“Privacy is a Fundamental Right; it is Intrinsic to Right to Life”
In the history of Independent
India, Thursday, 24th
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.
India, Thursday, 24th
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.
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.
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.
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.
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.
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.
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.
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.”
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.”
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.
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.
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.
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.
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.