A nine-judge bench of the Supreme Court has ruled that privacy is a fundamental right. Here are the arguments given by each of the nine lordships.
In a historic judgement on 24 August 2017, a nine-judge Constitution bench of the Supreme Court has unanimously declared privacy as a fundamental right guaranteed under Article 21 and Part III of the Constitution of India.
Headed by the Chief Justice of India, J S Khehar, the nine-judge bench overruled the previous two judgments delivered by a six-judge bench and an eight-judge bench of the Supreme Court, which had ruled that privacy was not a fundamental right.
The court has declared that right to privacy is protected as an intrinsic part of right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.
Here is what the judges said in the 547-page verdict:
Justice D Y Chandrachud
In his judgement, Justice D Y Chandrachud said information technology today governs virtually every aspect of our lives and the task before the court was to impart constitutional meaning to individual liberty in an interconnected world.
“While we revisit the question whether our constitution protects privacy as an elemental principle, the Court has to be sensitive to the needs of and the opportunities and dangers posed to liberty in a digital world,” Justice Chandrachud wrote in his judgement, possibly referring to the debate around Aadhaar.
The judgement, most detailed of the nine judgements, cites decisions in multiple cases such as M P Sharma v Satish Chandraand Kharak Singh v State of Uttar Pradesh. It also weighs in on verdicts given in the United States, Canada and South Africa in cases related to right to privacy, and also discusses the definition of privacy under European Convention on Human Rights and the European Charter. He has also taken into consideration various criticisms of the privacy doctrine.
Following a detailed analysis, Justice Chandrachud concluded that life and personal liberty are inalienable rights and inseparable from a dignified human existence. The dignity of the individual, equality between human beings and the quest for liberty, he writes, are the foundational pillars of the Indian Constitution.
“Life and liberty are not creations of the Constitution. These rights are recognised by the Constitution as inhering in each individual as an intrinsic and inseparable part of the human element which dwells within,” Justice Chandrachud writes, adding that privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution.
Justice J Chelameswar
In his judgement, Justice J Chelameswar has answered these questions.
Is there any fundamental right to privacy under the Constitution of India?
If it exists, where is it located?
What are the contours of such a right?
“The text of the Constitution is silent in this regard. Therefore, it is required to examine whether such a right is implied in any one or more of the Fundamental Rights in the text of the Constitution,” he writes, answering the questions.
“I am of the opinion that for answering the present reference, this Court is only concerned with the question whether SUBJECTS who are amenable to the laws of this country have a Fundamental Right of Privacy against the State,” he adds.
Justice Chelameswar says the state should not have unqualified authority to intrude into certain aspects of human life and that the authority should be limited by parameters constitutionally fixed. However, he has also said that no legal right, including the fundamental right to privacy, can be absolute.
“The limitations are to be identified on case to case basis depending upon the nature of the privacy interest claimed. There are different standards of review to test infractions of fundamental rights. While the concept of reasonableness overarches Part III, it operates differently across Articles (even if only slightly differently across some of them). Having emphatically interpreted the Constitution’s liberty guarantee to contain a fundamental right of privacy, it is necessary for me to outline the manner in which such a right to privacy can be limited,” he writes, elaborating his point.
Justice S A Bobde
In his judgement, Justice S A Bobde says privacy eminently qualifies as an inalienable natural right, intimately connected to two values whose protection is a matter of universal moral agreement: the innate dignity and autonomy of man.
“The first and natural home for a right of privacy is in Article 21 at the very heart of ‘personal liberty’ and life itself. Liberty and privacy are integrally connected in a way that privacy is often the basic condition necessary for exercise of the right of personal liberty. There are innumerable activities which are virtually incapable of being performed at all and in many cases with dignity unless an individual is left alone or is otherwise empowered to ensure his or her privacy,” he writes in his judgement.
Justice R F Nariman
Citing multiple cases, Justice R F Nariman has said the fundamental right to privacy resides in Article 21 and other fundamental freedoms contained in Part III of the Constitution of India.
“M P Sharma (supra) and the majority in Kharak Singh (supra), to the extent that they indicate to the contrary, stand overruled. The later judgments of this Court recognizing privacy as a fundamental right do not need to be revisited. These cases are, therefore, sent back for adjudication on merits to the original Bench of 3 honourable Judges of this Court in light of the judgment just delivered by us,” he writes in his judgement.
Justice Abhay Manohar Sapre
Justice Abhay Manohar Sapre has endorsed the judgements written by Justices Chelameswar, Bobde, Nariman and Chandrachud in this case.
Justice Sapre writes that right to privacy is part of the fundamental right of a citizen guaranteed under Part III of the Constitution. However, he also states that it is not an absolute right and is subject to certain reasonable restrictions.
He writes that right to privacy has multiple facets, and, therefore, the same has to go through a process of case-to-case development as and when any citizen raises his grievance complaining of infringement of his right.
Justice Sanjay Kishan Kaul
Justice Kaul, in his judgement, writes that right to privacy is a fundamental right and protects the inner sphere of an individual from both state and non-state interference, allowing an individual to make autonomous life choices.
He states that right to privacy is embedded in Part III of the Constitution and highlights that it can’t be absolute.
Darknet, also known as dark web or darknet market, refers to the part of the internet that is not indexed or accessible through traditional search engines. It is a network of private and encrypted websites that cannot be accessed through regular web browsers and requires special software and configuration to access.
The darknet is often associated with illegal activities such as drug trafficking, weapon sales, and hacking services, although not all sites on the darknet are illegal.
Examples of darknet markets include Silk Road, AlphaBay, and Dream Market, which were all shut down by law enforcement agencies in recent years.
These marketplaces operate similarly to e-commerce websites, with vendors selling various illegal goods and services, such as drugs, counterfeit documents, and hacking tools, and buyers paying with cryptocurrency for their purchases.
Anonymity: Darknet allows users to communicate and transact with each other anonymously. Users can maintain their privacy and avoid being tracked by law enforcement agencies or other entities.
Access to Information: The darknet provides access to information and resources that may be otherwise unavailable or censored on the regular internet. This can include political or sensitive information that is not allowed to be disseminated through other channels.
Freedom of Speech: The darknet can be a platform for free speech, as users are able to express their opinions and ideas without fear of censorship or retribution.
Secure Communication: Darknet sites are encrypted, which means that communication between users is secure and cannot be intercepted by third parties.
Illegal Activities: Many darknet sites are associated with illegal activities, such as drug trafficking, weapon sales, and hacking services. Such activities can attract criminals and expose users to serious legal risks.
Scams: The darknet is a hotbed for scams, with many fake vendors and websites that aim to steal users’ personal information and cryptocurrency. The lack of regulation and oversight on the darknet means that users must be cautious when conducting transactions.
Security Risks: The use of the darknet can expose users to malware and other security risks, as many sites are not properly secured or monitored. Users may also be vulnerable to hacking or phishing attacks.
Stigma: The association of the darknet with illegal activities has created a stigma that may deter some users from using it for legitimate purposes.
AI, or artificial intelligence, refers to the development of computer systems that can perform tasks that would normally require human intelligence, such as recognizing speech, making decisions, and understanding natural language.
Virtual assistants: Siri, Alexa, and Google Assistant are examples of virtual assistants that use natural language processing to understand and respond to users’ queries.
Recommendation systems: Companies like Netflix and Amazon use AI to recommend movies and products to their users based on their browsing and purchase history.
Efficiency: AI systems can work continuously without getting tired or making errors, which can save time and resources.
Personalization: AI can help provide personalized recommendations and experiences for users.
Automation: AI can automate repetitive and tedious tasks, freeing up time for humans to focus on more complex tasks.
Job loss: AI has the potential to automate jobs previously performed by humans, leading to job loss and economic disruption.
Bias: AI systems can be biased due to the data they are trained on, leading to unfair or discriminatory outcomes.
Safety and privacy concerns: AI systems can pose safety risks if they malfunction or are used maliciously, and can also raise privacy concerns if they collect and use personal data without consent.