Dr. D.Y. CHANDRACHUD, J.- 1. Nine judges of this Court assembled to determine
whether privacy is a constitutionally protected value. The issue reaches out to the foundation
of a constitutional culture based on the protection of human rights and enables this Court to
revisit the basic principles on which our Constitution has been founded and their
consequences for a way of life it seeks to protect. This case presents challenges for
constitutional interpretation. If privacy is to be construed as a protected constitutional value, it
would redefine in significant ways our concepts of liberty and the entitlements that flow out
of its protection.
2. Privacy, in its simplest sense, allows each human being to be left alone in a core which is
inviolable. Yet the autonomy of the individual is conditioned by her relationships with the rest
of society. Those relationships may and do often pose questions to autonomy and free choice.
The overarching presence of state and non-state entities regulates aspects of social existence
which bear upon the freedom of the individual. The preservation of constitutional liberty is,
so to speak, work in progress. Challenges have to be addressed to existing problems. Equally,
new challenges have to be dealt with in terms of a constitutional understanding of where
liberty places an individual in the context of a social order. The emergence of new challenges
is exemplified by this case, where the debate on privacy is being analyzed in the context of a
global information-based society. In an age where information technology governs virtually
every aspect of our lives, the task before the Court is to impart constitutional meaning to
individual liberty in an interconnected world. While we revisit the question whether our
constitution protects privacy as an elemental principle, the Court has to be sensitive to the
needs of and the opportunities and dangers posed to liberty in a digital world.
India’s commitments under International law
129. The recognition of privacy as a fundamental constitutional value is part of India’s
commitment to a global human rights regime. Article 51 of the Constitution, which forms part
of the Directive Principles, requires the State to endeavor to “foster respect for international
law and treaty obligations in the dealings of organized peoples with one another”221. Article
12 of the Universal Declaration of Human Rights, recognizes the right to privacy:
“Article 12: No one shall be subjected to arbitrary interference with his privacy,
family, home or correspondence, nor to attacks upon his honour and reputation.
Everyone has the right to the protection of the law against such interference or
attacks.”
Similarly, the International Covenant on Civil and Political Rights was adopted on 16
December 1979 and came into effect on 23 March 1976. India ratified it on 11 December
1977. Article 17 of the ICCPR provides thus:
“The obligations imposed by this article require the State to adopt legislative and
other measures to give effect to the prohibition against such interferences and
attacks as well as to the protection of the right.”
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The Protection of Human Rights Act, 1993 which has been enacted by Parliament
refers to the ICCPR as a human rights instrument. Section 2(1)(d) defines human rights:
“human rights” means the rights relating to life, liberty, equality and
dignity of the individual guaranteed by the Constitution or embodied in
the International Covenants and enforceable by courts in India.”
Section 2(1)(f) defines International Covenants:
“International Covenants” means the International Covenant on Civil
and Political Rights and the International Covenant on Economic, Social
and Cultural rights adopted by the General Assembly of the United
Nations on the 16th December, 1966 [and such other Covenant or
Convention adopted by the General Assembly of the United Nations as
the Central Government may, by notification, specify”
Under Section 12(f) of the Protection of Human Rights Act, 1993, the National Human
Rights Commission:
“is entrusted with the function of studying treaties and other international
instruments on human rights and make recommendations for their
effective implementation.”
130. The ICCPR casts an obligation on states to respect, protect and fulfil its norms. The
duty of a State to respect mandates that it must not violate the right. The duty to protect
mandates that the government must protect it against interference by private parties. The
duty to fulfil postulates that government must take steps towards realization of a right.
While elaborating the rights under Article 17, general comment 16 specifically stipulates
that:
“…..there is universal recognition of the fundamental importance, and
enduring relevance, of the right to privacy and of the need to ensure
that it is safeguarded, in law and practice.”
On 30 June 2014, a report was presented by the Office of the United Nations High
Commissioner for Human Rights. The report underscores that:
“…there is universal recognition of the fundamental importance, and
enduring relevance, of the right to privacy and of the need to ensure
that it is safeguarded, in law and in practice.
131. In Bachan Singh v State of Punjab224 (“Bachan Singh”), this Court considered in
relation to the death penalty, the obligations assumed by India in international law,
following the ratification of the ICCPR. The Court held that the requirements of Article 6 of
the ICCPR are substantially similar to the guarantees contained in Articles 20 and 21 of the
Constitution. The penal law of India was held to be in accord with its international
commitments. In Francis Coralie, this Court, while explaining the ambit of Article 21, held
that:
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“…there is implicit in Article 21 the right to protection against
torture or cruel, inhuman or degrading treatment which is
enunciated in Article 5 of the Universal Declaration of Human
Rights and guaranteed by Article 7 of the International Covenant
on Civil and Political Rights…”
132. In Vishaka v State of Rajasthan, this Court observed that in the absence of domestic
law, the Convention on the Elimination of Discrimination against Women (CEDAW) is
applicable. In NALSA, while dealing with the rights of transgenders, this Court found that
the international conventions were not inconsistent with the fundamental rights guaranteed
by the Constitution and must be recognised and followed.
133. The position in law is well settled. Where there is a contradiction between international
law and a domestic statute, the Court would give effect to the latter. In the present case,
there is no contradiction between the international obligations which have been assumed by
India and the Constitution. The Court will not readily presume any inconsistency. On the
contrary, constitutional provisions must be read and interpreted in a manner which would
enhance their conformity with the global human rights regime. India is a responsible
member of the international community and the Court must adopt an interpretation which
abides by the international commitments made by the country particularly where its
constitutional and statutory mandates indicate no deviation. In fact, the enactment of the
Human Rights Act by Parliament would indicate a legislative desire to implement the
human rights regime founded on constitutional values and international conventions
acceded to by India.
