Obvious fundamental right

Any statute that erodes the right of privacy will have to pass the test of reasonable restrictions to enjoyment of Fundamental Rights

Nine judges of the Supreme Court unanimously declared that privacy is a Fundamental Right and protected as such by the Constitution. This harmonious pronouncement is as important to the jurisprudence of our land as the law it has laid down. On analysing the judgement the thought that springs to one’s mind is “Oh! That’s so obvious.” But it was not until the Supreme Court said so that this self-evident truth became reality.

An eight-judge bench had thought otherwise way back in 1954 and held that privacy was not protected as a Fundamental Right. That ruling overturned, privacy is now beyond tampering by the government by a simple legislation.

The Constitution does not define privacy but the Supreme Court has pithily given content to it by stating that “Privacy, in its simplest sense, allows each human being to be left alone in a core which is inviolable.” Article 21 of the Constitution guarantees every person the Right to Life and that necessarily means a life of dignity, lived in a manner that every person chooses for himself or herself. Privacy is at the heart of it all and “it is the constitutional value which straddles across the spectrum of Fundamental Rights and protects for the individual a zone of choice and self-determination” (Justice Chandrachud).

In one sense, to say that privacy is a Fundamental Right guaranteed by the Constitution is misleading. In fact, it is a primordial right which precedes the Constitution itself rather than being a creature of it. A person’s Right to Life is determined by his birth and he does not need the Constitution to permit him to live. The Constitution merely protects this right and all its concomitants.

The Constitution is a living document which “changes and evolves to suit the felt needs of the times” (Justice Kaul). Thus, privacy in its various manifestations emanates from the Right to Life and other expressed Fundamental Rights and did not have to be specifically mentioned as such in the original draft of the Constitution. It is what Justice Chelameshwar described as the “Constitution’s dark matter”. “The right to claim a basic condition like privacy in which guaranteed Fundamental Rights can be exercised must itself be regarded as a Fundamental Right…It is the inarticulate major premise in Part III of the Constitution” (Justice Bobde).

Elevating privacy to a Fundamental Right does not make it an absolute right. Reasonable restrictions will always be read into any legislation that curtails or varies a Fundamental Right. Herein lies the importance of recognising privacy as a Fundamental Right.

But for this judgement the right of a person to choose how he wishes to live his life in matters which are peripheral could be chipped or nibbled away by a simple legislative majority. Thus a person’s choice of dress, food, sexual preference, association and the like may not have been protected.

Now, the position is quite different and any statute that erodes the right of privacy will necessarily have to pass muster on the test applicable to what constitutes reasonable restriction to the enjoyment of Fundamental Rights. It is worth speculating as to how a majority in Parliament could diminish a person’s right to live in dignity or as he chooses had the judgement held otherwise.

To begin with, barring the Right to Life as understood in its starkest sense, that is, just being alive, every value add-on necessary to embellish life could be in peril. Chipping away at the periphery of a person’s lifestyle would be the surest way to strike at the core of his being. And since the periphery is a mere extension of the core, a majority government could impose its notion on how to live life upon an individual, thereby in many cases ma­king that person’s life itself intolerable.

Positive vs negative
Privacy as a constitutional right has been placed on a pedestal that embodies both negative and positive freedoms and, as elaborated by Justice Chandrachud, “The negative freedom protects the individual from unwanted intrusion. The positive freedom obliges the State to adopt suitable measures for protecting individual privacy.”

This observation is particularly relevant in a new jurisprudence that is a product of a world of Information Technology and the internet, where hardly any personal data of an individual remains private. However, privacy in the constitutional sense is not lost merely because the individual is in a public place. “Privacy attaches to a person and not the place where it is associated” (Justice Chandrachud).

Thus, when a negative freedom is being enforced against the State, the act of profiling by the State may only be justified to further public interest such as national security and to ensure that the welfare resources disbursed by the State reaches the needy.

The positive freedom would compel the State to prevent the misuse of information that is generated in social media, where the most intimate private details of a person may be accessed or stored. Thus, the rulings of the European Union, such as the ‘Right to be Forgotten’, may become a part of Indian jurisprudence where non-state actors could be compelled to delete irrelevant information of a person stored in their databases.

Conceivably, this judgement will impact legislations and legal challenges on issues such as the ban on consumption of beef, consensual gay sex, Aadhaar and Whatsapp’s privacy policy.

The judgement is profoundly philosophical, especially when one considers that privacy is the most intimate sentiment of a person’s psyche. “Privacy is also the key to freedom of thought” (Justice Kaul). Privacy is indispensible in the quest for discovering one’s inner peace. The judgement in recognising privacy as a primordial right and protecting it as a Fundamental Right will go down in constitutional history as being monumental, sagacious and farsighted, and its value as a masterpiece is enhanced in the harmony of its unanimity.

(The author is a senior advocate and heads the Mumbai law firm Oasis Counsel & Advisory) (The Billion Press)