Privacy is fundamental right: SC

Source: The Hitavada      Date: 25 Aug 2017 07:56:00




In an unanimous decision, the nine judge bench has ruled that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21

The verdict overruled earlier judgements of 8 judges bench in 1950 and a six judge bench in 1960, which had ruled that privacy is not a fundamental right

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IN A landmark verdict, the Supreme Court on Thursday declared right to privacy as a fundamental right under the Constitution saying, “privacy is the constitutional core of
human dignity”.

The judgement, which will have a bearing on the lives of all Indians, said that “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.”

The top court also ruled that like other fundamental rights, the right to privacy was not absolute and any encroachment will have to withstand the touchstone of permissible restrictions.

A nine-judge Constitution bench headed by Chief Justice J S Khehar, which delivered as many as six concurring verdicts, overruled the contrary apex court verdicts delivered in 1950 and 1962 in the M P Sharma and the Kharak Singh cases holding that right to privacy was not part of the Constitution.

The top court rejected the NDA Government’s vehement contention that there was no general or fundamental right to privacy under the Constitution.
The lead judgement, penned by Justice D Y Chandrachud for himself, the CJI, Justices R K Agrawal and S A Nazeer, however, asked the Government to examine and put in place a “robust regime” for data protection in the modern era.

However, the top court gave a ray of hope to embattled Government, whose Aadhaar scheme is under intense scrutiny over privacy infringements, said, “We commend to the Union Government the need to examine and put into place a robust regime for data protection.

“The creation of such a regime requires a careful and sensitive balance between individual interests and legitimate concerns of the state. The legitimate aims of the state would include for instance protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits”.

Besides the four judges including the CJI, Justices J Chelameswar, S A Bobde, Abhay Manohar Sapre, Rohinton Fali Nariman and Sanjay Kishan Kaul wrote separate, but concurring verdicts running into 547-pages.
The judgement was welcomed by leading legal experts, including Law Minister Ravi Shankar Prasad, who is himself a lawyer. Noted jurist Soli Sorabjee said “no fundamental right is absolute. It is always subject to reasonable restrictions”.

While senior advocate Indira Jaising said “privacy is fundamental. It certainly has an impact on the day-to-day life. This verdict prevents any kind of snooping,” senior lawyer Kapil Sibal observed that like individual freedom, “individual house, marriages, sexual orientation, right to space, right to move freely, right to eat what an individual likes, right to be left alone are protected both within the home and at public places to the extent necessary.” The CJI pronounced the summary of concurring verdicts in a packed courtroom at 10.35 am and said, “the decision in M P Sharma (1950) which holds that the right to privacy is not protected by the Constitution stands over-ruled.

“The decision in Kharak Singh (1962) to the extent that it holds that the right to privacy is not protected by the Constitution stands over-ruled”. The bench put at rest the persistent query as to where Right to Privacy, if recognised as a fundamental right, would be placed under Part III (which refers to such rights) the Constitution.

It said that right to privacy was protected as an intrinsic part of the right to life and personal liberty under Article 21 and rather, it can be traced to entire Part III as and as a part of all the fundamental rights.

He then proceeded to declare that all verdicts, which recognised privacy as a key component of fundamental rights, delivered post the M P Sharma and the Kharak Singh laid down “the correct position in law”.
Justice Chandrachud, in his verdict, dealt extensively with findings arrived at in the M P Sharma judgement that had held that in the absence of a provision similar to the Fourth Amendment to the US Constitution, the right to privacy cannot be read into the provisions of Article 20(3) of the Constitution.

“The judgment does not specifically adjudicate on whether a right to privacy would arise from any of the other provisions of the rights guaranteed by Part III including Article 21 and Article 19.

“The observation that privacy is not a right guaranteed by the Indian Constitution is not reflective of the correct position. M P Sharma is overruled to the extent to which it indicates to the contrary,” the verdict said.

Congress says SC privacy verdict blow to “fascist forces”: THE Congress on Thursday hailed the Supreme Court verdict declaring privacy a fundamental right as a “landmark judgement” and said it was a blow to “fascist forces” and the “unbridled encroachment and surveillance” by the State in the common man’s life. Congress President Sonia Gandhi said that the verdict heralded a new era for individual rights and human dignity, while party Vice President Rahul Gandhi said it was a rejection of the BJP’s ideology of “suppression through surveillance”.

At the party’s media briefing here, senior spokesperson P Chidambaram said the judges’ unanimous verdict was a setback to the Centre which said in court that there could be no fundamental right to privacy.

Welcoming the judgement, the Congress President said that the party and its Governments, along with the rest of the Opposition, stood together in court and in Parliament in speaking out for the right and against what she called the “arrogant attempts” of the Centre to curtail it.

Rahul Gandhi said the judgement was a “victory for every Indian”. “Welcome the SC verdict upholding right to privacy as an intrinsic part of individual’s liberty, freedom and dignity. The SC decision marks a major blow to fascist forces,” he said on Twitter.