The nine-judge Constitution Bench’s decision upholding privacy as a fundamental right for all Indians came with five concurring opinions, all of which examine the concept of privacy and what the implications of the verdict might be. One of the key issues, naturally, when discussing a complex matter that emerges from the Constitution but is not explicitly defined within it, is arriving at a definition. What does privacy actually mean?
All nine judges on the bench unanimously ruled that privacy is a fundamental right that emerges from Article 21 of the Constitution, which guarantees a right to life and personal liberty. Their reading of the definition of privacy also emerges from life and liberty, with various understandings of how those two concepts can be expanded.
Justice SA Bobde, for example, takes on the question of what is privacy by examining what it is not. “We understand justice as the absence of injustice, and freedom as the absence of restraint,” he said. “So too privacy may be understood as the antonym of publicity.” Others fall back on extant definitions that can apply to the Indian Constitutional imperatives. Justice J Chandrachud’s opinion has a lengthy section on the essential nature of privacy that could easily be quoted in full.
Below, excerpts from each of the concurring opinions covering what privacy means.
Justice DY Chandrachud, signed by Chief Justice of India JS Khehar, Justice RK Agrawal and Justice S Abdul Nazeer
“Life is precious in itself. But life is worth living because of the freedoms which enable each individual to live life as it should be lived. The best decisions on how life should be lived are entrusted to the individual. They are continuously shaped by the social milieu in which individuals exist. The duty of the state is to safeguard the ability to take decisions – the autonomy of the individual – and not to dictate those decisions.
“What, then, does privacy postulate? Privacy postulates the reservation of a private space for the individual, described as the right to be let alone. The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality. The notion of privacy enables the individual to assert and control the human element which is inseparable from the personality of the individual. The inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life.
“Privacy lies across the spectrum of protected freedoms. The guarantee of equality is a guarantee against arbitrary state action. It prevents the state from discriminating between individuals. The destruction by the state of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary state action. Privacy of the body entitles an individual to the integrity of the physical aspects of personhood. The intersection between one’s mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self-determination. When these guarantees intersect with gender, they create a private space which protects all those elements which are crucial to gender identity. The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual. Above all, the privacy of the individual recognises an inviolable right to determine how freedom shall be exercised. An individual may perceive that the best form of expression is to remain silent. Silence postulates a realm of privacy. An artist finds reflection of the soul in a creative endeavour. A writer expresses the outcome of a process of thought. A musician contemplates upon notes which musically lead to silence. The silence, which lies within, reflects on the ability to choose how to convey thoughts and ideas or interact with others. These are crucial aspects of personhood.”
After many examples of what privacy may entail, in the conclusions of the opinion, Chandrachud distills the various threads on what privacy is.
“Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being.”
Justice J Chelameshwar
“Gary Bostwick suggested that there are in fact, three aspects of privacy – ‘repose’, ‘sanctuary’ and ‘intimate decision’. ‘Repose’ refers to freedom from unwarranted stimuli, ‘sanctuary’ to protection against intrusive observation, and ‘intimate decision’ to autonomy with respect to the most personal life choices...
For the purpose of this case, it is sufficient to go by the understanding that the right to privacy consists of three facets i.e. repose, sanctuary and intimate decision. Each of these facets is so essential for the liberty of human beings that I see no reason to doubt that the right to privacy is part of the liberty guaranteed by our Constitution.”
Justice SA Bobde
“‘Privacy’ is ‘[t]he condition or state of being free from public attention to intrusion into or interference with one’s acts or decisions’. The right to be in this condition has been described as ‘the right to be let alone’. What seems to be essential to privacy is the power to seclude oneself and keep others from intruding it in any way...
“Privacy has a deep affinity with seclusion (of our physical persons and things) as well as such ideas as repose, solitude, confidentiality and secrecy (in our communications), and intimacy. But this is not to suggest that solitude is always essential to privacy. It is in this sense of an individual’s liberty to do things privately that a group of individuals, however large, is entitled to seclude itself from others and be private. In fact, a conglomeration of individuals in a space to which the rights of admission are reserved – as in a hotel or a cinema hall –must be regarded as private. Nor is the right to privacy lost when a person moves about in public. The law requires a specific authorization for search of a person even where there is suspicion. Privacy must also mean the effective guarantee of a zone of internal freedom in which to think.
“It is not possible to truncate or isolate the basic freedom to do an activity in seclusion from the freedom to do the activity itself. The right to claim a basic condition like privacy in which guaranteed fundamental rights can be exercised must itself be regarded as a fundamental right. Privacy, thus, constitutes the basic, irreducible condition necessary for the exercise of ‘personal liberty’ and freedoms guaranteed by the Constitution. It is the inarticulate major premise in Part III of the Constitution.”
Justice Rohinton Fali Nariman
“In the Indian context, a fundamental right to privacy would cover at least the following three aspects:
• Privacy that involves the person i.e. when there is some invasion by the State of a person’s rights relatable to his physical body, such as the right to move freely;
• Informational privacy which does not deal with a person’s body but deals with a person’s mind, and therefore recognizes that an individual may have control over the dissemination of material that is personal to him. Unauthorised use of such information may, therefore lead to infringement of this right; and
• The privacy of choice, which protects an individual’s autonomy over fundamental personal choices.”
Justice Abhay Manohar Sapre
“I, therefore, do not find any difficulty in tracing the “right to privacy“ emanating from the two expressions of the Preamble namely, ‘liberty of thought, expression, belief, faith and worship’ and ‘Fraternity assuring the dignity of the individual’ and also emanating from Article 19 (1)(a) which gives to every citizen ‘a freedom of speech and expression’ and further emanating from Article 19(1)(d) which gives to every citizen ‘a right to move freely throughout the territory of India’ and lastly, emanating from the expression ‘personal liberty’ under Article 21. Indeed, the right to privacy is inbuilt in these expressions and flows from each of them and in juxtaposition.”
Justice Sanjay Kishan Kaul
“The right of privacy is a fundamental right. It is a right which protects the inner sphere of the individual from interference from both State, and non-State actors and allows the individuals to make autonomous life choices. It was rightly expressed on behalf of the petitioners that the technology has made it possible to enter a citizen’s house without knocking at his/her door and this is equally possible both by the State and non-State actors. It is an individual’s choice as to who enters his house, how he lives and in what relationship. The privacy of the home must protect the family, marriage, procreation and sexual orientation which are all important aspects of dignity. If the individual permits someone to enter the house it does not mean that others can enter the house. The only check and balance is that it should not harm the other individual or affect his or her rights. This applies both to the physical form and to technology. In an era where there are wide, varied, social and cultural norms and more so in a country like ours which prides itself on its diversity, privacy is one of the most important rights to be protected both against State and non-State actors and be recognized as a fundamental right..”
