Privacy is your Right: SC

In a landmark judgement that will have far-reaching impact, a nine-judge bench of the Supreme Court on Thursday unanimously declared that privacy is a Fundamental Right under the Constitution.

Today's 547-page judgement means that the Centre will now have to convince the Supreme Court that asking the citizens to give a sample of their fingerprints and iris scan does not violate privacy and it would be incumbent upon the five-judge bench of the Supreme Court hearing the Aadhaar case to see if it passes the test privacy as a Fundamental Right.

The Right to Privacy will however be subject to restrictions that are fair, just and reasonable.

Pronouncing its judgement, the Constitution bench headed by Chief Justice Jagdish Singh Khehar ruled that "Right to privacy is an intrinsic part of Right to Life and Personal Liberty under Article 21 and entire Part III of the Constitution."

In doing so, the Bench overruled the two earlier judgements of the Supreme Court — one by an eight-judge bench and another by a six-judge bench – that had ruled that right to privacy was not protected under the Constitution.

Chief Justice Khehar, who read the operative portion of the judgement, said the subsequent verdicts pronounced after MP Sharma and Kharak Singh cases have laid down the correct position of the law.

The decision to set up the nine-judge bench was taken to examine the correctness of the judgements in the Kharak Singh and MP Sharma cases.

Significantly, the Bench also overturned the decades old judgement in the Additional District Magistrate, Jabalpur versus Shivkant Shukla case delivered in 1976, also known as the Habeas Corpus case. The petitioners include former Karnataka High Court Judge KS Puttaswamy, first Chairperson of the National Commission for Protection of Child Rights and Magsaysay award recipient Shanta Sinha and others who have challenged the validity of the Aadhaar.

The Bench had reserved its verdict on August 2 after a marathon hearing spread over several days during which it heard eminent lawyers put forth arguments in favour of and against the Right to Privacy as a Fundamental Right.

The verdict will have a bearing on whether the government can make Aadhaar mandatory. The issue of whether Aadhaar violates right to privacy will be dealt with by a five-judge bench which has been hearing the petitions since 2015.

The nine-judge bench was constituted after the question of whether Right to Privacy was a Fundamental Right under the Constitution cropped up during hearing of a batch of petitions, including one by a former Karnataka High Court judge, challenging the BJP-led NDA Government's move to make Aadhaar mandatory for availing the benefits of various social welfare schemes.

Apart from CJI Khehar, other members of the bench were Justices J Chelameswar, SA Bobde, RK Agrawal, RF Nariman, AM Sapre, DY Chandrachud, SK Kaul and S Abdul Nazeer. While Justice Chandrachud penned the main judgement, Justices Chelameswar, Bobde, Nariman, Sapre and Kaul also penned separate but concurring judgements.

While the Centre had argued that Right to Privacy is not a Fundamental Right, the petitioners had contended that when a citizen gives his biometrics and personal details to the government and when in turn that is used by commercial organisations, it is a breach of privacy.

Arguing for the Centre, Attorney General KK Venugopal had told the Bench that even if Right to Privacy was considered a Fundamental Right, all aspects of privacy can't be placed under the fundamental rights category.

"There is a Fundamental Right to Privacy, but it is wholly qualified since the Right to Privacy consists of various aspects and is a sub-species of the Right to Liberty, every aspect of it will not qualify as a Fundamental Right," he had told the Bench headed by the CJI.

However, counsel for the petitioners had contended that the Right to Privacy was "inalienable" and "inherent" to the most important Fundamental Right which is the Right to Liberty. They had said that Right to Liberty, which also included Right to Privacy, was a pre-existing "natural right" which the Constitution acknowledged and guaranteed to the citizens in case of infringement by the state.

While reserving the verdict, the Bench had voiced concern over the possible misuse of personal information in the public domain and said that protection of the concept of privacy in the all-pervading technological era was a "losing battle".

During the arguments earlier, the Bench had observed that the Right to Privacy couldn't be an absolute right and the state would have power to put reasonable restrictions.

HISTORIC JUDGEMENT TO HAVE FAR-REACHING IMPACT

ISSUES THAT WERE BEFORE THE SUPREME COURT BENCH

Is there a constitutionally-protected right to privacy?
If yes, whether this has the character of an independent fundamental right or whether it arises from within the existing guarantees of protected rights

Doctrinal foundations of claim to privacy
The content of privacy and nature of State’s regulatory powers

THE TWO SC JUDGEMENTS THAT WERE OVERTURNED

Decision in MP Sharma and Others versus Satish Chandra, District Judge, Delhi, case (1954) which held that right to privacy is not protected by the Constitution stands overruled. An 8-member Bench had ruled search or seizure does not infringe constitutional right guaranteed by Article 20(3).
Decision in Kharak Singh versus State Of UP & Others case (1962) to the extent that right to privacy is not protected by the Constitution stands overruled. A 6-member Bench had ruled that freedom to move freely guaranteed by Article 19(1)(d) was not infringed by a midnight knock on the door of the petitioner.

IMPLICATIONS FOR...

Section 377
SC’s remark that sexual orientation is undoubtedly an attribute of privacy has enthused campaigners who argue that Sec 377, which criminalises homosexuality, violates rights to privacy

Beef laws
Beef consumption ban in many states may be subjected to scrutiny. “I do not think that anybody would like to be told by the State as to what they should eat,” Justice J Chelameswar said.

Aadhaar
Now, the world’s biggest biometric programme, facing allegations of data leak and privacy breach, may face stricter judicial scrutiny. A smaller bench of the Supreme Court has to rule on the issue.

Internet
Social media platforms such as Facebook, Twitter, Internet giant Google and others may have to tighten privacy norms on storing and sharing personal data.