Right to Privacy fundamental

In a landmark verdict, the right to privacy was on Thursday (Aug 24) declared a fundamental right under the Constitution by the Supreme Court, which said "privacy is the constitutional core of human dignity". The judgement, which will have a bearing on the lives of all Indians, said 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 top court also ruled that like other fundamental rights, the right to privacy was not absolute and any encroachment will have to withstand the touchstone of permissible restrictions.

A nine-judge Constitution bench headed by Chief Justice J S Khehar, which delivered as many as six concurring verdicts, overruled the contrary apex court verdicts delivered in 1950 and 1962 in the M P Sharma and the Kharak Singh cases holding that right to privacy was not part of the Constitution.
The top court rejected the NDA government's vehement contention that there was no general or fundamental right to privacy under the Constitution. The lead judgement, penned by Justice D Y Chandrachud for himself, the CJI, Justices R K Agrawal and S A Nazeer, however, asked the government to examine and put in place a "robust regime" for data protection in the modern era.
However, the top court gave a ray of hope to embattled government, whose Aadhaar scheme is under intense scrutiny over privacy infringements, said, "We commend to the Union Government the need to examine and put into place a robust regime for data protection.
"The creation of such a regime requires a careful and sensitive balance between individual interests and legitimate concerns of the state. The legitimate aims of the state would include for instance protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits".
Besides the four judges including the CJI, Justices J Chelameswar, S A Bobde, Abhay Manohar Sapre, Rohinton Fali Nariman and Sanjay Kishan Kaul wrote separate, but concurring verdicts running into 547-pages.
The judgement was welcomed by leading legal experts, including Law Minister Ravi Shankar Prasad, who is himself a lawyer. Noted jurist Soli Sorabjee said "no fundamental right is absolute. It is always subject to reasonable restrictions".
While senior advocate Indira Jaising said "privacy is fundamental. It certainly has an impact on the day-to-day life. This verdict prevents any kind of snooping," senior lawyer Kapil Sibal observed that like individual freedom, "individual house, marriages, sexual orientation, right to space, right to move freely, right to eat what an individual likes, right to be left alone are protected both within the home and at public places to the extent necessary."
The CJI pronounced the summary of concurring verdicts in a packed courtroom and said, "the decision in M P Sharma (1950) which holds that the right to privacy is not protected by the Constitution stands over-ruled. "The decision in Kharak Singh (1962) to the extent that it holds that the right to privacy is not protected by the Constitution stands over-ruled".
The bench put at rest the persistent query as to where Right to Privacy, if recognised as a fundamental right, would be placed under Part III (which refers to such rights) the Constitution. It said that right to privacy was protected as an intrinsic part of the right to life and personal liberty under Article 21 and rather, it can be traced to entire Part III as and as a part of all the fundamental rights. He then proceeded to declare that all verdicts, which recognised privacy as a key component of fundamental rights, delivered post the M P Sharma and the Kharak Singh laid down "the correct position in law". Justice Chandrachud, in his verdict, dealt extensively with findings arrived at in the M P Sharma judgement that had held that in the absence of a provision similar to the Fourth Amendment to the US Constitution, the right to privacy cannot be read into the provisions of Article 20(3) of the Constitution.

A senior law officer "welcomed the verdict" by saying "it is a good judgment" but refused to come on record to comment on the outcome which has gone against the stand taken by the government. He simply said the judgement will have no direct impact on the Aadhhar scheme which is under challenge before a five- judge constitution bench which will examine the issue by taking note of this decision.

"The judgment does not specifically adjudicate on whether a right to privacy would arise from any of the other provisions of the rights guaranteed by Part III including Article 21 and Article 19 "The observation that privacy is not a right guaranteed by the Indian Constitution is not reflective of the correct position.
M P Sharma is overruled to the extent to which it indicates to the contrary," the verdict said. Referring to the 1962 Kharak Singh judgement, the verdict said it was "correctly held that the content of the expression ?life? under Article 21 means not merely the right to a person?s 'animal existence' and that the expression ?personal liberty? is a guarantee against invasion into the sanctity of a person?s home or an intrusion into personal security."
"The first part of the decision in Kharak Singh which invalidated domiciliary visits at night on the ground that they violated ordered liberty is an implicit recognition of the right to privacy. The second part of the decision, however, which holds that the right to privacy is not a guaranteed right under our Constitution, is not reflective of the correct position.
"Kharak Singh to the extent that it holds that the right to privacy is not protected under the Indian Constitution is overruled," it said. The bench then said that life and personal liberty are "inalienable rights" and they are "inseparable from a dignified human existence".
"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.
Following this verdict, a fivejudge constitutional bench will decide whether the Aadhar violates the Right to Privacy or not. On June 10, the top court had ruled that from July 1 onward, every person eligible to obtain Aadhar card must quote their Aadhaar number or their Aadhaar Enrolment ID number for filing of Income Tax Returns as well as for applications for Permanent Account Number (PAN).
The Income Tax Department has stepped up its efforts to encourage people to link their PAN with Aadhar.
Meanwhile , the landmark verdict of the Supreme Court has been hailed by jurists and senior advocates as "progressive" and a "strong endorsement of the civil liberty".

Soli Sorabjee Those lauding the unanimous verdict of the nine-judge bench were noted jurist Soli Sorabjee, senior advocate Shyam Divan who strongly batted for it, former law minister Ashwani Kumar, BJP spokesperson and senior advocate Aman Sinha and senior advocate Indira Jaising.
A senior law officer "welcomed the verdict" by saying "it is a good judgment" but refused to come on record to comment on the outcome which has gone against the stand taken by the government. He simply said the judgement will have no direct impact on the Aadhhar scheme which is under challenge before a five- judge constitution bench which will examine the issue by taking note of this decision. Senior Congress leader Kapil Sibal, who dubbed the judgement as "historic", "progressive" and "seminal," said "individual house, marriages, sexual orientation, right to space, right to move freely, right to eat what an individual likes, right to be left alone are protected both within the home and at public places to the extent necessary."

Congress leader and former law minister Ashwani Kumar said that the verdict "kept faith with the constitutional morality and the aspirations of the people of India". He said that the apex court has continuously enlarged the domain of human rights, which makes India's constitutional jurisprudence as a "very progressive jurisprudence".

Former Attorney General Soli Sorabjee said that today's verdict showed the "good approach" of the Supreme Court which does not hesitate in over-ruling its previous verdicts.
He termed it "a very progressive judgement which protected the fundamental rights of the people. Privacy is a basic right which is inherent in every individual."
Expressing hope that the citizens would now be protected from any kind of snooping, Jaising called for "celebrations". "Privacy is fundamental. It certainly has an impact on the day-to-day life.
This verdict prevents any kind of snooping," she said. Divan termed the verdict as "a strong endorsement of the civil liberty, protected under the Constitution". "It has to be seen whether all the basic facilities linked to Aadhar can be availed otherwise as well and whether the Aadhar meets the test," he said.
Congress leader and former law minister Ashwani Kumar said that the verdict "kept faith with the constitutional morality and the aspirations of the people of India". He said that the apex court has continuously enlarged the domain of human rights, which makes India's constitutional jurisprudence as a "very progressive jurisprudence".
"Indeed, the right to privacy has been derived from Article 21 and if you were to look at the past decisions of the Supreme Court, in an expansive interpretation of the Article 21, the SC has continuously enlarged the domain of human rights and that is why India's constitutional jurisprudence is cited in many countries of the world as a very progressive jurisprudence," he said.
Sinha, also a senior advocate, welcomed the verdict and termed it as "good" but reminded that, like any other fundamental right, there will be reasonable restrictions on the right to privacy as well.
Sorabjee said, "The unanimity of the bench in giving this decision shows a very good approach of the Supreme Court.
Any judgement which enlarges the fundamental rights of the people should be welcomed."
On a question related to Aadhaar, he also reminded that "You cannot make a blanket and categorical statement that Aadhaar will be banned or is unconstitutional. No fundamental right is absolute.
It is always subject to reasonable restrictions."

-- PTI, ANI Reports