The Supreme Court’s Right to Privacy Judgment – I: Foundations By Gautam Bhatia

On the 24th of August, a nine-judge bench of the Supreme Court delivered its verdict in Justice K.S. Sharma is unconvincing not only because it arrived at its conclusion without enquiry into whether a privacy right could exist in our Constitution on an independent footing or not, but because it wrongly took the United States Fourth Amendment – which in itself is no more than a limited protection against unlawful surveillance – to be a comprehensive constitutional guarantee of privacy in that jurisdiction.” Proposition Two: 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 In Kharak Singh, the Supreme Court had considered the constitutionality of various forms of police surveillance upon a “history-sheeter”. As the majority judgment contradicts itself on this vital aspect, it would be correct to say that it cannot be given much value as a binding precedent.” Justices Bobde, Chelameswar, and Chandrachud agreed that there existed a “logical inconsistency” within Kharak Singh, in that the Court could not have struck down one facet of police surveillance without invoking the right to privacy. Furthermore, the Justices also agreed that in any event, Kharak Singh’s finding that there was no right to privacy under Article 21of the Constitution was based on a narrow reading of the phrase “personal liberty”, which in turn was a relic of the judgment in A.K. Thirdly, the requirement of Article 14 that state action must not be arbitrary and must fulfil the requirement of reasonableness, imparts meaning to the constitutional guarantees in Part III.” Proposition Three: 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.