Right to Privacy is fundamental right: SC in an unanimous decision
Moneylife Digital Team 24 August 2017

The Supreme Court, in a landmark judgement on Thursday held that the right to privacy is a fundamental right and is an integral part of the right to life and liberty. While overruling two earlier judgements, the nine judge bench, in an unanimous decision said privacy comes under the right to life and liberty.

"The decision in MP Sharma, which holds that the right to privacy is not protected by the Constitution stands over-ruled. The decision in Kharak Singh to the extent that it holds that the right to privacy is not protected by the Constitution stands over-ruled. 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," the Bench said in is judgement.

The Bench observed, "The decisions in MP Sharma and Kharak Singh adopted a doctrinal position on the relationship between Articles 19 and 21, based on the view of the majority in Gopalan. This view stands abrogated particularly by the judgment in Cooper and the subsequent statement of doctrine in Maneka. The decision in Maneka, in fact, expressly recognized that it is the dissenting judgment of Justice Subba Rao in Kharak Singh which represents the exposition of the correct constitutional principle. The jurisprudential foundation which held the field sixty three years ago in MP Sharma and fifty five years ago in Kharak Singh has given way to what is now a settled position in constitutional law. Firstly, the fundamental rights emanate from basic notions of liberty and dignity and the enumeration of some facets of liberty as distinctly protected rights under Article 19 does not denude Article 21 of its expansive ambit. Secondly, the validity of a law, which infringes the fundamental rights has to be tested not with reference to the object of state action but on the basis of its effect on the guarantees of freedom. Thirdly, the requirement of Article 14 that state action must not be arbitrary and must fulfil the requirement of reasonableness, imparts meaning to the constitutional guarantees in Part III."

According to the Supreme Court, the right 'to be let alone' represented a manifestation of 'an inviolate personality', a core of freedom and liberty from which the human being had to be free from intrusion. "The technology, which provided a justification for the need to preserve the privacy of the individual, was the development of photography.  The right to be let alone is a part of the right to enjoy life. The right to enjoy life is, in its turn, a part of the fundamental right to life of the individual," it said adding, "Natural rights are not bestowed by the state. They inhere in human beings because they are human. They exist equally in the individual irrespective of class or strata, gender or orientation."

During the hearing, senior counsels Gopal Subramanium, Kapil Sibal, Arvind Datar, Shyam Divan, Anand Grover, Meenakshi Arora, Sajan Poovayya and Jayant Bhushan represented the petitioners, with support from JS Attri, senior counsel for Himachal Pradesh. Attorney General KK Venugopal, represented the union government with suport from Tushar Mehta (Additional Solicitor
General), Rakesh Dwivedi, senior counsel for Gujarat, Aryama Sundaram for Maharashtra, Gopal Sankaranarayanan and Dr Arghya Sengupta. While some state governments have supported the stand of the Union government, others have supported the petitioners.  

The Bench stated, "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 or 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."

"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 recognise this important, natural, primordial right as a fundamental right," it added.

The ruling by a nine-judge bench headed by Chief Justice JS Khehar will have a bearing on the challenge to the validity of the Aadhaar scheme on the grounds of its violating the right to privacy.

The nine-judge bench deciding this was constituted in August 2015 following a reference made in the Aadhaar or UID case (Puttuswamy & Anr WP Civil No. 494 of 2012) almost two years ago. A bench of nine judges including the Chief Justice of India, Justice Khehar, Justices Jasti Chelameswar, SA Bobde, RK Agarwal, Rohinton Nariman, AM Sapre, DY Chandrachud, SK Kaul and S Abdul Nazeer have heard the case.

Petitioners, activists, academics and lawyers sceptical of the Aadhaar project have been waiting since then for the resolution of the question of whether or not a fundamental right to privacy will be recognised by the Supreme Court. In the interim period, the Government blatantly violated prior orders of the apex court restraining the use and expansion of Aadhaar. As the project has grown, so has awareness of its multiple shortcomings and of the threat it poses to the security and welfare of the country.

Chronology of the case:
September 2013: SC tells Congress-led United Progressive Alliance (UPA) government that Aadhaar cannot be made mandatory for any services.
July 2015: Bharatiya Janata Party (BJP)-led National Democratic Alliance (NDA) Government tells SC that it plans to make Aadhaar mandatory for a range of services. Attorney General Mukul Rohatgi argues citizens have no fundamental right to privacy, shocking everyone. SC says a constitution bench will decide on this.
August 2015: SC limits use of Aadhaar to the Public Distribution System, only on voluntary basis
October 2015: SC allows Aadhaar to be used in four more schemes, purely on voluntary basis
March 2016: NDA Government passes Aadhaar Act as a money bill bypassing Rajya Sabha where it lacks majority. Pushes Aadhaar in over 50 schemes, making it mandatory.
June 2017: SC forms constitution bench to decide right to privacy, after a wait of nearly two years.
August 2017: The nine-judge Bench of SC upholds Right to Privacy as fundamental right

Here is the judgement given by the nine-judge Bench on Right to Privacy...

Mahesh S Bhatt
4 years ago
Sanity prevailed & Sanctity saved in an unequally Godlike Mantris of our Country who are above State laws & supposedly honest??? biting billion dreams cash land air water etc etc and common man is thief hence should be constantly under surveliance by state who gives Rs 500 unemployment allowance / zero job opportunities/poor health support etc Mahesh
Bhuvaneswaran K
4 years ago
Accused in Cell: I have Right to Privacy. Don't come in without permission. ;)
Meenal Mamdani
4 years ago
I am delighted that the SC has affirmed that privacy of the individual is a fundamental right.
In the West, individual is considered supreme so the right to individual privacy is fundamental to that understanding of the role of the individual in the society and is therefore accepted without argument as a fundamental right.
However, in India, China and much of the Eastern countries, society or family is the important entity and it is paramount to maintain harmony. In this scenario, an individual's privacy may be sacrificed to maintain harmony.
This would be dangerous as communities tend to sweep under the carpet those dissents that tend to be a threat to the status quo.
Therefore right to privacy is a protection to those who do not acquiesce to the common accepted view.
Deepak Narain
4 years ago
Common man had little to fear even before this judgement. It is the rich and powerful who have much to hide and whose privacy will now be protected.
sohan modak
4 years ago
Finally, the Supreme Court has corrected the lacuna left behind by the forefathers of Indian constitution. Now is the turn of the 5 member bench to straight jacket Jaiteley-Modi combo on the right path by discarding Aadhaar.
4 years ago
Interesting read. The SC must have found a ghist writer who knows both English and the Law!
4 years ago
What is to become of the Aadhar that Nilekani sold to the Khangress, and which like all the despicable Khangress policies, the BJP championed with such enthusiasm, vigour and rigour?
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