印度最高法院判决确认“隐私权是一项基本人权”发布时间:2017-10-10   作者:   来源:北京大学互联网发展研究中心

作者简介:洪延青    北京大学互联网发展研究中心 研究主管


 关注个人信息保护和隐私保护的小伙伴,在浏览国外新闻时,估计都被这一消息刷屏了。印度最高法院的九名大法官作出一致判决(unanimous verdict),认为"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." 就此,所有下级法院判决中曾经得出的“印度宪法并不保护隐私权”的结论都被推翻了。

 

判决一共有547页,全文可以在文末左下角点击“原文链接”获取。以下是外媒总结的判决的核心论断(Key conclusions from the judgment),供大家参考:

 

1. Life and personal liberty are inalienable rights. These are rights which are inseparable from a dignified human existence. The dignity of the individual, equality between human beings and the quest for liberty are the foundational pillars of the Indian Constitution;

 

2. Judicial recognition of the existence of a constitutional right of privacy is not an exercise in the nature of amending the Constitution nor is the Court embarking on a constitutional function of that nature which is entrusted to Parliament;

 

3. Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone.

 

4. Personal choices governing a way of life are intrinsic to privacy. 

 

5. ...privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being;

 

6. Technological change has given rise to concerns which were not present seven decades ago and the rapid growth of technology may render obsolescent many notions of the present. Hence the interpretation of the Constitution must be resilient and flexible to allow future generations to adapt its content bearing in mind its basic or essential features;

 

7. Like other rights which form part of the fundamental freedoms protected by Part III, including the right to life and personal liberty under Article 21, privacy is not an absolute right. A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights.

 

8. Privacy has both positive and negative content. The negative content restrains the state from committing an intrusion upon the life and personal liberty of a citizen. Its positive content imposes an obligation on the state to take all necessary measures to protect the privacy of the individual.

 

9. The right of privacy is a fundamental right. It is a right which protects the inner sphere of the individual from interference from both State, and non-State actors and allows the individuals to make autonomous life choices.

 

10. The privacy of the home must protect the family, marriage, procreation and sexual orientation which are all important aspects of dignity.

 

11. ...in a country like ours which prides itself on its diversity, privacy is one of the most important rights to be protected both against State and non-State actors and be recognized as a fundamental right.

 

12. ...right of privacy cannot be denied, even if there is a miniscule fraction of the population which is affected. The majoritarian concept does not apply to Constitutional rights...

 

13. Let the right of privacy, an inherent right, be unequivocally a fundamental right embedded in part-III of the Constitution of India, but subject to the restrictions specified, relatable to that part. This is the call of today. The old order changeth yielding place to new.



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