Supreme Court of India Declares Privacy Is a Fundamental Right
At the end of August, the Supreme Court of India unanimously held that the Constitution of India specifically protects the right to privacy, which it concluded is inherent to constitutional guarantees of life and liberty pursuant to its Article 21 and, therefore, already exists as a fundamental freedom enshrined in the Constitution. See Justice K.S. Puttaswamy (Retd) vs. Union of India, (2017) (India) (opinion of Chandrachud, J.), at 110, 254, 257, 262. The decision arose from a case challenging the constitutionality of the country’s system of using biometrics to identify individuals. For the case to move forward, the nine judges of the Supreme Court of India had to first determine whether the Constitution of India protects the right to privacy. See id. at 7. Affirming the right, the court’s decision was in accordance with international standards on privacy; the court confirmed that individuals have a zone of privacy limited by others’ rights and that the State may interfere with the right to privacy only through established law in pursuit of a legitimate aim and when necessary in a democratic society. See id. at 180-91, 242-46. The constitutional challenge to the biometric identification system will now resume, taking into account the privacy framework decided by the court.
According to Human Rights Watch (HRW) the ruling in the present case will not only have an impact on national policies concerning mandatory identification programs, but also other domestic issues, such as sexual orientation; the opinion explicitly states that sexual orientation is essential to privacy and identity, and discrimination on the basis of sexual orientation is counter to dignity. A challenge to India’s law criminalizing same-sex relations is also currently pending in court. [HRW] See id. at 124. The decision already overruled two prior domestic cases that held the right to privacy is not specifically protected under the Constitution of India. See Justice K.S. Puttaswamy (Retd) vs. Union of India, (opinion of Chandrachud, J.), at 5.
Right to Privacy
The court analyzed the essential nature of privacy and concluded that privacy is based on the autonomy of the individual, which creates a zone of privacy to which one has a right; that privacy is a subset of liberty because through the individual choices made in the zone of privacy, an individual can determine the boundaries of their liberty; and that privacy is an essential aspect of dignity. See Justice K.S. Puttaswamy (Retd) vs. Union of India, (opinion of Chandrachud, J.), at 242-245. Furthermore, in order to determine the extent of the application of the right to privacy, the court concluded that its scope is determined by both the subjective expectation of an individual and the objective reasonableness of that expectation. See id. at 246. Therefore, the rights of others places a limit on an individual’s personal choices. See id.
Finally, the court explained that the right to privacy is not absolute, and that any infringement on this right must meet three requirements. See id. at 264. A law must exist that justifies the encroachment on the right; the State’s interference in the exercise of the right must be in pursuit of a legitimate State aim; and the interference must be proportional to that aim. See id. The court then noted that where information technology provides personal information, the individual’s interest in privacy and the State’s legitimate interests, such as national security and public health, must be balanced. See id. at 247-52.
The Supreme Court of India analyzed the evolution of the right to privacy in other jurisdictions, including comparative law in other States, as well as, decisions of the European Court of Human Rights (ECtHR), the Court of Justice of the European Union (CJEU), and the Inter-American Court of Human Rights (IACtHR). See id. at 130-131. The ECtHR, the Supreme Court of India noted, upholds the right to privacy under Article 8 of the European Convention on Human Rights (ECHR) and has interpreted the right to privacy to entail a personal sphere that cannot be defined by an exhaustive list. Further, the ECtHR, like the Supreme Court of India, also found that a State’s interference with the right to privacy must be established by law to pursue a legitimate aim and be necessary in a democratic society. See id. at 180-85. The European Union also protects the right to privacy in Article 7 of the Charter of Fundamental Rights of the European Union. The court concluded that the CJEU, like the ECtHR, balances individual and societal interests when deciding issues of privacy. See id. at 181, 190.
The Inter-American system, the Surpeme Court of India stated, protects the right to privacy enshrined in Article 11 of the American Convention on Human Rights. See id. at 190. The IACtHR also links the right to privacy to the dignity and autonomy of the individual, and finds that the right to privacy includes an individual’s right to develop their personality, to determine their identity, and to define their relationships. See id. at 191.
The court overruled two previous domestic cases it had decided – M P Sharma v. Satish Chandra, District Magistrate, Delhi (M P Sharma), and Kharak Singh v. State of Uttar Pradesh (Kharak Singh) – that found that the Indian Constitution does not specifically protect the right to privacy. See id. at 5, 10-15, 261. The court noted that the principles underlying the interpretations in the two cases have changed. See id. at 23. The court found that it is now settled in Indian constitutional law that fundamental rights come from basic notions of liberty and dignity; that any law that infringes a fundamental right must be tested on the basis of its effect on the guarantees of freedom; and that State action regarding constitutional guarantees must not be arbitrary and must be reasonable. See id. at 23-24.
India’s International Human Rights Obligations
The court acknowledged that recognizing the right to privacy is “a part of India’s commitment to a global human rights regime.” See Justice K.S. Puttaswamy (Retd) vs. Union of India, (opinion of Chandrachud, J.), 126. India is obligated to respect international law through Article 51 of the Indian Constitution, the Protection of Human Rights Act of 1993, and through India’s jurisprudence. See id. at 126-129. The Court acknowledged international obligations to recognize the right to privacy under Article 12 of the Universal Declaration of Human Rights (UDHR), and Article 17 of the International Covenant on Civil and Political Rights (ICCPR). See id. at 126.
India has assumed human rights obligations through the ratification of the ICCPR; International Covenant on Economic, Social and Cultural Rights (ICESCR); Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); Convention on the Rights of Persons with Disabilities (CRPD); Convention on the Rights of the Child, and its protocols addressing children in armed conflict and the sale of children, child prostitution, and child pornography; and International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). See OHCHR, Status of Ratification Interactive Dashboard. India is subject to the oversight of universal rights bodies, including the Human Rights Council and its Universal Periodic Review and UN special procedures. Additionally, the treaty bodies associated with the UN treaties India has ratified periodically review its State reports on its implementation of those treaties.