The jurisprudence in India with respect to the status of right to privacy as a fundamental right has been quite dicey, as pointed out in the previous section. It was only in the case of Justice K. S. Puttaswamy v. Union of India[1] that the Apex Court exclusively dealt with this issue. The case was a reference made by a five-judge bench of the Apex Court to a nine-judge bench. The reference was made owing to the ambiguity arising from the judicial precedents on the status and scope of the right to privacy. The nine-judge bench unanimously held that the right to privacy is an intrinsic part of personal liberty under Article 21 of the Indian Constitution.
The majority opinion authored by Justice Chadrachud discusses in detail, a number of reasons which led to the recognition of privacy as a fundamental right. The following are some of the reasons pointed by the Hon’ble Court in this regard-
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- Natural and inalienable rights[2]
The court pointed out that privacy, as a right, can be traced to the notion of inalienable rights i.e. the rights which are inherent in and are inseparable from a human being.
Although these rights are inalienable, however, the autonomy which an individual enjoys, by virtue of these rights, is not absolute. The court pointed out an example wherein one employs another person to kill oneself. Here, the individual exercised his autonomy to violate his inalienable right to life. For this simple reason, such autonomy cannot be absolute in nature.
- Jurisprudence on dignity[3]
The court asserted that ‘dignity’, as a constitutional value, finds its place in the Preamble of the Indian Constitution[4]. The court also said that individual is the main focus of the Constitution as the realisation of individual rights plays a key role in achieving the collective well-being of the community. Therefore, human dignity forms an integral part of the Constitution.
The court held that the sanctity of privacy lies in its functional relationship with dignity, thereby establishing a link between dignity and privacy.
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- Essential nature of privacy[5]
The court was of the opinion that privacy highlights the reservation of a private space for the individual; the right to be let alone. The concept is based on the autonomy of the individual.
The court further held that the ability to make choices lie at the core of the human personality. In this process, privacy plays an instrumental role by enabling the individual to assert and control the choices he/she makes. Recognizing a zone of privacy is a mere acknowledgment that individual should enjoy autonomy in the development of his/her personality.
Therefore, the court established a relationship between dignity and autonomy with privacy. By virtue of this relationship, the right to privacy forms an important element of human dignity as well.
- International obligations[6]
Secondly, the court pointed out India’s international obligations towards protection of privacy by virtue of Article 12 of UDHR[7] and Article 17 of ICCPR[8]. Further, Article 51 of the Constitution requires the State to endeavour to “foster respect for international law and treaty obligations in the dealings of organized peoples with one another”[9].
The Protection of Human Rights Act, 1993 also defines “human rights” and includes ‘dignity of individual’[10] under its ambit. Therefore, India is under an obligation to safeguard the privacy aspects of human dignity.
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The court also took note of India’s commitment towards international obligations by pointing out the stand of the Indian judiciary in Bacchan Singh v. State of Punjab[11], with respect to the use of the death penalty underlining India’s obligations under ICCPR, and Vishaka v. State of Rajasthan[12], where the court relied on the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to provide guidelines prohibiting sexual harassment.
- Statutory protection cannot deny a constitutional right[13]
The court stated that although certain aspects of privacy have been protected under different statutes, nevertheless, providing constitutional protection to a right, places it “beyond the pale of legislative majorities”[14]. If privacy is considered as a part of the basic structure of the Constitution, it becomes inviolable even through an amendment. However, ordinary statutes come under the ambit of amendment/modification.
- Not a mere common law right[15]
The court, while addressing the issue that privacy is protected through common law, held that common law protection cannot bar constitutional recognition of a right, which is afforded because such right is an aspect of fundamental freedom or liberty which the draftsperson considered to be so significant as to require constitutional protection.
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- The ruling of the court- Right to privacy as a fundamental right[16]
Taking into account the reasons summarized above, the court finally held that the right to privacy is constitutionally protected, emerging from the right of life and personal liberty under Article 21 of the Constitution.[17]
Secondly, privacy safeguards personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation[18]. However, this list is not exhaustive[19].
Thirdly, the right to privacy is not an absolute right, like any other right under Part III of the Constitution, including the right to life and personal liberty. Privacy can be encroached by law however, such law should withstand the touchstone of permissible restrictions on fundamental rights. The court formulated a three-pronged test which a law has to pass to intrude into the right to life and personal liberty[20]–
- Legality
- Legitimate state aim
- Proportionality
The Court also unequivocally held that the doctrinal premise of M.P. Sharma[21] and Kharak Singh stand invalidated. The court also appreciated the minority view of Justice Subba Rao in Kharak Singh[22].
- THE IMPLICATIONS OF RIGHT TO PRIVACY AS A FUNDAMENTAL RIGHT
Common Cause v. Union of India[23] represents the first important application of the principles laid down in Puttaswamy[24] with respect to right to self-determination and freedom to make fundamental choices about how to use one’s body[25], as part of fundamental rights under the Constitution.
Further, the Supreme Court while restoring Hadiya’s marriage opined that Hadiya is having internal freedom of choice, marriage and autonomy.[26]
Therefore, ‘privacy’, as a concept incorporates a number of aspects that are now accorded protection under the umbrella of personal liberty under Article 21 of the Constitution.
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[1] Justice K. S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
[2] Id, part G.
[3] Supra note 32, part I.
[4] Supra note 6, Preamble.
[5] Supra note 32, part R.
[6] Supra note 32, part J.
[7] Supra note 4.
[8] Supra note 5.
[9] Supra note 6, Art. 51.
[10] Protection of Human Rights Act, 1993, s. 2(1)(d).
[11] Bacchan Singh v. State of Punjab, (1980) 2 SCC 684.
[12] Vishaka v. State of Rajasthan, (1997) 6 SCC 241.
[13] Supra note 32, part N.
[14] Supra note 32, para 153.
[15] Supra note 32, part P.
[16] Supra note 32, part T.
[17] Supra note 32, part T(3)(C).
[18] Supra note 32, part T(3)(F).
[19] Supra note 32, part T(3)(G).
[20] Supra note 3.
[21] Supra note 14.
[22] Supra note 9.
[23] Common Cause v. Union of India, (2018) 5 SCC.
[24] Supra note 32, part T.
[25] Recognition of right to die with dignity as a part of right to life under article 21.
[26] Shafin Jahan v. Ashokan K.M, 2018 SCC Online SC 201.