The new fundamental

SC's ruling on the right to privacy is historic

A nine-judge Bench of the Supreme Court has issued an emphatic order in favour of the right to privacy being a fundamental right under the Indian Constitution. Till now, the status of the right to privacy was shrouded in mystery. That is because while many previous judgments (by smaller Benches) of the apex court treated it as a fundamental right, two of the older judgments – M P Sharma v Satish Chandra (1950) and Kharak Singh v The State of Uttar Pradesh (1962) – which were delivered by bigger Benches, had differed. As such, things came to a head when several petitioners questioned the Union government’s collection of biometric data and iris scans for Aadhaar numbers on the grounds that it violated the citizen’s fundamental right to privacy. As both the government and private companies were increasingly privy to biometric and other personal data, this concern for privacy grew louder. It is welcome that despite its initial opposition to the concept, the Union government has gracefully accepted the order.

Pronouncing the landmark ruling, the Supreme Court stated that the right to privacy emanated from Article 21 of the Constitution, which safeguards the right to life and personal liberty. The court did not leave anything to doubt when it stated: “Privacy is the constitutional core of human dignity… (it) also connotes a right to be left alone”. This definition of privacy covers the sanctity of one’s “sexual orientation” as well. The court also underlined it was not amending the Constitution or usurping the role of the legislature, it was merely protecting the rights of each individual. While the apex court abstained from providing an exhaustive list of entitlements drawing from the right to privacy, it did crucially state that it contained both positive and negative aspects. The negative aspect restrains a government from “committing an intrusion upon the life and personal liberty” of a citizen while the positive aspect imposes an “obligation on the state” to take all necessary measures to protect the privacy of the individual.

Both – the unanimity of the decision and the articulation of what is privacy – are likely to have widespread ramifications. Though the constitutional validity of the Aadhaar card was not being argued, individual information contained in Aadhaar provides the immediate context of Thursday’s judgment. It is possible that the government will be forced to review the areas in which it makes the use of Aadhaar mandatory. Moreover, in time, several other rulings and laws are likely to come under questioning. For instance, the apex court ruling upholding the Indian Penal Code criminalising sex between two consenting adults of the same sex is one issue that could, and should, merit revision. Similarly, the ruling will affect the use of personal data by private firms such as WhatsApp and Facebook since the court also roped in the threat to privacy from “non-state actors” and commended the government to put in place a robust data protection regime in the country; it referred to the B N Srikrishna committee in this regard. Of course, like all fundamental rights, this one too will be limited by reasonable restrictions. In fact, apart from “the legitimate aims” of the state such as national security, the court crucially added “the dissipation of social welfare benefits”. This leaves the window open for the use of Aadhaar being made mandatory for welfare schemes, something that should please the government.