Privacy held to be intrinsic to life

In what is a landmark judgement, the Supreme Court declared on Thursday that the Right to Privacy was a fundamental right and fell under the purview of Article 21 (Right to Life) of the Indian Constitution. The judgement, delivered unanimously by Chief Justice of India (CJI) Jagdish Singh Khehar and eight other apex court judges, who formed the nine-judge Constitution bench that heard the case, overruled the previous two judgments on the Right to Privacy, one by a six-member bench and another by an eight-member bench, to leave no room for ambiguity. The apex court was dealing with a batch of petitions challenging the Centre's move to make the possession of Aadhaar card mandatory for availing the benefits of various social welfare schemes. The Chief Justice, who read out the judgement on behalf of the nine-judge bench said the Right to Privacy was intrinsic to the right to life.

The Right to Privacy judgement would have a bearing on the Aadhaar case and also sets the stage for a re-look into the 2013 judgment which criminalised India’s lesbian-gay community. Cases regarding euthanasia and abortion would also be judged by the touchstone of the historic verdict. The constitutional validity of Aadhaar Act will now be examined by a five judge bench and it will be tested on the new basis. Telephone tappings and internet hacking by State of personal data is another area which falls within the realm of privacy. The instant reference arises out of an attempt by the Union of India to collect biometric data regarding all the residents of this country. The Supreme Court has said that privacy is a fundamental right, but it has not defined privacy. Many previous court judgments have said it is difficult to define. Therefore, controversies like Section 377, Aadhaar and many others will have to be dealt on a case-to-case basis.

There can be little doubt that the judgement marks a setback for the Narendra Modi government. But such things happen and must be seen as a check and balance essential in a vibrant democracy. Law Minister Ravi Shankar Prasad was quick to welcome the ruling but qualified it with the rider that while the government has been of the view that privacy is a fundamental right, it should be subject to reasonable restriction. Consequently, the new law would be tested on this touchstone. Indeed, the apex court has set a baseline for the future but it cannot be anyone’s case that there should be no exceptions to a general rule. The government has recently formed a high-powered committee for data protection, which the Supreme Court has noted. The court clearly acknowledges the need for a robust data regime to balance sensitive concerns between individual interest and state interest, Prasad said in defence. The judgement is truly momentous but the future will show how it unfolds in specific terms.