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Is privacy a fundamental right? Two cases that Supreme Court will look at

LiveMint logoLiveMint 19-07-2017 Priyanka Mittal

New Delhi: As a nine-judge Constitution bench of the Supreme Court gets down to the business of addressing whether privacy is a fundamental right under the Constitution, it will primarily be revisiting two precedents on the issue.

The larger bench has been asked to look into the issue, which is at the core of the 12-digit Aadhaar number becoming the bedrock of government welfare programmes, the tax administration network and online financial transactions.

To address the privacy question, the nine-judge bench will examine and determine if judgments in two cases that say that privacy is not a fundamental right are acceptable in the current context. If the bench were to decide that Indian citizens indeed have the right to privacy, a smaller bench will define the scope of that right. If not, then little remains to the challenge against Aadhaar.

So, what are these two cases?

M.P Sharma vs Satish Chandra (1954)

This post-independence case involved a challenge to the constitutionality of search and seizure of documents from a person against whom a first information report (FIR) has been lodged. The main issue that came up for consideration was whether such procedures were violative of Article 19 (1) (f) (right to property) and Article 20 (3) (right against self- incrimination) of the Constitution.

The judges were to ascertain if there were any constitutional limitations to the government’s right to search and seizure and if this would in any way breach the right to privacy.

A majority decision by an eight-judge Constitution bench held that the right to privacy was not a fundamental right under the Indian Constitution. At this point in time, the question of privacy was relatively new and the bench did not go into it in much detail. Its interpretation and scope as a right was broadened in subsequent years.

The ruling recognized a search and seizure process as a “temporary interference for which statutory recognition was unnecessary”. It was considered to be a reasonable restriction of the freedoms under the Constitution which could not be held unconstitutional.

Kharak Singh vs State of Uttar Pradesh (1962)

The issue of state surveillance as against the right to privacy was bought to the court when Kharak Singh, who was let off in a dacoity case due to lack of evidence challenged regular surveillance by police authorities on the grounds of infringement of his constitutionally guaranteed fundamental rights.

Provisions of the Uttar Pradesh police regulations allowed secret picketing of Singh’s house, domiciliary visits at night, periodic inquiries by officers and tracking/verifying his movement. Claiming that this was an infringement of his fundamental rights, Singh filed a writ petition before the Supreme Court.

A six-judge Constitution bench examined the issue of surveillance and validity of regulations governing the Uttar Pradesh police in the context of the scope of such powers being in violation of the freedoms guaranteed to citizens under the Constitution.

The fundamental rights referred to in the challenge were Article 19(1)(d) (Right to move freely through the territory of India) and 21 (Right to life and personal liberty) of the Constitution.

The main question for consideration before the bench was whether surveillance under the impugned Uttar Pradesh police regulations constituted an infringement of the citizen’s fundamental rights as guaranteed by the Constitution.

Police authorities took the stand that the regulations did not infringe upon fundamental freedoms and even if they did, they served as reasonable restrictions in the interest of the general public and to enable the police to discharge its duty in a more efficient way.

In a majority judgment, the court ruled that “privacy was not a guaranteed constitutional right”. It however, held that Article 21 (right to life) was the repository of residuary personal rights and recognized the common law right to privacy. The provision allowing domiciliary visits was however struck down as unconstitutional. It also noted that the bundle of fundamental rights under the were self-contained and mutually exclusive.

Dissenting judge Justice Subbarao, however, said that even though the right to privacy was not expressly recognized as a fundamental right, it was an essential ingredient of personal liberty under Article 21. He also held all surveillance measures to be unconstitutional.

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