Right to Privacy: A Fundamental Right

By- Hamza Khan !!



[ALL WP(C) No.494 of 2012]


A nine-judge Constitution Bench of the Supreme Court, led by Chief Justice of India J.S. Khehar on August 24 (Thursday) delivered the judgment on the question whether right to privacy is a fundamental right under the Constitution or not. The question is important because, in the words of one of the judges on the Bench, Justice D.Y. Chandrachud, privacy means “the right to choose solitude if I want solitude or the freedom to socially co-habit, that is, if I want it”.
Simply speaking, Privacy allows each human being to be left alone in a inviolable core. The overarching presence of state and non-state entities regulates aspects of social existence which bear upon the freedom of the individual. Challenges have to be addressed to existing problems and also have to be dealt with in terms of a constitutional understanding of where liberty places an individual in the context of a social order.
A Bench of three judges of this Court, while considering the constitutional challenge to the Aadhaar card scheme of the Union government, questioned the norms for and compilation of demographic biometric data by government as it violates the right to privacy, in its order dated 11 August 2015. The Attorney General for India urged in view of two decisions that the existence of a fundamental right of privacy is in doubt: the first – M P Sharma v. Satish Chandra, and the second, in Kharak Singh v State of Uttar Pradesh. Each of these decisions, in the submission of the Attorney General, contained observations that the Indian Constitution does not specifically protect the right to privacy. On the other hand, the petitioners submitted that M P Sharma and Kharak Singh were founded on principles expounded in A K Gopalan v State of Madras. Gopalan, which construed each provision contained in the Chapter on fundamental rights as embodying a distinct protection, was held not to be good law by an eleven-judge Bench in Rustom Cavasji Cooper v Union of India. Hence the petitioners submitted that the basis of the two earlier decisions is not valid.
The Supreme Court’s judgment gains international significance as privacy enjoys a robust legal framework internationally, though India has remained circumspect. The judgment, as it declared privacy as a fundamental right, finally reconciled our laws with the spirit of Article 12 of the Universal Declaration of Human Rights, 1948 and Article 17 of the International Covenant on Civil and Political Rights (ICCPR), 1966, which protects persons legally against the “arbitrary interference” with one’s privacy, family, correspondence, home, honour and reputation. The judgment is affecting to the large extent, the government’s Aadhaar scheme that collects personal details, biometrics to identify beneficiaries for accessing social benefits and government welfare scheme. A number of petitions were filed in the Supreme Court in 2015 challenging Aadhaar as a breach of privacy, informational self-determination and bodily integrity.
The argument from the side of petitioners is that the Aadhaar enrollment by the government is making the democratic country a Totalitarian State and cordially an invitation to the personal data leakage. As Senior advocate Shyam Divan, for the petitioners side argued: “A person’s body belongs to the state only in a totalitarian State. A person should have the right to “informational self-determination”. And the senior advocate Mr. Gopal Subramanium contended, “The right to liberty means the right to make personal choices, the right to develop one’s personality, one’s aura, one’ thinking and actions, the freedom of religion and conscience, the freedom to believe or not believe. For all this, one needs privacy. So the right to liberty and lead a life of dignity includes the right to privacy. Liberty is a pre-existing natural and inherent value enshrined in the Preamble of the Indian Constitution. Liberty, dignity and privacy are inalienable rights necessary to truly understand the Constitution”.
The government countered that the informational privacy does not exist before compelling State interests and is not an absolute right and right to privacy of an “elite few” is submissive to the right of the masses to lead a dignified life in a developing country. The government claims that the corruption in public distribution, money laundering and terror funding will end as Aadhaar is a panacea for it. On behalf of the government, the attorney general K.K. Venugopal, argued that Privacy is not a single, homogenous right but rather as a bunch of rights spread over the Constitution. The right to privacy consists of diverse aspects but every aspect of privacy is a fundamental right as it is sub-specie of the fundamental right to personal liberty. An elite few cannot claim that their bodily integrity would be violated by a scheme which serves to bring home basic human rights and social justice to millions of poor households across the country.
The Supreme Court concluded by saying that Privacy is the constitutional core of human dignity having both the normative and descriptive function. At a normative level privacy sub-serves those eternal values upon which the guarantees of life, liberty and freedom are founded. At a descriptive level, privacy postulates a bundle of entitlements and interests which lie at the foundation of ordered liberty.

Photo Credit: http://www.catholicanchor.org/alaska-news/analysis-time-alaska-rethink-right-privacy-relating-abortion/

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