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Right to privacy fundamental, asserts Supreme Court: What the Court really said?

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New Delhi: In a path breaking judgment, the Supreme Court of India has said that right to privacy was a fundamental right enshrined by the Indian Constitution. The Apex court went on to add that the right to privacy was actually protected as inherent part of life and personal liberty. The Nine member bench of the Supreme Court said that it was guaranteed by the Constitution.

With the latest verdict, not just the court rejected the Union government’s contention that privacy was not a fundamental right, it also reversed its own judgment a couple of weeks ago. The 9-member bench, following the verdict also overturned two earlier rulings in the M.P. Sharma and Kharak Singh cases that held that the right to privacy was not protected by the Constitution. The best thing about the latest ruling is the fact that it was unanimous decision.

The Supreme Court bench said, “The right to privacy is protected as an 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. Decisions subsequent to Kharak Singh which enunciated the above (line) lay down the correct position in law”.




While there were as many as six different judgments by the nine judges, all of them were unanimous that the right to privacy was a fundamental right. Besides the Chief Justice Jagdish Singh Khehar, the other judges in the bench included Justices J. Chelameswar, S.A. Bobde, R.K. Agrawal, Rohinton F. Nariman, A.M. Sapre, D.Y. Chandrachud, S.K. Kaul and S. Abdul Nazeer. They were ruling on petitions filed by retired Karnataka High Court judge Justice K.S. Puttaswamy and others against the union government on the issue.

Justice Kaul said: “Let the right of privacy, an inherent right, be unequivocally a fundamental right embedded in part III of the Constitution but subject to the restrictions specified, relatable to that part. This is the call of today. The old order changeth yielding place to new.” Writing for four judges, including the Chief Justice, Justice Chandrachud observed that the contention by the union government and the states supporting it that it was not necessary to read a constitutional right to privacy into the fundamental rights as betraying lack of understanding of the reason why rights were protected in the first place in the Indian Constitution as part of fundamental rights.

The court, while delivering the ruling said, “The Attorney General argued before us that the right to privacy must be forsaken in the interest of welfare entitlements provided by the State. In our view, the submission that the right to privacy is an elitist construct which stands apart from the needs and aspirations of the large majority constituting the rest of society, is unsustainable.

“This submission betrays a misunderstanding of the constitutional position. Our Constitution places the individual at the forefront of its focus, guaranteeing civil and political rights in Part III and embodying an aspiration for achieving socio-economic rights in Part IV. The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised though history to wreak the most egregious violations of human rights.”

The court went on to assert, “Those who are governed are entitled to question those who govern, about the discharge of their constitutional duties including in the provision of socio-economic welfare benefits. The theory that civil and political rights are subservient to socio-economic rights has been urged in the past and has been categorically rejected … by this court.”

It must be kept in mind that the judgment is critical. The entire issue was rooted in a reference by a three-judge Bench that was hearing a challenge to the constitutional validity of the Aadhaar Scheme on the ground of its being violative of the fundamental right to privacy. The petitioners included former Karnataka High Court Judge K S Puttaswamy, the first chairperson of National Commission for Protection of Child Rights and Magsaysay awardee Shanta Sinha, feminist researcher Kalyani Sen Menon, and others. However, the Centre contested their position citing two judgments of 1954 (by eight judges) and 1962 (by six judges), which had held the right to privacy as not a fundamental right.

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