The Supreme Court has been hearing the Aadhaar case in the background of its recent judgment on Right to Privacy. The competing interests of Right to Information and Right to Privacy is also in the gamut of the debate on the issue.
The historical background of the evaluation of Right to Privacy needs to be studied. This concept and its ramification are results of judicial ingenuity. A recent study of Right to Privacy, in the historical perspective, goes on to say: In MP Sharma V. Satish Chandra, an eight-judge Bench of the Supreme Court, while dealing with the validity of a search and seizure under Article 20(3), had observed that there was no fundamental right to privacy, akin to the Fourth Amendment, in our Constitution.
In Kharak Singh V. State of UP, a six-Judge Bench held that domiciliary visits by the police without the authority of a law was violative of “personal liberty” under Article 21, relying on foreign decisions which upheld the right to privacy.
However, a majority of the judges, while examining the validity of other Regulations under Article 19, observed that the right to privacy is not a guaranteed right under the Constitution. It is pertinent to note that at the time MP Sharma and Kharak Singh was decided, the view in AK Gopalan that fundamental rights were different and distinct prevailed, which was subsequently overruled in RC Cooper.
Subsequently, a three-judge Bench, in Gobind V. State of Madhya Pradesh, upheld the right of a person to be let alone, but stopped short of holding the right of privacy to be a fundamental right.
In Maneka Gandhi, it was held that in view of the decision in RC Cooper, the minority view in Kharak Singh must be regarded as correct, and the majority view must be held to have been overruled.
Various subsequent decisions of two-judge Benches held the right to privacy to be part of the right to life and personal liberty under Article 21 relying on Kharak Singh and Gobind. This right was never perceived as an absolute one; and if there were conflicts between fundamental rights of the two parties, that right which advances public morality would prevail.
It could also be restricted for prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others. In fact, in Gobind itself, the court held that the right would not be absolute but must be subject to reasonable restrictions so that a provision for domiciliary visits would not be unreasonable if confined to habitual criminals or persons having criminal antecedents. Nor would it be violated by posting policemen immediately outside the jail.
Subsequently, in view of the conflict between the decisions in MP Sharma and Kharak Singh with subsequent decisions of the court, the question of whether the right to privacy is a fundamental right was referred to a nine-judge Bench. In a landmark judgment, this Bench held as follows: (i)The decision of the eight-judge Bench in MP Sharma V.
Satish Chandra, which holds that the right to privacy is not protected by the Constitution stands overruled; (ii) The decision of six judges in Kharak Singh V. State of Uttar Pradesh, to the extent that it holds that the right to privacy is not protected by the Constitution stands overruled; (iii) The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution. (iv) Decisions subsequent to Kharak Singh case which have enunciated that right to privacy is protected under Art.21 of the Constitution and as part of the freedoms guaranteed by Part III of the Constitution lay down the correct position of law.
In this background, the Supreme Court deliberated on the contours of “Right to Privacy”. A critique of the development of law pithily puts it thus: All nine judges unanimously held that the right to privacy was an essential element of dignity and liberty; and despite holding that the right was not absolute, couched the same in expensive terms as is beautifully encapsulated in the following passage from the opinion of Justice DY Chandrachud (speaking for four out of the nine Judges): “Privacy lies across the spectrum of protected freedoms. The guarantee of equality is a guarantee against arbitrary state action. It prevents the state from discriminating between individuals.
The destruction by the state of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary state action. Privacy of the body entitles an individual to the integrity of the physical aspects of personhood. The intersection between one’s mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self-determination. When these guarantees intersect with gender, they create a private space which protects all those elements which are crucial to gender identity.
The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual. Above all, the privacy of the individual recognizes an inviolable right to determine how freedom shall be exercised.
The freedoms under Article 19 can be fulfilled where the individual is entitled to decide upon his or her preferences. Read in conjunction with Article 21, liberty enables the individual to have choice of preferences on various facets of life including what and how one will eat, the way one will dress, the faith one will espouse and a myriad other matters on which autonomy and self-determination require a choice to be made within the privacy of the mind.
The constitutional right to the freedom of religion under Article 25 has implicit within it the ability to choose a faith and the freedom to express or not express those choices to the world.
These are some illustrations of the manner in which privacy facilitates freedom and in intrinsic to the exercise of liberty. The Constitution does not contain a separate article telling us that privacy has been declared to be a fundamental right.
Nor have we tagged the provisions of Part III with an alpha suffixed right of privacy: this is not an act of judicial redrafting. Dignity cannot exist without privacy.
Both reside within the inalienable values of life, liberty and freedom which the Constitution has recognised.”
A critical study of Right to Privacy would be forthcoming from the Aadhaar judgment. As has been rightly observed: The Right to Privacy judgment emanated from a reference by the Bench which was seized of the challenge to the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 and the notifications which mandate Aadhaar linking for various purposes.
The challenge is pending adjudication before the court. The Bench has already laid down the Constitutional framework and contours of the right. It remains to be seen as to how the Supreme Court moulds these concepts of privacy in this context.
In the ever-increasing invasion of the state into the right to privacy, it has become necessary for the entire community to have seminars on the concept growth and implementation of the concept and the law relating to Right to Privacy.
(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor, a former President of Orissa High Court Bar Association and a former Advocate General of Odisha. jayantdas@hotmail.com)