Right to privacy is a fundamental right, holds SC

A nine judge constitutional bench of the Supreme Court has unanimously held that the right to privacy is a fundamental right and finds recognition in Articles 14, 19, and 21 of the Constitution. The issue of whether an inalienable right to privacy is recognized in the Constitution was referred to this bench by a smaller bench before which the question of validity of the ‘Aadhar card scheme’ is pending.

While the main issue has been decided unanimously by the bench, the issue of contours of the right to privacy has been dealt with differently in each of the six opinions rendered by the Court. The court has explicitly recognized the feminist critique of the separation of public and private spheres in law, and has thus construed the right to privacy as not only privacy of one’s physical body, but also informational privacy, and the right to privacy of choice and autonomy over fundamental personal choices. Significantly, in a detailed opinion, the Court has expressed its disagreement with the reasoning in the case ofSuresh Kumar Koushal v Naz Foundation which recriminalized homosexuality, underscoring the importance of recognising the privacy rights of all individuals regardless of their sexual orientation.

While the exact components of the right to privacy can only be determined on a case to case basis, the Court has set forth a strong framework that may have wide ranging implications, not only on data privacy laws, but also in areas such as mandatory reporting of offences, criminalization of non peno-vaginal sexual intercourse, reproductive and sexual health rights, matrimonial laws, the right to choice of food, and so on.

For full judgment document, click here.