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| Edited By: PK Malhotra |Source: DNA |Updated: Aug 25, 2017, 03:05 AM IST
In a unanimous verdict delivered today by nine Judges Bench of the Supreme Court, right to privacy has been held to be a fundamental right guaranteed by the Constitution of India. The Judges have said that privacy comes under the right to life and liberty under article 21 of the Constitution.
The Supreme Court has not only overruled the argument advanced by the Government that right to privacy cannot be a fundamental right, it has also overruled its two earlier judgements in the case of M.P. Sharma, delivered in 1954 and Kharak Singh case delivered in 1962 - both of which had ruled that privacy is not a fundamental right.
Today's judgement, in my opinion, will have no impact on the Aadhar scheme as the issue before the nine judges Bench was only with regard to right to privacy as fundamental right. Now a smaller Bench of the Court will look into the issue relating to Aadhar on the touchstone of principles laid down by the nine judges Bench.
This ruling is important as it has put at rest the controversy raised on the issue of right to privacy. It has not only cleared air on the stand taken by the Government, more particular with regard to protection of data collected by the government agencies, it has also over ruled earlier judgements which were, perhaps, delivered in a different context. In this age of technology, the right to privacy has acquired a different dimension and the citizens are looking for a law which will stop misuse of personal information collected not only by the government agencies but also by other service providers. In fact, there are judgements by the Supreme Court in the past also where right to privacy has been held to be part of article 21 (See Govind Vs. State of MP, AIR 1975 SC 1378). In fact what was implicit in law has now been made explicit. The present judgement is in sync with the progressive interpretation given by the Courts to Article 21 of the Constitution during the last four decades.
I don't think there is need to change any law. However, the Government must ensure that the judgement delivered by the Supreme Court is implemented in letter and spirit. The big issue is to find a way to ensure that the data collected by the government agencies as well as by other service providers is not misused and also not used for unauthorized purposes. The law enacted by the Parliament relating to Aadhar makes provision for protection of data collected under it. This is not enough to deal with larger issue of right to privacy. An independent robust law on data protection is need of the hour.
In a way, the judgement puts a restriction on the power of the State to some extent. Now any law made by the Legislature affecting right to privacy will be tested on the touch stone of principles laid down in the chapter relating to Fundamental rights, more particularly article 14, 19 and 21 of the Constitution.
The clarity brought by the judgement that the right to privacy is a fundamental right may lead to some more petitions being filed in the court, may be by way of PIL, for review of some of its earlier judgements like banning of gay sex etc. However, it needs to be remembered that privacy, even though a fundamental right, has varied connotations. Therefore, it will be difficult to lay down principles in a strait jacket formula as to what will constitute violation of right to privacy. It will have to be decided on case to case basis.-PK Malhotra is former Union Secretary, Department of Legal Affairs and Legislative Department.
Former Union Secretary, Dept of Legal Affairs and Legislative Dept
