Right to privacy

• The Supreme Court has ruled that right to privacy is intrinsic to the entire fundamental rights chapter of the Constitution.
• The court has held that “the right to privacy is protected as intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution”.

What is Privacy?

• A definite legal definition of ‘privacy’ is not available. Some legal experts tend to define privacy as a human right enjoyed by every human being by virtue of his or her existence. It depends on no instrument or charter. Privacy can also extend to other aspects, including bodily integrity, personal autonomy, informational self-determination, protection from state surveillance, dignity, confidentiality, compelled speech and freedom to dissent or move or think. In short, the right to privacy has to be determined on a case-by-case basis.
• Privacy enjoys a robust legal framework internationally.
• Article 12 of the Universal Declaration of Human Rights, 1948 and Article 17 of the International Covenant on Civil and Political Rights (ICCPR), 1966, legally protect persons against “arbitrary interference” with one’s privacy, family, home, correspondence, honour and reputation. India signed and ratified the ICCPR on April 10, 1979, without reservation.
• Article 7 and 8 of the Charter of Fundamental Rights of the European Union, 2012, recognises the respect for private and family life, home and communications.
• Article 8 mandates protection of personal data and its collection for a specified legitimate purpose.

Analysis:

• By linking privacy with human dignity and preservation of personal intimacies, the apex court has laid the legal ground for a fresh interpretation of controversial issues such as decriminalization of homosexuality.
• This judgement has included a woman’s freedom of choice to bear a child or abort the pregnancy, freedom to choose to work or not and the right to travel freely as falling within the right to privacy.
• The laws interfering with privacy will have to not only be just, fair and reasonable but also have to be based on the grounds enunciated in Part III. This expands the scope of judicial review of such laws and raises the burden on governments to ensure the constitutionality of laws.
• The implications of this judgment go far above and beyond just the question of whether the Aadhaar scheme and law are valid.
• Though after the mid-seventies, several judgments by the benches of strength of two or three judges had held that right to privacy was fundamental but it was the judgment of 1954 and 1962 by the larger benches that holds the ground. The judgments of 1954 and 1962 had held that the right to privacy was not a fundamental right.
• The Centre had also termed privacy as a “vague and amorphous” right which cannot be granted primacy to deprive poor people of their rights to life, food and shelter.
• The Unique Identification Authority of India, too, said privacy was not a fundamental right and there were sufficient safeguards to protect data collected from the people — their iris scan and finger prints.
• The attorney general had contended that right to privacy cannot fall in the bracket of fundamental rights as there were binding decisions of larger benches that it was only a common law right evolved through judicial decisions.

By: Vishal