• Wednesday, 18 September 2019

Right to Privacy with subject to restrictions

By Onkareshwar Pandey, New Delhi [India], Aug 24, : The old order changeth yielding place to new. This is the call of today. In an era where there are wide, varied, social and cultural norms and more so in a country like ours which prides itself on its diversity, privacy is one of the most 44 important rights to be protected both against State and non-State actors and be recognized as a fundamental right.

The nine-judge Constitution Bench of the Supreme Court said in its judgement declaring right to privacy is "intrinsic to life and liberty" and an inherent part of the fundamental freedom enshrined in Part III of the Constitution on Thursday.

The court has overruled its own eight-judge Bench and six-judge Bench judgments of M.P. Sharma and Kharak Singh delivered in 1954 and 1961, respectively, that privacy is not protected under the Constitution. Chief Justice of India J.S. Khehar stated this while reading out the common conclusion arrived at by the nine judges on the Bench.

The judgement by a nine-judge Bench gains international significance as privacy enjoys a robust legal framework internationally, though India has remained circumspect.

The judgment would finally reconcile our laws with the spirit of Article 12 of the Universal Declaration of Human Rights, 1948 and Article 17 of the International Covenant on Civil and Political Rights (ICCPR), 1966, which legally protects persons against the "arbitrary interference" with one's privacy, family, home, correspondence, honour and reputation.

Here are the major highlights of the landmark judgement you must know:

-The right of privacy is a fundamental right.

- It is a right which protects the inner sphere of the individual from interference from both State, and non-State actors and allows the individuals to make autonomous life choices.

- It was rightly expressed on behalf of the petitioners that the technology has made it possible to enter a citizen's house without knocking at his/her door and this is equally possible both by the State and non-State actors.

- It is an individual's choice as to who enters his house, how he lives and in what relationship.

- The privacy of the home must protect the family, marriage, procreation and sexual orientation which are all important aspects of dignity.

- If the individual permits someone to enter the house it does not mean that others can enter the house.

- The only check and balance is that it should not harm the other individual or affect his or her rights. This applies both to the physical form and to technology.

- In an era where there are wide, varied, social and cultural norms and more so in a country like ours which prides itself on its diversity, privacy is one of the most 44 important rights to be protected both against State and non-State actors and be recognized as a fundamental right.

- How it works out in its inter-play with other fundamental rights and when such restrictions would become necessary would depend on the factual matrix of each case.

- That it may give rise to more litigation can hardly be the reason not to recognize this important, natural, primordial right as a fundamental right.

- In the challenge laid to Section 377 of the Indian Penal Code before the Delhi High Court, one of the grounds of challenge was that the said provision amounted to an infringement of the right to dignity and privacy.

- The Delhi High Court, inter alia, observed that the right to live with dignity and the right of privacy both are recognized as dimensions of Article 21 of the Constitution of India.

- The view of the High Court, however did not find 32 (2014) 1 SCC 1 favour with the Supreme Court and it was observed that only a miniscule fraction of the country's population constitutes lesbians, gays, bisexuals or transgenders and thus, there cannot be any basis for declaring the Section ultra virus of provisions of Articles 14, 15 and 21 of the Constitution.

- The matter did not rest at this, as the issue of privacy and dignity discussed by the High Court was also observed upon.

- The sexual orientation even within the four walls of the house thus became an aspect of debate.

- Right of privacy cannot be denied, even if there is a miniscule fraction of the population (lesbians, gays, bisexuals or transgenders) which is affected.

- The majoritarian concept does not apply to Constitutional rights and the Courts are often called up on to take what may be categorized as a non-majoritarian view, in the check and balance of power envisaged under the Constitution of India.

- Ones sexual orientation is undoubtedly an attribute of privacy.

The nine-judge Constitution Bench of the Supreme Court, while delivering the verdict, also noted the observations made in Mosley vs. News Group Papers Ltd. Saying that it may be usefully referred to in a broader concept. The bench mentioned it in its order as following:

130. It is not simply a matter of personal privacy versus the public interest. The modern perception is that there is a public interest in respecting personal privacy.

It is thus a question of taking account of conflicting public interest considerations and evaluating them according to increasingly well recognized criteria.

131. When the courts identify an infringement of a person's Article 8 rights, and in particular in the context of his freedom to conduct his sex life and personal relationships as he wishes, it is right to afford a remedy and to vindicate that right. The only permitted exception is where there is a countervailing public interest which in the particular circumstances is strong enough to outweigh it; that is to say, because one at least of the established "limiting principles" comes into play. Was it necessary and proportionate for the intrusion to take place, for example, in order to expose illegal activity or to prevent the public from being significantly misled by public claims hitherto made by the individual concerned (as with Naomi Campbell's public denials of drug-taking)? Or was it necessary because the information, in the words of the Strasbourg court in Von Hannover at (60) and (76), would make a contribution to "a debate of general interest"? That is, of course, a very high test, it is yet to be determined how far that doctrine will be taken in the courts of this jurisdiction in relation to photography in public places. If taken literally, it would mean a very significant change in what is permitted. It would have a profound effect on the tabloid and celebrity culture to which we have become accustomed in recent years."

The bench, however said, "It is not necessary to delve into this issue further, other than in the context of privacy as that would be an issue to be debated before the appropriate Bench, the matter having been referred to a larger Bench".

Referring to the majority judgment in the case of ADM Jabalpur vs. Shivkant Shukla, the bench further said, "In the case of I.R. Coelho Vs. The State of Tamil Nadu, it was observed that the ADM Jabalpur case has been impliedly overruled and that the supervening event was the 44th Amendment to the Constitution, amending Article 359 of the Constitution".

"I fully agree with the view expressly overruling the ADM Jabalpur case which was an aberration in the constitutional jurisprudence of our country and the desirability of burying the majority opinion ten fathom deep, with no chance of resurrection," said the bench.

"Let the right of privacy, an inherent right, be unequivocally a fundamental right embedded in part-III of the Constitution of India, but subject to the restrictions specified, relatable to that part. This is the call of today. The old order changeth yielding place to new," concluded the judgement.


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