NEW DELHI -- A nine-judge bench of the Supreme Court unanimously decided on Thursday that right to privacy is a fundamental right.
The Constitution bench headed by Chief Justice J S Khehar ruled that "right to privacy is an intrinsic part of Right to Life and Personal Liberty under Article 21 and entire Part III of the Constitution".
The nine judges unanimously overruled the two earlier judgements of the apex court--the M P Sharma verdict of 1950 and that of Kharak Singh of 1960--that right to privacy is not protected under the Constitution.
Besides CJI Khehar, the bench comprised of justices Jasti Chelameswar, SA Bobde, RK Agarwal, Rohinton Nariman, AM Sapre, DY Chandrachud, SK Kaul and S Abdul Nazeer. Before pronouncing the judgement, the CJI said that among the nine judges some of them have authored different orders, reported PTI.
The ruling on the highly contentious issue was to deal with a batch of petitions challenging the Centre's move to make Aadhaar mandatory for availing the benefits of various social welfare schemes. Aadhaar is a 12-digit random number issued by the Indian government to its residents and it requires the resident's biometric and demographic information. Even though Aadhaar is voluntary, the government's move to make it mandatory for availing schemes has raised serious concerns. Thursday's judgment is expected to have direct effect on the government's plans for Aadhaar.
"This verdict is a setback for Aadhaar," said lawyer Prashant Bhushan outside the apex court on Thursday. "Right now the government needs you to provide your Aadhaar details when you book flight tickets etc. I believe it will be now considered unreasonable restriction on your privacy and it will be stopped."
"They have held that this is a fundamental right under Article 21," said Bhushan, "and therefore any law which is made to restrict this fundamental right will have to be examined on the touchstone of Article 21 which means that the court will have to see if that law imposes reasonable restrictions on your right to privacy or not."
Besides the issue of Aadhaar, this judgment may also have implications on section 377 of the Indian Penal Code that criminalises gay sex.
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Faith in judiciary restored. Thanks SC for upholding the #RightToPrivacy
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Earlier, lawyers arguing the case before the constitutional bench had said citizens have absolute right over their body. Former Attorney General of India Soli Sorabjee argued that privacy was "an inalienable right inhering in the very personality of human beings".
In an electrifying argument, litigation lawyer Shyam Divan had said, "Privacy includes the right to be left alone, freedom of thought, freedom to dissent, bodily integrity, informational self-determination."
Over the course of three weeks, the constitutional bench heard a series of arguments on six days. Several high-profile lawyers, including Attorney General K K Venugopal, Additional Solicitor General Tushar Mehta, Arvind Datar, Kapil Sibal, Gopal Subaramaniam, Shyam Divan, Anand Grover, C A Sundaram and Rakesh Dwivedi, argued either in favour or against the inclusion of right to privacy as a fundamental right.
The petitioners in the case include former Karnataka High Court judge Justice K S Puttaswamy, first Chairperson of the National Commission for Protection of Child Rights and Magsaysay award recipient Shanta Sinha, feminist researcher Kalyani Sen Menon and others who have challenged the validity of the Aadhaar scheme on grounds of it being violative of the right to privacy.
Last month, on July 7, a three-judge bench had said that all issues arising out of Aadhaar should finally be decided by a larger bench and the CJI would take a call on the need for setting up a constitution bench. CJI Khehar then set up a five-judge constitution bench to hear the matter. On July 18, the five-judge constitution bench decided to set up a nine-judge bench to decide whether the right to privacy can be declared a fundamental right under the Constitution.
While reserving the verdict, the bench had voiced concern over the possible misuse of personal information in the public domain and said that protection of the concept of privacy in the all-pervading technological era was a "losing battle".
During the arguments earlier, the bench had observed that the right to privacy cannot be an absolute right and the state may have some power to put reasonable restrictions.
The Attorney General had contended that right to privacy cannot fall in the bracket of fundamental rights as there were binding decisions of larger benches that it was only a common law right evolved through judicial decisions.
The Centre had termed privacy as a "vague and amorphous" right which cannot be granted primacy to deprive poor people of their rights to life, food and shelter.
The high-profile arguments also saw the apex court asking searching questions about the contours of right to privacy in the digital age when personal information was randomly shared with all types of government and private entities.
The bench had wanted to know about the tests which could be used to regulate and enforce privacy right when there could be "legitimate or illegitimate" use of data.
The petitioners had contended that the right to privacy was "inalienable" and "inherent" to the most important fundamental right which is the right to liberty.
They had said that right to liberty, which also included right to privacy, was a pre-existing "natural right" which the Constitution acknowledged and guaranteed to the citizens in case of infringement by the state.
The apex court had favoured overarching guidelines to protect private information in public domain and said there was a need to "maintain the core of privacy" as the notion of privacy was fast becoming irrelevant in an all-pervading technological era.
The judgment was welcomed by leaders of opposition parties. Congress vice president Rahul Gandhi called the judgment a "major blow to fascist forces".
Congress leader Randeep Surjewala hailed the judgement as a 'path breaking and seminal judgement' of the Supreme Court. "The decision to give right to privacy a status of being a fundamental right is historic as well as path converter," he said. "This is the first such big decision taken in the interest of the rights of an individual. The Congress welcomes this verdict. We welcome this decision as this is the biggest decision on freedom of an individual."
"Article 21 is the right to life and liberty. Any corrosion of that should be fought. Privacy is the core of personal liberty. Privacy is an inalienable part of life itself. Today we can once again celebrate our freedom. This verdict is a setback to the government," Congress leader and former union minister P. Chidambaram told journalists.
"The Aadhaar we (Congress) thought is completely compatible with the Right to Privacy. Aadhar in itself is not inconsistent with the Right to Privacy, it is the current government's interpretation that is not correct," he said, adding, "it is the interpretation of this government of the Article 21 which is an invasion of Right To Privacy."
Former law minister Ashwani Kumar said he is 'proud' at the verdict announced by the court.
Speaking to ANI, the Congress leader said, "I feel proud that the Supreme Court has kept faith with the Constitution morality and aspiration of the people of India."
"I had no doubt in my mind that the only logical conclusion for the Supreme Court to reach in this case was to hold that the right to privacy was a fundamental right," he added.
"The Right to Privacy has been derived from Article 21 of the Indian Constitution and if we were to look at the past issues of the Supreme Court, in an expansive interpretation of Article 21, the Supreme Court has continuously enlarged the domain of human rights and that is why India's Constitution jurisprudence is sighted in many countries of the world as very progressive."
Meanwhile, Delhi Chief Minister Arvind Kejriwal welcomed the Supreme Court verdict on right to privacy as a fundamental right.
"Thank you Supreme Court for this very important judgement," the Chief Minister tweeted, minutes after the landmark decision by the apex court.
CPI-M leader Sitaram Yechury said the Supreme Court's ruling on Thursday will have far-reaching consequences in various domains.
"Congratulations to all lawyers, activists, others who fought this government's sinister designs to deny Indians their fundamental right to privacy," Yechury tweeted.
"A far-reaching judgement which will have consequences in various domains, as technology is playing a greater role in our day-to-day lives."
He also said that the Communist Party of India-Marxist have opposed to a mandatory Aadhaar and data misuse by foreign technology firms.
"This judgement will pave the way for securing our rights," he added.
(With agency inputs)