Right to privacy

Introduction

Is privacy a fundamental legal right for 1.34 billion people living in India? The answer is yes. In a path-breaking and historic landmark Judgement, A nine-judge bench, headed by Chief Justice JS Khehar, ruled on 24-08-2017 that the Right to Privacy is a fundamental right for Indian citizens under the Constitution of India, which means that no legislation passed by the government can violate it. "Right to Privacy is an integral part of Right to Life and Personal Liberty guaranteed in Article 21 of the Constitution," the SC's nine-judge bench ruled unanimously.  The apex court held that right to privacy is a Fundamental Right and it is protected under Article 21 of the Constitution of India. With this ruling, the right to privacy will now find place under part III of the Constitution along with other fundamental rights. In a unanimous decision, the Nine -Judge Constitution bench overruled the Judgment in MP Sharma in 1954 by an eight-judge bench and Kharak Singh case in 1962, by a six-judge bench.

Meaning

The right to privacy is our right to keep a domain around us, which includes all those things that are parts of us, such as our body, home, property, thoughts, feelings, secrets and identity. The right to privacy gives us the ability to choose which parts in this domain can be accessed by others and to control the extent, manner and timing of the use of those parts we choose to disclose. Privacy is an inherent right. It is thus not given, but already exists. It is about respecting an individual and it is undesirable to ignore a person’s wishes without a compelling reason to do so.

Privacy is the constitutional core of human dignity. Privacy has both a 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.

Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and 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. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being

The right to privacy is an element of various legal traditions to restrain government and private actions that threaten the privacy of individuals.

Black’s Law Dictionary: “right to be let alone; the right of a person to be free from unwarranted publicity; and the right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned” ‘Privacy’ is “[t]he condition or state of being free from public attention to intrusion into or interference with one’s acts or decisions”.

“Right to privacy” is not defined in law except in the dictionaries. The Courts, however, by process of judicial interpretation, has assigned meaning to this right in the context of specific issues involved on case to-case basis. Privacy, in its simplest sense, allows each human being to be left alone in a core which is inviolable. It is a right which protects the inner sphere of the individual from interference from both State, and non-State actors and allows the individuals to make autonomous life choices.

Right to Privacy

The right to privacy broadly encompasses physical privacy, informational privacy and decisional autonomy. In the historic 9 bench judgement, Justice R.F. Nariman in his separate judgement in para 81, page 99 stated that,

In the Indian context, a fundamental right to privacy would cover at least the following three aspects:

• Privacy that involves the person i.e. when there is some invasion by the State of a person’s rights relatable to his physical body, such as the right to move freely;

 • Informational privacy which does not deal with a person’s body but deals with a person’s mind, and therefore recognizes that an individual may have control over the dissemination of material that is personal to him. Unauthorised use of such information may, therefore lead to infringement of this right; and

• The privacy of choice, which protects an individual’s autonomy over fundamental personal choices.

A collective value and a human right

Privacy is a fundamental human right and its social value is an essential component in the functioning of democratic societies. Privacy is merely one good among many others, and that technological effects depend on community accountability and oversight. Right to liberty, which also included the right to privacy, was a pre-existing "natural right" which the Constitution acknowledged and guaranteed to the citizens in case of infringement by the state.

The human right to privacy is necessary for meaningful democratic participation, and ensures human dignity and autonomy. Privacy depends on norms for how information is distributed, and if this is appropriate. Violations of privacy depend on context. The human right to privacy has precedent in the United Nations Declaration of Human Rights. Privacy must be approached from a people-centered perspective, and not through the marketplace.

International Concepts of Privacy

Article 12: Universal Declaration of Human Rights (1948): "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."  A right to privacy is explicitly stated under Article 12 of the 1948 Universal Declaration of Human Rights.

Article 17: International Covenant of Civil and Political Rights (to which India is a party):  "No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home and correspondence, nor to unlawful attacks on his honour and reputation."

Art.8: European Convention on Human Rights:  “Everyone has the right to respect for his private and family life, his home and his correspondence;  There shall be no interference by a public authority except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the protection of health or morals or for the protection of the rights and freedoms of others."

HISTORICAL BACKGROUND

Many Supreme Court decisions in the last four decades have held that privacy is a fundamental right. However, given that the judgments were pronounced by benches which had lesser than eight or six judges (like in the case of MP Sharma and Kharak Singh), the controversy over whether privacy is a fundamental right or not remained unresolved.

Decision in M P Sharma (AIR 1954 SC 300)

An investigation was ordered by the Union government under the Companies Act into the affairs of a company which was in liquidation on the ground that it had made an organized attempt to embezzle its funds and to conceal the true state of its affairs from the share-holders and on the allegation that the company had indulged in fraudulent transactions and falsified its records. Offences were registered and search warrants were issued during the course of which, records were seized. The challenge was that the searches violated the fundamental rights of the petitioners under Article 19(1)(f) and Article 20(3) of the Constitution. The challenge was rejected. The question which supreme Court addressed was whether there was a contravention of Article 20(3). Article 20(3) mandates that no person accused of an offence shall be compelled to be a witness against himself. Justice Jagannadhadas, speaking for the Bench, held that a search or seizure does not infringe the constitutional right guaranteed by Article 20(3) of the Constitution.

Decision in Kharak Singh (AIR 1963 SC 1295)

 After being challenged in a case of dacoity in 1941, Kharak Singh was released for want of evidence. But the police compiled a “history sheet” against him. ‘History sheets’ were defined in Regulation 228 of Chapter XX of the U P Police Regulations as “the personal records of criminals under surveillance”. Kharak Singh, who was subjected to regular surveillance, including midnight knocks, moved before the apex Court for a declaration that his fundamental rights were infringed. The supreme court held that the freedom to move freely throughout the territory of India, guaranteed by Article 19(1)(d) was not infringed by a midnight knock on the door of the petitioner since “his locomotion is not impeded or prejudiced in any manner”.

National programmes like Aadhaar, NATGRID, CCTNS, RSYB, DNA profiling, reproductive rights of women, privileged communications and brain mapping  involve collection of personal data, including fingerprints, iris scans, bodily samples, and their storage in electronic form. The Law Commission has recently forwarded a Bill on Human DNA profiling. All this adds to the danger of data leakage. Both the government and service providers collect personal data like mobile phone numbers, bank details, addresses, date of birth, sexual identities, health records, ownership of property and taxes without providing safeguards from third parties. The apprehension expressed by all sects about collection and use of data was the risk of personal information falling in the hands of private players and service providers.

In 2015, when a three-judge bench headed by Justice J. Chelameswar was hearing a number of petitions challenging the decision to make Aadhaar mandatory for provident fund disbursements, the-then attorney general Mukul Rohatgi had stated that India’s “constitution makers did not intend to make right to privacy a fundamental right.”

This question was referred to a five-judge Constitution bench on August 11, 2015.

The five-judge bench, led by Chief Justice JS Khehar, met on July 18 to decide the issue, but was told by the Centre that the strength of the bench was inadequate as an eight-judge bench in the MP Sharma case in 1954, and a six-judge bench in the Kharak Singh case in 1962, had ruled that right to privacy was not a fundamental right. The bench was quick to refer the matter to a nine-judge bench, comprised Justices Khehar, J Chelameswar, S A Bobde, R K Agrawal, R F Nariman, A M Sapre, D Y Chandrachud, Sanjay K Kaul and S Abdul Nazeer. The arguments started on July 19 2017, and concluded on August 2, 2017. A battery of senior lawyers, including Attorney General KK Venugopal, Additional Solicitor General Tushar Mehta, Arvind Datar, Kapil Sibal, Gopal Subramaniam, Shayam Divan, Anand Grover, CA Sundaram and Rakesh Dwivedi, had advanced arguments in favour and against the inclusion of the right to privacy as a fundamental right.

The court had reserved its verdict on August 3 after marathon day-long hearings spanning six days across three weeks.

Verdict

The judgment on behalf of the Hon’ble Chief Justice Shri Justice Jagdish Singh Khehar, Shri Justice R K Agrawal, Shri Justice S Abdul Nazeer and Dr Justice D Y Chandrachud was delivered by Dr Justice D Y Chandrachud. Shri Justice J Chelameswar, Shri Justice S A Bobde, Shri Justice Abhay Manohar Sapre, Shri Justice Rohinton Fali Nariman and Shri Justice Sanjay Kishan Kaul delivered separate judgments.

The apex court's nine-judge bench overruled previous judgments on the issue- an eight-judge bench judgment in the MP Sharma case and a six-judge bench judgment in Kharak Singh case, both of which had ruled that privacy is not a fundamental right which touches the lives of 134 crore Indians.

Delivering the unanimous verdict of the nine-judge bench on the penultimate day of his tenure, Chief Justice J.S. Khehar said "few of us have written different orders" "However these are our conclusion: Petitions are disposed of in following terms:

(i) The decision in M P Sharma which holds that the right to privacy is not protected by the Constitution stands over-ruled;

(ii) The decision in Kharak Singh to the extent that it holds that the right to privacy is not protected by the Constitution stands over-ruled;

 (iii) 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. “Privacy is intrinsic to the right to life and personal liberty under Article 21 of the Constitution and an inherent part of fundamental freedom under part III of the Constitution.”

(iv) Decisions subsequent to Kharak Singh which have enunciated the position in (iii) above lay down the correct position in law.

HIGHLIGHTS

Life and personal liberty are inalienable rights. These are rights which are inseparable from a dignified human existence. The dignity of the individual, equality between human beings and the quest for liberty are the foundational pillars of the Indian Constitution.

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;

Judicial recognition of the existence of a constitutional right of privacy is not an exercise in the nature of amending the Constitution nor is the Court embarking on a constitutional function of that nature which is entrusted to Parliament.

Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and 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. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being.

The realm of the fundamental right to privacy span from women’s reproductive choice and choice of food or faith to euthanasia. Neither the State nor private persons have any business to intrude, Justice J. Chelameswar wrote in his separate judgment on privacy.

“A woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy,” Justice Chelameswar observed.

The judgment’s observation comes when the Supreme Court is seized with the cases of numerous women who are fighting for their right to reproductive choice.

These women and girl children, including victims of rape, are fighting a battle for the right to abort their foetuses. Abortion is legally barred if the pregnancy has crossed 20 weeks.

Similarly another burning issue in the Supreme Court is a person’s right to active euthanasia. This is a crime under attempt to suicide. A person who helps a terminally ill person to take his own life is booked under abetment to suicide.

“An individual’s rights to refuse life prolonging medical treatment or terminate his life is another freedom which fall within the zone of the right of privacy,” Justice Chelameswar wrote.

The judge condemns any State intrusion into what a person should “read or think” as a “conditioning process” of the masses’ thoughts. This, he held, is a violation of privacy.

“Insofar as religious beliefs are concerned, a good deal of the misery our species suffer owes its existence to and centres around competing claims of the right to propagate religion," Justice Chelameswar observed.

The right to privacy is certainly one of the core freedoms which is to be defended. It is part of liberty within the meaning of that expression in Article 21- Chelameswar observed.

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

The judge held that it is not for the State to decide what a person "should eat or wear". This judgment will have a telling effect on the ongoing litigation into beef slaughter and consumption bans by certain state governments.

"The freedom of the belief or faith in any religion is a matter of conscience falling within the zone of purely private thought process and is an aspect of liberty," the judge wrote. An individual's political belief form part of his freedom of conscience and comes under the fundamental right to life and liberty of which privacy is a core value.

The Supreme Court also touched upon several key facets of privacy such as informational privacy in the digital age and urged the government to quickly bring in a data protection law to deal with these fast-changing technological developments. There are potential implications here for data collected by firms in finance and ecommerce, and by app developers.

Separately, the apex court acknowledged the central government’s move to draft a data protection legislation and the appointment of an expert group headed by former Supreme Court judge B.N. Srikrishna.

The Supreme Court added that such a data protection regime should carefully balance the trade-off between individual interests and legitimate concerns of the state.

Civil Liberties

The bench also overruled the Emergency-era ruling made in the ADM Jabalpur case that had said the State could suspend and take away the liberty of citizens during a proclamation of Emergency and the citizens cannot even approach the top court for relief.

"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. Constitutionally protected rights embody the liberal belief that personal liberties of the individual are so sacrosanct that it is necessary to ensconce them in a protective shell that places them beyond the pale of ordinary legislation. To negate a constitutional right on the ground that there is an available statutory protection is to invert constitutional theory," Justice Chandrachud said.

Gay Rights

Four justices, J Chelameswar, SS Bobde, Abhay Manohar Sapre, RF Nariman and Sanjay Kishan Kaul, didn't dissent from the five judges who spoke on sexual orientation as a facet of privacy. This clears the way for decriminalising homosexuality.

The nine judges rejected the earlier SC ruling that had rolled back the Delhi High Court decision to decriminalise all adult, consensual homosexual behaviour. It was violative of the community's right to life and dignity, Justices Chandrachud and Kaul wrote.

"Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution," said Justice Chandrachud, backed by four other judges, including the CJI. Justice Kaul echoed his sentiments.

Aadhaar

Petitioners have challenged the Aadhaar scheme on other grounds — expressing fear that the data being collected by private agencies may be misused, and questioning the proposal to link Aadhaar with PAN cards and phone numbers, and making the unique ID number mandatory for availing government benefits.

The Aadhaar hearing was stalled after the government contested the very existence of a fundamental right to privacy to reject arguments of those opposing the scheme on the ground that its all-pervasive nature made it impermissible in law. Those opposing the scheme then suggested the court first decide this issue before examining Aadhaar threadbare.

Other Rights

Lawyers studying the judgement said the privacy ruling can potentially impinge upon laws that restrict a person's right to convert as well as laws/rules that curtail the choice of food. They said following the judgement, many such laws and rules will be more vulnerable to legal challenge. India has a number of state-level laws against conversion, and several states have restrictions on animal slaughter.

The Supreme Court also asked the government whether it has plans to set up a “robust data protection mechanism”. The government informed the Bench a committee of experts led by former Supreme Court judge, Justice B.N. Srikrishna, has already been constituted on July 31, 2017 to identify “key data protection issues” and suggest a draft data protection Bill.

Effect of the Judgement

This decision may impact everything from the government's signature Aadhaar programme to civil liberties, to gay rights to collection and use of personal data by Internet and financial firms. The verdict can also impact restrictions on right to convert and choice of food.

The judgement also spoke of the right to marriage, procreation, privacy of home and the right to be left alone as other facets of privacy. The broad implication is that the government cannot frame any policy or law that completely takes away the citizen's right to privacy. It can only place reasonable restrictions on limited grounds such as national sovereignty and security, public order, decency, etc, as specified in Article 19 (2) of the Constitution.

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to protection of the law against such interference or attacks.

The ruling did not directly comment on Aadhaar, it in effect cleared the way for further deliberations on the scope of the government's program. So, this judgement is a blow to Aadhaar as the Centre now has to convince SC that forcing citizens to give a sample of their fingerprints and their iris scan does not violate privacy. It was not meant to decide on the fate of Aadhaar, just on whether privacy of an individual was a part of their inviolable fundamental rights. What this means is a five-judge bench of the SC will test the validity of Aadhaar on the touchstone of privacy as a fundamental right.

There are several implications of this judgment but mark my words, the full impact of this will be seen and felt over the coming years as the relation between citizens and the state, citizens and big corporates gets redefined and recalibrated to realise the vision of being not just the world's largest democracy but also the most advanced democracy. However in a nutshell, it sweeps aside the embarrassing ADM Jabalpur judgment by the Supreme Court during the Congress-led Emergency period, which held that that rights guaranteed under Article 21 were alienable and could be suspended during Emergency.

This verdict overruled earlier judgements of M.P Sharma vs Satish Chandra (1954) and Kharak Singh vs State of Uttar Pradesh (1962) that had held privacy to not be a fundamental right.

This verdict effectively creates for the first time, obligations and responsibilities for all entities, government or private, that deal with the information of Indian citizens. The apex court by recognizing the power of technology to transform India and the lives of Indians has also recognized the need to create protective rights.

Verdict's impact on businesses and individual-state relationship

The verdict will have far-reaching implications on the way data is collected, managed and used by government or private entities. It will be their responsibility to use the data provided by individuals in a manner which is responsible and does not infringe upon the privacy of citizens.

This ruling will deter unethical practices by corporates such as stealing biometric details from Aadhaar card to illegally procure multiple SIM cards, or sharing of information without any authorization. With the intrusion of technology, the telecom companies, e-commerce companies and other private service providers are duty bound to safeguard the data of citizens or face legal action by the empowered consumers.

Conclusion

24 August, 2017 will be counted as another important day in the history of our 70-year-old democracy – the day when privacy was firmly established as a Fundamental Right of every citizen under Article 21 and Part III of our Constitution. This judgement is the first step towards the process of evolving a new legal eco-system. Even in the non-digital world, the impact of this judgment will be far reaching. The rights of an individual over his/her body and to take decisions without fear of being observed or scrutinised are also now protected. This will be increasingly asserted by citizens. Apart from setting a new benchmark for Indian democracy and clearing all ambiguity on privacy, the historic judgement by the apex court has set the stage for the introduction of a new privacy law by the government. At the same time, by linking privacy with human dignity and preservation of personal intimacies, the apex court has laid the legal ground for a fresh interpretation of controversial issues such as decriminalization of homosexuality. The judgement hasn’t fundamentally shifted anything but an explicit ruling has put privacy on a surer footing now. However, the judgement has established horizontal applicability. The right to privacy is now applicable against the state as well as against the private companies who possess large amounts of user data without consent or nominal consent of users. This is not just a legal victory, It is a moral victory. The Supreme Court ruling that privacy is a fundamental right because it is intrinsic to the right to life confirms the constitutional right that no person shall be deprived of his life or personal liberty except according to procedure established by law.  I agree with this conclusion as privacy is a primal, natural right which is inherent to an individual. The interplay of technological advances and the right to privacy in the digital age needs to be closely scrutinized. The nine-judge bench has rightly emphasized the need for data protection laws - a task now entrusted, at a preliminary stage, to the Justice Srikrishna Committee. What the future holds for us, we know not. 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 the right to be left alone.