Right to Privacy is a Fundamental Right

By

Kriti Bhatia, 5th Year Law Student JNU Jaipur


Privacy had emerged as a contentious issue while the apex court was hearing a batch of petitions challenging the Centre’s move to make Aadhaar mandatory for availing government schemes. In 2015, Attorney General while defending the Aadhaar project that seeks to assign every resident a biometric ID argued that Indians have no right to privacy under the Indian Constitution. Over decades, the Supreme Court has in its judgments read the right to privacy into the Constitution. The highest court in doing so had recognized that without a right to privacy, the right to liberty and freedom of expression cannot survive hence,  9 judge bench delivered landmark judgement and unanimously declaring the Right to Privacy is fundamental right under constitution. SC has categorically held that Right to privacy will be protected as intrinsic part of Right to life and personal liberty under Article 21 of constitution of India.

The Judgement represents quantum leap in the evolution of legal jurisprudence pertaining to privacy in India. What matters is not the outcome but its future far reaching implications. It’s a big deal overruling 8 bench judge’s order. 9 judge bench is a rarity, even more of rarity is 9 judge bench is speaking in one voice unequivocally stating that privacy is fundamental right.

The fact that all the judges unanimously came down on this argument shows how much the government misunderstood the constitutional underpinnings of privacy as a value in it and as an ineluctable facet of human dignity.

Personal Findings :- Right to privacy should be recognized as Fundamental Rights due to the following reasons:

  1. i) It is one of such essential rights which is extremely essential for the fullest development of individual personality and capacity.
  2. ii) If recognized, States would not be able to encroach into the personal domain and liberty of individual in name of policy and would demarcate public-private domain-impetus to personal liberty.

iii) Such right would become justifiable and enforceable-thus Constitutional guarantee of personal liberty in the preamble would be complemented.

  1. iv) Would restrict the State to arbitrarily abuse State power to satisfy its political and partisan ideologies by encroaching into personal domain and individual liberty.

Further, on one hand, right to dignity has been declared by the Supreme Court as a non-negotiable constitutional right flowing from the spirit of the Constitution and the explicitly guaranteed right to life and personal liberty in Article 21 [ Suresh Kumar Koushal vs. Naz Foundation, (2014) and others] on the other, the same apex court in India also recognized the fact that the right to dignity which inheres in each individual as a Human being is incomplete without the right to privacy and reputation. Hence, in R. C. Cooper v UOI (1970), Govind vs. State of Madhya Pradesh (1975) and many others has recognized the fact that right to privacy is integral part of right to life and personal liberty under Article 21 and it is recognition of man’s “inviolate personality”, “the inner man”, “rights inherent and inalienable” ensuring “private space” in which man remain ‘himself.

However, The right to privacy broadly encompasses physical privacy, informational privacy and decisional autonomy. The interplay of technological advances and the right to privacy in the digital age needs to be closely scrutinised. The nine-judge bench has rightly emphasised the need for data protection laws — a task now entrusted, at a preliminary stage, to the Justice Srikrishna Committee.

 

But, irrespective of any technological changes, the respect of the right of individuals to make a choice of how and where they want to live, work and pursue their individual dreams must be protected. Nine judges of the Supreme Court have protected, for decades to come, the most important right emphasised by Justice Brandeis: The right to be left alone.

 

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