Privacy: A Recurring Theme In Justice Chandrachud’s Landmark Judgments

On October 18th, 2022, the President of India appointed Justice D.Y.  Chandrachud as the 50th Chief Justice of India. Starting from Nov 9th 2022, he will be CJI for 2 years, till Nov 10th, 2024.

At the end of his first year at the Supreme Court, Justice Chandrachud authored the majority opinion in the nine-Judge Bench Puttaswamy case, recognising the Right to Privacy and Dignity as an intrinsic part of the Right to life. Since then, Justice Chandrachud has recurrently used the right to privacy to expand the scope of citizens’ fundamental rights. 

For instance, in the judgment decriminalising homosexuality in India, Justice Chandrachud expanded the scope of right to privacy to include ‘sexual privacy’, to protect the rights of sexual minorities. In Hadiya’s case, Justice Chandrachud linked a person’s right to make decisions for their future as a part of their right to privacy. In doing so, he restored a marriage annulled under the State’s ‘Love Jihad’ law. Similarly, while upholding the right of an unmarried woman to medical termination of pregnancy, Justice Chandrachud held that the right to privacy enables individuals to retain and exercise autonomy over the body and mind. 

Right To Privacy:

In August 2017, a Constitution Bench of the Supreme Court held that the right to privacy is a fundamental right under the Constitution of India. Authoring a concurring view on behalf of himself and three other judges, Justice Chandrachud highlighted that privacy attaches to the person since it is an essential part of the dignity of human existence. He further held that happiness derives from the right to decide for oneself and dignity, which are both essential attributes of privacy. 

Right To Sexual Privacy:

Justice Chandrachud was part of the Constitution Bench which ,in 2018, de-criminalised consensual sex between persons belonging to the same sex, by striking down certain parts of Section 377 of the Indian Penal Code, 1860. Justice Chandrachud, in his concurring verdict, commented that the LGBTQ community should not continue to suffer even 158 years after the inception of the IPC. He noted that while it is difficult to correct historical wrongs meted out to the community, a better course for the future can be laid out. 

Justice Chandrachud noted that the state cannot intrude into the choice of partner, desire for personal intimacy and yearning for love  In his judgment, Justice Chandrachud stated that the LGBT community are entitled to the benefit of equal citizenship  and to equal protection of law without any discrimination. 

The right to privacy, Justice Chandrachud noted, is intrinsic to liberty, central to human dignity and the core of autonomy He invoked Supreme Court’s Judgment holding right to privacy as a fundamental right and concluded that  the right to sexual orientation is an intrinsic part of the right to privacy. 

Elaborating on right to privacy and sexual orientation, Justice Chandrachud held that exercise of the inalienable right to privacy includes allowing an individual the right to a self-determined sexual orientation. Thus, it is nececcary to widen scope of the right to privacy to incorporate a right to ‘sexual privacy’ to protect the rights of sexual minorities. Justice Chandrachud further held that sexual privacy originates from the inalienable right to privacy. 

Privacy And Right To Make Decisions:

In 2016, Akhila Asokan, a Hindu woman, converted to Islam and married Shafin Jahan, a Muslim man. She subsequently changed her name to Hadiya.  When her father found out about the marriage, he filed a Writ Petition in the Kerala High Court. He alleged that Hadiya had been misled and forced to become a Muslim. He also alleged that her husband had links to extremist Muslim organizations. Hadiya maintained throughout the High Court proceedings that her conversion to Islam as well as marriage to Shafin Jahan was of her choice.

The Kerala High Court annulled the marriage in 2017 by calling it a sham and ordered Hadiya to be placed in the custody of her parents. 

In a unanimous judgement, a three judge Bench of the Supreme Court overruled the Kerala High Court Judgment. Justice Chandrachud wrote a concurring Judgment in the case.

He disagreed with the High Court’s view that a 24 year old Hadiya is weak  and vulnerable to exploitation. Justice Chandrachud stated that the High Court failed to consider that Hadiya is a major, capable of taking her own decisions and is entitled to the Constitutional right to lead her life as she pleases. The Judgment further notes that an individual’s  choice to marry and  whom to marry lies outside the control of the State and interference by the State has a seriously chilling effect on the exercise of freedoms. 

Invoking the Supreme Court’s right to privacy Judgment, Justice Chandrachud held that the ability to make decisions on matters close to one’s life is an inviolable aspect of the human personality. He elaborated this aspect by quoting the Judgment to say that the intersection between a person’s psychological integrity and privacy provides a person with freedom of thought, to believe in what is right, and the freedom of self-determination.

Aadhar and Privacy:

Justice D.Y. Chandrachud dissented against the majority Judgment of the Constitution Bench which upheld the Aadhaar Act in 2018. He noted that in a digital society, an individual has the right to maintain control over their personal information. Justice Chandrachud’s dissent stated that identity is necessarily a plural concept and the technology deployed in the Aadhaar scheme reduces different constitutional identities of an individual into a single identity of a 12-digit number. His opinion held that the Aadhar Act infringes on the right of an individual to identify oneself in a way they choose to.  

Justice Chandrachud held that the entire Aadhaar programme is completely violative of privacy and unconstitutional. In his dissenting opinion,  he said the Unique Identification Authority of India (UIDAI) has admitted that it stores important data  and hence it is violative of the right to privacy and Article 14, the right to equality.

Privacy And Bodily Autonomy:

In September 2022, Justice Chandrachud’s Bench upheld the rights of reproductive autonomy of an unmarried woman. The Bench permitted a a 25-year-old unmarried woman, who was over 24 weeks pregnant to undergo an abortion. Justice Chandrachud noted that the rights of reproductive autonomy, dignity, and privacy gives an unmarried woman the right to choose if she wishes to  bear a child on the same footing as a married woman. The judgment also recognised marital rape as a valid grounds for  abortions.

Justice Chandrachud noted that the right to privacy enables individuals to retain and exercise autonomy over the body and mind. The Judgment defined autonomy of the individual as the ability to make decisions on vital matters of concern to life. He specifically invoked Justice Chelameshwar’s concurring opinion in the privacy Judgment, where the Judge  observed that there are certain aspects of a person’s life where the State cannot interfere. Justice Chelameshwar further observed that the State did not have a role to play in a  woman’s freedom of choice to bear a child or abort her pregnancy falls in the realm of privacy. 

Prior to delivering his detailed Judgment, Justice Chandrachud permitted the woman to undergo a medical termination of pregnancy upon being cleared by a board of doctors at AIIMS. 

Privacy And Dignity: 

In the Supreme Court’s Judgment decriminalising adultery, Justice Chandrachud authored a concurring opinion. He held that the Section 497, which criminalises adultery, was enacted with the idea that a woman by entering upon marriage loses her voice, autonomy and agency. He stressed the need to ensure that patriarchal social values and legal norms are not permitted to further obstruct the exercise of constitutional rights by the women of our country.

Justice Chandrachud employed the right to privacy in his Judgment decriminalising adultery to state that privacy includes individual dignity and the Section of IPC, which criminalises adultery creates a situation which dents a woman’s individual dignity. 

Justice Chandrachud’s role in cementing privacy as a fundamental right is evident. He has ensured that right privacy cannot be watered down in the future by making it the foundation for other important rights.