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Justice K.S. Puttaswamy (Retd.) & Another Versus Union of India & Others

2015 (8) TMI 526 - SUPREME COURT

Constitutional Validity of use of Aadhaar card – Right to Privacy – Respondent while relying upon decision of Supreme court in M.P. Sharma & Others v. Satish Chandra & Others [1954 (3) TMI 1 - SUPREME COURT OF INDIA] and Kharak Singh v. State of U.P. & Others [1962 (12) TMI 67 - SUPREME COURT OF INDIA] contended that legal position regarding existence of fundamental right to privacy is doubtful – Therefore such matters were required to be heard and decided by larger bench of at least five Judges .....

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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 electro .....

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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 TRANSFER PETITION (CIVIL) NO.921 OF 2015 CONTEMPT PETITION (CIVIL) NO.144 OF 2014 IN WP(C) 494/2012 CONTEMPT PETITION (CIVIL) NO.470 OF 2015 IN WP(C) 494/2012 For the Respondent : UOI Mr. Mukul Rohatgi, AG Ms. Pinky Anand, ASG For the Petitioner : WP(C) No. 829/2013 Mr. Shyam Divan, Sr. Adv. Mr. Aayush Agarwal, Adv. Ms. Prasanna S., A .....

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used for various purposes, the details of which are not relevant at present. 2. One of the grounds of attack on the scheme is that the very collection of such biometric data is violative of the right to privacy . Some of the petitioners assert that the right to privacy is implied under Article 21 of the Constitution of India while other petitioners assert that such a right emanates not only from Article 21 but also from various other articles embodying the fundamental rights guaranteed under Pa .....

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General also submitted that in a catena of decisions of this Court rendered subsequently, this Court referred to right to privacy , contrary to the judgments in the abovementioned cases which resulted in a jurisprudentially impermissible divergence of judicial opinions. A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit .....

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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 com .....

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gments referred to above were rendered by smaller Benches of two or three Judges. 6. Shri K.K. Venugopal, learned senior counsel appearing for one of the respondents submitted that the decision of this Court in Gobind (supra) is not consistent with the decisions of this Court in M.P. Sharma and Kharak Singh. He submitted that such divergence is also noticed by the academicians, Shri F.S. Nariman, Senior Advocate of this Court and Shri A.M. Bhattacharjee A.M. Bhattacharjee , Equality, Liberty &am .....

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ight exists, what is the source and what are the contours of such a right as there is no express provision in the Constitution adumbrating the right to privacy. It is therefore submitted that these batch of matters are required to be heard and decided by a larger bench of at least five Judges in view of the mandate contained under Article 145(3) Article 145(3). The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the inter .....

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such Court shall refer the question for opinion to a Court constituted as required by this clause for the purpose of deciding any case involving such a question and 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 .....

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ognized 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 cannot be good law any more in view of the express declaration made by a seven-Judge bench decision of this Court in Maneka Gandhi v. Union of I .....

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ties' of man other than those dealt with in the several clauses of Article 19(1). In other words, while Article 19(1) deals with particular species or attributes, of that freedom, 'personal liberty' in Article 21 takes in and comprises the residue". The minority judges, however, disagreed with this view taken by the majority and explained their position in the following words: "No doubt the expression 'personal liberty' is a comprehensive one and the right to move f .....

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. If a person's fundamental right under Article 21 is infringed, the State can rely upon a law to sustain the action, but that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned". There can be no doubt that in view of the decision of this Court in R. C. Cooper v. Union of India, (1970) 2 SCC 298 the minority view must be regarded as correct and the majority view must be held to hav .....

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rger 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 .....

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that the right to privacy insofar as it pertains to speech is part of fundamental rights under Articles 19(1)(a) and 21 of the Constitution Para 18. The right to privacy - by itself - has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case. But the right to hold a telephone conversation in the privacy of one s h .....

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or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law. 19. Right to freedom of speech and expression is guaranteed under Article 19(1)(a) of the Constitution. This freedom means the right to express one s convictions and opinions freely by word of mouth, writing, printing, picture, or in any other manner. When a person is talking on telephone, he is exercising his right to freedom of speech and expr .....

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that the Constitution of India does not recognise privacy as an aspect of the liberty under Article 21 of the Constitution of India. At least to the extent that the right of a person to be secure in his house and not to be disturbed unreasonably by the State or its officers is expressly recognized and protected in Kharak Singh (supra) though the majority 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 .....

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uded 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 conc .....

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cy is either asserted or referred be examined and authoritatively decided by a Bench of appropriate strength. 14. We, therefore, direct the Registry to place these matters before the Hon ble the Chief Justice of India for appropriate orders. J. Chelameswar, S. A. Bobde And C. Nagappan,JJ. August 11, 2015 INTERIM ORDER After the matter was referred for decision by a larger Bench, the learned counsel for the petitioners prayed for further interim orders. The last interim order in force is the orde .....

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to any illegal immigrant. It was submitted by Shri Shyam Divan, learned counsel for the petitioners that the petitioners having pointed out a serious breach of privacy in their submissions, preceding the reference, this Court may grant an injunction restraining the authorities from proceeding further in the matter of obtaining biometrics etc. for an Aadhaar card. Shri Shyam Divan submitted that the biometric information of an individual can be circulated to other authorities or corporate bodies .....

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er 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 b .....

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