Going through Justice Chandrachud’s judgment which Agarwal and Khehar sign on to…Right to privacy case:-
1) The judgment is amazing. It is effectively a new charter of rights that gives great meaning and depth to FR in the constitution.
2) The notion of privacy is a rich one, protects right to choose, informational privacy and the expectation of privacy as FRs.
3) The judgment is a slam dunk for the 377 case. Effectively overrules Kaushal case. There’s no case left to argue against it after this judgment
4) Privacy will enjoy just as much protection as any other fundamental right, but also means will be subject to restriction imposed by Govt
5) Judicial review means court will see if restrictions justified or not, but we’ll know true meaning of privacy when govt will bring bill in parliament
6) Excellent exposition by Justice Chelameswar on why the MP Sharma and Kharak Singh were not only wrong but utterly illogical as well.
7) Also a great analysis of why a Constitution is not just a text & if certain words are not there, doesn’t mean they’re not in the Constitution.
8) relevant since “right to privacy” are not actually said in the constitution, but why it must be read in to give meaning to FR
9) While leaving contours of the right open, Chelameswar defines privacy to include “repose, sanctuary and intimate decision”.
10) Repose: freedom from unwanted stimuli
sanctuary: protection agst intrusive observation
intimate decision: respect personal life choices
11) These three come from the US author, Gary Bostwick and have been cited with approval by Chelameswar.
12) Chelameswar finds that choice is interwoven into every single fundamental right in Part III of the Constitution & not just another right
13) Doesn’t go deep into what restrictions can be imposed on privacy but lays out principles broadly saying it’s to be decided, case by case
14) Effectively says that laws seeking to interfere must be just fair and reasonable, but also serve some compelling state interest.
15) Onwards to Justice Bobde who has written this 👇after reading DYC, Nariman, and Chelameswar
16) Bobde says that the common law and fundamental right to privacy are the same, just forum for enforcement and burdens different!
17) Whatever you can claim against the government, you can now claim against a private party (but in a different manner and court).
18) Whatever you can claim against the government, you can now claim against a private party (but in a different manner and court).
19) After finding faint past origins in Hindu, Christian & Islamic law for privacy, concludes that privacy essential for liberty & freedom.
20) Locates privacy as also essential for dignity of the individual and therefore protected fully under Article 21.
21)**Also, like Chelameswar, finds that any law infringing privacy will have to meet requirements of not just 21, but every FR it violates.
22) Justice Nariman also goes into why a statutory protection for privacy may not be enough in the absence of a constitutional protection for it.
23) Like with Chelameswar recognizes three fundamental core aspects of privacy, personal aspects, informational aspects and choice.
24) All of this means that laws violating any of this will have to be shown to be “just, fair and reasonable” in order to be constitutional.
25) Fundamental rights are not granted by Constitution. SC has now confirmed they are inherent to all persons, thus overruling ADM Jabalpur.
26) Interestingly, traces privacy to not just Part III but also the preamble since the words “dignity” and liberty are used.