Right to Privacy is “Fundamental” Right – Supreme Court of India

The Supreme Court of India, in a landmark judgement, pronounced Right To Privacy as an absolute right under Article 21. A nine-judge Constitution Bench of the Supreme Court yesterday gave this verdict in an unanimous decision and established that the right to individual privacy is an “intrinsic” and “fundamental”.

It took six separate judgments. The verdict spans over an overwhelming half a thousand pages. This verdict of the highest judicial forum of India could be the most significant event in recent years towards upholding the biggest democratic country’s “intrinsic freedom and liberty” and also carries major international significance.

By doing so, the court had overruled its own eight-judge Bench and six-judge Bench judgments in the years 1954 and 1961 respectively. 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 formed.

What is Article 21?
Article 21 of Indian Constitution is about the “Protection Of Life And Personal Liberty” which says “No person shall be deprived of his life or personal liberty except according to procedure established by law”.

The Constitution of India provides Fundamental Rights under Chapter III. One of these rights is provided under article 21.

Article 21 applies to natural persons. The right is available to every person, citizen or alien. Thus, even a foreigner can claim this right. It, however, does not entitle a foreigner the right to reside and settle in India, as mentioned in Article 19 (1) (e).

The nine-judge Bench was formed by Chief Justice Khehar, Justices J. Chelameswar, S.A. Bobde, R.K. Agrawal, Rohinton F. Nariman, Abhay Manohar Sapre, D.Y. Chandrachud and Sanjay Kishan Kaul. Every one of the nine-judge panel gave their verdict towards the right to privacy – making it unanimous.

Why was it necessary ?

Supreme Court apprehended this as necessary due to the risk of personal information falling in the hands of private players and service providers. Personal data such as phone numbers, addresses, date of birth, sexual identities, health records, ownership of property, taxes – are being shared with third parties.

National programs like Aadhaar, CCTNS, RSYB, DNA profiling etc. involve collection of personal data, including fingerprints, iris scans, bodily samples, and their storage in electronic form. Even reproductive rights of women, privileged communications and brain mapping involves storage of personal data in electronic forms. In absence of “robust data protection mechanism” all these user data are exposed to the danger of data leakage and privacy theft.

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Supreme Court had asked the government several times about its plan for data protection mechanism previously. Government formed a committee led by former SC  judge, Justice B.N. Srikrishna last month but yet to produce any data protection bill.

What The Gov. Had To Say?

Gov. claimed that digitization programs such as Aadhaar 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.

The Government however, accepted the verdict with open hearts. BJP leader Subramanian Swamy said ”Welcome the SC judgment that Right to Privacy is a fundamental Right under Article 21 of the Constitution. Now onto Aadhar modification.

Verdict Highlights…

Justice Chandrachud
Life is precious in itself. But life is worth living because of the freedoms which enable each individual to live life as it should be lived. The best decisions on how life should be lived are entrusted to the individual. Privacy ensures the fulfillment of dignity.

Justice J. Chelameswar

Fundamental rights are the only constitutional firewall to prevent State’s interference with those core freedoms constituting liberty of a human being. The right to privacy is certainly one of the core freedoms which is to be defended. It is part of liberty within the meaning of that expression in Article 21.

Justice Rohinton F. Nariman

A large number of poor people that the Centre (Attorney-General K.K. Venugopal talks about are persons who in today’s completely different and changed world have cell phones, and would come forward to press the fundamental right of privacy, both against the Government and against other private individuals. We see no antipathy whatsoever between the rich and the poor in this context.

Justice Bobde

The first and natural home for a right of privacy is in Article 21 at the very heart of ‘personal liberty’ and life itself. There are innumerable activities which are virtually incapable of being performed at all and in many cases with dignity unless an individual is left alone or is otherwise empowered to ensure his or her privacy. Birth and death are events when privacy is required for ensuring dignity amongst all civilized people.

Justice Sanjay Kishan Kaul

Privacy is nothing but a form of dignity, which itself is a subset of liberty. Thus, from the one great tree, there are branches, and from these branches there are sub-branches and leaves. Every one of these leaves are rights, all tracing back to the tree of justice. They are all equally important and of equal need in the great social order. They together form part of that ‘great brooding spirit’. Denial of one of them is the denial of the whole, for these rights, in manner of speaking, fertilise and nurture each other.

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Justice A.M. Sapre

Right to privacy is a part of fundamental right of a citizen guaranteed under Part III of the Constitution. However, it is not an absolute right but subject to certain reasonable restrictions.

What are the consequences?

Yes, the most important question is what now? How does this impact the nation ?

  1. This verdict will impact several key policies, majorly the biometric ID card program(Aadhaar), which the government deems necessary for citizens to access subsidies, file taxes, operate bank accounts, or even get a phone line.
    A 3-judge bench will examine if Aadhaar is still valid. In most likelyhood, Aadhaar will stay, but there will be clear guidelines for its usage.Thursday’s ruling allows government to collate data without being accused of violating privacy if it is done for national security or for effective distribution of scarce national resources, food and other essential items.
  2. This ruling will make it hard to defend Section 377 of the Indian Penal Code which criminalizes same-sex relationships between consenting adults.
    One’s sexual orientation is undoubtedly an attribute of privacy and dignity and is thus protected by the new ruling. So a repeal of Section 377 is a matter of formality now – a huge win for the country’s “minuscule” LGBT community.
  3. Government is asked to provide a robust data protection regime.
  4. Existing laws of beef ban, prohibition etc. can now be challenged directly in the SC, on the ground that these provisions violate his right to privacy and personal choice.

Thursday’s verdict is huge ! It not only has opened up new challenges for the Government but it has also stirred up the political and social communities. Will this create unexpected ripple effect ? Is it going to do good than worse? Only time will tell…


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