The Supreme Court has done more for Indians in its judgment on privacy which was released yesterday than many had the temerity to hope for. The nine judges who heard the case have developed a comprehensive jurisprudence of privacy for India through six largely-concurring judgments appended to each other (with one of them having been signed by four of the judges). They have effectively harmonised the law which had earlier been developed on a case-by-case basis by providing a doctrinal basis for it, and, critically, they have held, without a shadow of doubt, that privacy is a fundamental right.
For decades now, privacy has been closely associated with the right to life in Article 21 of the Constitution of India, and to the freedoms set out in Article 19 such as the freedom of speech. The Supreme Court has now, however, gone further. Justice ( J) Chandrachud writing for himself and Khehar, Agrawal, and Abdul Nazeer, J stated that it ‘straddles across the spectrum of fundamental rights’ while Sapre, J said that privacy is ‘essentially a natural right’ which, to go back to Chandrachud, J, means that it exists ‘equally in the individual irrespective of class or strata, gender or orientation’.
The implications of this view are extraordinary. The Supreme Court has itself called into question an earlier judgment which had upheld the constitutionality of Section 377 of the Indian Penal Code which criminalises homosexual acts. Further, it could potentially affect the judicial view of the popular, possibly-cultural understanding of communal concerns superseding those of the individual. It clarifies that privacy is not a concern of the elite alone, and it highlights the importance of privacy for those who do not conform to the mainstream or belong to the majority.
Justice Bobde has called privacy a ‘travelling right’ saying that it is ‘the necessary condition precedent to the enjoyment of any of the guarantees in Part III’. These ‘Part III guarantees’ are, of course, the fundamental rights in the Constitution. And, courtesy this judgment, it is now clear that the Indian Constitution is not set in stone. There were dismaying arguments made about ‘Originalism’ during the hearing of the case which, had they been accepted, would have effectively have kept the Constitution from being treated as a living document capable of evolving ‘to meet the aspirations and challenges of the present and the future’ to borrow Chandrachud, J’s words. The doctrine of originalism was, however, thankfully rejected. Nariman, J, succinctly held that it has no place while, presumably drawing on the spirit of the sentiment against it, Kaul, J said rather poetically, “The Constitution and its all-encompassing spirit forever grows, but never ages.”
That said, the Supreme Court did not hold that the right to privacy is absolute. It cannot, for example, be used by individuals to exempt themselves from zoning regulations. The state is within its rights to fetter privacy in some circumstances but the onus would be on it to justify itself. As Chelameswar, J put it, the discussion he entered into ‘sets the ground rules within which a limitation for the right of privacy is to be found’ although certain specifics ‘must depend upon the context of concrete cases’.
In coming to its findings, the Court referred to legal philosophy from Aristotle to Dworkin who laid human dignity and moral integrity at the foundations of the legal framework he constructed. It considered the work of academics like Solove who have studied privacy extensively and did not shy away from taking into account feminist critiques which have, in recent decades, altered how we see privacy particularly through the lens gender. It extensively analysed how privacy is viewed in international law and in the domestic laws of various countries. And, perhaps most importantly, addressed the various technical challenges which could be made to its decision such as the purported need for a constitutional amendment to recognise privacy as a fundamental right.
The result is that we now have a coherent constitutional basis upon which to claim privacy. It is ‘the ultimate expression of the sanctity of the individual’ in the words of the Supreme Court.
Nandita Saikia is a Delhi based-lawyer. She tweets as @nsaikia
Disclaimer: Views expressed are personal. They do not reflect the view/s of Business Standard.
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