• Private Lives and Public Law: How the Privacy Judgement Bats for the Individual and the Collective

    Mihir Samson

    August 29, 2017

    Image courtesy Newsclick.in


    The arguments showed just how far the Union Government was willing to go to defend its unique identification project. It was willing to attack the existence of the right to privacy itself… Essentially, the court held that there is a protected private space for an individual in which she is to be left alone… Privacy, the court concluded, was essential to a dignified life, something the fundamental rights sought to achieve… By elevating its status to a fundamental right, the court ensured that it was protected from the government of the day.
     
    In August 2015, during the Aadhar challenge, the then Attorney General, Mukul Rohatgi, called into question over five decades of jurisprudence by submitting that there existed no fundamental right to privacy. He relied on previous decisions of the Court in M P Sharma v. Satish Chandra (1954) and Kharak Singh v. State of U.P. (1964), decided by eight and six judges respectively. The subsequent cases by which the right had come to be recognized and developed, in his submission, were wrongly decided. The arguments showed just how far the Union Government was willing to go to defend its unique identification project. It was willing to attack the existence of the right to privacy itself.

    The case was eventually referred to a larger bench of five judges of the court, which in turn placed the matter before nine judges. This process took almost two years, during which time the Aadhar and its coercive enrolment processes proceeded at breakneck speed. Having constituted the bench in light of the submissions on behalf of the Central Government, during the arguments, the then Chief Justice of India, Justice J S Kehar, offered to stop the hearing if the Attorney General, K K Venugopal accepted the right to privacy as a fundamental right. Needless to state, he declined.

    On 24 August, the Supreme Court unanimously affirmed the fundamental right to privacy, something that is remarkable in itself, given the fact that six different judgements were delivered. The right to privacy was held to be a constitutionally protected right; and it was held to be a right which emerged not just from the right to life and liberty, under Article 21, but from other fundamental rights. It overruled M P Sharma and Kharak Singh to that extent. The majority judgement, authored by Justice D Y Chandrachud, and signed by Justices J S Kehar, R K Agarwal and S Abdul Nazir, held that privacy emanated from a natural right, inherent to a human being, and not something bestowed by the State or the Constitution, but instead to be protected by it.

    Essentially, the court held that there is a protected private space for an individual in which she is to be left alone. The Court felt that an exhaustive elaboration of what the right protected would have the effect of limiting it. Instead, it left it to develop on a case-by-case basis, something the counsel for the Petitioners also sought. Certain key elements of the right were identified. These include the respect of a person’s bodily integrity and thought processes. It also includes the respect for the person’s decisions about their personal intimacies, food and choice of clothing, among other things. It would also extend to control over one’s information in an increasingly digital world. Privacy, the court concluded, was essential to a dignified life, something the fundamental rights sought to achieve.

    The importance of the right to privacy being protected as a fundamental right, and not in a law passed by Parliament, was also not lost on the Court. Justice Nariman, who authored a separate judgement, held that if left to Parliament, the right was equally amenable to being withdrawn by the government or subsequent governments. By elevating its status to a fundamental right, the court ensured that it was protected from the government of the day. It also ensured that all laws passed by Parliament would have to respect the fundamental right to privacy.

    The government had also sought to argue that the concerns raised about privacy were elitist, and that the disadvantaged were more concerned about their entitlements (presumably linked to Aadhar). The Court rejected this wholesale, commenting that it could not distinguish between the rights of the rich and the poor. It further held the advancement of civil and political rights, like privacy, were in fact complementary to, and not antagonistic, to economic and social rights, like the right to food and right to education.

    Another thread that emanates from the decision is the concern for minorities, the relevance of which cannot be underestimated in the current political climate. The court noted that one of the major thrusts of privacy is to allow persons to make diverse choices in life and, in essence, protect plurality in society. In fact, five judges (four in the majority and one concurring) specifically noted that the decision of the Supreme Court in the Suresh Kumar Koushal case upholding Section 377, was wrongly decided. It held that sexual orientation was protected by the right to privacy. Importantly, it held that the size of a minority was not relevant when considering a violation of fundamental rights. This will have a substantial impact on the articulation and advancement of the rights of minorities. The curative petition filed by the Naz Foundation against the decision in Koushal is pending before a five-judge bench of this Court.

    While reflecting on the line of decisions in which fundamental rights have evolved, the Court also overruled its Emergency-time decision ADM Jabalpur v. Shiv Kant Shukla (1976) where the majority, with a lone dissent, held that during the Emergency, the right to personal liberty under Article 21 was suspended. While this had already been implicitly overruled, the Court has now taken the opportunity to expressly overrule it; and uphold Justice H R Khanna’s celebrated dissent — that the right cannot be suspended. The comments on Koushal and ADM Jabalpur bode well for the future of the judiciary. It is a message that the Court is not afraid to critically examine its past, correct its mistakes, and celebrate its voices of dissent.

    By attacking the right to privacy, the Government tried to change, fundamentally, the relationship between the individual and the state. It would have had the effect of turning the Constitution on its head, and rendering the fundamental rights all but meaningless. The Court in its judgement has emphatically placed the individual back in the centre, making it clear that her sexual relationships, decisions on clothing, food and digital life are in a protected and private space, not available to the government for wanton trespass.

    Mihir Samson is an independent lawyer practising in Delhi.

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