Right to Privacy: A landmark judgment for India?

In August 2017, the Honourable Supreme Court of India, in its ruling, declared the Right to Privacy as a Fundamental Right endorsed by the Constitution of India. The nine-judge bench of the Supreme Court unanimously ruled that the Right to Privacy is a Fundamental Right guaranteed by the Constitution, with former Attorney General Soli Sorabjee adding that, “Privacy is not explicitly laid out in the constitution. But that does not mean the right does not exist as it has been deduced from the constitution”.

The judgment was ruled in favor after a long process whereby there happened to be two previous attempts at deciphering the state of the Right to Privacy which was ruled over against by the two previous benches of the Supreme Court. The current judgment on the state of the Right to Privacy is a result of a petition filed by a former High Court judge in 2012. The petition was primarily filed to check for the legitimacy of the Aadhar scheme as had been put forth by the Government of India. The petitioner had argued that providing biometric data such as iris scans and fingerprints were not legitimate and not binding on the population. The result of the verdict is certainly a positive step in the direction as demanded by the petition; however, the current government refuses to accept the judgment as a loss and rather steadfastly adheres to the idea that all fundamental rights come with their boundaries.

A spokesperson of the ruling party suggested that the Supreme Court ruling only stood for the fact that the right to privacy was a constitutional right. Nowhere in the Supreme Court judgment was the Aadhar explicitly mentioned to be illegal. While this may be partially true, the government will surely feel the pressure that has been building on them since it has widely implemented the inclusion of the Aadhar in multiple places, from bank accounts to LPG gas subsidy. However, as few people suggest this is only a minor part of the huge significance of this Court ruling.

Wide sections of society have also welcomed this ruling as the first step to repealing the archaic Section 377 of the Indian Penal Code. Section 377 of the IPC criminalizes “unnatural sexual activity”, which is almost sinful for the country to have in its penal code in the modern 21st century. Some LGBTQ activists feel that the right to privacy indirectly accords privacy to every individual about his or her sexual orientation. They feel that this will take away power from the government to criminalize sexual activity between homosexual individuals. However, the whole community understands that we still have a long way to go before we can do away with Section 377.

Looking at the other side of the judgment it is still unclear about the boundaries of the right to privacy. Along with the right to privacy, the Right to Information, or RTI as it is popularly known is also a fundamental right. How far is privacy guaranteed to an individual or organization and how much it will come into conflict in the RTI is still an issue to be resolved. This caveat in the judgment is what is being actively taken up by people speaking for the ruling party. They say since the boundaries have not been defined the right to privacy needs to come under review.

Could this judgment make us a better society or will it breed contemptuous evils such as corruption? Only time can tell if this judgment stands out to be a landmark judgment in Indian history.

By Mainak Mandal

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