Right to Privacy: In Supreme Court verdict, freedom’s 7 takeaways

Rarely has so momentous a judgment been delivered so emphatically. Court has indicated that contours of privacy defined by it aren’t limitations to the right, but foundations over which it will develop over time.

Written by Sanjay R Hegde , Pranjal Kishore | Updated: August 25, 2017 10:48 am
right to privacy, right to end life, supreme court verdict The court has held that “the right to privacy is protected as 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”.

By Sanjay Hegde and Pranjal Kishore

A majority of Indians, particularly younger citizens, had taken the right to privacy for granted. The government’s extreme stand, that there was no fundamental right of privacy, compelled the Supreme Court to clarify years of slightly uncertain case-law on this point. The decision in Justice K S Puttaswamy (retd) and Anr versus Union of India and Anr has enormous implications.

The court has held that “the right to privacy is protected as 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 court has, with broad brushstrokes, enhanced and highlighted the right. Crucially, it has indicated that the contours of privacy mentioned in the judgment are not limitations to the right but foundations, over which it will develop over time.

RIGHT TO LIFE & LIBERTY: Justice D Y Chandrachud (joined by all others on the Bench) has explicitly overruled the Emergency era judgment in ADM Jabalpur v Shivkant Shukla (April 28, 1976). Justice Chandrachud’s father, Y V Chandrachud, was part of the majority on the Bench that had ruled that the fundamental right to life was a gift of the Constitution, which could be suspended during an Emergency. This is the first time that the court has explicitly overruled ADM Jabalpur. In the words of Justice Sanjay Kishan Kaul, ADM Jabalpur was “an aberration in constitutional jurisprudence” which has now been buried “ten fathom deep, with no chance of resurrection”.

SEC 377 of IPC COULD GO: The judgment implicitly overrules the judgment in Suresh Kumar Koushal & Anr v Naz Foundation & Ors (December 11, 2013), in which the Supreme Court upheld the validity of IPC Section 377, which criminalises “carnal intercourse against the order of nature” (homosexuality). Justice Chandrachud held that the sexual identity of the LGBT community is inherent in the right to life. The question of Section 377 is pending before a Bench of five judges and, after Thursday’s judgment, its striking down is the most likely outcome.

RIGHT TO TERMINATE LIFE: Justice J Chelameswar has held that an individual’s “rights to refuse life prolonging medical treatment or terminate his life is another freedom which falls within the zone of the right of privacy”. The question of euthanasia was originally decided by the court in Aruna Shanbaug’s case (Aruna Ramchandra Shanbaug vs Union Of India & Ors, March 7, 2011). However, the court had then proceeded on the footing that no violation of fundamental rights had been established. The matter is pending re-consideration before a Bench of five judges. The recognition of the right of a person to terminate his life will have a direct bearing on this case. Also, a petition seeking the right to refuse medical treatment was dismissed by the court in March this year. Now that the court has held that the right falls within the realm of the fundamental right to privacy, the right to refuse medical treatment may be legally recognised.

CONSUMPTION OF BEEF, ALCOHOL: Bombay High Court in Shaikh Zahid Mukhtar vs The State Of Maharashtra (May 6, 2016) held that consumption of beef is a part of the right to be left alone. In Confederation of Indian Alcoholic Beverages v The State of Bihar & Ors (September 30, 2016), Patna High Court struck down the total ban on alcohol in Bihar. Both these judgments have been challenged before the Supreme Court. On Thursday, Justice Chelameswar and Justice Chandrachud held that the right to food of one’s choice is part of the right to privacy. It is clear that the judgment is going to have a bearing on matters like consumption of beef and alcohol, both of which have been tendentious issues for years.

DATA PROTECTION: India has no statute regarding privacy or data protection. All six opinions expressed concern over data protection in today’s day and age; the court, however, shied away from giving specific directions in this regard. Instead, it expressed hope that the government would undertake this exercise after a careful balancing of privacy concerns and legitimate state interests. During the hearing, the court had been informed that the Ministry of Electronics and Information Technology has constituted a Committee of Experts to deliberate on a data protection framework.

WHATSAPP AND FACEBOOK: Justice Kaul expressed concern over “big data” in private hands. He observed that information, when shared voluntarily, may be said to be in confidence, and any breach of confidentiality is a breach of trust. This assumes great significance given that privacy concerns over WhatsApp and Facebook are pending adjudication before another Bench of five judges.

FUTURE OF AADHAAR: The immediate significance of the judgment is with regard to the future of Aadhaar. Justice Rohinton F Nariman rejected the Union’s argument that the right to privacy is not a fundamental right in a developing country where people do not have access to food, shelter and other resources — that right, he held, is available to both the rich and the poor. The Union had argued with respect to poverty from the beginning of these proceedings. A rejection of those arguments significantly limits the stand that the Union will be able to take before the Bench that finally hears the validity of the Aadhaar Act.

Rarely in constitutional history has so momentous a judgment been delivered so emphatically. The Government of India argued that 1.25 billion Indians could not claim a constitutionally guaranteed right to be left alone. That extreme position has been repelled by a pro-citizen judgment that shines like “a good deed in a naughty world” (Shakespeare, The Merchant of Venice). Surveillance states that seek totalitarian control are anathema to the rule of law. The court standing sentinel on the qui vive, has stood firm and repelled a frontal assault on citizens’ rights.

Hegde is a Senior Advocate in the Supreme Court of India. Kishore is a lawyer based in Delhi.

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  1. R
    Reader
    Nov 7, 2017 at 1:57 pm
    The biometrics-based Aadhaar program is inherently flawed. Biometrics can be easily lifted by external means, there is no need to hack the system. High-resolution cameras can capture your fingerprints and iris information from a distance. Every eye hospital will have iris images of its patients. So another person can CLONE your fingerprints and iris images without your knowledge, and the same can be used for authentication. That is why advanced countries like the US, UK, etc. did not implement such a self-destructive biometrics-based system. If the biometric details of a person are COMPROMISED ONCE, then even a new Aadhaar card will not help the person concerned. This is NOT like blocking an ATM card and taking a new one.
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    1. R
      Reader
      Nov 7, 2017 at 1:57 pm
      UK’s Biometric ID Database was dismantled. Why the United Kingdom's biometrics-linked National Identi-ty Card project to create a centralized register of sensitive information about residents similar to Aadhaar was scrapped in 2010?? The reasons were the massive threat posed to the privacy of people, the possibility of a surveillance state, the dangers of maintaining such a huge centralized repository of personal information and the purposes it could be used for, the dangers of such a centralized database being hacked, and the unreliability of such large-scale biometric verification processes. The Aadhaar program was designed in 2009 by mainly considering the 'Identi-ty Cards Act 2006' of UK, but the UK stopped that project in 2010, whereas India continued with the biometrics-based program. We must think why the United Kingdom abandoned their project and destroyed the data collected. (Google: 'Identi-ty Cards Act 2006' and 'Identi-ty Documents Act 2010' )
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      1. R
        Reader
        Nov 7, 2017 at 1:56 pm
        A centralized and inter-linked biometric database like Aadhaar will lead to profiling and self-censorship, endangering freedom. Personal data gathered under the Aadhaar program is prone to misuse and surveillance. Aadhaar project has created a vulnerability to identi-ty fraud, even identi-ty theft. Easy harvesting of biometrics traits and publicly-available Aadhaar numbers increase the risk of impersonation, especially online and banking fraud. Centralized databases can be hacked. Biometrics can be cloned, copied and reused. Thus, BIOMETRICS CAN BE FAKED. High-resolution cameras can capture your fingerprints and iris information from a distance. Every eye hospital will have iris images of its patients. So another person can clone your fingerprints and iris images without your knowledge, and the same can be used for authentication. If the Aadhaar scheme is NOT STOPPED by the Supreme Court, the biometric features of Indians will soon be cloned, misused, and even traded.
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        1. R
          Reader
          Nov 7, 2017 at 1:56 pm
          The US Social Security Number (SSN) card has NO BIOMETRIC DETAILS, no photograph, no physical description and no birth date. All it does is confirm that a particular number has been issued to a particular name. Instead, a driving license or state ID card is used as an identification for adults. The US government DOES NOT collect the biometric details of its own citizens for the purpose of issuing Social Security Number. The US collects the fingerprints of only those citizens who are involved in any criminal activity (it has nothing to do with SSN), and the citizens of other countries who come to the US.
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          1. V
            Vinod
            Aug 26, 2017 at 9:52 am
            The SC judgement on right to privacy is a extremely important and timely particularly at a time when the Indian citizens have been gradually losing his or her right to live a decent and dignified life guaranteed under the cons ution. There have been an increasing sign of over controlling regime which supplied oxygen to those far right groups to take law into their hands through unbridled intimidation and violence against disadvantaged groups in India in the name of religion, animal, dress code food habits and many such trivial issues forgetting all the while more substantive issues that affect millions of Indians. Through this judgment the citizens of India have claimed their rightful place in a democracy with its life blood of dissent and discussions on social and political issues.
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