In a path breaking decision, the Supreme Court ruled on August 24, 2017 that privacy is a fundamental right under Article 21 of the Constitution of India. The verdict was delivered by a nine-Judge bench of the Supreme Court of India led by Chief Justice J.S. Khehar.
The Court, providing new dimensions to the privacy debate, in its 547-page judgment overruled the M.P. Sharma verdict of 1958 and the Kharak Singh verdict of 1961 in which the verdict was dependent on the right to privacy not being a fundamental right under the Indian Constitution.
The Court recognized that privacy is a fundamental right that arises from the fundamental rights to life and liberty provided in Article 21 the Constitution of India and is a compact of these. The aspects of the right, the Court said, can also arise relative to the various contexts of freedom and dignity recognized under the fundamental rights in the Constitution.
Interestingly, the Court also recognized that the judicial recognition of privacy as a fundamental right also does not infringe on the content of the Constitution. The Court saw two contexts under which the right can be interpreted, one normative and the other descriptive. The normative context is dependent on values based on life, liberty and freedom and the descriptive context is based on entitlements and interests on which social order based on the liberty of the individual is based upon.
In its definition of personal privacy, the right includes protection for marriage, family life, personal intimacies, the home, procreation and the sexual orientation of the individual. The Court said importantly in its judgement that the right implies that an individual has the right to control aspects of one’s life including the right to be left alone.
Here what are intrinsic are the personal choices determining an individual’s way of life which the Court recognized as intrinsic to privacy. The Court also recognized that the right must protect India’s heterogeneity and respect the plural and diverse nature of India. The Court also recognized that an individual retains the right to privacy even when one is in a public place, and that privacy attaches to a person as it is an intrinsic part of the dignity of an individual.
The judgement however, does not specifically provide a special section for intrusions caused by the development of technology, although the court said that dealing with such cases related to technology must be based on interpretations of the Constitution. Also the law, the Court said, is not absolute, although it is based on encroachments to the life and liberty of the individual concerned. Any invasion of privacy here can only be justified on the basis of a consort of illegality, a legitimate aim of the state, and proportionality based on a rational link between the object and the means utilized to achieve these aims.
Also, the issue of informational privacy is not adequately addressed, and although the matter is to be looked into by a Committee led by Justice B.N. Srikrishna (The Wire, 2017), it is an incredibly pertinent issue given the nature of information technology. Information technology is based on access to information and its control, and legal procedure must establish a sense of reasonable accountability to this issue. The problem arises over this access being under the control of specialists, and as media technology acts to re-enact technological interactions, these specialists can re-enact individual interaction in their own forms on the basis of control over access. It is this control over access that creates an imbalance in terms of how informational privacy can be infringed in a manner that is not accountable.