News Highlight
August 2022 marked five years since a Constitutional Bench of the Supreme Court delivered a crucial judgement in the case of Justice K.S. Puttaswamy (retd.) vs. the Union of India.
Key Takeaway
- The judgement delivered on that date formally recognised the right to privacy as a fundamental right.
The Puttaswamy judgement:
- The judgement delivered on that date formally recognised the right to privacy as a fundamental right alongside the right to life and personal liberty, guaranteed under Article 21 of the Indian Constitution.
- The Bench also held that while the right to privacy is intrinsic to an individual’s ability to exercise bodily autonomy, it is still not an “absolute right” in and of itself, placing limitations like those set on the right to free speech and expression.
The essential test:
- It held that privacy is a natural right that inheres in all natural people and that the right may be restricted only by state action that passes each of the three tests:
- First, such state action must have a legislative mandate.
- Second, it must pursue a legitimate state purpose.
- Third, it must be proportionate, i.e., such state action, both in its nature and extent, must be necessary for a democratic society, and the action ought to be the least intrusive of the available alternatives to accomplish the ends.
Impact of Puttaswamy judgement:
- The government appointed a committee of experts for data protection under the chairmanship of Justice B N Srikrishna and submitted its report in 2018 along with a draft Data Protection Bill.
- The report has a wide range of recommendations to strengthen privacy laws in India. Its proposals included restrictions on processing and collection of data, Data Protection Authority, right to be forgotten, data localisation, explicit consent requirements for sensitive personal data, etc.
- However, a much-changed Draft Personal Data Protection Bill was tabled and then withdrawn from Parliament by the government. It has promised to introduce a revised bill soon.
Right to privacy
- It refers to respecting and ensuring the privacy of the individual.
- It is not explicitly mentioned in the constitution.
Features of the right to privacy
- “Constitutionally” protected:
- Privacy is a constitutionally protected right, emerging first from the guarantee of life and liberty in Article 21 of the constitution.
- Not absolute:
- Privacy is not an absolute right, but any invasion must be based on legality, need and proportionality.
- Sexual privacy :
- It includes the preservation of personal intimacies, the sanctity of family life, marriage and sexual orientation.
Implications of the right to privacy judgement
- Right of the gay community-Section 377:
- The judgement makes it clear that sexual orientation is part of privacy and is constitutionally protected and that the 2014 verdict upholding Section 377 of the Indian Penal Code is flawed.
- Section 377 of the British colonial penal code criminalised all sexual acts “against the order of nature”.
- Impediment to policy-making:
- The broad implication is that the government cannot frame any policy or law that completely removes a citizen’s right to privacy.
- Reasonable restriction:
- Government can only place reasonable restrictions on limited grounds, such as national sovereignty and security, public order etc, as mentioned in Article 19(2).
- Pace with technological developments:
- The SC urged the government to quickly bring in a data protection law to deal with these fast-changing technological developments.
Pic Courtesy: ipleaders
Content Source: The Hindu