Right To Privacy In India

May 31, 2018 214 views
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A 9 judge bench headed by the Chief Justice of India J S Khehar and comprising Justices J Chelameswar, S A Bobde, R K Agrawal, R F Nariman, A M Sapre, D Y Chandrachud, S K Kaul and S Abdul Nazeer of the Hon’ble Supreme Court of India unanimously held in its recent judgment ‘K.S. Puttaswamy v. The Union of India’ that “The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.” The retired judge of Karnataka High Court, Justice Puttaswamy, 91, in 2012 was one of the original petitioners to have challenged the decision to make Aadhaar enrollment mandatory for all citizens.

In the 547-pages long judgment, Dr. D.Y. Chandrachud, J writing for himself and on behalf of J.S. Khehar, CJ, S.A. Nazeer and R.K. Agrawal, JJ, said that “it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being.” On the issue of Data Protection, he said: “Informational privacy is a facet of the right to privacy.”

The rights of the LGBT community decided in Suresh Kumar Koushal v. NAZ Foundation, (2014) 1 SCC 1 were also addressed in the judgment. It was held that thediscrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual and that the equality demands thatthe sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lies at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.

All the other judges wrote separate but concurring judgments and had different arguments as to how privacy is intrinsic to right to life and personal liberty. Bobde, J, in his judgment, explained the test of privacy and said that privacy may be understood as the antonym of publicity. The laws laid down in the infamous case of ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521 was also discussed by Nariman, J, and according to him after this judgment the majority judgment in the aforesaid case will no longer be a good law and that only Khanna, J.’s dissenting opinion in this judgment will be the correct version of the law. The presence of DY Chandrachud, J, in this bench makes this overruling quite interesting, as his father and ex-CJI YV Chandrachud was the part of the bench that constituted the majority judgment in Shivakant Shukla case. So, technically a son over-ruled judgment of his father.

The judgment other than touching very crucial issues on personal life and choice included two page final order in which states that the law laid down in M.P. Sharma v. Satish Chandra in 1958 and Kharak Singh v.State of U.P in 1961 were overruled and all the decisions subsequent to Kharak Singh case where it has been held that Privacy is a fundamental right, lay down the correct position in law. Thus, this judgment reconciles the divergence of opinions and the inconsistencies arising out from these two judgments which led to different interpretations on whether the right to privacy is a fundamental right or not.

The decision carries a significant value as it going to influence the contemporary debate on AADHAR, India's biometric identity scheme which is believed to an open invitation for personal data leakage and several other surveillance issues.This apprehension was also expressed by Chandrachud, J, “I don’t want the state to pass on my personal information to some 2,000 service providers who will send me WhatsApp messages offering cosmetics and air conditioners... That is our area of concern. Personal details turn into vital commercial information for private service providers.”.

The ambiguity on the scope of privacy as a right in India allowed the government to collect and compile both demographic and biometric data of residents. The government's push for Aadhaar to mandatorily link it to avail various services provided by the government has led to its wide acceptance as proof of identity was said to be contravening the privacy of the individuals and led to this much-coveted public v. private constitutional battle which has finally been settled by the apex court.

However, this verdict has not decided on the constitutionality of the AADHAR yet. For now, the bench hearing the constitutional challenge to Aadhaar passed an interim order restricting compulsory linking of AADHAR to avail benefits and. The Aadhaar hearings, which were cut short, are expected to resume shortly.

Senior lawyers appearing on the behalf of the petitioners were Gopal Subramanium, Shyam Divan Arvind Datar, Soli J.Sorabjee, Anand Grover, Sajan Poovayya, Meenakshi Arora, Kapil Sibal and J.S.Attri.Whereas on the side of respondents, lawyers appearing were Attorney General K.K.Venugopal, Additional Solicitor General Tushar Mehta, C.A.Sundaram, Rakesh Dwivedi (for Gujarat), Gopal Sankaranarayanan, (Centre for Civil Society) and Arghya Sengupta (Haryana and TRAI).

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