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 Chandra and 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.
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In a diverse country like India, where each State is socially, culturally, economically, and politically distinct, measuring Governance becomes increasingly tricky. The Public Affairs Index (PAI 2021) is a scientifically rigorous, data-based framework that measures the quality of governance at the Sub-national level and ranks the States and Union Territories (UTs) of India on a Composite Index (CI).
States are classified into two categories – Large and Small – using population as the criteria.
In PAI 2021, PAC defined three significant pillars that embody Governance – Growth, Equity, and Sustainability. Each of the three Pillars is circumscribed by five governance praxis Themes.
The themes include – Voice and Accountability, Government Effectiveness, Rule of Law, Regulatory Quality and Control of Corruption.
At the bottom of the pyramid, 43 component indicators are mapped to 14 Sustainable Development Goals (SDGs) that are relevant to the States and UTs.
This forms the foundation of the conceptual framework of PAI 2021. The choice of the 43 indicators that go into the calculation of the CI were dictated by the objective of uncovering the complexity and multidimensional character of development governance
The Equity Principle
The Equity Pillar of the PAI 2021 Index analyses the inclusiveness impact at the Sub-national level in the country; inclusiveness in terms of the welfare of a society that depends primarily on establishing that all people feel that they have a say in the governance and are not excluded from the mainstream policy framework.
This requires all individuals and communities, but particularly the most vulnerable, to have an opportunity to improve or maintain their wellbeing. This chapter of PAI 2021 reflects the performance of States and UTs during the pandemic and questions the governance infrastructure in the country, analysing the effectiveness of schemes and the general livelihood of the people in terms of Equity.
Growth and its Discontents
Growth in its multidimensional form encompasses the essence of access to and the availability and optimal utilisation of resources. By resources, PAI 2021 refer to human resources, infrastructure and the budgetary allocations. Capacity building of an economy cannot take place if all the key players of growth do not drive development. The multiplier effects of better health care, improved educational outcomes, increased capital accumulation and lower unemployment levels contribute magnificently in the growth and development of the States.
The Pursuit Of Sustainability
The Sustainability Pillar analyses the access to and usage of resources that has an impact on environment, economy and humankind. The Pillar subsumes two themes and uses seven indicators to measure the effectiveness of government efforts with regards to Sustainability.
The Curious Case Of The Delta
The Delta Analysis presents the results on the State performance on year-on-year improvement. The rankings are measured as the Delta value over the last five to 10 years of data available for 12 Key Development Indicators (KDI). In PAI 2021, 12 indicators across the three Pillars of Equity (five indicators), Growth (five indicators) and Sustainability (two indicators). These KDIs are the outcome indicators crucial to assess Human Development. The Performance in the Delta Analysis is then compared to the Overall PAI 2021 Index.
Key Findings:-
In the Scheme of Things
The Scheme Analysis adds an additional dimension to ranking of the States on their governance. It attempts to complement the Governance Model by trying to understand the developmental activities undertaken by State Governments in the form of schemes. It also tries to understand whether better performance of States in schemes reflect in better governance.
The Centrally Sponsored schemes that were analysed are National Health Mission (NHM), Umbrella Integrated Child Development Services scheme (ICDS), Mahatma Gandh National Rural Employment Guarantee Scheme (MGNREGS), Samagra Shiksha Abhiyan (SmSA) and MidDay Meal Scheme (MDMS).
National Health Mission (NHM)
INTEGRATED CHILD DEVELOPMENT SERVICES (ICDS)
MID- DAY MEAL SCHEME (MDMS)
SAMAGRA SHIKSHA ABHIYAN (SMSA)
MAHATMA GANDHI NATIONAL RURAL EMPLOYMENT GUARANTEE SCHEME (MGNREGS)