It isn’t often that we’re given the privilege of watching history unfold before our eyes. But the privacy judgement handed down by a nine-judge bench of the Supreme Court is one that will be scrutinised and interpreted for decades. And it’s safe to say that the learned judges have in five separate judgments come down on the side of the angels by unanimously declaring that privacy is a fundamental right protected by Article 21 and Part III of the Constitution. To make their position crystal clear, the judges also did a considerable amount of judicial cleaning up and specifically overruled earlier judgments like MP Sharma and Kharak Singh to the extent they held that privacy was not a fundamental right. The court also pointedly overruled the infamous Emergency-era habeas corpus case ADM Jabalpur vs Shivkant Shukla .
The Government, for reasons best known to itself, took extreme positions during the hearings and even argued that privacy was a concept foreign to India and one enjoyed only by the more affluent classes. This was turned down sternly by Justice DY Chandrachud who wrote the majority judgment, saying: “The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised through history to wreak the most egregious violations of human rights.” The judges also quoted extensively from Constituent Assembly deliberations to refute the attorney-general’s arguments that the right to privacy had been left out after much discussion at the time. An alternative stand by the attorney-general that privacy is a common law right but not enshrined as a fundamental right was also firmly rejected. Justice Chandrachud noted: “Elevating a right to the position of a constitutionally protected right places it beyond the pale of legislative majorities.” The bench also turned down the argument that privacy is a concept that cannot be defined but left it open for courts of the future to decide on its limits.
The court’s judgment will serve as a guideline in many cases that are scheduled to come up in the near future — most importantly, the Aadhaar case. Beyond that, the court also pointed out that data protection is very much part of a citizen’s right to privacy. It, however, did not go into detail as the Government announced during the hearing that a committee headed by retired judge BN Srikrishna will go into the subject. Beyond all that, the court also opened the possibility that the Suresh Kumar Koushal vs Naz Foundation case which upheld Section 377 of the Penal Code will be looked at again. The judgment statedthat “a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders (as observed in the judgment of this Court) is not a sustainable basis to deny the right to privacy”. The privacy case was heard in record time and will surely be a landmark for a very long time to come.