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Privacy Will Develop on a Case to Case Basis, Says Supreme Court

Justice J Chelameswar, in his judgment, dismissed the Central government’s argument that privacy could not be construed as a fundamental right since it is an “amorphous” concept and there could be no defined contours of it.

Utkarsh Anand | CNN-News18

Updated:August 24, 2017, 9:27 PM IST
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Privacy Will Develop on a Case to Case Basis, Says Supreme Court
A nine-judge Supreme Court bench in a unanimous judgment has declared the right to privacy as fundamental right. (Network18 Creatives)
New Delhi: Definitional uncertainty is no reason why privacy cannot be recognized as a fundamental right, said the Supreme Court on Thursday, as it held that this right will develop on a “case to case basis”.

Justice J Chelameswar, in his judgment, dismissed the Central government’s argument that privacy could not be construed as a fundamental right since it is an “amorphous” concept and there could be no defined contours of it.

“Definitional uncertainty is no reason to not recognize the existence of the right of privacy,” noted the judge, adding that there are various facets of privacy and any of them could be so essential for the liberty of the human being that the right must be accorded constitutional protection.

“In my opinion, there is no need to resolve all definitional concerns at an abstract level to understand the nature of the right to privacy. The ever growing possibilities of technological and psychological intrusions by the State into the liberty of SUBJECTS (people) must leave some doubt in this context,” said Justice Chelameswar.

The senior judge on the nine-judge bench underlined that man is not a creation of State and that life and liberty are such natural and inalienable rights that they existed even without the Constitution formally granting these rights.

“Constitution only stipulates the limitations on the power of the State to interfere with our life and liberty. Law is essential to enjoy the fruits of liberty; it is not the source of liberty and emphatically not the exclusive source,” he said.

According to Justice Chelameswar, the right to privacy is certainly one of the core freedoms which is to be defended and that it is part of liberty under Article 21 of the Constitution.

He said: “I do not think that anybody in this country would like to have the officers of the State intruding into their homes or private property at will or soldiers quartered in their houses without their consent. I do not think that anybody would like to be told by the State as to what they should eat or how they should dress or whom they should be associated with either in their personal, social or political life. Freedom of social and political association is guaranteed to citizens.”

His view was supported by Justice S A Bobde, who also held that apprehensions that the recognition of privacy would create complications for the state in its exercise of powers is not well-founded. “The declaration of a right cannot be avoided where there is good constitutional ground for doing so,” he said.

Justice Rohinton F Nariman specifically rejected Attorney General K K Venugopal’s argument that the right to privacy is so vague and amorphous a concept that it cannot be held to be a fundamental right.

“This again need not detain us. Mere absence of a definition which would encompass the many contours of the right to privacy need not deter us from recognizing privacy interests when we see them. As this judgment will presently show, these interests are broadly classified into interests pertaining to the physical realm and interests pertaining to the mind,” stated the judge.

Justice Nariman gave three illustrations in the Indian context. He said that a fundamental right to privacy would cover at least the following three aspects: 1) Privacy that involves the person i.e. when there is some invasion by the State of a person’s rights relatable to his physical body, such as the right to move freely; 2) Informational privacy which does not deal with a person’s body but deals with a person’s mind, and therefore recognizes that an individual may have control over the dissemination of material that is personal to him. Unauthorised use of such information may, therefore lead to infringement of this right; and 3) The privacy of choice, which protects an individual’s autonomy over fundamental personal choices.

“And all this can be read into one fundamental right or another. The argument based on ‘privacy’ being a vague and nebulous concept need not, therefore, detain us,” held the judge.

Justice Nariman was also of the opinion that the fundamental right of privacy, which has so many developing facets, can only be developed on a “case to case basis”.

Another judge on the bench, Justice A M Sapre concurred with these judges. “I also hold that the “right to privacy” has multiple facets, and, therefore, the same has to go through a process of case-to-case development as and when any citizen raises his grievance complaining of infringement of his alleged right in accordance with law,” he held.

Justice Sanjay K Kaul noted that some people do not attach importance to their privacy cannot be the basis for denying recognition to the right to privacy as a basic human right.

“How it thereafter works out in its inter-play with other fundamental rights and when such restrictions would become necessary would depend on the factual matrix of each case. That it may give rise to more litigation can hardly be the reason not to recognize this important, natural, primordial right as a fundamental right,” he said.
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