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Privacy as a fundamental right: What Supreme Court judges said in separate judgements

LiveMint logoLiveMint 24-08-2017 Priyanka Mittal

New Delhi: A nine-judge constitution bench of the Supreme Court on Thursday held that privacy is a fundamental right under the Consitution of India.

“Privacy is intrinsic to the right to life and personal liberty under Article 21 of the Constitution and will be included under part III of the Constitution.”, said chief justice J.S. Khehar while pronouncing the unanimous verdict.

“Right to Privacy” will now find place under Part III of the Constitution of India along with other fundamental rights: right to equality before law, right to various freedoms such as speech and expression/to move freely, right against exploitation, right to freedom of religion, cultural and educational rights and right to constitutional remedies.

Here’s what judges on the nine-member consitution bench said while pronouncing their unanimous verdict on privacy as a fundamental right:

Justices D.Y Chandrachud, J.S. Khehar, R.K. Agrawal and S. Abdul Nazeer:

■ Privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution.

■ Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.

■ Privacy protects heterogeneity and recognises the plurality and diversity of our culture.

■ Informational privacy is a facet of the right to privacy.

■ The submission that the right to privacy is an elitist construct which stands apart from the needs and aspirations of the large majority constituting the rest of society, is unsustainable. It betrays a misunderstanding of the constitutional position.

Justice J. Chelameswar

■ A woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy.

■ Telephone tappings and internet hacking by State, of personal data is another area which falls within the realm of privacy.

■ The strictest scrutiny is the standard of compelling state interest to be used. As for others, the just, fair and reasonable standard under Article 21 will apply.

Justice S.A. Bobde

■ Any interference with privacy by an entity covered by description of the “state” under law must satisfy the tests applicable to whichever one or more of the Part III freedoms the interference affects.

Justice Rohinton F. Nariman

■ The inalienable fundamental right to privacy resides in Article 21 and other fundamental freedoms contained in Part III of the Constitution of India.

Justice Abhay Manohar Sapre

■ Right to privacy has multiple facets, and has to go through a process of case-to-case development as and when any citizen raises his grievance complaining of infringement.

Justice Sanjay Kishan Kaul

■ It is a right which protects the inner sphere of the individual from interference from both State, and non-State actors and allows the individuals to make autonomous life choices.

■ The privacy of the home must protect the family, marriage, procreation and sexual orientation which are all important aspects of dignity.

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