A nine-judge Constitution Bench of the Supreme Court on August 24 ruled that right to privacy is “intrinsic to life and liberty” and is inherently protected under the various fundamental freedoms enshrined under Part III of the Indian Constitution.
Reading out the common conclusion arrived at by the nine-judge Bench, Chief Justice of India J.S. Khehar said the court had overruled its own eight-judge Bench and six-judge Bench judgments of M.P. Sharma and Kharak Singh cases delivered in 1954 and 1961, respectively, that privacy is not protected under the Constitution.
The Union government had argued that privacy is a common law right.
The nine-judge Bench comprised, besides Chief Justice Khehar, Justices J. Chelameswar, S.A. Bobde, R.K. Agrawal, Rohinton F. Nariman, Abhay Manohar Sapre, D.Y. Chandrachud and Sanjay Kishan Kaul.
The Bench was formed as the 1954 and 1961 judgments had dominated the judicial dialogue on privacy since Independence. Both judgments had concluded that privacy was not a fundamental or ‘guaranteed’ right. To overcome these two precedents, a numerically superior Bench of nine judges was required.
A five-judge Bench led by Chief Justice Khehar had referred the question whether privacy is a fundamental right or not to the nine-judge Bench.
The nine-judge Bench’s judgment gains international significance as privacy enjoys a robust legal framework internationally, though India has remained circumspect.
The judgment will have a crucial bearing on the government’s Aadhaar scheme that collects personal details, biometrics to identify beneficiaries for accessing social benefits and government welfare scheme.
A bunch of petitions were filed in the Supreme Court in 2015 challenging Aadhaar as a breach of privacy, informational self-determination and bodily integrity.
The petitioners argued that Aadhaar enrolment was the means to a “Totalitarian State” and an open invitation for personal data leakage.
The government had countered that the right to privacy of an “elite few” is submissive to the right of the masses to lead a dignified life in a developing country. It said informational privacy does not exist before compelling State interests and is not an absolute right.
It had reasoned that collection and use of personal data of citizens for Aadhaar — now a law under the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act of 2016 — benefits the lives of millions of poor by giving them direct access to public benefits, subsidies, education, food, health and shelter, among other basic rights. The government claimed Aadhaar was a panacea to end corruption in public distribution, money laundering and terror funding.
The apprehension expressed by the Supreme Court about collection and use of data was the risk of personal information falling in the hands of private players and service providers.
Both the government and service providers collect personal data like mobile phone numbers, bank details, addresses, date of birth, sexual identities, health records, ownership of property and taxes without providing safeguards from third parties.
National programmes like Aadhaar, NATGRID, CCTNS, RSYB, DNA profiling, reproductive rights of women, privileged communications and brain mapping involve collection of personal data, including fingerprints, iris scans, bodily samples, and their storage in electronic form. The Law Commission has recently forwarded a Bill on Human DNA profiling. All this adds to the danger of data leakage.
The Supreme Court had repeatedly asked the government whether it has plans to set up a “robust data protection mechanism”.
The government informed the Bench a committee of experts led by former Supreme Court judge, Justice B.N. Srikrishna, has already been constituted on July 31, 2017 to identify “key data protection issues” and suggest a draft data protection Bill.