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Privacy integral to several fundamental rights of the Constitution: Justice S.A. Bobde

LiveMint logoLiveMint 25-08-2017 PTI

New Delhi: Right to privacy is “inextricably bound up” with all the exercises of human liberty and any “diminution” in it would weaken fundamental rights which have been expressly conferred, the Supreme Court on Thursday said.

Justice S.A. Bobde, who wrote a separate but concurring judgement, observed that privacy is integral to the several fundamental rights recognised by Part III of the Constitution and must be regarded as a fundamental right itself.

Referring to the ancient religious texts, he said, “Even in the ancient and religious texts of India, a well-developed sense of privacy is evident. A woman ought not to be seen by a male stranger seems to be a well-established rule in the Ramayana.”

“Similarly in Islam, peeping into others’ houses is strictly prohibited,” the judge said in his 40-page verdict, adding that, “In Christianity, we find the aspiration to live without interfering in the affairs of others in the text of the Bible.”

"Privacy has a deep affinity with seclusion (of our physical persons and things) as well as such ideas as repose, solitude, confidentiality and secrecy (in our communications), and intimacy"- Justice S.A. Bobde

Justice Bobde said that privacy is a necessary condition precedent to the enjoyment of any of the guarantees in Part III of the Constitution. “Not recognising character of privacy as a fundamental right is likely to erode the very sub-stratum of the personal liberty guaranteed by the Constitution,” he said.

“Any derecognition or diminution in the importance of the right of privacy will weaken the fundamental rights which have been expressly conferred,” the judge said. “The right to privacy is inextricably bound up with all exercises of human liberty—both as it is specifically enumerated across Part III, and as it is guaranteed in the residue under Article 21,” he said.

He noted that existence of zones of privacy was felt instinctively by all civilised people, without exception and every individual was entitled to perform his actions in private. “The entitlement to such a condition is not confined only to intimate spaces such as the bedroom or the washroom but goes with a person wherever he is, even in a public place.

“Privacy has a deep affinity with seclusion (of our physical persons and things) as well as such ideas as repose, solitude, confidentiality and secrecy (in our communications), and intimacy,” justice Bobde said. Referring to the ancient texts, he said ‘Grihya Sutras’ prescribe the manner in which one ought to build one’s house in order to protect the privacy of its inmates and preserve its sanctity during the performance of religious rites, or when studying the Vedas or taking meals.

“The Arthashastra prohibits entry into another’s house, without the owner’s consent. There is still a denomination known as the Ramanuj Sampradaya in southern India, members of which continue to observe the practice of not eating and drinking in the presence of anyone else,” he said.

Justice Bobde also observed that it was not possible to “truncate or isolate” the basic freedom to do an activity in seclusion from the freedom to do the activity itself. “The right to claim a basic condition like privacy in which guaranteed fundamental rights can be exercised must itself be regarded as a fundamental right. Privacy, thus, constitutes the basic, irreducible condition necessary for the exercise of ‘personal liberty’ and freedoms guaranteed by the Constitution,” he said.

He said the Constitution enumerates many of these freedoms and their corresponding rights as fundamental rights and privacy was an essential condition for exercise of most of these freedoms.

“Ex-facie, every right which is integral to the constitutional rights to dignity, life, personal liberty and freedom, as indeed the right to privacy is, must itself be regarded as a fundamental right,” he said.

Justice Bobde said that the first and natural home for a right of privacy was in Article 21 of the constitution and liberty and privacy were integrally connected in a way that privacy was often the basic condition necessary for exercise of the right of personal liberty. He said that there were innumerable activities which were virtually incapable of being performed at all, and in many cases with dignity, unless an individual is left alone or is otherwise empowered to ensure his or her privacy.

“Birth and death are events when privacy is required for ensuring dignity amongst all civilised people,” he said, adding that right of privacy is as inalienable as the right to perform any constitutionally permissible act.

“As a result, privacy is more than merely a derivative constitutional right. It is the necessary and unavoidable logical entailment of rights guaranteed in the text of the constitution,” he said. A nine-judge Constitution bench headed by Chief Justice J.S. Khehar has unanimously 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”.

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