A constitutional right to privacy is already embedded in Indian jurisprudence but its unequivocal reiteration by a nine-judge bench is necessary to clear needless cobwebs of confusion created by diverse state bodies who seek a marauding intrusion into people’s lives. Since this touches our daily lives, it is necessary to disentangle and clarify the bewildering array of issues arising on this theme.
What is the right to privacy?
We all know the proverbial elephant but cannot easily define it. It is different things to different persons in different contexts. The simplest and best definition is the right to be left alone.
Its diverse manifestations include one’s honour, reputation, not to be eavesdropped, one’s home being one’s castle, personal belongings and data being inviolable, personal choice in all aspects of living, a protective arc against arbitrary intrusions and so on. Without such rights and protections, there be no true liberty, freedom, civilised existence and, indeed, no true democracy. George Orwell’s nightmare state of Big Brother would be the alternative reality without such a right.
Is this right constitutionally recognised in Indian law?
Gobind (1975) and Maneka (seven judges, 1978) were the clearest enunciations of privacy as a constitutional, Part 3 right. They based their derivation mainly on the right to life (Article 21) as also a teleological reading of all other fundamental rights in Article 19.
After these two seminal judgments, innumerable apex court pronouncements have reiterated the existence of an Indian, constitutional Part 3 right to privacy. An illustrative list includes Malak (1981), Rajagopal (1994), PUCL (1997), District Registrar ( 2005), Suchita ( 2009), Selvi (2010) and Nalsa (2014).
Why, then, this hullabaloo and doubts on the existence of a constitutional right to privacy and why the setting up of a new ninejudge bench?
During the hearing of an Aadhaar-related case over a year ago, the attorney general argued that the aforesaid rich jurisprudence should be overturned as per incuriam (contrary to law) because they had not considered/not given effect to the binding consequences of two earlier judgments by much larger benches, viz MP Sharma (1954, eight judges) and Kharak Singh (1963, six judges).
Hence, only a still larger combination of nine could decide whether to affirm the two last cases on the government’s interpretation qua privacy or clarify the earlier long list of cases as valid, operable law.
There are several reasons why the government’s stand is wrong.
It is an axiomatic principle of Indian law that, in the absence of any specific statutory mandate to the contrary, international treaties, international customary law and the corpus of international jurisprudence will be used as valuable aids for interpretation in Indian decision-making and substantive adoption in Indian jurisprudence.
The right to privacy has a respectable and unbroken legacy, finding detailed elaboration right from the Universal Declaration (1948), International Covenant (1966, which India signed and ratified) and almost all human rights conventions, including the American and European ones.
What’s more, specific, narrow, calibrated and focused legislatively sanctioned invasions of privacy (for example, under the Postal Act or Telegraph Act) permitting interception of postal articles or telephonic communications under controlled conditions are themselves a clear recognition of the constitutional right to privacy.
What are the limitations on the constitutional rights to privacy?
Part of the government’s conceptual confusion arises from a misplaced fear that a constitutional right would make citizens inviolable and invincible and the government impotent. A privacy right is, like all constitutional fundamental rights and freedoms, subject to reasonable restrictions.
It is obviously derogable for public welfare, public interest, law & order, public order, national security, sovereignty & integrity considerations. Use of private/personal material in public interest in judicial or legislative proceedings, subject to compliance with legal preconditions, is another example of permissible derogation from privacy rights. Hence alarmist reactions to the consequences of adopting a constitutional privacy right is an ostrich in the sand attitude.
India awaits unequivocal, definitive and binding clarity on this vital theme, especially in the context of India’s proud occupation of prime spot as the nation with the most dynamic and avant garde legal concepts (like basic structure theory, public interest litigation) and the most advanced boundaries of judicial review.