Privacy as a fundamental right: back on the progressive path

The Supreme Court scored a hat trick last week with three successive decisions making national impact. These decisions have stirred nation-wide debates on the extent of the state's role in the private lives of citizens.

On August 22, the court granted bail to Lt Col Purohit, after nine years of internment in a Maharashtra jail, raising animated discussion on the role of governments and politicians in implicating and wrongfully confining an officer who was performing his duty. The next day, the court pronounced a historic judgement striking down ‘triple talaq’, paving the way for Muslim women’s security and empowerment.

On Thursday, the nine-judge Constitution bench of the Supreme Court was unanimous in declaring that the right to privacy is a fundamental right under the Constitution, thus rewriting the deep-seated narrative on citizen’s rights.  The fact that the Constitution bench was unanimous in its decision, a rare occurrence, reveals the judiciary’s concern over citizen rights and the compelling need for reforms.

Former Karnataka HC judge K S Puttaswamy, now 91, had filed the PIL in 2012 challenging the Aadhaar scheme, saying it violates the fundamental rights to privacy and equality. The apex court linked all the 20-plus Aadhaar-related petitions to this case. Other petitioners included activists Bezwada Wilson, Aruna Roy and Nikhil Dey. It is interesting that a former high court judge petitioned the apex court.

The right to privacy is an inherent fundamental right embedded in part-III of the Constitution. It is located in the golden trinity of Articles 14, 19, and 21 (equality, right to liberty and protection of life). Privacy is the bulwark of other rights; this right is protected as an intrinsic part of the freedoms guaranteed by the Constitution.

The UN Declaration of Human Rights recognises the right to privacy as a fundamental right -- “no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks”. India is a signatory to this. 

The Parliament enacted the Protection of Human Rights Act, 1993, which recognises the importance of human rights to bring accountability and transparency.  In reality, India is yet to get there, as we see in the case of Lt Col Purohit.

Privacy is an inherent right, not given. Jurists the world over consider the opinion of William Pitt the Elder (who led the British government twice in the 18th century) path-breaking opinion on privacy in 1763 as way ahead of its time even today. Justice R F Nariman has quoted Pitt in the judgement, "the poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail, its roof may shake, the wind may blow through it,  storm may enter, but the King of England cannot enter;  all his force dare not cross the threshold of the ruined tenement!"

The apex court has drawn reference from several cases that dealt with the right to privacy, including M P Sharma v. Satish Chandra (1954) and Kharak Singh v. State of UP.  The former was the earliest case in India to deal with “privacy” in the context of Articles 19 and 20 of the Constitution. M P Sharma’s company was accused of an attempt to embezzle funds, fraudulent transactions and falsified records. Search warrants were issued and records were seized. Sharma contended that the searches violated his fundamental rights. An eight-judge bench ruled that there was no right to privacy under a specific Article.

In Kharak Singh’s case (1962), a six-judge bench ruled that the right to privacy is not a guaranteed right under our Constitution. After being challaned in a case of dacoity in 1941, Kharak Singh was released for want of evidence. The police compiled a “history sheet” against him and he was subjected to regular surveillance, including midnight knocks.  He  moved the court for a declaration that his fundamental rights were infringed.

The impact of the apex court’s judgement is yet to completely unfurl. Will Indians hurry to use this right in every instance? It throws open challenges to the administration as well as the justice delivery system. From euthanasia, abortion, LGBT rights to issues of surveillance and security, the judgement will have to be comprehended with maturity and implemented with tremendous diligence and rigour. 

It is an established principle that no right is absolute. As Justice Chelameswar writes in his judgement “... even a fundamental right to privacy has limitations. The limitations are to be identified on a case to case basis”.  

What will be of concern are issues of national security and processes adopted by investigating agencies. Justice Sanjay Kishan Kaul writes in the judgement, “the security environment, not only in our country, but throughout the world makes the safety of persons and the state a matter to be balanced against this right to privacy”.

American law is eloquent on the right to privacy.  In Asia, the concept of privacy has been community-based, in contrast to the position in the West. With globalisation, this is fast changing.

In the 547-page judgement, the Constitution bench of the apex court debated exhaustively over the issue, traversing through various cases in India and other countries. They considered the myriad challenges that could arise from this decision and opined that matters in grey areas will have to be dealt with on a case to case basis.

The landmark judgement draws references ranging from the Bhagvad Gita to the American constitution and jurists. The apex court has yet again put the nation on a progressive path.  The responsibility of preventing misuse of this fundamental right and upholding the trust of the Constitution bench lies with the state machinery, the citizenry and institutions vested with powers to enable peaceful existence. The coming months and years will prove to be interesting as to how this right to privacy will take shape and be interpreted in courts of law.