The Right to Privacy Judgement
A nine-judge bench of the Supreme Court on August 24, 2017 held that right to privacy is a fundamental right. It is intrinsic to the right to life and liberty and comes under Article 21 of the Constitution of India. The bench was deciding in the K. Puttaswamy v. Union of India.
The nine-judge bench of the Supreme Court comprised Chief Justice J.S. Khehar, Justices J. Chelameswar, S.A. Bobde, R.K. Agrawal, Rohinton F. Nariman, Abhay Manohar Sapre, D.Y. Chandarchud and Sanjay Kishnan Kaul. The bench overruled earlier judgments in the M.P. Sharma and Kharak Singh cases delivered in 1954 and 1961, respectively, that privacy is not protected under the Constitution.
Arguments by Petitioners
The case was filed on July 21, 2015 by former Karnataka High Court judge, Justice K.S. Puthaswamy, along with others who were the petitioners in this case. They contended before the Supreme Court that the biometric data and iris scan that was being collected for issuing Aadhaar Cards violated the citizen’s fundamental right to privacy as their personal data was not being protected and was vulnerable to exposure and misuse.
The petitioners had argued that right to life under Article 21 of the Constitution of India would include the right to privacy though it is not expressly stated in the Constitution. It was also argued that privacy is a broader concept and data-sharing is only one aspect of privacy. Privacy is about the freedom of thought, conscience and individual autonomy and none of the fundamental rights can be exercised without assuming a certain sense of privacy.
Arguments by the Central Government
The Attorney-General of India, K.K. Venugopal, argued on behalf of the central government in the Supreme Court. He brought to the notice of the court that an eight-judge bench in the M.P. Sharma case (1954) and a six-judge bench in the Kharak Singh Case (1961) had categorically ruled that the right to privacy was not a fundamental right.
Justice B.N. Srikrishna Committee on Data Protection
The Ministry of Electronics and Information Technology on July 31, 2017 constituted a committee of experts under the chairmanship of Justice B.N. Srikrishna, former judge, Supreme Court of India and comprising of members from government, academia and industry. The committee will study and identify key data protection issues and recommend methods for addressing them. The committee will also suggest a draft Data Protection Bill.
The Attorney-General claimed that privacy is too vague to qualify as a fundamental right. He stated that there is no right to privacy and privacy is only a sociological notion, and a legal concept. He asked the judges to state that only some aspects of privacy are fundamental, not all and it is a limited fundamental right that can be taken away in legitimate State interest. He stated that in developing countries, something as amorphous as privacy could not be a fundamental right, that other fundamental rights such as food, clothing, shelter, etc., override the right to privacy.
The Attorney-General maintained that right to privacy is not a fundamental right to be claimed either under Article 21 (right to life), Article 14 (right to equality) or Article 19 (freedom of speech and expression).
Judges’ Opinion
The judgement consisted of six opinions. The lead opinion was authored by Justice D.Y. Chandrachud on behalf of himself, Chief Justice of India J.S. Khehar, Justice R.K. Agrawal and Justice S. Abdul Nazeer. The five separate opinions were from Justice J. Chelameswar, S.A. Bobde, Rohinton F. Nariman, Abhay M. Sapre and Sanjay Kishan Kaul.
(i) Opinion of CJI J.S. Khehar, Justice R.K. Agrawal, D.Y. Chandrachud and S.A. Nazeer They observed that human dignity is so fundamental that it permeates the core of rights under the Fundamental Rights chapter of the Constitution. The right to privacy recognises the autonomy of the individual as privacy is intrinsic to freedom and liberty. Privacy is the ultimate expression of the sanctity of the individual.
On the government’s argument that privacy is already a statutory right and there is no need to declare it a fundamental right, they stated that fundamental rights have a unique purpose—to put such rights beyond the pale of a majoritarian legislature. Privacy protects heterogeneity and pluralism and the diversity of our cultures. Privacy matters not just for the elites, but the poor need it too.
- Justice J. Chelameswar The mere absence of privacy in the text of the Constitution does not mean anything; the silence of the Constitution cannot be used to deny rights, as that will be an affront to the wisdom of the framers of the Constitution. The text of the Constitution is only the primary source of understanding it; its silences are also equally important.
- Justice S.A. Bobde The right to privacy is both a common law right and a fundamental right. Privacy is the necessary condition precedent to the enjoyment of freedom under Part III of the Constitution. He too, like the other judges, held that State recognition of the right to privacy is not necessary.
- Justice Rohington F. Nariman Justice Nariman refused to accept the central government’s argument that welfare schemes are more important for the masses than the right to privacy. He stated that even tax laws need to protect privacy and authorities cannot divulge personal details. Mere statutory recognition of privacy is not sufficient and recognition of privacy as a fundamental right is necessary as citizens enjoy fundamental rights despite the government they may elect.
- Justice Abhay M. Sapre Justice Sapre held that the unity and integrity of the nation cannot survive unless the dignity of every individual citizen is guaranteed through privacy. The three concepts of liberty, equality and fraternity are to be read together. Each and every right could not be written into the Constitution and courts may read additional rights.
- Justice Sanjay Kishan Kaul Justice Kaul boldy acknowledged the new threats from the intrusive State in an age of digital footprints. The right
Right to Privacy in USA
The US Constitution contains no express provisions regarding right to privacy. The US Federal Supreme Court through various judgments and inference from amendments to the US Constitution (first, third, fourth, fifth, ninth and fourteenth amendment) made right to privacy a constitutional right.
The UD Federal Supreme Court, in two decisions in the 1920s, read the fourteenth amendments liberty clause to prohibit states from interfering with private decisions of educators and parents to shape the education of children.
In 1969 (Stanley Georgia), the Federal Supreme Court unanimously concluded that the right to privacy protected an individual’s right to possess and view pornography in his own home. In 2003, in Lawrence v. Texas, the Federal Supreme Court overruling an earlier decision, found that Texas violated the liberty clause of two gay men when it enforced against them state law prohibiting homosexual sodomy.
to privacy was very much part of the original intent of the framers of the Constitution and privacy is a key to freedom of thought and the right to think.
Implications
The right to privacy involves personal autonomy, the right to decide how personal information is used and the right to be able to choose. Policy or law cannot be so structured as to completely erode right to privacy. The right to privacy would be subject to those restrictions specified in Article 19(2) of the Constitution.
The judgement would have implications on a number of issues.
- What is going to be the future of Aadhaar? The judges make two important observations. One is the suggestion that programmes to provide benefits and prevent the diversion of resources could be legitimate grounds for collection and storage of data. Secondly, they clarify that any such data has to be utilised for legitimate purposes of the State and ought not to be utilised unauthorisedly for extraneous purposes. This is bound to shape future arguments in the Aadhaar case.
- There is a welcome change in the views of the Supreme Court regarding Section 377 of the Indian Penal Code. The judgments by Justice Chandrachud and Justice Kaul were emphatic in recognising sexual orientation to be an integral element of privacy. At present, the Supreme Court is hearing a curative petition on the constitutional/unconstitutional status of section 377 of the Indian Penal Code.
- At present, India has no statute regarding privacy or data protection. All six opinions expressed concern over data protection in today’s day and age. The court, however, did not give specific directions in this regard. Instead, it expressed the hope that the government would undertake this exercise after a careful balancing of privacy concerns and legitimate State interests.
- The pending facebook-Whatsapp case is likely to be affected. In this case, the basic issues are the privacy and data sharing policies of Whatsapp, and the effectiveness of the consent given by consumers while signing for such services. This matter could be resolved through a legislation by the Parliament or guidelines from the court.
- Justice Chelameswar and Justice Chandrachud held that the right to food of one’s choice is part of the right to privacy. It is clear that the judgement is to have a bearing on matters like consumption of beef and alcohol, both of which have been tendentious issues for years.
♦ Avinash Purohit
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