SC verdict on right to privacy: Judges demolish Centre’s stand that privacy is elitist concept

August 24, 2017 07:53 pm | Updated 11:26 pm IST - NEW DELHI

A view of the Supreme Court of India.

A view of the Supreme Court of India.

The nine-judge Bench dealt with the question of right to privacy in six separate judgments spanning to 547 pages. Here is what each judgment, all concurring that right to privacy is a fundamental right, has to say:

Justice Chandrachud's judgment for himself, Chief Justice Khehar, R.K. Agrawal and S. Abdul Nazeer:

Privacy is a concomitant of the right of the individual to exercise control over his or her personality. Natural rights (like privacy) are inalienable because they are inseparable from the human personality. The right to privacy has been traced in the decisions which have been rendered over more than four decades to the guarantee of life and personal liberty in Article 21.

On dignity and privacy: To live is to live with dignity. 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 fulfilment of dignity.

Answering the Centre's argument that the SC has no power to inject privacy as a “new fundamental right” in the Constitution: To recognise the value of privacy as a constitutional entitlement and interest is not to fashion a new fundamental right by a process of amendment through judicial fiat. Judicial review certainly has the task before it of determining the nature and extent of the freedoms available to each person under the fabric of those constitutional guarantees which are protected.

To Centre's argument that privacy is a common law right: The fact that a right may have been afforded protection at common law does not constitute a bar to the constitutional recognition of the right. Once privacy is held to be an incident of the protection of life, personal liberty and of the liberties guaranteed by the provisions of Part III of the Constitution, the submission that privacy is only a right at common law misses the wood for the trees.

To Centre's argument that privacy need not be made a constitutional right and can be protected through parliamentary statutes: A statutory right can be modified, curtailed or annulled by a simple enactment of the legislature. In other words, statutory rights are subject to the compulsion of legislative majorities. The purpose of infusing a right with a constitutional element is precisely to provide it a sense of immunity from popular opinion and, as its reflection, from legislative annulment.

To Centre's argument that privacy is an “elitist construct”: Every individual in society irrespective of social class or economic status is entitled to the intimacy and autonomy which privacy protects. 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.

Justice Chelameswar

Justice J. Chelameswar: Fundamental rights are the only constitutional firewall to prevent State’s interference with those core freedoms constituting liberty of a human being. The right to privacy is certainly one of the core freedoms which is to be defended. It is part of liberty within the meaning of that expression in Article 21.

Justice Bobde

Justice S.A. Bobde: The first and natural home for a right of privacy is in Article 21 at the very heart of ‘personal liberty’ and life itself. There are innumerable activities which are virtually incapable of being performed at all and in many cases with dignity unless an individual is left alone or is otherwise empowered to ensure his or her privacy. Birth and death are events when privacy is required for ensuring dignity amongst all civilized people.

Justice Nariman

Justice Rohinton F. Nariman on privacy as an elitist construct: A large number of poor people that the Centre (Attorney-General K.K. Venugopal talks about are persons who in today’s completely different and changed world have cell phones, and would come forward to press the fundamental right of privacy, both against the Government and against other private individuals. We see no antipathy whatsoever between the rich and the poor in this context.

On Centre's argument that privacy need not be made a constitutional right and can be protected through parliamentary statutes: Statutory law can be made and also unmade by a simple Parliamentary majority. In short, the ruling party can, at will, do away with any or all of the protections contained in the statutes mentioned hereinabove. Fundamental rights, on the other hand, are contained in the Constitution so that there would be rights that the citizens of this country may enjoy despite the governments that they may elect.

Justice Sapre

Justice A.M. Sapre: Right to privacy is a part of fundamental right of a citizen guaranteed under Part III of the Constitution. However, it is not an absolute right but subject to certain reasonable restrictions.

Justice Kaul

Justice Sanjay Kishan Kaul: Privacy is nothing but a form of dignity, which itself is a subset of liberty. Thus, from the one great tree, there are branches, and from these branches there are sub-branches and leaves. Every one of these leaves are rights, all tracing back to the tree of justice. They are all equally important and of equal need in the great social order. They together form part of that ‘great brooding spirit’. Denial of one of them is the denial of the whole, for these rights, in manner of speaking, fertilise and nurture each other.

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