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Posted on 29.08.17 by

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

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 plurality of opinions and the various facets of privacy that have made their way into the reasoning. This post is the second in a two part series and records the decisions rendered by Nariman J., Sapre J. and S. K. Kaul J.

Nariman J.

  • The three great dissents of Fazl Ali J. in A.K. GopalanSubba Rao J. in Kharak Singhand Khanna J. in ADM Jabalpur indicate the true meaning of Article 21. The dissenting opinion of Subba Rao J. in particular has a direct bearing on privacy. It records that the right to life and personal liberty under Article 21 includes the right to be free from encroachments in private life, and even in the absence of an express right to privacy in the Constitution, it is an essential ingredient of personal liberty.
  • The decision in M.P Sharma is confined to Article 20(3) and whether or not the Fourth Amendment, the American equivalent of a Constitutional privacy right, could be imported to the same. The ratio here cannot be read to mean that  a fundamental right to privacy is not available in Part III of the Constitution. Further, the decision was delivered at a time when fundamental rights were being read disjunctively in water tight compartments contrary to the position post the decision in Maneka Gandhi. The ratio in M.P. Sharma cannot be the guiding principle to ground a privacy right in Part III. Further, the contradictory views of the majority decision in Kharak Singh lead to an internal inconsistency. The decision cannot be given the value of a binding precedent on the question of a privacy right and subsequent Supreme Court decisions recognising a privacy right need not be revisited.
  • The content of fundamental rights expands to keep pace with human activity and a perusal of the Constituent Assembly Debates would show that the framers of the Constitution aimed to create an organic document the interpretation of which could be evolved with time. Thus, privacy must be debated in the present day context of technological advancement.
  • The amorphous, multifaceted nature of privacy cannot be a deterrent to its constitutional protection. Even though it may be impossible to encompass all the contours of privacy, the right can be classified as inclusive of interests pertaining to the physical realm and the mind.
  • Privacy right is an inalienable fundamental right and though not absolute, is a multifaceted freedom which may be traced to Article 21 either in itself or in conjunction with other liberties depending on the interest claimed and the right would, therefore, be developed on a case to case basis.
  • It is only after the privacy right has been recognised can the legitimate state interests that would reasonably restrict the same be determined and such interests themselves cannot be a reason to altogether deny  constitutional protection of an individual’s right against intrusion. A privacy claim over the physical body of a person or dissemination of personal information would have to be balanced on test of reasonable prescribed for the freedom under which such interest is claimed.
  • Privacy in the Indian context would include protection of an individual’s physical person against intrusion; Informational privacy and control over dissemination of information; and privacy of choice or autonomy if personal decisions.
  • The argument that privacy and liberty are interchangeable cannot be accepted for privacy begins where liberty ends. The cardinal value of fraternity and the dignity of an individual encompasses the capacity of an individual to develop his/her personality and the same can only be done when the autonomy over personal choices is protected.

Bobde J.

  • Dignity in the Preamble implies State’s obligation to secure the autonomy of self-development for every individual while respecting their personality. Further, Liberty, Equality and Fraternity must be read in juxtaposition so as to fully realise the scope and ambit of rights under Part III.
  • The right to privacy is an inherent, inalienable and multifaceted right of an individual enabling the enjoyment of a meaningful life with dignity and must be recognised and cherished in every society governed by Rule of Law. It emanates from Articles 21 and 19 as well as the Preamble.
  • However, this right is subject to reasonable restrictions which the State is entitled to impose by law, to protect social, moral and compelling public interest.

S. K. Kaul J.

  • The Constitution is an organic document that embodies a set of eternal, undefinable values. It must be interpreted to incorporate civil liberties of the past, present and future. Core constitutional concepts of liberty, equality, and dignity are abstract notions that manifest differently with time and must interpreted contextually.
  • The right of privacy is a fundamental right. It is a right which protects the inner sphere of the individual from interference from both State, and non-State actors and allows the individuals to make autonomous life choices.”

  • Privacy is not merely a common law right. It is an important core of any individual existence. It is an inherent right that entitles an individual to protect one’s personality, individuality, and dignity.
  • Technological advancement has not only enhanced the scope of pervasive behaviour by the State, but also made privacy considerably vulnerable to intrusion by non-State actors. In a digital society where the informational security of an individual is at an enhanced risk of violation through surveillance, profiling and data collection, a balance must be struck between legitimate State interests of national security and the privacy of an individual.
  • Further, access to personal information without any regulation of usage arms State and non-State actors with power over an individual, which in the case of the former may be utilised to curb dissent, thus striking at the very root of democracy.
  • The hallmark of freedom in a democracy is the individuals’ autonomy. A privacy right entails the right to control dissemination of personal information enabling the individual to safeguard their personality and dignity.
  • The State must put forth a regime of data protection that balances legitimate state interests and an individual’s privacy concerns, with consent of the individual being the guiding principle for collection and usage of data.
  • Fundamental rights do not adhere to a majoritarian concept. Merely because a minuscule fraction of the population would bear the impact is not reason enough to deny a right. It is in this context that the sexual autonomy of an individual must be understood as an attribute of privacy.

Copy of the 9 Judge Bench judgment on the Right to Privacy

The first part of this two part series on the Right To Privacy verdict can be accessed here. 

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