Over the weekend, India witnessed a major historical landmark in its 70 independent years. On Thursday morning, a bench of nine judges delivered a landmark 550-page ruling that will have far-reaching consequences for many decades to come. Although six judges delivered separate judgments, it was unanimously held that the right to privacy is protected as an “intrinsic part of the right to life and right to personal liberty under Article 21” and also as a part of the other freedoms guaranteed in the chapter of fundamental rights.
According to a report published in The Wire, The nine judges, through six concurring opinions held that privacy is a constitutionally protected right that emerges from the right to life and liberty guaranteed by Article 21 of the constitution, which is inseparable from the right to live with dignity. Justice Chandrachud clarified that the judiciary did not create a new right in this case but merely granted recognition to a right that already existed as the ‘constitutional core of human dignity,’ privacy. It is essentially the reservation of a private space for an individual founded on the autonomy of the individual. Of course, it stopped short of elaborating the variety of entitlements that come hand-in-glove with the right to privacy. Instead, they left it for future judges to carve out such entitlements depending on the needs of the time, given the nature of the constitution as a ‘living document.’
The Supreme Court also granted members of the LGBT community the right to express their sexuality without discrimination. The ruling paves the way for discriminatory practices against LGBT people to be challenged in the courts. The Judgement reads – “Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform.”
Does the right to privacy becoming a fundamental right mean the Aadhaar programme is unconstitutional? Not at all. The bench states that the voluntary nature of Aadhaar would continue to be in place until a larger Supreme Court bench of judges decided whether the biometric authentication scheme violates the privacy of Indian citizens.
For decades now, the Supreme Court has repeatedly protected citizens against unwarranted intrusion into their right to privacy. For example, the compulsory injection of truth serum, as a part of narco-analysis, was struck down by a bench of five judges. At the same time, the communication of the HIV positive state of a person to his fiancée was held to be valid; his right to privacy did not mean that he could endanger the life of his future wife.
The right to privacy broadly encompasses physical privacy, informational privacy and decisional autonomy. The interplay of technological advances and the right to privacy in the digital age needs to be closely scrutinized. But what about the generations that are currently growing up in this digital age?
The online world can sometimes be a dangerous place, but how sure are we that this right to privacy is going to keep India’s future safe, when information about anything under the sun is made available at the click of a button. And considering the way we’re being catapulted towards technological advancements, there’s no reason why newer technologies could become newer ways to snoop around, making it the bane of our lives.
The judgement also addressed a skeleton in the government’s closet that is Section 377, the draconian colonial era law that criminalised homosexuality. The judges said: ‘It is an individual’s choice as to who enters his house, how he lives and in what relationship. ‘The privacy of the home must protect the family, marriage, procreation and sexual orientation, which are all important aspects of dignity. Sexual orientation is an essential attribute of privacy’. Many are hopeful that this judgement could reverse India’s ban on homosexuality.
For starters, our children will have the good fortune of growing up in a world where they’re completely at liberty to choose who they want to be with, and how. Because the Nine Judges of the Supreme Court have put India on the map for its ‘modernisation’, and in doing have given decades of citizens that come after us, a prerequisite to our diverse culture – the right to be left alone!
Meanwhile, the Supreme Court judgement invited a string of reactions from Twitterati, and here’s a few of them –
— Abinash KUSUMA Jena (@Abinash_Jena1) August 28, 2017