When the Supreme Court decided to consider the question whether the right to privacy is a fundamental right, many were shocked and could not understand why that was a question that merited consideration in this day and age.
But now that the judgment is out, I am sure that we couldn’t be happier that the question was considered. Nine judges of the Supreme Court have unanimously declared that right to privacy is a fundamental right guaranteed by the Constitution of India. But that is not all that they have held. They have gone a lot further. The impact of this decision will be felt for years to come.
Six out of the nine judges have penned their thoughts and opinions. Here are the quick takeaways from the six opinions:
1. The decision in MP Sharma (1954) which holds that the right to privacy is not protected by the Constitution stands overruled.
2. The decision in Kharak Singh (1962) to the extent that it holds that the right to privacy is not protected by the Constitution also stands overruled.
3. Privacy has been recognised as an inherent fundamental right, resting in Article 21 and other articles of part III of the Constitution.
4. However, the right to privacy has not been held to be an absolute right. It is a qualified right subject to public interest, national security and other reasonable restrictions. Courts will conduct a case-by-case analysis to determine the scope of this right to privacy.
5. The right to privacy includes the right to control dissemination of personal information. The concurring opinion of Justice Kaul paves the way for recognising a right to be forgotten.
6. Justice Bobde has recognised that the right to privacy exists not just in private spaces but may exist in public spaces also.
7. The majority has recognised the need for data privacy regulation and have put the onus in that regard on the State. The State now needs to intervene to frame data regulation.
8. The Supreme Court decision in ADM Jabalpur stands overruled by the majority. Justice DY Chandrachud has held that the judgments rendered by all the four judges constituting the majority in ADM Jabalpur are seriously flawed. Interestingly one of those four judges was his father.
Justice Kaul has agreed with this view and expressly overruled the ADM Jabalpur case which he says “was an aberration in the constitutional jurisprudence of our country and the desirability of burying the majority opinion ten fathom deep, with no chance of resurrection”.
9. The majority has questioned the correctness of the decision of the Supreme Court in the Naz Foundation case. Sexual orientation has been held to be protected under the right to privacy.
Justice Chandrachud has held, “Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.”
He further goes on to hold that the rationale of the Supreme Court in the Naz Foundation case is seriously flawed. He expressly disagrees with the manner in which that case dealt with the privacy–dignity based claims of LGBT persons on this aspect.
However, he has also stated that since the challenge to Section 377 is pending consideration before a bench of the Supreme Court, we would leave the constitutional validity to be decided in an appropriate proceeding.
Justice Kaul agrees with him on this issue and reiterates, “Ones sexual orientation is undoubtedly an attribute of privacy”.
10. The problem that remains is that the judgment does not lay down any one test to determine when this right to privacy can be exercised.
Does this mean that the exercise of the fundamental right to privacy will be dependent on subjective or objective expectations? Will the starting point of the analysis be whether the claimant has a reasonable expectation of privacy?
The true impact of this judgment will be seen in times to come. A lot will depend on how the courts interpret the nine opinions. The judgment will open the flood gates for litigation but I don’t think that is a bad thing. It is time we developed our own jurisprudence on the right to privacy.
It also time we as a society learn to value our privacy more. This is just a start.
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