Apex court’s ruling on privacy will impact the Government’s plans and policies, past decisions of both the judiciary and the executive, the working of institutions and individual behaviour in society
We get a rare privilege to watch history unfold before our eyes. But the privacy judgement handed down by a nine-judge Bench of the Supreme Court is one that will be scrutinised and interpreted for decades to come.
However, it is safe to say that the learned judges have, in five separate judgements, come down on the side of the angels by unanimously declaring that privacy is a fundamental right which is protected by Article 21 Part III of the Indian Constitution.
To make their position crystal clear, the judges also did a considerable amount of judicial cleaning and specifically over-ruled two earlier judgments — MP Sharma vs Satish Chandra in 1954 and Kharak Singh vs State of Uttar Pradesh in 1962 — to the extent that they held privacy was not a fundamental right. The court also pointedly over-ruled the infamous Emergency-era Habeas Corpus case, ADM Jabalpur vs Shivkant Shukla.
The Government, for reasons best known to itself, took extreme positions during the hearing and even argued that privacy was a concept foreign to India and one enjoyed only by the affluent classes.
This was turned down sternly by Justice DY Chandrachud, who wrote the majority judgement, saying, “The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised through history to wreak the most egregious violations of human rights.”
The judges also quoted extensively from deliberations of the Constituent Assembly to refute the Attorney General’s arguments that the right to privacy had been left out after much discussion at the time.
An alternative stand by the Attorney General, that privacy is a common law but not enshrined as a fundamental right, was also firmly rejected. Justice Chandrachud noted, “Elevating a right to the position of a constitutionally protected right places it beyond the pale of legislative majorities.”
The bench also turned down the argument that privacy is a concept that cannot be defined but left it open for courts of the future to decide on its limits.
The apex court’s judgement will serve as a guideline in many cases that are scheduled to come up in the near future — most importantly, the Aadhaar case.
The observations in the judgement now mean that criminalising consensual homosexual acts will be unconstitutional. Beyond all that, the court also opened the possibility that the Suresh Kumar Kaushal vs Naz Foundation case, which upheld Section 377 of the Indian Penal Code (IPC), will be looked at again.
The judgement stated that “a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders (as observed in the judgement of this court) is not a sustainable basis to deny the right to privacy”. The privacy case was heard in record time and will surely be a landmark for a very long time to come.
The contours of privacy will extend to various spheres like choice of food and drink.
A patient’s right to refuse treatment is also recognised by some judgements as coming within the protection of privacy rights. Privacy has been held to extend from the cradle to the grave. Breaches of privacy, even by Governments, must bear justification that will withstand judicial scrutiny.
Beyond that, the apex court also pointed out that data protection is very much part of a citizen’s right to privacy. It, however, did not go into the details as the Government announced during the hearing that a committee headed by retired judge BN Srikrishna will go into the subject.
About half of the 547-page judgement has been written by Justice Chandrachud himself and Chief Justice JS Khehar and Justices RK Agrawal, and S Abdul Nazeer. He has recognised that “the right to privacy is an element of human dignity”.
Perhaps even more crucially, Justice Chandrachud (joined by all the others on the Bench) explicitly over-ruled the court’s earlier judgement in ADM Jabalpur vs Shivkant Shukla, to which his father Justice YV Chandrachud was a party.
The judgement is also remarkable for its stinging criticism of the court’s view in Suresh Koushal vs Naz Foundation that had upheld the validity of Section 377 of the IPC. However, it refrained from explicitly overruling the judgement as the challenge to Section 377 is already pending before a different Bench.
Justice Rohinton Nariman has rejected the Union’s argument that the right to privacy is not a fundamental right in a developing country, where people do not have access to food, shelter and other resources.
He held that the right to privacy is available both to the rich and the poor alike. He then went on to hold “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. The recognition of such right in the fundamental rights chapter of the Constitution is only a recognition that such right exists notwithstanding the shifting sands of majority Governments”.
This judgement is probably the second most significant order in the Indian constitutional history after the 13-judge Bench judgement of Kesavananda Bharati vs State of Kerala in 1973, which gave us the basic structure doctrine. Ninety-one-year-old Justice Puttaswamy will, as a litigant, have contributed more to citizens’ freedom than all his efforts as a judge.
The ruling should lead to a redefining of the contract between the citizen and the state and the relationship between the individual on the one side and the Government, society, and other collective entities on the other.
It has empowered the citizens by upholding his right to be left alone, by specifically restraining the Government from intruding into his personal space and by even obligating it to protect the individual’s privacy. Such assaults have been shrinking and threatening the citizen’s freedoms and choices.
The ruling will, therefore, have a major impact on Government plans and public policies, past decisions of both the judiciary and the executive, the working of institutions like the media and even individual behaviour in society.
like all other rights, the right to privacy is subject to reasonable restrictions. Its scope and limits will now be tested in the Aadhaar case, which is before the court.
The issue of privacy actually arose from that case. The Government had maintained, during the hearings in the Aadhaar case, that privacy is not a fundamental right and is an imported and elitist idea. It has done well to accept the ruling now and should respect it in letter and spirit.
(The writer is a retired Professor in international trade)