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Right to Privacy is a fundamental right unanimously held by Supreme Court

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By a judgment dated 24 August 2017, a nine-judge constitutional bench of Supreme Court unanimously held that the Right to Privacy is a fundamental right under Article 21 of the Constitution. The Supreme court affirmed its decision in the matter of Justice K.S. Puttaswamy (Retd.) v. Union of India, Justice Chandrachud wrote the majority judgment for himself and on behalf of the then Chief justice Kehar, Justice Agrawal, and Justice Nazeer. Justice Chelameshwar (Retd.), Justice Bode, Justice Nariman, Justice Kaul, and Justice Sapre wrote individual concurring opinions.

The rationale behind the decision by a nine-judge constitutional bench

The matter came up first for hearing before a three judge bench of the Supreme Court challenging the Aadhaar framework, in the year 2015.  As in the matter of both MP Sharma v. Satish Chandra, District Magistrate, Delhi (1954) and Kharak Singh v. State of Uttar Pradesh(1962) supreme court by eight and six judge bench majority refused to consider the right to privacy a fundamental right, the matter of consideration was referred to a nine-judge bench for deciding on the issue.

How the judgment shall be read and understood?

The judgment was delivered in both the majority and concurring decisions. However, the concurring opinion does not act as a precedent. Only the decision which is rendered in the majority of the judges signing it has the value of an operative judgment and therefore is binding.

What does the majority hold?

The bench unanimously held that:

1. The judgments rendered in both MP Sharma and Kharak Singh that right to privacy is not a fundamental right was overruled by the Supreme Court.

2. 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

The Proportionality test for infringement of fundamental rights

Holding that right to privacy is not an “absolute right”, the proportionality test has been proposed by Justice Chandrachud. In his words, “In the context of Article 21 an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. The law must also be valid with reference to the encroachment on life and personal liberty under Article 21. An invasion of life or personal liberty must meet the three-fold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate state aim; and (iii) proportionality, which ensures a rational nexus between the objects and the means adopted to achieve them.

What does proportionality means?

 It traces its origin from the concept of doctrine of proportionality which finds its place in administrative law and is subject to judicial review. The doctrine says in cases of public policy by state there must be reasonable nexus between the desired result and measures taken to reach that goal.  If the action taken by state is shockingly disproportionate to the conscience of the court the said action can be challenged by way of judicial review.  In such circumstances the court would not take into consider the correctness of decision taken by the state but rather would consider the method applied to reach to the decision. In the present case the Supreme Court said the proportionality of a measure must be determined while looking at the restrictions imposed by the state on fundamental rights of a citizen.   

What does the right to privacy include?

According to the majority judgment authored by Justice Chandrachud, “Privacy includes 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. 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. Privacy attaches to the person since it is an essential facet of the dignity of the human being.”

Upheld the rights of the LGBT Community

The judgment of justice Chandrchud came down heavily on Justice Singhvi’s judgment on Suresh Kumar Koushal v. Naz Foundation (2014). Recognizing the rights of LGBT community, he said, Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.  Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the constitution… [LGBT] rights are not so-called but are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination.”

This is a landmark judgment in the present era as many stereotypes existing in society has been done away by the decision. Right to Privacy though an essential right was never recognized before the judgment. This judgment shall definitely play an important role in future issues relating to matrimonial and other private rights.

Read the judgment here  Right_to_Privacy__Puttaswamy_Judgment-Chandrachud – Copy


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