Inalienable right

In what could be described as a crucial milestone in the annals of Indian judicature and broadly hailed by one and all, the Constitution Bench of the Supreme Court comprising nine judges has unanimously upheld the Right to Privacy of citizens, a protection the Bench read into Article 21 of the Constitution, that guarantees a right to life and personal liberty. The Constitution Bench unanimously in its 54-page judgement that will affect the lives of all Indians in a multitude of domains, in unequivocal terms overruling earlier judgements, stated that the right to privacy is inalienable.

However, the judgement opens a bundle of possibilities and many freedoms could find new life under it. In spite of the lengthy judgement it could be noted that it did not embark upon an exhaustive enumeration or a catalogue of entitlements or interests comprised in the right of privacy.

The judgement does come as something of a blow to the Centre, which has over the past few months questioned whether privacy is a fundamental right obviously in an effort to just protect Aadhaar. The application of this judgement to the ongoing Aadhaar challenge is what is at stake to the government.

The question on Right to Privacy arose following several petitions challenging the validity of Aadhaar, which are being heard in another five-judge bench. The Constitution Bench was not considering the merits and legality of Aadhaar. However, now that the right to privacy is considered a fundamental right, Aadhaar will have to be tested against that recognised right through hearings by the five-judge bench.

Noticeably, the Constitution Bench did not accept the argument of the attorney general K K Venugopal that privacy as a right has greater credibility in jurisdictions that are socially, politically and economically developed societies, which may not be necessarily applicable to India. The bench rightly pointed out that free consent is the cornerstone of any progressive society. The Bench also recognised the informational privacy as a facet of right to privacy that would have broader ramifications in the coming days. The judgement gives a boost to the arguments being made for greater individual freedoms in issues like marital rape, euthanasia, abortion and others.

The Bench rightly opined that privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. It aptly propounded that personal choices governing a way of life are intrinsic to privacy which protects heterogeneity and recognises the plurality and diversity of our culture.

As the Bench pointed out, privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. By citing sexual orientation, the Bench appears to have opened another debate over the applications of Section 377 of IPC.

It could be summed up that the bench has created a precedent that shall guide the rights of individuals vis-à-vis the State for as long as it is not overturned by a larger bench or made defunct through a legislative act of Parliament.