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Insights into Editorial: Citizen vs State: On right to privacy verdict



Insights into Editorial: Citizen vs State: On right to privacy verdict



Privacy had emerged as a contentious issue while the apex court was hearing a batch of petitions challenging the Centre’s move to make Aadhaar mandatory for availing government schemes. In 2015, Attorney General while defending the Aadhaar project that seeks to assign every resident a biometric ID argued that Indians have no right to privacy under the Indian Constitution. This shocked observers and legal experts.

The government’s claim would set back the privacy debate by over 50 years. Over decades, the Supreme Court has in its judgements read the right to privacy into the Constitution. The highest court in doing so had recognised that without a right to privacy, the right to liberty and freedom of expression cannot survive. The government’s claim threatened our basic rights.


9 judge bench delivered landmark judgement and unanimously declaring the Right to Privacy is fundamental right under constitution. SC has categorically held that Right to privacy will be protected as intrinsic part of Right to life and personal liberty under Article 21 of constitution of India.  Judgement represents quantum leap in the evolution of legal jurisprudence pertaining to privacy in India.

What is the big deal about Privacy?

Privacy is the basis of the freedom to dissent. With unfettered surveillance, every time you disagree with the state, they can take advantage of the huge imbalance of information between them and you. They can put you under pressure to concede or use information that you did not even know they possessed to embattle you in court. And their story need not be true. The availability of mass data does not automatically reveal the truth. The truth has to be extracted from it. The details of your phone calls, movements, purchases, demographics and social interactions can be used to construct any number of different truths.

Implications of SC judgement

What matters is not the outcome but its future far reaching implications. It’s a big deal overruling 8 bench judge’s order. 9 judge bench is a rarity, even more of rarity is 9 judge bench is speaking in one voice unequivocally stating that privacy is fundamental right.

The fact that all the judges unanimously came down on this argument shows how much the government misunderstood the constitutional underpinnings of privacy as a value in it and as an ineluctable facet of human dignity.

The government argued that privacy is “so amorphous as to defy description”, that it is needless to call it a fundamental right as it is one in common law, and that it has been given statutory protection in different forms. There was even a suggestion that privacy is an imported value and that it is elitist. All these arguments fell by the wayside.

Need for elevating it to the status of fundamental right

Privacy can be otherwise protected through codified mechanism through a statute then why do we need as sacrosanct as a constitutional right? The reason that we elevate to the status of fundamental right is take outside the ambit of the legislative majority so that no brutal majority is in a position to overturn the particular right.

Because a statutory right is effectively a creature of a particular statute and therefore it can be curtailed where as a fundamental right is there for all time to come and forms part of basic structure.

Relevance and Contemporary standpoint:

From relevance and contemporary stand point the fact that privacy is extremely important concern in technology intensive society which aims to become information based society especially at a time when we are pushing for Digital India.

So this case is not about Aadhaar but it still is?

Right to Privacy was always known or assumed to be a common law right. Occasionally, it was recognised in some verdicts as a fundamental right. In concluding that “the right to be left alone” is an inalienable part of being human, the court has restated a fundamental principle, namely that some rights are natural and inherent; constitutions only recognise them and make them explicit.

In the interim period of two years of a wait for the Right to Privacy judgement, the Government of India has violated the prior orders of the Court restraining the use and expansion of Aadhaar. It has linked and made Aadhaar mandatory for filing taxes, operating bank accounts, for children’s schemes to get school lunches, scholarships, taking exams, stipends for the disabled, causing hardship to ordinary citizens.

So, it became necessary mainly due to a strange and perverse argument by the Union government in the course of the hearings on the validity of its Aadhaar-based unique identity scheme that privacy is not a fundamental right.

What implications the ruling would have on state policy and citizens’ rights

What implications the ruling would have on state policy and citizens’ rights will be the core issues in future.

  • A welcome aspect of the judgment is that it makes it clear that sexual orientation is part of privacy and constitutionally protected, and that the 2014 verdict upholding Section 377 of the Indian Penal Code is to be questioned. This opens up the case for a much-needed reconsideration.
  • As for Aadhaar, it is pertinent to note that the judges have referred to the restrictions and limitations that privacy would be subject to.
  • The test to decide the validity of any such restriction is that it is reasonable based on fair procedure and free from arbitrariness or selective targeting or profiling.
  • It can also be based on compelling state interest. This is where a cautionary note is in order. Courts exercising writ jurisdiction should be cautious about the nature of the relief they grant based on wide and open-ended claims of breach of privacy.
  • The verdict has advanced and revivified core constitutional principles in an era in which privacy is compromised against state interest. Somehow, privacy as a value finds itself
    • at loggerheads with notions of national security,
    • the needs of a knowledge society and
    • Socio-economic policy.

Hopefully, this judgment will set many such concerns at rest and bring about a more equitable relationship between citizen and state.


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 scrutinised. The nine-judge bench has rightly emphasised the need for data protection laws — a task now entrusted, at a preliminary stage, to the Justice Srikrishna Committee.

But, irrespective of any technological changes, the respect of the right of individuals to make a choice of how and where they want to live, work and pursue their individual dreams must be protected. Nine judges of the Supreme Court have protected, for decades to come, the most important right emphasized by Justice Brandeis: The right to be left alone.