Right to Privacy as a Fundamental Right

What is the verdict?

The Supreme Court has unanimously held that the Right to Privacy is a Fundamental Right under Article 21 of the Constitution of India. The judges ruled the right to privacy was “an intrinsic part of Article 21 that protects life and liberty

The decision was rendered by a Bench of 9-judges comprising Chief Justice of India JS Khehar and Justices Jasti Chelameswar, SA Bobde, RK Agarwal, Rohinton Nariman, AM Sapre, DY Chandrachud, SK Kaul and S Abdul Nazeer

The verdict was reserved after hearing arguments for six days over a period of three weeks, during which submissions were advanced in favor and against the inclusion of the right to privacy as a fundamental right. The 547- page judgment added that the Right to Privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by articles 14, 15 and 21 of the Constitution

All Fundamental Rights come with reasonable restrictions, and the right to privacy is not an exception. Although the restrictions are not clear as of now

Why does this verdict make life difficult for the state?

The impact of Supreme Court’s declaration that Indian citizens enjoy a right to privacy was felt in the corridors of power almost immediately. The Union government, which over the last two years maintained that privacy could not be a fundamental right, did a U-turn and embraced the verdict.

Minister for Information and Technology, Ravi Shankar Prasad, made the extraordinary claim that the government had always wanted privacy to be a fundamental right, happily ignoring the arguments the Centre’s lawyers made against privacy

When was the concept of privacy formulated?

Aristotle: The ancient Greek philosopher Aristotle spoke of a division between the public sphere of political pairs (which he termed the polis) and the personal sphere of human life (termed oikos). This may provide an early recognition of “a confidential zone on behalf of the citizen”. Aristotle’s distinction between the public and private realms can be regarded as providing a basis for restricting governmental authority to activities falling within the public realm. On the other hand, activities in the private realm are more appropriately reserved for “private reaction, familial relations and self-determination”

Where does the Constitution stand on this matter?

The Preamble:-

The Preamble emphasizes the need to secure to all citizens justice, liberty, equality and fraternity. The Preamble speaks of securing liberty of thought, expression, belief, faith and worship. Fraternity is to be promoted to assure the dignity of the individual. The individual lies at the core of constitutional focus and the ideals of justice, liberty, equality and fraternity animate the vision of securing a dignified existence to the individual

The apex court noted that “the individual is the focal point of the Constitution because it is in the realization of individual rights that the collective well being of the community is determined. Human dignity is an integral part of the Constitution. Reactions of dignity are found in the guarantee against arbitrariness (Article 14), the lamps of freedom (Article 19) and in the right to life and personal liberty (Article 21).”

Who else will be impacted by the verdict?

“We don’t think that anybody would like to be told by the State what they should eat or how they should dress or whom they should be associated with.” ~ The Supreme Court. The top court’s ruling will have an impact beyond Aadhaar. Issues pertaining to homosexuality, reproductive rights of women, the privacy policy of leading service providers like Google and Facebook will now come under the scanner.

Right of privacy cannot be denied, even if there is a minuscule fraction of the population which is affected. The majoritarian concept does not apply to Constitutional rights. Courts cannot take majoritarian view.

Just how path-breaking is this verdict?

The Supreme Court’s declaration that citizens have a ‘right to be left alone’ is a huge milestone in the history of the Indian Republic and civil rights. By stepping in – the courts have also filled a huge void left by the constitution framers. India could not have given itself a better gift in the seventieth year of its independence.

The nine-judge Supreme Court bench, which decided on the case, had to cast away the historical burden of previous judgments that refused to recognize privacy as a fundamental right. Interestingly, while doing so, a son who was part of the nine-judge bench, overruled his father’s previous verdict in the infamous ADM Jabalpur case that decided against right to privacy. This is Indian judiciary at its very best.