Janjivan Bureau / New Delhi: The Supreme Court on Thursday gave a land mark verdict that privacy is a fundamental right under the Constitution of India.
“Privacy is intrinsic to the right to life and personal liberty under Article 21 of the Constitution and will be included under schedule III of the Constitution.”, said chief justice J.S. Khehar while pronouncing the unanimous verdict.
The right to privacy will now find place under schedule III of the Constitution along with other fundamental rights: right to equality before law, right to various freedoms such as speech and expression/to move freely, right against exploitation, right to freedom of religion, cultural and educational rights and right to constitutional remedies.
The court also overruled earlier judgments of M.P Sharma vs Satish Chandra and Kharak Singh vs State of Uttar Pradesh that had held privacy to not be a fundamental right.
The impact of the ruling on the Centres 12-digit unique identification project, Aadhaar will be understood only once the detailed judgment is uploaded.
As a fundamental right, privacy would be granted a much higher degree of protection under the law. Since protection will be higher, recourse under the law will also become more concrete.
Separately, the central government is in the process of drafting a data protection legislation and has appointed an expert group headed by former Supreme Court judge B.N. Srikrishna for it.
The constitution bench was set up on 18 July and heard arguments over three days each week by lawyers for the central government, states and petitioners who contended that the collection of personal details under the Aadhaar infringed on the right to privacy.
The limited question—if the right to privacy is a fundamental right—had cropped up in the context of legal challenges to the Aadhaar number, which has now become the bedrock of government welfare programmes, the tax administration network and online financial transactions.
Arguments were opened by lawyer Gopal Subramanium, arguing in favour of a privacy law, as he urged the court to view privacy not as a shade of a fundamental right but as one that was “inalienable and quintessential to the construction of the Constitution”.
Subramanium argued that the concept of privacy was embedded in the right to liberty and dignity.
Privacy was sought to be defined by Shyam Divan, counsel for one of the petitioners, who said that it would include bodily integrity, personal autonomy, protection from state surveillance and freedom of dissent, movement, and thought.
On 26 July, as the Centre began its arguments, it recalibrated its stand on privacy, and conceded for the first time that it was a fundamental right under the Constitution—with the caveat that the right could not be extended to “every aspect” of privacy.
Attorney general K.K. Venugopal submitted that privacy was at best a “sub-species of liberty and every aspect could not qualify as being fundamental in nature”.
Following this, four states—Karnataka, Punjab, West Bengal, Himachal Pradesh—and the union territory of Puducherry backed the constitutionality of the right to privacy. The states of Haryana and Kerala also joined the proceedings.
The Unique Identification Authority of India (UIDAI), represented by Tushar Mehta, additional solicitor general, took the stand that privacy was a valuable common right that was duly protected under statutes and did not need to be elevated to the status of a fundamental right.
