The nine-judge bench has now asked the government to come up with a data protection mechanism that balances the rights of individuals and the interests of state.SC ruled that right to privacy is part of the fundamental freedoms guaranteed by the constitution. Credit: PTINew Delhi: In a historical ruling, the Supreme Court on Thursday (August 24) held that the ‘right to privacy’ is protected as an intrinsic part of the right to life and personal liberty under Article 21 and is a part of the fundamental freedoms guaranteed by the constitution.A nine-judge bench comprising Chief Justice J.S. Khehar, J. Chelameswar, S.A. Bobde, R.K. Agrawal, Rohinton Nariman, A.M. Sapre, Sanjay Kishan Kaul, D.Y. Chandrachud and Abdul Nazeer in a 547-page verdict overruled the decisions in the 1954 M. P. Sharma case and 1963 Kharak Singh case.The issue of privacy arose in light of the Centre pushing its agenda of making the Aadhaar card, with biometric, iris and other information, mandatory for availing several services, including for banking transactions and for the filing of income tax returns. A five-judge constitution bench had referred to the nine judges to adjudicate on this issue. In light of today’s judgment, the validity of the Aadhaar legislation will be tested by a three-judge bench in due course.Justice D.Y Chandrachud delivered the judgment on behalf of Chief Justice Khehar, and Justices Agrawal and Nazeer. Justices Chelameswar, Bobde, Sapre, Nariman and Kaul delivered separate but concurring judgments with additional reasons.Justice Chandrachud’s main judgmentThe judgment said:“Right to privacy has been held to be a fundamental right of the citizen being an integral part of Article 21 of the constitution. Life is precious in itself. But life is worth living because of the freedoms, which enable each individual to live life as it should be lived. The best decisions on how life should be lived are entrusted to the individual. They are continuously shaped by the social milieu in which individuals exist.”The court said the strength of Indian democracy lies in the foundation provided by the constitution to liberty and freedom. Liberty and freedom are values, which are intrinsic to our constitutional order. But they also have an instrumental value in creating conditions in which socio-economic rights can be achieved.Life and personal liberty are inalienable rights. These are rights which are inseparable from a dignified human existence. The dignity of the individual, equality between human beings and the quest for liberty are the foundational pillars of the Indian constitution;Life and personal liberty are not creations of the constitution. These rights are recognised by the constitution as inhering in each individual as an intrinsic and inseparable part of the human element which dwells within;Privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the constitution. Elements of privacy also arise in varying contexts from the other facets of freedom and dignity recognised and guaranteed by the fundamental rights contained in Part III;Judicial recognition of the existence of a constitutional right of privacy is not an exercise in the nature of amending the constitution nor is the court embarking on a constitutional function of that nature which is entrusted to parliament;Privacy is the constitutional core of human dignity. Privacy has both a normative and descriptive function. At a normative level privacy sub-serves those eternal values upon which the guarantees of life, liberty and freedom are founded. At a descriptive level, privacy postulates a bundle of entitlements and interests, which lie at the foundation of ordered liberty;Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being;This court has not embarked upon an exhaustive enumeration or a catalogue of entitlements or interests comprised in the right to privacy. The constitution must evolve with the felt necessities of time to meet the challenges thrown up in a democratic order governed by the rule of law. The meaning of the constitution cannot be frozen on the perspectives present when it was adopted. Technological change has given rise to concerns which were not present seven decades ago and the rapid growth of technology may render obsolescent many notions of the present. Hence the interpretation of the constitution must be resilient and flexible to allow future generations to adapt its content bearing in mind its basic or essential features;A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. In the context of Article 21 an invasion of privacy must be justified on the basis of a law, which stipulates a procedure, which is fair, just and reasonable. The law must also be valid with reference to the encroachment on life and personal liberty under Article 21. An invasion of life or personal liberty must meet the three-fold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate state aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them;Privacy has both positive and negative content. The negative content restrains the state from committing an intrusion upon the life and personal liberty of a citizen. Its positive content imposes an obligation on the state to take all necessary measures to protect the privacy of the individual.The court overruled the ADG Jabalpur judgment in which the top court by a 4:1 majority held that during the Emergency imposed by Indira Gandhi, the fundamental right to life and liberty could be suspended by the government. Interestingly, former Chief Justice Y.V. Chandrachud was one of the four judges who toed the government-line and H.R. Khanna in his minority judgment held that fundamental rights couldn’t be curtailed under any circumstances.Today, Justice D.Y. Chandrachud, son of the former chief justice, held that the ruling given by the four judges in ADG Jabalpur was a flawed one. The judgments rendered by all the four judges constituting the majority in ADM Jabalpur are seriously flawed. Life and personal liberty are inalienable to human existence. These rights are, as recognised in Kesavananda Bharati, primordial rights. They constitute rights under natural law. The human element in the life of the individual is integrally founded on the sanctity of life. Dignity is associated with liberty and freedom. No civilised state can contemplate an encroachment upon life and personal liberty without the authority of law.The court also faulted the criminalising of homosexuality under section 377 of the IPC and said though the court had held that right to privacy was part of right to life and liberty, it had upheld the provision.The view in Koushal that the high court had erroneously relied upon international precedents “in its anxiety to protect the so-called rights of LGBT persons” is similarly, in our view, unsustainable. The rights of the lesbian, gay, bisexual and transgender population cannot be construed to be “so-called rights”. They inhere in the right to life.The court, faulting the earlier judgment, said they dwell in privacy and dignity.They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination.The chilling effect is due to the danger of a human being subjected to social opprobrium or disapproval, as reflected in the punishment of crime. Hence, the Koushal rationale that prosecution of a few is not an index of violation is flawed and cannot be accepted. Consequently, we disagree with the manner in which Koushal has dealt with the privacy – dignity based claims of LGBT persons on this aspect.The court also asked the government to come out with a data protection mechanism, for which a committee headed by Justice B.N. Srikrishna has already been constituted, and instructed that the data protection should balance the rights of individuals and interests of state.
