SC 'overrules' two previous judgements: Here's what the judges said on privacy

Having over-ruled the judgments pronounced 63 years and 55 years ago in 1954 and 1962 respectively, Justice Chandrachud said that privacy is the constitutional core of human dignity which has both a normative and descriptive function
SC 'over rules' two previous judgements: Here's... Source: PTI
Reported by: IANS New Delhi August 24, 2017 20:36 IST

While elevating the right to privacy as a fundamental right, the Supreme Court "over ruled" judgments the top court had rendered in 1954 by an eight-judge bench and in 1962 by a six-judge bench that had held that the right to privacy is not protected by the Constitution.

While Justice D.Y. Chandrachud pronounced the main judgment - also speaking for Chief Justice J.S. Khehar, Justice R.K. Agrawal and Justice S. Abdul Nazeer, Justice J. Chelameswar, Justice S.A. Bobde, Justice Rohinton Fali Nariman, Justice Abhay Manohar Sapre, Justice Sanjay Kishan Kaul rendered separate judgments. 

Having over-ruled the judgments pronounced 63 years and 55 years ago in 1954 and 1962 respectively, Justice Chandrachud said that privacy is the constitutional core of human dignity which has both a normative and descriptive function. 

"Privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution," he said.

Taking it further, the main judgment says, "Elements of privacy also arise in varying contexts from the other facets of freedom and dignity recognised and guaranteed by the fundamental rights contained in Part III."

Holding that "right to privacy consists of three facets i.e. repose, sanctuary and intimate decision", Justice Chelameswar said that "Each of these facets is so essential for the liberty of human beings that I see no reason to doubt that the right to privacy is part of the liberty guaranteed by our Constitution."

Referring to 1954 judgment which had said privacy could not be read into fundamental rights as it was not specifically mentioned as a right, Justice Chelameswar said: "To sanctify an argument that whatever is not found in the text of the Constitution cannot become a part of the Constitution would be too primitive an understanding of the Constitution and contrary to settled cannons of constitutional interpretation."

Holding that privacy was at "the very heart of 'personal liberty' and life itself", Justice Bobde said: "The first and natural home for a right of privacy is in Article 21 ..." 

"It is not possible to truncate or isolate the basic freedom to do an activity in seclusion from the freedom to do the activity itself," Justice Bobde said, "Privacy, thus, constitutes the basic, irreducible condition necessary for the exercise of 'personal liberty' and freedoms guaranteed by the Constitution. It is the inarticulate major premise in Part III of the Constitution."

Justice Nariman said that the fundamental right to privacy included the right to move freely which relates to physical body, informational privacy that deals with the person's mind, and that of choice - which protects an individual's autonomy over fundamental personal choices.

Saying that they (bench) should not get "detained" by the argument that privacy was a "vague and nebulous concept", Justice Nariman said: "We can ground physical privacy or privacy relating to the body in Articles 19(1)(d) and (e) read with Article 21; 100 ground personal information privacy under Article 21; and the privacy of choice in Articles 19(1)(a) to (c), 20(3), 21 and 25."

Noting the right to privacy was not an absolute right and was subject to reasonable restrictions to protect legitimate State interests or public interest, he however said: "When it comes to restrictions on this right, the drill of various Articles to which the right relates must be scrupulously followed." 

Holding that the right to privacy was a multifaceted right, Justice Sapre said that therefore it has to "go through a process of case-to-case development as and when any citizen raises his grievance complaining of infringement of his alleged right in accordance with law".

The right to privacy "protects the inner sphere of the individual from interference from both State, and non-State actors and allows the individuals to make autonomous life choices", Justice Kaul said.

"In an era where there are wide, varied, social and cultural norms and more so in a country like ours which prides itself on its diversity, privacy is one of the most important rights to be protected both against State and non-State actors and be recognized as a fundamental right," he added.

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