Introduction
The quest for the right to privacy has indeed been rather sluggish but continuous in India, and one could argue that we have made significant progress, from M.P. Sharma and Ors. v. Satish Chandra (1954) until Puttaswamy & Ors. v. Union of India and Anr (2017). The Indian Judiciary has played a vital role in the journey of privacy being declared a fundamental right. Even though the Indian Constitution did not explicitly acknowledge privacy as a right, various judicial decisions over these many years silently and meticulously kept building the privacy jurisprudence of the country one step at a time, until it was finally declared as such.
Nevertheless, despite acknowledging the expansion of the right throughout the world during that period, one can wonder why it took the Indian judiciary so long to recognise a right that was always a part of Article 21. In P. Ramachandra Rao v State of Karnataka five-judge bench of the apex court observed that law can be declared[1],interpreted and even evident gaps and inconsistencies can be filled in by issuing suitable guidelines; however, the courts cannot encroach on the legislative domain that is rightfully the prerogative of the legislature. However, in Vishakha & Ors. v State of Rajasthan & Ors. the apex court under Article 32 in order to uphold the fundamentalrights of the women citizens issued guidelines to be followed in every organisation and place of work even in absence of parallel legislation to ensure credible implementation of the fundamental human right to gender equality as well as protection from the sexual exploitation of women, especially in a workplace environment. The court further, declared under Article 141 that till appropriate legislation is not enacted these guidelines must be regarded as the law.[2]
One may argue that the Vishakha and the Puttaswamy were totally different cases and are a couple of decades apart but there is one similarity between the two apart from thefact that both were based on the enforcement of the fundamental rights of the people. In both situations even though India is a signatory to various corresponding international conventions, the Indian legislature failed to safeguard the basic rights of its citizens by enacting appropriate legislation to that effect under Article 243. With respect to safeguarding the rights of women against sexual harassment at workplaces India signed and ratified the UN Convention on the Elimination of Discrimination Against Women (CEDAW) in 1994, however, no domestic law was laid down to upholdthe objectives of the convention until 1997 when the apex court had to intervene and issue guidelines after a heinous crime against a woman were committed. Surprisingly, the Indian legislature did not take the matter of women’s safety seriously thereafter too and the guidelines of the court were treated as law till 2013 when finally, our legislature woke up from its slumber and enacted the Sexual Harassment of Women in the Workplace (Prevention, Prohibition and Redressal) Act.
So is the case with the right to privacy. India has signed and ratified both the UHDR, 1948 as well as the ICCPR, 1966 still there is a vacuum of consequent legislation to honour these international conventions to ensure the protection of privacy rights in the country. Article 12 of the UHDR recognises privacy as a basic human right whereas Article 17 of the ICCPR imposes the duty on the signatory nations to adopt corresponding domestic laws respecting the right. In Vishakha the court had observed that to interpret the rights and freedoms availableunder Articles, 14, 15, 19(g) as well as 21, the provisions of corresponding international[3][i]that effect. Then it is difficult to understand why the court didn’t take a similar stance to acknowledge the fundamental stature of privacy rights in India when various related issues were brought before it in the past forty-two years since the court recognised the value of privacy in a person’s life in 1975 in Govind[4]Justice Mathew while penning the Govind judgement very well knew that whatever he states will not overrule the Kharak Singh judgement of the six-judge bench, even if he was unanimously supported by the other two judges on the bench. He was evidently uncomfortable with the judgement in Kharak Singh that considerably took notice of the characteristics of privacy and developed a solid case in support of the right but eventually concluded that the Indian Constitution did not explicitly provide the right to privacy.
Even after implicitly acknowledging privacy as a right in the Govind case and very well being aware of the fact that it could not overturn the judgement of the Kharak Singh case why didn’t the court refer the issue regarding privacy to a larger bench as it did during the Aadhaar proceedings? No doubt the Govind case ignited the debate on this long overdue issue, but one may often wonder if the court could have done more than what it did then, even though the departure from Kharak Singh was a welcome one.
Maybe none of the previous matters deeply threatened the privacy of the citizens as the Aadhaar project did, or the citizens became more self-aware as the years went by of their obvious rights. Or perhaps over the years, people got more conscious of the detrimental effects that technology had on their personal life. Because of a longstanding, deep-seated suspicion of the government and the vast amount of personal information, it may collect through this technology-driven project, the entire country looked up to the Hon’ble Supreme Court to safeguard their personal data and privacy in the digital age. And this time the court did not disappoint the nation by declaring the right to privacy a fundamental right guaranteed by the Constitution under Article 21, though the legislature is yet catching up in the setting up of the statutory framework to lay out the contours of the said right.
[1][1]2002(4) SCC 578
[2]AIR 1997 SC 3011.
[4]Supra note 125.