The prolong, unending, anxious wait and huge suspense over what the judgment of Supreme Court will deliver is finally over. The curtains have finally been opened! To start with, the Supreme Court on August 24 has finally declared forthright that the right to privacy a fundamental right and this has brought smiles on the face of billions of people all over the country. Sanjay Hegde who is a senior advocate in the Supreme Court and Pranjal Kishore who is a lawyer in Delhi very rightly begin their enlightening editorial titled “In verdict, freedom’s 7 takeaways” in The Indian Express dated August 28, 2017 that, “A majority of Indians, particularly younger citizens, had taken the right to privacy for granted. The government’s extreme stand, that there was no fundamental right of privacy, compelled the Supreme Court to clarify years of slightly uncertain case-law on this point. The decision in Justice KS Puttaswamy (retd) and Anr versus Union of India and Anr has enormous implications. The court has, with broad brushstrokes, enhanced and highlighted the right. Crucially, it has indicated that the contours of privacy mentioned in the judgment are not limitations to the right but foundations over which it will develop over time.”
To put it succinctly, Milind Deora rightly points out in his enlightening article titled “Why We Need Curtains” in ‘The Economic Times’ dated July 24, 2017 that, “Canada has a dedicated Privacy Commissioner to ensure oversight and implementation of the Privacy Act and the Personal Information Protection and Electronic Documents Act. The lack of such regulations in India is essentially akin to inviting the State, or any private player, into our homes and lives, granting them access to our private conversations, chats, emails, phone calls, gym schedules and dinner plans. In the absence of a privacy law regulating the collection, storage and use of private information, we are essentially surrendering control of our data, completely vulnerable to misuse and exploitation without connotations of illegality or mechanisms for redressal. A larger, more dangerous threat looms in potential attacks on sovereign data, the consequences of which could range from economic loss to a paralysis of essential government services such as electricity and transportation.”
Similarly in Kharak Singh v The State of UP & Others [1964 1 SCR 332] dated December 18, 1962, the writ petition was adjudicated by a six-Judge Bench comprising the then Chief Justice Bhuvaneshwar P Sinha and Justices N Rajagopala Ayyangar, Syed Jaffer Imam, K Subbarao, JC Shah and JR Mudholkar , the Bench struck down Clause (b) – domiciliary visits at night – of Regulation 236, but upheld the rest. The Bench also held that, “The right of privacy is not a guaranteed right under our Constitution, and therefore the attempt to ascertain the movements of an individual is merely a manner in which privacy is invaded and is not an infringement of a fundamental right guaranteed in Part III (fundamental rights).”
In this case the petitioner Kharak Singh was challaned in a case of dacoity, but was released as there was no evidence against him. Uttar Pradesh Police subsequently opened a “history sheet” against him and brought him under “surveillance”. This was done in exercise of the powers under Chapter XX of the Uttar Pradesh Police Regulations. Regulation 236 authorised six measures of “surveillance”: (a) secret picketing of the house or approaches to the house of suspects; (b) domiciliary visits at night; (c) through periodic inquiries by officers not below the rank of Sub-Inspector into repute, habits, associations, income, expenses and occupation; (d) reporting by constables and chaukidars of movements and absence from home; (e) verification of movements and absences by means of inquiry slips; and (f) collection and record on a history sheet of all information bearing on conduct.
Before discussing the judgment threadbare, it is imperative to know the privacy laws of some major countries. Let us discuss them one by one. They are as follows: -
1. In USA privacy is not explicitly cited as a right in the US Constitution but it is indirectly safeguarded through the Fourth Amendment against unwarranted search or seizure, and Fourteenth Amendment on due process and so on. Privacy protected by state and sector-specific laws for health information, financial information, children-specific data etc. The Privacy Act of 1974 spells out terms for how records of personal data can be used by federal agencies. US citizens are entitled to take recourse under tort law and can claim damages if their privacy is invaded through electronic or physical snooping into private spaces, public disclosure of private information or appropriation of one’s name or likeness.
2. In UK, privacy law has evolved over the years, but in indirect and piecemeal manner. There is a law of trespass on one’s bodily or physical property. Breach of confidence principles have been used to protect commercial information and, to a lesser extent, personal information. UK’s data protection law requires fair processing of personal data and transparency about the purpose of collection along with informed consent. After Brexit, data protection laws are all set to be overhauled again exhaustively.
3. Canadian privacy law has evolved over the years from common law, federal and provincial-level statutes, and the Canadian Charter of rights and Freedoms. Currently it has two federal privacy laws, one for the state’s handling of personal information and another for the private sector. Also, we see how provinces have their own legislation, and sectors like bank and credit reporting agencies are governed by their own specific laws.
4. Iceland like Switzerland has a secure strongbox for information guarded by the tightest privacy laws in the world. It has adopted the EU’s privacy regulations. It also hosts data centres to store the world’s information safely and several encrypted companies operate out of Iceland.
5. In Spain privacy is both a fundamental right under the European Union charter and a strong cultural norm. Citizens have a great degree of control over their own data and can ask for irrelevant information to be removed. There is a formal ‘right to be forgotten’. Businesses have to inform regulators in case of a data breach. Personal data protection is a constitutional right and anyone seeking to collect such data must provide users with “fair processing information”, including their own identity, address, the reason for seeking the data, legal right of the user, whether participation is voluntary or mandatory and the consequences of not parting with the data.
6. Singapore passed a data privacy law in 2016 that protects all the personal data ten years after a person’s death.
7. The 27-nation EU directive, passed in 1995, restricts the use, sharing, storing and collecting of personal data.
It would also be useful to know the chronology of events connected with this landmark judgment. This will give a fair idea as to who the case progressed right from the inception. They are as follows: -
July 21, 2015: A Bench of Justices J Chelameswar, SA Bobde and C Nagappan on a batch of petitions challenging the Aadhaar scheme as a violation of privacy clarifies that demands made by officials for Aadhaar card are in clear violation of the Supreme Court’s order of September 23, 2013 that Aadhaar is voluntary.
: Centre argues that the Constitution makers did not intend to make right to privacy a fundamental right. There is no fundamental right (to privacy), so these petitions (under Article 32) should be dismissed. Right to privacy is not absolute.
August 6: The three-Judge Bench reserves its order on the petition challenging the Aadhaar card project. Centre seeks a larger Bench to answer questions of law, primarily whether privacy is a fundamental right.
August 11: Three-Judge Bench holds that “balance of interest” is better served if Aadhaar is made neither mandatory nor a condition for accessing benefits one is already entitled to. The Court clarified that this interim order will be in vogue till a five-Judge Bench decides on the larger Constitutional issue whether the Aadhaar scheme and its biometric mode of registration, amounts to an intrusion into the privacy of a citizen.
: The Supreme Court refers to a Constitution Bench the question whether a person can voluntarily shed his right to privacy by enrolling for Aadhaar to easily access government welfare services. The Bench does not modify its August 11, 2015 order restricting the use of Aadhaar cards to only the public distribution system and LPG connections. Instead, it left the order open for the Constitution Bench to consider and take a call.
: The Supreme Court extends the voluntary use of Aadhaar card to MGNREGA, pension schemes, EPFO and the Jan Dhan Yojana. The five-Judge Constitution Bench, led by HL Dattu, says the purely voluntary nature of the use of Aadhaar card to access public services will continue till the court takes a final decision.
April 25, 2016: The passage of Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016, on March 11, 2016 comes under the scanner of Supreme Court after Parliamentarian Jairam Ramesh challenges its introduction as a Money Bill as “malafide and brazen”.
March 27, 2017: CJI JS Khehar orally observes that there is no fault with the government’s choice to make Aadhaar mandatory for “non-welfare activities like opening a bank account or filing income tax returns or applying for a mobile connection.
: Senior advocate Shyam Divan submits before a Supreme Court Bench that a newly inserted Section 139AA in the Income Tax Act, which mandates the linking of Aadhaar with PAN, is a “Faustian bargain”. Centre counters it by stating that taking fingerprints iris impressions for Aadhaar is not an invasion of a citizen’s body as the right of a person to his own body is not absolute.
: Supreme Court agrees to hear petition filed by several persons, including former NCPCR chairperson and Magsaysay winner Shanta Sinha, against 17 government notifications allegedly making Aadhaar mandatory for accessing welfare activities after June 30, 2017.
: Supreme Court upholds Section 139AA of the Income Tax Act.
July 7, 2017: Three-Judge Bench says issues arising out of Aadhaar should finally be decided by larger Bench and CJI would take a call on need for setting up a Constitution Bench.
Matter mentioned before CJI who sets up a five-Judge Constitution Bench to hear the matter.
: Five-Judge Constitution Bench decides to set up a nine-Judge Bench to decide whether the right to privacy can be declared a fundamental right under the Constitution.
: Apex Court says right to privacy can’t be absolute, may be regulated.
Centre tells Apex Court that right to privacy is not a fundamental right.
The Unique Identification Authority of India informs that the Centre has constituted a Committee of experts led by former Supreme Court Judge – Justice BN Srikrishna to identify “key data protection issues” and suggest a draft data protection Bill.
: Karnataka, West Bengal, Punjab and Puducherry, the four non-BJP ruled states move Supreme Court in favour of right to privacy.
Centre tells Supreme Court that privacy can be fundamental right with some riders.
: Maharashtra government tells Apex Court that privacy is not a ‘standalone’ right, but it is rather a concept.
August 1: Supreme Court says that there has to be ‘overarching’ guidelines to protect an individual’s private information in public domain.
August 2: Supreme Court says protection of the concept of privacy in the technological era was a “losing battle”, reserves verdict.
August 24: Supreme Court declares right to privacy as fundamental right that is intrinsic to life and liberty under Part III of the Constitution.
Let me bring out here that the nine-judge Bench comprising Chief Justice of India JS Khehar, Justices J Chelameswar, SA Bobde, RK Agrawal, RF Nariman, AM Sapre, DY Chandrachud, SK Kaul and S Abdul Nazeer, by way of six separate decisions arrived at the same conclusion. In a session that lasted barely five minutes, Chief Justice JS Khehar read out the unanimous operative part of the verdict of the nine-Judge Bench: “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.” There can be no denying it.
Be it noted, Justice Chandrachud raised the other issue of balancing data regulation on internet with individual privacy. He said that, “Privacy concerns are seriously an issue in the age of information. Modern day apps and online transactions profile customer preferences, without users consenting to the same.” He further added: “We commend to the Union Government the need to examine and put in place a robust regime for data protection. The creation of such a regime requires careful and sensitive balance between individual interest and legitimate concern of the State.” He also said that, “Privacy is a concomitant of the right of the individual to exercise control over his or her personality. Natural rights (like privacy) are inalienable because they are inseparable from the human personality. The right to privacy has been traced in the decisions, which have been rendered over more than four decades to the guarantee of life and personal liberty in Article 21.”
It is imperative that we now discuss in brief those decisions of more than four decades to which right to privacy has been traced. They are as follows: -
1. Kharak Singh v State of UP & Others (1964) – SURVEILLANCE INTRUDES INTO PRIVACY
Among the most cited cases in India when it comes to privacy. Here, a majority of a six Judge Bench of Supreme Court held that unlawful intrusion into the home violates personal liberty.
2. R Rajagopal v State of Tamil Nadu (1994) -
RIGHT TO BE LET ALONE
The Supreme Court observed that, “…in recent times, right to privacy has acquired Constitutional status and is implicit in the right to life and liberty guaranteed to the citizens by Article 21. It is a right to be let alone. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters.”
3. PUCL v Union of India (1997) –
TELEPHONE TAPPING INVADES PRIVACY
A Division Bench of Supreme Court held that a telephone conversation is an exercise in freedom of expression, and that telephone tapping is an invasion of privacy.
4. Mr X v Hospital Z (1998) –
PRIVACY ISN’T ABSOLUTE
The case concerned revealing the HIV status of a patient by a doctor. A Division Bench of Supreme Court held the right to life and personal liberty includes the right to privacy but the right is not absolute and may be lawfully restricted. A doctor may disclose a patient’s HIV status to their partner.
5. Hinsa Virodhak Sangh v Mirzapur Moti Kuresh Jamat (2008) –
CHOICE of FOOD PERSONAL
A Division Bench of Supreme Court upheld the closure of slaughterhouses in Ahmedabad during the Jain Paryushan festival. It also observed that what one eats is part of one’s right to privacy.
6. Jamiruddin Ahmed v State of West Bengal (2009) – RAID WITHOUT REASON NOT OKAY
A Division Bench of Supreme Court held that search/seizure without recording valid reasons violates the right to privacy.
7. Ram Jethmalani & Others v Union of India (2011) – CAN’T REVEAL BANK DETAILS WITHOUT VALID GROUNDS
Popularly known as the “Black Money Case’. The Supreme Court here held that revealing an individual’s bank account details without establishing grounds to accuse them of wrongdoing violates their right to privacy.
8. In The Ramlila Maidan Case (2012) –
RIGHT TO SLEEP IS PART OF RIGHT TO PRIVACY
The Supreme Court took suo motu cognizance of the massive unwarranted crackdown on peaceful, sleeping anti-corruption protesters camping at Ramlila Maidan led by Baba Ramdev. While identifying right to sleep as an aspect of the right to dignity and privacy, the Apex Court refused to permit “illegitimate intrusion into a person’s privacy as right to privacy is implicit in the right to life and liberty”.
Let me hasten to add here that all the nine Judges who delivered this landmark judgment agreed that though the Constitution makers did not consider including privacy as a fundamental right, it is an “inalienable” human right. Without recognizing privacy as a fundamental right, they said, the goals of liberty and dignity contained in our Preamble can’t be fully enjoyed. Justice Chandrachud who wrote for himself and the CJI, Justices Agrawal and Nazeer, recalled the Emergency days and said, “India’s brush with a regime of suspension of life and personal liberty in the not too distant past is a grim reminder of how tenuous liberty can be, if the judiciary is not vigilant.” He said that by making privacy a fundamental right, it will become inviolable and make it tough for any law or executive decision that seeks to infringe upon this right to stand the scrutiny from Courts.”
Not stopping here, Justice Chandrachud further added that, “A constitutional democracy can survive when citizens have an undiluted assurance that the rule of law will protect their rights and liberties against any invasion by the state and that judicial remedies would be available to ask searching questions and expect answers when a citizen has been deprived of these, most precious rights. The view taken by Justice Khanna must be accepted, and accepted in reverence for the strength of its thoughts and the courage of its convictions.”
On the quality and value of ADM Jabalpur judgment, Justice Chandrachud pulled back no punches in holding unequivocally that, “When histories of nations are written and critiqued, there are judicial decisions at the forefront of liberty. Yet others have to be consigned to the archives, reflective of what was, but should never have been.” It takes great guts and courage to expressly overrule what one’s own father says and we all must imbibe some lessons from him (Justice DY Chandrachud) to never dither in disagreeing with our own father also when we think strongly that he is wrong! He certainly deserves all the encomiums and laurels!
Justice Chandrachud rightly held that dignity is the core that unites the fundamental rights – because fundamental rights try to achieve for each individual the dignity of existence. He also held that no citizen has the right to waive fundamental rights – the direct implication of this being that the sharing of information does not in any way implies that the citizen has in any way waived his right to privacy. Also, this implies that citizen himself/herself also cannot waive his/her fundamental rights which are inalienable and cannot be parted with even by the consent of the concerned citizen. State thus has no right of any kind to take away the fundamental right of any citizen by citing the doctrine of waiver.
Now coming to the all-important question of privacy being a fundamental right, while rejecting the government’s stand that the Constituent Assembly consciously excluded privacy from the fundamental rights, Justice Chandrachud held the framers did not reject privacy as an integral part of liberty. He listed as many as 15 fundamental rights that the judiciary has created over the years. He also held that the judicial recognition of rights is not an amendment of the Constitution, but a legitimate exercise of the court’s functions.
He said even Arthashastra recognized it. He went on to say that, “A woman ought not to be seen by a male stranger seems to be a well-established rule in the Ramayana. The Arthashastra prohibits entry into another’s house, without the owner’s consent. Similarly in Islam, peeping into others houses is strictly prohibited.” He held that, “Privacy is the necessary condition precedent for the enjoyment of freedom under Part III of the Constitution. Not recognizing character of privacy as a fundamental right is likely to erode the very sub-stratum of personal liberty guaranteed by the Constitution. Any de-recognition or dimunition of right of privacy will weaken fundamental rights which have been expressly conferred.”
On a concluding note, it must be reiterated that right to privacy cannot be curtailed or abrogated by merely enacting a statute but can be done by only a constitutional amendment after complying with certain constitutional prerequisites. The right to privacy includes the right to be left alone. Also, we must remember that right to privacy like other fundamental rights cannot be absolute and is subject to reasonable restrictions. It was rightly held in this landmark judgment that, “Privacy is not an absolute right, but any invasion must be based on legality, need and proportionality.”
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.