Decoding the Distinction Between Common Law and Fundamental Privacy Rights in India’s Constitutional Framework

Nature and Scope: Two Rights, Different
Realms

Common Law Privacy Rights: The
Horizontal Dimension

Common law privacy rights in India
operate primarily in the horizontal sphere, governing relationships between
private individuals and entities. These rights, rooted in tort law principles
inherited from English jurisprudence, provide protection against privacy
violations by non-state actors. The foundational case of R. Rajagopal v. State of Tamil Nadu established the tortious aspect
of privacy rights, recognizing that individuals have a right to be “let
alone” and can seek damages for violations of their privacy by private
parties.

The horizontal application of common
law privacy rights means they can be enforced against fellow citizens, private
corporations, media organizations, and other non-governmental entities. These
rights are enforceable through ordinary civil courts, where plaintiffs must
file regular civil suits seeking remedies such as damages, injunctions, or
declaratory relief.

Fundamental Privacy Rights: The
Vertical Paradigm

Fundamental privacy rights, enshrined
within Article 21 of the Constitution, traditionally operate vertically against
the State and its instrumentalities. The Supreme Court in Puttaswamy unanimously held that privacy is “an intrinsic part
of the right to life and personal liberty under Article 21 and as a part of the
freedoms guaranteed by Part III of the Constitution”. This constitutional
recognition creates binding obligations on all state actors to respect and
protect individual privacy.

The vertical application ensures that
government agencies, public corporations, regulatory bodies, and other state
instrumentalities cannot violate an individual’s privacy without following due
process and meeting constitutional standards of necessity, proportionality, and
reasonableness.

Enforcement Mechanisms: The Forum
Divide

Civil Courts vs Constitutional Courts

The enforcement mechanisms for these
dual privacy rights create distinct procedural pathways that significantly
impact access to justice.

Common
Law Privacy Rights are
enforced through regular civil courts using standard civil procedure.
Individuals must file civil suits under the Code of Civil Procedure, proving
breach of privacy and seeking appropriate remedies. These proceedings follow
ordinary civil law timelines and procedures, often taking years to resolve.

Fundamental
Privacy Rights are
enforceable through constitutional courts via writ jurisdiction under Articles
32 and 226. The Supreme Court can issue writs under Article 32 for fundamental
rights violations, while High Courts possess broader writ jurisdiction under
Article 226 to address both fundamental rights and legal rights violations.
This constitutional remedy provides faster, more direct access to justice for
privacy violations by state actors.

The Writ Jurisdiction Framework

Article 32, described as the
“heart and soul” of the Constitution, empowers the Supreme Court to
issue five types of writs: habeas corpus,
mandamus, prohibition, certiorari,
and quo-warranto for enforcing
fundamental rights. This jurisdiction is mandatory—the Supreme Court cannot
refuse to hear cases involving fundamental rights violations.

Article 226 grants High Courts even
broader powers, enabling them to issue writs not only for fundamental rights
enforcement but also for “any other purpose,” making their
jurisdiction wider than the Supreme Court’s under Article 32. However, unlike
Article 32, Article 226 confers discretionary power on High Courts.

The Horizontal Revolution: Kaushal
Kishor’s Paradigm Shift

The 2023 Kaushal Kishor judgment represents a seismic shift in Indian
constitutional jurisprudence by establishing that fundamental rights under
Articles 19 and 21 can be enforced horizontally against private actors. This
decision fundamentally blurs the traditional distinction between common law and
fundamental privacy rights.

Expanding the Enforcement Paradigm

Justice Ramasubramanian, writing for
the majority in Kaushal Kishor, held
that fundamental rights can be enforced against non-state entities, effectively
creating a horizontal application of constitutional rights. This development
means that privacy violations by private entities can now potentially be
addressed through both civil courts (as common law rights) and constitutional
courts (as fundamental rights).

The judgment recognized that in today’s
digital age, private entities—particularly technology companies and social
media platforms—wield enormous power over personal data and privacy,
necessitating constitutional-level protection. This horizontal application
mandates private digital platforms to respect and uphold users’ privacy rights,
similar to obligations traditionally imposed only on state actors.

Practical Implications: The Dual Remedy
System

Complementary Rather Than Competing
Rights

The dual nature of privacy rights
creates a comprehensive protection framework rather than competing
jurisdictions. Individuals facing privacy violations can potentially pursue
remedies through both pathways, depending on the nature of the violation and the
violator’s status.

Against
State Actors:
Individuals can file writ petitions under Articles 32 or 226, invoking
fundamental privacy rights for faster constitutional remedies.

Against
Private Actors:
Following Kaushal Kishor, individuals
may choose between:

·      
Filing
civil suits in ordinary courts claiming common law privacy rights

·      
Filing
writ petitions claiming horizontal application of fundamental privacy rights

The Digital Age Context

The convergence of Puttaswamy and Kaushal Kishor
has particular relevance for digital privacy protection. As one legal analysis
notes: “The application of horizontal rights in this context mandates the
private digital platforms to respect and uphold the privacy rights of users,
similar to the obligations traditionally imposed on state actors”.

This evolution addresses the reality
that in the digital economy, private entities often pose greater threats to
privacy than state actors. Technology companies collecting vast amounts of
personal data must now potentially comply with constitutional privacy
standards, not merely statutory or contractual obligations.

The Dissenting Perspective: Preserving
Constitutional Architecture

Justice Nagarathna’s partly dissenting
opinion in Kaushal Kishor raises
important concerns about maintaining the constitutional framework’s integrity.
She argued that recognizing horizontal fundamental rights “would set at
naught and render redundant, all the tests and doctrines forged by this Court
to identify ‘State’ for the purpose of entertaining claims of fundamental
rights violations”.

Her dissent emphasizes that the
Constitution’s architecture deliberately distinguishes between:

·      
State obligations under fundamental rights (Article 12
definition)

·      
Common law obligations between private parties

This perspective suggests that
expanding fundamental rights horizontally may undermine decades of
jurisprudence defining the state’s role in constitutional governance.

Contemporary Challenges and Future
Directions

Definitional Complexities

The dual nature of privacy rights
creates practical challenges in determining which forum and which type of right
applies in specific cases. Courts must now navigate questions such as:

·      
When does
a private entity’s data processing violate fundamental versus common law
privacy rights?

·      
Can the
same conduct be challenged under both frameworks simultaneously?

·      
How do
remedies differ between constitutional and civil court proceedings?

Legislative Intervention Needs

Justice Kaul’s observation in Puttaswamy that horizontal application
of privacy rights “may require legislative intervention by the State”
remains relevant. The absence of comprehensive privacy legislation creates gaps
that judicial decisions alone cannot fill.

The proposed Digital Personal Data
Protection Act and similar legislative initiatives must now account for this
dual framework, ensuring coherence between statutory protections and
constitutional rights.

Conclusion: Navigating the New Privacy
Landscape

The distinction between common law and
fundamental privacy rights in India reflects the evolution of constitutional
jurisprudence responding to contemporary challenges. While traditionally these
rights operated in separate spheres—common law rights horizontally between
private parties and fundamental rights vertically against the state—the Kaushal Kishor judgment has created
unprecedented convergence.

This development offers enhanced
protection for privacy rights but also creates complexities requiring careful
judicial navigation. The dual framework ensures comprehensive privacy
protection while maintaining constitutional architecture, though implementation
challenges remain.

For legal practitioners, this evolution
demands understanding both civil and constitutional procedures, as privacy
violations may now be addressed through multiple legal avenues. For
individuals, it provides broader protection against privacy violations whether
by state or private actors.

The ongoing development of this dual
framework will likely shape India’s privacy jurisprudence for decades, as
courts balance constitutional principles with practical protection needs in an
increasingly digital society. The challenge ahead lies in harmonizing these
dual rights while preserving the constitutional framework’s coherence and
effectiveness.