A 9-judge Supreme Court bench had, on Thursday, unanimously ruled that privacy is a fundamental right protected as an intrinsic part of the right to life and personal liberty and as part of the freedom guaranteed by the Constitution.
The bench comprising all the sitting judges in the Supreme Court and headed by Chief Justice of India, JS Khehar included Justices J Chelameswar, SA Bobde, RK Agrawal, RF Nariman, AM Sapre, DY Chandrachud, Sanjay K Kaul and S Abdul Nazeer. The bench upturned a 63-year-old ruling of an 8-judge bench that had refused to recognise privacy as a fundamental right and has rekindled the possibility that Section 377 of the Indian Penal Code, which holds that gay sex is a crime, might soon become history. The ruling has also opened possibilities for data security constricting biometric-linkage of personal information with the Aadhar card, upholding women’s choice regarding abortion, reframing laws regarding euthanasia and marital rape and even choice of meat amidst the Centre’s attempts to ban the sale of cattle for slaughter.
In laymen’s terms, the Right to Privacy will reaffirm the state and central government’s intervention in the personal choices of its citizens while maintaining a balance between the right to privacy and the right of the state to impose reasonable restrictions on it for legitimate aims such as national security, prevention and investigation of crimes and distribution of welfare resources.
Assam too welcomed the move, but for a state that has had the controversial Armed Forces (Special Power) Act (AFSPA) clamped on it since 1958 and has witnessed the second highest human rights violations, a cloud of apprehension on which extent the new right will be implemented looms large. According to a right to information (RTI) query in July this year, in the backdrop of the Centre extending the “disturbed area” tag for Assam till 31st August, it was revealed that there are 58 complaints against human rights violations under AFSPA in the state. It comes next to Jammu and Kashmir that recorded the highest with 92 complaints and is followed by Manipur that stands third with 21 complaints filed against the same.
All India United democratic Front (AIUDF) general secretary and legislator Aminul Islam told G Plus, “As long as AFSPA is clamped in this state, no right will be properly implemented. There already are several fundamental rights violation issues against the Indian armed forces conducted due to AFSPA. This right restricts the state from interfering in the lives of the citizens but I am sure, citing security reasons, the government will still continue interfering.”
Prafulla Mahanta, who spearheaded the 6 year long Assam Agitation (1979-1985) and was a two-term chief minister from Asom Gana Parishad under whose rule, the state saw its darkest chapter with secret killings of alleged ULFA leaders said the Right to Privacy was a much needed move back then. “I welcome this move. People talk about secret killings. But in the same backdrop, when AFSPA was in force, several people were brought under the intelligence radar and were harassed unnecessarily. Those could have been avoided had this right been implemented back then,” Mahanta said.
Leader of Opposition in the Assam Assembly, Debabrata Saikia, too expressed apprehension on its implementation and said, “This was a much needed move, but to what extent the incumbent government, which has, at numerous instances, violated fundamental rights will implement the same is still doubtful. For now, the Congress Party will attempt to make people aware about the right so that they are not misled.”
When contacted, the Director General of Police, Assam, Mukesh Sahay said, “Every right has certain restrictions and when it comes to national security or dealing with issues pertaining to law and order situations, the state has its legitimacy to act upon. I don’t think there will be any violation of the right due to AFSPA or by the security agencies while dealing with insurgency or law and order issues.”
Advocate Bhaskar Dev Konwar however brings forth a separate concern – that of Aadhar card verification - which was halted due to the upgradation process of the National Register of Citizens (NRC). He said, “The judgement, although not an exhaustive enumeration or catalogue of rights to privacy, however, by declaring the right to privacy as fundamental right has paved the way for further adjudication of the rights of LGBT including decriminalisation of homosexuality, change in laws on abortion, euthanasia and marital rape.”
“With reference to Assam, where Aaadhar card is yet to be issued and linked with personal database of individuals unlike in some other states where it is mandatory to link Aadhar card with bank accounts and other personal transactions, it will have far reaching impact. Issuance of Aadhar cards in Assam has always been a contentious issue since there is reasonable apprehension that foreigners may get hold of Aadhar cards and they may claim it as a proof of citizenship,” Konwar added.
The NRC office however refuted the concern saying it is a “long shot” and there still is time to address the same. “The state is currently focussed on the upgradation of the NRC. Once that process is completed and the indigenous citizens of Assam are recognised, the state will go on with the upgradation of Aadhar card as per the rules of the country. It is too early to speculate as of now,” a source in the NRC office said.
The LGBT community in the state however rejoiced at the verdict and termed the ruling as the first positive ray of hope for decriminalising consensual gay sex and marriage. “This judgement will probably be the final nail in the coffin for the IPC Section 377. So far, the section has only received condemnation from political parties but when it came to scrapping the law, there was no progress. This judgement will finally pave way for the real freedom of the LGBT people,” Abhishek Chakraborty, an LGBT rights activist told G Plus.
The BJP termed the judgement as beginning of “Achhe Din” (Good days). “Off late, several allegations were raised against this government of being biased, polarised and that of not being secular. This verdict has silenced them all. We welcome this verdict and the government will take every step to protect this fundamental right,” Pramod Swami, spokesperson of Assam BJP said.
