A nine-judge constitution bench headed by Chief Justice J S Khehar had on August 2 reserved its verdict on the right to privacy being a fundamental right. Photograph:( Reuters )
In the MP Sharma case, it was observed by the court that privacy is not a right guaranteed by the Indian Constitution. In the present judgment, the Supreme Court overruled that stance, confirming privacy to be a right guaranteed by the Indian Constitution.
Article 21 of the Indian Constitution talks about ‘Right to life and Personal Liberty’, which is a sub-head of one of the six fundamental rights. The court affirmed that ‘personal liberty’ is a guarantee against invasion into the sanctity of a person’s home or an intrusion into personal security.
Life and personal liberty are inalienable rights. These are rights which are inseparable from a dignified human existence.
While life and personal liberty are not creations of the Constitution, these rights are recognised by the Constitution. Thus, privacy is a constitutionally protected right which emerges, primarily, from the guarantee of life and personal liberty in Article 21 of the Constitution.
The recognistion of the Right to Privacy is not an amendment in Constitution and, thus, the court is not interfering in the role of the Parliament to amend the Constitution.
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 meaning of the Constitution cannot be frozen on the perspectives present when it was adopted. Hence, the interpretation of the Constitution must be resilient and flexible to allow future generations to adapt.
Although ‘Privacy’ is not an absolute right, an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. There should be three aspects present when privacy is invaded- 1) Legality 2) Need 3) Proportionality
Privacy has both positive and negative content. The negative content restrains the state from committing an intrusion upon the life and personal liberty of a citizen. The positive content imposes an obligation on the state to take all necessary measures to protect the privacy of the individual.
Informational privacy is a part of the right to privacy. The Union Government thus need to examine and put into place a robust regime for data protection.
How Right to Privacy is a Fundamental Right:
There are currently 6 fundamental rights, earlier which used to be 7. Right to Property was removed by the 44th Constitution Amendment Act, 1978
1) Right to equality (Article 14-18)
2) Right to freedom (Article 19-22)
3) Right against exploitation (Article 23-24)
4) Right to freedom of religion (Articles 25-28)
5) Cultural & educational rights (Articles 29-30)
6) Right to constitutional remedies (Article 32).
In each of the fundamental rights, there is more than one article of the Constitution involved which when combined together, guarantees a specific right to the citizens of India.
The Supreme Court identifies the Right to Privacy as a part of article 21 (‘Protection of Life and Personal Liberty’) which says: ‘No person shall be deprived of his life or personal liberty except according to procedure established by law.’
Thus, recognising ‘Right to Privacy’ as an integral aspect of personal liberty, the Court has taken the decision of providing a status of Fundamental Right.
Major Impact of the Decision:
1) Government’s decision on the biometric data-enabled Aadhaar ID for citizens.
2) Article 377 of IPC which deals with Homosexuality as the court’s verdict says ‘Privacy includes at its core…. the preservation sexual orientation’
3) Section 66A of the IT Act which states that the State can take action against an individual for sharing his thoughts on a social platform. Earlier this particular stand was overruled in 2015 by the Supreme Court.
4) DNA Profiling Bill, 2017: Bodily right such as the DNA of an individual can be profiled without his consent.