By Mehak Sharma
The recent verdict of Supreme Court on the question of Right to Privacy as a part of Fundamental Right has once again opened up the debate on whether the Right to Privacy needs to be counted as a Fundamental Right or not? But the question that one needs to be raised is that why such debate and confusion on the issue of considering the Right to Privacy as a Fundamental Right especially when the Right to Life and Personal liberty is already given to us as a Fundamental Right under Article 21 of the Indian Constitution. Article 21 declares that no person shall be deprived of his or her life or personal liberty except according to the ‘procedure established by law’, which is different from the expression ‘due process of law’ provided in the American Constitution. Hence, the validity of a law that has prescribed the procedure can’t be questioned on the ground that the law is unjust, unfair or unreasonable.
The debate on the issue is not new. For the first time, the matter of the right to privacy was raised in the case of Kharak Singh v. State of UP wherein the Supreme Court held that Regulation 236 of U.P. Police Regulation which permitted surveillance by ‘domiciliary visits at night’ was unconstitutional as it clashed with Article 21 of the Indian Constitution. It was held by the Court that the right to privacy is a part of right to protection of life and personal liberty. Similarly in the Maneka Case (1978), the Supreme Court overruled its earlier judgment by taking a wider interpretation of the Article 21 saying that the expression ‘Personal Liberty’ is of the widest amplitude and covers a variety of rights that go on to constitute the personal liberties of a man such as Right to live with human dignity, right to decent environment, right to shelter, right to health, right to free education up to age of 14 years, right to fair trial, right against public hanging, right to privacy and so on. Right to life also means the right to lead a meaningful, complete and dignified life. All these rights such as right to health, shelter, privacy go on to make a man’s life meaningful, complete and worth living because all of these rights are means for one to develop. Amartya Sen has rightly said that ‘Freedoms are not only the primary ends of development, they are also among its principle means’. Also, right to privacy is something that cannot be segregated from the right to personal liberty. According to Bruce Schneier, “Liberty requires security without intrusion, security plus privacy”. In Pucl v. Union of India case, the Supreme Court observed that:
We have; therefore, no hesitation in holding that right to privacy is a part of the right to “life” and “personal liberty” enshrined under Article 21 of the Constitution. Once the facts in a given case constitute a right to privacy; Article 21 is attracted. The said right cannot be curtailed “except according to procedure established by law”.
So, right to privacy is something that has already believed to be an intrinsic to life and personal liberty of a person. Then, why such debate on the issue? However, it is true that the Indian Constitution has put up limitation upon the right to life and personal liberty by declaring that no person shall be deprived of this right except according to the procedure established by law. This means that the state can deprive the right to life and personal liberty of a person based upon the law. This is because of the expression ‘procedure established by law’ in Article 21, which is different from the expression ‘due process of law’, contained in the American Constitution.
Hence, the validity of a law that has prescribed a procedure cannot be questioned on the ground that the law is unreasonable, unjust and unfair. But, in the Maneka Case, the Supreme Court declared that the right to life and personal liberty of a person can be deprived by a law provided the procedure prescribed by that law is reasonable, fair and just. An implementation of law making Aadhaar Card compulsory for the Citizens was based on ground of identifying citizens of the state so as to maintain the security of the state. Security of the State is something that has been already been provided in the Constitution as one of the limitations upon Fundamental rights. But the question that one needs to be raised is that What kind of threat to the Security of the state Indian government was facing, that all the citizens of the state required to be put under surveillance through Aadhaar card, ignoring their right to privacy that is intrinsic to life and personal liberty of a person? Also, such violation of privacy enables discrimination. Bezwada Wilson talked of how people like manual scavengers do not want to be identified. Such violations dis-enable people to live their life with dignity.
—The author is pursuing her PhD in Political Science from the Jawaharlal Nehru University. She can be reached at: Mehakzindagi10@gmail.com