In a landmark verdict, the Supreme Court of India today said the right to privacy is Fundamental Right, provided by the Constitution of India. The nine-judge bench of the apex court unanimously declared void previous judgements of the top court that said right to privacy was not a Fundamental Right. However, there is a lot of confusion about what the Fundamental Right to Privacy means and what it doesn’t. The following 10 points from the SC verdict will make it clear:
1. 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.
2. The SC judgement recognising the existence of a constitutional right of privacy was not an exercise in the nature of amending the Constitution nor the Court had embarked on a constitutional function of that nature, which is entrusted to Parliament.
3. According to SC verdict, privacy is the constitutional core of human dignity. It has both normative and descriptive function. At a normative level, privacy sub-serves those eternal values upon which the guarantees of life, liberty and freedom are founded. At a descriptive level, privacy postulates a bundle of entitlements and interests which lie at the foundation of ordered liberty.
4. What privacy includes
- Preservation of personal intimacies, the sanctity of family life, marriage, procreation, home and sexual orientation.
- A right to be left alone.
- Safeguards individual autonomy, recognises the ability of the individual to control vital aspects of his or her life.
- Personal choices governing a way of life are intrinsic to privacy.
- Protection of heterogeneity and recognition of plurality and diversity of our culture.
5. Privacy is not surrendered when a person is in public place
- By being in public place doesn’t mean an individual has surrendered privacy, even as the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arena.
- Privacy attaches to the person since it is an essential facet of the dignity of the human being
6. What Right to Privacy doesn’t mean
Not an absolute right: Like other rights which form part of the fundamental freedoms protected by Part III, including the right to life and personal liberty under Article 21, privacy is not an absolute right.
7. Can law/state encroach upon privacy?
- According to SC, a law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights.
- 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.
- An invasion of life or personal liberty must meet the three-fold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate state aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them; and
8. Privacy has both positive and negative content.
- The negative content of privacy restrains the state from committing an intrusion upon the life and personal liberty of a citizen.
- Positive content of the right to privacy imposes an obligation on the state to take all necessary measures to protect the privacy of the individual.
9. Robust regime needed for data protection
Informational privacy is a facet of the right to privacy. The court observed that dangers to privacy in an age of information can originate not only from the state but from non-state actors as well. The Union Government, hence, needs to examine and put into place a robust regime for data protection. The creation of such a regime would require a careful and sensitive balance between individual interests and legitimate concerns of the state.
10. For what reasons state can encroach upon individual’s privacy?
According to the judgement, the legitimate aims of the state should be “protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits.” These matters should be considered by the Union government while designing the regime for the protection of the data.