Right to Privacy By Prathik Karthikeyan from Jindal Global Law School
In the Supreme Court’s latest deliberations the Supreme Court said something very unbecoming of their learned stature: "Can this court define privacy? You can't make a catalogue of what constitutes privacy. Privacy is so amorphous and includes everything... if we make any attempt to catalogue privacy it will have disastrous consequences," said the constitution bench. Re-reading that statement it begs the question are these highly seasoned, highly educated judges, the upholders of the law actually afraid of assuming responsibility to interpret the law which is one of their primary responsibilities of the Supreme Court of India. Sure they may redeem themselves for their faulty logic by saying “that the right to privacy does not necessarily co-exist with data protection”, Which is what the current case before the supreme court is about but it does not absolve the court of the onus of deliberating in length on the possibility that the Right to Privacy is part of the Right to Life and personal liberty under Article 21 of the Indian Constitution. It is ludicrous on two fronts what the Supreme Court Bench is claiming, firstly that it is not possible to define the right to privacy and secondly that Article 21 cannot allow for the provision of the right to privacy.
Firstly To say that it is impossible to define privacy is one of two things a blatant lie or saying that an Indian court cannot do it considering that countries across the world have upheld the right to privacy and defined and codified it as a part of their law. Article 8 of the European Court of Human Rights lays down a Right to Privacy, moreover the Supreme Court of India can take direction from the very well coded Article 7 and Article 8 of the European Charter of Fundamental rights which not only provides for a very good definition of Privacy but also talks about personal data which is the crux of the Aadhar discussion, it not only places reasonable restrictions on the right which is the concern of the court but also protects individual citizens from a breach of their privacy and is certainly a better alternative than saying that the Right to Privacy simply isn’t there in India. Furthermore the constitution of the United States of America doesn’t mention the words privacy but they flow from the 1st, 4th and the 14th Amendment, moreover the 9th Amendment declares boldly that the fact that a right is not explicitly mentioned in the Constitution does not mean that the government can infringe on that right. Hence the argument that the word Privacy isn’t mentioned in the Indian Constitution does not mean that it is not implied is fallacious because our fundamental rights section was inspired by that of the United States Bill of Rights and has been widely regarded as more elaborate and more wide reaching, the Supreme Court cannot simply shift the burden before them which is to lay down the law and to do this they can take the help of other countries with older and more established legal systems as we have done so in the past, it does not suffice to say that it is not possible to do so. As for their fear of backlash, has there been any impairment in law and order in Europe and USA as a result of privacy, the answer is simple and resounding NO. So why cannot a similar approach be adopted in India, we are after the world’s largest democracy and democratic tradition demands that each citizen has the right to privacy so by sheer base logic, India cannot afford to lag behind in maintaining its rich democratic tradition.
On the second contention of that Article 21 cannot be expanded to include privacy is illogical in the fact that the Supreme Court in the past has held that a right to a clean environment and the right to sleep has been included under it, they are hard pressed to find a cogent logic as to why they cannot have privacy under it considering it is easier to prove that privacy is more in line with personal liberty and dignity than a clean environment and sleep.
In summation the Supreme Court must not shrug the responsibility placed on it and uphold the Right to Privacy boldly and not shy away from their constitutional duty of clarifying and strengthening the law for the private citizens of this country. As for the Supreme Court’s discomfort with holding the Right to Privacy due to a fear that it would compromise the Naz Foundation Judgment more popularly known as the Section 377 case 2, it is nothing less than cowardice along with the fact that it was indeed a travesty and they have the opportunity to overcome two huge shortcomings of the Indian judiciary and they desperately need to do so to restore the faith of the people in the Law.
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