All you want to know about privacy as a fundamental right

The Supreme Court has delivered a landmark judgment today, by holding that privacy is a fundamental right under the Indian Constitution.

Here’s how this ruling can impact you.

Aadhaar and telemarketing
Possible impact: Sharing of biometric data, iris data and mobile numbers may no longer be mandatory
Judge’s view: “As case law, both in the US and India show, this concept (of privacy) has travelled far from the mere right to be let alone to recognition of a large number of privacy interests…(including) rights as to… data protection,” wrote Justice Nariman.

Medical Termination of Pregnancy Act
Possible impact: Pregnant women may have another avenue to seek permission for abortion
Judge’s view: “A woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy,” said Justice J Chelameswar.

Beef ban 
Possible impact: Could impact centre’s decision to ban cow meat
Judge’s view: “I do not think that anybody would like to be told by the State as to what they should eat,” said Justice Chelameswar.

LGBTQ rights
Possible impact: Homosexual acts may no longer be criminalised
Judge’s view: “The privacy of the home must protect the family, marriage, procreation and sexual orientation which are all important aspects of dignity… Ones sexual orientation is undoubtedly an attribute of privacy,” said Justice Sanjay Kishan Kaul.

Possible impact: The fight for legalising assisted suicide could get a boost
Judge’s view: “An individual’s rights to refuse life prolonging medical treatment or terminate his life is another freedom which falls within the zone of the right of privacy,” said Justice Chelameswar.

right to privacy, right to privacy impact on individual, right to privacy impact on any person, what is right to privacy act, supreme court on right to privacyWhat is privacy and how does it impact ordinary citizens in their engagement with the government at one level and with other individuals at another level?

The Supreme Court has delivered a landmark judgment today, by holding that privacy is a fundamental right under the Indian Constitution. While this verdict has thrown open the gates of scholarly and intellectual debates across the country regarding Aadhaar and the legal validity of biometric profiling, it also calls for a closer examination of what this really means for the common man. Time to ask ourselves: ‘What does this verdict mean for ordinary Indians like you and me?’

For instance, what does it mean for sharing of images on social media & for surveillance cameras installed by city municipalities or even media reporting on the private life of celebrities?

What is privacy and how does it impact ordinary citizens in their engagement with the government at one level and with other individuals at another level? Several landmark verdicts have already delved into issues related to privacy of an individual – for instance, can some one who is accused of a crime be raided at his residence late night when he is sleeping? What about the famous case where an HIV patient whose medical records were disclosed into public domain without his knowledge? Then, there is the case of a single mother who wanted to register her child’s birth certificate without mentioning the father’s name but she was asked to do so. In all these cases, the right to privacy had been given utmost importance by the apex court.

We spoke to eminent Supreme advocates to help us understand the significance of this judgment and to clarify how this verdict impacts the common man.

Mr. Shyam Divan, Senior Advocate, who had appeared for one of the petitioners in the Right to Privacy case told FE Online, ”This is a strong endorsement of civil liberty and that it is unanimous is significant.”

Mr. Gopal Shankaranarayan, Advocate at Supreme Court who had also appeared for one of the petitioners in the Right to Privacy case told FE Online,”This is one of the greatest judgments in India’s history on civil liberty, along with the Keshavananda Bharti case – these two landmark judgments are twin pillars in our legal history. In this case, it is important to note that the verdict relates specifically with reference to the powers of the state.”

Now that the right to privacy is a fundamental right, what happens when one person feels that his privacy has been violated by another person, not the State? Is there a legal remedy?

Mr. Gopal Shankaranarayan, Advocate at Supreme Court, told FE Online, ”Horizontal rights (individual to individual) are discussed at some level in the verdict and yes, in such instances, people can go to court but horizontal rights would be decided by the court on a case to case basis. So, it is not different from what it was earlier. The same applies to media coverage – it is not any different from what it was earlier. Significantly, the Supreme Court has unanimously overruled two judgments. In this verdict, the Supreme Court has implicitly overruled the gay rights judgment and expanded the scope of the right of individuals to be left alone and recognizes the right of sexual orientation.”

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A widely discussed definition of privacy put forth by Agre and Rotenberg where they say that the right to privacy can be defined as ”the freedom from unreasonable constraints on the construction of one’s identity.” In 1890, an article by Samuel D Warren and Louis Brandeis referred to the evolution of law that also incorporates within it the right to life which had come to mean ‘the right to enjoy life – the right to be left alone.” This aspect ‘Right to be left alone’ has found a significant mention in the Supreme Court’s landmark judgment today where it reads, ”The right to be left alone was not so much an incident of property as a reflection of the inviolable nature of the human personality.” Note this: Your right to privacy includes the right to be left alone.

According to the aforementioned legal experts who spoke with FE Online, if the government wants to change this aspect of the right to privacy, the government will have to pass a law. As of now, your right to privacy includes the right to be left alone and this also encompasses your sexual orientation, whether you are in a gay relationship, a live-in relationship, etc. come within the purview of your right to privacy.

“This is a progressive verdict that has expanded the scope of Article 21 and overruled two earlier judgments. Following this verdict, many people have a wrong impression that the Aadhaar card has been knocked down or is no longer valid, which is not the case. Remember, if you apply for a job, you cannot say that it is your right to privacy not to give your names or details.How Aadhar details will be used – this is something a separate Bench of the Court will decide. As of now, the most important takeaway is that the right to privacy stands now as a fundamental right,” Mr. P.H.Parekh, Senior Advocate and Former President of the Supreme Court Bar Association told FE Online .

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Mr. Pavan Duggal, a leading cyber law expert, shared his insights with FE Online, “This is a historic, landmark judgment by the Supreme Court in its entire history. This is a progressive judgment, which has taken note of the current ground realities, the technological advances that are pertinent to Information Privacy. Across the board, this judgment affects every Indian and even non-Indians who live here.”

So, what about the legal status of the Aadhaar card?

“This will have a massive impact on Aadhaar-based litigation. People should also understand that a separate Bench of the court will examine the Aadhar issue. This verdict examines the constitutional status of the right to privacy and strengthens the ordinary Indian’s privacy from being invaded. Government cannot be arbitrary and this verdict has paved the way for growth of jurisprudence on privacy rights in India,” Mr. Pavan Duggal told FE Online.

“The right to privacy, like any other fundamental right, shall be subject to reasonable restrictions. So, what are reasonable restrictions? That shall be a matter of interpretation to be decided on a case to case basis, just as it is done for fundamental rights. The right of privacy is always a legal right. A legal right can always be curtailed or extinguished by the legislature,” Mr. Narender Hooda, Senior Advocate explained.

Mr. N. Venkataraman, Senior Advocate, Supreme Court holds a different view, “Privacy is not just an ordinary right, it is a fundamental right now. Consequences will be drastic if one breaches it. Overemphasis on privacy is like issuing free licenses to our own children. The price of privacy and individual liberty can lead to the breakdown of matrimony and family structure. Respect replaces love, dignity replaces privacy and privacy replaces togetherness.India has strong fundamentals but the law is cracking time immemorial values and traditions.Transformation is unstoppable. Transformation of duty based society into rights based society becomes a natural byproduct.”

For many Indians, ‘privacy’ itself is a concept that tends to be synonymous with elitism. So, let’s break this down into a small chunk to assimilate first – ”What is Privacy?” Most of us spend considerable time on the Internet and we are actively posting our opinions on Facebook, Twitter and so on.

Will we be violators of some one else’s privacy when we share our opinions or react to developments as we usually do on social media?

”The right of online and offline privacy remains the same. This judgment is about the status and standing of the right, not the extent and sweep. Now the right of privacy is a member of the galaxy of rights, which are inalienable and cannot be bartered away even by the citizen. No estoppel applies against a fundamental right, however, it does apply to legal right. Also, now that the legal right to privacy has been elevated to the higher position of a fundamental right, even the Parliament shall not be able to infringe on it. Any law made by the Parliament imposing ”unreasonable restrictions” can be successfully challenged. In essence, the judgment curtails the prerogative of the legislature to legislate on the right to privacy,” Mr. Narender Hooda, Senior Advocate explained to FE Online.

According to Mr. Rajesh Vellakkat, Partner, Fox Mandal & Associates, ”This means that now the State will first need to enact laws to protect internet privacy, social media privacy, privacy against surveillance, privacy against cookies, privacy, and data protection/collection, etc. If the government fails to make the appropriate legislation to protect privacy on such and such counts, then citizens can approach High Courts and the Supreme Court again.”

So, how does this verdict on Right to Privacy impact online activities such as social media sharing and reactions?

“This judgment has no immediate impact on social media sharing of information, surveillance cameras set up at private places by private parties or the media reporting on the private life of celebrities. The judgment of the Supreme Court is effective immediately. Now, on the grounds of privacy, you can expect increased citizen action, government initiatives to legislate new laws and challenges to many state actions.” Mr. Rajesh Vellakkat, Partner, Fox Mandal & Associates told FE Online.

Summing up, Mr. Pavan Duggal explains, “The right to privacy is now a fundamental right which applies to every Indian’s privacy in the actual world and the virtual world. This fundamental right now gives protection to all Indians but it is not an absolute right, as there can be reasonable restrictions for which the government has to establish a procedure. Any state or its instrumentality cannot infringe on the right to privacy. The verdict has ushered in a new era of privacy practice in India. Privacy, as a fundamental right, will get more premium than it did yesterday. This is a giant leap forward – no other Supreme Court judgment has pushed the envelope like this on privacy jurisprudence and no one will ever be able to treat privacy as an inferior right in India.”

Impact on SEC 377

The Supreme Court’s decision that right to privacy is a wholly qualified fundamental right has huge implications. Suppose the it hadn’t been granted, then it would have meant that the government or anyone or any agency for that matter could get to you in the privacy of your own home. If you recall the case of Professor Siras at Aligarh Muslim University, local journalists had barged into his bedroom and filmed him. That kind of a violation cannot happen now.

Right to privacy had been an integral part of the Delhi High Court judgment on section 377 in 2009. In spite of that judgment being such a wonderful one, it had still been set aside by the Supreme Court in 2013. Luckily, the apex court is willing to listen to the curative petition. I am sure that today’s judgment will have a tremendous impact on that.

If you look at the Delhi High Court judgment, the Naz Foundation had basically asked for a reading down of the law, so that consenting adults are not within its purview. We asked for the reading down because child sexual abuse was prosecuted under this law. But now with POCSO (Protection of Children from Sexual Offences) Act having come into existence, 377 is not an issue except for the part which covers sexual violence against animals.

What people need to understand is that the Delhi High Court judgment had been a decriminalisation of homosexuality for consenting adults. It was not like any great rights were granted to the LGBT community. Even after homosexuality is decriminalised, they do not automatically get the rights that all other citizens take for granted like the right to marriage, right to inherit, right to adopt etc. But decriminalisation is the first, necessary step and right to privacy would have a huge role in that. I feel proud that our courts have given such a judgment today.

Anjali Gopalan is a human rights activist, founder and executive director of The Naz Foundation Trust.