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Privacy is a fundamental right: Why Supreme Court’s landmark verdict is worth celebrating

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DailyBite
DailyBiteAug 24, 2017 | 14:59

Privacy is a fundamental right: Why Supreme Court’s landmark verdict is worth celebrating

The charter of rights for our digital age has been written. And that happens to be the 547-page landmark judgment on the extremely significant privacy case. Supreme Court has snubbed the Centre and has established privacy as a fundamental right, under Article 21 of the Constitution of India.

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While the expansive and inclusive judgment is still being decoded by lawyers, experts and privacy activists, it’s a great day for the Indian democracy as such. The privacy verdict returns the power of data to the citizens themselves, as should be in a democratic republic.

The unanimous decision by the nine-judge bench expands the ambit of fundamental rights, by firmly locating privacy within it. In addition, this is also a wonderful paean to the Constitution itself, saying it’s not just a text, but a Bill of Rights, and laws of the land must adhere to the letter and spirit of the Constitution.

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This judgment, technically known as the “Justice KS Puttaswamy (Retd) & Anr Versus Union of India & Ors” case, was rendered by a constitution bench of nine judges, including CJI Khehar, and Justices Jasti Chelameswar, SA Bobde, RK Agarwal, Rohinton FAli Nariman, AM Sapre, DY Chandrachud, SK Kaul and S Abdul Nazeer.

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Consequences

At a glance, the impact of the judgment are as follows:

1) The older two judgments – MP Sharma and Kharak Singh – which held privacy was not sacrosanct, have been overruled by the bigger bench. The decisions subsequent to them have been held correct, and challenge-proofed.

2) Right to Privacy has been enshrined as an intrinsic part of life and personal liberty under Article 21 of the Constitution.

3) On homosexuality, and SC’s 2013 judgment overturning Delhi HC verdict that decriminalised homosexuality and read down Section 377 – the nine-judge bench has almost overruled the 2013 decision, saying sexual orientation is a basic part of the fundamental right to privacy. This means that the curative petition in case of Section 377 has got an enormous boost and the process to decriminalize homosexuality in India should now gain momentum.

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4) On Aadhaar: It’s still not clear if the case against Aadhaar insofar – as it infringes on the fundamental right to privacy – has been substantially emboldened by the judgment. However, Aadhaar will certainly be the first testing ground for the privacy verdict.

Moreover, the privacy challenge had its origins in the Aadhaar case and its unchecked expansion eroding the fundamental rights of citizens. The government of India had argued that citizens don’t have a fundamental right to their own bodies, and that bodily autonomy, privacy etc are elite concerns. The Bench has come down heavily on the Centre for its ridiculously regressive take on the rights enshrined in the Constitution.

5) On tech intrusions in the name of national security issues, such as the DNA profiling Bill, there are individual cases that must be fought in the court. The privacy verdict only paves the ground but does not guarantee democratic success in each of those cases, which must be tested on a one-on-one basis.

The team

The counsels for the petitioners – including Shyam Divan, Aravind Datar, Gopal Subramanium, Meenakshi Arora, Soli Sorabjee, Anand Grover, Sajan Poovayya, had argued eloquently in the court, underlining various aspects related to and emanating from the fundamental right to privacy, and how it’s implicit in the existing fundamental rights listed out in the Constitution.

The Centre was represented by former Attorney General (AG) Mukul Rohatgi and then current AG KK Venugopal. Additional SG Tushar Mehta represented UIDAI, among others.

Given the scope of the judgment, it can be clearly said that the Centre has comprehensively lost. However, the caveat on Aadhaar and other imminent laws still remains.

Political reception

Leaders from the Opposition, including  Congress, CPIM, TMC, etc have welcomed the privacy verdict as a landmark in the history of Indian judiciary and democratic rights. The struggle for civil rights and privacy had been bolstered with many leaders giving it their full support. Notably, Kapil Sibal had represented non-BJP-ruled states in the privacy case. 

Also read: Exposed - Modi government’s doublespeak on right to privacy in Supreme Court

Last updated: August 24, 2017 | 14:59
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