In a historic verdict, the nine judge bench of Supreme Court unanimously held right to privacy as an inalienable and fundamental right and an intrinsic part of Article 21, the Right to Life.

The constitutional bench was set up to decide whether privacy is constitutionally protected value. If privacy is to be construed as a protected constitutional value, it will redefine in significant ways our concepts of liberty and entitlements that flow out of its protection.

This matter came up before the court while a bench of three judges of Supreme Court was considering the constitutional validity of Aadhaar card scheme of the union government. The norms for and compilation of demographic biometric data by the government for Aadhaar card scheme was questioned on the ground that it violates right to privacy.

Why was a nine-judge bench constituted to decide the constitutionality of right to privacy?

Previously, two landmark judgments, MP Sharma v. Satish Chandra, which was rendered by a bench of eight judge bench and Kharak Singh v. State of Uttar Pradesh was rendered by six- judge bench held that Constitution does not specifically protect the right to privacy.

The Court also took a note of several decisions in which right to privacy has been held to be constitutionally protected fundamental right. These decisions include Gobind v. State of Madhya Pradesh, R Rajagopal v. State of Tamil Nadu and People Union for Civil Liberties v. Union of India. These subsequent decisions affirmed the existence of constitutionally protected right to privacy.

However, the predicament was that all these judgements were rendered by benches of smaller strength than those in MP Sharma and Kharak Singh. Therefore, right to privacy was not considered as a fundamental right as these two judgements had higher footing over others.

To bring an end to the debate of whether the right to privacy is a fundamental right or not the bench of 11 August 2015 referred the matter to a bench of appropriate strength. On July 18, 2017, the matter was referred to nine -judge bench.

The origins of the right to privacy

The right to privacy was first developed by Warren and Brandeis in the backdrop of dense urbanisation in the United states.

Justice Chandrachud examined the concept of privacy and said, “Privacy postulates the reservation of a private space for the individual, described as the right to be let alone.The concept is founded on the autonomy of the individual.The ability of an individual to make choices lies at the core of the human personality.The body and the mind are inseparable elements of the human personality. The integrity of the body and the sanctity of the mind can exist on the foundation that each individual possesses an inalienable ability and right to preserve a private space in which the human personality can develop. Without the ability to make choices, the inviolability of the personality would be in doubt. Recognising a zone of privacy is but an acknowledgement that each individual must be entitled to chart and pursue the course of development of personality. Hence, privacy is a postulate of human dignity itself.”

The nine-judge bench overturned the ruling of the eight-judge bench that refused to recognise privacy as a fundamental right.

The court categorically held that “Right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as part of the freedoms guaranteed by Part III.”

The ruling recognises privacy as the constitutional core of human dignity. Privacy has both normative and descriptive value. At normative level, privacy sub-serves those eternal values upon which the guarantees of life, liberty and freedom are founded. At a descriptive level, privacy postulates a bundle of entitlements and interests which lie at the foundation of ordered liberty.

Chandrachud said, “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 right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public areas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being.”

It is very pertinent to note here that right to privacy is not an absolute right. Like every other right, this right also has certain restrictions.

The Law Minister, Shankar Prasad asserted that Right to privacy is not an absolute right and is subjected to reasonable restrictions which the state is entitled to impose on the basis of social, moral and compelling private interest in accordance with the law. This was held by Justice Abhay Mohan Sapre.

How does this judgment impact the life of an individual?

What is important to understand here is that through this judgment the only theoretical right to privacy has been granted. At this moment, this decision will have no impact on your daily life. This judgement has opened Pandora’s box and will have an impact on various other judgments.

Right to Privacy and validity of Aadhaar

You are not supposed to throw your Aadhaar card post this ruling. This judgment does not invalidate the Aadhaar scheme. The validity of Aadhaar will be examined in a separate case. This ruling will certainly support the anti-Aadhaar arguments as the government cannot act under the grab that right to privacy is not a fundamental right.

Right to Privacy and LGBT rights

The Court in Suresh Kumar Koushal v. Naz Foundation had struck down an order of Delhi High Court which had decriminalised homosexuality (Section 377).

The court’s observation in this ruling makes it very difficult to uphold Suresh Kumar’s case. The court said, “Their rights are not “so-called” but are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination.”

This judgment paves the way for homosexuality to be decriminalised but we will still have to wait for the ruling in the appropriate case.

Right to privacy and data protection

With going digital, the another crucial aspect of privacy is data protection. Since the right to privacy has been declared as a fundamental right, a new set of rules need to be introduced to impose strict liability on agencies who collect data on people’s behalf. Detailed standards of how this data will be used need to be established.

Right to privacy and euthanasia

Justice Chelameswar said on euthanasia, “An individual’s rights to refuse life prolonging medical treatment or terminate his life is another freedom which falls within the zone of the right of privacy.”

Since the Right to Privacy is now a Fundamental Right, Justice Chelameshwar’s words could well support the arguments for euthanasia.

While talking about abortion, he says, “A woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy.”

Since Right to privacy is inclusive of informational privacy, it is the need of hour to have strict laws which protect our personal information which we give to websites or any governmental agency.

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