New DelhiSupreme Court of India unanimously ruled on Thursday that individual privacy is a fundamental right, a verdict that will impact everything from the way companies handle personal data to the roll-out of the world’s largest biometric ID card programme.
A nine-member bench of India’s Supreme Court announced the ruling in a major setback for the Narendra Modi-led government, which argued that privacy was not a fundamental right protected by the constitution.
The court ordered that two earlier rulings by large benches that said privacy was not fundamental in 1954 and 1962 now stood overruled, and it declared privacy was “an intrinsic part of the right to life and liberty” and “part of the freedoms guaranteed” by the constitution.
“This is a blow to the government because the government had argued that people don’t have a right to privacy,” said Prashant Bhushan, a senior lawyer involved in the case.
Constitutional experts believe the judgment has a bearing on broader civil rights, and a law that criminalizes homosexuality.
Lawyers say the judgment will also have an impact on a ban on the consumption of beef in many states and alcohol in some states.
In his personal conclusion, Justice Sanjay Kishan Kaul wrote privacy is a fundamental right and it protects the inner sphere of an individual from interference from both state and non-state actors and lets individuals make autonomous life choices.
“The privacy of the home must protect the family, marriage, procreation and sexual orientation,” Kaul wrote.
The ruling is the second landmark decision to come from the Supreme Court this week.
On Tuesday it ruled that a law allowing Muslim men to divorce their wives instantly by uttering the word “talaq” three times was unconstitutional, in a major victory for Muslim women who have spent decades arguing it violated their right to equality.
The privacy judgment was delivered at the end of the tenure of the chief justice of India, Jagdeep Singh Khehar, who retires in a few days.
It comes against the backdrop of a large multi-party case against the mandatory use of national identity cards, known as Aadhaar, as an infringement of privacy. There have also been concerns over data breaches.
Law Minister, Ravi Shankar Prasad, said the ruling was an affirmation of the government’s stand that privacy was a fundamental right, but subject to reasonable restrictions. He said it was not a setback to the government’s plans for Aadhaar, and noted that the court is separately looking into the legality of the Aadhaar Act.
Critics say the ID card links enough data to create a full profile of a person’s spending habits, their friends, property they own and a trove of other information.
Aadhaar, which over one billion Indians have already signed up for, was set up to be a secure form of digital identification for citizens, one that they could use for government services.
But as it was rolled out, concerns arose about privacy, data security and recourse for citizens in the face of data leaks and other issues.
Over time, Aadhaar has been made mandatory for the filing of tax returns and operating bank accounts. Companies have also pushed to gain access to Aadhaar details of customers.
Those opposed to the growing demand for Aadhaar data cheered the ruling.
“Truly a victorious week for India – upholding liberty, dignity and freedom for all,” Jyotiraditya Scindia, a member of parliament from the opposition Congress party, said in a tweet.
Bhushan, the senior lawyer involved in the case, said while government demands for the use of Aadhaar for tax purposes could be considered reasonable, any demands for the use of Aadhaar for travel bookings and other purchases could now be questioned in the face of the ruling.
“The fact that there was no dissent is an important thing,” said Raman Chima, policy director at Access Now, which defends digital rights. “They made it clear that the government has to protect privacy.”
No direct impact on WhatsApp, Facebook: Expert
New Delhi: The Supreme Court`s judgment declaring the Right to Privacy a fundamental right will have no direct impact on WhatsApp and Facebook, a cyber security expert said on Thursday.
“The reason for this is Facebook and WhatsApp are private entities. These private entities don`t get covered under the ambit of fundamental rights as they are enforced under Part 3 of the Indian constitution and they are only enforceable to state action,” Pavan Duggal, a Supreme Court advocate and cyber law expert, told IANS.
Earlier, the Delhi High Court had restrained WhatsApp from sharing with Facebook the user information existing upto September 25, 2016 when its new privacy policy came into effect.
Here’s the chronology of the case
The Supreme Court on Thursday declared right to privacy as a Fundamental right under the Constitution.
Following is the chronology of Supreme Court hearings in the right to privacy case:
? July 7: Three-judge bench says issues arising out of Aadhaar should finally be decided by larger bench and CJI would take a call on need for setting up a constitution bench.
Matter mentioned before CJI who sets up a five- judge constitution bench to hear the matter.
?July 18: Five-judge constitution bench decides to set up a nine-judge bench to decide whether the right to privacy can be declared a fundamental right under the Constitution. Nine-judge bench (Chief Justice J S Khehar, Justices J Chelameswar, S A Bobde, R K Agrawal, Rohinton Fali Nariman, Abhay Manohar Sapre, D Y Chandrachud, Sanjay Kishan Kaul and S Abdul Nazeer) constituted to hear the privacy matter.
? July 19: SC says the right to privacy can’t be absolute, may be regulated.
? July 19: Centre tells SC that right to privacy is not a fundamental right.
? Jul 26: Karnataka, West Bengal, Punjab and Puducherry, the four non-BJP ruled states move SC in favour of the right to privacy.
? July 26: Centre tells SC that privacy can be fundamental right with some riders.
? July 27: Maharashtra government tells SC that privacy is not a “standalone” right, but it is rather a concept.
? August 1: SC says there has to be “overarching” guidelines to protect an individual’s private information in public domain.
? August 2: SC says protection of the concept of privacy in the technological era was a “losing battle”, reserves verdict.
August 24: SC declares right to privacy as a fundamental right under the Constitution.
Right to privacy comes with birth, goes with death
The right to privacy of an individual is a natural, cherished, inseparable and inalienable right which is born with a human being and extinguishes with it, the Supreme Court said today.
Justice Abhay Manohar Sapre, who wrote a separate but concurring judgement declaring the right to privacy as a fundamental right under the Constitution, said it cannot be conceived that an individual enjoys a meaningful life with dignity, without such a right.
However, he also said that this right was not absolute and was “subject to certain reasonable restrictions” which the State was entitled to impose.
The judge, who was a part of the nine-judge constitution bench, said the right to privacy was one of those cherished rights which every civilised society recognises in every human being.
Justice Sapre held that “right to privacy is part of the fundamental right of a citizen guaranteed under Part III of the Constitution, but “it is not an absolute right and is subject to certain reasonable restrictions which the State is entitled to impose on the basis of social, moral and compelling public interest in accordance with law”.
“In my considered opinion, right to privacy of any individual is essentially a natural right, which inheres in every human being by birth. Such right remains with the human being till he/she breathes last. It is indeed inseparable and inalienable from human being. In other words, it is born with the human being and extinguish with human being,” Justice Sapre said in his 24-page separate judgement, which formed part of the 547-page verdict.
He said ‘right to privacy’ is not defined in law except in the dictionaries and the courts, by process of judicial interpretation, have assigned meaning to this right in the context of specific issues involved on a case-to-case basis.
Justice Sapre added that the most popular meaning of right to privacy is “the right to be let alone.
“Indeed, it is one of those cherished rights, which every civilised society governed by rule of law always recognises in every human being and is under obligation to recognise such rights in order to maintain and preserve the dignity of an individual regardless of gender, race, religion, caste and creed.
“It is, of course, subject to imposing certain reasonable restrictions keeping in view the social, moral and compelling public interest, which the State is entitled to impose by law,” he said.
Quoting the Preamble of the Constitution, Justice Sapre said he does not find any difficulty in tracing the right to privacy emanating from the two expressions — “liberty of thought, expression, belief, faith and worship” and “Fraternity assuring the dignity of the individual”.
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