The nine-judge bench of the Supreme Court has unanimously delivered its judgment in Justice K.S. Puttaswamy (Retd.) v. Union of India holding that privacy is a constitutionally protected right which not only emerges from the guarantee of life and personal liberty in Article 21 of the constitution, but also arises in varying contexts from the other facets of freedom and dignity recognised and guaranteed by the fundamental rights contained in Part III of the Indian constitution.

The bench has overruled its decisions in M.P. Sharma v Satish Chandra, District Magistrate, Delhi (1954), rendered by a bench of eight judges and, in Kharak Singh v State of Uttar Pradesh (1962), rendered by a bench of six judges, which contained observations that the Indian constitution does not specifically protect the right to privacy.

Justice D.Y. Chandrachud, while delivering the main judgment, on behalf of the Chief Justice J.S. Khehar, Justice R.K. Agarwal, himself and Justice S. Abdul Nazeer has held that privacy is intrinsic to life, liberty, freedom and dignity and therefore, is an inalienable natural right. Justices Chelameswar, Bobde, Sapre and Kaul have also agreed with Justice Chandrachud’s judgment.

The judgment says:

“Life and personal liberty are inalienable rights. These are rights which are inseparable from a dignified human existence. The dignity of the individual, equality between human beings and the quest for liberty are the foundational pillars of the Indian constitution… Life and personal liberty are not creations of the constitution. These rights are recognised by the constitution as inhering in each individual as an intrinsic and inseparable part of the human element which dwells within.”

Tracing the evolution of privacy in various cases and writings, the judgment concludes that:

“Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being.”

The judgment contradicts all the arguments raised against the concept of privacy. While countering the submission that the constitution makers had rejected the concept of privacy, it has been held that:

“To live is to live with dignity. The draftsmen of the constitution defined their vision of the society in which constitutional values would be attained by emphasising, among other freedoms, liberty and dignity… Dignity is the core which unites the fundamental rights because the fundamental rights seek to achieve for each individual the dignity of existence. Privacy with its attendant values assures dignity to the individual and it is only when life can be enjoyed with dignity can liberty be of true substance… The draftsmen of the constitution had a sense of history− both global and domestic– as they attempted to translate their vision of freedom into guarantees against authoritarian behaviour… The backdrop of human suffering furnished a reason to preserve a regime of governance based on the rule of law which would be subject to democratic accountability against a violation of fundamental freedoms… Hence, it would be an injustice both to the draftsmen of the constitution as well as to the document which they sanctified by constricting its interpretation to an originalist interpretation.”

The judgment makes it clear that privacy is “not an elitist construct”. The judgment has rejected the argument of the attorney general that right to privacy must be forsaken in the interest of welfare entitlements provided by the state. The judgment says:

“The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised though history to wreak the most egregious violations of human rights. Above all, it must be realised that it is the right to question, the right to scrutinise and the right to dissent which enables an informed citizenry to scrutinise the actions of government. Those who are governed are entitled to question those who govern, about the discharge of their constitutional duties including in the provision of socio-economic welfare benefits. The theory that civil and political rights are subservient to socio-economic rights has been urged in the past and has been categorically rejected in the course of constitutional adjudication by this court.”

In doing so, the judgment invokes the writings of Nobel laureate Prof. Amartya Sen. For instance, the judgment relies upon Sen’s classic The Idea of Justice (Penguin Books, 2009) in holding:

“In the Indian context, Sen points out that the Bengal famine of 1943 “was made viable not only by the lack of democracy in colonial India but also by severe restrictions on reporting and criticism imposed on the Indian press, and the voluntary practice of ‘silence’ on the famine that the British-owned media chose to follow”. Political liberties and democratic rights are hence regarded as ‘constituent components’ of development.”

The judgment, while holding that there is an intrinsic relationship between development and freedom, quotes from Sen’s writings in The Country of Young Boys (Oxford University Press, 2015) as follows:

“…development cannot really be seen merely as the process of increasing inanimate objects of convenience, such as raising the GNP per head, or promoting industrialization or technological advance or social modernization. These accomplishments are, of course, valuable – often crucially important – but their value must depend on what they do to the lives and freedoms of the people involved. For adult human beings, with responsibility for choice, the focus must ultimately be on whether they have the freedom to do what they have reason to value. In this sense, development consists of expansion of people’s freedom.”

The judgment also rejected the submission that privacy is a privilege for the few. It was held:

“[I]t is privacy which is a powerful guarantee if the state were to introduce compulsory drug trials of non-consenting men or women. The sanctity of marriage, the liberty of procreation, the choice of a family life and the dignity of being are matters which concern every individual irrespective of social strata or economic well being. The pursuit of happiness is founded upon autonomy and dignity. Both are essential attributes of privacy which makes no distinction between the birth marks of individuals.”

The judgment, apart from dealing with privacy, has also dealt with a number of aspects. The judgment authored by Justice Chandrachud rectifies the mistakes committed by the Supreme Court in the past. Justice Chandrachud hits two masterstrokes which no one could have expected. Firstly, the judgment authored by him, comes down heavily on Justice Singhvi’s judgment in Suresh Kumar Koushal v. Naz Foundation (2014), thereby upholding the spirit of LGBT rights. To quote from the judgment:

“The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection. Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the ‘mainstream’. Yet in a democratic constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties. Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the constitution… [LGBT] rights are not so-called but are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination.”

The reference of correctness of Suresh Koushal is pending before a constitution bench. Justice Sanjay Kishan Kaul, while writing his concurring opinion, has expressly agreed with Justice Chandrachud’s view on Suresh Koushal, thereby making it a view of five judges. Further, the other judges have not dissented on this aspect, which implies that this view on Suresh Koushal will be counted as coming from a nine-judge bench. It is now only a matter of procedure that the view of the division bench in Suresh Koushal will be overruled.

Secondly, Justice D.Y. Chandrachud overturns his father’s (Justice Y.V. Chandrachud’s) judgment in ADM Jabalpur v Shivakant Shukla (1976), who had concurred with the majority in holding that citizens’ fundamental rights could be suspended during the Emergency. Perhaps, Justice D.Y. Chandrachud becomes the first judge in history to have overturned his father’s judgment/mistake. Further, Justice Chandrachud and also the other judges in their concurring opinions have upheld the dissent of Justice H.R. Khanna in ADM Jabalpur. Justice Khanna had emphatically held that the suspension of the right to move any court for the enforcement of the right under Article 21, upon a proclamation of emergency, would not affect the enforcement of the basic right to life and liberty. The constitution was not the sole repository of the right to life and liberty. Upholding the dissent of Justice Khanna, it has been written by Justice D.Y. Chandrachud that:

“Justice Khanna was clearly right in holding that the recognition of the right to life and personal liberty under the constitution does not denude the existence of that right, apart from it nor can there be a fatuous assumption that in adopting the constitution, the people of India surrendered the most precious aspect of the human persona, namely, life, liberty and freedom to the state on whose mercy these rights would depend. Such a construct is contrary to the basic foundation of the rule of law which imposes restraints upon the powers vested in the modern state when it deals with the liberties of the individual. The power of the court to issue a Writ of Habeas Corpus is a precious and undeniable feature of the rule of law… A constitutional democracy can survive when citizens have an undiluted assurance that the rule of law will protect their rights and liberties against any invasion by the state and that judicial remedies would be available to ask searching questions and expect answers when a citizen has been deprived of these, most precious rights. The view taken by Justice Khanna must be accepted, and accepted in reverence for the strength of its thoughts and the courage of its convictions.”

Though the ADM Jabalpur judgment was nullified by 44th constitutional amendment, it, however, remained a blot in the face of Supreme Court in the backdrop of gross human rights violations during Emergency. The right to privacy judgment has washed away the ‘self-inflicted’ wound. The New Times had hailed Justice Khanna for his dissent in following words: “If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first eighteen years as an independent nation, someone will surely erect a monument to Justice H.R. Khanna of the Supreme Court”. Upholding Justice Khanna’s dissent, is the greatest tribute to him.

The right to privacy judgment is one of the most landmark judgments of independent India. It not only learns from the past, but also sets the wheel of liberty and freedom for future. The Supreme Court of India has once again emerged as the sole guardian of the Indian constitution.

Anurag Bhaskar works at the Supreme Court of India. The article has been written in his individual capacity. He tweets at @anuragbhaskar_.