Dhananjay Mahapatra
NEW DELHI: The Supreme Court on Wednesday outlined a three-tier,
graded approach to the question whether privacy is a fundamental right by
examining the issue through its intimate, private and public aspects even as it
reserved its verdict in the case.
Prior to completion of the
two-week-long hearing that attracted arguments for and against conferring
fundamental right status to privacy but which saw all parties accepting its
intrinsic importance for an individual, a nine-judge bench headed by Chief
Justice J S Khehar said privacy
could be configured into three zones.
Justice D Y Chandrachud set out the
tentative thought process and drew support from Justice R F Nariman. He said,
“The first zone could be the most intimate zone of privacy concerning marriage,
sexuality, relations with family and the law should frown upon any intrusion.
The state could still intrude into this intimate zone in extraordinary
circumstances provided it met stringent norms.
“The second zone would be the
private zone, which involved parting of personal data by use of credit card,
social networking platforms, income tax declarations. In this sphere, sharing
of personal data by an individual will be used only for the purpose for which
it is shared by an individual.
“The third is the public zone where
privacy protection requires minimal regulation. Here, the personal data shared will
not mean the right to privacy is
surrendered. The individual will retain his privacy to body and mind.” The
formulation suggests right to privacy may not be unfettered.
The bench, also comprising Justices
J Chelameswar, S A Bobde, R K Agrawal, A M Sapre, Sanjay Kishan Kaul and S
Abdul Nazeer, realised the difficulty in a straitjacket interpretation of
constitutional status of right to privacy, it being linked to liberty which has
visible footprints on several fundamental rights
guaranteed in Part-III of the Constitution.
The fledgling service sector, which
is growing at a faster pace than the industrial sector, provided food for
thought. Justice Chandrachud said, “We are dealing with an issue that has an
impact on what constituted India as a powerhouse for growth of service
sector. The analysis of choices and personal preferences of 1.4 billion and the
analysis of this generates demand in the service sector. In defining the right
to privacy, we must keep in mind this critical sector which depends on personal
data of Indians using a particular
service.”
When the bench was stressing on the
sacrosanct tag attached to right to privacy in the US constitution, senior
advocate Rakesh Dwivedi, arguing for Gujarat government, said, “If right to
privacy was so sanctified in the US constitution, how could US forces invade
privacy of a house (in Pakistan) to eliminate Osama bin Laden? Privacy
is a fluid term incapable of being defined, for it changes contours depending
on situations.”
He agreed with the bench that
privacy was intrinsic to many fundamental rights. “If privacy is intrinsic to
many fundamental rights, where is the necessity of defining it as a standalone
fundamental right? Can the Supreme Court fathom all hues of privacy to present
it as a homogeneous right capable of standing alone and aloof from other
fundamental rights,” he asked.
Source: Economic Tinmes
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