Right to privacy a fundamental right, declares Supreme Court

New Delhi, Aug 24 (IANS) In a major boost to individual freedom, the Supreme Court on Friday declared that right to privacy was a fundamental right and protected as an intrinsic part of life and personal liberty and freedoms guaranteed by Constitution.

Rejecting the government's contention that privacy was not a fundamental right, a nine-judge Constitution bench unanimously overturned two earlier rulings in the M.P. Sharma and Kharak Singh cases that held that the right to privacy was not protected by the Constitution.

"The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution. Decisions subsequent to Kharak Singh which enunciated the above (line) lay down the correct position in law," the bench headed by Chief Justice J.S. Khehar said.

There were six judgements written by the nine judges but all of them were unanimous in asserting that right to privacy was a fundamental right.

The other judges in the bench were Justices J. Chelameswar, S.A. Bobde, R.K. Agrawal, Rohinton F. Nariman, A.M. Sapre, D.Y. Chandrachud, S.K. Kaul and S. Abdul Nazeer. They were ruling on petitions filed by retired Karnataka High Court judge Justice K.S. Puttaswamy and others against the union government on the issue.

In his ruling, Justice Kaul said: "Let the right of privacy, an inherent right, be unequivocally a fundamental right embedded in part III of the Constitution but subject to the restrictions specified, relatable to that part. This is the call of today. The old order changeth yielding place to new."

Writing for four judges, including the Chief Justice, Justice Chandrachud observed that the contention by the union government and the states supporting it that it was not necessary to read a constitutional right to privacy into the fundamental rights as betraying lack of understanding of the reason why rights were protected in the first place in the Indian Constitution as part of fundamental rights.

The Centre and some states had argued that there was a statutory regime by virtue of which the right to privacy was adequately protected. It was also sought to be fortified by contending that privacy was merely a common law right and the statutory protection reflected that.

"Elevating a right to the position of a constitutionally protected right places it beyond the pale of legislative majorities. When a constitutional right such as the right to equality or right to life assumes the character of being a part of the basic structure of the Constitution, it assumes inviolable status: inviolability even in the face of the power of amendment. Ordinary legislation is not beyond the pale of legislative modification.

"A statutory right can be modified, curtailed or annulled by a simple enactment of the legislature. In other words, statutory rights are subject to the compulsion of legislative majorities. The purpose of infusing a right with a constitutional element is precisely to provide it a sense of immunity from popular opinion and, as its reflection, from legislative annulment."

The four judges also rejected the government's argument placed by the then Attorney General Mukul Rohatgi that the right to privacy was an elitist construct.

"The Attorney General argued before us that the right to privacy must be forsaken in the interest of welfare entitlements provided by the State. In our view, the submission that the right to privacy is an elitist construct which stands apart from the needs and aspirations of the large majority constituting the rest of society, is unsustainable.

"This submission betrays a misunderstanding of the constitutional position. Our Constitution places the individual at the forefront of its focus, guaranteeing civil and political rights in Part III and embodying an aspiration for achieving socio-economic rights in Part IV. The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised though history to wreak the most egregious violations of human rights."

They held that the right to question, the right to scrutinize and the right to dissent enabled an informed citizenry to scrutinize the actions of the government.

"Those who are governed are entitled to question those who govern, about the discharge of their constitutional duties including in the provision of socio-economic welfare benefits. The theory that civil and political rights are subservient to socio-economic rights has been urged in the past and has been categorically rejected ... by this court."

The judges said civil and political rights and socio-economic rights do not exist in a state of antagonism as they they "are complementary and not mutually exclusive".

Dealing with the essential nature of privacy, the judges held that privacy represents the core of human personality and recognizes the ability of each individual to make choices and take decisions governing matters intimate and personal.

About informational privacy, the judges observed that apart from national security, the State may have justifiable reasons for collection and storage of data.

"But the data has to be utilised for legitimate purposes and not unauthorisedly for extraneous purposes. This will ensure legitimate concerns of the State are duly safeguarded while, at the same time, protecting privacy concerns.

"Prevention and investigation of crime and protection of the revenue are among the legitimate aims of the State."

They held informational privacy a facet of the right to privacy and said there were dangers to it in an age of information "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."

In his judgement, Justice Chelameswar said all liberal democracies believe that the State should not have unqualified authority to intrude into certain aspects of human life.

"Fundamental rights are the only constitutional firewall to prevent State's interference with those core freedoms constituting liberty of a human being."