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Monday, October 26, 2020

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 10:48:55 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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