The right to privacy is not just a common law right, not just a legal right, not just a fundamental right under the Constitution.
By Alok Prasanna Kumar
The right to privacy is not just a common law right, not just a legal right, not just a fundamental right under the Constitution. It is a natural right inherent in every individual. This, in sum, is the law laid down by a nine-judge bench of the Supreme Court of India in K. Puttaswamy v Union of India. This finding of the Supreme Court has not come out of the blue. It is the inevitable conclusion of steady developments in the law in the last three decades where courts across the country, not just the apex court, have said that the right to privacy, to choose, to be free of unwanted intrusion and to determine what happens to their information, is a fundamental right under the Constitution. The judgment has consolidated the development of the law into a grand judgment of six concurring opinions that definitively lays down these principles.
The judgment is also part of the changing view of the Supreme Court on what are fundamental rights. From seeing them as distinct compartments against which to test laws (in A.K. Gopalan v State of Madras in 1950) to understanding them as a cumulative whole (Maneka Gandhi v Union of India) to now seeing them as boundaries which guarantee the dignity of a free individual in a modern republic, the courts have come a long way. Reading the right to privacy into each and every one of the fundamental rights in the Indian Constitution has meant that the scope and depth of these rights have been expanded. They have also taken the opportunity to definitely renounce the disgraceful majority judgment in ADM Jabalpur v S.S. Shukla, delivered at the height of the Emergency, which allowed the government to extinguish such rights at will.
The judgment also puts an end to some pernicious myths about the right to privacy. The six opinions delivered by the judges between them go to great lengths to point out that the right to privacy is not an elitist concern, not just a modern myth, or entirely irrelevant in the internet age. They have rejected any notion that the right to privacy is an impediment to social welfare in any way, and the idea that those who seek socio-economic security do not care about their civil and political rights.
Three elements are considered as the core to the right to privacy: Personal autonomy, the freedom to make choices and the right to determine what happens with information about oneself. The judges use slightly different terms for each but essentially stick to the well-known formulations that have been developed by scholars and courts around the world. These aspects, they find, are also reflected throughout Part III of the Constitution of India, which guarantees fundamental rights.
The consequence of this is also that the basis for state interference with privacy (by law or action) will have to meet the standards of the Constitution as interpreted by the Supreme Court over the years. The laws interfering with privacy will have to not only be just, fair and reasonable but also have to be based on the grounds enunciated in Part III. This expands the scope of judicial review of such laws and raises the burden on governments to ensure the constitutionality of laws.
The implications of this judgment go far above and beyond just the question of whether the Aadhaar scheme and law are valid. In this judgment itself, the SC has affirmed that sexual orientation is a part of the right to privacy (casting serious doubts over the fate of Section 377 of the IPC) and affirmed the right to choose one’s food habits (indirectly approving the Bombay High Court’s striking down parts of Maharashtra’s beef ban). The principles laid down here will go a long way in striking down some of the most regressive and tyrannical laws on the books.
Less clear, however, is this judgment’s impact on the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 and the larger scheme itself. The court consciously avoids trying to say anything specific about Aadhaar one way or another. It will be left to the subsequent benches which hear multiple challenges to Aadhaar to assess the circumstances and apply the principles suitably. The government will have to make clear to the court the objective with which it has sought to make Aadhaar mandatory in a given case, apart from defending the Aadhaar law itself.
What this judgment truly means will become clear in the days to come. If it is to mark a definitive turn in the understanding of fundamental rights, it will have to be applied uncompromisingly by the courts in the future. It would be a travesty if the bold assertions of the judges on privacy, rights, the state and constitutional values were to remain just words on paper, as courts avoid applying it for one reason or another. The burden of giving this landmark judgment full meaning rests with the judiciary itself as it is faced with laws that intrude into the lives of people. One hopes they rise to the challenge again.
Indian Express, August 25, 2017