SC recognises right to privacy as fundamental right

The Supreme Court on Thursday recognised the right to privacy as a fundamental right, in a progressive decision with far-reaching consequences on the life of citizens.

A nine-judge bench presided over by Chief Justice J S Khehar declared, “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 court explained that privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty, which are not creations of the Constitution but are inherent in each individual as an intrinsic and inseparable part of the human element.

The nine-judge passed a unanimous verdict, answering a reference made by a five-judge bench on July 18. “

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 court said.

The court said the interpretation of the Constitution must be resilient and flexible as technological change has given rise to concerns which were not present seven decades ago.

However, like other freedoms including the right to life and personal liberty, privacy is not an absolute right. “A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. In the context of Article 21 an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable” the court said.

The court over-ruled previous eight-judge (full quorum at that time) bench decision in M P Sharma Vs Satish Chand (1954) and six-judge bench judgement in Kharak Singh Vs State of UP (1962). Both these judgements were relied upon by the government to claim that privacy cannot be elevated as a fundamental right.

A batch of PILs led by former Karnataka HC judges Justice K S Puttaswamy has contended the government's decision to issue Aadhaar cards to every citizen violated their right to privacy for forcing them to part with their body details.

The judgement is likely to come to help of those who challenged validity of Section 377 of the IPC, as it held as “not sustainable” a view to denying right to privacy by the two-judge of the apex court that only “a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders”.

There were six separate but concurring judgements.

Justice D Y Chanadrachud wrote on behalf of the four judges CJI, R K Agrawal, S Abdul Nazeer and himself. Justices J Chelameswar, S A Bobde, Abhay Manohar Sapre, R F Nariman and Sanjay Kishan Kaul their own judgements.

Justice Chandrachud wrote, “Privacy is the constitutional core of human dignity. Privacy has both a normative and descriptive function. At a normative level, privacy sub-serves those eternal values upon which the guarantees of life, liberty and freedom are founded. At a descriptive level, privacy postulates a bundle of entitlements and interests which lie at the foundation of ordered liberty.”

The court asked the Union government to put in place a robust data protection regime in order to protect informational privacy by balancing individual interests and legitimate concerns of the state.