The Nine Judge Constitutional bench of the Honorable Supreme Court unanimously (9:0) has ruled today that Right to Privacy is a Fundamental Right as guaranteed by Constitution of India. It overruled the previous precedents in the matters of M.P Sharma / Kharak Singh and held that the right to privacy is protected as intrinsic part of right to life and liberty. The Supreme Court bench was composed of Chief Justice J S Khehar and Justices J Chelameswar, Rohinton Nariman, S A Bobde, R.K. Agrawal, D Y Chandrachud, A M Sapre, Sanjay Kishan Kaul and S Abdul Nazeer.
Right to privacy time and again have been considered by Honorable Supreme Court to be enshrined in Article 21 of our Constitution and with the advancement of technology and increased social media use, it has been rightly re-considered by the Hononrable Supreme Court and upheld. The matter first time arose in 2012 when UPA government launched Aadhaar project and the matter was referred to a 5 judges bench but it could not go into the question as previous precedents had 8 and 6 judges bench.
Though, it is surely a setback to Government of India, who has been going the other way, mainly with the collection of bio-metric information of the Citizens of India for Aadhaar IDs and in many cases, it has been reportedly misused and leaked online in cases like JIO. Soon, Supreme Court will test the Aadhaar project in the light of this judgment.
Earlier this year, Ministry of Electronics and Information Technology (MEITY) has already constituted a committee for deliberating on Data Protection framework under the Chairmanship of Justice B.N. Srikrishna to identify the key data protection issues in India and methods to address them. Read More
Even the sale of database / contacts / WHOIS should be viewed very seriously, which results in spamming of our Email and SMS inboxes on hourly basis. Lastly, WHOIS protection for .IN Domain Names which was never available, needs to be reconsidered by NIXI, .IN Registry !
Complete Judgment can be downloaded here from the website of SupremeCourtofIndia.nic.in.
This judgment has been divided into sections to facilitate analysis. They are :
A The reference
B Decision in M P Sharma
C Decision in Kharak Singh
D Gopalan doctrine: fundamental rights as isolated silos
E Cooper and Maneka: Interrelationship between rights
F Origins of privacy
G Natural and inalienable rights
H Evolution of the privacy doctrine in India
I The Indian Constitution
• Jurisprudence on dignity
• Fundamental Rights cases
• No waiver of Fundamental Rights
• Privacy as intrinsic to freedom and liberty
• Discordant Notes : (i) ADM Jabalpur
(ii) Suresh Koushal
J India’s commitments under International law
K Comparative law on privacy
(i) UK decisions
(ii) US Supreme Court decisions
(iii) Constitutional right to privacy in South Africa
(iv) Constitutional right to privacy in Canada
(v) Privacy under the European Convention on Human Rights and
the European Charter
(vi) Decisions of the Inter-American Court of Human Rights
L Criticisms of the privacy doctrine
a Thomson’s Reductionism
b Posner’s Economic critique
c Bork’s critique
d Feminist critique
M Constituent Assembly and privacy: limits of originalist interpretation
N Is the statutory protection to privacy reason to deny a constitutional right?
O Not an elitist construct
P Not just a common law right
Q Substantive Due Process
R Essential nature of privacy
S Informational privacy
77. The right of privacy is a fundamental right. It is a right which protects the inner sphere of the individual from interference from both State, and non-State actors and allows the individuals to make autonomous life choices.
78. It was rightly expressed on behalf of the petitioners that the technology has made it possible to enter a citizen’s house without knocking at his/her door and this is equally possible both by the State and non-State actors. It is an individual’s choice as to who enters his house, how he lives and in what relationship. The privacy of the home must protect the family, marriage, procreation and sexual orientation which are all important aspects of dignity.
79. If the individual permits someone to enter the house it does not mean that others can enter the house. The only check and balance is that it should not harm the other individual or affect his or her rights. This applies both to the physical form and to technology. In an era where there are wide, varied, social and cultural norms and more so in a country like ours which prides itself on its diversity, privacy is one of the most important rights to be protected both against State and non-State actors and be recognized as a fundamental right. How it thereafter works out in its inter-play with other fundamental rights and when such restrictions would become necessary would depend on the factual matrix of each case. That it may give rise to more litigation can hardly be the reason not to recognize this important, natural, primordial right as a fundamental right.
80. There are two aspects of the opinion of Dr. D.Y. Chandrachud,J., one of which is common to the opinion of Rohinton F. Nariman,J., needing specific mention. While considering the evolution of Constitutional jurisprudence on the right of privacy he has referred to the judgment in Suresh Kumar Koushal Vs. Naz Foundation.32 In the challenge laid to Section 377 of the Indian Penal Code before the Delhi High Court, one of the grounds of challenge was that the said provision amounted to an infringement of the right to dignity and privacy. The Delhi High Court, inter alia, observed that the right to live with dignity and the right of privacy both are recognized as dimensions of Article 21 of the Constitution of India. The view of the High Court, however did not find 32 (2014) 1 SCC 1 favour with the Supreme Court and it was observed that only a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders and thus, there cannot be any basis for declaring the Section ultra virus of provisions of Articles 14, 15 and 21 of the Constitution. The matter did not rest at this, as the issue of privacy and dignity discussed by the High Court was also observed upon. The sexual orientation even within the four walls of the house thus became an aspect of debate. I am in agreement with the view of Dr. D.Y. Chandrachud, J., who in paragraphs 123 & 124 of his judgment, states that the right of privacy cannot be denied, even if there is a miniscule fraction of the population which is affected. The majoritarian concept does not apply to Constitutional rights and the Courts are often called up on to take what may be categorized as a non-majoritarian view, in the check and balance of power envisaged under the Constitution of India. Ones sexual orientation is undoubtedly an attribute of privacy. The observations made in Mosley vs. News Group Papers Ltd. 33, in a broader concept may be usefully referred to: 33 (2008) EWHS 1777 (QB)
“130… It is not simply a matter of personal privacy versus the public interest. The modern perception is that there is a public interest in respecting personal privacy. It is thus a question of taking account of conflicting public interest considerations and evaluating them according to increasingly well recognized criteria.
131. When the courts identify an infringement of a person’s Article 8 rights, and in particular in the context of his freedom to conduct his sex life and personal relationships as he wishes, it is right to afford a remedy and to vindicate that right. The only permitted exception is where there is a countervailing public interest which in the particular circumstances is strong enough to outweigh it; that is to say, because one at least of the established “limiting principles” comes into play. Was it necessary and proportionate for the intrusion to take place, for example, in order to expose illegal activity or to prevent the public from being significantly misled by public claims hitherto made by the individual concerned (as with Naomi Campbell’s public denials of drug-taking)? Or was it necessary because the information, in the words of the Strasbourg court in Von Hannover at (60) and (76), would make a contribution to “a debate of general interest”? That is, of course, a very high test, it is yet to be determined how far that doctrine will be taken in the courts of this jurisdiction in relation to photography in public places. If taken literally, it would mean a very significant change in what is permitted. It would have a profound effect on the tabloid and celebrity culture to which we have become accustomed in recent years.”
81. It is not necessary to delve into this issue further, other than in the context of privacy as that would be an issue to be debated before the appropriate Bench, the matter having been referred to a larger Bench.
82. The second aspect is the discussion in respect of the majority judgment in the case of ADM Jabalpur vs. Shivkant Shukla in both the opinions. In I.R. Coelho Vs. The State of Tamil Nadu it was observed that the ADM Jabalpur case has been impliedly overruled and that the supervening event was the 44th Amendment to the Constitution, amending Article 359 of the Constitution. I fully agree with the view expressly overruling the ADM Jabalpur case which was an aberration in the constitutional jurisprudence of our country and the desirability of burying the majority opinion ten fathom deep, with no chance of resurrection.
83. Let the right of privacy, an inherent right, be unequivocally a fundamental right embedded in part-III of the Constitution of India, but subject to the restrictions specified, relatable to that part. This is the call of today. The old order changeth yielding place to new.
(SANJAY KISHAN KAUL)
August 24 , 2017