NEW DELHI: “Privacy in its simplest sense, allows each human being to be left alone in a core which is inviolable,” said the Supreme Court while declaring it as a fundamental right in a landmark verdict on Thursday. The nine-judge Constitution bench, headed by Chief Justice JS Khehar, ruled that right to privacy is an intrinsic part of Right to Life and Personal Liberty under Article 21 and entire Part III of the Constitution. The 547-page ruling could have a wide impact on an individual’s freedoms including food habits and sexual orientation.
The order came on batch of petitions challenging the Centre’s move to make Aadhaar mandatory for availing the benefits of various social welfare schemes. The court did not directly address the Aadhaar issue, which will continue to be dealt with by a separate bench which has been hearing it since 2015.
While the Centre had argued that right to privacy is not a Fundamental right, the petitioners had contended that when a citizen gives his biometrics and personal details to the government and when in turn it is used by commercial organisations, it is a breach of privacy. Other members of the bench comprising Justices J Chelameswar, S A Bobde, R K Agrawal, R F Nariman, A M Sapre, D Y Chandrachud, S K Kaul and S Abdul Nazeer shared the same view.
Chandrachud, who penned 266 pages of the judgement for himself, the CJI, Agrawal and Nazeer, asked the government to examine and put in place a robust regime for data protection. He also dispelled the notion that the judiciary was amending the Constitution. “Life and personal liberty are not creations of the Constitution. These rights are recognised by the Constitution as inhering in each individual as an intrinsic and inseparable part of the human element which dwells within,” he said.
Meanwhile, Kaul observed that in a country where there are wide, varied, social and cultural norms, “privacy is one of the most important rights to be protected both against State and non- State actors.” He also echoed the rights of children who are perpetually creating digital footprints on social networking websites. “They should not be subjected to the consequences of their childish mistakes and naivety their entire life. Privacy of children will require special protection not just in the context of the virtual world, but also the real world.”
On euthanasia, Chelameshwar said, “An individual’s rights to refuse life prolonging medical treatment or terminate his life is another freedom which fall within the zone of the right of privacy.” While talking about abortion, Chelameshwar 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.”
“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,” he added.
Abhay Manohar Sapre, who wrote a separate but concurring judgement, said, “Right to privacy of any individual is essentially a natural right, which inheres in every human being by birth. Such right remains with the human being till he/she breathes last. It is indeed inseparable and inalienable from human being. In other words, it is born with the human being and extinguish with human being.”
The main petitioners of the case 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.
What The verdict says
Right of privacy is a fundamental right. It is a right which protects the inner sphere of the individual from interference from both State, and non-State actors and allows the individuals to make autonomous life choices
The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised though history to wreak the most egregious violations of human rights. Above all, it must be realised that it is the right to question, the right to scrutinise and the right to dissent, which enables an informed citizenry to scrutinize the actions of government. Those who are governed are entitled to question those who govern, about the discharge of their constitutional duties including in the provision of socio-economic welfare benefits
The majoritarian concept does not apply to Constitutional rights and the Courts are often called upon to take what may be categorised as a non-majoritarian view, in the check and balance of power envisaged under the Constitution of India. One’s sexual orientation is undoubtedly an attribute of privacy
Likely impact on
On the WhatsApp case... The app’s data-sharing policy with Facebook is said to have led to data breach of 200 mn users
The court tore down its own judgment of 2014 that upheld Section 377 of the IPC, a move that could lead to decriminalisation of homosexuality
May affect the DNA Based Technology Bill 2017 that would allow the govt to set up a DNA databank and use data for forensic purposes, which has raised concerns about privacy and the risk of data getting misused
The extent of reach of Aadhaar, which critics term intrusive, could now be challenged. Hearings on Aadhaar will continue before the existing three-member bench, who will have a clearer framework to arbitrate over the issue