01 September 2017

Right to Privacy – Supreme Court’s landmark judgement

The Basics

How the reference came about?

- It was a reference from the Aadhar case.
- There was an apparent conflict between the judgments of the Supreme Court in MP Sharma case (8-judge bench) & Kharak Singh case (6 judge bench) on the one hand, versus more than 6-7 different 3-judge and 2-judge decisions 1973 and onwards, on the other hand.
- All the judgments from 1973, failed to identify this conflict and hence, the nine-judge bench was asked to clarify position of law.


What did the nine-judge decide?

- Unanimous view was that that Right to Privacy is a fundamental right under Articles 19, 21, 20(3), 25.
- Main opinions were by Justice Chandrachud and Justice Nariman.
- This judgment does not decide Aadhar case, WhatsApp®-Facebook® case, beef ban case, Naz foundation case, but it will have significant implications on these cases.


What was the position of the Government(s)?

- Union of India (UOI), supported by State of Haryana and State of Chhattisgarh), State of Maharashtra, MP, UIDAI, argued that the right to privacy is not a fundamental right.
- State of Karnataka, WB, Punjab, Puducherry and Kerala supported the Petitioners and agreed that right to privacy was a fundamental right.
- State of Gujarat took a middle position.


Enforceability of the Right to Privacy

- Right to Privacy is a fundamental right under Part-III of the Constitution of India.
- Thus, it is enforceable against ‘State’ and its instrumentalities as per Article 12 or against public authority / body under Article 226. Neither of these provisions apply to private individuals.
- However, there appears to be a recognition that it is also a common law right (even the UOI agreed it is a common law right) (para 158 of Justice Chandrachud’s jugdment; para 17 of Justice Bobde’s judgment). This would imply that it is enforceable against private parties also.
- In addition, para 158 of Justice Chandrachud’s judgment, read with paras 184-185, T(5), recognizes Right to Privacy as a positive right. Hence, a direction has been issued to UOI to create a new law to prevent privacy violations by private parties in accordance with the principles laid down herein.
- Even Justice Sanjay Kishan Kaul identifies that the right relates to both state actors and non-state actors [PARAS 77, 79]. Whereas for State actors, enforcement is possible under the Constitution, enforcement against qua non-State actors requires legislative intervention [PARA 12].


Why did they overrule MP Sharma case (8-judge bench) & Kharak Singh case (6 judge bench)?

 This is clarified in paras 24, 26, 89-90 of Justice Chandrachud’s judgment; para 36, 42 of Justice Nariman’s judgment; and paras 7, 9 of Justice Chelameswar’s judgment.
- Both MP Sharma case (8-judge bench) & Kharak Singh case (6 judge bench) were based on an earlier 1950 decision in AK Gopalan case. However, AK Gopalan case had already been overruled in RC Copper case (11-judge bench)
- The doctrine of expansive / liberal construction of fundamental rights arose after MP Sharma case (8-judge bench) & Kharak Singh case (6 judge bench)
- Both the MP Sharma case (8-judge bench) & Kharak Singh case (6 judge bench) did not have the benefit of the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), which recognise the right to privacy
- MP Sharma case was only on Article 20(3) and did not deal with Articles 21 or 19
- Kharak Singh case (6 judge bench) is not goof law because it is inherently contradictory


Scope of the Right to Privacy

Justice Chandrachud

According to Justice Chandrachud, the right to privacy has many facets, which needs to be developed on a case-to-case basis. However, in the course of his judgment, he enlisted various facets of this right:
- [PARA 74] – right not to speak or incriminate oneself
- [PARA 91] – surveillance, telephone tapping, biographies, banking information, disclosure of HIV status, food preferences and animal slaughter, abortion, testing for criminal investigation, gender orientation
Justice Chandrachud re-affirms the earlier 2-judge bench in Canara Bank (2005), which, among others, held as follows: [PARA 66]
- Privacy attaches to a person – so voluntarily giving it to one person does not denude the right
- Need for procedural safeguards
- State actor cannot delegate power to private individual
- Parting of information carries with it a reasonable expectation that it will used only for the limited purpose for which it was shared. Thus, the Government cannot take data from an individual and share it with other private individual [this view as repeated in Ram Jethmalani (2011)]


Justice Nariman

Justice Nariman has also provided some clarity on what the Right to Privacy. He specifically rejected an argument that the following are excluded from right to privacy – [PARA 53]
- Furnishing of information under taxation laws
- Furnishing of information for census
- Furnishing of information for passport
- Viewing pornography in the privacy of one’s home
He further broadly ensiled the scope of the right to cover the following: [PARA 54, 81, 85]
- Physical body – Article 19(1)(d), (e) and Article 21
- Informational privacy (dissemination of personal information) – Article 21
- Privacy of Choice (personal choices) – Article 19(1)(a)-(c), 20(3), 21 and 25.


Justice Bobde

Justice Bobde also had the occasion to clarify a more general test on what is covered by the Right to Privacy. According to Justice Bobde, the Right to Privacy is the right to choose and specify: [PARA 44
- Choose to perform any activity
- Specify whom to include in one’s circle in performing that activity
This means that: [PARAS 45]
- Privacy is not dependant on place or location [PARA 22]
- Privacy is not limited to solitude [PARA 22]
- Privacy is not limited to only information that is inaccessible to others
Some examples culled out by Justice Bobde include –
- [PARA 21] Right to be left alone
- [PARA 22] Right of a group to seclude itself
- [PARA 31] Pervades all rights in Article 19
- [PARA 32] Inherent part of Article 25, 26 and 28(3)
- [PARA 32] Inherent part of cultural and educational rights


Justice Sanjay Kishan Kaul

Justice Sanjay Kishan Kaul’s concurring opinion is further illuminating in this respect, since since suggests a rather expansive list of facets of the Right to Privacy: [PARAS 11, 12]
- right to control dissemination of personal information – limiting access and ability to shield from unwanted access
- one’s personality, individuality and dignity
- freedom of thought [PARA 52]
- [PARAS 54, 58] - right of individuals to exclusively commercially exploit their identity and personal information, to control the information that is available about them on the ‘world wide web’ and to disseminate certain personal information for limited purposes alone.
- [PARA 56] – right to protect his reputation from harm
- [PARA 57] Merely because information disseminated in the truth does not mean that it can be disseminated to the public in violation of the right to privacy. Real question is whether dissemination is in public interest
- [PARA 62, 68] – right to control existence in the internet. But a criminal cannot claim complete exemption from being known publicly – depends on the extent of the crime
- [PARA 66, 68] – privacy of children in virtual world
- [PARAS 78, 80] – privacy of the home includes family, marriage, procreation, sexual orientation


Justice Chelameswar

Justice Chelameswar re-iterates many of these facets in this concurring opinion and further includes within its scope: [PARAS 37-38]
- The freedom of belief or faith in any religion, politic belief etc.
- Forced feeding, euthanasia, abortion, work or not work, type of work, travel, where to reside, appearance and apparel, personal data, telephone tapping, internet hacking, what to eat, decision-making process of freedoms of association / travel / residence
- Appearance and apparel related to religion is part of religious freedom; not privacy


Exceptions and limitations to the Right to Privacy

Justice Chandrachud

Like all fundamental rights, the Right to Privacy is also not absolute. According to Justice Chandrachud, limitations on the right to privacy can be imposed for: [PARAS 181-182]
- m to medical records, while preserving anonymity
However, Justice Chandrachud further states that any restriction for the above inclusive reasons must fulfil this tri-partite test to be a valid restriction: [PARA 180]
- It must be pursuant to a valid ‘law’, meaning that it has to be within the legislative competence and must be just, fair and reasonable
- Existence of legitimate state aim, such that the action of the Government is not arbitrary within the meaning of Article 14;
- There must be proportionality between the amount of restriction and the state aim in question.


Justice Nariman

Justice Nariman held in more general terms that Right to privacy must yield to legitimate state interests in combating crime, or other public interest considerations. In his words, one must apply a balancing test depending on which provision of the Constitution is involved [PARA 54, 86]


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