitive data. It renders a major assumption hitherto taken as a fact baseless: that privacy attitudes are directly proportional to privacy behaviours. It is in fact, quite the opposite. It calls for a change in the formation of privacy regulations: the design needs to protect individuals from different degrees of self-exposure.
When seen from the economic viewpoint, the focus of privacy research concluded so far focuses on privacy as simply protection of personal information. Such protection or concealment is assumed to be intentional and rational. In a free market, however, the individuals can decide to share an optimal amount of personal information, varying with each individual. The cost of private information is subjective for each individual. When the monetary costs of information leak or sharing are quantifiable it still leads to some uncertainty in the risk (or lack of risk) of such a cost. Precise calculation of privacy valuations can also be attempted using concepts from behavioural economics and decision sciences. It is also important to consider the irrational factors that affect the decision making. In the end the consumers face two broad categories of choices when it comes to privacy challenges: benefits in lieu of personal information or cost in lieu of protecting their personal information.
Studies have focussed on the willingness to accept (WTA) versus willingness to pay (WTP)
WTA is the minimum price a consumer would accept to share personal information while WTP is the highest price a consumer would spend to buy information. WTA tends to be higher, best explained by the risk aversion of consumers. From the consideration of privacy, this difference between WTA and WTP can predict how willing a person would be to share personal information if he has until now not had his personal information shared anywhere and has now been asked to pay to continue to secure his privacy. On the other hand, would someone who is willing to share information for monetary benefits reconsider his decision if this results in loss of privacy. However, the mathematical models have not been able to quantify how much consumers would be willing to spend to protect the data and/or the value they would be willing to accept to share the same. If there is a difference in the two values then it would not be possible to accurately establish the value assigned to the protection and/or sell personal information.
We discussed the economic aspects, now let us understand state affairs. In the lines of Lord Acton, “Power corrupts and absolute power corrupts absolutely”, with the following view this paper deals with the intricacies of the country and country’s need to hold on to the idea of constitutionalism through limited government. The concept is then discussed about the role which the judiciary plays in protecting the rights of the citizens of the country. The paper focuses on the fundamental right of privacy under “Article 21” of the Constitution.
The question arises that what exactly is a limited government and what is the provision which deals in the privacy issues and if at all, then how can judiciary help in bridging the current situation and for harmonisation between both; the government and the citizens of the country, so that neither the fundamental right under the Constitution relating to privacy is curbed while also taking appropriate but not extravagant measures to keep a check on the security of the nation nor the unsolicited surveillance that happens at every digital footprint an individual leaves.
Genesis of the Constitution
To understand the concept of the aforementioned terms such as “constitutionalism”, “limited government”, “right to privacy”, we must first understand what is the constitution, from where it all started, and the genesis of the concepts like government, rights, etc. How the rule of law plays an important role in upholding constitutionalism and what are the case laws which helped in developing the right to privacy as we know today.
Constitution and its definition
In simple terms, “The organic and fundamental law of a nation or state, which may be written or unwritten, establishing the character and conception of its government, laying the basic principles to which its internal life is to be conformed, organizing the government, and regulating, distributing, and limiting the functions of its different departments, and prescribing the extent and manner of the exercise of sovereign powers. In a more general sense, any fundamental or important law or edict”
It can be understood from the mentioned text that the constitution is the law of the land and the supreme power vests with the constitution and the division of power amongst the three organs of the state will be based on the provisions mentioned in it or according to the constitutional conventions. Ideally, there should be a separation of power on both personnel as well as the functional level to prevent any kind of arbitrariness from any of the three organs.
“The legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”
To maintain this, there should always be a system of checks and balances where each organ can stop the other from encroaching the jurisdiction of one another and formulation and execution of law is on the basis of the concept of “rule of law”, which is nothing but the principles against arbitrary nature of the superior authority. Rule of law is nothing but, “Doctrine of Political Morality” and states that balance between rights and power and between the individuals and the state should always be maintained. But, seldom has it happened that while making the legislation or while implementing them, the legislature and the executive body go out of their scope of power and formulate such laws which are arbitrary in nature and which violates curbs or abrogates the basic fundamental rights of the citizens.
Importance of the rule of law in maintaining constitutionalism
Whenever the discussion about the scope of the government to make such laws takes place, it is inevitable for the discussion to shift to the scope, application and position of rule of law in that particular country. The concept of rule of law is the basic feature of constitutionalism. It is a dynamic concept. It is also a central feature of the constitution system and basic feature of the constitution. The entire concept is based on, “Principle of law and not of men”. Over the years the supreme court of India has developed some principles of rule of law and thereby developing constitutionalism. The best example of the same is given in the case of “Veena Seth v. State of Bihar, in which the Supreme Court extended the rule of law to the poor and downtrodden” , the illiterate masses of the nation and further went on to describe that how in India no action can be taken except under the authority of law and duty has been cast upon the judges to enforce the rule of law, because even though India as a country has active rule of law in the letter as well as the spirit and it is expected that constitutionalism is natural corollary to governance in India, but, in experience last 60 years process of governance is a mixed one. Even after having an excellent administrative structure for maximum welfare, the excessive bureaucratisation eventually leads to the alienation of the rulers from the ruled. It is important that the laws made must be in concurrence with the law of the land and should give equal protection of law and maintain equality before law. The downtrodden and poor people make bulk of humanity in India and the rule of law does not merely exist for people in power or who are well off and have means to fight for their rights but also for people who do not have the means, without being under the influence of the government or with excessive interference from the government.
“Limited Government” : origin and scope
Whenever the power of the government to intervene in the lives and activities of the people is limited by the constitutional law, that kind of government is said to be a “limited government”. Limited government refers to any government in which its powers over the people are limited by the constitution of that country whether written or unwritten or overriding rule of law.
The basic concept is to stop “absolutism” and concentration of power which are bestowed in the hands of a single person, such as monarchs or dictators or similar sovereign. “Magna Carta” was the first ever charter which was legally binding and was formed to limit the powers of the rulers and introduced the concept of limited government for the first time. The limited government is almost exactly opposite of the doctrine of absolutism. The ideology behind both of them is completely different. It is against the Divine Right of Kings, which grants unlimited sovereignty to a single person over the people.
The history of limited government dates back to 1215, when Magna Carta was first introduced in the western civilization. It was not a conclusive and well defined charter and although it did limit powers of the king, it was only a small section of English people which could benefit from it but because of this development, it granted the king’s barons certain rights which were limited in nature but could be applied in opposition to the king’s policies. After the charter of Magna Carta, other such revolutions broke resulting in other similar documents which then lead to the strengthening of the concept of the limited government. One such example is “The English Bill of Rights”, arising from the “Glorious Revolution” of 1688, which further limited the powers of royal sovereignty. The U.S. Constitution, In contrast to the Magna Carta and English Bill of Rights, establishes a central government, which is then limited by the constitution itself along with its amendments; the government is limited by the document itself by the system of three branches of government which put limits over each.
Other’s powers and the process is called the system of checks and balances. This entire process is called the “Separation of power.” One of the greatest accomplishments of humanity is the limited government ,however just a part of mankind is getting a chance to enjoy it and that too they are enjoying it imperfectly; and wherever it is enjoyed; its tenure is ever hazardously prone to fall or crumple or is unstable. The experience of the past century has made clear the insecurity of constitutional government and the need for courage in achieving it and vigilance in maintaining it.
The people advocating the phenomenon of limited government are not anti-government as some people claim them to be. Rather they are only belligerent to concentrations of coercive power and to the arbitrary use of power against right. With a deep appreciation for the lessons of history and the dangers of unconstrained government, they advocate for constitutionally limited government, with the delegated authority and means to protect the rights, but not so powerful as to destroy or negate them.
The Indian legal system was established to provide limited government. The intention of the constitution framers was that the independent existence of India was based on certain truths for example that “All Men are made equal”, that they are bestowed by their Creator with certain unalienable Rights, that among these are “Life, Liberty, and the Pursuit of Happiness” is there and that to secure these rights, governments are established among men, getting their equitable powers from the consent of the governed, that at whatever point any form of government ends up ruinous of these ends, it is the right of the people to modify or to abrogate it, and to initiate new Government, establishing its framework on such principles, and sorting out its powers in such form, as to them will appear to be well on the way to impact their safety and happiness.
Masterminds of a welfare society didn’t cull those certainties out of anywhere, nor did they just design the standards of the Indian Government. They drew on their insight into a large number of long stretches of mankind’s history, during which numerous people groups battled for freedom and limited government. There were both defeats and victories along the way.
“Through the study of history, the founders learned about the division of power among judicial, legislative, and executive branches; about federalism; about checks and balances among divided powers; about redress and representation; and about the right of resistance, made effective by the legal right to bear arms, an ancient right of free persons. Liberty and limited government were not invented in 1947 they were reaffirmed and strengthened.” It is important to understand these concepts to determine, exactly how much of encroachment on a right can take place, the legality of it, whether the state has unfettered power or not and whether the acts of the government in terms of violating the privacy of individuals is a black spot on the system of checks and balances and what role can judiciary play, if ant, to work as an effective deterrent towards the unsolicited usage of power. For further understanding, it is important to understand the legal framework of the state and how the judiciary, over time, has triumphed out as the ultimate advocate of peoples rights and privacy.
- Kennneth einar himma and herman t tavani , The Handbook of Information and Computer Ethics , (john wiley and sons, inc )
- Privacy, Stanford Encyclopaedia of Philosophy, http://plato.stanford.edu/entries/privacy. (visited on Feb 20, 2018).
- Daniel J. Solove, Conceptualizing Privacy, California Law Review, Vol. 90, No. 4 (2002), Available at: http://www.jstor.org/stable/3481326?origin=JSTOR-pdf. (visited on Feb 20, 2018).
- Alessandro Acquisti, Privacy in Electronic Commerce and the Economics of Immediate Gratification H. John Heinz III School of Public Policy and Management, Carnegie Mellon University, [email protected]
- letter lord Acton wrote to scholar and ecclesiastic Mandell Creighton, dated April 1887.
- John M. Gest, “THE WRITINGS OF SIR EDWARD COKE”, 18 Yale L.J. 523, 504-532 (1909).
- King Louis XIV (1643–1715) of France furnished the most familiar assertion of absolutism when he said, “L’état, c’est moi
- Act signed into law in 1689 by William III and Mary II, who became co-rulers in England after the overthrow of King James II. The bill outlined specific constitutional and civil rights and ultimately gave Parliament power over the monarchy.
- Glorious Revolution (1688-1689) established the supremacy of parliament over the British monarch. It involved the overthrow of the Catholic king James II, who was replaced by his Protestant daughter Mary
- Thomas Jefferson , 1776 , beginning of the American Revolution coined the phrase in the original draft of declaration of independence
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