The 9 Bench judgement of the Supreme Court on “Privacy as a Fundamental Right” following the petition of Justice K.S.Puttaswamy and Others, runs into 547 pages of discussion which makes a great material for law colleges as teaching material on a number of earlier judgements. Some of the judgements such as M P.Sharma, Kharak Singh, Maneka and Cooper have been referred to repeatedly and final opinion of the 9 member bench rendered as the final wisdom applicable until another day when a 11 member bench may review and over turn the current finding. Probably this may not happen in our life time and hence this judgement can be considered as a judgement that will be etched in stone for the time being.
It is however also important for us to understand the “Essence” of the entire discussion that is presented in the judgement without being confused with the thoughts that ran in the minds of each of the judges when they wrote their judgement.
It is fashionable to hail the Judgement as “Historic”, “Path Breaking”, etc., and let us also add that the “Words of Wisdom will be etched in stone for times to come”.
However, we also need to consider what is the “Net Effect” of this judgement and does it make any significant difference to our life. If so, the benefits have to be identified and presented separately. If not, we need to consider if all this hype was worth the paper in which it was written on.
The Judgement has been presented in 7 parts including the last partwhich is the “Order” signed by all the 9 judges.
Part I (Pages 1-266) is the common judgement written by four Judges namely Justices Jagadish Singh Kehar, R.K. Agarwal, Dr Y.Chandrachud, and Abdul Nazeer.
Part II (Pages 267-310) is the judgement of Justice Chelameshwar.
Part III (Pages 311-350) is the judgement of Justice S.A. Bobde.
Part IV (Pages 351-472) is the judgement of Justice R.F. Nariman.
Part V (Pages 472-496) is the Judgement of Justice Abhay Manohar Sapre and
Part VI (Pages 497-543) is the judgement of Justice Sanjay Kishan Kaul.
Part VII (pages 544-547) is the order signed by all Judges.
In reading the judgement we need to recognize that Part VII is the operating part of the judgement and all other 542 pages are reflections preceding the final order. Some of the individual judgements may express some “Conclusions” at the end of their parts which can be considered as more than “Reflections” in the body of the individual judgements. In interpreting the judgement, we should try to avoid being confused with “Reflections” and “Individual Conclusions” with the “Order”. “Individual Conclusions not also reflected in the Order” (if any) may be collated to find out if they constitute a “Majority Conclusion” or not. If it is a majority conclusion, it may have greater value.
Keeping this view, let us first record here the final order which is the operating part of the Judgement.
It is as follows:
The reference is disposed of in the following terms:
(i) The decision in M P Sharma which holds that the right to privacy is not protected by the Constitution stands over-ruled;
(ii) The decision in Kharak Singh to the extent that it holds that the right to privacy is not protected by the Constitution stands over-ruled;
(iii) The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.
(iv) Decisions subsequent to Kharak Singh which have enunciated the position in (iii) above lay down the correct position in law.
The entire 547 page judgement therefore has just one line of gist namely that in India, “Right to Privacy” is protected as an intrinsic part of “Right to Life and Personal Property” under Article 21 and as part of the freedoms guaranteed by Part III of the Constitution.
This is the hash value of the judgement as per Naavi algorithm!
We need to then start debating on what difference does this judgement make to the life of
a) An Individual on the street who is the common Citizen whose “Right to Privacy” is being defended by the battery of 9 judges.
b) The Corporates who need to struggle with Data Protection obligation under ITA 2000/8 and steer clear of the liabilities under Section 43A or 72A in particular and many other sections of ITA 2000/8 along with the GDPR, HIPAA and a host of international laws that affect the lives of an Indian Registered Corporate entity.
c) The Government which has already made many laws such as Aadhaar, Right to Information, Section 66A of ITA 2008 (now scrapped) and need to make many more laws in future to carry on its Governance amidst the opposition of political parties not in power some of whom like Kapil Sibal was part of influencing this judgement
Let’s try to do it in the future posts.
[Disclaimer: The objective of this discussion is just to add another view point for the academic debate.
It is admitted and declared that these are the views of an ordinary citizen of the country and not an expert in the Indian Constitutional law.
It is also not meant to praise or criticize the judgement in question nor the Government of the day or the opposition though it may appear so in parts.
It is an opinion on a matter of grave importance to the development of Jurisprudence in India in the spirit of the presumed “Right of Free Expression” in our Constitution as it exists today with more than a century (101*) of amendments since its inception, most of them by the parties who are not in power today but sincerely tried since independence to change the face of India so that they could get more and more votes from the Indian public by dividing the country which was already divided and profess to continue to do so in future also]
|Part-I (Chandrachud, Kehar, Agarwal, Nazeer)
|Part -II (Chelmeshwar)
|Part- III (Bobde):
|Part -IV (Nariman)
|Part -VI (Kaul)
|Part -VII (Order)