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Posted on 29.08.17 by

The Right to Privacy : The 9 Judge Verdict in Plain English (Part I)

On 24th August, 2017 a 9 Judge Bench of the Supreme Court delivered a unanimous verdict in Justice K.S. Puttaswamy vs. Union of India and other connected matters, affirming that the Constitution of India guarantees to each individual a fundamental right to privacy. Although unanimous, the verdict saw 6 separate concurring decisions. Justice Chandrachud authored the decision speaking for himself, Justices Khehar and R.K. Agarwal and Abdul Nazeer. The remaining 5 judges each wrote individual concurring judgments.

The conclusion arrived at by the Bench in the concurring judgments records the plurality of opinions and the various facets of privacy that have made their way into the reasoning. The first of the two part series examines the decision authored by Justice Chandrachud, along with those of Chelameshwar and Bobde JJ.

Chandrachud J. 

  • The doctrinal foundation of the right to privacy in India rests on the trilogy of decisions in M.P. Sharma vs. Satish ChandraKharak Singh vs. State of U.P. and Govind vs State of MaharashtraOf these, the decision in M.P. Sharma does not adjudicate on constitutional protection of a privacy right. Further, Kharak Singh, while rightly acknowledging that ‘life’ under Article 21 is not a right to “animal existence”, suffers from an internal inconsistency that where on the one hand the regulation permitting domiciliary visits was struck down on the rationale of privacy without expressly using the term, on the other it recorded the absence of constitutional protection of privacy. These two contradicting views cannot co-exist and the two decisions, to the extent that they hold that the Constitution of India does not protect privacy, are overruled.
  • Fundamental rights emanate from basic notions of liberty and dignity. Although Article 19 expansively enumerates some facets of liberty, this does not denude Article 21 of its wide scope and ambit. Privacy is a concomitant of an individual’s right to exercise control over his own personality and finds its origin in the notion that certain natural or inherent rights are inseparable from the human personality. Like other rights in Part III of the Constitution, privacy too cannot be an absolute right and its violation must, in addition to the test of due process and procedure established by law, also factor in legitimate State interests.
  • The right to privacy imposes on the State a duty to protect the privacy of an individual, corresponding to the liability that is to be incurred by the state for intruding the right to life and personal liberty. The right to life and liberty are inalienable to human existence – not bounties granted by the state, nor creations of the Constitution. No civilized state can contemplate an encroachment upon them without the authority of law. ADM Jabalpur vs, S.S. Shukla is overruled to the extent that it held that the aforesaid rights may be surrendered in an emergency.
  • Judicial recognition of the constitutional protection of a privacy right does not in any manner amount to usurpation of a legislative function, as the right is not independent of the liberties guaranteed under Part III and emerges from the concepts of liberty and dignity alluded to in the Preamble.
  • Privacy recognises the ability of individuals to control vital aspects of their lives and safeguards the autonomy exercised by them in decisions of personal intimacies, matters of home and marriage, the sanctity of family life and sexual orientation, all of which are at the core of privacy.
  • The Constitution must evolve to meet the aspirations and challenges of the present and the future. In an age where information technology governs virtually every aspect of our lives, the Courts must impart meaning to the concept of individual liberty, particularly where an overarching presence of State and non-State entities regulates aspects of social existence which bear upon the freedom of an individual. Every individual irrespective of social or economic status is entitled to the intimacy and autonomy which privacy protects.

Chelameshwar J.

  • Among basic rights conferred on individuals by the Constitution as a shield against excesses by the State, some rights are at the core of human existence. Thus, they are granted the status of fundamental, inalienable rights essential to enjoy liberty. Liberty is the freedom of an individual to do what he pleases and the exercise of that freedom would be meaningless in the absence of privacy.
  • M.P. Sharma is not an authority for the absolute proposition that the Constitution does not protect a privacy right, for such is not the ratio of the case.
  • The right to privacy incorporates three aspects: repose, sanctuary and intimate decision. Each of this is essential to the liberty of an individual and finds resonance in the freedoms guaranteed under Part III. A liberal democracy safeguards certain core human values and freedoms against unqualified intrusion by the State. Fundamental rights are detriments to state’s interference with the liberty of an individual of which privacy is an essential ingredient.
  • Like all fundamental rights, privacy too has its limitations. There must be identified depending upon the nature of privacy interest claimed. Courts must be guided by the standard of just, fair and reasonable legislation as applicable to Article 21. The strictest scrutiny standard of compelling State interest must be used.

    Bobde J.

  • Natural rights protect those moral interests which are inherent to human beings. The innate dignity and autonomy of the individual are two such universally affirmed and safeguarded moral values. Privacy being intimately connected to the two eminently qualifies as a natural, inalienable right. It must be elevated to the status of a fundamental right and granted constitutional protection irrespective of whether it is legal or common law right. Privacy has the nature of being both a common law right as well as a fundamental right. Its content, in both forms, is identical. The difference is that as a fundamental right it is available against state action, while common law right operates horizontally between individuals.
  • The right to be let alone, to seclude oneself from intrusions of any manner, is essential to privacy. Every individual is entitled to a state of repose. Liberty and privacy are integrally connected in a way that privacy is often the basic condition necessary to exercise personal liberty.
  • Privacy is as inalienable as the right to perform any constitutionally permissible act and constitutes the springboard for the exercise of the freedoms guaranteed by Part III and can thus be located in Part III as a whole.
  • Only after acknowledging that the right of privacy is a fundamental right, can we consider how it affects the plenary powers of the state. There is no warrant to assume a privacy right is an absolute right which cannot be reasonably restricted.
  • Individuals avail their right to privacy by exercising the liberty granted to them under the Constitution while specifically including or excluding certain individuals or entities from the performance of such act of freedom. Consequently, privacy also entails negative autonomy to not do a specific act.
  • The right to privacy is inextricably bound up with all exercises of human liberty – both as it is specifically enumerated across Part III, and as it is guaranteed in the residue under Article 21. It is distributed across the various articles in Part III and, mutatis mutandis, takes the form of whichever of their enjoyment its violation curtails.” Consequently an act of the State violating the right must satisfy the test of the applicable Article apart from the test of being fair, just and reasonable under Article 21.
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