| @ | August 24,2018

Exactly one year back, the nine-judge bench of the Supreme Court passed what was easily touted as the undisputed winner of all the landmark judgments of 2017, the now famous “privacy judgment” in Justice Puttaswamy case .

The Supreme Court, with this judgment, once and for all resolved the controversy and unanimously declared that right to privacy is a fundamental right of the citizens. Right to privacy was attributed to right to life and personal liberty and at times to freedom of speech and expression. However barring one case where it was seen as also part of Article 20(3) of the Constitution concerning right against self incrimination, privacy was not seen as attached to other fundamental rights

The Supreme Court, with this judgment, once and for all resolved the controversy and unanimously declared that right to privacy is a fundamental right of the citizens. Even before, the Supreme Court had dealt with right to privacy in large number of cases and at least since mid 1970s there is not a single case where the Court declined to affirm right to privacy as a fundamental right. While initially the impression given was that right to privacy is attached to a place, over the years there was unequivocal recognition of right to privacy as attached to a person. This allowed right to privacy to be used against banks from disclosing documents, etc. Right to privacy was attributed to right to life and personal liberty and at times to freedom of speech and expression. However barring one case where it was seen as also part of Article 20(3) of the Constitution concerning right against self incrimination, privacy was not seen as attached to other fundamental rights. The Court across decades was unanimous in holding that while right to privacy was a fundamental right it was not an absolute right and was subject to various restrictions.

The privacy judgment pegged the right not just to Articles 19 and  21 of the Constitution but also held it to be a component of all other fundamental rights and to be treated as the “dark matter” pervading the fundamental rights chapter

However, apart from being a judgment of the larger bench and settling any ambiguity on the existance of the right once and for all, the privacy judgment traversed  beyond certain earlier judgments. The privacy judgment pegged the right not just to Articles 19 and  21 of the Constitution but also held it to be a component of all other fundamental rights and to be treated as the “dark matter” pervading the fundamental rights chapter, thereby opening up vast possibilities of similar expansion of fundamental rights in the future.

The right includes within its sweep the right of bodily integrity, informational autonomy and individual decision making

Going further, the Supreme Court interpreted privacy not just as a spatial right but also as a relational right. In addition, it recognised that the right includes within its sweep the right of bodily integrity, informational autonomy and individual decision making.

At the core of privacy – dignity

Privacy is held to be an intrinsic element of the right to life and liberty under Article 21 of the Constitution, and as a constitutional value which is embodied in the fundamental freedoms embedded in Part III of the Constitution. Right to privacy is an element of human dignity

In the privacy judgment, the Supreme Court held that dignity is a core value of the Constitution running across all fundamental rights. Dignity essentially means the right to be human. Privacy ensures fulfilment of dignity. Life is precious in itself but it is worth living because of the freedoms which enable each individual to lead life as it should be lived. The duty of the State is to safeguard this autonomy. Privacy is held to be an intrinsic element of the right to life and liberty under Article 21 of the Constitution, and as a constitutional value which is embodied in the fundamental freedoms embedded in Part III of the Constitution. Right to privacy is an element of human dignity. It is the freedom to be let alone and freedom for self development.

The judgment holds that privacy lies across the spectrum of constitutionally protected freedoms, and is not just limited in its traditional application to the rights of freedom and liberty enshrined in Article 19 and 21 of the Constitution.

The privacy judgment is revolutionary in its articulation in that it discards majoritarianism and elitism. It holds in no uncertain terms that the guarantee of constitutional rights does not depend on their exercise being favourably regarded by majoritarian opinion. It further holds that privacy is not a privilege of a few, but that every individual in society irrespective of social class and economic status is entitled to the intimacy and autonomy which privacy protects. It recognises that autonomy and dignity are essential attributes of privacy. By deriving the right to privacy from the omnipresent value of dignity enshrined in the Preamble to the Constitution, the judgment holds that privacy lies across the spectrum of constitutionally protected freedoms, and is not just limited in its traditional application to the rights of freedom and liberty enshrined in Article 19 and 21 of the Constitution.

‘Not an absolute right’

Right to privacy is obviously a fundamental right in a democratic society against state scrutiny and interference unless certain circumstances require this right to be restricted

While the privacy judgment recognises the fundamental right to privacy it also reiterates what the earlier judgments had spoken about, namely that this right is not absolute. One can have no quarrel with this proposition. My right to privacy at home cannot extend to beating up my child or being violent towards the wife. Similarly my right to privacy cannot extend to practising untouchability even at home. While my bank accounts may be a private matter, if it is found that I am embezzling money or indulging in money laundering, I cannot refuse to divulge them on grounds of privacy. Right to privacy is obviously a fundamental right in a democratic society against state scrutiny and interference unless certain circumstances require this right to be restricted. However, such invasion of right to privacy would have to satisfy certain parameters.

Right to privacy can be restricted  provided the State fulfils a three-fold requirement – (1) legality, which postulates existence of law, (2) need, defined in terms of a legitimate state aim and (3) proportionality, which ensures a rational nexus between the objects and means adopted to achieve them

The majority opinion (supported by the other judges) observes that right to privacy can be restricted  provided the State fulfils a three-fold requirement – (1) legality, which postulates existence of law, (2) need, defined in terms of a legitimate state aim and (3) proportionality, which ensures a rational nexus between the objects and means adopted to achieve them. Unless these conditions are met, right to privacy cannot be curtailed.

To be constitutionally valid, not only the procedure but the law itself must be fair, just and reasonable. This is what was laid down in the Maneka Gandhi case

Accordingly, the above three requirements apply to all encroachments on the right to privacy. The first requirement that there must be a law in existence is provided in Article 21 of the Constitution itself, which states that no person can be deprived of their life and liberty except in accordance with procedure established by law. However, to be constitutionally valid, not only the procedure but the law itself must be fair, just and reasonable. This is what was laid down in the Maneka Gandhi case as substantive due process i.e. not just the procedure for abridgment of right should be fair, just and reasonable but even the substantive law itself should be fair, just and reasonable. There was a confusion about this aspect in some of the earlier judgments which interpreted Maneka to only provide procedural due process and not substantive due process. This has been rightly clarified by the privacy judgment.

The second requirement ensures that the nature and content of the law which imposes the restriction falls within the mandate of reasonableness under Article 14 of the Constitution, so that the pursuit of legitimate state aim does not suffer from manifest arbitrariness of state action

The second requirement ensures that the nature and content of the law which imposes the restriction falls within the mandate of reasonableness under Article 14 of the Constitution, so that the pursuit of legitimate state aim does not suffer from manifest arbitrariness of state action. In doing so though, the judgment departs from the Gobind case which insisted that the test to decide whether privacy can be restricted should be “compelling” state interest. The third requirement of the standard of proportionality, ensures that the nature and quality of the encroachment of the right to privacy is not disproportionate (and hence, excessive) to the purpose of the law.

 Impact on pending constitutional cases

Two such cases, currently reserved for orders by the Supreme Court are the controversial Aadhaar case and LGBTQI rights case, which are bound to be impacted by the decision of the Supreme Court in the Puttaswamy case. It is very unlikely that criminalisation of adult gay sex will continue

The above aspects are likely to have an impact on a whole range of rights and issues. Two such cases, currently reserved for orders by the Supreme Court are the controversial Aadhaar case and LGBTQI rights case, which are bound to be impacted by the decision of the Supreme Court in the Puttaswamy case. While it is not as simple to predict the outcome in the Aadhaar case exepcted any day, the privacy judgment is couched in such terms that it is very unlikely that criminalisation of adult gay sex will continue. On a number of occasions the Supreme Court holds in the privacy judgment that sexual orientation is a component of privacy and it also attacks the Naz Foundation judgment of the Supreme Court directly.

Many pieces of legislation and executive actions will in future be tested on the touch stone of privacy. While many of these aspects such as telephone tapping, right to search and seizure, truth serum tests, etc. have been dealt with earlier by the Supreme Court, there is a likelihood of a relaunching of attacks on certain legislative measures in view of the recent judgment.  There are many issues which have not yet reached the Supreme Court but are likely to reach and be viewed in a different perspective because of this judgment- such as marital rape, various issues concerning information technology.

While it is too early to predict the trajectory that jurisprudence on privacy will take, the Puttaswamy judgment is clearly one not to be taken lightly or celebrated without self-restraint in the coming future, much like the right to privacy itself.

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