Right to privacy as fundamental right declares Supreme Court

‘Life and personal liberty are inalienable rights’

In a landmark verdict, the right to privacy was Thursday declared a fundamental right under the Constitution by the Supreme Court, which said “privacy is the constitutional core of human dignity”.
The judgement, which will have a bearing on the lives of all Indians, said that “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.”
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.
A nine-judge Constitution bench headed by Chief Justice J S Khehar, which delivered as many as six concurring verdicts, overruled the contrary apex court verdicts delivered in 1950 and 1962 in the M P Sharma and the Kharak Singh cases holding that right to privacy was not part of the Constitution.
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.
However, the top court gave a ray of hope to embattled 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 creation of such a regime requires a careful and sensitive balance between individual interests and legitimate concerns of the state. The legitimate aims of the state would include for instance protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits”.
Besides the four judges including the CJI, Justices J Chelameswar, S A Bobde, Abhay Manohar Sapre, Rohinton Fali Nariman and Sanjay Kishan Kaul wrote separate, but concurring verdicts running into 547-pages.
The judgement was welcomed by leading legal experts, including Law Minister Ravi Shankar Prasad, who is himself a lawyer. Noted jurist Soli Sorabjee said “no fundamental right is absolute. It is always subject to reasonable restrictions”.
While senior advocate Indira Jaising said “privacy is fundamental. It certainly has an impact on the day-to-day life. This verdict prevents any kind of snooping,” senior lawyer Kapil Sibal 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.”
The CJI pronounced the summary of concurring verdicts in a packed courtroom at 10.35 AM and said, “the decision in M P Sharma (1950) which holds that the right to privacy is not protected by the Constitution stands over-ruled.
“The decision in Kharak Singh (1962) to the extent that it holds that the right to privacy is not protected by the Constitution stands over-ruled”.
The bench put at rest the persistent query as to where Right to Privacy, if recognised as a fundamental right, would be placed under Part III (which refers to such rights) the Constitution.
It said that right to privacy was protected as an intrinsic part of the right to life and personal liberty under Article 21 and rather, it can be traced to entire Part III as and as a part of all the fundamental rights.
He then proceeded to declare that all verdicts, which recognised privacy as a key component of fundamental rights, delivered post the M P Sharma and the Kharak Singh laid down “the correct position in law”.
Justice Chandrachud, in his verdict, dealt extensively with findings arrived at in the M P Sharma judgement that had held that in the absence of a provision similar to the Fourth Amendment to the US Constitution, the right to privacy cannot be read into the provisions of Article 20(3) of the Constitution.
“The judgment does not specifically adjudicate on whether a right to privacy would arise from any of the other provisions of the rights guaranteed by Part III including Article 21 and Article 19.
“The observation that privacy is not a right guaranteed by the Indian Constitution is not reflective of the correct position. M P Sharma is overruled to the extent to which it indicates to the contrary,” the verdict said.
Referring to the 1962 Kharak Singh judgement, the verdict said it was “correctly held that the content of the expression ‘life’ under Article 21 means not merely the right to a person’s ‘animal existence’ and that the expression ‘personal liberty’ is a guarantee against invasion into the sanctity of a person’s home or an intrusion into personal security.”
“The first part of the decision in Kharak Singh which invalidated domiciliary visits at night on the ground that they violated ordered liberty is an implicit recognition of the right to privacy. The second part of the decision, however, which holds that the right to privacy is not a guaranteed right under our Constitution, is not reflective of the correct position…
“Kharak Singh to the extent that it holds that the right to privacy is not protected under the Indian Constitution is overruled,” it said.
The bench then said that life and personal liberty are “inalienable rights” and they are “inseparable from a dignified human existence”.
“Privacy with its attendant values assures dignity to the individual and it is only when life can be enjoyed with dignity can liberty be of true substance. Privacy ensures the fulfilment of dignity and is a core value which the protection of life and liberty is intended to achieve,” the verdict said.
The high-voltage hearing saw a battery of senior lawyers, including Attorney General K K Venugopal, Additional Solicitor General Tushar Mehta, Arvind Datar, Kapil Sibal, Gopal Subaramaniam, Shyam Divan, Anand Grover, C A Sundaram and Rakesh Dwivedi, advancing arguments either in favour or against the inclusion of right to privacy as a fundamental right.
Petitioners include former Karnataka High Court judge Justice K S Puttaswamy, first Chairperson of the National Commission for Protection of Child Rights and Magsaysay award recipient Shanta Sinha, feminist researcher Kalyani Sen Menon and others who have challenged the validity of the Aadhaar scheme on grounds of it being violative of the right to privacy.
Initially, on July 7, a three-judge bench had said that all issues arising out of Aadhaar should finally be decided by a larger bench and the CJI would take a call on the need for setting up a constitution bench.
The matter was then mentioned before CJI Khehar who set up a five-judge constitution bench to hear the matter.
However, the five-judge constitution bench on July 18 decided to set up a nine-judge bench to decide whether the right to privacy can be declared a fundamental right under the Constitution.
The decision to set up the nine-judge bench was taken to examine the correctness of two apex court judgements delivered in the cases of Kharak Singh and M P Sharma in which it was held that this right was not a fundamental right.
While reserving the verdict, the bench had voiced concern over the possible misuse of personal information in the public domain and said that protection of the concept of privacy in the all-pervading technological era was a “losing battle”.
During the arguments earlier, the bench had observed that the right to privacy cannot be an absolute right and the state may have some power to put reasonable restrictions.
The Attorney General had also contended that right to privacy cannot fall in the bracket of fundamental rights as there were binding decisions of larger benches that it was only a common law right evolved through judicial decisions.
The GoI had termed privacy as a “vague and amorphous” right which cannot be granted primacy to deprive poor people of their rights to life, food and shelter.
The high-profile arguments also saw the apex court asking searching questions about the contours of right to privacy in the digital age when personal information was randomly shared with all types of government and private entities.
The bench had wanted to know about the tests which could be used to regulate and enforce privacy right when there could be “legitimate or illegitimate” use of data.
Meanwhile, the petitioners had contended that the right to privacy was “inalienable” and “inherent” to the most important fundamental right which is the right to liberty.
They had said that right to liberty, which also included right to privacy, was a pre-existing “natural right” which the Constitution acknowledged and guaranteed to the citizens in case of infringement by the state.
The apex court had favoured overarching guidelines to protect private information in public domain and said there was a need to “maintain the core of privacy” as the notion of privacy was fast becoming irrelevant in an all-pervading technological era.