Privacy is a Fundamental Right; Intrinsic Part of Right to Life and Liberty: Supreme Court

The Supreme Court has declared that Indians have a Fundamental Right to Privacy, protected under Article 21 (protection of life and personal liberty) of the Indian Constitution.

The nine-judge Constitution Bench – which had reserved its judgement after the right to privacy hearings ended on August 2 – was unanimous in its historic decision pronounced on Thursday, August 24.

The bench overruled two earlier decisions of the apex court that had not recognised privacy as a fundamental right – in the cases of MP Sharma vs Satish Chandra in 1954 and Kharak Singh vs State of Uttar Pradesh in 1962.

The matter of privacy arose in the context of a batch of petitions filed in the Supreme Court challenging the Aadhaar or the Unique Identification (UID) number project being pushed by the central government. Among other objections, the petitioners have argued that the Aadhaar project entails a massive violation of the right to privacy for the Indian population. Even first-world countries that took up similar biometrics-linked, centralised identification projects had abandoned them.

A nine-judge bench was set up to deliberate the question whether privacy in India was a fundamental right at all.

The bench comprised Chief Justice of India JS Khehar and Justices J Chelameswar, SA Bobde, RK Agrawal, Rohinton Nariman, AM Sapre, DY Chandrachud, Sanjay Kishan Kaul and S Abdul Nazeer.

Now, a five-judge bench headed by Chief Justice Khehar will decide whether Aadhaar violates the fundamental right to privacy.

Noting that right to privacy is an “intrinsic part of right to life and liberty”, Chief Justice of India JS Khehar clarified that all decisions after the Kharak Singh case had made the legal position on privacy clear and would hold.

Speaking to Newsclick, advocate Prasanna S, who represented some of the petioners in the privacy case, said, “The highest court of the country has spoken in one voice and cleared the doubts raised by the government on whether Indians have an inalienable, fundamental right to privacy, even though Indian jurisprudence has recognised the right to privacy since 1975 (Gobind vs State of Madhya Pradesh). This is a great relief for all Indians, as we can continue to cherish these rights.”

The Centre had taken the stance against recognising privacy as a fundamental right, while backing the Aadhaar scheme.

Attorney General K K Venugopal, arguing for the government, had even contended that privacy was an “elite” issue in a developing country like India, while claiming that the mandatory linking of Aadhaar to the Public Distribution System was ensuring the Right to Food to many millions of Indians. This was despite overwhelming evidence of how the Aadhaar-based biometric authentication has been excluding significant numbers of beneficiaries of welfare schemes in the country.