Is Right to Privacy is Right of Infringement

Background

Privacy has emerged as a contentious issue while the apex court was hearing a batch of
petitions challenging the centre’s move to make Aadhar mandatory for government schemes.

A five judge constitution bench which was considering the validity of Aadhar had then decided
that a nine judge bench should first decide whether privacy is a fundamental right and part of the basic structure of the Constitution.

In its landmark judgement, the SC categorically held that the Right To Privacy is protected as
an intrinsic part of Right to Life and personal liberty under Article 21 of the Constitution.
The judgement represents a quantum leap in the evolution of legal jurisprudence pertaining to
privacy in India.

Summary of the Judgement

1.Privacy is a constitutionally protected right.

2.It includes the preservation of personal intimacies, sanctity of family life, marriage, procreation, the home, and Sexual Orientation.

3.It connotes the right to be left alone.It safeguards individual autonomy and recognises one’s ability to control the vital aspects of his/her life.

4.Privacy is not an absolute right, but any invasion must be based on legality, need and proportionality.

5.Informational privacy is a facet of this right.Dangers to this can originate from both state and non-state actors.

6.The government must put in place a robust regime for data protection.It must bring about a balance between individual interests and legitimate state concerns

7.The court held that the Privacy is not an absolute right, but subject to reasonable restrictions.

8.With this, the apex court overruled its own previous eight-judge Bench and six-judge Bench judgments of M.P. Sharma and Kharak Singh delivered in 1954 and 1961 respectively, both of which had pronounced that the right to privacy is not protected under the Constitution.

Implications of the Judgement

1.The fact that the Right to privacy has been elevated to the status of a Fundamental Right and not merely codified as a statutory right, takes it outside the pale of legislative majority hence it cannot be overturned or curtailed by another statute.

Henceforth, the Right to Privacy will be considered as a part of the Basic Structure of the Constitution

2.The court while asserting the constitutionality of the Right to Privacy has held that it is not an absolute right. This means that The government can introduce a law which “intrudes” into privacy for public and legitimate state reasons. But a person can challenge this law in any of the constitutional courts of the land i.e the Supreme Court or the State High Courts, for violation of his fundamental right to privacy.

Impact of the Verdict

The Judgement has far reaching consequences, however, it has an immediate impact on three key issues-

1.Aadhar scheme-A constitution bench is set to decide whether the scheme is a reasonable restriction on the fundamental right to privacy.

2.On section 377 of IPC-The judgement reignites the prolonged debate to decriminalise Section 377, which criminalises consensual sexual acts of LGBT adults in private.

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