The Great Divide: Decoding the Distinction Between Common Law and Fundamental Privacy Rights in India's Constitutional Framework

The Conceptual Dichotomy: Understanding the Fundamental Distinction

The right to privacy in India exists in a fascinating dual form—simultaneously operating as both a common law right and a fundamental right. This distinction, articulated most clearly in the landmark K.S. Puttaswamy case and later refined in Kaushal Kishor, represents one of the most significant conceptual developments in Indian constitutional jurisprudence.

Justice Bobde's seminal observation in Puttaswamy provides the foundational framework for understanding this dichotomy: "The only material distinctions between [common law rights and fundamental rights] lie in the incidence of the duty to respect the right and in the forum in which a failure to do so can be redressed". This distinction fundamentally reshapes how privacy rights are conceptualized and enforced in the Indian legal system.

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.

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