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2015 (8) TMI 526

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..... ches – Therefore, to give quietus to kind of controversy raised once for all, it is better that ratio decidendi of M.P. Sharma case and Kharak Singh was scrutinized and jurisprudential correctness of decisions where right to privacy was either asserted or referred be examined and authoritatively decided by Bench of appropriate strength - Matters referred before court of Chief Justice of India for appropriate orders. Till matter is finally decided by larger Bench, UOI directed to give wide publicity in electronic and print media that it was not mandatory for citizen to obtain Aadhaar card – Information obtained by UID Authority shall not be used for any other purpose, except for purpose of criminal investigation. - Writ Petition (Civil) No. 494 of 2012 - - - Dated:- 11-8-2015 - J. Chelameswar, S. A. Bobde And C. Nagappan,JJ. TRANSFERRED CASE (CIVIL) NO.151 OF 2013 TRANSFERRED CASE (CIVIL) NO.152 OF 2013 WRIT PETITION (CIVIL) NO.829 OF 2013 WRIT PETITION (CIVIL) NO.833 OF 2013 WRIT PETITION (CIVIL) NO.932 OF 2013 TRANSFER PETITION (CIVIL) NO.312 OF 2014 TRANSFER PETITION (CIVIL) NO.313 OF 2014 WRIT PETITION (CIVIL) NO.37 OF 2015 WRIT PETITION (CIVIL) NO.220 OF 2015 TRANSF .....

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..... limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction. [See: M.P. Singh Others v. Satish Chandra Others, AIR 1954 SC 300, page 306 para 18] Nor do we consider that Art. 21 has any relevance in the context as was sought to be suggested by learned counsel for the petitioner. As already pointed out, the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movement of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III. [See: Kharak Singh v. State of U.P. Others, AIR 1963 SC 1295, page 1303 para 20] [Emphasis supplied] 4. Learned Attorney General submitted that such impermissible divergence of opinion commenced with the judgment of this Court in Gobind v. State of M.P. Another, (1975) 2 SCC 148, which formed the basis for the subsequent decision of this Court wherein the right to privacy is asserted or at least referred to. The most important of such ca .....

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..... d shall on receipt of the opinion dispose of the appeal in conformity with such opinion of the Constitution of India. 8. On behalf of the petitioners Shri Gopal Subramanium and Shri Shyam Divan, learned senior counsel very vehemently opposed the suggestion that this batch of matters is required to be heard by a larger bench. According to them: (i) The conclusions recorded by this Court in R. Rajagopal and PUCL are legally tenable for the reason that the observations made in M.P. Sharma regarding the absence of right to privacy under our Constitution are not part of ratio decidendi of that case and, therefore, do not bind the subsequent smaller Benches. (ii) Coming to the case of Kharak Singh, majority in Kharak Singh did hold that the right of a person not to be disturbed at his residence by the State and its officers is recognized to be a part of a fundamental right guaranteed under Article 21 which is nothing but an aspect of privacy. The observation in para 20 of the majority judgment at best can be construed only to mean that there is no fundamental right of privacy against the State s authority to keep surveillance on the activities of a person. Even such a conclusion .....

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..... .K. Gopalan themselves came to be declared wrong by a larger Bench of this Court in Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248. Therefore, there is no need for the instant batch of matters to be heard by a larger Bench. 9. It is true that Gobind (supra) did not make a clear declaration that there is a right to privacy flowing from any of the fundamental rights guaranteed under Part-III of the Constitution of India, but observed that Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterize as a fundamental right, we do not think that the right is absolute . This Court proceeded to decide the case on such basis. 10. However, the subsequent decisions in R. Rajagopal (supra) and PUCL (supra), the Benches were more categoric in asserting the existence of right to privacy . While R. Rajagopal s case Para 9. Right to privacy is not enumerated as a fundamental right in our Constitution but has been inferred from Article 21. held that the right to privacy is implicit under Article 21 o .....

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..... ty did not describe that aspect of the liberty as a right of privacy, it is nothing but the right of privacy. 12. We are of the opinion that the cases on hand raise far reaching questions of importance involving interpretation of the Constitution. What is at stake is the amplitude of the fundamental rights including that precious and inalienable right under Article 21. If the observations made in M.P. Sharma (supra) and Kharak Singh (supra) are to be read literally and accepted as the law of this country, the fundamental rights guaranteed under the Constitution of India and more particularly right to liberty under Article 21 would be denuded of vigour and vitality. At the same time, we are also of the opinion that the institutional integrity and judicial discipline require that pronouncement made by larger Benches of this Court cannot be ignored by the smaller Benches without appropriately explaining the reasons for not following the pronouncements made by such larger Benches. With due respect to all the learned Judges who rendered the subsequent judgments - where right to privacy is asserted or referred to their Lordships concern for the liberty of human beings, we are of the h .....

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..... pose of a Unique Identification Number, better known as Aadhaar card . It was further submitted that the respondents have gone ahead with the project and have issued Aadhaar cards to about 90% of the population. Also that a large amount of money has been spent by the Union Government on this project for issuing Aadhaar cards and that in the circumstances, none of the well-known consideration for grant of injunction are in favour of the petitioners. The learned Attorney General stated that the respondents do not share any personal information of an Aadhaar card holder through biometrics or otherwise with any other person or authority. This statement allays the apprehension for now, that there is a widespread breach of privacy of those to whom an Aadhaar card has been issued. It was further contended on behalf of the petitioners that there still is breach of privacy. This is a matter which need not be gone into further at this stage. The learned Attorney General has further submitted that the Aadhaar card is of great benefit since it ensures an effective implementation of several social benefit schemes of the Government like MGNREGA, the distribution of food, ration and kerose .....

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