In a landmark ruling on 24th August 2017, the Supreme Court decided that there is a fundamental right to privacy in India. The judges affirmed that the Right to privacy is an intrinsic part of Article 21 of our Constitution that protects life and liberty. It is also a part of freedom guaranteed by Part III of the Constitution.
The right to privacy is in conformity with international human rights standards as well. Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and political rights, legally protects individuals against infringement of privacy among other things.
The verdict is a comprehensive judgment which runs to 547 pages.
This ruling was the result of a series of petitions filed in the Supreme Court that challenged the constitutional validity of Aadhar card (which collects personal details and biometric data of individuals) on the grounds that it violates privacy and has no data protection mechanism.
The Government defended the Aadhar Card arguing that the right to privacy is not guaranteed by the Constitution. Therefore, a 9 judge constitution bench was formed to rule whether privacy is a fundamental right or not. The judges ruled in the affirmative and were unanimous in their decision. But, this right is not absolute and is subject to reasonable restrictions.
India follows the Common law system. It means that our law is based on precedents or the past judgments. But, as far as privacy is concerned, there was a lot of confusion.
Some judgments opposed the classification of privacy as fundamental right namely MP Sharma Vs. Satish Chandra in 1954 and Kharak Singh Vs State of UP in 1962. While the others ruled that the right to privacy is protected by the Constitution. These doubts have been put to rest through the current verdict and the past judgments which were in opposition to the fundamental right to privacy have been overruled.
This verdict can have grave implications for the Aadhar Scheme
To be sure, the Supreme Court has not commented whether linking Aadhar to the pan is an infringement of privacy. This is yet to be decided. But, the Supreme Court has directed the Government “to examine and put into place a robust regime for data protection”.
This is not to imply that the Supreme Court will render Aadhar invalid as the rights are subject to reasonable restrictions.
But, it will surely cause an administrative paralysis as there will be a flurry of PILs against the specific implementation aspects of Aadhar and the Government will have to devote considerable time and energy dealing with it.
Some analysts are of the opinion that the right to privacy will have to be balanced with rights of the poor to live a dignified life and hence Aadhar should be rolled out. Our rights to privacy anyway went for a toss with Facebook and Google. On the other hand, linking Aadhar to Pan number gives the Government access to a lot of information including spending patterns of every individual and it can misuse the information.
Last but not the least, the SC in its verdict also explicitly mentioned that sexual orientation is an essential attribute of privacy. It also asserted that the judgment of the 2 member bench that upheld Sec 377 was flawed. This is indeed a cause for celebration.
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