The Puttaswamy judgement recognising the right to privacy as the inviolable core value of liberal democracies and implanting it as the fundamental right guaranteed under the Constitution will stand as a lofty landmark for a host of reasons. It's a 9-judge Bench order without dissenting opinion. Though the doctrine of privacy was invoked by the judges earlier, it was largely restricted to guard the security of one's privacy against arbitrary intrusion by the police. Apart from stray observations on the sanctity of the right to privacy, the majority judicial view never preferred to consider it as a guaranteed right under the Constitution.
It is against this background that the central government had expressed doubts about the existence of fundamental right of privacy. This unequivocal judgement has emphatically pulled the curtain on all precedents which sanctioned dark clouds to float around right to privacy. It is now established that it is the right of the individual to be free from restrictions and encroachments. Privacy stands elevated as essential to personal liberty guaranteed under Article 21 and hence would be guarded against arbitrary intrusion by state and non-state actors.
Privacy & liberty inseparable
With the current judgement, it is proven that individual have rights against the State even in absence of explicit constitutional provision. Article 19 and 21 are no longer mutually exclusive. It is sealed now that a common thread runs between Article 14, 19, 21. Hence, any encroachment or restriction on privacy would have to clear 3 tests---- the action should be non-arbitrary and non-discriminatory; any restraint should conform to ‘reasonableness' as envisaged under Article 19(2) and the procedure established by any such law should be fair, just, equitable. This means any intrusion into the right to privacy would be subjected to a seasoned judicial scrutiny.
The SC in forming its opinion relied on the guarantees enshrined in the Constitution and also on precedents found in international Public Law to fortify that privacy is an integral part of human dignity. One can detect the application and import of doctrine of privacy as enunciated by Justice Frankfurter speaking for the US Supreme Court. There are also drawings from American Declaration of Independence which provides for unalienable rights of life, liberty and pursuit of happiness. Recognition of right to privacy is therefore not the largesse granted by the State but it is a natural right without which personal liberty would be denuded of its vitality. The Court was also seized with perils to privacy and hence dangers to liberty in a digitalised world.
Entitlements & inferences
Declaration of right to privacy would mean that activities in private realm are to be reserved for "private reflection, familial relatives and self-determination". Hence, an individual gets power to control information about oneself. Right to make choices is the other side of the coin. State and non-state actors bulldozing diversity and free choice of lifestyle under pretext of majoritarian faith or beliefs runs counter to privacy and personal liberty. It will be individual privilege ‘to be let alone' to make choices for oneself. Attempted restrictions sought to be imposed on individual under guise of culture and convention would collapse being intrusions into privacy spaces.
With technological innovations multiplying positive opportunities but also posing dangers to privacy, Courts will have to be sensitive to restore harmonious balance. It is in this context that making Aadhaar mandatory for public services, subsidies and financial entitlements would be scrutinised. It's a twin issue of privacy requiring protection of personal data and the need of effective administrative control in delivery of public services.
The right to privacy should in no way clash with ‘right to know'. Philosophical foundations of both are different. The latter is grounded in right of information and cannon of transparency in governance. Pruning privileges of public figures and consigning official secrecy to an exception rather than rule are established codes of democratic and participative governance. There could be attempts to take advantage of this newly hoisted right to privacy by officials and public figures by concealment of vital information in respect of public men. But, it is unlikely that judiciary will allow any dilution of right to information after having raised it to the level of a constitutional obligation.
Of late, the bug of ‘majoritarianism' is taking control of democratic politics. Probably, demands of electoral politics are polarizing society on communal lines and bogey of patriotism fuels dirty nationalism. A vicious combination of the above with the push and pull of political leadership devoid of constitutional vision and for whom liberalism and free thought is an anathema could reduce democracy to dictatorship of a blind and ruthless majority. These internal inconsistencies are coming to the fore in India's parliamentary democracy.
The Justice K. S. Puttaswamy (Retd) v/s Union (SC 2017) judgement would be the anti-dote for repression of personal liberty by otherwise constitutionalised majority sitting in Parliament. One can recall the prophetic words of most influential political economist, John Stuart Mill, "The tyranny of majority could be clipped by recognition of individual right to privacy, speech, assembly and expression". It is in this context that the judgement is a milestone in the Indian constitutional law and democratic journey.
