Right to Privacy ; fundamentally right

A nine-judge bench of the Supreme Court of India in K. Puttaswamy v Union of India case said in one voice and six judgements, that the right to privacy is inherent in our fundamental rights. The right to privacy is not just a common law right, not just a legal right, not just a fundamental right under the Constitution, It is a natural right inherent in every individual. Privacy is a fundamental right protected by Article 21 and Part III of the Constitution and is protected as an “intrinsic part of the right to life and right to personal liberty under Article 21” and also as a part of the other freedoms guaranteed in the chapter of fundamental rights.

Background:

• The right to privacy was a constitutionally accepted and recognised by an interpretative device of the Supreme Court since 1975. Over the decades, more than 30 decisions of the apex court applied privacy as a bundle of rights that permitted liberty of thought and action. Some instances include safeguards against indiscriminate phone tapping, narco analysis and even bodily integrity.
• One of the lowest points in the history of the Indian Supreme Court has been when during the proclamation of Emergency, it refused to enforce fundamental rights. By its decision in ADM Jabalpur v. Shivakant Shuklathe court agreed with the government to suspend fundamental rights thereby permitting it to hold people in detention, without any opportunity to move court. More importantly, it gave wide police powers to the government to pursue state interests at the cost of fundamental rights.
• However, about two years ago, in the midst of the hearings of the Aadhaar case the government disputed the very basis of the right to privacy.

Arguments by SC:

• Ensuring dignity and liberty: “Privacy with its attendant values assures dignity to the individual and it is only when life can be enjoyed with dignity can liberty be of true substance. Privacy ensures the fulfillment of dignity and is a core value which the protection of life and liberty is intended to achieve,” it states. At another place, it notes, “The dignity of the individual, equality between human beings and quest for liberty are the foundational pillars of the Indian Constitution”.
• The spirit of self-correction — and commitment to human dignity — are also behind the court’s decision to set aside its 2013 verdict that resuscitated Section 377. The court’s remarks will be seen as a long-awaited course correction: “In a democratic Constitution founded on the rule of law, their [minority] rights are as sacred as those conferred on other citizens to protect their freedoms and liberties. Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual”.
• “Privacy enables each individual to take crucial decisions which find expression in the human personality. It enables individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demands of homogeneity. Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity in creating a zone of solitude,” the court said. At a time when individuals are being told what to eat, who to love and marry, to respect or oppose, this assertion of the citizen’s autonomy sends out an important message to both society and the state.
• Privacy, the court holds, is about the reservation of a “private space to be left alone”. Recognising the full amplitude of the need for privacy, the court holds that “the ability of an individual to make choices lies at the core human personality”.
• Justice DY Chandrachud who wrote the majority judgment, said: “The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised through history to wreak the most egregious violations of human rights.” They have rejected any notion that the right to privacy is an impediment to social welfare in any way, and the idea that those who seek socio-economic security do not care about their civil and political rights.
• Three elements are considered as the core to the right to privacy- Person al autonomy, the freedom to make choices and the right to determine what happens with information about oneself. The judges found it to be reflected throughout Part III of the Constitution of India, which guarantees fundamental rights.

Reasonable restrictions:

• Since the right to privacy is not located in Article 21 alone but in all freedoms, it will be subject to the limitations to which those rights are subject. Here too the judges wisely avoid spelling out limitations making them dependent on the right sought to be protected and the proportionality of the limitations imposed by law. Most importantly, the right to privacy can be curtailed in public interest only by a law which can be once again tested for its constitutional validity.
• The court does impose reasonable restrictions on the Right to Privacy. Justice Mathew held that the right to privacy could be curtailed only when there was “compelling State interest”. The nature and content of the law which imposes the restriction would now fall within the zone of reasonableness mandated by Article 14, which is a guarantee against arbitrary state action. A democracy can survive when citizens have an undiluted assurance that the rule of law will protect their rights and liberties against any invasion by the state and that judicial remedies would be available.

Implications:

• The constitutional right to privacy is no longer in any dispute and stands on firm ground. Its breadth is established over the entire chapter of fundamental rights, which include equality, free expression, right to life, religion.
• This also means the Aadhaar cases will now proceed for arguments on their merits which were gridlocked due to this pending decision.
• This case goes far beyond Aadhaar and holds the promise of renewing the vitality of the complete spectrum of civil liberties.
• The Supreme Court, by stating that the state does not bestow privacy, also has limited its ability to take it away. While recognising that even natural rights are subject to limitations, high thresholds are prescribed.
• The consequence of this is also that the basis for state interference with privacy (by law or action) will have to meet the standards of the Constitution as interpreted by the Supreme Court over the years. The laws interfering with privacy will have to not only be just, fair and reasonable but also have to be based on the grounds enunciated in Part III. This expands the scope of judicial review of such laws and raises the burden on governments to ensure the constitutionality of laws.
• The implications of this judgment go far above and beyond just the question of whether the Aadhaar scheme and law are valid. In this judgment itself, the SC has affirmed that sexual orientation is a part of the right to privacy (casting serious doubts over the fate of Section 377 of the IPC) and affirmed the right to choose one’s food habits (indirectly approving the Bombay High Court’s striking down parts of Maharashtra’s beef ban). The principles laid down here will go a long way in striking down some of the most regressive and tyrannical laws on the books.
• A welcome aspect of the judgment is that it makes it clear that sexual orientation is part of privacy and constitutionally protected, and that the 2014 verdict upholding Section 377 of the Indian Penal Code is flawed. In doing this, it undercuts the basis of the Suresh Koushal v. Naz Foundation case, the court refused to strike down Section 377 of the Indian Penal Code. It is now only matter of time when the case will be formally overruled.

To Conclude:

• While the privacy judgement is a cause for celebration, its full benefit will only come when it is applied to actual state actions that undermine privacy. Adherence to constitutional principle requires a prompt protection of real rights and liberties.
• The true test of the privacy judgement will be in its subsequent application to state actions when it sets boundaries and provides safeguards.
• The right to privacy broadly encompasses physical privacy, informational privacy and decisional autonomy. The interplay of technological advances and the right to privacy in the digital age needs to be closely scrutinised. The nine-judge bench has rightly emphasised the need for data protection laws — a task now entrusted, at a preliminary stage, to the Justice Srikrishna Committee.