Right to Privacy, now a fundamental right

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by Zubair Lone

Zubair Lone

Prior to the recent landmark judgement of Supreme Court declaring privacy a fundamental right and an integral part of the fundamental rights enshrined in the Constitution, the Union Government of India had been forcefully claiming that the citizens of India did not have a fundamental right to privacy.

This claim of Union Government was based on two passing observations made by the Supreme Court in two previous judgements, one in 1954 and the other in 1962. The 1954 case was related to the search operations carried on the offices of Dalmia Group while the 1962 case considered the validity of certain rules imposed in Uttar Pradesh which permitted the police to picket, survey, track movement of history-sheeters and make domiciliary night visits.

The all-time low in the Indian judicial history has been the complete refusal to enforce fundamental rights during the proclamation of Emergency. It was Justice Y.V. Chandrachud of the Supreme Court who delivered the ADM Jabalpur judgment upholding the suspension of the right to life by a presidential order. By this decision, the court actually agreed with the then government to suspend fundamental rights and hence legitimized Emergency.

Coincidentally, in the recent judgement, it was Justice D.Y. Chandrachud, son of late Justice Y.V. Chandrachud, overruling his father’s judgement.

A generally rare, nine-judge Constitution Bench of the Supreme Court declared through an even rarer unanimous verdict that right to privacy is intrinsic to life and liberty under Article 21 and also a part of other freedoms guaranteed in the chapter of fundamental rights in the Constitution of India.

Privacy connotes a right to be left alone. Personal autonomy, the freedom to make choices and the right to determine what happens with information about oneself are the three elements considered as the core to the right to privacy. It also includes the preservation of personal intimacies, sanctity of family life, marriage, procreation, the home and sexual orientation.

“Privacy is the constitutional core of human dignity. Privacy ensures the fulfilment of dignity,” Justice D.Y. Chandrachud observed.

More importantly, the Supreme Court held that privacy is a natural right. Neither the state nor the constitution bestows natural rights on citizens. They inhere in human beings just because they are human. Natural rights exist equally in all humans irrespectively.

The Union Government had argued that privacy is an elitist concern and second to government’s social welfare priorities; in fact, an impediment to its development measures.

“The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised through history to wreak the most egregious violations of human rights. It is privacy, as an intrinsic and core feature of life and personal liberty, which enables individuals to stand up against a programme of forced sterilisation. It is the right to question, scrutinise, dissent which enables an informed citizenry to scrutinise the actions of government,” Justice Chandrachud said, addressing government’s arguments.

However, the court also held that privacy is not an absolute right. Right to privacy could be curtailed only when there is a “compelling state interest”.

Although the verdict was primarily provided context by the Aadhaar case and associated issues of data protection and privacy, the implications of this judgement go far beyond Aadhaar, to a broader spectrum of civil liberties like dignity, sexual autonomy, choosing one’s food habits and more. This judgment is sure to have a deep and progressive impact on a number of laws in the near future.

In the long run, seeing these bold assertions of Supreme Court on privacy getting implemented in their true letter and spirit would be a great milestone in the evolution of fundamental rights. From categorical slots against which to test laws to now seeing them as frontiers that recognize and guarantee the dignity of a free individual. And if they just remain on the paper, a great mockery.

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