1. Privacy a protected right emerging from Article 21: Supreme Court

Privacy a protected right emerging from Article 21: Supreme Court

Privacy is the constitutional core of human dignity and a protected right which emerges from the guarantee of life and personal liberty in Article 21, the Supreme Court said today.

By: | Published: August 24, 2017 6:22 PM
Privacy, Supreme Court, Article 21, JS Khehar, Right to Privacy, JS Khehar Privacy is the constitutional core of human dignity and a protected right which emerges from the guarantee of life and personal liberty in Article 21, the Supreme Court said today. (Image: IE)

Privacy is the constitutional core of human dignity and a protected right which emerges from the guarantee of life and personal liberty in Article 21, the Supreme Court said today.  The apex court said privacy ensures the fulfilment of dignity and is a core value which the protection of life and liberty is intended to achieve.  Chief Justice J S Khehar and Justices R K Agrawal, S A Nazeer and D Y Chandrachud, who were part of the nine-judge constitution bench, said elements of privacy arise in varying contexts from other facets of freedom and dignity recognised and guaranteed by the fundamental rights contained in Part III of the Constitution.  Justice Chandrachud, who wrote a separate judgement on behalf of himself and three other judges, said privacy safeguards an individual’s autonomy and recognises the ability of the individual to control vital aspects of life.

However, the four judges, who concurred with five others in declaring the right to privacy as the fundamental right under the Constitution, said, like other fundamental rights, the “right to privacy is not an absolute right.” Interestingly, Justice Chandrachud overruled a judgement on the privacy issue authored by his father Justice Y V Chandrachud in the famous case of ADM Jabalpur vs Shivakant Shukla in 1976.
While delivering today’s verdict, the judges were cautious of the ramification and dangers to privacy in a digital era and asked the government “to examine and put into place a robust regime for data protection as threats can originate not only from the state but from non-state actors as well.”

“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. These are matters of policy to be considered by the union government while designing a carefully structured regime for the protection of the data,” Justice Chandrachud, who penned 266 out of the total 547-page judgement, said.

They also made it clear that judicial recognition of the existence of a constitutional right of privacy was “not an exercise in the nature of amending Constitution”, nor was the court embarking on a constitutional function which is entrusted to the Parliament.  “The Constitution must evolve with the felt necessities of time to meet the challenges thrown up in a democratic order governed by the rule of law. The meaning of the Constitution cannot be frozen on the perspectives present when it was adopted.  “Technological change has given rise to concerns which were not present seven decades ago and the rapid growth of technology may render obsolescent many notions of the present. Hence the interpretation of the Constitution must be resilient and flexible to allow future generations to adapt its content bearing in mind its basic or essential features,” the bench said.

A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights, it said.
“In the context of Article 21, an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. The law must also be valid with reference to the encroachment on life and personal liberty under Article 21,” the judges said.
The judgement said that privacy has both positive and negative content. While the negative content restrains the state from committing an intrusion upon the life and personal liberty of a citizen, its positive content imposes an obligation on the state to take all necessary measures to protect the privacy of the individual.

“Privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution. Elements of privacy also arise in varying contexts from the other facets of freedom and dignity recognised and guaranteed by the fundamental rights contained in Part III,” the bench said. Elaborating further, Justice Chandrachud said “life is precious in itself” but life is worth living because of the freedoms which enable each individual to live life as it should be lived. The best decisions on how life should be lived are entrusted to the individual. They are continuously shaped by the social milieu in which individuals exist.
The duty of the state is to safeguard the ability to take decisions, the autonomy of the individual and not to dictate those decisions, the judge said.

“Life within the meaning of Article 21 is not confined to the integrity of the physical body. The right comprehends one’s being in its fullest sense. That which facilitates the fulfilment of life is as much within the protection of the guarantee of life. “To live is to live with dignity. The draftsmen of the Constitution defined their vision of the society in which constitutional values would be attained by emphasising, among other freedoms, liberty and dignity. So fundamental is dignity that it permeates the core of the rights guaranteed to the individual by Part III.

“Dignity is the core which unites the fundamental rights because the fundamental rights seek to achieve for each individual the dignity of 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. Privacy ensures the fulfilment of dignity and is a core value which the protection of life and liberty is intended to achieve,” the bench said.

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