Privacy is a fundamental right, says Supreme Court's historic ruling

A nine-judge Constitution Bench of the Supreme Court on Thursday ruled that the Right to Privacy of a citizen is protected by the Constitution and it is a fundamental right. The apex court ruled that this right is part of the right to life and liberty guaranteed by Article 21 and belongs to the freedom guaranteed in the fundamental rights chapter of the Constitution.

The historic decision was unanimous, though the nine judges wrote six separate but concurring judgments. Four judges, including Chief Justice J S Khehar, wrote one common judgment, while five others wrote their own separate judgments. The common verdict in the words of the court is "the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution."

However, the court ruled that 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 issue of the right to privacy was decided by the larger Bench because, in a batch of writ petitions challenging the Aadhaar identity cards, the government argued that right to privacy was not guaranteed by the Constitution. Two judgments were quoted stating that right to privacy was not expressly found in the fundamental rights chapter of the Constitution. Therefore, the court had to decide first whether the citizens have the right to privacy at all and to what extent. Now that the court has said that they do, the next issue before the court would be whether Aadhaar violates the right to privacy. This will be decided by a new Bench to be set up by the incoming Chief Justice Dipak Misra.

There are other hotly-contested cases like whether WhatsApp, Facebook, and other messaging services violate the right to privacy of users by collecting personal information and selling them to private parties. The present Bench overruled two Constitution Bench judgments of the 1950s and 1960s, which had held that the Constitution did not guarantee the right to privacy as a fundamental right. The judgment, running into some 500 pages, comes in response to a batch of petitions moved by nonagenarian retired high court judge K S Puttaswamy who challenged the Aadhaar scheme as violative of the right to privacy. A number of prominent persons joined in later and the main counsel on their behalf was Shyam Divan.

Attorney General KK Venugopal argued against declaring an absolute right to privacy for citizens. The members of the Bench are the outgoing Chief Justice Khehar, Justices J Chelameswar, S A Bobde, R K Agrawal, R F Nariman, S Abdul Nazeer, A M Sapre, D Y Chandrachud, and S K Kaul. The main judgment of the Chief Justice, written by Justice Chandrachud for three others, runs into 266 pages and surveys the origin of the idea of privacy, analysis of thinkers and jurists, overrules some Constitution Bench judgments and includes some graphics.

Here are some of the Bench's conclusions: "Privacy is the constitutional core of human dignity; 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; this Court has not embarked upon an exhaustive enumeration or a catalogue of entitlements or interests comprised in the right to privacy; 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 Constitution; 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."

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