Opinion : Supreme Court Declares Privacy as Fundamental Right

In a far-reaching verdict that could impact a range of choices of Indians, including food habits and sexual orientation, the Supreme Court on August 24 declared right to privacy a fundamental right. The nine-judge constitution bench headed by Chief Justice of India J S Khehar unanimously held that 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 of the Constitution.

In six separate but concurring judgements, the bench overruled the apex court verdicts delivered in 1950 and 1962 in the M P Sharma and the Kharak Singh cases which have held that right to privacy was not part of the Constitution. Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation and sexual orientation. It protects heterogeneity and recognises the plurality and diversity of our culture, the court said. Though the government welcomed the verdict, saying the right should be subject to “reasonable restrictions”, many dubbed it as a setback for the Narendra Modi dispensation.

Congress President Sonia Gandhi said the judgment is a setback to the “unbridled encroachment and surveillance by the state and its agencies in the life of the common man”. Son and party Vice President Rahul Gandhi said the decision was a major blow to “fascist forces” and also a rejection of BJP’s ideology of “suppression through surveillance”.

Noted lawyer Prashant Bhushan, who is party to the case, said the verdict is a blow to the government as it “had argued that people don’t have a right to privacy”. Law and IT Minister Ravi Shankar Prasad also sought to take some credit saying much before the nine-judge bench was constituted in the apex court to decide on the issue of privacy, the Modi government had told Parliament that privacy is a fundamental right. He also claimed the previous UPA government had introduced Aadhaar scheme without any legislative support. “It was in that context that the question of the UPA’s Aadhaar scheme was challenged before the judiciary.

The NDA government ensured that necessary legislation was approved by Parliament. Adequate safeguards were also introduced,” a statement issued by the law ministry said.It, however, needs to be seen to what extent the verdict will have a bearing on the government’s Aadhaar scheme that makes compulsory linking of the unique biometric identity with bank accounts, income tax returns and for availing government benefits.

The court did not directly address the Aadhaar issue, which will continue to be dealt with by a separate bench that has been hearing arguments since 2015. In a session that lasted barely five minutes, CJI Khehar read out the unanimous operative part of the verdict: “The right to privacy is protected as 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.” But the huge ramifications of the verdict, which one judge said “governs the lives of 125 crore citizens of this country”, were woven into the 547- page judgement.

The judgement “must be interpreted to respond to the changing needs of society at different points in time”, said Justice Rohinton Nariman. The top court also ruled that like other fundamental rights, the right to privacy was not absolute and any encroachment will have to withstand the touchstone of permissible restrictions. The case stemmed from a bunch of petitions challenging the Aadhaar scheme, which contended that the data obtained to issue the identity card was an infringement of privacy. The top court rejected the NDA government’s vehement contention that there was no general or fundamental right to privacy under the Constitution.

The lead judgement, penned by Justice D Y Chandrachud for himself, the CJI, justices R K Agrawal and S A Nazeer, however, asked the government to examine and put in place a “robust regime” for data protection in the modern era. The other members of the bench were Justices J Chelameswar, S A Bobde, Abhay Manohar Sapre and Sanjay Kishan Kaul. The top court gave a ray of hope to the government whose Aadhaar scheme is under intense scrutiny over privacy infringements, said, “We commend to the Union Government the need to examine and put into place a robust regime for data protection.”

The judgement said that privacy included at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. “Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life,” the judgement said. It said personal choices governing a way of life are intrinsic to privacy. “Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place,” it said.

Kapil Sibal, who had appeared for non-BJP ruled states in this case, observed that like individual freedom, “individual house, marriages,sexual orientation, right to space, right to move freely, right to eat what an individual likes, right to be left alone are protected both within the home and at public places to the extent necessary.” Justice J Chelameswar, who wrote a separate but concurring judgement with eight other judges, said, “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.” In his 44-page verdict, Justice Chelameswar also said, “A woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy.”

Similarly, Justice Chandrachud said the content of the right to privacy has found elaboration in diverse contexts. “These would include telephone tapping, inspection and search of confidential documents involving the banker-customer relationship, disclosure of HIV status, food preferences and animal slaughter, medical termination of pregnancy, scientific tests in criminal investigation, disclosure of bank accounts held overseas and the right of transgenders,” he said. The Supreme Court also lauded its three former judges Saiyid Fazl Ali, Subba Rao and H R Khanna for their “vision” and “dissents” from their colleagues to protect the rights of individuals. “Article 21, with which we are directly concerned, was couched in negative form in order to interdict State action that fell afoul of its contours.

This article, which houses two great human rights, the right to life and the right to personal liberty, was construed rather narrowly by the early Supreme Court of India. “But then, there were judges who had vision and dissented from their colleagues. This judgment will refer to three great dissents by Justices Saiyid Fazl Ali, Subba Rao and Khanna,” Justice Nariman said in his 122-page verdict which formed part of the 547-page judgement. The first great dissent referred to by Justice Nariman was by Justice Fazl Ali in the case of A K Gopalan vs State of Madras, 1950. Justice Nariman went on to say that the foresight of Justice Fazl Ali “simply takes our breath away”.

The subject matter of challenge in the case of A K Gopalan, a communist leader, was the validity of certain provisions of the Preventive Detention Act of 1950. It was decided in the Gopalan case that free speech and expression was guaranteed by Article 19(1)(a) and was hence excluded from personal liberty under Article 21. Justice Ali, in his dissent from other judges of bench, had adopted the view that fundamental rights are not isolated and separate but protect a common thread of liberty and freedom. In the second great dissent, Justice Nariman referred to Justice Subba Rao’s dissent in Kharak Singh vs State of UP.

In the Kharak Singh judgement, Regulation 237 of the UP Police Regulations was challenged as violating fundamental rights under Article 19(1)(d) and Article 21. The decision in Kharak Singh case invalidated domiciliary visits at night authorised by Regulation 236(b), finding them to be an unauthorised intrusion into the home of a person and a violation of the fundamental right to personal liberty. However, Justice Rao in his dissenting views said that the rights conferred by Part III have overlapping areas.

The third great dissent referred to by Justice Nariman was the judgement by H R Khanna in ADM Jabalpur vs S S Shukla which he termed as “remarkable”. In the footnote of the verdict, he said that Justice H R Khanna was in line to be next Chief Justice of India but was superseded because of these dissenting views in the judgment. In the ADM Jabalpur case of 1976, the fivejudge bench by a majority verdict 4:1 had arrived at the conclusion that Article 21 is the sole repository of all rights to life and personal liberty, and, when suspended, takes away those rights altogether.

Emergency was imposed in the country for a period of 21-month from 1975 to 1977. Justice H R Khanna was lone dissenting judge who had held that “the suspension of the right to move any Court for the enforcement of the right under Article 21, upon a proclamation of emergency, would not affect the enforcement of the basic right to life and liberty”.

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