“Privacy is a Fundamental Right; it is Intrinsic to Right to Life”

In the history of Independent India, Thursday, 24^th August shall be remembered as the day the nine judge bench of the Supreme Court (SC) of India unanimously upheld that: "Right to Privacy is an integral part of Right to Life and Personal Liberty guaranteed in Article 21 of the Constitution". It added that the right to privacy is intrinsic to the entire fundamental rights chapter of the Constitution.

This judgment could be a major blow to Aadhaar (the Unique Identification system using biometrics) 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.

While this bench has upheld that privacy of an individual is a part of one’s inviolable fundamental rights, a five-judge bench of the SC will test the validity of Aadhaar on the touchstone of privacy as a fundamental right.

Right to liberty, which also includes the right to privacy, is a pre-existing "natural right" which the Constitution of India acknowledges and guarantees to the citizens in case of infringement by the state.

The judgment says nothing on the impact on the Aadhaar scheme, which will be heard by a smaller bench. However, this verdict has paved a clear path for protecting citizens against the misuse of information.

The order will also have a bearing on several other cases, including the one challenging Facebook's access to details of Indian WhatsApp users as a violation of privacy.

Additional Ramifications

Among other matters likely to be affected by this decision is the Supreme Court’s previous judgment upholding Section 377, a provision under the Indian Penal Code which criminalizes gay sex.

The Supreme Court’s recent Right to Privacy judgment may possibly open the door to gay sex being decriminalized in India. “The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights,” the court has held.

Excerpts from the order:

“That ‘a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgender’ (as observed in the judgment of this Court) is not a sustainable basis to deny the right to privacy. The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular. The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion. The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection. Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the ‘mainstream’. Yet in a democratic Constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties. 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 the 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.”

Justice Chandrachud while examining Justice Singhvi’s earlier decision in the Section 377 case, (referred to as “Koushal”, based on the full title of the case, ‘Suresh Kumar Koushal vs Naz foundation.’) has stated: “The view in Koushal that the High Court had erroneously relied upon international precedents ‘in its anxiety to protect the so-called rights of LGBT persons’ is similarly, in our view, unsustainable. The rights of the lesbian, gay, bisexual and transgender population cannot be construed to be “so-called rights”. The expression ‘so-called’ seems to suggest the exercise of a liberty in the garb of a right which is illusory. This is an inappropriate construction of the privacy based claims of the LGBT population. Their rights are not ‘so-called’ but are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination.”

Chandrachud adds: “The invasion of a fundamental right is not rendered tolerable when a few, as opposed to a large number of persons, are subjected to hostile treatment. The reason why such acts of hostile discrimination are constitutionally impermissible is because of the chilling effect which they have on the exercise of the fundamental right in the first place ... The chilling effect on the exercise of the right poses a grave danger to the unhindered fulfillment of one’s sexual orientation, as an element of privacy and dignity. The chilling effect is due to the danger of a human being subjected to social opprobrium or disapproval, as reflected in the punishment of crime. Hence the Koushal rationale that prosecution of a few is not an index of violation is flawed and cannot be accepted. Consequently, we disagree with the manner in which Koushal has dealt with the privacy – dignity based claims of LGBT persons on this aspect.

There is currently a petition for a larger bench to take up the matter of Section 377, so Chandrachud et al do not go so far as to strike Singhvi’s judgment down. Yet the order is unambiguous about what it hopes to see done.

Since the challenge to Section 377 is pending consideration before a larger Bench of the Supreme Court, the constitutional validity is still to be decided in an appropriate proceeding.

The privacy ruling may also affect the DNA Based Technology Bill 2017 to allow the government to set up a DNA databank and use data for forensic purposes, which too has raised concerns about privacy.