Supreme Court Rules Privacy a Fundamental Right

On August 24, 2017, the Supreme Court ruled that the right to privacy is a fundamental right and is ‘protected as an intrinsic part of the right to life and personal liberty under Article 21 and as part of the freedoms guaranteed by Part III of the Constitution.’ The Constitutional Bench issuing this historical judgment consisted of 9 members including the Chief Justice J.S Khehar. The Congress Party celebrated the judgment including Congress MP P. Chidambaram who, noting its significance, wrote, ‘Privacy is the core of personal liberty. Article 21 has acquired a new magnificence. The freedom that was won in 1947 has been enriched and enlarged’

The Bench summarily refuted the Modi Sarkar’s claim that the right to privacy is a common law right and not a fundamental right. In doing so the apex court expressly ensured that the right to privacy enjoys constitutional protection, which ‘liberates it from the uncertainties of statutory law which is subject to the range of legislative annulments open to a majoritarian government.’ In other words, the Supreme Court ruled that privacy is a fundamental right to put it beyond the legislative encroachments of the Modi Sarkar, despite their current chokehold on Parliament.

This verdict is perhaps the greatest protection of our freedom as citizens as it enables anyone whose privacy is compromised to approach the Supreme Court directly by filing a writ petition.

The Supreme Court sees the fundamental right to privacy as producing both negative and positive freedom, that is, freedom from intrusion by the government and other entities and also a freedom to absolute autonomy in their private life that the government must ‘adopt suitable measures to protect.’ Significantly the Bench highlights that it applies especially to ‘features that define [individuals’] personal identities such as sexuality, religion and political affiliation.’ This comes as a deathblow to BJP/RSS’ straitjacketed cultural nationalism.

The BJP has taken a sudden U-Turn.

Attorney General K.K. Venugopal submitted on behalf of the Modi Sarkar that privacy was at best a “sub-species of liberty and every aspect could not qualify as being fundamental in nature” and that it was an “elite right” which should come second to the right of the masses. However, in the aftermath of the judgment, Minister for Law and Justice Ravishankar Prasad was quick to change the government’s position, even lying to the people, saying, ‘On behalf of the Government of India, the Attorney General also argued that the Right To Privacy is a part of Fundamental Rights, with reasonable restrictions’.

The judgment will force a much-needed rethink on Section 377 which criminalises homosexuality, the beef ban, and the mission creep of Aadhar as implemented by the Modi Sarkar, which threatens to turn India into a surveillance state.

Former United Nations Director of Peacekeeping Kishore Mandhyan put it best, commenting that ‘Without privacy, there is no human personality or agency. Privacy a basic human right embedded in the International Bill of Rights. Now that privacy has been endorsed as a core right by the SC, executive and legislature need to reinforce spirit and letter of decision.’