The historic judgment by the Supreme Court declaring right to privacy as a fundamental right might pave the way for a litigation explosion. Under the new regime even if true ‘salacious’ details of celebrities and other big personalities are published, they will have the right to sue publications and individuals for violating their right to privacy.
By linking individual dignity with privacy, the apex court said, “Privacy protects the individual from the searching glare of publicity in matters which are personal to his or her life.”
Justice DY Chandrachud, who made this point, explained that privacy attaches to the individual irrespective of whether he is in his intimate, private or public domain. His judgment was supported by CJI JS Khehar, Justices RK Agrawal and S Abdul Nazeer.
Justice SK Kaul, who supported Justice Chandrachud, said, “There is no justification for making all truthful information available to the public. The public does not have an interest in knowing all information that is true. Which celebrity has had sexual relationships with whom might be of interest to the public but has no element of public interest and may therefore be a breach of privacy. Thus, truthful information that breaches privacy may also require protection.”
He accepted this may give rise to a flurry of litigations but added that this could never be a cause for not recognising privacy as a fundamental right.
Justice SA Bobde, in his separate decision, said, “The scope and ambit of a constitutional protection of privacy can only be revealed to us on a case by case basis.” Justice J Chelameswar, in his concurring but separate opinion, laid down possible areas that could give rise to legal proceedings over privacy rights.
These include telephone tappings, internet hacking by State, hacking of personal data, and collection of biometric data by Union of India under the Aadhaar scheme.
Justice Kaul further pointed out that this judgement will give rise to conflict between fundamental rights of different section of the society. He said an effort must be made by courts to balance right to privacy with freedom of the Press and media, both being fundamental to a democratic society. Privacy at home, according to him, will be another aspect that will bring conflict relating to a personal choice about family, marriage, procreation, sexual orientation, and the courts will have to consider them.
Justice Chandrachud raised the other issue of balancing data regulation on internet with individual privacy. “Privacy concerns are seriously an issue in the age of information.” Modern day apps and online transactions profile customer preferences, without users consenting to the same, he said, adding, “We commend to the Union Government the need to examine and put in place a robust regime for data protection. The creation of such a regime requires careful and sensitive balance between individual interest and legitimate concern of the State.”