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Editorial :: Strictly Private

Strictly Private

In a major loss of face for the Narendra Modi government, which consistently claimed that privacy was not a fundamental right, the Supreme Court in a historic judgment has over-ruled the Central government’s stand. A nine-Judge Bench, in separate judgments, tore into the government’s arguments and stated that right to privacy is a fundamental right as it is an intrinsic part of the right to life and personal liberty guaranteed under the Constitution.

Assaults on right to privacy have been increasing phenomenally in the last few years. The government has been going hammer and tongs against citizens’ freedom to maintain privacy. Unlike the two divergent views on the issue of triple talaq in its recent judgment, the apex court was unanimous in its decision this time. One salient feature of the verdict is that right to privacy cannot be encroached upon or abrogated by the government by bringing in some law. As a fundamental right, it can be done away with only by amending the Constitution.

The significance of right to privacy, the impact of its denial and the relevance of the judgment can be explained through a few examples. Keeping an edible item at home is undoubtedly a matter of privacy. Neither state nor non-state actors can snoop to find out what one cooks. Sexual preferences are a matter of privacy and criminalizing them could be considered its violation. The judgment will have a major impact on Section 377 of the Indian Penal Code which criminalises sexual relations by even consenting parties. Another major casualty could be the much-touted Aadhaar scheme which has been made an all-powerful tool to link every conceivable aspect of human life. Snooping on personal data, unless a person’s activities are detrimental to the interests of the nation, is infringement on one’s private life.

The government and its cronies have been wanting people to zip their lips as they don’t believe in right to privacy. The denial of this right would have been a major boost for the government in taking forward its arrogant agenda of dictating people on what they have to do. It would have enabled the state and non-state players to force many majoritarian concepts down the throat of people. The court’s decision has put a brake on such surreptitious attempts. The judgment also points out that privacy is a necessary condition for the meaningful exercise of other guaranteed freedoms.

At the same time, there could be reasonable restrictions to the exercise of right to privacy. For example, an HIV positive person’s right to privacy does not mean that he could endanger the life of his future wife. As Justice K.K. Mathew held in 1975, the right to privacy could be curtailed when there was a ‘compelling state interest’. It is another matter that this ‘state interest’ could be interpreted by the government as per its convenience.

It is apt to conclude in the words of Justice J. Chelameswar, one of the nine Judges, who delivered a separate but consenting verdict: “Fundamental rights are the only constitutional firewall to prevent State’s interference with the core freedoms constituting liberty of a human being. The right to privacy is certainly one of the core freedoms which is to be defended.”

(Published on 04th September 2017, Volume XXIX, Issue 36)