6 September 2017

RIGHT TO PRIVACY- NOW A FUNDAMENTAL RIGHT

A bench of nine Judges of the Supreme Court of India very recently delivered a historic judgement in the case of Justice K Puttaswamy and Anr. vs Union of India, declaring that the Right to Privacy is a fundamental right, stemming out of the right to life and liberty conferred by Article 21 of the Constitution of India.

The question of whether the Right to Privacy was a fundamental right, arose before a three judge bench of the Supreme Court, considering the constitutional challenge to the Aadhar Card scheme introduced by the Government where the Union of India argued, that the existence of the right to privacy as a fundamental right was in doubt on account of the judgements rendered in the case of M P Sharma v Satish Chandra, District Magistrate, Delhi (M P Sharma Case) rendered by a bench of eight judges of the Supreme Court and Kharak Singh v State of Uttar Pradesh (Kharak Singh Case) rendered by a bench of six judges of the Supreme Court. Accordingly, the question was referred to a nine judge bench of the Supreme Court for their consideration.

Over-ruling of MP Sharma Case and Kharak Singh Case

• In M P Sharma Case, it was held that in the absence of a provision like the Fourth Amendment to the US Constitution (the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures), a right to privacy cannot be read into the Indian Constitution. The decision in M P Sharma Case did not decide whether a constitutional right to privacy is protected by other provisions contained in the fundamental rights including among them, the right to life and personal liberty under Article 21. The Supreme Court held that the observation that privacy is not a right guaranteed by the Indian Constitution did not reflect the correct position. M P Sharma is overruled to the extent to which it indicates to the contrary.

• In Kharak Singh Case, the Petitioner after being accused in a case of dacoity in 1941, was released for want of evidence. But Kharak Singh, who was subjected to regular surveillance by the police, approached the Supreme Court for a declaration that his fundamental rights were infringed. The Supreme Court held that the first part of the decision in Kharak Singh Case, which holds that the right to privacy is not a guaranteed right under our Constitution, did not reflect the correct position. Kharak Singh Case to the extent that it holds that the right to privacy is not protected under the Indian Constitution is overruled.

Privacy as a fundamental right

• The Court has held that privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution.

• 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.

• A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. An invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable.

• Any interference with privacy by an entity covered by Article 12’s description of the ‘state’ must satisfy the tests applicable to whichever one or more of the Part III fundamental freedoms (the fundamental rights, enumerated by the Constitution) the interference affects.

• Considering the evolution of technology and the manner in which data privacy is increasingly compromised in the digital era, the Central Government has been directed to institute a robust regime for data protection.

MHCO COMMENT: 

Recognition of the right to privacy as a fundamental right is historic decision since it will curtail the powers of the State to impinge on the private sphere of an individual’s life. This assumes significance in light of the proposed legislation for data protection and the constitutionality of the Aadhar Card scheme, which is currently pending before the five bench judge of Supreme Court.

The views expressed in this update are personal and should not be construed as any legal advice. Please contact us directly on +91 22 40565252 or legalupdates@mhcolaw.com for any assistance.