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Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to
stand against the tide of conformity in creating a zone of solitude, the court said.
The nine-judge bench was necessitated because while several judgments in the past
40 years have held that there is a common law right to privacy against other
individuals and entities these rulings did not unequivocally empower the citizen
vis-a-vis the state. In 2015, during the litigation on the Aadhaar scheme, Attorney
General Mukul Rohatgi had argued that the legal position regarding the existence
of the fundamental right to privacy is doubtful. Drawing on two Supreme Court
verdicts M.P. Sharma vs Satish Chandra, 1954 and Kharak Singh vs State of UP,
1962 the attorney general had argued that the Constitution does not guarantee a
right to privacy. Thursdays judgment is a departure from such narrow and
textual interpretations of the Constitution.
Privacy with its attendant values assures dignity to the individual and it is only
when life can be enjoyed with dignity can liberty be of true substance. Privacy
ensures the fulfillment of dignity and is a core value which the protection of life
and liberty is intended to achieve, it states. At another place, it notes, The dignity
of the individual, equality between human beings and quest for liberty are the
foundational pillars of the Indian Constitution.
DEFINING fundamental rights in a manner that expands their scope has been an
evolutionary process in most mature democracies. The US, for example, has moved
away from mooring its Right to Privacy in the Fourth Amendment fundamentally
about property rights to situating the right under other guarantees in the
countrys Constitution. Since the 1970s, its highest court has drawn out the Right to
Privacy from the Concept of Ordered Liberty, the Right to Freedom of Association
and the Right Against Self-Incrimination.
Thursdays Supreme Court verdict is in the same spirit: The attempt of the court
should be to expand the reach and ambit of the fundamental rights rather than
attenuate their meaning and content by process of judicial construction, it says.
This articulation should shine the light on future jurisprudence pertaining to
fundamental rights.
There is another important lesson for future juries democratic societies require
their judiciary to self-correct. Thursdays verdict subjects some past decisions of the
Supreme Court to the test of constitutional propriety and annuls the ones found
wanting. The ADM Jabalpur v Shivakant Shukla case, in 1976, for example. The
court had then ruled that presidential consent was sufficient to annul the right to
liberty of a person who was under preventive detention. This 41-year old verdict
was critiqued by the court on Thursday as seriously flawed. Life and personal
liberty are inalienable to human existence. These rights are primordial rights. They
constitute rights under natural law.
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