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Saturday, December 07, 2019

Right to Privacy: We, the private people

With the landmark Right to Privacy verdict, SC expands the individual’s fundamental rights, etches firmer boundaries for the state. It also shows an admirable capacity to self-correct

By: Editorial | Updated: December 24, 2018 6:31:48 pm
right to privacy, privacy fundamental right, supreme court privacy verdict, privacy fundamental right, world news, indian express news “Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity in creating a zone of solitude,” the court said.

On Thursday, the fundamental rights of the Indian citizen got more teeth against arbitrary action of the state. The Supreme Court’s ruling that the “Right to Privacy is an integral part of the Right to Life and Personal Liberty guaranteed in Article 21 of the Constitution” will be seen in the light of its immediate context — the Aadhaar case. But the unanimous verdict of the nine-judge bench is much more far-reaching than that.

“Privacy enables each individual to take crucial decisions which find expression in the human personality. It enables individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demands of homogeneity. Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity in creating a zone of solitude,” the court said. At a time when individuals are being told what to eat, who to love and marry, to respect or oppose, this assertion of the citizen’s autonomy sends out an important message to both society and the state.

The nine-judge bench was necessitated because while several judgments in the past 40 years have held that there is a common law right to privacy — against other individuals and entities — these rulings did not unequivocally empower the citizen vis-a-vis the state. In 2015, during the litigation on the Aadhaar scheme, Attorney General Mukul Rohatgi had argued that the “legal position regarding the existence of the fundamental right to privacy is doubtful”. Drawing on two Supreme Court verdicts — M.P. Sharma vs Satish Chandra, 1954 and Kharak Singh vs State of UP, 1962 — the attorney general had argued that the Constitution does not guarantee a right to privacy. Thursday’s judgment is a departure from such narrow — and textual — interpretations of the Constitution.

“Privacy with its attendant values assures dignity to the individual and it is only when life can be enjoyed with dignity can liberty be of true substance. Privacy ensures the fulfillment of dignity and is a core value which the protection of life and liberty is intended to achieve,” it states. At another place, it notes, “The dignity of the individual, equality between human beings and quest for liberty are the foundational pillars of the Indian Constitution”.

DEFINING fundamental rights in a manner that expands their scope has been an evolutionary process in most mature democracies. The US, for example, has moved away from mooring its Right to Privacy in the Fourth Amendment — fundamentally about property rights — to situating the right under other guarantees in the country’s Constitution. Since the 1970s, its highest court has drawn out the Right to Privacy from the “Concept of Ordered Liberty”, the Right to Freedom of Association and the Right Against Self-Incrimination.

Thursday’s Supreme Court verdict is in the same spirit: “The attempt of the court should be to expand the reach and ambit of the fundamental rights rather than attenuate their meaning and content by process of judicial construction”, it says. This articulation should shine the light on future jurisprudence pertaining to fundamental rights.

There is another important lesson for future juries — democratic societies require their judiciary to self-correct. Thursday’s verdict subjects some past decisions of the Supreme Court to the test of constitutional propriety and annuls the ones found wanting. The ADM Jabalpur v Shivakant Shukla case, in 1976, for example. The court had then ruled that presidential consent was sufficient to annul the right to liberty of a person who was under preventive detention. This 41-year old verdict was critiqued by the court on Thursday as “seriously flawed. Life and personal liberty are inalienable to human existence. These rights are primordial rights. They constitute rights under natural law”.

The spirit of self-correction — and commitment to human dignity — are also behind the court’s decision to set aside its 2013 verdict that resuscitated Section 377. In 2009, the Delhi High Court had revoked the criminalisation of homosexuality. Criticising its earlier verdict, the court has vindicated the Delhi High Court ruling which held Section 377 to be a denial of the dignity of an individual. Now, the court’s remarks will be seen as a long-awaited course correction: “In a democratic Constitution founded on the rule of law, their [minority] rights are as sacred as those conferred on other citizens to protect their freedoms and liberties. 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”.

THE court does impose reasonable restrictions on the Right to Privacy. But governments would do well to heed the caveat it sets: “The nature and content of the law which imposes the restriction falls within the zone of reasonableness mandated by Article 14, which is a guarantee against arbitrary state action”. A democracy can survive when citizens have an undiluted assurance that the rule of law will protect their rights and liberties against any invasion by the state and that judicial remedies would be available. Thursday’s ruling is a landmark in that respect. This verdict owes, in no small measure, to the persistence and diligence of lawyers, activists, academics — the people of India owe them a debt of gratitude.

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