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Privacy is intrinsic to life and liberty, rules apex court

Krishnadas Rajagopal New Delhi | Updated on January 09, 2018 Published on August 24, 2017

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It is inherently protected under Part III of the Constitution

A nine-judge Constitution Bench of the Supreme Court on Thursday declared that the right to privacy is “intrinsic to life and liberty” and an inherent part of the fundamental freedoms enshrined in Part III of the Constitution.

Reading out the common conclusion arrived at by the nine judges on the Bench, Chief Justice of India JS Khehar said the court has overruled its own eight-judge Bench and six-judge Bench judgments of MP Sharma and Kharak Singh delivered in 1954 and 1961, respectively, that privacy is not protected under the Constitution.

The Centre had argued that privacy is a common law right.

The nine-judge Bench was composed of Chief Justice JS Khehar, Justices J Chelameswar, SA Bobde, RK Agrawal, Rohinton F Nariman, Abhay Manohar Sapre, DY Chandrachud and Sanjay Kishan Kaul.

The Bench of nine was formed as two judgments of the Supreme Court — the MP Sharma case verdict pronounced by an eight-judge Bench shortly after the Indian Constitution came into force in 1950, and the Kharak Singh case verdict of 1962 by a six-judge Bench — had dominated the judicial dialogue on privacy since Independence.

Both judgments had concluded that privacy was not a fundamental or ‘guaranteed’ right. To overcome these two precedents, a numerically superior Bench of nine judges was required.

A five-judge Bench led by Chief Justice Khehar had referred the question of whether privacy is a fundamental right or not to the nine-judge Bench.

Full text of the Supreme Court's judgment on Right to Privacy

The nine-judge Bench’s judgment gains international significance as privacy enjoys a robust legal framework internationally, though India has remained circumspect. The judgment, if it declares privacy as a fundamental right, would finally reconcile our laws with the spirit of Article 12 of the Universal Declaration of Human Rights, 1948, and Article 17 of the International Covenant on Civil and Political Rights (ICCPR), 1966, which legally protects persons against the “arbitrary interference” with one’s privacy, family, home, correspondence, honour and reputation.

Aadhaar impact

The judgment will have a crucial bearing on the government’s Aadhaar scheme, which collects personal details and biometrics to identify beneficiaries for accessing social benefits and government welfare schemes.

A bunch of petitions were filed in the Supreme Court in 2015 challenging Aadhaar as a breach of privacy, informational self-determination and bodily integrity.

The petitioners had argued that Aadhaar enrolment was the means to a “Totalitarian State” and an open invitation for personal data leakage.

The government had countered that the right to privacy of an “elite few” is submissive to the right of the masses to lead a dignified life in a developing country. It said informational privacy does not exist before compelling state interests and is not an absolute right.

It had reasoned that collection and use of personal data of citizens for Aadhaar – now a law under the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act of 2016 – benefits the lives of millions of poor by giving them direct access to public benefits, subsidies, education, food, health and shelter, among other basic rights. The government claimed Aadhaar was a panacea to end corruption in public distribution, money laundering and terror funding.

Published on August 24, 2017
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