Right to Privacy 7 decades after Independence

1Over the years, the Indian Constitution has been protecting the fundamental rights of its citizens through article 14 to 21, guaranteeing them the right to equality, non-discrimination and dignity to name a few. Despite these articles, there were some loopholes in the constitution which the law makers overlooked. Right to privacy has always been accepted by the Supreme Court but never as a fundamental right.  A nine-judge bench of the Supreme Court headed by the chief justice J. S. Khehar heard the case of Justice A. K. Puttaswamy (Retd.) & Anr. v. Union of India &Ors. They unanimously came to a landmark decision on 24th August declaring privacy a fundamental right under the Indian Constitution. Nine-judge benches are rare sightings and the consensus drawn by the court is bound to hold the field for a few generations to come.

So, how then did this case come before a nine-judge bench? It all started when the constitutional challenges to the Aadhaar scheme were being raised before a three-judge bench on August 11, 2015. The Union of India argued that the challenge against it, which was based on the right to privacy, could not be raised as this right wasn’t guaranteed in the Indian Constitution. The Union of India relied upon two early judgments which contained observations suggesting that there may not be a fundamental right to privacy. They argued that most of the other judgments which had held that there was a fundamental right to privacy were passed by smaller benches, and therefore couldn’t be raised. It was in response to this that the Court passed an order referring the case to a higher bench. This is when the court reached a nine-judge bench in the SC headed by CJI. This case was argued over seven days and then in a landmark judgement, the bench unanimously made privacy a fundamental right.

So by pronouncing right to privacy as a fundamental right, the Supreme Court has actually given the citizens something that cannot be taken away even by the Government, Court or Act. Not only will this judgement put Aadhar Act to a test but also will it raise questions on the article 377 of the Indian Penal Code which criminalizes any sexual activity between two individuals which is against the “order of nature”. By which they imply the illegality of lesbians, gay, bisexuals and trans-genders. Right to privacy might turn out to be a huge support for the LGBT supports as a person’s sexual orientation is a private affair over which the state should have no say.

Over a week, 3 bold decisions have been taken by the judiciary. On 22nd August instant triple talaq was rightfully done away with, putting Muslim men and women on an equal stand before the eyes of the law. On 24th August, Right to Privacy was declared a fundamental right & the very next, on 25th August a high profile and powerful self-proclaimed god-man, Ram Rahim Singh was convicted in a rape case. These landmark decisions shall henceforth serve as the “beau ideal” for the judiciary.

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