While the judgement does not strictly defines the right to privacy or catalogue all of its parts, it has attempted to address the broad arguments that are used in justification of and in opposition to privacy.
The judgment by the nine-judge bench of the Supreme Court was an emphatic, if belated, avowal of the the right to privacy. A unanimous decision by a bench of this size is rare, but what is rarer is that in a matter of 547 pages, the judgment not only upholds the position of the debated right to privacy, it also does a great job in individually taking apart many different arguments used to question the fundamental nature of this right.
The judgment by Chief Justice J.S. Khehar and Justices R.K. Agrawal, D.Y. Chandrachud and S. Abdul Nazeer, while evaluating different theories of privacy, also takes a trip down various critiques of the concept of privacy. It includes arguments by the likes of American moral philosopher and metaphysician Judith Jarvis Thomson, American judge and legal scholar Robert Bork, which accuses judicial pronouncements on privacy of judicial overreach by creating new laws, and American jurist and economist Richard Posner’s economic critique of privacy. These critiques, while denying a separate right to privacy, attempt to locate certain instance of infringements of privacy in other rights, most notably, ordered liberty. Justice Chandrachud effectively counters this argument by pointing out that fundamental rights do not exist in isolation from each other. While liberty may be a broader right, privacy allows individuals to define themselves and thus, is a pre-condition to liberty.
The other argument made repeatedly by the respondents during the course of the arguments is that privacy is too ambiguous a right, and this ambiguity renders it unsuitable. With respect to this question, the judgment looks at scholarly works and broadly lays out the contents of the right. Justice S.A. Bobde compares the definitional challenges around privacy to other established rights such as life and equality. This difficulty, as he states, is a feature of constitutional rights and is no rationale for denying the qualification of a fundamental right.
The next argument that the judgment responds to is that the right to privacy is outside the design of the constitution, and that the constituent assembly discussed and rejected any notions of such a right. The respondents argued that recognising the right to privacy would amount to creating a constitutional amendment which only the parliament could do. The judgment points to numerous rights read into the constitution by the court such as the right to go abroad, the right to legal aid, the right to freedom from torture, none of which amounts to amending the constitution. Rather, it is an exercise in interpreting the existing rights and understanding what is included within their ambit.
Further, the judgment deals with the ludicrous argument that statutory protection of privacy through a data protection law is grounds to deny it the status of a constitutional right. As the judgment states, this contention betrays a complete lack of understanding of fundamental rights. It is explained that once recognised as a fundamental right, privacy assumes inviolable status – one which is even beyond the scope of legislative modification. The purpose is to protect the right from popular opinion and legislative compulsions.
The judgment dispels the notion that privacy is an elitist concern. Justice Chandrachud states, “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.” The judgment addresses the false dichotomy between civil/political rights and socio-economic rights, reflected in the privacy versus development argument. The right to make choices, the sanctity of marriage, the liberty of procreation, the choice of a family life and the dignity of being are some of the dimensions of privacy mentioned which are in no way only the privilege or the concern of a few, but are entitlements of each and every one of us.
While the application of the right to privacy as recognised by this judgment will be tested in future cases, the status of privacy as a fundamental right has been established beyond question. The systematic and organised response to each of the respondents’ contentions will also prove instructive for future cases when faced with such arguments. While taking the advice of the lawyers to not strictly define the right to privacy or catalogue all of its parts, the judgment has attempted to address the broad arguments that are used in justification of and in opposition to privacy. This exercise, hopefully, will come handy in future debates on civil liberties.
Amber Sinha is a lawyer who works at the Centre for Internet and Society.