Supreme Court of India has held that right to privacy is a Fundamental Right and it is protected under Article 21 of the Constitution of India. In its 547-page judgment that declares privacy to be a fundamental right, the Supreme Court has overruled verdicts given in the M.P. Sharma case in 1958 and the Kharak Singh case in 1961, both of which said that the right to privacy is not protected under the Indian constitution.
Reading out the operative portion of the judgment, Chief Justice J S Khehar said “few of us have written different orders”. The bench comprised Chief Justice Khehar and Justices J. Chelameswar, S.A. Bobde, R.K. Agrawal, Rohinton Nariman, A.M. Sapre, D.Y. Chandrachud, Sanjay Kishan Kaul and S. Abdul Nazeer.
The judgment also included a two-page final order, which states that MP Sharma and Kharak Singh are overruled, and the right to privacy is fundamental.
However these are our conclusion: Petitions are disposed of in following terms:”
1.The decision in M P Sharma that privacy is not a fundamental right stands overruled.
2.The decision in Kharak Singh that privacy is not a fundamental right stands overruled.
3.Right to privacy is protected as intrinsic part of right to life and liberty.
- All decisions subsequent to Kharak Singh make the position clear and will hold the field.
ATTORNEY–AT–LAW WHO ARGUED….
A battery of senior lawyers, including Attorney General KK Venugopal, Additional Solicitor General Tushar Mehta, Arvind Datar, Kapil Sibal, Gopal Subramaniam, Shayam Divan, Anand Grover, CA Sundaram and Rakesh Dwivedi, had advanced arguments in favour and against the inclusion of the right to privacy as a fundamental right.
Petitioners’ Arguments
Legal eagles Gopal Subramanium, Soli Sorabjee and Shyam Divan appearing for the petitioners strongly argued for declaration of ‘Right To Privacy’ as a fundamental right.
Subramanium contended that privacy is embedded in all processes of human life and liberty. “All human choices are an exercise of liberty. And they all presuppose privacy”, he argued.
The petitioners, former Karnataka high court judge Justice K.S. Puttaswamy and others, had contended that the biometric data and iris scan that was being collected for issuing Aadhaar cards violated the citizen’s fundamental right to privacy as their personal data was not being protected and was vulnerable to exposure and misuse.
The petitioners had argued that right to life under Article 21 of the constitution would include the right to privacy though it is not expressly stated in the constitution. It was also argued that privacy is a broader concept and data sharing is only one aspect of privacy. Subramanium had argued, “Privacy is about the freedom of thought, conscience and individual autonomy and none of the fundamental rights can be exercised without assuming certain sense of privacy”.
Sorabjee had added that “Privacy is not explicitly laid out in the constitution. But that does not mean the right does not exist as it has be deduced from the constitution”. He also argued that the freedom of the press has been derived from Article 19 and similarly, the right to privacy can be derived broadly from Article 21.
In the age of the internet, a person should have control on how much he should put forward and not be compelled. There hardly exists any data protection in the digital age, inevitably leading to a compromise in privacy.
During the course of arguments, it was brought to the court’s attention that Union finance minister Arun Jaitley, during discussions in the Rajya Sabha on the Aadhaar Bill in March 2016, had said that the right to privacy was a fundamental right, but now the government is claiming the opposite.
Subramanium had said, “Privacy is a broader concept and data sharing is only one aspect of privacy. Privacy is about the freedom of thought, conscience, and individual autonomy and none of the fundamental rights can be exercised without assuming certain sense of privacy”.
Attorney general’s arguments for Centre
On behalf of the Centre, attorney general K.K. Venugopal, however, had brought to the notice of the court that an eight-judge bench in 1954 and a six-judge bench in 1962 had categorically ruled that the right to privacy was not a fundamental right. He also said that such a right had not been expressly provided in the constitution, though under the British Common Law, the right to privacy was a fundamental right. He maintained that the right to privacy is not a fundamental right to be claimed either under Article 21 (right to life), Article 14 (right to equality) or Article 19 (freedom of speech and expression).
He claimed that privacy is too vague to qualify as a fundamental right. He had said that there is no right to privacy and that privacy is only a sociological notion, not a legal concept. “Every aspect of it does not qualify as a fundamental right, as privacy also includes the subtext of liberty. No need to recognise privacy as an independent right. Defining the contours of privacy is not possible. Privacy is as good a notion as pursuit of happiness,” he had said.
Venugopal said, “If privacy were to be declared a fundamental right, then it can be a qualified right.” He asked the judges to state that only some aspects of privacy are fundamental, not all, and it is a limited fundamental right that can be taken away in legitimate state interest. He said that in developing countries, something as amorphous as privacy could not be a fundamental right, that other fundamental rights such as food, clothing, shelter etc. override the right to privacy.
The attorney general also made clear that the right to privacy cannot fall in the bracket of fundamental rights as there are binding decisions of larger benches that it is only a common law right evolved through judicial pronouncements.
“The government said Aadhaar would not fall under the right to privacy. We can’t say every encroachment of privacy is to be elevated to fundamental right. The claim to liberty has to subordinate itself to right to life of others,” he said. On Aadhaar, he referred to the World Bank’s statement that an identity system should be followed by every developing country.
Origins of Privacy
The Greek philosopher Aristotle spoke of a division between the public sphere of political affairs (which he termed the polis) and the personal sphere of human life (termed oikos). This dichotomy may provide an early recognition of “a confidential zone on behalf of the citizen” Aristotle’s distinction between the public and private realms can be regarded as providing a basis for restricting governmental authority to activities falling within the public realm.
William Blackstone in his Commentaries on the Laws of England (1765) spoke about this distinction while dividing wrongs into private wrongs and public wrongs. Public wrongs constitute a breach of general and public rights affecting the whole community and according to him, are called crimes and misdemeanours.
Natural And Inalienable Rights
Privacy is a concomitant of the right of the individual to exercise control over his or her personality. It finds an origin in the notion that there are certain rights which are natural to or inherent in a human being. Natural rights are inalienable because they are inseparable from the human personality.
Evolution Of The Privacy Doctrine In India
Among the early decisions of this Court following Kharak Singh was R M Malkani v State of Maharashtra.
In that case, this Court held that Section 25 of the Indian Telegraph Act, 1885 was not violated because :
“Where a person talking on the telephone allows another person to record it or to hear it, it cannot be said that the other person who is allowed to do so is damaging, removing, tampering, touching machinery battery line or post for intercepting or acquainting himself with the contents of any message. There was no element of coercion or compulsion in attaching the tape recorder to the telephone.”
India’s Commitments Under International Law
The recognition of privacy as a fundamental constitutional value is part of India’s commitment to a global human rights regime. Article 51 of the Constitution, which forms part of the Directive Principles, requires the State to endeavour to “foster respect for international law and treaty obligations in the dealings of organised peoples with one another”.
Article 12 of the Universal Declaration of Human Rights, recognises the right to privacy:
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”
Similarly, the International Covenant on Civil and Political Rights was adopted on 16 December 1979 and came into effect on 23 March 1976. India ratified it on 11 December 1977. Article 17 of the ICCPR provides thus: “The obligations imposed by this article require the State to adopt legislative and other measures to give effect to the prohibition against such interferences and attacks as well as to the protection of the right.”
The Protection of Human Rights Act, 1993 which has been enacted by Parliament refers to the ICCPR as a human rights instrument. Section 2(1)(d) defines human rights: Article 51(c) of the Indian Constitution PART J 127 “human rights” means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.”
Conclusions of Justices J.S. Khehar, R.K. Agrawal, D.Y. Chandrachud, S. Abdul Nazeer
- The judgment in M P Sharma holds essentially that in the absence of a provision similar to the Fourth Amendment to the US Constitution, the right to privacy cannot be read into the provisions of Article 20 (3) of the Indian Constitution. The judgment does not specifically adjudicate on whether a right to privacy would arise from any of the other provisions of the rights guaranteed by Part III including Article 21 and Article19.
The observation that privacy is not a right guaranteed by the Indian Constitution is not reflective of the correct position. M P Sharma is overruled to the extent to which it indicates to the contrary.
- Kharak Singh has correctly held that the content of the expression ‘life’ under Article 21 means not merely the right to a person’s “animal existence” and that the expression ‘personal liberty’ is a guarantee against invasion into the sanctity of a person’s home or an intrusion into personal security. Kharak Singh also correctly laid down that the dignity of the individual must lend content to the meaning of ‘personal liberty’.
The first part of the decision in Kharak Singh which invalidated domiciliary visits at night on the ground that they violated ordered liberty is an implicit recognition of the right to privacy. The second part of the decision, however, which holds that the right to privacy is not a guaranteed right under our Constitution, is not reflective of the correct position. Similarly, Kharak Singh’s reliance upon the decision of the majority in Gopalan is not reflective of the correct position in view of the decisions in Cooper and in Maneka. Kharak Singh to the extent that it holds that the right to privacy is not protected under the Indian Constitution is overruled.
3 (A) Life and personal liberty are inalienable rights. These are rights which are inseparable from a dignified human existence. The dignity of the individual, equality between human beings and the quest for liberty are the foundational pillars of the Indian Constitution;
(B) Life and personal liberty are not creations of the Constitution. These rights are recognised by the Constitution as inhering in each individual as an intrinsic and inseparable part of the human element which dwells within;
(C) Privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution. Elements of privacy also arise in varying contexts from the other facets of freedom and dignity recognised and guaranteed by the fundamental rights contained in Part III;
(D) Judicial recognition of the existence of a constitutional right of privacy is not an exercise in the nature of amending the Constitution nor is the Court embarking on a constitutional function of that nature which is entrusted to Parliament;
(E) Privacy is the constitutional core of human dignity. Privacy has both a normative and descriptive function. At a 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;
(F)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 a 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;
(G) This Court has not embarked upon an exhaustive enumeration or a catalogue of entitlements or interests comprised in the right to privacy. The Constitution must evolve with the felt necessities of time to meet the challenges thrown up in a democratic order governed by the rule of law. The meaning of the Constitution cannot be frozen on the perspectives present when it was adopted. Technological change has given rise to concerns which were not present seven decades ago and the rapid growth of technology may render obsolescent many notions of the present. Hence the interpretation of the Constitution must be resilient and flexible to allow future generations to adapt its content bearing in mind its basic or essential features;
(H) Like other rights which form part of the fundamental freedoms protected by Part III, including the right to life and personal liberty under Article 21, privacy is not an absolute right. A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. In the context of Article 21 an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. The law must also be valid with reference to the encroachment on life and personal liberty under Article 21. An invasion of life or personal liberty must meet the three-fold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate state aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them; and
(I) Privacy has both positive and negative content. The negative content restrains the state from committing an intrusion upon the life and personal liberty of a citizen. Its positive content imposes an obligation on the state to take all necessary measures to protect the privacy of the individual.
5 Informational privacy is a facet of the right to privacy. The dangers to privacy in an age of information can originate not only from the state but from non-state actors as well. We commend to the Union Government the need to examine and put into place a robust regime for data protection. The creation of such a regime requires a careful and sensitive balance between individual interests and legitimate concerns of the state.
The legitimate aims of the state would include for instance protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits. These are matters of policy to be considered by the Union government while designing a carefully structured regime for the protection of the data.