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24 August 2017
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| SC(The Total Investment & Insurance Solutions) |
The
Supreme Court, in a landmark judgement on Thursday held that the right to
privacy is a fundamental right and is an integral part of the right to life and
liberty. While overruling two earlier judgements, the nine judge bench, in an
unanimous decision said privacy comes under the right to life and liberty. .The Total Investment & Insurance
Solutions
"The
decision in MP Sharma, which holds that the right to privacy is not protected
by the Constitution stands over-ruled. The decision in Kharak Singh to the
extent that it holds that the right to privacy is not protected by the
Constitution stands over-ruled. The right to privacy is protected as an
intrinsic part of the right to life and personal liberty under Article 21 and
as a part of the freedoms guaranteed by Part III of the Constitution," the
Bench said in is judgement.
The
Bench observed, "The decisions in MP Sharma and Kharak Singh adopted a
doctrinal position on the relationship between Articles 19 and 21, based on the
view of the majority in Gopalan. This view stands abrogated particularly by the
judgment in Cooper and the subsequent statement of doctrine in Maneka. The
decision in Maneka, in fact, expressly recognized that it is the dissenting
judgment of Justice Subba Rao in Kharak Singh which represents the exposition
of the correct constitutional principle.
The jurisprudential foundation which
held the field sixty three years ago in MP Sharma and fifty five years ago in
Kharak Singh has given way to what is now a settled position in constitutional
law. Firstly, the fundamental rights emanate from basic notions of liberty and
dignity and the enumeration of some facets of liberty as distinctly protected
rights under Article 19 does not denude Article 21 of its expansive ambit.
Secondly, the validity of a law, which infringes the fundamental rights has to
be tested not with reference to the object of state action but on the basis of
its effect on the guarantees of freedom. Thirdly, the requirement of Article 14
that state action must not be arbitrary and must fulfil the requirement of
reasonableness, imparts meaning to the constitutional guarantees in Part
III."
According
to the Supreme Court, the right 'to be let alone' represented a manifestation
of 'an inviolate personality', a core of freedom and liberty from which the
human being had to be free from intrusion. "The technology, which provided
a justification for the need to preserve the privacy of the individual, was the
development of photography. The right to be let alone is a part of the
right to enjoy life. The right to enjoy life is, in its turn, a part of the
fundamental right to life of the individual," it said adding,
"Natural rights are not bestowed by the state. They inhere in human beings
because they are human. They exist equally in the individual irrespective of
class or strata, gender or orientation." .The Total Investment & Insurance Solutions
During
the hearing, senior counsels Gopal Subramanium, Kapil Sibal, Arvind Datar,
Shyam Divan, Anand Grover, Meenakshi Arora, Sajan Poovayya and Jayant Bhushan
represented the petitioners, with support from JS Attri, senior counsel for
Himachal Pradesh. Attorney General KK Venugopal, represented the union
government with suport from Tushar Mehta (Additional Solicitor.The Total Investment & Insurance
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General), Rakesh Dwivedi, senior counsel for Gujarat, Aryama Sundaram for
Maharashtra, Gopal Sankaranarayanan and Dr Arghya Sengupta. While some state
governments have supported the stand of the Union government, others have
supported the petitioners.
The Bench stated, "It was rightly expressed on behalf of the petitioners
that the technology has made it possible to enter a citizen's house without
knocking at his or her door and this is equally possible both by the State and
non-State actors. It is an individual's choice as to who enters his house, how
he lives and in what relationship. The privacy of the home must protect the
family, marriage, procreation and sexual orientation which are all important
aspects of dignity."
"If the individual permits someone to enter the house it does not mean
that others can enter the house. The only check and balance is that it should
not harm the other individual or affect his or her rights. This applies both to
the physical form and to technology. In an era where there are wide, varied,
social and cultural norms and more so in a country like ours which prides
itself on its diversity, privacy is one of the most important rights to be
protected both against State and non-State actors and be recognized as a
fundamental 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 recognise this important, natural,
primordial right as a fundamental right," it added. .The Total Investment & Insurance
Solutions
The
ruling by a nine-judge bench headed by Chief Justice JS Khehar will have a
bearing on the challenge to the validity of the Aadhaar scheme on the grounds of
its violating the right to privacy. .The
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The
nine-judge bench deciding this was constituted in August 2015 following a
reference made in the Aadhaar or UID case (Puttuswamy & Anr WP Civil No.
494 of 2012) almost two years ago. A bench of nine judges including the Chief
Justice of India, Justice Khehar, Justices Jasti Chelameswar, SA Bobde, RK
Agarwal, Rohinton Nariman, AM Sapre, DY Chandrachud, SK Kaul and S Abdul Nazeer
have heard the case. .The Total
Investment & Insurance Solutions
Petitioners,
activists, academics and lawyers sceptical of the Aadhaar project have been
waiting since then for the resolution of the question of whether or not a
fundamental right to privacy will be recognised by the Supreme Court. In the
interim period, the Government blatantly violated prior orders of the apex
court restraining the use and expansion of Aadhaar. As the project has grown,
so has awareness of its multiple shortcomings and of the threat it poses to the
security and welfare of the country. .The
Total Investment & Insurance Solutions
Chronology of the case:
September 2013: SC
tells Congress-led United Progressive Alliance (UPA) government that Aadhaar
cannot be made mandatory for any services.
July 2015: Bharatiya
Janata Party (BJP)-led National Democratic Alliance (NDA) Government tells SC
that it plans to make Aadhaar mandatory for a range of services. Attorney
General Mukul Rohatgi argues citizens have no fundamental right to privacy,
shocking everyone. SC says a constitution bench will decide on this.
August 2015: SC
limits use of Aadhaar to the Public Distribution System, only on voluntary
basis
October 2015: SC
allows Aadhaar to be used in four more schemes, purely on voluntary basis
March 2016: NDA
Government passes Aadhaar Act as a money bill bypassing Rajya Sabha where it
lacks majority. Pushes Aadhaar in over 50 schemes, making it mandatory.
June 2017: SC
forms constitution bench to decide right to privacy, after a wait of nearly two
years.
August 2017: The
nine-judge Bench of SC upholds Right to Privacy as fundamental right.The Total Investment & Insurance
Solutions
