Supreme Court declares privacy a fundamental right

Supreme Court : Privacy a fundamental right, intrinsic to right to life

• In a landmark verdict, a nine-judge Supreme Court bench on 25^th August 2017 declared privacy a fundamental right, intrinsic to right to life, a decision that may impact  the government’s Aadhaar programme, civil liberties,  gay rights ,collection and  use of personal data by Internet and financial   The verdict can also impact restrictions on right to convert and choice of food.
• The ruling on the highly sensitive issue was to deal with a batch of petitions challenging the Centre’s move to make Aadhaar mandatory for availing the benefits of various social welfare schemes. Petitioners say that enforcing the use of Aadhaar is an infringement of privacy.
• The verdict may 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 Aadhaar identity programme, first announced in 2009, aims to issue every Indian with a 12-digit “Aadhaar” number, corresponding to records that include a citizen’s fingerprints and eye scans. Over 1.13 billion Indians have been registered so far.
• The government says the database, which began storing identity records in 2014, will allow it to streamline social programmes in a country, where one study has estimated about 84% of every rupee paid as welfare is lost to corruption.
• Arguing against, the Indian attorney-general KK Venugopal had argued that privacy was too vague a concept to be considered a fundamental right, and that it could be overridden by the right to food or shelter, particularly in a developing country.
• A five-judge bench will now examine claims of Aadhaar opponents that the programme is an unreasonable intrusion into citizens’ privacy. The petitioners are challenging the nature of information collected, which includes biometrics and its alleged unlimited use by government agencies
• The judgment was not meant to decide on the fate of Aadhaar, just on whether privacy of an individual was a part of their inviolable fundamental rights. This means a five-judge bench of the SC will test the validity of Aadhaar on the touchstone of privacy as a fundamental right.
• The verdict on the right to privacy today is a major setback for the government, which had argued that the constitution does not guarantee individual privacy as an inalienable fundamental right. The judges concluded, “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”.
• It also spoke of the right to marriage, procreation, privacy of home and the right to be left alone as other facets of privacy.
• The broad inference is that the government cannot structure any policy or law that completely takes away the citizen’s right to privacy. It can only place logical restrictions on limited grounds such as national sovereignty and security, public order, decency, etc, as specified in Article 19 (2) of the Constitution.
• This ruling also knocks off the legal basis of the Koushal judgement which upheld Section 377, effectively criminalising all homosexual activity.
• The Supreme Court also touched upon several key facets of privacy such as informational privacy in the digital age and urged the government to quickly bring in a data protection law to deal with these fast-changing technological developments. There are potential implications here for data collected by firms in finance and ecommerce, and by app developers.

 Civil Liberties

• The bench also overruled the Emergency-era judgment made in the ADM Jabalpur case that had said the State could suspend and take away the liberty of citizens during a proclamation of Emergency and the citizens cannot even approach the top court for relief.
• In the 1976 “ADM Jabalpur case”, the Supreme Court considered whether fundamental rights stood suspended by the Emergency order.
• Among the nine judges who gave the verdict , is one who overruled a past judgment by his father, calling it “seriously flawed”. During the 1975 Emergency, when fundamental rights were suspended by the Indira Gandhi-led Congress government, a five-judge Supreme Court bench backed it. The bench included Justice YV Chandrachud.Today, overturning that ruling,
• Justice Chandrachud’s son DY Chandrachud, wrote: ” Life and personal liberty are inalienable to human rights. No civilized state can contemplate encroachment on life and personal liberty.”
• The apex court’s nine-judge bench overruled previous judgments on the issue- an eight-judge bench judgment in the MP Sharma case 1954 and a six-judge bench judgment in Kharak Singh case 1962, both of which had ruled that privacy is not a fundamental right.
• The bench comprised Justices Khehar, J Chelameswar, S A Bobde, R K Agrawal, R F Nariman, A M Sapre, D Y Chandrachud, Sanjay K Kaul and S Abdul Nazeer.
• Attorney general K K Venugopal, who had argued that right to privacy cannot be a fundamental right, welcomed the SC decision.

  Gay Rights

• The nine judges rejected the earlier SC ruling that had rolled back the Delhi High Court decision to decriminalize all adult, consensual homosexual behavior. It was volatile of the community’s right to life and dignity, Justices Chandrachud and Kaul wrote.
• The landmark Supreme Court judgment  which declared privacy is a fundamental right of all Indians, has also brought optimism to the gay and LGBT communities.  The court said right to privacy is applicable even in the milieu of Section 377 — a law that criminalizes what was once seen as unnatural sex. Sexual orientation,
• The court said, the right to privacy is an “essential component of identity” and the rights of lesbian, gay, bisexual and transgender population are “real rights founded on sound constitutional doctrine”.
• Elaborating on the concept of privacy, Justice DY Chandrachud, who was part of the nine-judge bench that pronounced the verdict, said in his judgment: “Privacy includes 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.”
• The bench said the Delhi High Court had “erroneously relied upon international precedents in its anxiety to protect the so-called rights of LGBT persons”.  The rights of gay and LGBT population “cannot be construed to be ‘so-called rights’, the court said, adding their rights are not “so-called” but real rights under the Constitution.

 Other Rights 

Legal experts said the privacy ruling can potentially impinge upon laws that restrict a person’s right to convert as well as laws/rules that restrain the choice of food. They said following the judgment, many such laws and rules will be more susceptible to legal challenge. India has a number of state-level laws against conversion, and several states have restrictions on animal slaughter.

• Lauding the unanimous verdict of the nine-judge bench, senior advocate Soli Sorabjee said it showed the “good approach” of the Supreme Court which does not dither in over-ruling its previous judgments. “It is a very progressive judgment and protects the fundamental rights of the people. Privacy is a basic right which is inherent in every individual,”
• Senior lawyer in the case, Prashant Bhushan, said that any laws seeking to restrict privacy, including those surrounding India’s biometric database, would now “have to be tested on the touchstone of article 21”.
• Decision to terminate life falls under ambit of law, says Justice J Chelameswar
• Justice Sanjay Kishan Kaul, who wrote a separate but concurring judgment with eight other judges, expressed apprehension that the growth and development of technology has created new instruments for the possible invasion of privacy by the State, including through surveillance, profiling and data collection and processing
• Right to Privacy must be protected against state, non-state actors, says Justice Sanjay Kaul

The chronology of Supreme Court hearings in the case:

• Jul 7:Three-judge bench says issues arising out of Aadhaar should finally be determined by larger bench and CJI would take a call on the need for setting up a constitution bench .Matter mentioned before CJI who sets up a five- judge constitution bench to hear the matter.
• Jul 18:Five-judge constitution bench decides to set up a nine-judge bench to decide whether the right to privacy can be declared a fundamental right under the Constitution.Nine-judge bench (Chief Justice J S Khehar, Justices J Chelameswar, S A Bobde, R K Agrawal, Rohinton Fali Nariman, Abhay Manohar Sapre, D Y Chandrachud, Sanjay Kishan Kaul and S Abdul Nazeer) constituted to hear the privacy matter.
• Jul 19:SC says right to privacy can’t be absolute, may be regulated.
• Jul 19:Centre tells SC that right to privacy is not a fundamental right.
• Jul 26:Karnataka, West Bengal, Punjab and Puducherry, the four non-BJP ruled states move SC in favor of right to privacy.
• Jul 26:Centre tells SC that privacy can be fundamental right with some riders.
• Jul 27:Maharashtra government tells SC that privacy is not a “standalone” right, but it is rather a concept.
• Aug 1:SC says there has to be “overarching” guidelines to protect an individual’s private information in public domain.
• Aug 2:SC says protection of the concept of privacy in the technological era was a “losing battle”, reserves verdict.
• Aug 24:SC declares right to privacy as fundamental right under the Constitution.

♦ Pradeep Gautam

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