This thing called privacyhttps://indianexpress.com/article/opinion/columns/fundamental-right-to-privacy-supreme-court-aadhaar-this-thing-called-privacy-4813710/

This thing called privacy

One salutary consequence is that the right to privacy cannot be curtailed or abrogated by merely enacting a statute but can be done only by a constitutional amendment after complying with certain constitutional prerequisites.

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Justice Chandrachud, quoting extensively from the writings of Nobel laureate Amartya Sen, said “criticism and critique lie at the core of democratic governance.

The ruling of the Supreme Court saying that privacy is a fundamental right can surely be included in the category of landmark judgments of the Supreme Court. One heartening feature is that it is unanimous in reaching its conclusion though there are separate concurring judgments. Privacy, which is a human right that inheres in every human personality, has been given the status of a fundamental right.

One salutary consequence is that the right to privacy cannot be curtailed or abrogated by merely enacting a statute but can be done only by a constitutional amendment after complying with certain constitutional prerequisites. Another heartening feature of the judgment is that the Supreme Court has rightly recognised that it is not infallible and it is open to reconsider, and if necessary, overrule its previous judgments if it is convinced that they were erroneous and not conducive to the protection and promotion of fundamental rights. To my mind, the most outstanding feature of the judgment is its recognition of the right to dissent and the necessity to practise tolerance.

If I may digress and point out what is the essence of the right to privacy. In 1928, the US Supreme Court held that wire-tapping of phones was permissible because this did not amount to an unlawful search of a person’s home and it restricted privacy to the physical level, namely the home of a person. The eminent American lawyer and justice Louis Brandeis disagreed and opined that with technological advances, the right to privacy could expand and in his memorable dissent ruled that the right to privacy was the right to be left alone, a right most cherished in a civilised society.

Our Supreme Court has, in substance, accepted Brandeis’s exposition of privacy. What is the consequence? The state or other official agencies cannot snoop to find out what food and drink a person had for dinner, who were the other persons at his dinner table, nor inquire about his sex relations with his spouse or partner. Justice D.Y. Chandrachud’s observations in the judgment are significant and far-reaching: “Both anonymity and privacy prevent others from gaining access to pieces of personal information yet they do so in opposite ways. Privacy involves hiding information whereas anonymity involves hiding what makes it personal. An unauthorised parting of the medical records of an individual which have been furnished to a hospital will amount to an invasion of privacy”.

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Justice Chandrachud went on to observe that “the state may assert a legitimate interest in analysing data borne from hospital records to understand and deal with a public health epidemic such as malaria or dengue to obviate a serious impact on the population. If the state preserves the anonymity of the individual it could legitimately assert a valid state interest in the preservation of public health to design appropriate policy interventions on the basis of the data available to it.”

Justice Chandrachud, quoting extensively from the writings of Nobel laureate Amartya Sen, said “criticism and critique lie at the core of democratic governance. Tolerance of dissent is equally a cherished value. In deciding a case of such significant dimensions, the court must factor in the criticisms voiced both domestically and internationally.” The submission of the Centre that privacy is an elitist construct was rejected. The court observed that “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.”

Remember that no fundamental right in our constitution is absolute and is subject to reasonable restrictions, namely restrictions which are not arbitrary nor disproportionate but have a rational relation to the object to be secured by the restriction. A person with HIV infection cannot, by concealing his condition, infect his spouse. Ultimately, it comes to balancing the interest of the person against the national or political or legitimate interest of others.

A curious feature of Justice D.Y. Chandrachud’s judgment is that he dissented from a previous Supreme Court judgment authored by his father, Justice Y.V. Chandrachud, which according to him was flawed. Happily, filial relations do not affect judicial independence.

A host of questions arise. What would be the effect of the nine-judge bench judgment on Section 377 of the IPC which criminalises sexual relations by consenting adults even in the privacy of their homes? In my view, the previous Division Bench judgment of the Supreme Court upholding the validity of Section 377 is unsustainable.

What happens to Aadhaar? That question has to be determined by analysing and applying the principles in the nine-judge bench judgment to Aadhaar on a case to case basis. No one knows. However, one thing is certain. There will be a flood of litigation occasioning further judgments on the subject.