The Supreme Court on Thursday declared right to privacy a fundamental right, a far-reaching verdict that could impact a range of life choices of Indians including food habits and sexual orientation.
In a session that lasted barely five minutes, Chief Justice of India J S Khehar read out the unanimous operative part of the verdict of the nine-judge bench: “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.”
But the huge ramifications of the verdict, which one judge said “governs the lives of 125 crore citizens of this country”, were woven into the 547-page judgment.
The judgment “must be interpreted to respond to the changing needs of society at different points in time,” said Justice Rohinton Nariman.
The top court also ruled that like other fundamental rights, the right to privacy was not absolute and any encroachment will have to withstand the touchstone of permissible restrictions.
The case stemmed from a bunch of petitions challenging the Aadhaar scheme, which contended that the data obtained to issue the identity card was an infringement of privacy.
The court did not directly address the Aadhaar issue, which will continue to be dealt with by a separate bench that has been hearing arguments since 2015.
The bench overruled the contrary apex court verdicts delivered in 1950 and 1962 in the M P Sharma and the Kharak Singh cases holding that right to privacy was not part of the Constitution.
The top court rejected the NDA government’s vehement contention that there was no general or fundamental right to privacy under the Constitution.
The lead judgment, penned by Justice D Y Chandrachud for himself, the CJI, Justice R K Agrawal and Justice S A Nazeer, however, asked the government to examine and put in place a “robust regime” for data protection in the modern era.
The other members of the bench were Justice J Chelameswar, Justice S A Bobde, Justice Abhay Manohar Sapre and Justice Sanjay Kishan Kaul.
The top court gave a ray of hope to the government whose Aadhaar scheme is under intense scrutiny over privacy infringements, said, “We commend to the Union government the need to examine and put into place a robust regime for data protection.
The judgment said that privacy included at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.
“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,” the judgment said.
It said personal choices governing a way of life are intrinsic to privacy.
“Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place,” it said.
The judgment was welcomed by leading legal experts, including Law Minister Ravi Shankar Prasad, who is himself a lawyer. Noted jurist Soli Sorabjee said, “No fundamental right is absolute. It is always subject to reasonable restrictions.”
Senior advocate Indira Jaising said, “Privacy is fundamental. It certainly has an impact on the day-to-day life. This verdict prevents any kind of snooping.”
Kapil Sibal, who had appeared for non-BJP ruled states in this case, observed that like individual freedom, “individual house, marriages, sexual orientation, right to space, right to move freely, right to eat what an individual likes, right to be left alone are protected both within the home and at public places to the extent necessary.”
Both sides of the political divide hailed the verdict and claimed victory.
The government side said it has buttressed what it had said in Parliament while moving the Aadhaar bill, referring to “reasonable restrictions” on fundamental rights.
On the other hand, Congress president Sonia Gandhi said the verdict strikes at “unbridled encroachment and surveillance by the state and its agencies” on individual privacy.
Terming privacy as a “constitutionally protected right”, the bench said it emerged primarily from “the guarantee of life and personal liberty in Article 21 of the Constitution.
Justice Chandrachud dispelled the notion that the judiciary was amending the Constitution, saying it was merely recognising the existence of the constitutional right.
Justice Kaul observed where there are wide, varied, social and cultural norms, “privacy is one of the most important rights to be protected both against state and non-state actors.”