Monday, 2 October 2017

Right to Privacy is a Fundamental Right - Intrinsic to Life and Liberty

On 24 August 2017, Thursday, the Supreme Court of India passed a landmark and progressive judgment. A constitutional bench of nine judges categorically held that the right to privacy is a fundamental right provided under Article 21 of the Constitution of India. It will be accorded the same protection as other fundamental rights under Chapter III of the Constitution; however, like all other fundamental rights, it is not absolute.

Key Highlights

  1. Right to Privacy is a Fundamental Right - it is intrinsic to Right to Life and Liberty; but not an Absolute Right
  2. The order affects all 134 crore Indians - this judgment is likely to have an immense impact upon a variety of pending matters.
  3. The historic judgement by the apex court has set the stage for the introduction of a new privacy law by the government.
  4. By linking privacy with human dignity and preservation of personal intimacies, the apex court has laid the legal ground for a fresh interpretation of controversial issues such as decriminalization of homosexuality.
  5. The apex court overruled previous judgments (which ruled that privacy is not a fundamental right) on the privacy issue. It overruled an eight-judge bench judgment in the MP Sharma case and a six-judge bench judgment in Kharak Singh case.

Detailed Report:

Apart from setting a new benchmark for Indian democracy and clearing all ambiguity on privacy, the historic judgement by the apex court has set the stage for the introduction of a new privacy law by the government. At the same time, by linking privacy with human dignity and preservation of personal intimacies, the apex court has laid the legal ground for a fresh interpretation of controversial issues such as decriminalization of homosexuality.

Acknowledging the pervasion of technology, the apex court identified privacy of information as a subset of the right to privacy. And in this, it said that the privacy of information can be threatened by both state and non-state actors - by implication, social media platforms could potentially come under the purview of the new interpretation of privacy.

The SC's judgment will touch the lives of 134 crore Indians and impact upon a variety of pending matters. In its 547-page judgment, the apex court overruled previous judgments on the issue - an eight-judge bench judgment in the MP Sharma case and a six-judge bench judgment in Kharak Singh case, both of which had ruled that privacy is not a fundamental right.

Any encroachment to privacy will have to subscribe to the “touchstone of permissible restrictions”, the bench said. Consequently, invasion of privacy will have to be justified against the standard of a “fair, just and reasonable” procedure.

The bench comprised Justices Khehar, J Chelameswar, S A Bobde, R K Agrawal, R F Nariman, A M Sapre, D Y Chandrachud, Sanjay K Kaul and S Abdul Nazeer. Attorney general K K Venugopal, who had argued that right to privacy cannot be a fundamental right, welcomed the SC decision.  "Whatever the 9-judge bench says is the correct law," said Venugopal.

The judgment includes within it six separate judgments from different judges, though the conclusion is unanimous. The judgment also included a two-page final order, which states that MP Sharma Kharak Singh are overruled, and the right to privacy is fundamental. The lead judgment of 265 pages was authored by Justice D.Y. Chandrachud and co-signed by Chief Justice Khehar and Justices Nazeer and Agrawal.

Full Judgment of the Supreme Court:




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