The Supreme Court of India’s judgment in Justice K.S. Puttaswamy (Retd) vs Union of India[1] was a milestone in the history of democratic India. The wordings of the judgement are as follows:
“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 Right to Privacy in India has been developed through a series of decisions by the Supreme Court. Right to Privacy was never an explicit right i.e. it is not verbally stated in the Constitution of India. However, constitutional provisions must be read and interpreted in a manner established by the courts or in a manner which would enhance its conformity with treaties and conventions which is a signatory of.
The judgment also concludes that privacy is a necessary condition for the meaningful exercise of other guaranteed fundamental rights. This judgement was timely given when there was a serious outrage on linking of the aadhar cards to the bank accounts, mobile numbers and so on.
The public felt that this was a pure ground of discrimination as the aadhar card reviled all the personal details of an individual including their religion, caste etc. The government to this accusation clearly stated that aadhar was only a medium through which they are looking forward to improve the livelihood of the underprivileged, provide them with facilities and also introduce people who are not aware of the schemes started by the government for their development.
After this judgement, the Union of India, eroded the two decisions of the Supreme Court – the 8-judge bench decision in M.P. Sharma v. Satish Chandra[2], and the 6-judge bench decision in Kharak Singh v. The State of U.P[3], where they said search and seizure were not subject to be recognized under the fundamental right to privacy and in the other “right to privacy is not guaranteed under the Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which the privacy is invaded is not an infringement of a fundamental right guaranteed by Part III” respectively.
International conventions have also expressly recognized the right of privacy. Article 12[4] of the Universal Declaration of Human Rights , Article 17[5] of the International Convention on Civil and Political Rights , Article 8[6] of The European Convention on Human Rights explicitly provides for right to privacy as a fundamental right and an way to protect an individual’s dignity and integrity of his/her personal life.
All the 9 Judges in the 9 Judge Bench headed by Chief Justice JS Khehar unanimously agreed on the same point that the right to privacy was not an absolute right and it will be subjected to certain restrictions which are to be tested under Article 21[7] with the fair, just and reasonable standards.
In Maneka Gandi v. Union of India,[8] the expression ‘personal liberty’ saw the widest amplitude during those days which included the rights which were not explicitly mentioned in the article. The rule of Natural Justice was also applied and held that every person has a right to fair hearing and a right against bias. Now, this personal liberty would also include Right to privacy after the said judgement. There were a few judgements even before the Aadhar card case where the right to privacy was upheld[9].
The Bench hearing the Aadhar card case passed an interim order restricting compulsory linking of Aadhaar for benefits delivery, after the 9 Judge Bench had marked the beginning of Right to Privacy as a fundamental right. The decision is still awaited.
There are a lot of question which riddles and a few cases which have to be revisited by the Supreme Court after the said judgment, one of those would definitely be the NAZ FOUNDATION[10] case i.e. SECTION 377[11] of IPC. One of the main reasons why the case has to be revisited is because when all the citizens are guaranteed right to life, personal liberty and right to privacy as a fundamental right, the LGBT community deserves the same liberty and the same rights. When Article 15[12] talks about not discriminating citizens based on their caste, creed, sex, and religion, then criminalizing S.377 would be an infringement to a person’s enjoyment of his fundamental right. Also Article 14[13] which ensures right to equality and fair treatment of all the citizens would be breached.
Justice Shah holding the part of S.377 stated that a person’s sexual orientation remains his personal choice and is a matter of privacy and privacy in itself being a fundamental right, therefore choice of sexual orientation will also be a fundamental right. This judgment was later set aside by the Parliament and said that it was beyond the scope of the court’s jurisdiction.
[1] WRIT PETITION (CIVIL) NO 494 OF 2012
[2] 1954 SCR 1077
[3] 1964 (1) SCR 332
[4] Article 12 – Universal Declaration of Human Rights. 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.
[5] Article 17
- No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
- Everyone has the right to the protection of the law against such interference or attacks.
[6] Article 8 of the European Convention on Human Rights provides a right to respect for one’s “private and family life, his home and his correspondence”, subject to certain restrictions that are “in accordance with law” and “necessary in a democratic society”.
[7] “No person shall be deprived of his life or personal liberty except according to a procedure established by law.”
[8] (1978) 1 SCC 248,
[9] PUCL v. Union of India, 1997 1 SCC 301 (2 judges), Mr. X v. Hospital Z, 1998 8 SCC 296 (2 judges).
[10] Suresh Koushal v. Naz Foundation, 2014 1 SCC 1
[11] 377. Unnatural offences.—Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
[12] 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
[13] 14. Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
ABOUT THE AUTHOR
Deepa Karanam
Deepa Karanam is currently a third-year student at Symbiosis Law School, Hyderabad. She is currently working as the president of the Legal Aid Centre at Symbiosis Law School, Hyderabad. Social work and charity is something she always looks up to, and the famous JFK saying going by ‘If not us, who? If not now, when?’ fascinates her to keep going and never wait for anybody to bring about a change in the society. An aspiring bureaucrat, her pass time has always been music because of its healing power.
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