Statement

India: Supreme Court recognises the right to privacy

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ARTICLE 19

29 Aug 2017

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ARTICLE 19 welcomes the 24 August judgment of the Supreme Court of India recognizing the fundamental right to privacy under the Indian Constitution. The judgment  sets a powerful precedent for the protection of the right to privacy and freedom of expression in India, in line with international human rights law.

In this unanimous decision, the nine judge bench recognized privacy as an element of human dignity, intrinsic to constitutional guarantees of freedom, liberty and equal protection of laws. The judgment unequivocally puts an end to decades of uncertainty surrounding the right to privacy under the Indian Constitution. The urgent need for this clarification arose in 2015 when privacy activists contended that Aadhaar, the biometric unique identification system in India, was unconstitutional as it violated the right to privacy. The Attorney General of India argued that the right to privacy did not exist under the Indian Constitution and therefore any challenge to the Aadhaar scheme on grounds of privacy were without merit.

In recognising the constitutional right to privacy, the Court highlighted the interplay between the freedom of expression and privacy. In particular, it observed, “Freedom of speech and expression is always dependent on the capacity to think, read and write in private and is often exercised in a state of privacy, to the exclusion of those not intended to be spoken to or communicated with.”

The Court also made an important statement on the status of civil and political rights in India. The Government of India argued that privacy is an elitist construct, and must give way to more important considerations such as welfare of the majority of India. In this context, the Court observed, “The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised through history to wreck the most egregious violations of human rights. Above all, it must be realised that it is the right to question, the right to scrutinize and the right to dissent which enables an informed citizenry to scrutinize 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 power to scrutinize and to reason enables the citizens of a democratic polity to make informed decisions on basic issues which govern their rights. 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.”

The Court further noted the importance of international human rights instruments, stressing, “The right to privacy has been traced in the decisions which have been rendered over more than four decades to the guarantee of life and personal liberty in Article 21 and the freedoms set out in Article 19. In addition, India’s commitment to a world order founded on respect for human rights has been noticed along with the specific articles of the UDHR and the ICCPR which embody the right to privacy.” On future treatment of international human rights, the Court laid down, “constitutional provisions must be read and interpreted in a manner which would enhance their conformity with the global human rights regime. India is a responsible member of the international community and the Court must adopt an interpretation which abides by the international commitments made by the country particularly where its constitutional and statutory mandates indicate no deviation.”

ARTICLE 19 welcomes the Supreme Court’s judgment as important reminder that privacy is a necessary prerequisite for the meaningful exercise of freedom of expression, particularly in the digital age. This judgment is likely to have far-reaching implications for the protection of privacy in India, from the decriminalisation of homosexuality to the protection of personal data. We particularly welcome the reaffirmation of India’s commitment to the international human rights regime, with the judgment drawing from the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), comparative law, and also recognising the necessary and proportionate principles.  The judgment is also in line with ARTICLE 19’s Global Principles on Protection of Freedom of Expression and Privacy.

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