Right to Privacy aFundamental Right, Says Supreme Court in Unanimous Verdict

The written judgment, which overrules the 1961 Kharak Singh verdict, will be available this afternoon.

New Delhi: A nine-judge bench of the Supreme Court has ruled that Indians enjoy a fundamental right to privacy, that it is intrinsic to life and liberty and thus comes under Article 21 of the Indian constitution.

On Thursday, the bench, led by Chief Justice J.S. Khehar, pronounced a unanimous judgement even if the separate judges had slightly different arguments as to how privacy is intrinsic to right to life and liberty.

The bench comprised Khehar and Justices J. Chelameswar, S.A. Bobde, R.K. Agrawal, Rohinton Nariman, A.M. Sapre, D.Y. Chandrachud, Sanjay Kishan Kaul and S. Abdul Nazeer.

In declaring privacy to be a fundamental right, the Supreme Court has overruled verdicts given in the M.P. Sharma case in 1958 and the Kharak Singh case in 1961, both of which said that the right to privacy is not protected under the Indian constitution.

The court’s written judgement will be made available later in the afternoon and this story will be updated with details on whether it chose to sketch the contours of a right to privacy or detail how it may or may not be restricted in various applications.

The petitioners, former Karnataka high court judge Justice K.S. Puttaswamy and others, had contended that the biometric data and iris scan that was being collected for issuing Aadhaar cards violated the citizen’s fundamental right to privacy as their personal data was not being protected and was vulnerable to exposure and misuse.

Arguments on behalf of the petitioners were made by senior advocates Gopal Subramanium, Shaym Divan, Sajan Poovaya, Arvind Grover and Indira Jaising, and former attorney general Soli Sorabjee.

The petitioners had argued that right to life under Article 21 of the constitution would include the right to privacy though it is not expressly stated in the constitution. It was also argued that privacy is a broader concept and data sharing is only one aspect of privacy. Subramanium had argued, “Privacy is about the freedom of thought, conscience and individual autonomy and none of the fundamental rights can be exercised without assuming certain sense of privacy”.

He also said the state is under an affirmative obligation to protect the fundamental rights of its citizens. “Liberty is fundamental to democracy and citizens cannot exist without privacy.”  

Sorabjee had added that “Privacy is not explicitly laid out in the constitution. But that does not mean the right does not exist as it has be deduced from the constitution”. He also argued that the freedom of the press has been derived from Article 19 and similarly, the right to privacy can be derived broadly from Article 21.

In the age of the internet, a person should have control on how much he should put forward and not be compelled. There hardly exists any data protection in the digital age, inevitably leading to a compromise in privacy. During the course of arguments, it was brought to the court’s attention that Union finance minister Arun Jaitley, during discussions in the Rajya Sabha on the Aadhaar Bill in March 2016, had said that the right to privacy was a fundamental right, but now the government is claiming the opposite.

Subramanium had said, “Privacy is a broader concept and data sharing is only one aspect of privacy. Privacy is about the freedom of thought, conscience, and individual autonomy and none of the fundamental rights can be exercised without assuming certain sense of privacy”. He added that the state is under an affirmative obligation to protect the fundamental rights of citizens. He said, “Liberty existed prior to constitutional era and the law had merely recognised its existence. Liberty, which is fundamental to democracy and citizens, cannot exist without privacy”.

Attorney general’s arguments for Centre

On behalf of the Centre, attorney general K.K. Venugopal, however, had brought to the notice of the court that an eight-judge bench in 1954 and a six-judge bench in 1962 had categorically ruled that the right to privacy was not a fundamental right. He also said that such a right had not been expressly provided in the constitution, though under the British Common Law, the right to privacy was a fundamental right. He maintained that the right to privacy is not a fundamental right to be claimed either under Article 21 (right to life), Article 14 (right to equality) or Article 19 (freedom of speech and expression).

It was asserted that the concept of privacy is a notional one and not a fundamental right enshrined in the constitution. He claimed that privacy is too vague to qualify as a fundamental right. He had said that there is no right to privacy and that privacy is only a sociological notion, not a legal concept. “Every aspect of it does not qualify as a fundamental right, as privacy also includes the subtext of liberty. No need to recognise privacy as an independent right. Defining the contours of privacy is not possible. Privacy is as good a notion as pursuit of happiness,” he had said.

Venugopal said, “If privacy were to be declared a fundamental right, then it can be a qualified right.” He asked the judges to state that only some aspects of privacy are fundamental, not all, and it is a limited fundamental right that can be taken away in legitimate state interest. He said that in developing countries, something as amorphous as privacy could not be a fundamental right, that other fundamental rights such as food, clothing, shelter etc. override the right to privacy.

The attorney general also made clear that the right to privacy cannot fall in the bracket of fundamental rights as there are binding decisions of larger benches that it is only a common law right evolved through judicial pronouncements. “The government said Aadhaar would not fall under the right to privacy. We can’t say every encroachment of privacy is to be elevated to fundamental right. The claim to liberty has to subordinate itself to right to life of others,” he said. On Aadhaar, he referred to the World Bank’s statement that an identity system should be followed by every developing country.