Supreme Court of India today held that right to privacy is a Fundamental Right and it is protected under Article 21 of the Constitution of India. In a unanimous decision the Nine -Judge Constitution bench overruled the Judgments in MP Sharma and Kharak Singh makes the position clear and will hold the field.
Interestingly, writing for the CJI and Justices Agarwal and Abdul Nazeer, Justice D.Y.Chadrachud overruled a judgment authored by his father Justice Y.V.Chandrachud in the famous case of ADM Jabalpur v Shivakant Shukla
In ADM Jabalpur, the issue before the Supreme Court was whether an order issued by the President under Article 359(1) of the Constitution suspends the right of every person to move any Court for the enforcement of the right to personal liberty under Article 21 upon being detained under a law providing for preventive detention. The submission of the detenues was that the suspension of the remedy to enforce Article 21 does not automatically entail suspension of the right or the rule of law and that even during an emergency the rule of law could not be suspended.
Writing a concurring opinion with the majority, Justice Y.V.Chandrachud had written that the right to personal liberty has no hallmark and therefore when the right is put in action it is impossible to identify whether the right is one given by the Constitution or is one which existed in the pre-Constitution era.
Justice Y.V.Chandrachud had conclusively held that it did not make any difference whether any right to personal liberty was in existence prior to the enactment of the Constitution, either by way of a natural right, statutory right, common law right or a right available under the law of torts. Whatever may be the source of the right and whatever may be its jurisdiction, the right in essence and substance is the right to personal liberty. That right having been included in Part III, its enforcement will stand suspended if it is mentioned in the Presidential Order issued under Article 359(1).
Striking a discordant note in the privacy judgment pronounced today, his son Justice D.Y.Chandrachud chose to state that the judgments rendered by all the four judges including his father constituting the majority in ADM Jabalpur were seriously flawed. In para 121 of his judgment,Justice D.Y.Chandrachud wrote that “ADM Jabalpur must be and is accordingly overruled. We also overrule the decision in Union of India v Bhanudas Krishna Gawde, which followed ADM Jabalpur.”
As interesting as it is, it is also rare that a father son duo get elevated to the Supreme Court. But it is rarer that the son carries the calibre to understand the backdrop in which his father authored the judgment, comprehends the changing scenario and overrules it authoritatively. Justice Y.V.Chandrachud will be happy and proud today.