Right to Privacy Supreme Court Judgement

The nine-judge Bench dealt with the question of right to privacy in six separate judgments spanning to 547 pages. Here is what each judgment, all concurring that right to privacy is a fundamental right, has to say:

Justice Chandrachud's judgment for himself, Chief Justice Khehar, R.K. Agrawal and S. Abdul Nazeer:

Privacy is a concomitant of the right of the individual to exercise control over his or her personality. Natural rights (like privacy) are inalienable because they are inseparable from the human personality. The right to privacy has been traced in the decisions which have been rendered over more than four decades to the guarantee of life and personal liberty in Article 21.

On dignity and privacy: To live is to live with dignity. Privacy with its attendant values assures dignity to the individual and it is only when life can be enjoyed with dignity can liberty be of true substance. Privacy ensures the fulfilment of dignity.

Answering the Centre's argument that the SC has no power to inject privacy as a “new fundamental right” in the Constitution: To recognise the value of privacy as a constitutional entitlement and interest is not to fashion a new fundamental right by a process of amendment through judicial fiat. Judicial review certainly has the task before it of determining the nature and extent of the freedoms available to each person under the fabric of those constitutional guarantees which are protected.

To Centre's argument that privacy is a common law right: The fact that a right may have been afforded protection at common law does not constitute a bar to the constitutional recognition of the right. Once privacy is held to be an incident of the protection of life, personal liberty and of the liberties guaranteed by the provisions of Part III of the Constitution, the submission that privacy is only a right at common law misses the wood for the trees.

To Centre's argument that privacy need not be made a constitutional right and can be protected through parliamentary statutes: A statutory right can be modified, curtailed or annulled by a simple enactment of the legislature. In other words, statutory rights are subject to the compulsion of legislative majorities. The purpose of infusing a right with a constitutional element is precisely to provide it a sense of immunity from popular opinion and, as its reflection, from legislative annulment.

To Centre's argument that privacy is an “elitist construct”: Every individual in society irrespective of social class or economic status is entitled to the intimacy and autonomy which privacy protects. 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.

Justice Chelameswar

Justice J. Chelameswar: Fundamental rights are the only constitutional firewall to prevent State’s interference with those core freedoms constituting liberty of a human being. The right to privacy is certainly one of the core freedoms which is to be defended. It is part of liberty within the meaning of that expression in Article 21.

Justice Bobde

Justice S.A. Bobde: The first and natural home for a right of privacy is in Article 21 at the very heart of ‘personal liberty’ and life itself. There are innumerable activities which are virtually incapable of being performed at all and in many cases with dignity unless an individual is left alone or is otherwise empowered to ensure his or her privacy. Birth and death are events when privacy is required for ensuring dignity amongst all civilized people.

Justice Nariman

Justice Rohinton F. Nariman on privacy as an elitist construct: A large number of poor people that the Centre (Attorney-General K.K. Venugopal talks about are persons who in today’s completely different and changed world have cell phones, and would come forward to press the fundamental right of privacy, both against the Government and against other private individuals. We see no antipathy whatsoever between the rich and the poor in this context.

On Centre's argument that privacy need not be made a constitutional right and can be protected through parliamentary statutes: Statutory law can be made and also unmade by a simple Parliamentary majority. In short, the ruling party can, at will, do away with any or all of the protections contained in the statutes mentioned hereinabove. Fundamental rights, on the other hand, are contained in the Constitution so that there would be rights that the citizens of this country may enjoy despite the governments that they may elect.

Justice Sapre

Justice A.M. Sapre: Right to privacy is a part of fundamental right of a citizen guaranteed under Part III of the Constitution. However, it is not an absolute right but subject to certain reasonable restrictions.

Justice Kaul

Justice Sanjay Kishan Kaul: Privacy is nothing but a form of dignity, which itself is a subset of liberty. Thus, from the one great tree, there are branches, and from these branches there are sub-branches and leaves. Every one of these leaves are rights, all tracing back to the tree of justice. They are all equally important and of equal need in the great social order. They together form part of that ‘great brooding spirit’. Denial of one of them is the denial of the whole, for these rights, in manner of speaking, fertilise and nurture each other.
The original petitioner in the right to privacy case is a happy man after Thursday’s verdict from the Supreme Court. In 2012, Justice (retd) K.S. Puttaswamy had approached the apex court as petitioner in a case which has seen several landmark judgments. While the Court will still hear the case on the use of Aadhaar, the judgment by the nine-judge bench delivered on Thursday deals with the larger issue of the right to privacy of an individual and its classification as a fundamental right under Article 21 of the Indian Constitution. The Hindu spoke to Justice (retd) Puttaswamy following the verdict.

When delivering the 12th Justice K.T. Desai Memorial Lecture on dissenting judgments in Mumbai last year, Justice Rohinton F. Nariman described the great dissenters on the Supreme Court of the 1950s and 1960s as persons who had chiselled and added meaning to the Constitution’s fundamental rights. They did this, he said, by, more than anything else, appealing to what the former Chief Justice of the U.S. Supreme Court, Charles Evans Hughes, had called the “brooding spirit of the law and the intelligence of a future day.”

Now, on August 24, Justice Nariman and eight of his colleagues, who heard arguments in Justice K.S. Puttaswamy (Retd) v. Union of India, have brought to life the brooding spirit of three such dissents. In doing so, they have not only consigned some of the court’s most regressive judgments to the dust heap of history, but have also delivered a rousing affirmation of the critical place that the right to privacy enjoys in the penumbra of liberties that the Constitution guarantees.

A slew of consequences

Perhaps it ought to be a matter of shame for us that well into our seventh decade as a constitutional democracy, we needed the Supreme Court to tell us whether we possess a fundamental right to privacy or not. But this unanimous verdict delivered through six separate opinions nonetheless marks a watershed moment in our constitutional history. Collectively, the judgments could well herald a new dawn. The verdict’s consequences for civil liberties are potentially enormous. They are likely to have an effect not only on the challenge to the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 — or the Aadhaar Act — that is presently pending but also on a slew of other issues, ranging from matters concerning the collection of private data to invasions that go to the root of our bodily integrity and individual autonomy.

The reference to the nine-judge Bench emanated out of the larger challenge to the validity of the Aadhaar Act. There, during the course of hearings before a three-judge Bench, the Union of India raised a rather alarming plea: it said, in response to arguments that the legislation infringed the right to privacy, that there simply existed no such fundamental guarantee. The government predicated this argument on the basis of two previous judgments of the court, M.P. Sharma v. Satish Chandra (1954) and Kharak Singh v. State of U.P. (1962), rendered respectively by a Bench of eight and six judges, which, it said, had conclusively held that there existed no fundamental right to privacy. Accordingly, it contended that subsequent judgments rendered by Benches of lesser strength which had recognised a fundamental right to privacy were wrongly decided.

Before the nine-judge Bench, in seeking to further its plea, the government made a number of claims, three of which were particularly noteworthy. First, it argued that the Constitution’s framers never intended to incorporate a right to privacy, and therefore, to read such a right as intrinsic to the right to life and personal liberty under Article 21, or to the rights to various freedoms, such as the freedom of expression, guaranteed under Article 19, would amount to a rewriting of the Constitution. Second, it claimed that since privacy, as a concept, was vague, amorphous, and incapable of precise definition, it cannot be elevated to the status of a fundamental right. Third, it contended that privacy was, at best, a purely elitist concern, and that, in a land like India, rife with poverty, it can never be considered as a value worth universally cherishing.

Unanimously rejected

Although the court speaks through six separate opinions, marked by occasionally disparate reasoning, each of the state’s arguments stands unanimously rejected. On the first argument, the court recognises that much of the text of the Constitution, particularly of the rights enlisted in part III, are abstract statements of privileges that, in any event, require interpretation for us to make sense of them. To hold, therefore, that privacy is intrinsic to personal liberty does not tantamount to rewriting the Constitution. On the other hand, it would merely be a natural product of a proper interpretive exercise, where the Constitution is seen as not merely representing a matter of social fact but of being a product of morality, of representing a set of larger ambitions and ideals.

The court recognises that the constitutional guarantees of a right to personal liberty and of a right to freedom of expression, while abstract in their wording, are subsumed by deep moral values central to the very conception of citizenship. What’s more, as Justice Sanjay Kishan Kaul notes in his separate opinion, “the Constitution was not drafted for a specific time period or for a certain generation, it was drafted to stand firm, for eternity.” The notions of “goodness, fairness, equality and dignity can never be satisfactorily defined,” he adds. They were left “abstract for the reason that these rights, by their very nature, are not static.” To disregard privacy as a fundamental right would, therefore, fail to make the best sense of the Constitution as a legitimate basis for government.

The argument that privacy is a purely elitist concern is also found to be unsustainable. Here, Justice Chandrachud, for example, leans on Amartya Sen’s work to show us that liberty and freedom are values that are not only inherent in our constitutional order, but that they also serve a larger instrumental purpose, in creating conditions that best further the cause of equality and social justice.

The idea that privacy is amorphous and vague is similarly made short shrift of. Privacy, as a concept, the court finds, involves not merely a simple right to be left alone, but extends to protecting a number of different values integral to a person’s most intimate choices; it constitutes a bundle of liberties, including, as Justice Nariman points ought, the right to abort a foetus, the rights of same-sex couples, the rights as to procreation, to contraception, and so forth. This holding, in and of itself, should be sufficient to overrule the court’s judgment in Suresh Kumar Koushal v. Naz Foundation, where it upheld the abominable Section 377 of the Indian Penal Code, which, among other things, criminalises homosexual activity.

Ultimately, however, the judgments in Puttaswamy will perhaps be remembered best for their vindication of three glorious dissenting opinions of the past. First, Justice Fazl Ali’s opinion in AK Gopalan v. State of Madras (1950), where he ruled that fundamental rights cannot be slotted into watertight silos that are mutually exclusive, but rather that they have to be read as a collective whole, as rights that give and take meaning from each other. The rights to equality, to freedom of speech and expression, and to life and personal liberty, he therefore held, together stand as a bulwark against the tyrannical powers of the state. This foresight in Justice Fazl Ali’s finding, Justice Nariman writes, “simply takes the breath away.”

Second, the court affirms Justice Subba Rao’s voice of dissent in Kharak Singh, where he held that “nothing is more deleterious to a man’s physical happiness and health than a calculated interference with his privacy.”

Burying ‘ADM Jabalpur’

Finally, though, comes the clincher: a specific, explicit avowal of Justice Khanna’s daring minority opinion in ADM Jabalpur v. Shivkant Shukla. Here, he ruled that the right not to be deprived of our life and personal liberty without the authority of law was not a creature of the Constitution. Such a right inheres in us as human beings. Now, the court in Puttaswamy has held that privacy is one such liberty, which is fundamental to our very existence. The court recognises that each of us has, at the least, a kernel of personality, of identity, that we have a right to preserve. How the court applies this verdict in the future, to different cases, not least the Aadhaar challenge, would no doubt present a significant test. But, for now, it’s time to celebrate, and to commend the Supreme Court for its truly momentous ruling.