Explained: What The Right To Privacy Means For Section 377, Aadhaar, And More

Posted by Abhishek Jha in LGBT+, News, Staff Picks
August 24, 2017

In a landmark judgment, a nine-judge bench of the Supreme Court today unanimously declared that right to privacy is a fundamental right. “The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution,” the court said. The court also overruled two of its earlier judgments to the extent that they said that right to privacy is not protected by the Constitution.

Why The Case

The question whether right to privacy is a fundamental right was referred to the nine-judge bench after two smaller benches were faced with a dilemma. Petitioners had challenged the collection of biometric data under the Aadhaar card scheme of the Union government on the grounds that it violated the right to privacy, which is not explicitly provided for in the text of the Constitution. As the right to privacy in particular instances had earlier been adjudicated by benches of larger strength than that of the two benches that heard the Aadhaar petitions, the nine-judge bench was asked to settle the question of privacy.

What The Government Said

The Centre, through Attorney General K K Venuogopal, argued that there is no fundamental right to privacy because it is not provided for in Part-III of the Constitution, which deals with fundamental rights. He also argued that – for instance, where food is being guaranteed to BPL population using collection of biometric data – privacy could be done away with if doing so guarantees right to life.

What The Judgment Implies

For the Aadhaar Case: Although the case arrived before the nine-judge bench as a result of the petitions pertaining to the Aadhaar scheme, those petitions will continue to be heard by the three-judge bench that was originally hearing the case. However, the petitions will now be heard in the light of the fact that privacy has been deemed a fundamental right that is intrinsic to Article 21 and is part of the freedoms guaranteed under Part III of the constitution. What will be a deciding factor in the case is how right to privacy has been construed by different judges on the bench, which might be used by the petitioners and the government to their respective advantages.

For the challenge to section 377: A larger bench is to hear a petition challenging the 2013 judgment of the Supreme Court which upheld section 377 of the IPC. Five out of the nine judges on the bench have noted the judgment for its incorrect reasoning in today’s judgment. Justice Chandrachud, writing a judgment for himself and three other judges on the bench, stopped just short of overruling the 2013 judgment, since a larger bench is to hear the matter.

“That ‘a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders’ (as observed in the judgment of this Court) is not a sustainable basis to deny the right to privacy. The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular,” Justice Charachud said in his judgment.

Justice Sanjay Kishan Kaul, agreeing with Justice Chandrachud, also ruled that sexual orientation is part of one’s right to privacy.

Other judges too have similarly identified what they considered was definitely part of the right to privacy.

For other litigation related to the right to privacy: All nine judges agreed that right to privacy is a fundamental right under the constitution. However, deciding on the matter meant that each judge had to also state what the court understood to be the right to privacy.

In broad terms, they have defined the right to privacy as 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”. Each of the six judgments have also said that there have to be reasonable restrictions on the right to privacy. While the court had to only decide whether privacy is a fundamental right, observations made by individual judges will be important in future litigations.

Responses

All sides appeared to be elated with the Supreme Court judgment, with the BJP-led Central government, which had vociferously argued against the right to privacy, also celebrating the judgment. Here are some of the responses:

 

 

 

 

 

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