Individual privacy a fundamental right, rules SC

New Delhi: In a historic ruling protecting the rights of all citizens, the Supreme Court on Thursday held that the “right to privacy” was protected as an intrinsic part of right to life and personal liberty under Article 21 and part of the fundamental freedoms guaranteed by the Constitution. A nine-judge Constitution Bench of Chief Justice J.S. Khehar and Justices J. Chelameswar, S.A. Bobde, R.K. Agrawal, Rohinton F. Nariman, A.M. Sapre, D.Y. Chandrachud, Sanjay Kishan Kaul and Abdul Nazeer thus overruled the decisions in the 1954 M.P. Sharma case and the 1963 Kharak Singh case by a bench of eight and six judges respectively.

The privacy issue arose because of the Centre pushing its agenda of making the Aadhaar card with its biometric, iris and other data, mandatory for availing several services, including banking transactions and for filing of income-tax returns. A five-judge Constitution Bench had referred the case to a larger nine-judge bench on July 18. In light of Thursday’s order, the validity of the Aadhaar Act will now be tested on the touchstone of right to privacy by a three-judge bench in due course.

In 1954, it was held that right to privacy was not protected by the Constitution and in 1963 it was again held that it was not protected by the Constitution. The nine-judge bench has now overruled this — the unanimous judgment unequivocally recognises right to privacy as a fundamental right.

Justice Chandrachud delivered the judgment on behalf of Chief Justice Khehar and Justices Agrawal, Abdul Nazeer and himself. Justices Chelameswar, Bobde, A.M. Sapre, Rohinton Nariman and Sanjay Kishan Kaul gave separate but concurring judgments with some additional reasons.

Justice Chandrachud’s main order said: “The right to privacy has been held 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.

The court said it was the State’s duty to safeguard the ability to take decisions — the autonomy of individuals — and not to dictate those decisions. To live was to live with dignity. “Life”, within the meaning of Article 21, was not confined to the integrity of physical privacy. Privacy, with its attendant values, assures dignity to the individual and it is only when life can be enjoyed with dignity can liberty be of true substance. Privacy ensures the fulfillment of dignity and is a core value, which the protection of life and liberty is intended to achieve.

The court also disagreed with the ruling in the gay rights case — criminalising Section 377 IPC — and said while the court had held that the right to privacy was part of the right to life and liberty, it had upheld the provision. Its said: “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 the prosecution of a few is not an index of violation is flawed, and can’t be accepted. Consequently, we disagree with the manner in which the Koushal case dealt with the privacy-dignity based claims of LGBT persons on this aspect.”

With the Supreme Court disagreeing with some aspects of its order upholding Section 377 IPC in 2013, and effectively saying sexual orientation was an essential attribute of privacy, Thursday’s ruling seemed to lay the ground for the eventual decriminalising of gay sex when it hears a curative petition challenging Section 377.

Sexual orientation, the court said, was an “essential component of identity” and the rights of lesbian, gay, bisexual and transgender population are “real rights founded on sound constitutional doctrine”. Justice D.Y. Chandrachud said in his judgment: “Privacy includes at its core the preservation of personal intimacies, sanctity of family life, marriage, procreation, home and sexual orientation... Privacy also connotes a right to be left alone.”

It said: “The attorney-general argued before us that the right to privacy must be forsaken in the interest of welfare entitlements provided by the State. In our view, the submission that the right to privacy is an elitist concept and aspirations of the large majority constituting the rest of society is unsustainable.”

Rejecting this argument, the court declared the A-G’s submission betrays a misunderstanding of the constitutional position. The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised though history to wreak the most egregious violations of human rights. Above all, it must be realised it is the right to question, the right to scrutinise and the right to dissent which enables an informed citizenry to scrutinise the actions of the government.”

On the A-G’s argument that privacy was the privilege of a few rich people, the court said: “We need to emphasise the lack of substance in the submission that privacy is a privilege for the few. Every individual in society, irrespective of social class or economic status, is entitled to the intimacy and autonomy which privacy protects. It is privacy as an intrinsic and core feature of life and personal liberty which enables an individual to stand up against a programme of forced sterilisation.”

The court added: “It is privacy which is a powerful guarantee if the State were to introduce compulsory drug trials of non-consenting men or women. The sanctity of marriage, liberty of procreation, choice of a family life and the dignity of being are matters which concern every individual irrespective of social strata or economic well-being. The pursuit of happiness is founded upon autonomy and dignity. Both are essential attributes of privacy, making no distinction between the birthmarks of individuals.”

The high-voltage hearing saw a battery of senior lawyers, including attorney-general K.K. Venugopal, additional solicitor-general Tushar Mehta, Arvind Datar, Kapil Sibal, Gopal Subaramaniam, Shyam Divan, Anand Grover, C.A. Sundaram and Rakesh Dwivedi, advancing arguments either in favour or against the inclusion of right to privacy as a fundamental right.

The petitioners in the case included former Karnataka high court judge K.S. Puttaswamy, first chairperson of the National Commission for Protection of Child Rights, Magsaysay Award winner Shanta Sinha, feminist researcher Kalyani Sen Menon and others who challenged the validity of the Aadhaar scheme on the grounds of it being violative of the right to privacy.