(On 24 August 2017, a nine-judge bench of the Supreme Court unanimously affirmed that privacy is a fundamental right under the Constitution of India. One year on, The Quint looks back at what the judges said, and why the historic judgment is so important for all of us.)
With multiple Game of Thrones leaks and the Triple Talaq chaos, it has been a week of spoiler alerts and heart attacks. Today, however, we woke up to the Supreme Court finally stating the obvious – privacy is a fundamental right under the Constitution.
This is important because it would subsequently answer several other questions: Is the Aadhar scheme legal? (to be decided) Can the government look at your browsing history? (maybe) Will the padoswaali aunty finally stop asking you about marriage plans? (Nope)
In the age of data surveillance, having a fundamental right to privacy is akin to having dragons while facing wights. Let us thus break this historic judgment down, in the way our Constitution’s drafters originally intended us to – with gifs.
Overruling Two Ancient Judgments
Previously, the Supreme Court in two judgments (decided by 8 and 6 judges respectively) had held that right to privacy isn’t fundamental, and thus not protected under the Constitution. This was in 1954 and 1964 and the judgments now stand overruled, on grounds of being ‘unwoke’.
Not in the Constitution? No Problem
There is no explicit mention of privacy in our Constitution, so it amazed the government that we could demand this suddenly after 67 years of cultural and technological advancement.
SC held that the problems which are faced by contemporary society could not have been predicted (Snapchat screenshots should be deemed unlawful, ngl). As the Three-Eyed Raven was not one of our Constitution drafters, it was impossible for them to foresee the future. Thus, the Constitution must be kept flexible and adaptable to a growing knowledge economy.
Implications – Sec 377!
Much like shattering the Night King kills the wights, this historic smack down of the government’s flimsy arguments against privacy will take a lot of garbage down with it.
Most importantly, it will affect Sec 377 of the IPC, which criminalises ‘unnatural’ consensual sexual acts, such as those between the same gender. As the majority judgment held:
The constitutional challenge to Sec 377 is still pending before the Supreme Court. *Fingers crossed*
Not a “Common Law” Right, aka No Baby With a Dingo
The government argued that privacy is a common law right, not a fundamental one. What that implies is that the government will protect our privacy to the the extent it deems necessary, via laws. Hence, it is “unnecessary” to have a constitutional protection for the same.
To quote John Oliver, this is the equivalent of trusting your baby with a dingo, and a Night King with an undead dragon. Sorry, government. SC ruled that something this important cannot be placed at the whims of ‘popular opinion’ or ‘legislative majority’, and requires constitutional protection. Some shade was also thrown:
Urban Poor Can Have Fundamental Rights Too
Right to privacy was criticised as an ‘elitist, foreign concept’ that would only affect a few people, and hinder development, somehow. This, TBH, sounds like the legal version of the urban poor argument.
SC, however, held that the right to privacy concerns every individual irrespective of social strata or economic well being. It is not a privilege of the few, but a powerful guarantee against unlawful state actions.
Extent of the Right
SC chose not to define or limit the contours of right to privacy. Although, some judges did say that it should extend to your ability to make decisions (to not be an engineer), preserve the inviolability of your body (to not be strip searched without a warrant) and the sanctity of your mind (to not be subjected to a narco-analysis when you come home late from a party).
Data Protection, So You Can Continue Instagramming
We all agree to “Terms of Service” after having *totally* read them, post way too many photos, and give out a lot of personal data online. We reveal more information than what we realise, and companies are more than happy to mine it and use it for targeted advertising. We’ve also been saddled with an unsecured mandatory national biometrics database linked to bank accounts, tax returns, mobile numbers and our entire life.
To prevent this, SC has asked the government to formulate robust data protection laws which would hopefully prevent leaks and unauthorised use of your totally innocuous Snaps.
Reasonable Restrictions
Right to privacy, like all fundamental rights, is subject to certain restrictions. The State can curtail the right by a) passing a law for that effect b) for a legitimate aim, such as national security or prevention of crime and c) proportional for the same.
So unless you’ve been engaging in some serious unlawful activities, your browser history is safe.
Aadhaar Card
The elephant in the room remains and trumps to the tune of the Imperial March. The entire circus began with the constitutional challenge to Aadhar, which was paused while the Court decided on the right to privacy. Now, a 3 judge bench will decide on the validity of the Aadhar itself, and whether it passes the tests laid down in today’s judgment.
Does gathering biometric and personal data violate our fundamental right to privacy? The 9 judge bench made no comments on the same, but hopefully we’ll have an answer soon.
Regardless of the Aadhar, this is a historic judgment which will have repercussions for decades to come, in many facets of the Indian citizens’ lives. While it may not stop the padoswaali aunty or your aunt’s cousin’s nephew from inquiring into your career plans, it will stop the State from invading your personal privacy and wrongfully gathering and using your data.
Thanks, SC. The North will remember.
Disclaimer: Several aspects have been simplified for the sake of clarity. 6 judgments have been given by the SC today. While all agree on right to privacy being a fundamental right, several judges have differed on certain points. You can read a detailed analysis here and the full judgment here.
(The author is a lawyer who has written under a pen name and can be found on Twitter @secondofhername.)
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