Privacy is a fundamental right, says Supreme Court in historic ruling

Nine-judge bench overrules previous judgments on the issue

A nine-judge constitutional Bench of the Supreme Court on Thursday set aside previous judgments and unanimously declared that privacy was a fundamental right but not an absolute right.

The judgment will have wider implications on the use of Aadhaar, a 12-digit unique identification number, by the Union and state governments for the delivery of welfare schemes, and also on how the state and private entities such as Google and Facebook collect an individual’s personal data.

The judgment is also likely to open the floodgates to fresh petitions on Section 377 of Indian Penal Code (IPC) that criminalises homosexuality.
     
“The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as part of the freedoms guaranteed by Part III of the Constitution,” the Supreme Court said in its judgment running into 547 pages.

“A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. In the context of Article 21, an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable,” the court ruled on the petition filed by a retired high court judge, KS Puttaswamy, who had challenged the Aadhaar scheme as violative of the right to privacy.

The judgment is expected to clear the way for a three-judge constitutional Bench that is hearing a clutch of petitions related to the use of Aadhaar -- including alleged contempt by the Union and state governments for violating the court’s ruling on not making Aadhaar mandatory for government schemes -- and the legal tenability of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.

The Bharatiya Janata Party-led National Democratic Alliance (NDA) government had passed the Aadhaar Act as a Money Bill, which is being legally contested by Congress leaders Jairam Ramesh and P Chidambaram in the Supreme Court.

The Unique Identification Authority of India (UIDAI), which was set up in 2009 by the previous Congress-led United Progressive Alliance government, has issued Aadhaar numbers to 1.17 billion people after collecting their biometric details. The UIDAI was set up without legal backing and later Aadhaar was made mandatory by the NDA government for delivering most welfare benefits.

Union Finance Minister Arun Jaitley welcomed the judgment and said the Supreme Court was approached on the privacy issue as the UPA government had brought in Aadhaar without passing a Bill in Parliament.  

"The Supreme Court has affirmed what the government had said in Parliament (that privacy was a fundamental right but not an absolute right) while moving the Aadhaar Bill. Privacy should be a fundamental right subject to reasonable restrictions," Union Law Minister Ravi Shankar Prasad said.

However, the government had argued differently before the nine-judge constitutional bench.

Prasad skirted questions related to the effect of the Supreme Court judgment on government schemes that were being rolled out on the Aadhaar platform and various related issues such as the criminalising of homosexuality and the collection of data by private and government agencies.

He said the government had saved Rs 57,000 crore by transferring subsidies into 300 million Jan Dhan accounts. “Around 30 million biometric authentications take place every day and 320 million mobile SIM cards have been issued based on Aadhaar numbers. Aadhaar is secure and safe,” he added.

When asked about the collection and using of personal data by companies such as Google and Facebook, Prasad said, “India will be a global digital power and we can take good care of our cyber security and safety. I am very happy that all the big international companies are coming to India. Google, Facebook, WhatsApp are empowering Indians. They will learn to respect the law of the land.”

Chief Justice JS Khehar and three other justices who authored a common judgment asked the government to put in place a robust regime for data protection. “The creation of such a regime requires a careful and sensitive balance between individual interests and legitimate concerns of the state. The legitimate aims of the state would include, for instance, protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits,” the ruling added.

The judgment, running into some 500 pages, comes in response to a batch of petitions moved by nonagenarian retired high court judge K S Puttaswamy who challenged the Aadhaar scheme as violative of the right to privacy. A number of prominent persons joined in later and the main counsel on their behalf was Shyam Divan.
 
Attorney General KK Venugopal argued against declaring an absolute right to privacy for citizens. The members of the Bench are the outgoing Chief Justice Khehar, Justices J Chelameswar, S A Bobde, R K Agrawal, R F Nariman, S Abdul Nazeer, A M Sapre, D Y Chandrachud, and S K Kaul.

Though the Union government set up on August 1 a committee under former Supreme Court Justice BN Srikrishna to recommend a framework for securing personal data, it ignored recommendations made by another committee set up under the former chief justice of the Delhi High Court, AP Shah, as a precursor to the Right to Privacy and Data Protection Bill in 2012. The then UPA government, however, failed to bring the Bill in Parliament. The Srikrishna committee has met twice and is expected to submit its report in three months.  

Experts said incoming Supreme Court Chief Justice Dipak Misra was expected to set up a new bench to decide whether Aadhaar violated the right to privacy and if the government could make it mandatory for welfare schemes.

WHAT THE JUDGES SAID IN THE VERDICT

“Every right has limitations. This aspect of the matter is conceded to at the bar. Therefore, even a fundamental right to privacy has limitations. The limitations are to be identified on a case-to-case basis, depending upon the nature of the privacy interest claimed”

JUSTICE J CHELAMESWAR

“An invasion of life or personal liberty must meet the threefold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate state aim; and (iii) proportionality, which ensures a rational nexus between the objects and the means adopted to achieve them” 
 

JUSTICES J S KHEHAR, R K AGARWAL, D Y CHANDRACHUD, S ABDUL NAZEER

“It is only after acknowledging that the right to privacy is a fundamental right, that we can consider how it affects the plenary powers of the state. In any event, the state can always legislate a reasonable restriction to protect and effectuate a compelling state interest, like it may while restricting any other fundamental right”
 

JUSTICE S A BOBDE

“This right is subject to reasonable regulations made by the state to protect legitimate state interests or public interest. However, when it comes to restrictions on this right, the drill of various Articles to which the right relates to must be scrupulously followed”
 

JUSTICE R F NARIMAN

“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/her rights. This applies both to the physical form and to technology”
 

JUSTICE SANJAY KISHAN KAUL

Highlights of the verdict

• The decision was unanimous, though the nine judges wrote six separate but concurring judgments
• Four judges, including Chief Justice J S Khehar, wrote one common judgment, while five others wrote their own separate judgments  
• The nine-judge bench set aside the previous judgments of 1954 and 1962 denying privacy as a fundamental right 
• Next issue before the court would be to see whether Aadhaar violates the right to privacy
• The court has asked the government to bring a robust system for data protection   

 

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Imaging: Ajay Mohanty