The SC’s decision recognises privacy as an important facet of individual autonomy, the right to live with dignity, and the right to personal liberty. The Court has also acknowledged the importance of informational privacy and right to exercise control over one’s personal information
By Kritika Bhardwaj
The post first appeared in Hindustan Times on August 25, 2017
In a landmark decision on August 24, a nine-judge bench of the Supreme Court held that the right to privacy is a fundamental right. In a unanimous decision, the SC held that privacy is an inalienable right, and a crucial aspect of individual liberty and dignity.
The challenge to the existence of the right to privacy arose out of a batch of petitions assailing the constitutionality of the Aadhaar project. Introduced as a means to plug leakages in the welfare delivery system, the project involves the collection of biometrics and storage of extensive personal information within a centralised database. As a result, one of the grounds on which the project has been challenged is its potential impact on privacy. Although many of these petitions were filed in 2012, it was only in 2015 that the government objected to the petitioners’ reliance on this right. Convinced that the position of privacy as a fundamental right required some clarification, the Supreme Court referred this issue to a larger bench.
The SC decision puts the government’s claim to rest for eternity. The SC overruled two decisions that formed the crux of the government’s argument – MP Sharma v. Satish Chandra and Kharak Singh v. State of Punjab, with respect to their observation that privacy was not a fundamental right under our Constitution. It also held that the Court’s existing jurisprudence on the right to privacy from 1975 onwards was the correct legal position. The merits of the Aadhaar project will now be decided on the basis of this decision.
It is important to remember that the Court was considering the right without reference to any specific facts or intrusions. Often, such intrusions are justified on the basis of other countervailing interests – such as national security or important public interest. It remains to be seen how the Court will apply today’s ruling in the face of such situations, especially Aadhaar. However, it is undeniable that an unequivocal affirmation of the right to privacy by a bench of nine judges can go a long way in shaping the Court’s jurisprudence over the next few decades.
The SC decision recognises privacy as an important facet of individual autonomy, the right to live with dignity, and the right to personal liberty. The Court has also acknowledged the importance of informational privacy and right to exercise control over one’s personal information. Significantly, the Court has refrained from defining privacy definitively, recognising that the nature of the privacy right and any limitations to it must be developed on a case-by-case basis. This presents opportunities to develop the right in light of newer and unanticipated privacy challenges.
One of the most significant aspects of the judgment is the Court’s articulation of privacy in the context of identity, especially with respect to an individual’s sexual orientation. In doing so, the judgment was critical of the Court’s earlier decision in Koushal v. Naz, which upheld Section 377 of the Indian Penal Code. Today, the Court held that the right to privacy and the protection of sexual orientation “lie at the core of fundamental rights”.
Pertinently, the Court dismissed the common misconception that privacy is merely an ‘elite’ concern. This line of argument has been common among supporters of the Aadhaar project. Citing Nobel laureate Amartya Sen, Justice Chandrachud observed that that there is an “intrinsic relationship between development and freedom”. He went on to hold that besides being intrinsic to the Constitution, liberty and freedom are crucial for creating a framework for socio-economic rights.
Finally, the Court accepted that the right to privacy is not absolute. There may be legitimate interests, which may justify an intrusion into one’s right to privacy. However, the Court set a high threshold for the government to be able to justify any privacy intrusions in the future. This is important, as the government will have to be mindful of these constitutional limitations for any of its proposed initiatives, Digital India or otherwise.
Kritika Bhardwaj is a lawyer and Fellow at the Centre for Communication Governance at National Law University Delhi. She assisted the petitioners in this case