New Delhi, August 24: In a landmark judgment, the Supreme Court's nine-judge bench has declared privacy a fundamental right in a unanimous verdict. The “limited” point of privacy had been referred to the bench by a five-judge constitution bench on July 18.
The apex court's judgement will have a direct bearing on the case arguing the constitutional validity of Aadhaar. It is unclear when the smaller bench will resume hearing matters pertaining to Aadhaar. This judgment overrules the earlier judgment of the Supreme Court in two cases – Kharak Singh and MP Sharma – that there was no right to privacy. Today's judgment asserts that right to privacy is protected under Article 21 and Part III of the Constitution.
Here is a quick snapshot of what the judges wrote in their judgment::
Justice DY Chandrachud wrote for self and for Chief Justice of India JS Khehar and Justices RK Agarwal, S Abdul Nazeer
Much like the legal counsels who argued for the petitioners, the aforementioned judges agreed that privacy was an intrinsic aspect of human life and liberty.
“Privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution. Elements of privacy also arise in varying contexts from the other facets of freedom and dignity recognised and guaranteed by the fundamental rights contained in Part III.”
Justice Chandrachud also addressed Indian Penal Code Section 377 and held that it was violative of right to privacy as privacy also meant the “right to be left alone”. “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation,” he wrote.
While privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life, it is not an “absolute right” and it is subject to reasonable restrictions. But these restrictions that will invariably violate the right to privacy will have to “justified on the basis of a laws” which are “fair, just and reasonable”, the judges concurred.
Justice Chandrachud held that right to privacy also extended to data protection in times of technological growth. They wrote, “Informational privacy is a facet of the right to privacy. The dangers to privacy in an age of information can originate not only from the state but from non-state actors as well.” The judges, therefore, recommended that the Union Government “examine and put into place a robust regime for data protection”.
Justice J Chelameswar
I do not think that anybody in this country would like to have the officers of the State intruding into their homes or private property at will or soldiers quartered in their houses without their consent, he wrote, adding, I do not think that anybody would like to be told by the State as to what they should eat or how they should dress or whom they should be associated with either in their personal, social or political life.
Further, he wrote, “Freedom of social and political association is guaranteed to citizens under Article 19(1)(c)” though personal association is still a doubtful area. The decision-making process regarding the freedom of association, freedoms of travel and residence are purely private and fall within the realm of the right of privacy. It is one of the most intimate decisions, he added.
However, he held that no legal right could be absolute.
“It goes without saying that no legal right can be absolute. Every right has limitations.” This aspect of the matter is conceded at the bar. Therefore, even a fundamental right to privacy has limitations. The limitations are to be identified on case to case basis depending upon the nature of the privacy interest claimed, Chelameswar added.
At the very outset, if a privacy claim specifically flows only from provisions enumerated under Article 19, then the standard of review would be provided. However, the possibility of a privacy claim being entirely traceable to rights other than Article 21 is bleak. Without discounting that possibility, it needs to be noted that Article 21 is the bedrock of the privacy guarantee, he wrote, adding, “If the spirit of liberty permeates every claim of privacy, it is difficult if not impossible to imagine that any standard of limitation, other than the one under Article 21 applies.”
Justice SA Bobde
The right to privacy is inextricably bound up with all exercises of human liberty – both as it is specifically enumerated across Part III, and as it is guaranteed in the residue under Article 21, Bobde wrote. It is distributed across the various articles in Part III and, mutatis mutandis, takes the form of whichever of their enjoyment its violation curtails, he added.
Further, he wrote, “Any interference with privacy by an entity covered by Article 12's description of the ‘State' must satisfy the tests applicable to whichever one or more of the Part III freedoms the interference affects.” Bobde's observations were in line with the reasonable restrictions mentioned by Chandrachud earlier.
Justice Abhay Manohar Sapre
“It is the court's responsibility to strike a balance between the changing needs of the Society and the protection of the rights of the citizens as and when the issue relating to the infringement of the rights of the citizen comes up for consideration,” Sapre wrote, adding, “Such a balance can be achieved only through securing and protecting liberty, equality and fraternity with social and political justice to all the citizens under rule of law.”
“In my considered opinion, “right to privacy of any individual” is essentially a natural right, which inheres in every human being by birth. Such right remains with the human being till he/she breathes last. It is indeed inseparable and inalienable from human being. In other words, it is born with the human being and extinguish with human being. One cannot conceive an individual enjoying meaningful life with dignity without such right. Indeed, it is one of those cherished rights, which every civilised society governed by rule of law always recognises in every human being and is under obligation to recognise such rights in order to maintain and preserve the dignity of an individual regardless of gender, race, religion, caste and creed.”
Concurring with Chandrachud and Bobde, Sapre wrote the right to privacy would nevertheless be “subject to reasonable restrictions keeping in view the social, moral and compelling public interest, which the State is entitled to impose by law”.
“Similarly, I also hold that the “right to privacy” has multiple facets, and, therefore, the same has to go through a process of case-to-case development as and when any citizen raises his grievance complaining of infringement of his alleged right in accordance with law,” he wrote.
Justice Rohinton Fali Nariman
The Right to Privacy is of great importance for the reason that it spoke of the right of the individual “to be let alone”. Nariman stated in unmistakable terms that “this right is not grounded as a property right”, but is grounded in having the right of an “inviolate personality”.
Referring to the nature of right to privacy, Nariman wrote in his judgement that privacy could not be alienated from other fundamental rights and the “fundamental right to privacy resides in Article 21”. Further, Nariman wrote privacy as fundamental right would cover at least a “person's right relatable to his physical body”, his mind including dissemination of personal information and privacy over personal choices.
Nariman, however, wrote, “But this is not to say that such a right is absolute.” He added that the right to privacy would be subject to “reasonable regulations” to protect “legitimate State and public interest”. Nariman, nevertheless, wrote, “When it comes to restrictions on this right, the drill of various Articles must be scrupulously followed.”
Justice Sanjay Kishan Kaul
Enumerating on international human rights, Justice Sanjay Kishan Kaul held that the Universal Declaration of Human Rights “recognises privacy as an international human right”. He added that privacy was not an added right that was given but already existed.
“The right of privacy is a fundamental right,” he wrote. It is a right which protects individuals from interference by State and non-State actors (such as Facebook, Airbnb, Uber and Alibaba) allowing individuals to make autonomous life choices, he wrote.
While Kaul also emphasised that privacy at home was one of the important aspects of human dignity, which included protecting ones sexual orientation. Moreover, he stated that privacy is a “natural” and “predominant” right.
“It is an individual's choice as to who enters his house, how he lives and in what relationship. The privacy of the home must protect the family, marriage, procreation and sexual orientation which are all important aspects of dignity.” The only check and balance is that it should not harm the other individual or affect his or her rights.
Addressing the privacy concern regarding non-state actors, Kaul wrote, “Knowledge about a person gives a power over that person influencing decision making processes and shaping behaviour. It can be used as a tool to exercise control stultifying effect on the expression of dissent and difference of opinion, which no democracy can afford.”
Thus, there is an “unprecedented need for regulation regarding the extent to which such information can be stored, processed and used by non-state actors,” Kaul added.
In an era where there are wide, varied, social and cultural norms and more so in a country like ours which prides itself on its diversity, privacy is one of the most important rights to be protected both against State and non-State actors and be recognised as a fundamental right. How it thereafter works out in its inter-play with other fundamental rights and when such restrictions would become necessary would depend on the factual matrix of each case, Kaul wrote, adding that “it may give rise to more litigation can hardly be the reason not to recognise this important, natural, primordial right as a fundamental right.”
