Privacy: A Fundamental Right

Propelling India into the ranks of progressive societies that ensure privacy of their citizens, a nine-judge Supreme Court bench unanimously ruled that privacy is a fundamental right, protected as an intrinsic part of the right to life and personal liberty and as part of the freedoms guaranteed by the Constitution.

In a historic judgment, the bench headed by CJI J S Khehar--which included Justices J Chelameswar, S A Bobde, R K Agrawal, R F Nariman, A M Sapre, D Y Chandrachud, Sanjay K Kaul and S Abdul Nazeer --upturned a 63-year-old ruling of an eight-judge bench that had refused to recognise privacy as a fundamental right.The 547-page ruling set up many landmarks to outline what constitutes a dignified life and the obligation of the state to help its citizens lead one.

It emphasised the value of dissent and tolerance, besides the rights of minorities, including sexual minorities, clearing the way for the possible voiding of the SC's controversial order to reverse the decriminalisation of consensual gay sex by the Delhi high court. It also boldly delineated the limits to the state's intervention in the lives of citizens.

However, the bench was alive to the challenges thrown up by technology and recognised that a balance needs to be maintained between the right to privacy and the right of the state to impose reasonable restrictions on it for legitimate aims such as national security, prevention and investigation of crimes and distribution of welfare resources.

What stood out was privacy being declared intrinsic to right to life and that it formed part of the sacrosanct chapter on fundamental rights in the Constitution, which has been regarded since 1973 as part of the basic structure, immune from Parliament's interference. The unanimous verdict was, “Right to privacy is protected as an intrinsic part of right to life and personal liberty under Article 21 and as part of the freedoms guaranteed by Part III.“

The bench added, “Like the right to life and liberty, privacy is not absolute. The limitations which operate on the right to life and personal liberty would operate on the right to privacy. Any curtailment or deprivation of that right would have to take place under a regime of law. The procedure established by law must be fair, just and reason able. The law which provides for the curtailment of the right must also be subject to constitutional safeguards.“

With this ruling, the Constitution bench set the stage for a three-judge bench to decide the validity of Aadhaar, challenged by 21petitions led by retired HC judge K S Puttaswamy, by scrutinising whether collection of biometric data and linking it with various activities of citizens violated their right to privacy.

But equally significant were two ingrained sub-rulings --one, it said a two-judge SC bench in 2014 had wrongly curtailed the sexual preferences of the LGBT community and, two, it attempted to erase the Emergency-era judgment in the ADM Jabalpur case by overruling its logic that the government could suspend right to life in critical situations.

It was Justice Chandrachud's 265-page illustrative, analytical and incisive judgment that formed the core of the nine-judge bench's decision. Justice Chandrachud wrote the judgment for himself and for Justices Khehar, Agrawal and Nazeer. The other judges --Justices Chelameswar, Bobde, Nariman, Sapre and Kaul -agreed through separate judgments.

Referring to as many as 300 judgments from India and abroad, Justice Chandrachud demolished the Centre's argument that privacy was a common law right that was a sub-species of many rights, and hence, incapable of being termed as a standalone homogeneous fundamental right.

“Once privacy is held to be an incident of the protection of life, personal liberty and of the liberties guaranteed by the provisions of Part III of the Constitution, the submission that privacy is only a right at common law misses the wood for the trees,“ he said.

Defining the nature and character of privacy, he said, “Privacy postulates the reservation of a private space for the individual, described as the right to be let alone. The concept is founded on the autonomy of the individual.The ability of an individual to make choices lies at the core of the human personality .“ Elaborating on the concept and attempting to define the limitless footprints of privacy in an individual's activities, Justice Chandrachud said, “The body and the mind are inseparable elements of the personality. The integrity of the body and the sanctity of the mind can exist on the foundation that each individual possesses an inalienable ability and right to preserve a private space in which the human personality can develop. Without the ability to make choices, the inviolability of the personality would be in doubt. Recognising a zone of privacy is but an acknowledgement that each individual must be entitled to chart and pursue the course of development of personality . Hence, privacy is a postulate of human dignity .“ “Dignity cannot exist without privacy. Both reside within the inalienable values of life, liberty and freedom which the Constitution has recognised. Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects the individual a zone of choice and self-determination,“ the judgment said. “The ability of the individual to protect a zone of privacy enables the realisation of the full value of life and liberty. Liberty has a broader meaning of which privacy is a subset. All liberties may not be exercised in privacy. Yet others can be fulfilled only within a private space. Privacy enables the individual to retain the autonomy of the body and mind. The autonomy of the individual is the ability to make decisions on vital matters of concern to life,“ the verdict said.

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