Overview

The recent judgment of the Supreme Court of India (SC) in the case of Justice K.S. Puttaswamy (Retd) vs Union of Indiais a booming victory for privacy in our country, which has been struggling with this concept for years. This judgment has been delivered in the petition filed by Justice Puttaswamyinter alia challenging the constitutional validity of the Aadhaar scheme of Government of India for capturing the biometric data of the Citizens. The judgment’s buzzing endorsement of the avowed right to privacy as a fundamental right under Part III of Constitution of India, marks a historic moment in the constitutional history of our country and once and for all settles a long standing question before the jurists as well as common men. The summary ofthe order signed by all nine judges declaresthat :

The right to privacy is protected as an intrinsic part of the right to life and personalliberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.

Before getting into a further discussion on Right to Privacy, we need to know and understand the etymology of the words “Right” and  “Privacy” and their meaning.Right in its literal sense is described as a right or a just action that individuals have to discharge to maintain harmonious relationships. In the modern sense, the definition is long and divisive, ‘Right’ in general means- a legal sanction.

According to Black’s Law Dictionary, Privacy means “right to be let alone; the right of a person to be free from any unwarranted publicity; the right to live without any unwarranted interference by the public in matters with which the public is not necessarily concerned”.

Right to Privacy –The Indian Story

The right to privacy in India has evolved based on the jurisprudence mainly driven by the Supreme Court of India in a series of judgments over many decades. All along, the concept of Right to Privacy in India saw inconsistencies,primarily due to the two early judgments (i.e. M.P.Sharma and Kharak Singh judgments) of the Supreme Court which created a divergence of opinion on the proposition whether the right to privacy is a fundamental right or not. Now this divergence or dichotomy has been,for-ever put to rest by the Supreme Court. The Supreme Court while dealing with this subject of Right to Privacy had referred to the human rights as understood in the global perspective and has held that the Constitutional Provisions must be interpreted in conformity with the duly ratified international obligations of our country. There is clear reference to the Protection of Human Rights Act, 1993.It is beautifully enunciated in the judgment that Right to Privacy is a necessary condition for other rights guaranteed under our constitution. The judgment holds that “…right to privacy does not necessarily have to fall within the ambit of any one provision in the chapter on fundamental rights. Intersecting rights recognize the right to privacy. Though primarily, it is in the guarantee of life and personal liberty under Article 21 that a constitutional right to privacy dwells, it is enriched by the values incorporated in other rights which are enumerated in Part III of the Constitution.

The Two Cases that were the cause for confusion all along on the Right to Privacy

In 2012, Retired Justice K.S. Puttaswamy  filed a  writ petition before the Supreme Court under Article 32 challenging the constitutionality of Aadhaar. His main thrust was that it violates the right to privacy guaranteed under the Constitution. The Central Government vehemently canvassed before the Constitution Bench of the Supreme Court that right to privacy is not and cannot be a fundamental right under Part III. The fulcrum of the Union Government’s argument was the earlier judgments of the Supreme Court in the M.P.Sharma (1964) and Kharak Singh (1962) cases which both held that right to privacy is not a fundamental right.

In M.P Sharma, the Supreme Court held that the framers of the Constitution did not intend to subject the power of search and seizure (in different enactments) to a fundamental right of privacy. This case dealt with a challenge to a search on the ground that the statutory provision which authorized it, violated the guarantee against self-incrimination in Article 20(3), in the absence of any specific provision similar to Fourth Amendment of the United Stated Constitution in the Indian context. The Court answered the challenge by its ruling that an individual who is subject to a search during the course of which material is seized does not make a voluntary testimonial statement of the nature that would attract Article 20(3) (i.e. self incrimination). That the Indian Constitution does not specifically guarantee right to privacy. However, the Supreme Court in this judgment did not consider whether right to privacy could be a constitutionally protected right under any other provision such as Articles 19 and 21 (i.e. right to life and personal liberty).

In Kharak Singh’s case, the Supreme Court judgment held that nocturnal (in the night) domiciliary (private home) visits by Police Regulations are “unauthorized intrusion into a person’s homeand the disturbance caused to him thereby, is as it were the violation of common law right of a man – an ultimate essential of ordered liberty if not of the very concept of civilization.” The other Regulations were however, upheld, on the ground that the right of privacy was not a constitutionally guaranteed right in India. In contra distinction with M.P.Sharma’s case, in this judgment Supreme Court clearly held by a majority that Article 21 of the Constitution (right to life and personal liberty) had no application whatsoever.

The interesting feature in the Kharak Singh judgment was the famous dissent of Justice KokaSubbaRao, who must be smiling up there in the heaven. Who could have imagined that his lone anguished voice in the Kharak Singh’s case that right to privacy is embedded in Article 21 (fundamental right) as a part of right to life and personal liberty would resonate decades later and in such a profound manner in a 9 judge constitutional bench decision made by a unanimous voice. So he was decades (65 years to be precise) ahead of his times. The lesson for us is – lone voices are not necessarily vain voices. The only point to ponder and hope is that the right to privacy as a fundamental right does not become an impediment to governance and national security. Hopefully reasonableness would be read into such attempts.

The SC Judgment at a glance

The Supreme Court bench of nine judges (constitutional bench) in the Justice K.S.Puttaswamycase, has nowunanimously held that privacy is a constitutionally protected right. It is further held that this right to privacy emerges from the right to life and personal liberty guaranteed underArticle 21 of the Constitution. That the right to live with dignityand right to privacy are fundamental rights of every human being like other constitutional values. The Supreme Court has clearly overruled the M.P.Sharma and Kharak Singh judgments by holding that right to privacy is a fundamental right under Article 21.

The Supreme Court also held that any encroachment / invasion over right to privacy is possible only if the following three fold requirement are fulfilled:

1. Legality;
2. Need / Necessity; and
3. Proportionality

In simple words right to privacy cannot be invaded or encroached upon unless, it is done through the due process of law, is in furtherance of the objectives of the state and are proportionate in terms of the object to be achieved and the means adopted.

All along there was no specific legislation or regulatory framework in India for protecting data of the citizesn. Justice Chandrachud did address this issue in his separate order by holding that “Formulation of a regime for data protection is a complex exercise that needs to be undertaken by the state after a careful balancing of requirements of privacy coupled with other values which the protection of data subserves together with the legitimate concerns of the state.” Data protection law can now be expected in our country, which is a natural progression of this judgment of the Apex Court on right to privacy.

This judgement of the Supreme Court has demonstrated its progressive outlook and has once again indicated that it is the foremost institution in India for protecting and safeguarding the fundamental rights of equality, freedom, life and liberty by creative and expansive interpretation of provisions relating to fundamental rights enunciated in Part III of our constitution. That the Indian Republic and its citizen can sleep in peace because the courts are standing as sentinels for protecting their rights. That the rights of the citizen cannot be encroached upon by the State without following due process and by ensuring that the same is done only in exceptional circumstances for furthering thenational interest and that too by adopting means that are proportionate to the objective to be achieved.