Indira Jaising


Supreme Court has ruled that the right to privacy is a fundamental right of every citizen of the country. The landmark verdict was in response to many petitions filed in courts questioning the validity of a government scheme to assign a unique biometric identity card to every individual.


I do not normally make comments about judges when writing about their judgments, but this is an exception to the rule. I was present in court when the late Justice Y.V. Chandrachud delivered the ADM Jabalpur judgment which upheld the suspension of the right to life by a presidential order, legitimising the Emergency with a vengeance. I felt crushed. On Thursday, I was present in court when his son, D.Y. Chandrachud, in a learned judgment, overruled his father’s judgement.


“The judgments rendered by all the four judges constituting the majority in ADM Jabalpur are seriously flawed. Life and personal liberty are inalienable to human existence. These rights are, as recognised in Kesavananda Bharati, primordial rights. They constitute rights under natural law. The human element in the life of the individual is integrally founded on the sanctity of life. Dignity is associated with liberty and freedom. No civilised state can contemplate an encroachment upon life and personal liberty without the authority of law. Neither life nor liberty are bounties conferred by the state nor does the Constitution create these rights. The right to life has existed even before the advent of the Constitution. In recognising the right, the Constitution does not become the sole repository of the right. It would be preposterous to suggest that a democratic Constitution without a Bill of Rights would leave individuals governed by the state without either the existence of the right to live…”


Right To Fundamental Right, Says SC


With these words he “consigned to the archives”, the dreaded Emergency. “ADM Jabalpur must be and is accordingly overruled.” The judgment gives us more than we bargained for. It puts the brakes on any majoritarian government from throwing at us numbers in support of an argument. This judgement throws back at governments the Constitution. It says the Constitution was made for conscientious dissenters as much as for ruling parties, for the able and the disabled, for the LGBT community and others, for political minorities even more than for majorities. It gives us the rule of law as the birthright of every citizen in a democracy. Privacy, now entrenched as a fundamental right, is an inalienable right.


Since the right to privacy is not located in Article 21 alone but in all freedoms, it will be subject to the limitations to which those rights are subject. Here too the judges wisely avoid spelling out limitations making them dependent on the right sought to be protected and the proportionality of the limitations imposed by law. Most importantly, the right to privacy can be curtailed in public interest only by a law which can be once again tested for its constitutional validity.


The judgment has some very important unintended benefits, it clearly holds that sexual orientation is part of the right to privacy and hence section 377 can no longer be a valid law. The Naz Foundation judgment of the Delhi High Court has been reinstated, the LGBT community will no longer be criminalised.


This judgment avoided one of the biggest dangers that existed in not defining the limits of the right leaving it to case by case determination. It also recognises that every judgment is a work in progress and the rights it protects will continue to be interpreted by future generations, after their own aspirations.


Privacy, the court holds, is about the reservation of a “private space to be left alone”. Recognising the full amplitude of the need for privacy, the court holds that “the ability of an individual to make choices lies at the core human personality”.


This liberty can be compromised by data mining and hence the need for “informational privacy”, calling for a data protection law which balances the state interests with a fundamental right to privacy. It is here that the judgment directly impacts the mandatory nature of the requirement for an Aadhaar number to access a variety of services. If India has no data protection law in place, can the mandatory nature of Aadhaar be then constitutional? These are the issues that the court will decide in the days to come but the foundation has been laid.


Data mining by both public and private entities for unauthorised purposes, and without consent, can pose a threat not only to individuals but to the outcome of free and fair elections and to the very functioning of a democracy. As we head to a general election in 2019, or earlier maybe, it is imperative that the meta data collected by Aadhaar is not misused to subvert the people’s mandate. This judgment may provide the basis for resisting any such efforts.


The writer is former additional solicitor general and senior advocate, Supreme Court


(Indian Express Aug 25)

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