FIVE POINTERS OF JUDGMENT
1. Whether privacy is Constitutional Protected Value?
The historic nine judges bench of Supreme Court under former CJI Justice Khehar in the year 2017 determined whether privacy is a constitutionally protected value. The issue is essence of the foundation of a constitutional culture based on the protection of human rights and enables this Court to revisit the basic principles on which our Constitution has been founded. The history was created when the nine-judge bench of the Supreme Court of India held unanimously that the right to privacy was a constitutionally protected right in India, as well as being incidental to other freedoms guaranteed by the Indian Constitution. The case, brought by retired High Court Judge Puttaswamy.
2. Background of Court Reference
A Bench of three judges of this Court, while considering the constitutional challenge to the Aadhaar card scheme of the Union government noted in its order dated August 11, 2015 that the norms for and compilation of demographic biometric data by government was questioned on the ground that it violates the right to privacy. The Government argued that the Constitution did not grant specific protection for the right to privacy. The Court reasoned that privacy is an incident of fundamental freedom or liberty guaranteed under Article 21 which provides that: “No person shall be deprived of his life or personal liberty except according to procedure established by law”.
While addressing these challenges, the Bench of three judges of this Court took note of several decisions of this Court in which the right to privacy has been held to be a constitutionally protected fundamental right. Those decisions include: Gobind v State of Madhya Pradesh (1975) 2 SCC 148), R Rajagopal v State of Tamil Nadu (1994) 6 SCC 632) and People’s Union for Civil Liberties v Union of India (1997) 1 SCC 301). These subsequent decisions which affirmed the existence of a constitutionally protected right of privacy, were rendered by Benches of a strength smaller than those in M P Sharma and Kharak Singh. Faced with this predicament and having due regard to the far-reaching questions of importance involving interpretation of the Constitution, it was felt that institutional integrity and judicial discipline would require a reference to a larger Bench. Hence the Bench of three learned judges observed this in its order dated 11 August 2015.
3. Defining Privacy
Privacy, in its simplest sense, allows each human being to be left alone in a core which is inviolable. Yet the autonomy of the individual is conditioned by her relationships with the rest of society. Those relationships may and do often pose questions to autonomy and free choice. The overarching presence of state and non-state entities regulates aspects of social existence which bear upon the freedom of the individual. The preservation of constitutional liberty is, so to speak, work in progress.
4. Issues before Court
The Court was addressed on various aspects of privacy including :
(i) Whether there is a constitutionally protected right to privacy;
(ii) If there is a constitutionally protected right, whether this has the character of an independent fundamental right or whether it arises from within the existing guarantees of protected rights such as life and personal liberty;
(iii) the doctrinal foundations of the claim to privacy;
(iv) the content of privacy; and
(v) the nature of the regulatory power of the state.
5. Outcome of hearing
The Court overruled M.P. Sharma, and Kharak Singh in so far as the latter did not expressly recognize the right to privacy. The right to privacy was reinforced by the concurring opinions of the judges in this case which recognized that this right includes autonomy over personal decisions (e.g. consumption of beef), bodily integrity (e.g. reproductive rights) as well as the protection of personal information (e.g. privacy of health records). The concurring judgments included specific implications of this right, some of which are illustrated below:
Justice Chandrachud (on behalf of himself, Former CJI Kehar, Justice Agrawal and Justice Nazeer): this opinion stated that privacy was not surrendered entirely when an individual is in the public sphere. Further, it found that the right to privacy included the negative right against State interference, as in the case of criminalization of homosexuality, as well as the positive right to be protected by the State. On this basis, the Judges held that there was a need to introduce a data protection regime in India.
Justice Chelameswar: in his opinion, the Judge said that the right to privacy implied a right to refuse medical treatment, a right against forced feeding, the right to consume beef and the right to display symbols of religion in one’s personal appearance etc.
Justice Bobde: the Judge observed that consent was essential for distribution of inherently personal data such as health records.
Justice Nariman: in this concurring opinion, the Judge classified the facets of privacy into non-interference with the individual body, protection of personal information and autonomy over personal choices.
Justice Sapre: the Judge said that, in addition to its existence as an independent right, the right to privacy included an individual’s rights to freedom of expression and movement and was essential to satisfy the constitutional aims of liberty and fraternity which ensured the dignity of the individual.
Justice Kaul: the Judge discussed the right to privacy with respect to protection of informational privacy and the right to preserve personal reputation. He said that the law must provide for data protection and regulate national security exceptions that allow for interception of data by the State.
The Court also recognized that the right was not absolute but allowed for restriction where this was provided by law, corresponded to a legitimate aim of the State and was proportionate to the objective it sought to achieve. The case expands freedom of expression by recognizing privacy as an independently enforceable right, as opposed to a right that is available only as far as it impacts constitutionally guaranteed freedoms.
Photo by Tim Mossholder on Unsplash
