Sample Material of Current Public Administration Magazine
Right to Privacy
Privacy, dignity and Sexual Autonomy
- By Apar Gupta
One of the lowest points in the history of the Indian Supreme Court has been
when during the proclamation of Emergency, it refused to enforce fundamental
rights. By its decision in ADM Jabalpur v. Shivakant Shukla the court agreed
with the government to suspend fundamental rights thereby permitting it to hold
people in detention, without any opportunity to move court. More importantly, it
gave wide police powers to the government to pursue state interests at the cost
of fundamental rights. This very tension between the government and the
individual came into play in the right to privacy hearings which have delivered
a historic judgement.
The right to privacy was a constitutionally accepted and applied right
recognised by an interpretative device of the Supreme Court since 1975. Over the
decades, more than 30 decisions of the apex court applied privacy as a bundle of
rights that permitted liberty of thought and action. Some instances include
safeguards against indiscriminate phone tapping, narco analysis and even bodily
integrity. However, about two years ago, this was thrown into doubt when in the
midst of the hearings of the Aadhaar case the government disputed the very basis
of the right to privacy. To be fair, this was a technical argument that required
an answer due to judicial propriety, though it lacked substantive merit.
Yesterday, nine judges of the Supreme Court said in one voice and six judgements,
that the right to privacy is inherent in our fundamental rights.
Lawyers will, over the next few weeks, spend substantial time debating its
reasoning but there are a few noticeable features which are clearly evident. The
constitutional right to privacy is no longer in any dispute and stands on firm
ground. Its breadth is established over the entire chapter of fundamental
rights, which include equality, free expression, right to life, religion. This
also means the Aadhaar cases will now proceed for arguments on their merits
which were gridlocked due to this pending decision. But this case goes far
beyond Aadhaar and holds the promise of renewing the vitality of the complete
spectrum of civil liberties. For instance, the judgement quite clearly
establishes the link between privacy, dignity and sexual autonomy. In doing
this, it undercuts the basis of another dark stain on the history of the court
when three years ago in the Suresh Koushal v. Naz Foundation case, the court
refused to strike down Section 377 of the Indian Penal Code. It is now only
matter of time when the case will be formally overruled.
The basis of this is a key recognition of the nature of privacy being a
natural right. The Supreme Court, by stating that the state does not bestow
privacy, also has limited its ability to take it away. While recognising that
even natural rights are subject to limitations, high thresholds are prescribed.
This follows the reasoning of Justice H.R. Khanna in the ADM. Jabalpur case who
wrote the sole dissent at a time when confronting the government with
constitutionalism seemed impractical. Justice Khanna put his ascendance to the
chair of the Chief Justice of India in peril by stating that the government of
the day could not destroy fundamental rights. But losing against the majority he
fashioned his dissent as an, “appeal to the brooding spirit of the law, to the
intelligence of a future day”. This was an act of constitutional principle and
judicial courage. Recognising his call, our Supreme Court has finally overruled
ADM Jabalpur, but will our court assimilated the principles of
Right To Privacy Is A Fundamental Right, Says SC
While the privacy judgement is a cause for celebration, its full benefit will
only come when it is applied to actual state actions that undermine privacy.
Adherence to constitutional principle is not an academic exercise, but requires
a prompt protection of real rights and liberties. Judicial action should spring
at moments when the state oversteps onto the citizen. Few would dispute that
determinations on privacy would be of greater benefit when the Supreme Court
protects us with foresight rather than retrospect.
It is necessary to recognise that the government has not only wagered the
right to privacy in the Supreme Court but has taken various measures to threaten
it. Hence, the true test of the privacy judgement will be in its subsequent
application to state actions when it sets boundaries and provides safeguards.
This includes the Aadhaar batch of decisions which have not been comprehensively
heard for more than two years. If the Supreme Court has to truly secure liberty
it has to overrule ADM Jabalpur both in practice and principle.
(Source- The Indian Express)
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