Implications for rights to privacy verdict in India

by John Samuel | Published: 00:05, Aug 28,2017 | Updated: 20:59, Aug 27,2017


THE ruling of the Supreme Court of India on right to privacy is a very important landmark in the context of democracy and human rights in India, but also one of the first of its kind of verdict in Asia, particularly linking right to privacy with right to life. ‘The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the constitution’, the constitutional bench declared in a 547-page order.
At a time when in many countries where the constitution and the role of the independent judiciary is undermined, in many ways, by the governments, this unanimous ruling by a constitutional bench of the Supreme Court of India also signifies a ray of hope for all those who believe in democracy, human rights and the independence of judiciary. Hence, this verdict is not only important for the larger discourse on human rights and access to justice.
‘No one shall be subjected to arbitrary interference with his privacy, family, home, or correspondence, not to attacks upon his honour and reputation. Everyone has the right to protection of the law against such interference or attack.’ Thus says Article 12 of the Universal Declaration of Human Rights of 1948. It is the very first clear articulation of the human rights to privacy.
In a landmark judgement of the Supreme Court of India, the constitutional bench composed of nine judges affirmed Article 12 of the UDHR by unanimously ruling that right to privacy is a fundamental right, under Article 21 of Part 3 of the constitution of India. This ruling in many ways is a paradigm shift. Because by this verdict, the Supreme Court overruled the two earlier verdicts indicating that right to privacy is not protected under the Indian constitution. In the MP Sharama case in 1958 and the Kaharak Singh case, the right to privacy was not recognised as a fundamental right.
Article 21 of the Indian constitution says: ‘No person shall be deprived of his life or personal liberty except according to a procedure established by law.’ The Supreme Court in its various ruling affirmed that right to life includes the right to live with dignity, right to lead a healthy life so as to enjoy all faculties of the human body. It also includes the right to protection of a tradition, culture, heritage and all that given meanings to life. It includes right to live in peace etc (Sunil Batra v Delhi administration; Menaka Gandhi v the Union of India; Vishaka v the State of Rajasthan). The right to life is also interpreted as the right to live with dignity — and this includes the right to education as well. In the Vishaka case, the sexual harassment at workplace too is linked to the right to live with dignity. Hence, the verdict of the Supreme Court ruling on that right to privacy is a fundamental right as it is a part of the life right to life and liberty.
It is important to understand the implications of this verdict. This a full constitutional bench verdict made unanimously. Hence, this verdict affirms the independence of the Indian judiciary. This is important because of two facts. The political executive often tends to undermine the rulings of the Supreme Court without directly challenging the court. And the second reason is that the populist authoritarian tendencies often gave an impression that the union government will adopt policies and initiatives even if it meant undermining the basic fundamental rights guaranteed by the constitution of India.
This unanimous verdict linking it with Article 21 of the constitution of India makes right to privacy now a fundamental right. This also meant affirming the primacy of the constitution of India and reaffirming the right to live with dignity and liberty. In the Golaknath v State of Punjab case (1967), the Supreme Court held that fundamental rights included in the Part III of the constitution are given a ‘transcendental position’ and beyond the reach of the parliament. It also declared that any amendment to ‘take away or abridge’ a fundamental right conferred by Part III unconstitutional. In the famous Keshavanda Bharati v State of Kerala case, the Supreme Court held that parliament did not have power to destroy or emasculate the basic elements or fundamental features of the constitution, now known as the basic structure doctrine of the constitution where the parliament cannot alter the basic structure of the constitution.
By 1973, the basic structure doctrine triumphed in justice Hans Raj Khanna’s judgement in the landmark decision of Kesavananda Bharati v State of Kerala. Previously, the Supreme Court had held that the power of the parliament to amend the constitution was unfettered. However, in this landmark ruling, the court adjudicated that while the parliament has ‘wide’ powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution.
It is also important to understand the political context of this judgement. It is the context of the union government aggressively imposing Aadhaar (bio-metric-based unique identification card) to live or die in India and for anything and everything. This verdict is an assertion that no government can take the judiciary or the constitution for granted. It is also important that this verdict was in relation to a case filed challenging the imposition of Aadhaar everywhere. Due to the imposition of Aadhaar for everything and anything, those who suffer more are the poorest of the poor, particularly in getting access to the welfare schemes and pension. Hundreds of thousands people are denied welfare pension and other social protection measures because they did not have Aadhaar. Despite the Supreme Court ruling earlier, the union government went on imposing Aadhaar for every single interface with the government or to open a bank account or to get a mobile or to get a birth or death certificate.
The petition was filed by the Justice KS Puttaswamy, a former judge of the Karnataka High Court and others challenging that the biometric data and iris scan used in issuing Aadhaar card violated the citizens’ fundamental right to privacy as their personal data were not protected and are vulnerable to misuse, compromising the very safety of people. A group of senior advocates, including Soli Sorabjee, Indira Jaising and Gopal Subramanyam, appeared in this case. Subramnyam argued that ‘privacy is about freedom of thought, conscience and individual autonomy and none of fundamental rights can be exercised without assuming certain sense of privacy.’ He further argued that ‘liberty is fundamental to democracy and citizens cannot exist without privacy.’ It is important to note that these principles are core to the very idea of democratic republic of India based on fundamental rights and liberty of every citizens, which include the right to privacy.
Hence, by upholding the right to privacy as a fundamental right, the Supreme Court of India asserted the primacy of people and citizens with right to life and liberty being non-negotiable and forming the very fundamental DNA to the very birth, existence and future of an independent democratic republic of India. This verdict also affirmed that right to privacy is inherent in right to live with dignity and liberty.
This verdict will also have implications in terms of the validity and future of Aadhaar and also the ruling on Section 377 which criminalises gay sex. Hence, this verdict is not only a paradigm shift precedent in the case of India but also a very important landmark in the history of jurisprudence. This is also a landmark verdict in relation to the human rights discourse at the international level where once again the Indian Supreme Court made a significant contribution.

John Samuel is an international commentator on human rights, governance and development. He is executive director of Forum-Asia, Asian forum for Human Rights and Development. 

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