The SC has yet again put the nation on a progressive path. It will be interesting to see how the Right to Privacy unfolds
Choodie Shivaram
The nation is on the move and in the right direction too, going by the recent judgments of the Hon’ble Supreme Court of India. The Apex Court has scored a hat trick with three successive decisions making a national impact. These decisions have stirred nationwide debates on the extent to which they impact the lives of citizens.
On August 22, the Supreme Court granted bail to Lt.Col. Purohit, after nine years of internment in a Maharashtra jail, raising animated discussions on the role of governments and politicians in implicating and wrongfully confining an officer who was performing his duty. The next day it pronounced a
historic judgment striking down ‘triple talaq’, paving the way for Muslim women’s security and empowerment.
On August 24, the nine judge Constitution bench of the Supreme Court was unanimous in declaring that the Right to Privacy is a fundamental right under the Constitution, thus rewriting the deep-seated narrative on citizen’s rights. The fact that the Constitution bench was unanimous in its decision, a rare occurrence, reveals the judiciary’s concern over civil rights and the compelling need for reforms.
Former Karnataka HC judge, KS Puttaswamy, now 91, had filed the PIL in 2012 challenging the Aadhaar scheme, saying it violates fundamental rights to privacy and equality. The Apex court linked all the 20 plus Aadhaar related cases to this case. The petitioners included activists Bezwada Wilson, Aruna Roy and Nikhil Dey. It is interesting that a former High Court judge petitioned the Apex court.
Right to privacy is an inherent fundamental right embedded in part-III of the Constitution of India and it is located in the golden trinity of Articles 14, 19, and 21 (Equality, right to liberty and protection of life). Privacy is the bulwark of other rights. This right is protected as an intrinsic part of the freedom guaranteed by the Constitution.
The UN Declaration of Human Rights recognises the right to privacy as a fundamental right saying “no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks”.
The Indian Parliament enacted the Protection of Human Rights Act, 1993 which recognises the importance of human rights to bring accountability and transparency. In reality, India is yet to get there, Lt. Col Purohit being a strong case in question.
Privacy is an inherent right, not given or granted. Jurists world over consider William Pitt the Elder’s (British statesman who led the government of Great Britain twice in the 18th century) path breaking opinion on privacy in 1763 as a way ahead of its time and rely on it even to this day as a benchmark. Quoting Pitt in his judgment Justice R.F. Nariman, J. writes, “the poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail, its roof may shake, the wind may blow through it, the storm may enter, but the King of England cannot enter; all his force dare not cross the threshold of the ruined tenement!”
The Apex court has drawn reference from several cases that dealt with the Right to Privacy including the case of M.P. Sharma v. Satish Chandra (1954) and Kharak Singh v. State of U.P. The former is the earliest case in India to deal with “privacy” in the context of Articles 19 and 20 of the Constitution. M.P Sharma’s company was accused of attempt to embezzle its funds, fraudulent transactions, and falsified records. Search warrants were issued and records were seized. Sharma challenged that the searches violated fundamental rights. An eight-judge bench ruled that there was no right to privacy under a specific Article.
In Kharak Singh’s case (1962) a six-judge bench ruled that the right to privacy is not a guaranteed right under our Constitution.
The extent of the impact of the Apex Court’s judgment is yet to unfurl. It is an established principle that no right can be a carte blanche or absolute in nature; as Justice Chelameswar writes in his judgment “…, even a fundamental right to privacy has limitations. The limitations are to be identified on a case to case basis”. What will be of impact and concern are issues of National Security and processes adopted by investigating agencies. Justice Sanjay Kishan Kaul writes in the judgment, “the security environment, not only in our country but throughout the world makes the safety of persons and the State a matter to be balanced against this right to privacy”.
American law is eloquent on the Right to privacy. In Asia the
concept of privacy has been community-based, in contrast to the West. With globalisation this is fast changing. Within a week, the Supreme Court’s landmark judgment echoed in the Delhi High Court on August 30. When the bench of the Acting Chief Justice Gita Mittal and Justice C.Hari Shankar heard arguments on petitions seeking criminalisation of marital rape, Senior counsel, Colin Gonsalves cited how the Apex Court’s judgment covers marital rape and referred to portions of the judgment dealing with physical integrity, sexual autonomy, and reproductive choice. In the 547-page judgment, the Constitution bench of the apex court debated exhaustively over the issue of Privacy traversing through numerous cases in India and other countries.
The judgment draws references ranging from the Bhagavad Gita, the American Constitution, and European Case Laws to opinions and decisions of eminent jurists world over. The Apex court has yet again put the nation on a progressive path. The responsibility of preventing misuse of this fundamental right and upholding the trust of the Constitution bench lies with the state machinery, the citizenry, and institutions vested with powers to enable peaceful existence. The coming months and years will prove to be interesting on how this right to privacy will take shape and be interpreted in courts of law.
(The writer is a journalist and a researcher)
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