TMI Blog2017 (8) TMI 938X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. An invasion of life or personal liberty must meet the three-fold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate state aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them; and 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. - WP(C) 494 OF 2012 - - - Dated:- 24-8-2017 - T.C. (CIVIL) NO 151 OF 2013 T.C. (CIVIL) NO 152 OF 2013 W.P.(CIVIL) NO 833 OF 2013 W.P.(CIVIL) NO 829 OF 2013 W.P.(CIVIL) NO 932 OF 2013 CONMT. PET. (CIVIL) NO 144 OF 2014 IN W.P.(C) NO. 494/2012 T.P.(CIVIL) NO 313 OF 2014 T.P.(CIVIL) NO 312 OF 2014 S.L.P(CRL.) NO.2524/2014 W.P.(CIVIL) NO.37/2015 W.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich our Constitution has been founded and their consequences for a way of life it seeks to protect. This case presents challenges for constitutional interpretation. If privacy is to be construed as a protected constitutional value, it would redefine in significant ways our concepts of liberty and the entitlements that flow out of its protection. 2 Privacy, in its simplest sense, allows each human being to be left alone in a core which is inviolable. Yet the autonomy of the individual is conditioned by her relationships with the rest of society. Those relationships may and do often pose questions to autonomy and free choice. The overarching presence of state and non- state entities regulates aspects of social existence which bear upon the freedom of the individual. The preservation of constitutional liberty is, so to speak, work in progress. Challenges have to be addressed to existing problems. Equally, new challenges have to be dealt with in terms of a constitutional understanding of where liberty places an individual in the context of a social order. The emergence of new challenges is exemplified by this case, where the debate on privacy is being analysed in the context of a gl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and People s Union for Civil Liberties v Union of India8 ( PUCL ). These subsequent decisions which affirmed the existence of a constitutionally protected right of privacy, were rendered by Benches of a strength smaller than those in M P Sharma and Kharak Singh. Faced with this predicament and having due regard to the far-reaching questions of importance involving interpretation of the Constitution, it was felt that institutional integrity and judicial discipline would require a reference to a larger Bench. Hence the Bench of three learned judges observed in its order dated 11 August 2015: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior counsel. Mr J S Attri, learned senior counsel supported them on behalf of the State of Himachal Pradesh. On behalf of the Union of India, the Court has had the benefit of the erudite submissions of Mr K K Venugopal, Attorney General for India. He has been ably supported by Mr Tushar Mehta, Additional Solicitor General, Mr Rakesh Dwivedi, senior counsel for the State of Gujarat, Mr Aryama Sundaram for the State of Maharashtra, Mr Gopal Sankaranarayanan and Dr Arghya Sengupta respectively. While some state governments have supported the stand of the Union government, others have supported the petitioners. 7 The correctness of the decisions in M P Sharma and Kharak Singh, is to be evaluated during the course of the reference. Besides, the jurisprudential correctness of subsequent decisions holding the right to privacy to be a constitutionally protected right is to be determined. The basic question whether privacy is a right protected under our Constitution requires an understanding of what privacy means. For it is when we understand what interests or entitlements privacy safeguards, that we can determine whether the Constitution protects privacy. The contents of privacy need to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscussion. A notice to produce is addressed to the party concerned and his production in compliance therewith constitutes a testimonial act by him within the meaning of Article 20(3) as above explained. But a search warrant is addressed to an officer of the Government, generally a police officer. Neither the search nor the seizure are acts of the occupier of the searched premises. They are acts of another to which he is obliged to submit and are, therefore, not his testimonial acts in any sense. 10 9 Having held that the guarantee against self-incrimination is not offended by a search and seizure, the Court observed that : 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 not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction. Nor is it legitimate to assume that the constitutional prote ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sider either the precise relationship between the liberties in Article 19(1)(a) (d) on the one hand and that in Article 21 on the other, or the content and significance of the words procedure established by law in the latter Article, both of which were the subject of elaborate consideration by this Court in A.K. Gopalan v. State of Madras. 12 14 The decision in Kharak Singh held that clause (b) of Regulation 236 which provided for domiciliary visits at night was violative of Article 21. The Court observed: Is then the word personal liberty to be construed as excluding from its purview an invasion on the part of the police of the sanctity of a man's home and an intrusion into his personal security and his right to sleep which is the normal comfort and a dire necessity for human existence even as an animal? It might not be inappropriate to refer here to the words of the preamble to the Constitution that it is designed to assure the dignity of the individual and therefore of those cherished human values as the means of ensuring his full development and evolution. We are referring to these objectives of the framers merely to draw attention to the concepts underly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decision invalidated domiciliary visits at night authorised by Regulation 236 (b), finding them to be an unauthorized intrusion into the home of a person and a violation of the fundamental right to personal liberty. However, while considering the validity of clauses (c),(d) and (e) which provided for periodical enquiries, reporting by law enforcement personnel and verification of movements, this Court held as follows : the freedom guaranteed by Article 19(1)(d) is not infringed by a watch being kept over the movements of the suspect. Nor do we consider that Article 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 movements 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. 17 (emphasis supplied) In the context of clauses (c), (d) and (e), the above extract indicates the view of the majority that the right of privacy is not guaranteed under the Constitution. 17 Justice Subba Rao dissented. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nelling one's actions through anticipated and expected grooves. So also the creation of conditions which necessarily engender inhibitions and fear complexes can be described as physical restraints. Further, the right to personal liberty takes in not only a right to be free from restrictions placed on his movements, but also free from encroachments on his private life. It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty. Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a person's house, where he lives with his family, is his castle ; it is his rampart against encroachment on his personal liberty. The pregnant words of that famous Judge, Frankfurter J., in Wolf v. Colorado [[1949] 238 US 25] pointing out the importance of the security of one's privacy against arbitrary intrusion by the police, could have no less application to an Indian home as to an American one. If physical restraints on a person's movements affect his personal liberty, physical encroach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chief Justice Kania held : Reading Article 19 in that way it appears to me that the concept of the right to move freely throughout the territory of India is an entirely different concept from the right to personal liberty contemplated by Article 21. Personal liberty covers many more rights in one sense and has a restricted meaning in another sense. For instance, while the right to move or reside may be covered by the expression, personal liberty the right to freedom of speech (mentioned in Article 19(1)(a)) or the right to acquire, hold or dispose of property (mentioned in 19(1)(f)) cannot be considered a part of the personal liberty of a citizen. They form part of the liberty of a citizen but the limitation imposed by the word personal leads me to believe that those rights are not covered by the expression personal liberty. So read there is no conflict between Articles 19 and 21. The contents and subject-matters of Articles 19 and 21 are thus not the same and they proceed to deal with the rights covered by their respective words from totally different angles. As already mentioned in respect of each of the rights specified in sub-clauses of Article 19(1) specific limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words, the State must satisfy that both the fundamental rights are not infringed by showing that there is a law and that it does not amount to an unreasonable restriction within the meaning of Article 19(2) of the Constitution. As in that case there was no law, fundamental rights, both under Article 19(1)(d) and Article 21 were held to be infringed. The learned Chief Justice has read into the decision of the Court a meaning which it does not intend to convey. He excludes from Article 21 the right to free motion and locomotion within the territories of India and puts the right to travel abroad in Article 21. He wants to see a law and if his earlier reasoning were to prevail, the law should stand the test of Article 19(2). But since clause (2) deals with matters in Article 19(1) already held excluded, it is obvious that it will not apply. The law which is made can only be tested on the ground of articles other than Article 19 such as Articles 14, 20 and 22 which alone bears upon this matter. In other words, the majority decision of the Court in this case has rejected Ayyangar J.'s view and accepted the view of the minority in Kharak Singh case This view obviously clashes w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rotection of those rights in their allotted fields: they do not attempt to enunciate distinct rights. 24 (emphasis supplied) 22 The abrogation of the Gopalan doctrine in Cooper was revisited in a seven- judge Bench decision in Maneka. Justice P N Bhagwati who delivered the leading opinion of three Judges held that the judgment in Cooper affirms the dissenting opinion of Justice Subba Rao (in Kharak Singh) as expressing the valid constitutional position. Hence in Maneka, the Court held that: It was in Kharak Singh v. State of U.P.[AIR 1963 SC 1295 : (1964) 1 SCR 332 : (1963) 2 Cri LJ 329] that the question as to the proper scope and meaning of the expression personal liberty came up pointedly for consideration for the first time before this Court. The majority of the Judges took the view that personal liberty is used in the article as a compendious term to include within itself all the varieties of rights which go to make up the personal liberties 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 comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is fair, just and reasonable. 24 The decisions in M P Sharma and Kharak Singh adopted a doctrinal position on the relationship between Articles 19 and 21, based on the view of the majority in Gopalan. This view stands abrogated particularly by the judgment in Cooper and the subsequent statement of doctrine in Maneka. The decision in Maneka, in fact, expressly recognized that it is the dissenting judgment of Justice Subba Rao in Kharak Singh which represents the exposition of the correct constitutional principle. The jurisprudential foundation which held the field sixty three years ago in M P Sharma and fifty five years ago in Kharak Singh has given way to what is now a settled position in constitutional law. Firstly, the fundamental rights emanate from basic notions of liberty and dignity and the enumeration of some facets of liberty as distinctly protected rights under Article 19 does not denude Article 21 of its expansive ambit. Secondly, the validity of a law which infringes the fundamental rights has to be tested not with reference to the object of state action but on the basis of its effect on the guarantees of freedom. Thirdly, the requirement of Article 14 that state a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of liberty and, as an integral part of human dignity, is comprehended within the protection of life as well. 27 The decision in Kharak Singh is noteworthy because while invalidating Regulation 236(b) of the Police Regulations which provided for nightly domiciliary visits, the majority construed this to be an unauthorized intrusion into a person s home and a violation of ordered liberty. While arriving at this conclusion, the majority placed reliance on the privacy doctrine enunciated by Justice Frankfurter, speaking for the US Supreme Court in Wolf v Colorado (the extract from Wolf cited in the majority judgment specifically adverts to privacy twice). Having relied on this doctrine to invalidate domiciliary visits, the majority in Kharak Singh proceeded to repel the challenge to other clauses of Regulation 236 on the ground that the right of privacy is not guaranteed under the Constitution and hence Article 21 had no application. This part of the judgment in Kharak Singh is inconsistent with the earlier part of the decision. The decision of the majority in Kharak Singh suffers from an internal inconsistency. F Origins of privacy 28 An evaluation of the origins of pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the private realms : jus publicum and jus privatum. The distinction between the public and private realms has its limitations. If the reason for protecting privacy is the dignity of the individual, the rationale for its existence does not cease merely because the individual has to interact with others in the public arena. The extent to which an individual expects privacy in a public street may be different from that which she expects in the sanctity of the home. Yet if dignity is the underlying feature, the basis of recognising the right to privacy is not denuded in public spaces. The extent of permissible state regulation may, however, differ based on the legitimate concerns of governmental authority. 33 James Madison, who was the architect of the American Constitution, contemplated the protection of the faculties of the citizen as an incident of the inalienable property rights of human beings. In his words : In the former sense, a man s land, or merchandize, or money is called his property. In the latter sense, a man has property in his opinions and the free communication of them He has an equal property interest in the free use of his faculties and free choic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury. 32 In their seminal article, Warren and Brandeis observed that: The principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality. 33 (emphasis supplied) The right to be let alone thus represented a manifestation of an inviolate personality , a core of freedom and liberty from which the human being had to be free from intrusion. The technology which provided a justification for the need to preserve the privacy of the individual was the development of photography. The right to be let alone was not so much an incident of property as a reflection of the inviolab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portable cameras, sound recording devices, and better and cheaper methods of making window glass. Warren and Brandeis recognized that these advances in technology, coupled with intensified newspaper enterprise, increased the vulnerability of individuals to having their actions, words, images, and personalities communicated without their consent beyond the protected circle of family and chosen friends. 38 Coupled with this was the trend towards newspaperization 39, the increasing presence of the print media in American society. Six months before the publication of the Warren and Brandeis article, E L Godkin, a newspaper man had published an article on the same subject in Scribner s magazine in July 1890. Godkin, however, suggested no realistic remedy for protecting privacy against intrusion, save and except by the cudgel or the horsewhip 40. It was Warren and Brandeis who advocated the use of the common law to vindicate the right to privacy.41 38 Criminal libel actions were resorted to in the US during a part of the nineteenth century but by 1890, they had virtually ceased to be a viable protection for individual privacy 42. The Sedition Act of 1789 expired in 1801. Befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of life, limbs, body, health and reputation by an individual. 41 The notion that certain rights are inalienable was embodied in the American Declaration of Independence (1776) in the following terms: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness . (emphasis supplied) The term inalienable rights was incorporated in the Declaration of the Rights of Man and of the Citizen (1789) adopted by the French National Assembly in the following terms: For its drafters, to ignore, to forget or to depreciate the rights of man are the sole causes of public misfortune and government corruption. These rights are natural rights, inalienable and sacred, the National Assembly recognizes and proclaims them-it does not grant, concede or establish them-and their conservation is the reason for all political communities; within these rights figures resistance to oppression . (emphasis supplied) 42 In 1921, Roscoe Pound, in his work titled The Spirit of the Common Law , explained the meaning of natural rights: Natural r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s because they are human. They exist equally in the individual irrespective of class or strata, gender or orientation. 45 Distinguishing an inalienable right to an object from the object itself emphasises the notion of inalienability. All human beings retain their inalienable rights (whatever their situation, whatever their acts, whatever their guilt or innocence). The concept of natural inalienable rights secures autonomy to human beings. But the autonomy is not absolute, for the simple reason that, the concept of inalienable rights postulates that there are some rights which no human being may alienate. While natural rights protect the right of the individual to choose and preserve liberty, yet the autonomy of the individual is not absolute or total. As a theoretical construct, it would otherwise be strictly possible to hire another person to kill oneself or to sell oneself into slavery or servitude. Though these acts are autonomous, they would be in violation of inalienable rights. This is for the reason that: These acts, however autonomous, would be in violation of inalienable rights, as the theories would have it. They would be morally invalid, and ineffective actual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rights make sense, then the degrees of their importance cannot be so different that some count not at all when others are mentioned55 If the Government does not take rights seriously, then it does not take law seriously either56 Dworkin states that judges should decide how widely an individual s rights extend. He states: Indeed, the suggestion that rights can be demonstrated by a process of history rather than by an appeal to principle shows either a confusion or no real concern about what rights are This has been a complex argument, and I want to summarize it. Our constitutional system rests on a particular moral theory, namely, that men have moral rights against the state. The different clauses of the Bill of Rights, like the due process and equal protection clauses, must be understood as appealing to moral concepts rather than laying down particular concepts; therefore, a court that undertakes the burden of applying these clauses fully as law must be an activist court, in the sense that it must be prepared to frame and answer questions of political morality 57 A later section of this judgment deals with how natural and inalienable rights have been dev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of the decision in Griswold v Connecticut62 ( Griswold ) in which a conviction under a statute on a charge of giving information and advice to married persons on contraceptive methods was held to be invalid. This Court adverted to the dictum that specific guarantees of the Bill of Rights have penumbras which create zones of privacy. The Court also relied upon the US Supreme Court decision in Jane Roe v Henry Wade63 in which the Court upheld the right of a married woman to terminate her pregnancy as a part of the right of personal privacy. The following observations of Justice Mathew, who delivered the judgment of the Court do indicate a constitutional recognition of the right to be let alone : There can be no doubt that the makers of our Constitution wanted to ensure conditions favourable to the pursuit of happiness. They certainly realized as Brandeis, J. said in his dissent in Olmstead v. United States64, the significance of man s spiritual nature, of his feelings and of his intellect and that only a part of the pain, pleasure, satisfaction of life can be found in material things and therefore, they must be deemed to have conferred upon the individual as against the gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... problems of defining the essence and scope of the right. Privacy interest in autonomy must also be placed in the context of other rights and values. 67 (emphasis supplied) Justice Mathew proceeded to explain what any right of privacy must encompass and protect and found it to be implicit in the concept of ordered liberty : Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing. This catalogue approach to the question is obviously not as instructive as it does not give an analytical picture of the distinctive characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as unifying principle underlying the concept has been the assertion that a claimed right must be a fundamental right implicit in the concept of ordered liberty. 68 In adverting to ordered liberty, the judgment is similar to the statement in the judgment of Justice Rajagopala Ayyangar in Kharak Singh which found the intrusion of the home by nightly domiciliary visits a violation of ordered liberty. The Court proceeded to hold that in any event, the right to privacy will need a case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contours of such a right are, emerges from a reading of those decisions. This is the next aspect to which we now turn. 51 Malak Singh v State of Punjab and Haryana71 ( Malak Singh ) dealt with the provisions of Section 23 of the Punjab Police Rules under which a surveillance register was to be maintained among other persons, of all convicts of a particular description and persons who were reasonably believed to be habitual offenders whether or not, they were convicted. The validity of the rules was not questioned in view of the decisions in Kharak Singh and Gobind. The rules provided for modalities of surveillance. Justice O Chinnappa Reddy speaking for a Bench of two judges of this Court recognised the need for surveillance on habitual and potential offenders. In his view: Prevention of crime is one of the prime purposes of the constitution of a police force. The preamble to the Police Act, 1861 says: Whereas it is expedient to reorganise the police and to make it a more efficient instrument for the prevention and detection of crime. Section 23 of the Police Act prescribes it as the duty of police officers to collect and communicate intelligence affecting the public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titled to access the register nor was a pre-decisional hearing compliant with natural justice warranted. Confidentiality, this Court held, was required in the interest of the public, including keeping in confidence the sources of information. Again the Court held: But all this does not mean that the police have a licence to enter the names of whoever they like (dislike?) in the surveillance register; nor can the surveillance be such as to squeeze the fundamental freedoms guaranteed to all citizens or to obstruct the free exercise and enjoyment of those freedoms; nor can the surveillance so intrude as to offend the dignity of the individual. Surveillance of persons who do not fall within the categories mentioned in Rule 23.4 or for reasons unconnected with the prevention of crime, or excessive surveillance falling beyond the limits prescribed by the rules, will entitle a citizen to the court's protection which the court will not hesitate to give. The very Rules which prescribe the conditions for making entries in the surveillance register and the mode of surveillance appear to recognise the caution and care with which the police officers are required to proceed. The note fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate it against her wish. She is equally entitled to the protection of law. Therefore, merely because she is a woman of easy virtue, her evidence cannot be thrown overboard. At the most the officer called upon to evaluate her evidence would be required to administer caution unto himself before accepting her evidence. 75 (emphasis supplied) As the above extract indicates, the issue before this Court was essentially based on the appreciation of the evidence of the victim by the High Court. However, the observations of this Court make a strong statement of the bodily integrity of a woman, as an incident of her privacy. 53 The decision In Life Insurance Corporation of India v Prof Manubhai D Shah76, incorrectly attributed to the decision in Indian Express Newspapers (Bombay) Pvt Ltd v Union of India77 the principle that the right to free expression under Article 19(1)(a) includes the privacy of communications. The judgment of this Court in Indian Express cited a U N Report but did no more. 54 The decision which has assumed some significance is Rajagopal78 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arak Singh [(1964) 1 SCR 332 : AIR 1963 SC 1295 : (1963) 2 Cri LJ 329] was followed even while at the same time elaborating the right to privacy 80 The Court held that neither the State nor its officials can impose prior restrictions on the publication of an autobiography of a convict. In the course of its summary of the decision, the Court held: (1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a right to be let alone . A citizen has a right to safeguard the privacy of his home, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent - whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy. (2) The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ises privacy as a protected constitutional right, while tracing it to Article 21. 56 In an interesting research article on State s surveillance and the right to privacy , a contemporary scholar has questioned the theoretical foundation of the decision in Rajagopal on the ground that the case essentially dealt with cases in the US concerning privacy against governmental intrusion which was irrelevant in the factual situation before this Court.82 In the view of the author, Rajagopal involved a publication of an article by a private publisher in a magazine, authored by a private individual, albeit a convict. Hence the decision has been criticized on the ground that Rajagopal was about an action between private parties and, therefore, ought to have dealt with privacy in the context of tort law.83 While it is true that in Rajagopal it is a private publisher who was seeking to publish an article about a death row convict, it is equally true that the Court dealt with a prior restraint on publication imposed by the state and its prison officials. That is, in fact, how Article 32 was invoked by the publisher. 57 The intersection between privacy and medical jurisprudence has been deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the right to be let alone when a doctor breaches confidentiality. The Court held that: Disclosure of even true private facts has the tendency to disturb a person's tranquillity. It may generate many complexes in him and may even lead to psychological problems. He may, thereafter, have a disturbed life all through. In the face of these potentialities, and as already held by this Court in its various decisions referred to above, the right of privacy is an essential component of the right to life envisaged by Article 21. The right, however, is not absolute and may be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others. 86 However, the disclosure that the appellant was HIV+ was held not to be violative of the right to privacy of the appellant on the ground that the woman to whom he was to be married was saved in time by such disclosure and from the risk of being infected . The denial of a claim for compensation by the NCDRC was upheld. 58 The decision in Mr X v Hospital Z fails to adequately appreciate that the latter part of the decision in Kharak Singh declined to accept privacy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gone even further by invalidating Regulation 236, in its entirety. The judgment, therefore, construes both the majority and minority judgments as having affirmed the right to privacy as a part of Article 21: Article 21 of the Constitution has, therefore, been interpreted by all the seven learned Judges in Kharak Singh case [(1964) 1 SCR 332 : AIR 1963 SC 1295] (majority and the minority opinions) to include that right to privacy as a part of the right to protection of life and personal liberty guaranteed under the said Article. 88 Gobind was construed to have upheld the validity of State Police Regulations providing surveillance on the ground that the procedure established by law under Article 21 had not been violated. After completing its summation of precedents, Justice Kuldip Singh held as follows: We have, therefore, no hesitation in holding that right to privacy is a part of the right to life and personal liberty enshrined under Article 21 of the Constitution. Once the facts in a given case constitute a right to privacy, Article 21 is attracted. The said right cannot be curtained except according to procedure established by law . 89 Telephone con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es envisaging telephone tapping. 61 The judgment in PUCL construes the earlier decisions in Kharak Singh (especially the majority view on the invalidity of domiciliary visits), Gobind and Rajagopal in holding that the right to privacy is embodied as a constitutionally protected right under Article 21. The Court was conscious of the fact that the right to privacy has by itself not been identified under the Constitution. The expression by itself may indicate one of two meanings. The first is that the Constitution does not recognise a standalone right to privacy. The second recognizes that there is no express delineation of such a right. Evidently, the Court left the evolution of the contours of the right to a case by case determination. Telephone conversations from the home or office were construed to be an integral element of the privacy of an individual. In PUCL, the Court consciously established the linkages between various articles conferring guarantees of fundamental rights when it noted that wire-tapping infringes privacy and in consequence the right to life and personal liberty under Article 21 and the freedom of speech and expression under Article 19(1)(a). The need to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Furthermore, the court must be held to have the requisite power even under Section 151 of the Code of Civil Procedure to issue such direction either suo motu or otherwise which, according to him, would lead to the truth.96 64 The second question considered by the Court was whether a compulsive subjecting of a person to a medical examination violates Article 21. After noticing the observations in M P Sharma and Kharak Singh where it was held that the Constitution has not guaranteed the right of privacy, the Court held that in subsequent decisions, such a right has been read into Article 21 on an expansive interpretation of personal liberty. In the course of its judgment, the Court adverted to the decisions in Rajagopal, PUCL, Gobind and Mr X v Hospital Z on the basis of which it stated that it had outlined the law relating to privacy in India . In the view of this Court, in matrimonial cases where a decree of divorce is sought on medical grounds, a medical examination is the only way in which an allegation could be proved. In such a situation: If the respondent avoids such medical examination on the ground that it violates his/her right to privacy or for that matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty referred to Munn v. Illinois [94 US 113 : 24 L Ed 77 (1877)] and held that though our Constitution did not refer to the right to privacy expressly, still it can be traced from the right to life in Article 21. According to the majority, clause 236 of the relevant Regulations in U.P., was bad in law; it offended Article 21 inasmuch as there was no law permitting interference by such visits. The majority did not go into the question whether these visits violated the right to privacy . But, Subba Rao, J. while concurring that the fundamental right to privacy was part of the right to liberty in Article 21, part of the right to freedom of speech and expression in Article 19(1)(a), and also of the right to movement in Article 19(1)(d), held that the Regulations permitting surveillance violated the fundamental right of privacy. In the discussion the learned Judge referred to Wolf v. Colorado [338 US 25 : 93 L Ed 1782 (1949)] . In effect, all the seven learned Judges held that the right to privacy was part of the right to life in Article 21. 103 (emphasis supplied) The decision in Gobind is construed to have implied the right to privacy in Articles 19(1)(a) and 21 of the Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... need to make a search of this nature reasonable. The second part of the ruling of the Court is equally important for it finds fault with a statutory provision which allows an excessive delegation of the power conferred upon the Collector to inspect documents. The provision, the Court rules, would allow the customers privacy to be breached by non-governmental persons. Hence the statute, insofar as it allowed the Collector to authorize any person to seek inspection, would be unenforceable. In the view of the Court: Secondly, the impugned provision in Section 73 enabling the Collector to authorise any person whatsoever to inspect, to take notes or extracts from the papers in the public office suffers from the vice of excessive delegation as there are no guidelines in the Act and more importantly, the section allows the facts relating to the customer's privacy to reach non-governmental persons and would, on that basis, be an unreasonable encroachment into the customer's rights. This part of Section 73 permitting delegation to any person suffers from the above serious defects and for that reason is, in our view, unenforceable. The State must clearly define the officers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly by this Court in P R Metrani v Commissioner of Income Tax107 on the ground that they constitute a serious intrusion into the privacy of a citizen . Similarly, the search and seizure provisions of Sections 42 and 43 of the NDPS108 Act were construed by this Court in Directorate of Revenue v Mohd Nisar Holia109. Adverting to Canara Bank, among other decisions, the Court held that the right to privacy is crucial and imposes a requirement of a written recording of reasons before a search and seizure could be carried out. 68 Section 30 of the Punjab Excise Act, 1914 prohibited the employment of any man under the age of 25 years or any woman in any part of the premises in which liquor or an intoxicating drug is consumed by the public. The provision was also challenged in Anuj Garg v Hotel Association of India110 on the ground that it violates the right to privacy. While holding that the provision is ultra vires, the two-judge Bench observed: Privacy rights prescribe autonomy to choose profession whereas security concerns texture methodology of delivery of this assurance. But it is a reasonable proposition that that the measures to safeguard such a guarantee of autonomy sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;s personal affair and it is a part of his right to privacy which is included in Article 21 of our Constitution as held by several decisions of this Court. In R. Rajagopal v. State of T.N. [(1994) 6 SCC 632 : AIR 1995 SC 264] (vide SCC para 26 : AIR para 28) this Court held that the right to privacy is implicit in the right to life and liberty guaranteed by Article 21. It is a right to be let alone . 115 (emphasis supplied) However, since the closure of slaughterhouses was for a period of nine days, the Court came to the conclusion that it did not encroach upon the freedom guaranteed by Article 19(1)(g). The restriction was held not to be excessive. 70 The decision in the State of Maharashtra v Bharat Shanti Lal Shah116 deals with the constitutional validity of Sections 13 to 16 of the Maharashtra Control of Organized Crime Act (MCOCA) which inter alia contains provisions for intercepting telephone and wireless communications. Upholding the provision, the Court observed: The object of MCOCA is to prevent the organised crime and a perusal of the provisions of the Act under challenge would indicate that the said law authorises the interception of wire, electronic or o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht to make reproductive choices is also a dimension of personal liberty as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman's right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman's right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods. Furthermore, women are also free to choose birth control methods such as undergoing sterilisation procedures. Taken to their logical conclusion, reproductive rights include a woman's entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children. However, in the case of pregnant women there is also a compelling State interest in protecting the life of the prospective child. Therefore, the termination of a pregnancy is only permitted when the conditions specified in the applicable statute have been fulfilled. Hence, the provisions of the MTP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause (5) of Article 19. 123 74 In Selvi v State of Karnataka124 ( Selvi ), a Bench of three judges of this Court dealt with a challenge to the validity of three investigative techniques: narco-analysis, polygraph test (lie-detector test) and Brain Electrical Activation Profile (BEAP) on the ground that they implicate the fundamental rights under Articles 20(3) and 21 of the Constitution. The Court held that the results obtained through an involuntary administration of these tests are within the scope of a testimonial, attracting the protective shield of Article 20(3) of the Constitution. Chief Justice Balakrishnan adverted to the earlier decisions rendered in the context of privacy and noted that thus far, judicial understanding had stressed mostly on the protection of the body and physical actions induced by the state. The Court emphasised that while the right against self-incrimination is a component of personal liberty under Article 21, privacy under the constitution has a meeting point with Article 20(3) as well. In the view of the Court: The theory of interrelationship of rights mandates that the right against self-incrimination should also be read as a component of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which result in invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have devastating effect on the child. Sometimes the result of such scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception. 127 76 In Amar Singh v Union of India128, a Bench of two judges of this Court dealt with a petition under Article 32 alleging that the fundamental right to privacy of the petitioner was being breached by intercepting his conversations on telephone services provided by a service provider. The Court held: Considering the materials on record, this Court is of the opinion that it is no doubt true that the service provider has to act on an urgent basis and has to act in public interest. But in a given case, like the present one, where the impugned communication dated 9- 11-2005 is full of gross mistakes, the service provider while immediately acting upon the same, should simultaneously verify the authenticity of the same from the author of the document. This Court is of the opinion that the service provider has to act as a responsible agency and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r alia, are ever vigilant about the functioning of the State in order to protect the constitutional project. That right cannot be extended to being inquisitors of fellow citizens. An inquisitorial order, where citizens' fundamental right to privacy is breached by fellow citizens is destructive of social order. The notion of fundamental rights, such as a right to privacy as part of right to life, is not merely that the State is enjoined from derogating from them. It also includes the responsibility of the State to uphold them against the actions of others in the society, even in the context of exercise of fundamental rights by those others. 131 (emphasis supplied) The Court held that while the State could access details of the bank accounts of citizens as an incident of its power to investigate and prosecute crime, this would not enable a private citizen to compel a citizen to reveal bank accounts to the public at large. 78 In Sanjoy Narayan v High Court of Allahabad132, the two-judge Bench dealt with a contempt petition in respect of publication of an incorrect report in a newspaper which tarnished the image of the Chief Justice of a High Court. The Court made the follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment and security purposes. Justice Swatanter Kumar, speaking for the Court, held thus: Certain matters, particularly in relation to appointment, are required to be dealt with great confidentiality. The information may come to knowledge of the authority as a result of disclosure by others who give that information in confidence and with complete faith, integrity and fidelity. Secrecy of such information shall be maintained, thus, bringing it within the ambit of fiduciary capacity. Similarly, there may be cases where the disclosure has no relationship to any public activity or interest or it may even cause unwarranted invasion of privacy of the individual. All these protections have to be given their due implementation as they spring from statutory exemptions. It is not a decision simpliciter between private interest and public interest. It is a matter where a constitutional protection is available to a person with regard to the right to privacy. Thus, the public interest has to be construed while keeping in mind the balance factor between right to privacy and right to information with the purpose sought to be achieved and the purpose that would be served in the larger pub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acted by the legislature in recognition of the constitutional protection of privacy. The Court held thus: The right to privacy is also not expressly guaranteed under the Constitution of India. However, the Privacy Bill, 2011 to provide for the right to privacy to citizens of India and to regulate the collection, maintenance and dissemination of their personal information and for penalisation for violation of such rights and matters connected therewith, is pending. In several judgments including Kharak Singh v. State of U.P .[AIR 1963 SC 1295 : (1963) 2 Cri LJ 329] , R. Rajagopal v. State of T.N. [(1994) 6 SCC 632] , People's Union for Civil Liberties v. Union of India [(1997) 1 SCC 301] and State of Maharashtra v. Bharat Shanti Lal Shah [(2008) 13 SCC 5] this Court has recognised the right to privacy as a fundamental right emanating from Article 21 of the Constitution of India. 141 Recognising the fact that the right to privacy is a sacrosanct facet of Article 21 of the Constitution, the legislation has put a lot of safeguards to protect the rights under Section 8(j), as already indicated. 142 This Court held that on facts the cooperative societies were not publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rotection against arbitrary and unlawful interference with a person s privacy, family and home would, it was held, be read in a manner which harmonizes the fundamental rights contained in Articles 14, 15, 19 and 21 with India s international obligations. Justice K S Radhakrishnan held that: Gender identity, therefore, lies at the core of one's personal identity, gender expression and presentation and, therefore, it will have to be protected under Article 19(1)(a) of the Constitution of India. A transgender's personality could be expressed by the transgender's behaviour and presentation. State cannot prohibit, restrict or interfere with a transgender's expression of such personality, which reflects that inherent personality. Often the State and its authorities either due to ignorance or otherwise fail to digest the innate character and identity of such persons. We, therefore, hold that values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community under Article 19(1)(a) of the Constitution of India and the State is bound to protect and recognise those rights. 146 Explaining the ambi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r rights which are enumerated in Part III of the Constitution. 85 In ABC v The State (NCT of Delhi)149, the Court dealt with the question whether it is imperative for an unwed mother to specifically notify the putative father of the child of her petition for appointment as guardian of her child. It was stated by the mother of the child that she does not want the future of her child to be marred by any controversy regarding his paternity, which would indubitably result should the father refuse to acknowledge the child as his own. It was her contention that her own fundamental right to privacy will be violated if she is compelled to disclose the name and particulars of the father of her child. Looking into the interest of the child, the Bench directed that if a single parent/unwed mother applies for the issuance of a Birth Certificate for a child born from her womb, the Authorities concerned may only require her to furnish an affidavit to this effect, and must thereupon issue the Birth Certificate, unless there is a Court direction to the contrary 150. 86 While considering the constitutional validity of the Constitution (Ninety-Ninth Amendment) Act, 2014 which enunciated an in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e complete without evaluating what the trilogy of cases has decided. 88 M P Sharma dealt with a challenge to a search on the ground that the statutory provision which authorized it, violated the guarantee against self-incrimination in Article 20(3). In the absence of a specific provision like the Fourth Amendment to the US Constitution in the Indian Constitution, the Court answered the challenge by its ruling that an individual who is subject to a search during the course of which material is seized does not make a voluntary testimonial statement of the nature that would attract Article 20(3). The Court distinguished a compulsory search from a voluntary statement of disclosure in pursuance of a notice issued by an authority to produce documents. It was the former category that was held to be involved in a compulsive search, which the Court held would not attract the guarantee against self- incrimination. The judgment, however, proceeded further to hold that in the absence of the right to privacy having been enumerated in the Constitution, a provision like the Fourth Amendment to the US Constitution could not be read into our own. The observation in regard to the absence of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of interests grounded in privacy in the first part, under the conceptual foundation of ordered liberty. 90 Gobind proceeded on the basis of an assumption and explains what according to the Court would be the content of the right to privacy if it is held to be a constitutional right. Gobind underlines that the right would be intrinsic to ordered liberty and would cover intimate matters such as family, marriage and procreation. Gobind, while recognizing that the right would not be absolute and would be subject to the regulatory power of the State, conditioned the latter on the existence of a compelling state interest. The decision also brings in the requirement of a narrow tailoring of the regulation to meet the needs of a compelling interest. The Bench which decided Gobind adverted to the decision in Kharak Singh (though not M P Sharma). Be that as it may, Gobind has proceeded on the basis of an assumption that the right to privacy is a constitutionally protected right in India. Subsequent decisions of this Court have treated the formulation of a right to privacy as one that emerges out of Kharak Singh or Gobind (or both). Evidently, it is the first part of the decision in Khar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trusions on liberty, such as surveillance. As Indian society has evolved, the assertion of the right to privacy has been considered by this Court in varying contexts replicating the choices and autonomy of the individual citizen. 92 The deficiency, however, is in regard to a doctrinal formulation of the basis on which it can be determined as to whether the right to privacy is constitutionally protected. M P Sharma need not have answered the question; Kharak Singh dealt with it in a somewhat inconsistent formulation while Gobind rested on assumption. M P Sharma being a decision of eight judges, this Bench has been called upon to decide on the objection of the Union of India to the existence of such a right in the first place. I The Indian Constitution Preamble 93 The Preamble to the Constitution postulates that the people of India have resolved to constitute India into a Republic which (among other things) is Sovereign and Democratic and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in the realisation of individual rights that the collective well being of the community is determined. Human dignity is an integral part of the Constitution. Reflections of dignity are found in the guarantee against arbitrariness (Article 14), the lamps of freedom (Article 19) and in the right to life and personal liberty (Article 21). 97 In Prem Shankar Shukla v Delhi Administration156, which arose from the handcuffing of the prisoners, Justice Krishna Iyer, speaking for a three-judge Bench of this Court held: the guarantee of human dignity, which forms part of our constitutional culture, and the positive provisions of Articles 14, 19 and 21 spring into action when we realise that to manacle man is more than to mortify him; it is to dehumanize him and, therefore, to violate his very personhood, too often using the mask of 'dangerousness' and security 157 The Preamble sets the humane tone and temper of the Founding Document and highlights Justice, Equality and the dignity of the individual. 158 98 A Bench of two judges in Francis Coralie Mullin v Union Territory of Delhi159 ( Francis Coralie ) while construing the entitlement of a detenue under the Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn by the police and were beaten up in police custody, this Court in Khedat Mazdoor Chetna Sangath v State of M P165 held that: It is, therefore, absolutely essential in the interest of justice, human dignity and democracy that this Court must intervene; order an investigation determine the correct facts and take strongest possible action against the respondents who are responsible for these atrocities 166 If dignity or honor vanishes what remains of life. 167 101 Human dignity was construed in M Nagaraj v Union of India168 by a Constitution Bench of this Court to be intrinsic to and inseparable from human existence. Dignity, the Court held, is not something which is conferred and which can be taken away, because it is inalienable: The rights, liberties and freedoms of the individual are not only to be protected against the State, they should be facilitated by it It is the duty of the State not only to protect the human dignity but to facilitate it by taking positive steps in that direction. No exact definition of human dignity exists. It refers to the intrinsic value of every human being, which is to be respected. It cannot be taken away. It cannot give. It si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value of human dignity has a central normative role. Human dignity as a constitutional value is the factor that unites the human rights into one whole. It ensures the normative unity of human rights. This normative unity is expressed in the three ways: first, the value of human dignity serves as a normative basis for constitutional rights set out in the constitution; second, it serves as an interpretative principle for determining the scope of constitutional rights, including the right to human dignity; third, the value of human dignity has an important role in determining the proportionality of a statute limiting a constitutional right. 178 106 Life is precious in itself. But life is worth living because of the freedoms which enable each individual to live life as it should be lived. The best decisions on how life should be lived are entrusted to the individual. They are continuously shaped by the social milieu in which individuals exist. The duty of the state is to safeguard the ability to take decisions the autonomy of the individual and not to dictate those decisions. Life within the meaning of Article 21 is not confined to the integrity of the physical body. The rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthor puts: they are moral rights which every human being everywhere all times ought to have simply because of the fact that in contradistinction with other things is rational and moral . They are the primordial rights necessary for the development of human personality. They are the rights which enable a man to chalk out of his own life in the manner he likes best 181 (emphasis supplied) The fundamental rights, in other words, are primordial rights which have traditionally been regarded as natural rights. In that character these rights are inseparable from human existence. They have been preserved by the Constitution, this being a recognition of their existence even prior to the constitutional document. 109 In Kesavananda Bharati, a Bench of 13 judges considered the nature of the amending power conferred by Article 368 and whether the exercise of the amending power was subject to limitations in its curtailment of the fundamental freedoms. Chief Justice Sikri held that the fundamental rights are inalienable. In his view, the Universal Declaration of Human Rights had to be utilised to interpret the Constitution having regard to the mandate of Article 51. India, having accede ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the country and other spheres. The people who vested the three limbs of Government with their power and authority, at the same time kept back these rights of citizens and also some times of non-citizens, and made them inviolable except under certain conditions. The rights thus kept back are placed in Part III of the Constitution, which is headed Fundamental Rights , and the conditions under which these rights can be abridged are also indicated in that Part. (Per Hidayatullah,J. in Ujjambai v. State of U.P. [(1963) 1 SCR 778, 926-27 : AIR 1962 SC 1621]) (Emphasis supplied). 301. The High Court Allahabad has described them as follows: (iv) man has certain natural or inalienable rights and that it is the function of the State, in order that human liberty might be preserved and human personality developed, to give recognition and free play to those rights suffice it to say that they represent a trend in the democratic thought of our age. (Motilal v. State of U.P.) (Emphasis supplied). 182 This was the doctrinal basis for holding that the fundamental rights could not be amended out of existence . Elaborating all those features of the Constitution which formed a part o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution. That power can be used to reshape the Constitution to fulfil the obligation imposed on the State. It can also be used to reshape the Constitution within the limits mentioned earlier, to make it an effective instrument for social good. We are unable to agree with the contention that in order to build a welfare State, it is necessary to destroy some of the human freedoms. That, at any rate is not the perspective of our Constitution. Our Constitution envisages that the State should without delay make available to all the citizens of this country the real benefits of those freedoms in a democratic way. Human freedoms are lost gradually and imperceptibly and their destruction is generally followed by authoritarian rule. That is what history has taught us. Struggle between liberty and power is eternal. Vigilance is the price that we like every other democratic society have to pay to safeguard the democratic values enshrined in our Constitution. Even the best of Governments are not averse to have more and more power to carry out their plans and programmes which they may sincerely believe to be in public interest. But a freedom once lost is hardly ever regained except by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other than the fundamental rights: The limitation inherent in the word amendment according to which it is not permissible by amendment of the Constitution to change the basic structure of the Constitution was to operate equally on articles pertaining to fundamental rights as on other articles not pertaining to those rights 190 Justice Khanna noted that the right to property was held by him not to be a part of the basic structure. Justice Khanna observed that it would have been unnecessary for him to hold so, if none of the fundamental rights were to be a part of the basic structure of the Constitution. 111 Chandrachud C J, in the course of his judgment for the Constitution Bench in Minerva Mills Ltd v Union of India191, traced the history of the evolution of inalienable rights, founded in inviolable liberties, during the course of the freedom movement and observed that both Parts III and IV of the Constitution had emerged as inseparably inter-twined, without a distinction between the negative and positive obligations of the state. The Constitution, in this view, is founded on the bedrock of the balance between Parts III and IV and to give absolute primacy to o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l rights have not been put in the Constitution merely for individual benefit, though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy. 194 Privacy as intrinsic to freedom and liberty 113 The submission that recognising the right to privacy is an exercise which would require a constitutional amendment and cannot be a matter of judicial interpretation is not an acceptable doctrinal position. The argument assumes that the right to privacy is independent of the liberties guaranteed by Part III of the Constitution. There lies the error. The right to privacy is an element of human dignity. The sanctity of privacy lies in its functional relationship with dignity. Privacy ensures that a human being can lead a life of dignity by securing the inner recesses of the human personality from unwanted intrusion. Privacy recognises the autonomy of the individual and the right of every person to make essential choices which affect the course of life. In doing so privacy recognises that li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson of his right to livelihood and you shall have deprived him of his life 196 115 In Unnikrishnan v State of Andhra Pradesh197, Justice Jeevan Reddy, speaking for this Court, held that though the right to education (as the Constitution then stood) was not stated expressly as a fundamental right in Part III, that would not militate against its being protected under the rubric of life under Article 21. These decisions have been ultimately guided by the object of a Constitutional Court which must be to expand the boundaries of fundamental human freedoms rather than to attenuate their content through a constricted judicial interpretation In Maneka, it has been stated that: The attempt of the court should be to expand the reach and ambit of the fundamental rights rather than attenuate their meaning and content by process of judicial construction personal liberty in Article 21 is of the widest amplitude. 198 116 Now, would this Court in interpreting the Constitution freeze the content of constitutional guarantees and provisions to what the founding fathers perceived? The Constitution was drafted and adopted in a historical context. The vision of the founding fat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corporated in Part III, the common law right would not exist under the Constitution. In a concurring judgment Justice Beg held that while adopting the Constitution, there was a notional surrender by the people of India of the control over these rights to a sovereign republic and it is only the Constitution which is supreme and which can confer rights and powers. There was, in this view, a notional surrender of individual freedom. Justice Beg held that: The whole object of guaranteed fundamental rights is to make those basic aspects of human freedom, embodied in fundamental rights, more secure than others not so selected. In thus recognising and declaring certain basic aspects of rights as fundamental by the Constitution of the country, the purpose was to protect them against undue encroachments upon them by the legislative, or executive, and, sometimes even judicial (e.g. Article 20) organs of the State. The encroachment must remain within permissible limits and must take place only in prescribed modes. The intention could never be to preserve something concurrently in the field of natural law or common law. It was to exclude all other control or to make the Constitution the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 372 when it is expressly recognised and embodied as a fundamental right in Article 21 and finds a place in the express provisions of the Constitution. Once this principle is recognised and incorporated in the Constitution and forms part of it, it could not have any separate existence apart from the Constitution, unless it were also enacted as a statutory principle by some positive law of the State 204 (emphasis supplied) In his view, it is the Constitution which is supreme and if it ordains that a person who is detained otherwise than in accordance with law would not be entitled to enforce the right of personal liberty, the Court was duty bound to give effect to it: it cannot be overlooked that, in the ultimate analysis, the protection of personal liberty and the supremacy of law which sustains it must be governed by the Constitution itself. The Constitution is the paramount and supreme law of the land and if it says that even if a person is detained otherwise than in accordance with the law. he shall not be entitled to enforce his right of personal liberty, whilst a Presidential Order under Article 359, clause (1) specifying Article 21 is in force, I have to give ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ackstone, the absolute rights of Englishmen were the rights of personal security, personal liberty and private property. The American Declaration of Independence (1776) states that all men are created equal, and among their inalienable rights are life, liberty, and the pursuit of happiness 206 Even in the absence of Article 21, it would not have been permissible for the State to deprive a person of his life and liberty without the authority of the law: Even in the absence of Article 21 in the Constitution, the State has got no power to deprive a person of his life or liberty without the authority of law. This is the essential postulate and basic assumption of the rule of law and not of men in all civilised nations. Without such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning. The principle that no one shall be deprived of his life or liberty without the authority of law is rooted in the consideration that life and liberty are priceless possessions which cannot be made the plaything of individual whim and caprice and that any act which has the effect of tampering with life and liberty must rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f law. Neither life nor liberty are bounties conferred by the state nor does the Constitution create these rights. The right to life has existed even before the advent of the Constitution. In recognising the right, the Constitution does not become the sole repository of the right. It would be preposterous to suggest that a democratic Constitution without a Bill of Rights would leave individuals governed by the state without either the existence of the right to live or the means of enforcement of the right. The right to life being inalienable to each individual, it existed prior to the Constitution and continued in force under Article 372 of the Constitution. Justice Khanna was clearly right in holding that the recognition of the right to life and personal liberty under the Constitution does not denude the existence of that right, apart from it nor can there be a fatuous assumption that in adopting the Constitution the people of India surrendered the most precious aspect of the human persona, namely, life, liberty and freedom to the state on whose mercy these rights would depend. Such a construct is contrary to the basic foundation of the rule of law which imposes restraints upon th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... move a Court for the enforcement of the fundamental rights contained in Part III shall not extend to Articles 20 and 21. (ii) Suresh Koushal 124 Another discordant note which directly bears upon the evolution of the constitutional jurisprudence on the right to privacy finds reflection in a two judge Bench decision of this Court in Suresh Kumar Koushal v NAZ foundation216 ( Koushal ). The proceedings before this Court arose from a judgment217 of the Delhi High Court holding that Section 377 of the Indian Penal Code, insofar as it criminalises consensual sexual acts of adults in private is violative of Articles 14, 15 and 21 of the Constitution. The Delhi High Court, however, clarified that Section 377 will continue to govern non-consensual penile, non-vaginal sex and penile non-vaginal sex involving minors. Among the grounds of challenge was that the statutory provision constituted an infringement of the rights to dignity and privacy. The Delhi High Court held that: The sphere of privacy allows persons to develop human relations without interference from the outside community or from the State. The exercise of autonomy enables an individual to attain fulfilment, grow in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian Legislature. 220 (emphasis supplied) 126 Neither of the above reasons can be regarded as a valid constitutional basis for disregarding a claim based on privacy under Article 21 of the Constitution. That a miniscule fraction of the country s population constitutes lesbians, gays, bisexuals or transgenders (as observed in the judgment of this Court) is not a sustainable basis to deny the right to privacy. The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular. The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion. The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection. Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the mainstream . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sexual orientation, as an element of privacy and dignity. The chilling effect is due to the danger of a human being subjected to social opprobrium or disapproval, as reflected in the punishment of crime. Hence the Koushal rationale that prosecution of a few is not an index of violation is flawed and cannot be accepted. Consequently, we disagree with the manner in which Koushal has dealt with the privacy dignity based claims of LGBT persons on this aspect. Since the challenge to Section 377 is pending consideration before a larger Bench of this Court, we would leave the constitutional validity to be decided in an appropriate proceeding. J India s commitments under International law 129 The recognition of privacy as a fundamental constitutional value is part of India s commitment to a global human rights regime. Article 51 of the Constitution, which forms part of the Directive Principles, requires the State to endeavour to foster respect for international law and treaty obligations in the dealings of organised peoples with one another 221. Article 12 of the Universal Declaration of Human Rights, recognises the right to privacy: Article 12: No one shall be subjected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and practice. Significantly, while acceding to the ICCPR, India did not file any reservation or declaration to Article 17. While India filed reservations against Articles 1, 9 and 13, there was none to Article 17: Article 1 refers to the right to self-determination. The reservation to Article 1 states that the Government of the Republic of India declares that the words the right of self-determination appearing in [this article] apply only to the peoples under foreign domination and that these words do not apply to sovereign independent States or to a section of a people or nation-which is the essence of national integrity. The reservation to Article 9, which refers to the right to liberty and security of person, detention and compensation payable on wrongful arrest or detention, states that the government of the Republic of India takes the position that the provisions of the article shall be so applied as to be in consonance with the provisions of clauses (3) to (7) of article 22 of the Constitution of India. Further under the Indian Legal System, there is no enforceable right to compensation for persons claiming to be victims of unlawful arrest or detention agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n interpretation which abides by the international commitments made by the country particularly where its constitutional and statutory mandates indicate no deviation. In fact, the enactment of the Human Rights Act by Parliament would indicate a legislative desire to implement the human rights regime founded on constitutional values and international conventions acceded to by India. K Comparative Law 134 This section analyses the evolution of the concept of privacy in other jurisdictions from a comparative law perspective. The Court is conscious of the limits of a comparative approach. Each country is governed by its own constitutional and legal structure. Constitutional structures have an abiding connection with the history, culture, political doctrine and values which a society considers as its founding principles. Foreign judgments must hence be read with circumspection ensuring that the text is not read isolated from its context. The countries which have been dealt with are: (i) United Kingdom; (ii) United States; (iii) South Africa; and (iv) Canada. The narrative will then proceed to examine the decisions of the European Court of Human Rights, the Court of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us Fraud Office, ex parte Smith231 (1993) discussed the question of the right to silence. The applicant (the chairman and managing director of a company) was charged of doing acts with the intent to defraud its creditors. After having been cautioned, he was asked to answer questions of the Director of the Serious Fraud Office. The issue was whether the requirement to answer questions infringed the right to silence. It was held that the powers of the Director of the Serious Fraud Office, under the Criminal Justice Act 1987, entitled him/her to compel the applicant to answer questions on pain of commission of a criminal offence. Lord Mustill, who delivered the leading opinion of the Court, held that: [It] is a simple reflection of the common view that one person should so far as possible be entitled to tell another person to mind his own business. All civilised states recognise this assertion of personal liberty and privacy. Equally, although there may be pronounced disagreements between states, and between individual citizens within states, about where the line should be drawn, few would dispute that some curtailment of the liberty is indispensable to the stability of society; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me a great difference between identifying privacy as a value which underlies the existence of a rule of law (and may point the direction in which the law should develop) and privacy as a principle of law in itself. The English common law is familiar with the notion of underlying values - principles only in the broadest sense - which direct its development Nor is there anything in the jurisprudence of the European Court of Human Rights which suggests that the adoption of some high level principle of privacy is necessary to comply with article 8 of the Convention. The European Court is concerned only with whether English law provides an adequate remedy in a specific case in which it considers that there has been an invasion of privacy contrary to article 8(1) and not justifiable under article 8(2). There has been a transformation in this approach after the Human Rights Act, 1998 (HRA) came into force. For the first time, privacy was incorporated as a right under the British law.235 In Campbell v MGN236 (2004), a well-known model was photographed leaving a rehabilitation clinic, following public denials that she was a recovering drug addict. The photographs were published ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h and breadth to the action so that it accommodates the requirements of these articles. Later, in Douglas v Hello! Ltd238, it was held that: What the House [in Campbell] was agreed upon was that the knowledge, actual or imputed, that information is private will normally impose on anyone publishing that information the duty to justify what, in the absence of justification, will be a wrongful invasion of privacy. Subsequent cases establish the contribution the HRA has made in jurisprudence on privacy in the UK. In Associated Newspapers Limited v His Royal Highness the Prince of Wales239 (2006), an appeal was made against the judgment in respect of the claim of Prince Charles for breach of confidence and infringement of copyright. The case brought about when The Mail on Sunday published extracts of a dispatch by the Prince of Wales. The Court held that: The information at issue in this case is private information, public disclosure of which constituted an interference with Prince Charles Article 8 rights. As heir to the throne, Prince Charles is an important public figure. In respect of such persons the public takes an interest in information about them that is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic period .he present ACPO guidelines are unlawful because they are incompatible with article 8 of the ECHR. I would grant no other relief. In the matter of an application by JR38 for Judicial Review (Northern Ireland)242 (2015), the Appellant was involved in rioting in 2010, when still only 14 years of age. The police, in order to identify those responsible, and for the sake of deterrence, published CCTV footage depicting the Appellant in two newspapers. The issue involved was: Whether the publication of photographs by the police to identify a young person suspected of being involved in riotous behaviour and attempted criminal damage can ever be a necessary and proportionate interference with that person s article 8 rights? The majority held that Article 8 was not engaged, as there was no reasonable expectation of privacy in the case. Lord Toulson (with whom Lord Hodge agreed), while stating that the conduct of the police did not amount, prima facie, to an interference with the appellant s right to respect for his private life, held that: The reasonable or legitimate expectation test is an objective test. It is to be applied broadly, taking account of all the ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under several amendments245 of the US Constitution. As early as 1886, in Boyd v United States246, the question before the US Supreme Court was whether compulsory production of a person s private papers to be used in evidence against him in a judicial proceeding, is an unreasonable search and seizure within the meaning of the Fourth Amendment. Justice Bradley delivered the opinion of the Court and held as follows: The principles laid down in this opinion affect the very essence of constitutional liberty and security they apply to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors and the rummaging of his drawers that constitutes the essence of the offence, but it is the invasion of his indefeasible right of personal security, personal liberty, and private property, -- it is the invasion of this sacred right ... And any compulsory discovery by extorting the party's oath, or compelling the production of his private books and papers, to convict him of crime or to forfeit his property, is contrary to the principles of a free government... It may suit the purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be of material things -- the person, the house, his papers, or his effects . The Amendment does not forbid what was done here. There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing, and that only. There was no entry of the houses or offices of the defendants. However, Justice Louis Brandeis wrote a dissenting opinion and observed that: time works changes, brings into existence new conditions and purposes. Subtler and more far-reaching means of invading privacy have become available to the Government. Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet. Moreover, in the application of a constitution, our contemplation cannot be only of what has, been but of what may be. The progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping. Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overruled Olmstead v United States (supra) and revolutionized the interpretation of the Fourth Amendment regarding the extent to which a constitutional right to privacy applies against government interference. In this case, Charles Katz was a gambler who used a public telephone booth to transmit illegal wagers. Unbeknownst to Katz, the FBI which was investigating Katz s activity, was recording his conversations via an electronic eavesdropping device attached to the exterior of the phone booth. Subsequently, Katz was convicted based on these recordings. He challenged his conviction, arguing that the recordings were obtained in violation of his Fourth Amendment rights. The constitutional question in the case was whether the 4th Amendment protection from unreasonable searches and seizures was restricted to the search and seizure of tangible property, or did it extend to intangible areas such as conversations overheard by others. It was held that the Government's eavesdropping activities violated the privacy, upon which petitioner justifiably relied, while using the telephone booth, and thus constituted a search and seizure within the meaning of the Fourth Amendment, and that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectation of privacy under the circumstances would be unreasonable. (emphasis supplied) In Stanley v Georgia252 (1969), the Court analyzed the constitutionality of a statute imposing criminal sanctions upon the knowing possession of obscene matter. The Court, in a unanimous decision, held that mere private possession of obscene matter cannot constitutionally be made a crime: For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy... [T]he rights that the appellant is asserting in the case before us...the right to read or observe what he pleases -- the right to satisfy his intellectual and emotional needs in the privacy of his own home ..the right to be free from state inquiry into the contents of his library... Whatever the power of the state to control public dissemination of ideas inimical to the public morality, it cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts. Seven years after Griswold, the Court expanded the right to privacy beyond the marital bedroom to include unmarried persons. In Eisenstadt v Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uled 7:2 that a right to privacy under the Due Process Clause of the Fourteenth Amendment extended to a woman's decision to have an abortion, but that this right must be balanced against the state's interests in regulating abortions. Justice Blackmun delivered the majority judgment and held that: The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, the Court has recognised that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment; in the penumbras of the Bill of Rights; in the Ninth Amendment; or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment... This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... individual privacy must keep pace with the perils created by these new devices. Continuing its trend of expansion of individual rights in the 1960s and 1970s, particularly in the domain of reproductive health - the right to contraceptives as well as the right to abortion, the decision in Carey v Population Services International257 (1977) expanded these rights from adults to also include minors. In this case, a New York law banning sale of even non-prescription contraceptives by persons other than licensed pharmacists; sale or distribution to minors under sixteen; and contraceptive display and advertising was declared unconstitutional. Justice Brennan delivered the majority opinion of the Court and held that the Fourteenth Amendment is not for adults alone and Minors, as well as adults, are protected by the Constitution : This right of personal privacy includes the interest in independence in making certain kinds of important decisions. ... While the outer limits of this aspect of privacy have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifiable under the circumstances. Since the pen register was installed on telephone company property at the telephone company's central offices, petitioner obviously cannot claim that his property was invaded or that police intruded into a constitutionally protected area. Thus the Court held that the petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialled, and that, even if he did, his expectation was not legitimate. However, the judgment also noted the limitations of the Katz test: Situations can be imagined, of course, in which Katz' two- pronged inquiry would provide an inadequate index of Fourth Amendment protection In such circumstances, where an individual's subjective expectations had been conditioned by influences alien to well recognized Fourth Amendment freedoms, those subjective expectations obviously could play no meaningful role in ascertaining what the scope of Fourth Amendment protection was. Justice Stewart wrote the dissent, joined by Justice Brennan and held that there was a legitimate expectation of privacy in this case: ...the numbers dialled from a private telephone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State The woman s right to terminate her pregnancy before viability is the most central principle of Roe v. Wade. It is a rule of law and a component of liberty we cannot renounce. In Minnesota v Carter261 (1998), the question was whether the Fourth Amendment protected against the viewing by an outside police officer, through a drawn window blind, of the defendants bagging cocaine in an apartment. The Court answered this question in the negative. Chief Justice Rehnquist delivered the majority opinion of the Court noting that [t]he text of the Amendment suggests that its protections extend only to people in their houses. The case was distinguished from Minnesota v Olson262 (1990), where the Supreme Court decided that an overnight guest in a house had the sort of expectation of privacy that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en when (if ever) that jurisprudence were fully developed, no police officer would be able to know in advance whether his through-the-wall surveillance picks up intimate details and thus would be unable to know in advance whether it is constitutional (emphasis supplied) It was concluded that even though no significant compromise of the homeowner s privacy had occurred due to the thermal imaging, the long view, from the original meaning of the Fourth Amendment must be taken forward. In Lawrence v Texas264, the Court in a 6:3 decision struck down the sodomy law in Texas and by extension invalidated sodomy laws in 13 other states, making same- sex sexual activity legal in every state and territory of the United States. The Court overturned its previous ruling on the same issue in the 1986 case, Bowers v Hardwick265 (1986), where it upheld a challenged Georgia statute and did not find a constitutional protection of sexual privacy. Justice Anthony Kennedy wrote the majority opinion (6: 3 decision) and held that: The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate a constitutional right to informational privacy. (emphasis supplied) Justice Scalia, in a concurring opinion joined by Justice Thomas, agreed that the background checks did not violate any constitutional rights, but argued that the Court should have settled the constitutional privacy question in the negative. The view held was that there exists no constitutional right to informational privacy. Scalia J. criticized the Court's decision to evade the constitutional question, stating that: If, on the other hand, the Court believes that there is a constitutional right to informational privacy, then I fail to see the minimalist virtues in delivering a lengthy opinion analyzing that right while coyly noting that the right is assumed rather than decided The Court decides that the Government did not violate the right to informational privacy without deciding whether there is a right to informational privacy, and without even describing what hypothetical standard should be used to assess whether the hypothetical right has been violated. (emphasis supplied) In United States v Jones269 (2012), it was held unanimously that installing a Global Positioning System (GPS) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sotomayor concluded, by stating: [I] doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited [or phone numbers dialled]... I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection. In Florida v Jardines270 (2013), the Court held that police use of a trained detection dog to sniff for narcotics on the front porch of a private home is a search within the meaning of the Fourth Amendment to the US Constitution, and therefore, without consent, requires both probable cause and a search warrant. Justice Scalia who delivered the opinion of the Court held as follows: We regard the area immediately surrounding and associated with the home - ..as part of the home itself for Fourth Amendment purposes. .This area around the home is intimately linked to the home, both physically and psychologically, and is where privacy expectations are most heightened . (emphasis supplied) Justice Kagan, in a concurring opinion, wrote: Like the binoculars, a drug-detectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society. (emphasis supplied) The development of the jurisprudence on the right to privacy in the United States of America shows that even though there is no explicit mention of the word privacy in the Constitution, the courts of the country have not only recognised the right to privacy under various Amendments of the Constitution but also progressively extended the ambit of protection under the right to privacy. In its early years, the focus was on property and protection of physical spaces that would be considered private such as an individual s home. This trespass doctrine became irrelevant when it was held that what is protected under the right to privacy is people, not places . The reasonable expectation of privacy test has been relied on subsequently by various other jurisdictions while developing the right to privacy. Having located the right to privacy in the person , American jurisprudence on the right to privacy has developed to shield various private aspects of a person s life from inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utionality of certain sections of the Companies Act, on the ground that examination under these sections violated the general right to personal privacy (section 13). It was held that the provisions were not in breach of the Constitution. Justice Ackermann expounded upon the concept of privacy as follows: The scope of privacy has been closely related to the concept of identity and ... [that] the right [is] based on a notion of the unencumbered self, but on the notion of what is necessary to have one s own autonomous identity . The Court observed that like every other right, the right to privacy also has its limits: [67] In the context of privacy it is only the inner sanctum of a person, such as his/her family life, sexual preference and home environment, which is shielded from erosion by conflicting rights of the community. This implies that community rights and the rights of fellow members place a corresponding obligation on a citizen, thereby shaping the abstract notion of individualism towards identifying a concrete member of civil society. Privacy is acknowledged in the truly personal realm, but as a person moves into communal relations and activities such as busi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ai Motor Distributors Ltd276 (2001), the Court was concerned with the constitutionality of the provisions of the National Prosecuting Authority Act that authorised the issuing of warrants of search and seizure for purposes of a preparatory investigation . Langa J. delivered judgment on the right to privacy of juristic persons and held that: ... privacy is a right which becomes more intense the closer it moves to the intimate personal sphere of the life of human beings, and less intense as it moves away from that core. This understanding of the right flows... from the value placed on human dignity by the Constitution. Juristic persons are not the bearers of human dignity. Their privacy rights, therefore, can never be as intense as those of human beings. However, this does not mean that juristic persons are not protected by the right to privacy. Exclusion of juristic persons would lead to the possibility of grave violations of privacy in our society, with serious implications for the conduct of affairs. Highlighting the need to balance interests of the individual and the State, it was held that: [54] ...Search and seizure provisions, in the context of a preparatory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the majority judgment on the basis of the value of privacy and confidentiality in medical information and held that: Private and confidential medical information contains highly sensitive and personal information about individuals. The personal and intimate nature of an individual s health information, unlike other forms of documentation, reflects delicate decisions and choices relating to issues pertaining to bodily and psychological integrity and personal autonomy Individuals value the privacy of confidential medical information because of the vast number of people who could have access to the information and the potential harmful effects that may result from disclosure. The lack of respect for private medical information and its subsequent disclosure may result in fear jeopardising an individual s right to make certain fundamental choices that he/she has a right to make. There is therefore a strong privacy interest in maintaining confidentiality. The decision of the Court was that there must be a pressing social need for the right to privacy to be interfered with and that there was no such compelling public interest in this case. In the dissenting opinion, J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sure that rights reinforce one another in a constructive manner in order to promote human rights generally. At times our Constitution recognises that a balance has to be found to provide protection for the different rights. On the inter-relationship between the right to privacy, liberty and dignity, the Court observed that: The right to privacy recognises the importance of protecting the sphere of our personal daily lives from the public. In so doing, it highlights the inter-relationship between privacy, liberty and dignity as the key constitutional rights which construct our understanding of what it means to be a human being. All these rights are therefore inter-dependent and mutually reinforcing. We value privacy for this reason at least that the constitutional conception of being a human being asserts and seeks to foster the possibility of human beings choosing how to live their lives within the overall framework of a broader community. (emphasis supplied) The interim as well as the Final Constitution of South Africa contain explicit provisions guaranteeing the right to privacy. The Judges of South African Supreme Court have given an expansive meaning to the righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of privacy but right to privacy must be balanced against the government s duty to enforce the law. It was further held that: The guarantee of security from unreasonable search and seizure only protects a reasonable expectation. This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from unreasonable search and seizure, or positively as an entitlement to a reasonable expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement. In Her Majesty, The Queen v Brandon Roy Dyment283 (1988), a patient had met with an accident on a highway. A doctor collected a sample of blood from his wound. The blood sample was taken for medical purposes but was given to a police officer. As a result of an analysis carried out by the police officer, the patient was charged with impaired driving. The Court held that the seizing of blood taken for medical purposes was a violation of Section 8 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For the state to take it in violation of a patient's right to privacy constitutes a seizure for the purposes of s. 8. R v Plant284 (1993) is a leading decision of the Supreme Court of Canada on the protection of personal information under the Charter. In this case, a police officer, on the basis of information that marijuana was being grown in an area, accessed the electrical utility s computer system and discovered that a particular house was consuming an extremely high amount of electricity. Two officers then performed a warrantless perimeter search of the property and observed that the basement windows were covered with something opaque and a that a vent had been blocked using a plastic bag. On the basis of this information, the police obtained a warrant to search the home and discovered over a hundred seedling marijuana plants. The accused was charged with cultivation of marijuana and possession for the purpose of trafficking. The issue was whether the warrantless perimeter search of his home and the seizure of electricity consumption records violated his right against unreasonable search and seizure under section 8 of the Charter. The judgment delivered by Justice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er information associated with an IP address from the appellant s Internet Service Provider and on the basis of it, searched the computer used by him. The Canadian Supreme Court unanimously ruled that the request for an IP address infringed the Charter's guarantee against unreasonable search and seizure. It was held that the appellant had a reasonable expectation of privacy. In doing so, it assessed whether there is a reasonable expectation of privacy in the totality of the circumstances , which includes the nature of the privacy interests implicated by the state action and factors more directly concerned with the expectation of privacy, both subjectively and objectively viewed, in relation to those interests . It was further held: ...factors that may be considered in assessing the reasonable expectation of privacy can be grouped under four main headings for analytical convenience: (1) the subject matter of the alleged search; (2) the claimant's interest in the subject matter; (3) the claimant's subjective expectation of privacy in the subject matter; and (4) whether this subjective expectation of privacy was objectively reasonable, having regard to the total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out one s identity. Informational privacy has frequently been addressed under Section 8 of the Charter. Canadian privacy jurisprudence has developed with the advent of technology and the internet. Judicial decisions have significant implications for internet/digital privacy. (v) Privacy under The European Convention on Human Rights and the European Charter In Europe, there are two distinct but related frameworks to ensure the protection of the right of privacy. The first is the European Convention on Human Rights (ECHR), an international agreement to protect human rights and fundamental freedoms in Europe. The second is the Charter of Fundamental Rights of the European Union (CFREU), a treaty enshrining certain political, social, and economic rights for the European Union. Under ECHR ( the Convention ), the European Court of Human Rights (ECtHR), also known as the Strasbourg Court , is the adjudicating body, which hears complaints by individuals on alleged breaches of human rights by signatory states. Similarly, under CFREU ( the Charter), the Court of Justice of the European Union (CJEU), also called the Luxembourg Court , is the chief judicial authority of the European Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the said Convention. This provision shall not prevent Union law providing more extensive protection. Article 52(3) provides for the ECHR as a minimum standard of human rights in the EU. Article 52(3) thus leads the EU to be indirectly bound by the ECHR as it must always be obeyed when restricting fundamental rights in the EU. Moreover, in the pre- Charter era, the protection of privacy was held to form part of the right to privacy in line with how the ECtHR in Strasbourg interprets Art. 8 of ECHR till date288. Thus, in order to understand the protection extended to the right to privacy in EU, the jurisprudence of Article 8 of the Convention and Article 7 of the Charter need to be analyzed. The term private life is an essential ingredient of both these provisions and has been interpreted to encompass a wide range of interests. In the case of Niemietz v Germany289 (1992), the ECtHR observed that: The Court does not consider it possible or necessary to attempt an exhaustive definition of the notion of private life . However, it would be too restrictive to limit the notion to an inner circle in which the individual may live his own personal life as he chooses and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y an individual under Article 8 of the Convention necessarily involves a two-stage test293, which can be summarized as below: Stage 1: Article 8 para. 1 1.1 Does the complaint fall within the scope of one of the rights protected by Article 8 para 1? 1.2 If so, is there a positive obligation on the State to respect an individual s right and has it been fulfilled? Stage 2: Article 8 para. 2 2.1 Has there been an interference with the Article 8 right? 2.2 If so, 2.2.1 is it in accordance with law? 2.2.2 does it pursue a legitimate aim? 2.2.3 is it necessary in a democratic society? This test is followed by the Court each time it applies Article 8 in a given case. In other words, a fair balance is struck between the general interest of the community and the interests of the individual. The Grand Chamber of 18 judges at the ECtHR, in S and Marper v United Kingdom (supra), examined the claim of the applicants that their Right to Respect for Private Life under Article 8 was being violated as their fingerprints, cell samples and DNA profiles were retained in a database after successful termination of criminal proceedings against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... individuals concerned... The possibility the DNA profiles create for inferences to be drawn as to ethnic origin makes their retention all the more sensitive and susceptible of affecting the right to private life. Regarding retention of fingerprints, it was held that: ...fingerprints objectively contain unique information about the individual concerned allowing his or her identification with precision in a wide range of circumstances. They are thus capable of affecting his or her private life and retention of this information without the consent of the individual concerned cannot be regarded as neutral or insignificant In Uzun v Germany (supra), the ECtHR examined an application claiming violation of Article 8 of European Convention of Human Rights where the applicant s data was obtained via the Global Positioning System (GPS) by the investigation agencies and was used against him in a criminal proceeding. In this case, the applicant was suspected of involvement in bomb attacks by the left-wing extremist movement. The Court unanimously concluded that there had been no violation of Article 8 and held as follows: GPS surveillance of Mr Uzun had been ordered to inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terference with the fundamental right to privacy, it does not matter whether the information on the private lives concerned is sensitive or whether the persons concerned have been inconvenienced in any way. While stating that data relating to the use of electronic communications is particularly important and therefore a valuable tool in the prevention of offences and the fight against crime, in particular organised crime, the Court looked into the proportionality of the interference with the right to privacy and held that: As regards the necessity for the retention of data required by Directive 2006/24, it must be held that the fight against serious crime, in particular against organised crime and terrorism, is indeed of the utmost importance in order to ensure public security and its effectiveness may depend to a great extent on the use of modern investigation techniques. However, such an objective of general interest, however fundamental it may be, does not, in itself, justify a retention measure such as that established by Directive 2006/24 being considered to be necessary for the purpose of that fight... Highlighting that the said Directive does not provide for s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordingly been a violation of Article 8 of the Convention. Both the ECtHR and the CJEU, while dealing with the application and interpretation of Article 8 of ECHR and Article 7 of the Charter, have kept a balanced approached between individual interests and societal interests. The two-step test in examining an individual claim related to a Convention right has strictly been followed by ECtHR. (vi) Decisions of the Inter-American Court of Human Rights Article 11 of the American Convention on Human Rights deals with the Right to Privacy. The provision is extracted below: 1. Everyone has the right to have his honor respected and his dignity recognized. 2. No one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation. 3. Everyone has the right to the protection of the law against such interference or attacks. The decision in Artavia Murillo ET AL. ( In Vitro Fertilization ) v Costa Rica299 (2012), addressed the question of whether the State s prohibition on the practice of in vitro fertilisation constituted an arbitrary interference with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t every person has the right to respect for his honor, prohibits an illegal attack against honor and reputation, and imposes on the States the obligation to provide legal protection against such attacks. In general, the right to honor relates to self-esteem and self-worth, while reputation refers to the opinion that others have of a person [O]wing to the inherent danger of abuse in any monitoring system, this measure must be based on especially precise legislation with clear, detailed rules. The American Convention protects the confidentiality and inviolability of communications from any kind of arbitrary or abusive interference from the State or individuals; consequently, the surveillance, intervention, recording and dissemination of such communications is prohibited, except in the cases established by law that are adapted to the objects and purposes of the American Convention. Like other international jurisdictions, the Inter-American Court of Human Rights dealt with the concept of privacy and private life in broad terms which enhance the value of liberty and freedom. The development of the law on privacy in these jurisdictions has drawn sustenance from the importan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e well known argument there is no right to privacy and there is nothing special about privacy, because any interest protected as private can be equally well explained and protected by other interests or rights, most notably rights to property and bodily security (Thomson, 1975). Other critiques argue that privacy interests are not distinctive because the personal interests they protect are economically inefficient (Posner, 1981) or that they are not grounded in any adequate legal doctrine (Bork, 1990). Finally, there is the feminist critique of privacy, that granting special status to privacy is detrimental to women and others because it is used as a shield to dominate and control them, silence them, and cover up abuse (MacKinnon, 1989). 301 138 In a 2013 article published in the Harvard Law Review, a professor of law at Georgetown Law Center, Georgetown University, described privacy as having an image problem 302. Privacy, as she notes, has been cast as old-fashioned at best and downright harmful at worst - anti-progressive, overly costly, and inimical to the welfare of the body politic 303. The consequences in her view are predictable: when privacy and its purportedly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lue such as when a student is allowed access to a letter of recommendation for admission, rendering such a letter less reliable. According to Posner, privacy when manifested as control over information about oneself, is utilised to mislead or manipulate others. c Bork s critique Robert Bork, in The Tempting of America: The Political Seduction of the Law 309, has been severe in his criticism of the protection of privacy by the US Supreme Court. In his view, Justice Douglas in Griswold did not derive privacy from some pre-existing right but sought to create a new right which has no foundation in the Bill of Rights, thereby overstepping the bounds of a judge by making new law and not by interpreting it. Many theorists urge that the constitutional right to privacy is more correctly regarded as a right to liberty. The powerful counter argument to these criticisms is that while individuals possess multiple liberties under the Constitution, read in isolation, many of them are not related to the kinds of concerns that emerge in privacy issues. In this view, liberty is a concept which is broader than privacy and issues or claims relating to privacy are a sub-set of claims to li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of privacy involving the individual in an inner dialogue with the mind and conscience .314 The second state is the state of intimacy which refers not merely to intimate relations between spouses or partners but also between family, friends and colleagues. The third state is of anonymity where an individual seeks freedom from identification despite being in a public space. The fourth state is described as a state of reservation which is expressed as the need to hold some aspects of ourselves back from others, either as too personal and sacred or as too shameful and profane to express 315. (ii) Roger Clarke has developed a classification of privacy on Maslow s pyramid of values316. The values described in Maslow s pyramid are: self-actualization, self- esteem, love or belonging, safety and physiological or biological need. Clarke s categories include (a) privacy of the person also known as bodily privacy. Bodily privacy is violated by compulsory extraction of samples of body fluids and body tissue and compulsory sterilization; (b) privacy of personal behaviour which is part of a private space including the home; (c) Privacy of personal communications which is expressed as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s presented in the following format : 142 The above diagrammatical representation presents two primary axes: a horizontal axis consisting of four zones of privacy and a vertical axis which emphasises two aspects of freedom: the freedom to be let alone and the freedom for self-development. The nine primary types of privacy are, according to the above depiction: (i) bodily privacy which reflects the privacy of the physical body. Implicit in this is the negative freedom of being able to prevent others from violating one s body or from restraining the freedom of bodily movement; (ii) spatial privacy which is reflected in the privacy of a private space through which access of others can be restricted to the space; intimate relations and family life are an apt illustration of spatial privacy; (iii) communicational privacy which is reflected in enabling an individual to restrict access to communications or control the use of information which is communicated to third parties; (iv) proprietary privacy which is reflected by the interest of a person in utilising property as a means to shield facts, things or information from others; (v) intellectual privacy which is reflected as an i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontained a division between the fundamental rights into justiciable and non-justiciable rights. Clause 9(d) and Clause 10 provided as follows324 : 9(d) The right of every citizen to the secrecy of his correspondence. Provision may be made by law to regulate the interception or detention of articles and messages in course of transmission by post, telegraph or otherwise on the occurrence of any public emergency or in the interests of public safety or tranquillity 10. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized 147 Dr B N Rau in his notes on the draft report had reservations about clause 10 which were expressed thus325: Clause 10. If this means that there is to be no search without a court s warrant, it may seriously affect the powers of investigation of the police. Under the existing law, eg., Criminal Procedure Code, section 165 (relevant extracts given below), the police have certai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riminal Procedure Code in this behalf have been in force for nearly a century. The effect of the clause, as it is, will be to abrogate some of the provisions of the Criminal Procedure Code and to leave it to the Supreme Court in particular cases to decide whether the search is reasonable or unreasonable. While I am averse to reagitating the matter I think it may not be too late for the committee to consider this particular clause. During the course of the comments and suggestions on the draft Constitution, Jaya Prakash Narayan suggested the inclusion of the secrecy of postal, telegraphic and telephonic communications. Such an inclusion was, however, objected to on the following grounds327 : It is also hardly necessary to include secrecy of postal, telegraphic and telephonic communications as a fundamental right in the Constitution itself as that might lead to practical difficulties in the administration of the posts and telegraph department. The relevant laws enacted by the Legislature on the subject (the Indian Post Office Act, 1898 and the Indian Telegraph Act, 1885) permit interception of communications sent through post, telegraph or telephone only in specified circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into being a jurisprudence which recognises the inter-relationship between rights. That is how the requirements of fairness and non-discrimination animate both the substantive and procedural aspects of Article 21. These constitutional developments have taken place as the words of the Constitution have been interpreted to deal with new exigencies requiring an expansive reading of liberties and freedoms to preserve human rights under the rule of law. India s brush with a regime of the suspension of life and personal liberty in the not too distant past is a grim reminder of how tenuous liberty can be, if the judiciary is not vigilant. The interpretation of the Constitution cannot be frozen by its original understanding. The Constitution has evolved and must continuously evolve to meet the aspirations and challenges of the present and the future. Nor can judges foresee every challenge and contingency which may arise in the future. This is particularly of relevance in an age where technology reshapes our fundamental understanding of information, knowledge and human relationships that was unknown even in the recent past. Hence as Judges interpreting the Constitution today, the Court must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... speech and expression would comprehend the freedom of the press. Hence the guarantee of free speech and expression has been interpreted to extend to the freedom of the press. Recognition of the freedom of the press does not create by judicial fiat, a new fundamental right but is an acknowledgment of that, which lies embedded and without which the guarantee of free speech and expression would not be complete. Similarly, Article 21 has been interpreted to include a spectrum of entitlements such as a right to a clean environment, the right to public health, the right to know, the right to means of communication and the right to education, besides a panoply of rights in the context of criminal law and procedure in matters such as handcuffing and speedy trial. The rights which have been held to flow out of Article 21 include the following: (i) The right to go abroad Satwant Singh Sawhney v D Ramarathnam APO New Delhi 328. (ii) The right against solitary confinement Sunil Batra v Delhi Administration329. (iii) The right of prisoners against bar fetters Charles Sobraj v Supdt. Central Jail330. (iv) The right to legal aid M H Hoskot v State of Maharashtra331. (v) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution has preserved natural rights and ring-fenced them from attempts to attenuate their existence. Technology, as we experience it today is far different from what it was in the lives of the generation which drafted the Constitution. Information technology together with the internet and the social media and all their attendant applications have rapidly altered the course of life in the last decade. Today s technology renders models of application of a few years ago obsolescent. Hence, it would be an injustice both to the draftsmen of the Constitution as well as to the document which they sanctified to constrict its interpretation to an originalist interpretation. Today s problems have to be adjudged by a vibrant application of constitutional doctrine and cannot be frozen by a vision suited to a radically different society. We describe the Constitution as a living instrument simply for the reason that while it is a document which enunciates eternal values for Indian society, it possesses the resilience necessary to ensure its continued relevance. Its continued relevance lies precisely in its ability to allow succeeding generations to apply the principles on which it has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Right to Information Act, 2005 which contain an exemption from the disclosure of information refer to such information which would cause an unwarranted invasion of the privacy of the individual. But the important point to note is that when a right is conferred with an entrenched constitutional status in Part III, it provides a touchstone on which the validity of executive decision making can be assessed and the validity of law can be determined by judicial review. Entrenched constitutional rights provide the basis of evaluating the validity of law. Hence, it would be plainly unacceptable to urge that the existence of law negates the rationale for a constitutional right or renders the constitutional right unnecessary. O Not an elitist construct 154 The Attorney General argued before us that the right to privacy must be forsaken in the interest of welfare entitlements provided by the State. In our view, the submission that the right to privacy is an elitist construct which stands apart from the needs and aspirations of the large majority constituting the rest of society, is unsustainable. This submission betrays a misunderstanding of the constitutional position. Our C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unded upon the existence of freedom. Hence civil and political rights and socio-economic rights are complementary and not mutually exclusive. 156 Some of these themes have been addressed in the writings of the Nobel laureate, Amartya Sen. Sen compares the response of many non-democratic regimes in critical situations such as famine with the responses of democratic societies in similar situations.343 His analysis reveals that the political immunity enjoyed by government leaders in authoritarian states prevents effective measures being taken to address such conditions: For example, Botswana had a fall in food production of 17 percent and Zimbabwe one of 38 percent between 1979-1981 and 1983- 1984, in the same period in which the food production decline amounted to a relatively modest 11 or 12 percent in Sudan and Ethiopia. But while Sudan and Ethiopia, with comparatively smaller declines in food output, had massive famines, Botswana and Zimbabwe had none, and this was largely due to timely and extensive famine prevention policies by these latter countries. Had the governments in Botswana and Zimbabwe failed to undertake timely action, they would have been under severe cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsic relationship between development and freedom: development cannot really be seen merely as the process of increasing inanimate objects of convenience, such as raising the GNP per head, or promoting industrialization or technological advance or social modernization. These accomplishments are, of course, valuable often crucially important but their value must depend on what they do to the lives and freedoms of the people involved. For adult human beings, with responsibility for choice, the focus must ultimately be on whether they have the freedom to do what they have reason to value. In this sense, development consists of expansion of people s freedom. 348 In an article recently published in July 2017 in Public Law, titled The Untapped Potential of the Mandela Constitution 349, Justice Edwin Cameron, a distinguished judge of the Constitutional Court of South Africa, has provided a telling example. President Mbeki of South Africa doubted the medical science underlying AIDS and effectively obstructed a feasible ARV programme. This posture of AIDS denialism plunged South Africa into a crisis of public health as a result of which the drug Nevirapine which was offered t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tute a bar to the constitutional recognition of the right. The Constitution recognises the right simply because it is an incident of a fundamental freedom or liberty which the draftsperson considered to be so significant as to require constitutional protection. Once privacy is held to be an incident of the protection of life, personal liberty and of the liberties guaranteed by the provisions of Part III of the Constitution, the submission that privacy is only a right at common law misses the wood for the trees. The central theme is that privacy is an intrinsic part of life, personal liberty and of the freedoms guaranteed by Part III which entitles it to protection as a core of constitutional doctrine. The protection of privacy by the Constitution liberates it, as it were, from the uncertainties of statutory law which, as we have noted, is subject to the range of legislative annulments open to a majoritarian government. Any abridgment must meet the requirements prescribed by Article 21, Article 19 or the relevant freedom. The Constitutional right is placed at a pedestal which embodies both a negative and a positive freedom. The negative freedom protects the individual from unwanted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocess clause to invalidate social welfare legislation. In the Lochner353 era, the US Supreme Court invalidated legislation such as statutes prohibiting employers from making their employees work for more than ten hours a day or sixty hours a week on the supposition that this infringed the liberty of contract. Between 1899 and 1937 (excluding the civil rights cases), 159 US Supreme Court decisions held state statutes unconstitutional under the due process and equal protection clauses. Moreover, 25 other statutes were struck down under the due process clause together with other provisions of the American Constitution.354 Under the due process clause, the US Supreme Court struck down labour legislation prohibiting employers from discriminating on the grounds of union activity; regulation of wages; regulation of prices for commodities and services; and legislation denying entry into business.355 These decisions were eventually distinguished or overruled in 1937 and thereafter.356 160 The Constituent Assembly, in this background, made a second important change in the original draft by qualifying the expression liberty with the word personal . Shri B N Rau suggested that if this q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and freedom, by the United States Supreme Court in its earlier decisions, the theory being that it is an essential part of personal liberty that every person in the world be she a woman, be he a child over fourteen years of age or be he a labourer, has the right to enter into any contract he or she liked and it is not the province of other people to interfere with that liberty. On that ground, in the earlier decisions of Supreme Court it has been held that the Minimum Wages Laws are invalid as invading personal liberty The clause may serve as a great handicap for all social legislation, and for the protection of women I trust that the House will take into account the various aspects of this question, the future progress of India, the well-being and the security of the States, the necessity of maintaining a minimum of liberty, the need for co-ordinating social control and personal liberty, before coming to a decision. One thing also will have to be taken into account, viz., that the security of the State is far from being so secure as we are imagining at present On the other hand, several members of the Constituent Assembly preferred the retention of the phrase d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clusion. There are dangers on both sides. For myself I cannot altogether omit the possibility of a Legislature packed by party men making laws which may abrogate or violate what we regard as certain fundamental principles affecting the life and liberty of an individual. At the same time, I do not see how five or six gentlemen sitting in the Federal or Supreme Court examining laws made by the Legislature and by dint of their own individual conscience or their bias or their prejudices be trusted to determine which law is good and which law is bad. It is rather a case where a man has to sail between Charybdis and Scylla and I therefor would not say anything. I would leave it to the House to decide in any way it likes. The amendments proposed by some members to reintroduce due process were rejected on 13 December 1948 and the phrase due process of law was deleted from the original draft Constitution. However, Article 22 was introduced into the Constitution to protect against arbitrary arrest and detention by incorporating several safeguards. 162 In Gopalan, the Preventive Detention Act, 1950 was challenged on the ground that it denied significant procedural safeguards again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to happen, but it does raise a legal problem which can perhaps be met only in this way that if the expression procedure established by law simply means any procedure established or enacted by statute it will be difficult to give a negative answer to the question, but if the word law includes what I have endeavoured to show it does, such an answer may be justified. It seems to me that there is nothing revolutionary in the doctrine that the words procedure established by law must include the four principles set out in Professor Willis book, which, as I have already stated, are different aspects of the same principle and which have no vagueness or uncertainty about them. These principles, as the learned author points out and as the authorities show, are not absolutely rigid principles but are adaptable to the circumstances of each case within certain limits. I have only to add that it has not been seriously controverted that law in this article means valid law and procedure means certain definite rules of proceeding and not something which is a mere pretence for procedure. 364 In Maneka, where the passport of the petitioner was impounded without furnishing reasons, a m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rishna Iyer took note of the fact that our Constitution does not contain a due process clause and opined that after the decision in Maneka, the absence of such a clause would make no difference: true, our Constitution has no due process clause or the VIIIth Amendment; but, in this branch of law, after Cooper and Maneka Gandhi the consequence is the same. 370 164 A substantive challenge to the constitutional validity of the death penalty on a conviction on a charge of murder was raised in Bachan Singh371. The judgment noted: 136. Article 21 reads as under: No person shall be deprived of his life or personal liberty except according to procedure established by law. If this Article is expanded in accordance with the interpretative principle indicated in Maneka Gandhi, it will read as follows: No person shall be deprived of his life or personal liberty except according to fair, just and reasonable procedure established by valid law. In the converse positive form, the expanded Article will read as below: A person may be deprived of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the law or to impose a savage sentence. A law providing that an accused shall not be allowed to lead evidence in self-defence will be hit by Articles 14 and 21. Similarly, if a law were to provide that the offence of theft will be punishable with the penalty of the cutting of hands, the law will be bad as violating Article 21. A savage sentence is anathema to the civilized jurisprudence of Article 21. These are, of course, extreme illustrations and we need have no fear that our legislatures will ever pass such laws. But these examples serve to illustrate that the last word on the question of justice and fairness does not rest with the legislature. Just as reasonableness of restrictions under clauses (2) to (6) of Article 19 is for the courts to determine, so is it for the courts to decide whether the procedure prescribed by a law for depriving a person of his life or liberty is fair, just and reasonable. The question which then arises before us is whether the sentence of death, prescribed by Section 303 of the Penal Code for the offence of murder committed by a person who is under a sentence of life imprisonment, is arbitrary and oppressive so as to be violative of the fundament ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : The wheel has turned full circle. Substantive due process is now to be applied to the fundamental right to life and liberty. 381 More recently, Justice Chelameswar, speaking for a Bench of two judges in Rajbala v State of Haryana382, has struck a note of caution, by drawing attention to the position that the expression due process of law was consciously deleted in the drafting process after the framing of the Constitution. Hence, in the view of the learned Judge, it would be inappropriate to incorporate notions of substantive due process adopted in the US while examining the constitutionality of Indian legislation. The Court observed: From the above extract from McDowell Co. case it is clear that the courts in this country do not undertake the task of declaring a piece of legislation unconstitutional on the ground that the legislation is arbitrary since such an exercise implies a value judgment and courts do not examine the wisdom of some specific provision of the Constitution. To undertake such an examination would amount to virtually importing the doctrine of substantive due process employed by the American Supreme Court at an earlier point of time while e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the deprivation of life or personal liberty is not sufficient to conclude its validity and the procedure to be constitutionally valid must be fair, just and reasonable. The quality of reasonableness does not attach only to the content of the procedure which the law prescribes with reference to Article 21 but to the content of the law itself. In other words, the requirement of Article 21 is not fulfilled only by the enactment of fair and reasonable procedure under the law and a law which does so may yet be susceptible to challenge on the ground that its content does not accord with the requirements of a valid law. The law is open to substantive challenge on the ground that it violates the fundamental right. In dealing with a substantive challenge to a law on the ground that it violates a fundamental right, there are settled principles of constitutional interpretation which hold the field. The first is the presumption of constitutionality384 which is based on the foundational principle that the legislature which is entrusted with the duty of law making best understands the needs of society and would not readily be assumed to have transgressed a constitutional limitation. The burd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined only to whether the procedure for the deprivation of life or personal liberty is fair, just and reasonable. Substantive challenges to the validity of laws encroaching upon the right to life or personal liberty has been considered and dealt with in varying contexts, such as the death penalty (Bachan Singh) and mandatory death sentence (Mithu), among other cases. A person cannot be deprived of life or personal liberty except in accordance with the procedure established by law. Article 14, as a guarantee against arbitrariness, infuses the entirety of Article 21. The inter-relationship between the guarantee against arbitrariness and the protection of life and personal liberty operates in a multi-faceted plane. First, it ensures that the procedure for deprivation must be fair, just and reasonable. Second, Article 14 impacts both the procedure and the expression law . A law within the meaning of Article 21 must be consistent with the norms of fairness which originate in Article 14. As a matter of principle, once Article 14 has a connect with Article 21, norms of fairness and reasonableness would apply not only to the procedure but to the law as well. 166 Above all, it must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the human personality. The integrity of the body and the sanctity of the mind can exist on the foundation that each individual possesses an inalienable ability and right to preserve a private space in which the human personality can develop. Without the ability to make choices, the inviolability of the personality would be in doubt. Recognizing a zone of privacy is but an acknowledgment that each individual must be entitled to chart and pursue the course of development of personality. Hence privacy is a postulate of human dignity itself. Thoughts and behavioural patterns which are intimate to an individual are entitled to a zone of privacy where one is free of social expectations. In that zone of privacy, an individual is not judged by others. Privacy enables each individual to take crucial decisions which find expression in the human personality. It enables individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demands of homogeneity. Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity in creating a zone of solitude. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n are all integral to the dignity of the individual. Above all, the privacy of the individual recognises an inviolable right to determine how freedom shall be exercised. An individual may perceive that the best form of expression is to remain silent. Silence postulates a realm of privacy. An artist finds reflection of the soul in a creative endeavour. A writer expresses the outcome of a process of thought. A musician contemplates upon notes which musically lead to silence. The silence, which lies within, reflects on the ability to choose how to convey thoughts and ideas or interact with others. These are crucial aspects of personhood. The freedoms under Article 19 can be fulfilled where the individual is entitled to decide upon his or her preferences. Read in conjunction with Article 21, liberty enables the individual to have a choice of preferences on various facets of life including what and how one will eat, the way one will dress, the faith one will espouse and a myriad other matters on which autonomy and self-determination require a choice to be made within the privacy of the mind. The constitutional right to the freedom of religion under Article 25 has implicit within it the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of privacy, yet on the other, the exercise of individual choices is subject to the rights of others to lead orderly lives. For instance, an individual who possesses a plot of land may decide to build upon it subject to zoning regulations. If the building bye laws define the area upon which construction can be raised or the height of the boundary wall around the property, the right to privacy of the individual is conditioned by regulations designed to protect the interests of the community in planned spaces. Hence while the individual is entitled to a zone of privacy, its extent is based not only on the subjective expectation of the individual but on an objective principle which defines a reasonable expectation. S Informational privacy 170 Ours is an age of information. Information is knowledge. The old adage that knowledge is power has stark implications for the position of the individual where data is ubiquitous, an all-encompassing presence. Technology has made life fundamentally interconnected. The internet has become all pervasive as individuals spend more and more time online each day of their lives. Individuals connect with others and use the internet as a means of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alls provide a profile of customer preferences. A woman who purchases pregnancy related medicines on-line would be in line to receive advertisements for baby products. Lives are open to electronic scrutiny. To put it mildly, privacy concerns are seriously an issue in the age of information. 172 A Press Note released by the Telecom Regulatory Authority of India on 3 July, 2017389 is indicative of the prevalence of telecom services in India as on 31 December, 2016. The total number of subscribers stood at 1151.78 million, reflecting a 11.13 percent change over the previous year. There were 683.14 million urban subscribers and 468.64 million rural subscribers. The total number of internet subscribers stood at 391.50 million reflecting an 18.04 per cent change over the previous quarter. 236.09 million were broadband subscribers. 370 million is the figure of wireless internet subscribers. The total internet subscribers per 100 population stood at 30.56; urban internet subscribers were 68.86 per 100 population; and rural internet subscribers being 13.08. The figures only increase. 173 The age of information has resulted in complex issues for informational privacy. These issues aris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta poses to privacy interests emanate from State and non-State entities. Users of wearable devices and social media networks may not conceive of themselves as having volunteered data but their activities of use and engagement result in the generation of vast amounts of data about individual lifestyles, choices and preferences. Yvonne McDermott speaks about the quantified self in eloquent terms: The rise in the so-called quantified self , or the self-tracking of biological, environmental, physical, or behavioural information through tracking devices, Internet-of-things devices, social network data and other means (?Swan.2013) may result in information being gathered not just about the individual user, but about people around them as well. Thus, a solely consent-based model does not entirely ensure the protection of one s data, especially when data collected for one purpose can be repurposed for another. 395 175 Daniel J Solove deals with the problem of aggregation . Businesses and governments often aggregate a variety of information fragments, including pieces of information which may not be viewed as private in isolation to create a detailed portrait of personalities an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on regime has to take into account is that while the web is a source of lawful activity-both personal and commercial, concerns of national security intervene since the seamless structure of the web can be exploited by terrorists to wreak havoc and destruction on civilised societies. Cyber attacks can threaten financial systems. Richard A Posner, in an illuminating article, has observed: Privacy is the terrorist s best friend, and the terrorist s privacy has been enhanced by the same technological developments that have both made data mining feasible and elicited vast quantities of personal information from innocents: the internet, with its anonymity, and the secure encryption of digitized data which, when combined with that anonymity, make the internet a powerful tool of conspiracy. The government has a compelling need to exploit digitization in defense of national security 399 Posner notes that while people value their informational privacy , yet they surrender it at the drop of a hat by readily sharing personal data in the course of simple daily transactions. The paradox, he observes, can be resolved by noting that as long as people do not expect that the details of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al guarantees against arbitrariness on the one hand and the protection of life and personal liberty, on the other. The right to privacy, which is an intrinsic part of the right to life and liberty, and the freedoms embodied in Part III is subject to the same restraints which apply to those freedoms. 181 Apart from national security, the state may have justifiable reasons for the collection and storage of data. In a social welfare state, the government embarks upon programmes which provide benefits to impoverished and marginalised sections of society. There is a vital state interest in ensuring that scarce public resources are not dissipated by the diversion of resources to persons who do not qualify as recipients. Allocation of resources for human development is coupled with a legitimate concern that the utilisation of resources should not be siphoned away for extraneous purposes. Data mining with the object of ensuring that resources are properly deployed to legitimate beneficiaries is a valid ground for the state to insist on the collection of authentic data. But, the data which the state has collected has to be utilised for legitimate purposes of the state and ought not to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e as a conceptual foundation for legislation protecting privacy. The framework suggested by the expert group was based on five salient features: (i) Technological neutrality and interoperability with international standards; (ii) Multi-Dimensional privacy; (iii) Horizontal applicability to state and non- state entities; (iv) Conformity with privacy principles; and (v) A co-regulatory enforcement regime. After reviewing international best practices, the Expert Group proposed nine privacy principles. They are: (i) Notice: A data controller shall give simple-to-understand notice of its information practices to all individuals in clear and concise language, before personal information is collected; (ii) Choice and Consent: A data controller shall give individuals choices (opt-in/opt-out) with regard to providing their personal information, and take individual consent only after providing notice of its information practices; (iii) Collection Limitation: A data controller shall only collect personal information from data subjects as is necessary for the purposes identified for such collection, regarding which notice has been provided and consent of the individual taken. Such col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and sensitivity to the data they collect, in order to ensure compliance with the privacy principles, information regarding which shall be made in an intelligible form, using clear and plain language, available to all individuals; and (ix) Accountability: The data controller shall be accountable for complying with measures which give effect to the privacy principles. Such measures should include mechanisms to implement privacy policies; including tools, training, and education; external and internal audits, and requiring organizations or overseeing bodies extend all necessary support to the Privacy Commissioner and comply with the specific and general orders of the Privacy Commissioner. 185 During the course of the hearing of these proceedings, the Union government has placed on the record an Office Memorandum dated 31 July 2017 by which it has constituted a committee chaired by Justice B N Srikrishna, former Judge of the Supreme Court of India to review inter alia data protection norms in the country and to make its recommendations. The terms of reference of the Committee are : a) To study various issues relating to data protection in India; b) To make specific sugges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dignity of the individual, equality between human beings and the quest for liberty are the foundational pillars of the Indian Constitution; (B) Life and personal liberty are not creations of the Constitution. These rights are recognised by the Constitution as inhering in each individual as an intrinsic and inseparable part of the human element which dwells within; (C) Privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution. Elements of privacy also arise in varying contexts from the other facets of freedom and dignity recognised and guaranteed by the fundamental rights contained in Part III; (D) 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; (E) Privacy is the constitutional core of human dignity. Privacy has both a normative and descriptive function. At a normative level privacy sub-serves those eternal values upon which the guarantees of life, liberty and freedom are founded. At a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch postulates the existence of law; (ii) need, defined in terms of a legitimate state aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them; and (I) 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. 4 Decisions rendered by this Court subsequent to Kharak Singh, upholding the right to privacy would be read subject to the above principles. 5 Informational privacy is a facet of the right to privacy. The dangers to privacy in an age of information can originate not only from the state but from non-state actors as well. We commend to the Union Government the need to examine and put into place a robust regime for data protection. The creation of such a regime requires a careful and sensitive balance between individual interests and legitimate concerns of the state. The legitimate aims of the state would include for instance protecting national security, preventing and inve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 195-196 33 Ibid, at page 205 34 Thomas Cooley, Treatise on the Law of Torts (1888), 2nd edition 35 Ibid, at page 29 36 Dorothy J Glancy, The Invention of the Right to Privacy , Arizona Law Review (1979) Vol. 21, No.1, at page 1. The article attributes the Roscoe Pound quotation to Letter from Roscoe Pound to William Chilton (1916) as quoted in Alpheus Mason, Brandeis : A Free Man s Life 70 (1956). 37 Ibid, at pages 2-3. 38 Ibid, at pages 7-8 39 Ibid, at page 8 40 Ibid, at page 9 41 Ibid, at page 10 42 Ibid, at page 12 43 Ibid, at page 14 44 Ibid, at Pages 15-16 45 Id at Pages 21-22 46 Illustratively, the Centre for Internet and Society has two interesting articles tracing the origin of privacy within Classical Hindu Law and Islamic Law. See Ashna Ashesh and Bhairav Acharya , Locating Constructs of Privacy within Classical Hindu Law , The Centre for Internet and Society , available at https://cis-india.org/internet- governance/blog/loading-constructs-of-privacy-within-classical-hindu-law. See also Vidushi Marda and Bhairav Acharya, Identifying Aspects of Privacy in Islamic Law , The Centre for Internet and Society, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5) 102 Katz v United States, 389 US 347 (1967) 103 Supra Note 95, at page 516 (para 36) 104 Ibid, at page 518 (para 39) 105 Ibid, at page 523 (para 53) 106 Ibid, at page 524 (para 54) 107 (2007) 1 SCC 789 108 Narcotic Drugs and Psychotropic Substances Act, 1985 109 (2008) 2 SCC 370 110 (2008) 3 SCC 1 111 Ibid, at page 15 (para 35) 112 Ibid, at pages 16-17 (para 43) 113 Ibid, at page 19 (para 51) 114 (2008) 5 SCC 33 115 Ibid, at pages 46-47 (para 27) 116 (2008) 13 SCC 5 117 Ibid, at page 28 (para 61) 118 Gautam Bhatia (supra note 82), at page 148 119 (2009) 9 SCC 1 120 Ibid, at page 15 (para 22) 121 (2009) 9 SCC 551 122 Ibid, at pages 584-585 (para 102) 123 Ibid, at page 585 (para 103) 124 (2010) 7 SCC 263 125 Ibid, at pages 369-370 (paras 225-226) 126 (2010) 8 SCC 633 127 Ibid, at page 642 (para 21) 128 (2011) 7 SCC 69 129 Ibid, at page 84 (para 39) 130 (2011) 8 SCC 1 131 Ibid, at pages 35-36 (paras 83-84) 132 (2011) 13 SCC 155 133 Ibid, at page 156 (para 6) 134 (2012) 5 SCC 1 135 Ibid, at pages 119-120 (para 312) 136 (2012) 13 SCC 61 137 Ibid, at page 74 (pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 204 Ibid, at page 701 (para 459) 205 Ibid, at pages 723-724 (para 487) 206 Ibid, at page 747 (para 525) 207 Ibid, at pages 749-750 (para 530) 208 Ibid, at page 751 (para 531) 209 Ibid, page 767 (para 574) 210 274 US 200 (1927) 211 A moving account of the times and the position is to be found in Siddhartha Mukherjee, The Gene: An Intimate History , Penguin Books Ltd. (2016), pages 78-85. 212 323 US 214 (1944) 213 (1977) 1 SCC 834 214 (2007) 2 SCC 1 215 Ibid, at page 76 (para 29) 216 (2014) 1 SCC 1 217 Naz Foundation v Government of NCT, 2010 Cri LJ 94 218 Ibid, at page 110 (para 48) 219 Koushal (Supra note 216), at page 69-70 (para 66) 220 Ibid, at page 78 (para 77) 221 Article 51(c) of the Indian Constitution 222 The Right to privacy in the Digital age , Report of the Office of the United Nations High Commissioner for Human Rights (30 June 2014) 223 Ibid, at page 5 (para 13) 224 (1980) 2 SCC 684 225 Francis Coralie (Supra note 159), at page 619 (para 8) 226 (1997) 6 SCC 241 227 Peter Semayne v Richard Gresham, 77 ER 194 228 (1765) 19 St. Tr. 1029 229 (1849) 41 ER 1171 230 [1991] FSR 62 231 [1993] AC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) 256 425 US 435 (1976) 257 431 US 678 (1977) 258 442 US 735 (1979) 259 505 US 833 (1992) 260 The essential holding of Roe , as summarized in Planned Parenthood , comprised of the following three parts: (1) a recognition of a woman's right to choose to have an abortion before foetal viability and to obtain it without undue interference from the State, whose pre-viability interests are not strong enough to support an abortion prohibition or the imposition of substantial obstacles to the woman's effective right to elect the procedure; (2) a confirmation of the State's power to restrict abortions after viability, if the law contains exceptions for pregnancies endangering a woman's life or health; and (3) the principle that the State has legitimate interests from the outsetof the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. 261 525 US 83 (1998) 262 495 US 91 (1990) 263 533 US 27 (2001) 264 539 US 558 (2003) 265 478 US 186 (1986) 266 562 US 134 (2011) 267 429 US 589 (1977). In this case, for the first time, the Court explicitly recognized an individual s interest in nondisclos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce should follow any consistent jurisprudence of the European Court of Human Rights, elucidating that: It is clear that the said Article 7 [of the EU Charter] contains rights corresponding to those guaranteed by Article 8(1) of the ECHR. Article 7 of the Charter must therefore be given the same meaning and the same scope as Article 8(1) of the ECHR... Reference can be passed to a case before ECtHR, Varec SA v. tat belge , Case C-450/06, [2008] ECR I-581, where it was observed that that: ...the right to respect for private life, enshrined in Article 8 of the ECHR, which flows from the common constitutional traditions of the Member States.... is restated in Article 7 of the Charter of fundamental rights of the European Union . 289 Application no. 13710/88, judgment dated 16 September 1992. 290 Application no. 13134/87, judgment dated 25 March 1993. 291 [2008] ECHR 1581 292 Application No. 35623/05 293 Ursula Kilkelly, The right to respect for private and family life: A guide to the implementation of Article 8 of the European Convention on Human Rights , Council of Europe (2001), at page 9 294 C-468/10, 24 November, [2011] ECR I-nyr 295 C-293/12 296 App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic Administration (1967), Vol. 2, at page 75 323 Ibid, at page 87 324 Ibid, at page 139 325 Ibid, at page 152 326 Ibid, at pages 158-159 327 B. Shiva Rao, The Framing of India s Constitution: A Study , Indian Institute of Public Administration (1968), at pages 219-220 328 (1967) 3 SCR 525 329 (1978) 4 SCC 494 330 (1978) 4 SCC 104 331 (1978) 3 SCC 544 332 (1980) 1 SCC 81 333 (1980) 3 SCC 526 334 (1983) 2 SCC 96 335 (1989) Suppl.(1) SCC 264 336 (1989) 4 SCC 286 337 (1990) 1 SCC 520 338 (1995) 2 SCC 577 339 (1983) 4 SCC 141 340(1978) 4 SCC 494 341 (2013) 10 SCC 591 342 (1985) 3 SCC 545 343 Amartya Sen, Development as Freedom , Oxford University Press (2000), at page 178-179 344 Ibid, at page 179 345 Amartya Sen, The Idea of Justice , Penguin Books (2009), at page 339 346 Ibid, at page 347 347 Amartya Sen, Development as Freedom , Oxford University Press (2000), at page 180 348 Amartya Sen, The Country of First Boys , Oxford University Press, Pg.80-81 349 Edwin Cameron and Max Taylor, The Untapped Potential of the Mandela Constitution , Public Law (2017), at page 394 350 Minister of Health v Tre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri Justice S.R. Tendolkar, AIR 1958 SC 538 ; Burrakur Coal Co. Ltd. v. Union of India AIR 1961 SC 954 ; Pathumma v. State of Kerala (1970) 2 SCR 537 ; R.K. Garg v. Union of India, (1981) 4 SCC 675 ; State of Bihar v. Bihar Distillery Limited, AIR 1997 SC 1511 ; State of Andhra Pradesh v. K. Purushottam Reddy (2003) 9 SCC 564, ; Mardia Chemicals Ltd. v. Union of India, (2004) 4 SCC 311 ; State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat 2005 (8) SCC 534 ; Bhanumati v. State of Uttar Pradesh, (2010) 12 SCC 1 ; K.T. Plantation Pvt. Ltd. v. State of Karnataka, (2011) 9 SCC 1 ; State of Madhya Pradesh v. Rakesh Kohli, (2012) 6 SCC 312 ; Namit Sharma v. Union of India, (2013) 1 SCC 745 385 R.K. Garg v. Union of India, (1981) 4 SCC 675; Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupesh Kurmarsheth, AIR 1984 SC 1543; State of Andhra Pradesh v. McDowell, (1996) 3 SCC 709 ; Union of India v. Azadi Bachao Andolan, (2004) 10 SCC 1 ; State of U.P. v. Jeet S. Bisht, (2007) 6 SCC 586 ; K.T. Plantation Pvt. Ltd. v. State of Karnataka, (2011) 9 SCC 1 ; Bangalore Development Authority v. The Air Craft Employees Cooperative Society Ltd., 2012 (1) SCAL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... my views regarding the various questions which were debated in this matter. 2. The following three questions, in my opinion, constitute the crux of the enquiry; (i) Is there any Fundamental Right to Privacy under the Constitution of India? (ii) If it exists, where is it located? (iii) What are the contours of such Right? 3. These questions arose because Union of India and some of the respondents took a stand that, in view of two larger bench judgments of this Court1, no fundamental right of privacy is guaranteed under the Constitution. 4. Therefore, at the outset, it is necessary to examine whether it is the ratio decidendi of M.P. Sharma and Kharak Singh that under our Constitution there is no Fundamental Right of Privacy; and if that be indeed the ratio of either of the two rulings whether they were rightly decided? The issue which fell for the consideration of this Court in M.P. Sharma was whether seizure of documents from the custody of a person accused of an offence would amount to testimonial compulsion prohibited under Article 20(3) of our Constitution? 5. The rule against the testimonial compulsion is contained in Article 20(3)2 of our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. All that, in my opinion, their Lordships meant to say was that contents of the U.S. Fourth Amendment cannot be imported into our Constitution, while interpreting Article 20(3). That is the boundary of M.P. Singh s ratio . Such a conclusion, in my opinion, requires a further examination in an appropriate case since it is now too well settled that the text of the Constitution is only the primary source for understanding the Constitution and the silences of the Constitution are also to be ascertained to understand the Constitution. Even according to the American Supreme Court, the Fourth Amendment is not the sole repository of the right to privacy7. Therefore, values other than those informing the Fourth Amendment can ground a right of privacy if such values are a part of the Indian Constitutional framework, and M.P. Sharma does not contemplate this possibility nor was there an occasion, therefore as the case was concerned with Article 20(3). Especially so as the Gopalan era compartmentalization ruled the roost during the time of the M.P. Sharma ruling and there was no Maneka Gandhi interpretation of Part III as a cohesive and fused code as is presently. Whether the righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mendment of the U.S. Constitution, and a corresponding provision is absent in our Constitution. Nonetheless, their Lordships concluded that the impugned regulation insofar as it sanctioned domiciliary visits is plainly violative of Article 21. For this conclusion, their Lordships relied upon the English Common Law maxim that every man's house is his castle 10. In substance domiciliary visits violate liberty guaranteed under Article 21. The twin conclusions recorded, viz., that Article 21 takes within its sweep various rights other than mere freedom from physical restraint; and domiciliary visits by police violate the right of Kharak Singh guaranteed under Article 21, are a great leap from the law declared by this Court in Gopalan11 - much before R.C. Cooper12 and Maneka Gandhi13 cases. The logical inconsistency in the judgment is that while on the one hand their Lordships opined that the maxim every man s house is his castle is a part of the liberty under Article 21, concluded on the other, that absence of a provision akin to the U.S. Fourth Amendment would negate the claim to the right of privacy. Both statements are logically inconsistent. In the earlier part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f implying such a right from some provision of such statute arises. Implications are logical extensions of stipulations in the express language of the statute and arise only when a statute is silent on certain aspects. Implications are the product of the interpretative process, of silences of a Statute. It is by now well settled that there are implications even in written Constitutions.17 The scope and amplitude of implications are to be ascertained in the light of the scheme and purpose sought to be achieved by a statute. The purpose of the statute is to be ascertained from the overall scheme of the statute. Constitution is the fundamental law adumbrating the powers and duties of the various organs of the State and rights of the SUBJECTS18 and limitations thereon, of the State. In my opinion, provisions purportedly conferring power on the State are in fact limitations on the State power to infringe on the liberty of SUBJECTS. In the context of the interpretation of a Constitution the intensity of analysis to ascertain the purpose is required to be more profound.19 The implications arising from the scheme of the Constitution are Constitution s dark matter and are as important ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t would have no occasion to hear an argument that the Parliament or State legislatures would be constitutionally competent to prescribe cruel punishments like amputation or blinding or flaying alive of convicts merely an account of a prescription akin to the VIIIth Amendment being absent in our Constitution.25 15. This Court by an interpretive process read the right to earn a livelihood26, the right to education27, the right to speedy trial28, the right to protect one s reputation29 and the right to have an environment free of pollution30 in the expression life under Article 21 of the Indian Constitution. Similarly, the right to go abroad31 and the right to speedy trial of criminal cases32 were read into the expression liberty occurring under Article 21. This court found delayed execution of capital punishment violated both the rights of life and liberty guaranteed under Article 2133 and also perceived reproductive rights and the individual s autonomy regarding sterilization to being inherent in the rights of life and liberty under Art. 2134. 16. None of the above-mentioned rights are to be found anywhere in the text of the Constitution. 17. To sanctify an argument tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the goals professed in the Preamble36. Part-III of the Constitution is incorporated to ensure achievement of the objects contained in the Preamble.37 We the People of this country are the intended beneficiaries38 of the Constitution. It must be seen as a document written in the blood of innumerable martyrs of Jalianwala Bagh and the like. Man is not a creature of the State. Life and liberty are not granted by the Constitution. Constitution only stipulates the limitations on the power of the State to interfere with our life and liberty. Law is essential to enjoy the fruits of liberty; it is not the source of liberty and emphatically not the exclusive source. 19. To comprehend whether the right to privacy is a Fundamental Right falling within the sweep of any of the Articles of Part-III, it is necessary to understand what fundamental right and the right of privacy mean conceptually. Rights arise out of custom, contract or legislation, including a written Constitution. The distinction between an ordinary legislation and an enacted Constitution is that the latter is believed and expected to be a relatively permanent piece of legislation which cannot be abrogated by a simpl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the people/voters. 22. Though each of the rights created by a Constitution is of great importance for sustenance of a democratic form of Government chosen by us for achieving certain objectives declared in the Preamble, the framers of our Constitution believed that some of the rights enshrined in the Constitution are more crucial to the pursuit of happiness of the people of India and, therefore, called them fundamental rights. The belief is based on the study of human history and the Constitution of other nations which in turn are products of historical events. The scheme of our Constitution is that the power of the State is divided along a vertical axis between the Union and the States and along the horizontal axis between the three great branches of governance, the legislative, the executive and the judiciary. Such division of power is believed to be conducive to preserving the liberties of the people of India. The very purpose of creating a written Constitution is to secure justice, liberty and equality to the people of India. Framers of the Constitution believed that certain freedoms are essential to enjoy the fruits of liberty and that the State shall not be permitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that by enumerating certain freedoms in Article 19(1), the makers of the Constitution excluded those freedoms from the expression liberty in Article 21. The minority opined that both the freedoms enumerated in Article 19(1) and 21 are independent fundamental rights, though there is overlapping . The expression liberty is capable of taking within its sweep not only the right to move freely, guaranteed under Article 19(1)(d); but also each one of the other freedoms mentioned under Article 19(1). Personal liberty takes within its sweep not only the right not to be subjected to physical restraints, but also the freedom of thought, belief, emotion and sensation and a variety of other freedoms. The most basic understanding of the expression liberty is the freedom of an individual to do what he pleases. But the idea of liberty is more complex than that. Abraham Lincoln s statement44 that our nation was conceived in liberty is equally relevant in the context of the proclamation contained in our Preamble; and as evocatively expressed in the words of Justice Brandies; Those who won our independence believed that the final end of the State was to make men free to develop their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liberty happens to be one of the freedoms enumerated in Article 19(1), such a law is required to be a reasonable within the parameters stipulated in clauses (2) to (6) of Article 19, relevant to the nature of the entrenched freedom/s, such law seeks to abridge. (4) If the person whose liberty is sought to be deprived of is a non-citizen or even if a citizen is with respect to any freedom other than those specified in Articles 19(1), the law should be just, fair and reasonable. 30. My endeavour qua the aforesaid analysis is only to establish that the expression liberty in Article 21 is wide enough to take in not only the various freedoms enumerated in Article 19(1) but also many others which are not enumerated. I am of the opinion that a better view of the whole scheme of the chapter on fundamental rights is to look at each one of the guaranteed fundamental rights not as a series of isolated points, but as a rational continuum of the legal concept of liberty i.e. freedom from all substantial, arbitrary encroachments and purposeless restraints sought to be made by the State. Deprivation of liberty could lead to curtailment of one or more of freedoms which a human being posse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India. M.P. Sharma (supra) and the majority in Kharak Singh (supra), to the extent that they indicate to the contrary, stand overruled. The later judgments of this Court recognizing privacy as a fundamental right do not need to be revisited. These cases are, therefore, sent back for adjudication on merits to the original Bench of 3 honourable Judges of this Court in light of the judgment just delivered by us. Justice Chandrachud held : (C) Privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution. Elements of privacy also arise in varying contexts from the other facets of freedom and dignity recognised and guaranteed by the fundamental rights contained in Part III; 36. One of the earliest cases where the constitutionality of State s action allegedly infringing the right of privacy fell for the consideration of the US Supreme Court is Griswold et al v. Connecticut , 381 US 479. The Supreme Court of the United States sustained a claim of a privacy interest on the theory that the Constitution itself creates certain zones of privacy - repose and intimate decision.5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther than religious beliefs which form part of the individual s freedom of conscience such as political belief etc. which form part of the liberty under Article 21. 38. Concerns of privacy arise when the State seeks to intrude into the body of SUBJECTS.57 Corporeal punishments were not unknown to India, their abolition is of a recent vintage. Forced feeding of certain persons by the State raises concerns of privacy. An individual s rights to refuse life prolonging medical treatment or terminate his life is another freedom which fall within the zone of the right of privacy. I am conscious of the fact that the issue is pending before this Court. But in various other jurisdictions, there is a huge debate on those issues though it is still a grey area.58 A woman s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy. Similarly, the freedom to choose either to work or not and the freedom to choose the nature of the work are areas of private decision making process. The right to travel freely within the country or go abroad is an area falling within the right of privacy. The text of our Constitution recognised the freedom to tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... most intimate decisions. All liberal democracies believe that the State should not have unqualified authority to intrude into certain aspects of human life and that the authority should be limited by parameters constitutionally fixed. Fundamental rights are the only constitutional firewall to prevent State s interference with those core freedoms constituting liberty of a human being. The right to privacy is certainly one of the core freedoms which is to be defended. It is part of liberty within the meaning of that expression in Article 21. 41. I am in complete agreement with the conclusions recorded by my learned brothers in this regard. 42. It goes without saying that no legal right can be absolute. Every right has limitations. This aspect of the matter is conceded at the bar. Therefore, even a fundamental right to privacy has limitations. The limitations are to be identified on case to case basis depending upon the nature of the privacy interest claimed. There are different standards of review to test infractions of fundamental rights. While the concept of reasonableness overarches Part III, it operates differently across Articles (even if only slightly differently acro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clarity as to when and in what types of privacy claims it is to be used. Only in privacy claims which deserve the strictest scrutiny is the standard of compelling State interest to be used. As for others, the just, fair and reasonable standard under Article 21 will apply. When the compelling State interest standard is to be employed must depend upon the context of concrete cases. However, this discussion sets the ground rules within which a limitation for the right of privacy is to be found. (J. CHELAMESWAR) New Delhi August 24, 2017. 1 M.P. Sharma Others v. Satish Chandra Others , AIR 1954 SC 300 and Kharak Singh v. State of U.P. Others, AIR 1963 SC 1295, (both decisions of Constitution Bench of Eight and Six Judges respectively). 2 Article 20(3) of the Constitution of India: No person accused of any offence shall be compelled to be a witness against himself. 3 In English law, this principle of protection against self-incrimination had a historical origin. It resulted from a feeling of revulsion against the inquisitorial methods adopted and the barbarous sentences imposed, by the Court of Star Chamber, in the exercise of its criminal j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.K. Gopalan Vs. State of Madras AIR 1950 SC 27 12 RC Cooper Vs. Union of India (1970) 1 SCC 248 13 Maneka Gandhi Vs. Union of India (1978) 1 SCC 248 14 See F/N 3 (supra) 15 Nor do we consider that Article 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 movements 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. 16 Kharak Singh v. The State of U.P. Others, (1962) 1 SCR 332 at page 351 Nor do we consider that Article 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 movements 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. 17 (1947) 74 CLR 31 The Melbourne Corporation v. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t criticisms against the living constitutionalist approach are that of uncertainty and that it can lead to arbitrary exercise of judicial power. The living constitutionalist approach in my view is preferable despite these criticisms, for two reasons. First, adaptability cannot be equated to lack of discipline in judicial reasoning. Second, it is still the text of the constitution which acquires the requisite interpretative hues and therefore, it is not as if there is violence being perpetrated upon the text if one resorts to the living constitutionalist approach. 20 His Holiness Kesavananda Bharati Sripadagalvaru Others. v. State of Kerala Another (1973) 4 SCC 225 21 ADM Jabalpur Vs. S.S. Shukla AIR 1976 SC 1207 22 Sakal Papers (P) Ltd. Others etc. v. Union of India, AIR 1962 SC 305 at page 311 Para 28. It must be borne in mind that the Constitution must be interpreted in a broad way and not in a narrow and pedantic sense. Certain rights have been enshrined in our Constitution as fundamental and, therefore, while considering the nature and content of those rights the Court must not be too astute to interpret the language of the Constitution in so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC 726 35 However, various forces which go into the making of history are dynamic. Those who are entrusted with the responsibility of the working of the Constitution must necessarily keep track of the dynamics of such forces. Evolution of science and growth of technology is another major factor in the modern world which is equally a factor to be kept in mind to successfully work the constitution. 36 Kesavananda Bharati (supra) Para 91. Our Preamble outlines the objectives of the whole constitution. It expresses what we had thought or dreamt for so long . 37 In re, The Kerala Education Bill, 1957 , AIR 1958 SC 956 To implement and fortify these supreme purposes set forth in the Preamble, Part III of our Constitution has provided for us certain fundamental rights. 38 Bidi Supply Co. v. Union of India Others, AIR 1956 SC 479 at page 487 Para 23. After all, for whose benefit was the Constitution enacted? What was the point of making all this other about fundamental rights? I am clear that the Constitution is not for the exclusive benefit governments and States; it is not only for lawyers and politicians and officials and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right of life and personal liberty has many attributes and some of them are found in Article 19. 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(2) the minority view must be regarded as correct and the majority view must be held to have been overruled . 42 6. ..The law, must, therefore, now be taken to be well settled that Article 21 does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving a person of 'personal liberty' and there is consequently no infringement of the fundamental right conferred by Article 21, such law, in so far as it abridges or takes away any fundamental right under Article 19 would have to meet the challenge of that article. This proposition can no longer be disputed after the decisions in R. C. Cooper's case, Shambhu Nath Sarkar's case and Haradhan Saha's cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause (5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe (6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, (i) the professional or technical qualifications necessary for practising any profession or carrying on any occup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctise and propagate religion. (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law- (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Explanation I.- The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. Explanation II.- In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.\ 57 Skinner Vs. Oklahoma, 316 U.S. 535 (1942) - There are limits to the extent to which a legislatively represented majority may conduct biological experiments at the expense of the dignity and personality and natural powers of a minority even those who have been guilty of what the majority defines as crimes - Jackson, J. 58 F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a majority of 4 Judges in Kharak Singh v. State of Uttar Pradesh 2 . 2. The question, which was framed by a Bench of three of us and travels to us from a Bench of five, was the following: 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 MP Sharma and Kharak Singh 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 pronouncements made by larger Benches of this Court cannot be ignored by 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 subsequent judgments where right to privacy is asserted or referred to their Lordshi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht. 5. M.P. Sharma is unconvincing not only because it arrived at its conclusion without enquiry into whether a privacy right could exist in our Constitution on an independent footing or not, but because it wrongly took the United States Fourth Amendment which in itself is no more than a limited protection against unlawful surveillance to be a comprehensive constitutional guarantee of privacy in that jurisdiction. 6. Neither does the 4:2 majority in Kharak Singh v. State of Uttar Pradesh (supra) furnish a basis for the proposition that no constitutional right to privacy exists. Ayyangar, J. s opinion for the majority found that Regulation 236 (b) of the Uttar Pradesh Police Regulations, which inter alia enabled the police to make domiciliary visits at night was plainly violative of Article 21 4. In reasoning towards this conclusion, the Court impliedly acknowledged a constitutional right to privacy. In particular, it began by finding that though India has no like guarantee to the Fourth Amendment, an unauthorised intrusion into a person s home and the disturbance caused to him thereby, is as it were the violation of a common law right of a man an ultimate essential of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on before the Court today have been discussed in great detail in the opinions of Chelameswar J., Nariman J., and Chandrachud J., I agree with their conclusion in this regard. To the extent that stray observations taken out of their context may suggest otherwise, the shift in our understanding of the nature and location of various fundamental rights in Part III brought about by R.C. Cooper and Maneka Gandhi has removed the foundations of M.P. Sharma and Kharak Singh. 10. Petitioners submitted that decisions numbering atleast 30 beginning with Mathews, J. s full-throated acknowledgement of the existence and value of a legal concept of privacy in Gobind v. State of M.P.12 form an unbroken line of cases that affirms the existence of a constitutional right to privacy. In view of the foregoing, this view should be accepted as correct. The Form of the Privacy Right 11. It was argued for the Union by Mr. K.K. Venugopal, learned Attorney General that the right of privacy may at best be a common law right, but not a fundamental right guaranteed by the Constitution. This submission is difficult to accept. In order to properly appreciate the argument, an exposition of the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment came the state, a new actor with an unprecedented capacity to interfere with natural and common law rights alike. The state differs in two material ways from the monarch, the previous site in which governmental power (including the power to compel compliance through penal laws) was vested. First, the state is an abstract and diffuse entity, while the monarch was a tangible, single entity. Second, the advent of the state came with a critical transformation in the status of the governed from being subjects under the monarch to becoming citizens, and themselves becoming agents of political power qua the state. Constitutions like our own are means by which individuals the Preambular people of India create the state , a new entity to serve their interests and be accountable to them, and transfer a part of their sovereignty to it. The cumulative effect of both these circumstances is that individuals governed by constitutions have the new advantage of a governing entity that draws its power from and is accountable to them, but they face the new peril of a diffuse and formless entity against whom existing remedies at common law are no longer efficacious. 15. Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is to place citizens at centre stage and make the state accountable to them. In Society for Unaided Private Schools of Rajasthan v. Union of India21, it was held that [fundamental rights have two aspects, firstly, they act as fetter on plenary legislative powers, and secondly, they provide conditions for fuller development of our people including their individual dignity. 17. Once we have arrived at this understanding of the nature of fundamental rights, we can dismantle a core assumption of the Union s argument: that a right must either be a common law right or a fundamental right. The only material distinctions between the two classes of right of which the nature and content may be the same lie in the incidence of the duty to respect the right and in the forum in which a failure to do so can be redressed. Common law rights are horizontal in their operation when they are violated by one s fellow man, he can be named and proceeded against in an ordinary court of law. Constitutional and fundamental rights, on the other hand, provide remedy against the violation of a valued interest by the state , as an abstract entity, whether through legislation or otherwise, as well as b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re are matters public so far as the individual is concerned. Each individual as instinctively resents any encroachment by the public upon his rights which are of a private nature as he does the withdrawal of those of his rights which are of a public nature22 . The same instinctive resentment is evident in the present day as well. For instance, the non-consensual revelation of personal information such as the state of one s health, finances, place of residence, location, daily routines and so on efface one s sense of personal and financial security. In District Registrar and Collector v. Canara Bank23, this Court observed what the jarring reality of a lack of privacy may entail: ...If the right is to be held to be not attached to the person, then we would not shield our account balances, income figures and personal telephone and address books from the public eye, but might instead go about with the information written on our foreheads or our bumper stickers . 21. Privacy is [t]he condition or state of being free from public attention to intrusion into or interference with one s acts or decisions 24. The right to be in this condition has been described as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormance of religious rites, or when studying the Vedas or taking meals. The Arthashastra prohibits entry into another s house, without the owner s consent27. There is still a denomination known as the Ramanuj Sampradaya in southern India, members of which continue to observe the practice of not eating and drinking in the presence of anyone else. Similarly in Islam, peeping into others houses is strictly prohibited28. Just as the United States Fourth Amendment guarantees privacy in one s papers and personal effects, the Hadith makes it reprehensible to read correspondence between others. In Christianity, we find the aspiration to live without interfering in the affairs of others in the text of the Bible29. Confession of one s sins is a private act30. Religious and social customs affirming privacy also find acknowledgement in our laws, for example, in the Civil Procedure Code s exemption of a pardanashin lady s appearance in Court31. 24. Privacy, that is to say, the condition arrived at after excluding other persons, is a basic pre-requisite for exercising the liberty and the freedom to perform that activity. The inability to create a condition of selective seclusion virtually de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uct of an individual which concerns other people; but, being almost of as much importance as the liberty of thought itself, and resting in great part on the same reasons, is practically inseparable from it. Secondly, the principle requires liberty of tastes and pursuits; of framing the plan of our life to suit our own character; of doing as we like, subject to such consequences as may follow: without impediment from our fellow-creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong. Thirdly, from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived. No society in which these liberties are not, on the whole, respected, is free, whatever may be its form of government; and none is completely free in which they do not exist absolute and unqualified. The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Field J. in Munn v. Illinois to emphasize the quality of life covered by Article 21: By the term life as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world. and this passage was again accepted as laying down the correct law by the Constitution Bench of this Court in the first Sunil Batra case (supra). Every limb or faculty through which life is enjoyed is thus protected by Article 21 and a fortiori, this would include the faculties of thinking and feeling. Now deprivation which is inhibited by Article 21 may be total or partial, neither any limb or faculty can be totally destroyed nor can it be partially damaged. Moreover it is every kind of deprivation that is hit by Article 21, whether such deprivation be permanent or temporary and, furthermore, deprivation is not an act which is complete once and for all: it is a cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the right to profess, practice and propagate religion vide Article 25. The further right of every religious denomination to maintain institutions for religious and charitable purposes, to manage its own affairs and to own and administer property acquired for such purposes vide Article 26 also requires privacy, in the sense of non-interference from the state. Article 28(3) expressly recognizes the right of a student attending an educational institution recognized by the state, to be left alone. Such a student cannot be compelled to take part in any religious instruction imparted in any such institution unless his guardian has consented to it. 33. The right of privacy is also integral to the cultural and educational rights whereby a group having a distinct language, script or culture shall have the right to conserve the same. It has also always been an integral part of the right to own property and has been treated as such in civil law as well as in criminal law vide all the offences and torts of trespass known to law. 34. Therefore, privacy is the necessary condition precedent to the enjoyment of any of the guarantees in Part III. As a result, when it is claimed by rights bear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nistration (1980) 3 SCC 526 8. The right against delayed execution. TV Vatheeswaran v. State of Tamil Nadu, (1983) 2 SCC 68. 9. The right against custodial violence. Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96. 10. The Right against public hanging. A.G. of India v. Lachmadevi, (1989) Supp. 1 SCC264 11. Doctor s Assistance. Paramananda Katra v. Union of India, (1989) 4 SCC 286. 12. Shelter. Santistar Builder v. N.KI. Totame, (1990) 1 SCC 520 In the case of privacy, the case for judicial enumeration is especially strong. It is no doubt a fair implication from Article 21, but also more. Privacy is be a right or condition, logically presupposed 41 by rights expressly recorded in the constitutional text, if they are to make sense. As a result, privacy is more than merely a derivative constitutional right. It is the necessary and unavoidable logical entailment of rights guaranteed in the text of the constitution. 36. Not recognizing character of privacy as a fundamental right is likely to erode the very sub-stratum of the personal liberty guaranteed by the constitution. The decided cases clearly demonstrate that particular fundamental rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t necessary for the purpose of this case to deal with the particular instances of privacy claims which are to be recognized as implicating a fundamental right. Indeed, it would be premature to do. The scope and ambit of a constitutional protection of privacy can only be revealed to us on a case-by-case basis. The Test for Privacy 41. One way of determining what a core constitutional idea is, could be by considering its opposite, which shows what it is not. Accordingly, we understand justice as the absence of injustice, and freedom as the absence of restraint. So too privacy may be understood as the antonym of publicity. In law, the distinction between what is considered a private trust as opposed to a public trust illuminates what I take to be core and irreducible attributes of privacy. In Deoki Nandan v. Murlidhar42, four judges of this Court articulated the distinction in the following terms: The distinction between a private trust and a public trust is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... require us to hold that private information must be information that is inaccessible to all others. Standards of Review of Privacy Violations 45. There is no doubt that privacy is integral to the several fundamental rights recognized by Part III of the Constitution and must be regarded as a fundamental right itself. The relationship between the right of privacy and the particular fundamental right (or rights) involved would depend on the action interdicted by a particular law. At a minimum, since privacy is always integrated with personal liberty, the constitutionality of the law which is alleged to have invaded into a rights bearer s privacy must be tested by the same standards by which a law which invades personal liberty under Article 21 is liable to be tested. Under Article 21, the standard test at present is the rationality review expressed in Maneka Gandhi s case. This requires that any procedure by which the state interferes with an Article 21 right to be fair, just and reasonable, not fanciful, oppressive or arbitrary 43. 46. Once it is established that privacy imbues every constitutional freedom with its efficacy and that it can be located in each of them, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of land) 3. S. 5(2), The Indian Telegraph Act, 1885 (specifying the permissible grounds for the Government to order the interception of messages) 4. S. 5 and 6, The Bankers Books (Evidence) Act, 1891 (mandating a court order for the production and inspection of bank records) 5. S. 25 and 26, The Indian Post Office Act, 1898 (specifying the permissible grounds for the interception of postal articles) 18 MARTIN LOUGHLIN, THE FOUNDATIONS OF PUBLIC LAW 344-46 (2010) 19 (1973) 4 SCC 225, 1461 at p. 783 20 (2005) 2 SCC 436 21 (2012) 6 SCC 1 at 27 22 Pavesich v. New England Life Insurance co. et al., 50 S.E. 68 (Supreme Court of Georgia) 23 (2005) 1 SCC 496 at 48 24 BLACK S LAW DICTIONARY (Bryan Garner, ed.) 3783 (2004) 25 Samuel D. Warren and Louis D. Brandeis, The Right To Privacy, 4 HARV. L. REV. 193 (1890) 26 Narcotic Drugs and Psychotropic Substances Act, 1985, s. 42 27 KAUTILYA S ARTHASHASTRA189-90 (R. Shamasastri, trans., 1915) 28 AA MAUDUDI, HUMAN RIGHTS IN ISLAM 27 (1982) 29 Thessalonians 4:11 THE BIBLE 30 James 5:16 THE BIBLE 31 Code of Civil Procedure, 1989, S. 132 32 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 humble opinion that there appears to be certain amount of apparent unresolved contradiction in the law declared by this Court. 13. Therefore, in our opinion to give a quietus to the kind of controversy raised in this batch of cases once for all, it is better that the ratio decidendi ofM.P. Sharma (supra) and Kharak Singh (supra) is scrutinized and the jurisprudential correctness of the subsequent decisions of this Court where the right to privacy is either asserted or referred be examined and authoritatively decided by a Bench of appropriate strength. 2. The matter was heard by a Bench of 5 learned Judges on July 18, 2017, and was thereafter referred to 9 learned Judges in view of the fact that the judgment in M.P. Sharma and others v. Satish Chandra, District Magistrate, Delhi, and others, 1954 SCR 1077, was by a Bench of 8 learned Judges of this Court. 3. Learned senior counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kerala, also supported the petitioners and stated that the constitutional right to privacy very much exists in Part III of the Constitution. 6. Appearing on behalf of the Union of India, Shri K.K. Venugopal, learned Attorney General for India, has argued that the conclusions arrived at in the 8-Judge Bench and the 6- Judge Bench decisions should not be disturbed as they are supported by the fact that the founding fathers expressly rejected the right to privacy being made part of the fundamental rights chapter of the Constitution. He referred in copious detail to the Constituent Assembly debates for this purpose. Further, according to him, privacy is a common law right and all aspects of privacy do not elevate themselves into being a fundamental right. If at all, the right to privacy can only be one amongst several varied rights falling under the umbrella of the right to personal liberty. According to him, the right to life stands above the right to personal liberty, and any claim to privacy which would destroy or erode this basic foundational right can never be elevated to the status of a fundamental right. He also argued that the right to privacy cannot be claimed when most of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... state that in the case of every invasion of a privacy right, howsoever trivial, the fundamental right to privacy gets attracted, whereas according to the learned Attorney General, there is no fundamental right to privacy at all. He asked us to adopt an intermediate position namely, that it is only if the U.S. Supreme Court s standard that a petitioner before a Court satisfies the test of reasonable expectation of privacy that such infraction of privacy can be elevated to the level of a fundamental right. According to Shri Dwivedi, individual personal choices made by an individual are already protected under Article 21 under the rubric personal liberty . It is only when individuals disclose certain personal information in order to avail a benefit that it could be said that they have no reasonable expectation of privacy as they have voluntarily and freely parted with such information. Also, according to him, it is only specialized data, if parted with, which would require protection. As an example, he stated that a person s name and mobile number, already being in the public domain, would not be reasonably expected by that person to be something private. On the other hand, what ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lways marshaled to protect liberty and, therefore, argued that the formulation that should be made by this Court is whether a liberty interest is at all affected; is such liberty personal liberty or other liberty that deserves constitutional protection and is there a countervailing legitimate State interest. 11. Shri Jugal Kishore, appearing on behalf of the State of Chhattisgarh, has also broadly supported the stand of the learned Attorney General. 12. Shri Gopal Sankaranarayanan, appearing on behalf of the Centre for Civil Society, argued that M.P. Sharma (supra) and Kharak Singh (supra) are correctly decided and must be followed as there has been no change in the constitutional context of privacy from Gopalan (supra) through R.C. Cooper (supra) and Maneka Gandhi (supra). He further argued that being incapable of precise definition, privacy ought not to be elevated in all its aspects to the level of a fundamental right. According to him, the words life and personal liberty in Article 21 have already been widely interpreted to include many facets of what the petitioners refer to as privacy. Those facets which have statutory protection are not protected by Article 21. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 (1778), Lord Mansfield upheld the privacy of a third person when such privacy was the subject matter of a wager, which was injurious to the reputation of such third person. The wager in that case was as to whether a certain Chevalier D eon was a cheat and imposter in that he was actually a woman. Such wager which violated the privacy of a third person was held to be injurious to the reputation of the third person for which damages were awarded to the third person. These early judgments did much to uphold the inviolability of the person of a citizen. 16. When we cross the Atlantic Ocean and go to the United States, we find a very interesting article printed in the Harvard Law Review in 1890 by Samuel D. Warren and Louis D. Brandeis [(4 Harv. L. Rev. 193)]. The opening paragraph of the said article is worth quoting: THAT the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts comes from his second lecture. In words that resonate even today, he stated: A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed .. 20. Brandeis, J. had a somewhat different view. He cautioned that in most matters it is more important that the applicable rule of law be settled than that it be settled right. [See Burnet v. Coronado Oil Gas Co., 285 U.S. 393 at 406 (1932)]. John P. Frank wrote, in 1958, of the Brandeis view as follows: Brandeis was a great institutional man. He realized that . random dissents . weaken the institutional impact of the Court and handicap it in the doing of its fundamental job. Dissents . need to be saved for major matters if the Court is not to appear indecisive and quarrelsome .. To have discarded some of his separate opinions is a supreme example of Brandeis s sacrifice to the strength and consistency of the Court. And he had his reward: his shots were all the harder because he chose his ground. 3 21. Whichever way one looks a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which, it has been observed, no Japanese could possibly have conceived or written and which few could even understand [See Ogg and Zink s Modern Foreign Governments ]. One of the characteristics of the Constitution which undoubtedly bespeaks of direct American influence is to be found in a lengthy chapter, consisting of 31 articles, entitled Rights and Duties of the People, which provided for the first time an effective Bill of Rights for the Japanese people. The usual safeguards have been provided there against apprehension without a warrant and against arrest or detention without being informed of the charges or without adequate cause (articles 33 and 34). Now there are two matters which deserve to be noticed:- (1) that the Japanese Constitution was framed wholly under American influence; and (2) that at the time it was framed the trend of judicial opinion in America was in favour of confining the meaning of the expression due process of law to what is expressed by certain American writers by the somewhat quaint but useful expression procedural due process. That there was such a trend would be clear from the following passage which I quote from Carl Brent Swisher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were a cry in the wilderness. Insofar as his vision that fundamental rights are not in distinct watertight compartments but do overlap, it took twenty years for this Court to realize how correct he was, and in R.C. Cooper (supra), an 11-Judge Bench of this Court, agreeing with Fazl Ali, J., finally held: 52. In dealing with the argument that Article 31(2) is a complete code relating to infringement of the right to property by compulsory acquisition, and the validity of the law is not liable to be tested in the light of the reasonableness of the restrictions imposed thereby, it is necessary to bear in mind the enunciation of the guarantee of fundamental rights which has taken different forms. In some cases it is an express declaration of a guaranteed right: Articles 29(1), 30(1), 26, 25 32; in others to ensure protection of individual rights they take specific forms of restrictions on State action- legislative or executive-Articles 14, 15, 16, 20, 21, 22(1), 27 and 28; in some others, it takes the form of a positive declaration and simultaneously enunciates the restriction thereon: Articles 19(1) and 19(2) to (6); in some cases, it arises as an implication from the delimitat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able clarity thus (SCR p.723, para 85): 85. To sum up, procedure in Article 21 means fair, not formal procedure. Law is reasonable law, not any enacted piece. As Article 22 specifically spells out the procedural safeguards for preventive and punitive detention, a law providing for such detentions should conform to Article 22. It has been rightly pointed out that for other rights forming part of personal liberty, the procedural safeguards enshrined in Article 21 are available. Otherwise, as the procedural safeguards contained in Article 22 will be available only in cases of preventive and punitive detention, the right to life, more fundamental than any other forming part of personal liberty and paramount to the happiness, dignity and worth of the individual, will not be entitled to any procedural safeguard save such as a legislature s mood chooses. 28. Close on the heels of Maneka Gandhi case came Mithu vs. State of Punjab, (1983) 2 SCC 277, in which case the Court noted as follows: (SCC pp. 283-84, para 6) 6 In Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, while dealing with the question as to whether a person awaiting death sentence can be kept in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be free from restrictions placed on his movements, but also free from encroachments on his private life. It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty. Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a person s house, where he lives with his family, is his castle : it is his rampart against encroachment on his personal liberty. The pregnant words of that famous Judge, Frankfurter J., in Wolf v. Colorado (1949) 338 U.S. 25, pointing out the importance of the security of one s privacy against arbitrary intrusion by the police, could have no less application to an Indian home as to an American one. If physical restraints on a person s movements affect his personal liberty, physical encroachments on his private life would affect it in a larger degree. Indeed, nothing is more deleterious to a man s physical happiness and health than a calculated interference with his privacy. We would, therefore, define the right of personal liberty in Article 21 as a right of an ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other to which he is obliged to submit and are, therefore, not his testimonial acts in any sense. 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 not to subject such regulation to constitutional 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. (at pages 1096-1097) 26. The first thing that strikes one on reading the aforesaid passage is that the Court resisted the invitation to read the U.S. Fourth Amendment into the U.S. Fifth Amendment; in short it refused to read or import the Fourth Amendment into the Indian equivalent of that part of the Fifth Amendment which is the same as Article 20(3) of the Constitution of India. Also, the fundamental right to privacy, stated to be analogous to the Fourth Amendment, was held to be something which could not be read into Article 20(3). 27. The second interesting thin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. xxx xxx xxx It is thus clear that no succor can be drawn from the experience of either the U.K. or the U.S. We must proceed in accordance with the law laid down in the judgments of the Supreme Court of India. 29. Observations of several judgments make it clear that in the absence of any specific prohibition in municipal law, international law forms part of Indian law and consequently must be read into or as part of our fundamental rights. (For this proposition, see: Bachan Singh v. State of Punjab, (1980) 2 SCC 684 at paragraph 139, Francis Coralie Mullin v. Administrator, Union Territory of Delhi Ors., (1981) 1 SCC 608 at paragraph 8, Vishaka Ors. v. State of Rajasthan Ors., (1997) 6 SCC 241 at paragraph 7 and National Legal Services Authority v. Union of India, (2014) 5 SCC 438 at paragraphs 51-60). This last ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of Objects and Reasons reads as under:- 1. India is a party to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural rights, adopted by the General Assembly of the United Nations on the 16th December, 1966. The human rights embodied in the aforesaid covenants stand substantially protected by the Constitution. 2. However, there has been growing concern in the country and abroad about issues relating to human rights. Having regard to this, changing social realities and the emerging trends in the nature of crime and violence, Government has been reviewing the existing laws, procedures and systems of administration of justice; with a view to bringing about greater accountability and transparency in them, and devising efficient and effective methods of dealing with the situation. 3. Wide ranging discussions were held at various fora such as the Chief Ministers Conference on Human Rights, seminars organized in various parts of the country and meetings with leaders of various political parties. Taking into account the views expressed in these discussions, the present Bill is brought before Parliament. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, then it amounts to a clear violation of his human rights and NHRC has the jurisdiction to intervene for protecting it. 32. It may also be noted that the International Principles on the Application of Human Rights to Communication Surveillance (hereinafter referred to as the Necessary and Proportionate Principles ), which were launched at the U.N. Human Rights Council in Geneva in September 2013, were the product of a year-long consultation process among civil society, privacy and technology experts. The Preamble to the Necessary and Proportionate Principles states as follows: Privacy is a fundamental human right, and is central to the maintenance of democratic societies. It is essential to human dignity and it reinforces other rights, such as freedom of expression and information, and freedom of association, and is recognized under international human rights law .. 33. Ignoring Article 12 of the 1948 Declaration would by itself sound the death knell to the observations on the fundamental right of privacy contained in M.P. Sharma (supra). 34. It is interesting to note that, in at least three later judgments, this judgment was referred to only in passing in: ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court opined that a search warrant was addressed to an officer and not to the accused and did not violate Article 20(3). In the present discussion the case is of limited help. In fact, the law as to privacy was developed in later cases by spelling it out from the right to freedom of speech and expression in Article 19(1)(a) and the right to life in Article 21. And (3) Selvi v. State of Karnataka, (2010) 7 SCC 263 at 363, this Court held as follows:- 205. In M.P. Sharma (M.P. Sharma v. Satish Chandra, AIR 1954 SC 300: 1954 SCC 1077), it had been noted that the Indian Constitution did not explicitly include a right to privacy in a manner akin to the Fourth Amendment of the US Constitution. In that case, this distinction was one of the reasons for upholding the validity of search warrants issued for documents required to investigate charges of misappropriation and embezzlement. 35. It will be seen that different smaller Benches of this court were not unduly perturbed by the observations contained in M.P. Sharma (supra) as it was an early judgment of this Court delivered in the Gopalan (supra) era which had been eroded by later judgments dealing with the inter-rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 51 Cri LJ 1383) and the observations made by Patanjali Sastri, J., Mukherjea, J., and S.R. Das, J., seemed to place a narrow interpretation on the words personal liberty so as to confine the protection of Article 21 to freedom of the person against unlawful detention. But there was no definite pronouncement made on this point since the question before the Court was not so much the interpretation of the words personal liberty as the inter-relation between Articles 19 and 21. It was in Kharak Singh v. State of U.P. (AIR 1963 SC 1295: (1964) 1 SCR 332: (1963) 2 Cri LJ 329) that the question as to the proper scope and meaning of the expression personal liberty came up pointedly for consideration for the first time before this Court. The majority of the Judges took the view that personal liberty is used in the article as a compendious term to include within itself all the varieties of rights which go to make up the personal liberties 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 . Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements 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. This passage is a little curious in that clause (b) relating to domiciliary visits was struck down only on the basis of the fundamental right to privacy understood in the sense of a restraint against the person of a citizen. It seems that the earlier passage in the judgment which stated that despite the fact that the U.S. Fourth Amendment was not reflected in the Indian Constitution, yet any unauthorized intrusion into a person s home, which is nothing but a facet of the right to privacy, was given a go by. 41. Peculiarly enough, without referring to the extracted passage in which the majority held that the right to privacy is not a guaranteed right under our Constitution, the majority judgment has been held as recognizing a fundamental right to privacy in Article 21. (See: PUCL v. Union of India, (1997) 1 SCC 301 at paragraph 14; Mr. X v. Hospital Z , (1998) 8 SCC 296 at paragraphs 21 and 22; District Registrar and Collector, Hyderaba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the lives of 125 crore citizens of this country and must be interpreted to respond to the changing needs of society at different points in time. 44. The phrase due process was distinctly avoided by the framers of the Constitution and replaced by the colourless expression procedure established by law . Despite this, owing to changed circumstances, Maneka Gandhi (supra) in 1978, followed by a number of judgments, have read what was expressly rejected by the framers into Article 21, so that by the time of Mohd. Arif (supra), this Court, at paragraph 28, was able to say that the wheel has turned full circle and substantive due process is now part and parcel of Article 21. Given the technological revolution of the later part of the 20th century and the completely altered lives that almost every citizen of this country leads, thanks to this revolution, the right to privacy has to be judged in today s context and not yesterday s. This argument, therefore, need not detain us. 45. The learned Attorney General then argued that between the right to life and the right to personal liberty, the former has primacy and any claim to privacy which would destroy or erode this basic foundati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar from the mere right to be let alone to recognition of a large number of privacy interests, which apart from privacy of one s home and protection from unreasonable searches and seizures have been extended to protecting an individual s interests in making vital personal choices such as the right to abort a fetus; rights of same sex couples- including the right to marry; rights as to procreation, contraception, general family relationships, child rearing, education, data protection, etc. This argument again need not detain us any further and is rejected. 47. As to the argument that if information is already in the public domain and has been parted with, there is no privacy right, we may only indicate that the question as to voluntary parting with information has been dealt with, in the judgment in Miller v. United States, 425 US 435 (1976). This Court in Canara Bank (supra) referred to the criticism of this judgment as follows: (A) Criticism of Miller (i) The majority in Miller, 425 US 435 (1976), laid down that a customer who has conveyed his affairs to another had thereby lost his privacy rights. Prof. Tribe states in his treatise (see p. 1391) that this theory rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der totalitarian regimes. (at pages 520-521) It may also be noticed that Miller (supra) was done away with by a Congressional Act of 1978. This Court then went on to state: (B) Response to Miller by Congress We shall next refer to the response by Congress to Miller, 425 US 435 (1976). (As stated earlier, we should not be understood as necessarily recommending this law as a model for India.) Soon after Miller, 425 US 435 (1976), Congress enacted the Right to Financial Privacy Act, 1978 (Public Law No. 95-630) 12 USC with Sections 3401 to 3422). The statute accords customers of banks or similar financial institutions, certain rights to be notified of and a right to challenge the actions of Government in court at an anterior stage before disclosure is made. Section 3401 of the Act contains definitions . Section 3402 is important, and it says that except as provided by Section 3403(c) or (d), 3413 or 3414, no government authority may have access to or obtain copies of, or the information contained in the financial records of any customer from a financial institution unless the financial records are reasonably described and that (1) such customer has authorised suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cene material in his home. The U.S. Supreme Court referred to judgments which had held that obscenity is not within the area of constitutionally protected speech under the First Amendment to the U.S. Constitution. Yet, the Court held: It is now well established that the Constitution protects the right to receive information and ideas. This freedom [of speech and press] necessarily protects the right to receive Martin v. City of Struthers, 319 US 141, 143, 87 L Ed 1313, 1316, 63S Ct 862 (1943); see Griswold v. Connecticut, 381 US 479, 482, 14 L Ed 2d 510, 513, 85 S Ct 1678 (1965); Lamont v. Postmaster General, 381 U.S. 301, 307-308, 14 L Ed 2d 398, 402, 403, 85 S Ct 1493 (1965) (Brennan, J., concurring); cf. Pierce v. Society of the Sisters, 268 U.S. 510, 69 L Ed 1070, 45 S Ct 571, 39 ALR 468 (1925). This right to receive information and ideas, regardless of their social worth, see Winters v. New York, 333 US 507, 510, 92 L Ed 840, 847, 68 S Ct 665 (1948), is fundamental to our free society. Moreover, in the context of this case-a prosecution for mere possession of printed or filmed matter in the privacy of a person's own home-that right takes on an added dimension. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m s argument that personal liberty is different from civil liberty need not detain us at all for the reason that at least qua the fundament right to privacy - that right being intimately connected with the liberty of the person would certainly fall within the expression personal liberty . 52. According to Shri Sundaram, every facet of privacy is not protected. Instances of actions which, according to him, are not protected are: Taxation laws requiring the furnishing of information; In relation to a census; Details and documents required to be furnished for the purpose of obtaining a passport; Prohibitions pertaining to viewing pornography. 53. We are afraid that this is really putting the cart before the horse. Taxation laws which require the furnishing of information certainly impinge upon the privacy of every individual which ought to receive protection. Indeed, most taxation laws which require the furnishing of such information also have, as a concomitant provision, provisions which prohibit the dissemination of such information to others except under specified circumstances which have relation to some legitimate or important State or societal intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Right to Information Act, 2005, the Indian Easements Act, 1882, the Indian Penal Code, 1860, the Indian Telegraph Act, 1885, the Bankers Books Evidence Act, 1891, the Credit Information Companies (Regulation) Act, 2005, the Public Financial Institutions (Obligation as to Fidelity and Secrecy) Act, 1983, the Payment and Settlement Systems Act, 2007, the Income Tax Act, 1961, the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016, the Census Act, 1948, the Collection of Statistics Act, 2008, the Juvenile Justice (Care and Protection of Children) Act, 2015, the Protection of Children from Sexual Offences Act, 2012 and the Information Technology Act, 2000. According to them, since these statutes already protect the privacy rights of individuals, it is unnecessary to read a fundamental right of privacy into Part III of the Constitution. 56. Statutory law can be made and also unmade by a simple Parliamentary majority. In short, the ruling party can, at will, do away with any or all of the protections contained in the statutes mentioned hereinabove. Fundamental rights, on the other hand, are contained in the Constitution so that there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se expectations of privacy that this Court considers reasonable. When that self-indulgent test is employed (as the dissent would employ it here) to determine whether a search or seizure within the meaning of the Constitution has occurred (as opposed to whether that search or seizure is an unreasonable one), it has no plausible foundation in the text of the Fourth Amendment. That provision did not guarantee some generalized right of privacy and leave it to this Court to determine which particular manifestations of the value of privacy society is prepared to recognize as reasonable . Ibid. In Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038 at 2043 (2001), the U.S. Supreme Court found that the use of a thermal imaging device, aimed at a private home from a public street, to detect relative amounts of heat within the private home would be an invasion of the privacy of the individual. In so holding, the U.S. Supreme Court stated: The Katz test-whether the individual has an expectation of privacy that society is prepared to recognize as reasonable-has often been criticized as circular, and hence subjective and unpredictable. See 1 W. LaFave, Search and Seizure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, in Canara Bank (supra), this Court referred to Miller (supra) and the criticism that it has received in the country of its origin, and refused to apply it in the Indian context. Also, as has been discussed above, soon after Miller (supra), the Congress enacted the Right to Financial Privacy Act, 1978, doing away with the substratum of this judgment. Shri Dwivedi s argument must, therefore, stand rejected. 60. Shri Gopal Sankaranarayanan, relying upon the statement of law in Behram Khurshid Pesikaka v. State of Bombay, (1955) 1 SCR 613, Basheshar Nath v. CIT, (1959) Supp. (1) SCR 528 and Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545, has argued that it is well established that fundamental rights cannot be waived. Since this is the law in this country, if this Court were to hold that the right to privacy is a fundamental right, then it would not be possible to waive any part of such right and consequently would lead to the following complications: All the statutory provisions that deal with aspects of privacy would be vulnerable. The State would be barred from contractually obtaining virtually any information about a person, including identification, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterpretation of a provision of the Constitution having regard to various aspects serving the purpose and mandate of the Constitution by this Court stands on a separate footing. A constitution unlike other statutes is meant to be a durable instrument to serve through longer number of years, i.e., ages without frequent revision. It is intended to serve the needs of the day when it was enacted and also to meet needs of the changing conditions of the future. This Court in R.C. Poudyal v. Union of India, 1994 Supp (1) SCC 324, in paragraph 124, observed thus: 124. In judicial review of the vires of the exercise of a constitutional power such as the one under Article 2, the significance and importance of the political components of the decision deemed fit by Parliament cannot be put out of consideration as long as the conditions do not violate the constitutional fundamentals. In the interpretation of a constitutional document, words are but the framework of concepts and concepts may change more than words themselves . The significance of the change of the concepts themselves is vital and the constitutional issues are not solved by a mere appeal to the meaning of the words without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nary, nor for that matter, by reference to the rules of statutory construction. The task of expounding a Constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A Constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the Constitution and must, in interpreting its provisions, bear these considerations in mind. Professor Paul Freund expressed this idea aptly when he admonished the American Courts not to read the provisions of the Constitution like a last will and testament lest it become one . 326. The constitutional provisions cannot be cut down by technical construction rather it has to be gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d relied upon by Shri Sundaram has no place. According to this doctrine, the first inquiry to be made is whether the founding fathers had accepted or rejected a particular right in the Constitution. According to the learned Attorney General and Shri Sundaram, the right to privacy has been considered and expressly rejected by our founding fathers. At the second level, according to this doctrine, it is not open to the Supreme Court to interpret the Constitution in a manner that will give effect to a right that has been rejected by the founding fathers. This can only be done by amending the Constitution. It was, therefore, urged that it was not open for us to interpret the fundamental rights chapter in such a manner as to introduce a fundamental right to privacy, when the founding fathers had rejected the same. It is only the Parliament in its constituent capacity that can introduce such a right. This contention must be rejected having regard to the authorities cited above. Further, in our Constitution, it is not left to all the three organs of the State to interpret the Constitution. When a substantial question as to the interpretation of the Constitution arises, it is this Court and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man s spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfaction of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth. Brandeis, J. s view was held as being the correct view of the law in Katz (supra). 70. A large number of judgments of the U.S. Supreme Court since Katz (supra) have recognized the right to privacy as falling in one or other of the clauses of the Bill of Rights in the U.S. Constitution. Thus, in Griswold v. Connecticut, 381 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling State interest test. Then the question would be whether a State interest is of such paramount importance as would justify an infringement of the right. Obviously, if the enforcement of morality were held to be a compelling as well as a permissible State interest, the characterization of a claimed right as a fundamental privacy right would be of far less significance. The question whether enforcement of morality is a State interest sufficient to justify the infringement of a fundamental privacy right need not be considered for the purpose of this case and therefore we refuse to enter the controversial thicket whether enforcement of morality is a function of State. 23. Individual autonomy, perhaps the central concern of any system of limited government, is protected in part under our Constitution by explicit constitutional guarantees. In the application of the Constitution our contemplation cannot only be of what has been but what may be. Time works changes and brings into existence new conditions. Subtler and far reaching means of invading privacy will make it poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brought to our notice the fact that Mathew, J. did not declare privacy as a fundamental right. By this judgment, he reached certain conclusions on the assumption that it was a fundamental right. He is correct in this submission. However, this would not take the matter very much further inasmuch as even though the later judgments have referred to Gobind (supra) as the starting point of the fundamental right to privacy, in our view, for the reasons given by us in this judgment, even dehors Gobind (supra) these cases can be supported on the ground that there exists a fundamental right to privacy. 74. In R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632, this Court had to decide on the rights of privacy vis-a-vis the freedom of the press, and in so doing, referred to a large number of judgments and arrived at the following conclusion: 26. We may now summarise the broad principles flowing from the above discussion: (1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a right to be let alone . A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, moth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rotected by the power to punish for contempt of court and Parliament and legislatures protected as their privileges are by Articles 105 and 104 respectively of the Constitution of India, represent exceptions to this rule. (4) So far as the Government, local authority and other organs and institutions exercising governmental power are concerned, they cannot maintain a suit for damages for defaming them. (5) Rules 3 and 4 do not, however, mean that Official Secrets Act, 1923, or any similar enactment or provision having the force of law does not bind the press or media. (6) There is no law empowering the State or its officials to prohibit, or to impose a prior restraint upon the press/media. 10 (at pages 649-651) 75. Similarly, in PUCL v. Union of India, (1997) 1 SCC 301, this Court dealt with telephone tapping as follows: 17. We have, therefore, no hesitation in holding that right to privacy is a part of the right to life and personal liberty enshrined under Article 21 of the Constitution. Once the facts in a given case constitute a right to privacy, Article 21 is attracted. The said right cannot be curtailed except according to procedure establishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... involuntary impounding of documents under the said provision would be violative of the fundamental right of privacy contained in Article 21. The Court exhaustively went into the issue and cited many U.K. and U.S. judgments. After so doing, it analysed some of this Court s judgments and held: 53. Once we have accepted in Gobind [(1975) 2 SCC 148 : 1975 SCC (Cri) 468] and in later cases that the right to privacy deals with persons and not places , the documents or copies of documents of the customer which are in a bank, must continue to remain confidential vis-a-vis the person, even if they are no longer at the customer s house and have been voluntarily sent to a bank. If that be the correct view of the law, we cannot accept the line of Miller, 425 US 435 (1976), in which the Court proceeded on the basis that the right to privacy is referable to the right of property theory. Once that is so, then unless there is some probable or reasonable cause or reasonable basis or material before the Collector for reaching an opinion that the documents in the possession of the bank tend to secure any duty or to prove or to lead to the discovery of any fraud or omission in relation to any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivacy in a physical sense and the privacy of one s mental processes. 225. So far, the judicial understanding of privacy in our country has mostly stressed on the protection of the body and physical spaces from intrusive actions by the State. While the scheme of criminal procedure as well as evidence law mandates interference with physical privacy through statutory provisions that enable arrest, detention, search and seizure among others, the same cannot be the basis for compelling a person to impart personal knowledge about a relevant fact . The theory of interrelationship of rights mandates that the right against self-incrimination should also be read as a component of personal liberty under Article 21. Hence, our understanding of the right to privacy should account for its intersection with Article 20(3). Furthermore, the rule against involuntary confessions as embodied in Sections 24, 25, 26 and 27 of the Evidence Act, 1872 seeks to serve both the objectives of reliability as well as voluntariness of testimony given in a custodial setting. A conjunctive reading of Articles 20(3) and 21 of the Constitution along with the principles of evidence law leads us to a clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7, an instructive judgment is to be found in Whalen v. Roe, 429 U.S. 589 at 598 and 599 by the U.S. Supreme Court. This case dealt with a legislation by the State of New York in which the State, in a centralized computer file, registered the names and addresses of all persons who have obtained, pursuant to a Doctor s prescription, certain drugs for which there is both a lawful and unlawful market. The U.S. Supreme Court upheld the statute, finding that it would seem clear that the State s vital interest in controlling the distribution of dangerous drugs would support the legislation at hand. In an instructive footnote 23 to the judgment, the U.S. Supreme Court found that the right to privacy was grounded after Roe (supra) in the Fourteenth Amendment s concept of personal liberty. Having thus grounded the right, the U.S. Supreme Court in a very significant passage stated: At the very least, it would seem clear that the State s vital interest in controlling the distribution of dangerous drugs would support a decision to experiment with new techniques for control Appellees contend that the statute invades a constitutionally protected zone of privacy. The cases sometime ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of human beings choosing how to live their lives within the overall framework of a broader community. The protection of this autonomy, which flows from our recognition of individual human worth, presupposes personal space within which to live this life. 132. This first reason for asserting the value of privacy therefore lies in our constitutional understanding of what it means to be a human being. An implicit part of this aspect of privacy is the right to choose what personal information of ours is released into the public space. The more intimate that information, the more important it is in fostering privacy, dignity and autonomy that an individual makes the primary decision whether to release the information. That decision should not be made by others. This aspect of the right to privacy must be respected by all of us, not only the state... (Emphasis Supplied) 81. In the Indian context, a fundamental right to privacy would cover at least the following three aspects: Privacy that involves the person i.e. when there is some invasion by the State of a person s rights relatable to his physical body, such as the right to move freely; Informational privacy wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sovereign. ( ) This, then, is the appropriate region of human liberty. It comprises, first, the inward domain of consciousness; demanding liberty of conscience in the most comprehensive sense; liberty of thought and feeling; absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological. The liberty of expressing and publishing opinions may seem to fall under a different principle, since it belongs to that part of the conduct of an individual which concerns other people; but, being almost of as much importance as the liberty of thought itself, and resting in great part on the same reasons, is practically inseparable from it. Secondly, the principle requires liberty of tastes and pursuits; of framing the plan of our life to suit our own character; of doing as we like, subject to such consequences as may follow: without impediment from our fellow creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong. Thirdly, from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und strewn all over the fundamental rights chapter. It can be found in Articles 19(1)(a), 20, 21, 25 and 26. As is well known, this cardinal constitutional value has been borrowed from the Declaration of the Rights of Man and of the Citizen of 1789, which defined liberty in Article 4 as follows: Liberty consists in being able to do anything that does not harm others: thus, the exercise of the natural rights of every man has no bounds other than those that ensure to the other members of society the enjoyment of these same rights. These bounds may be determined only by Law. Even in this limited sense, privacy begins where liberty ends when others are harmed, in one sense, issues relating to reputation, restraints on physical locomotion etc. set in. It is, therefore, difficult to accept the argument of Shri Gopal Subramanium that liberty and privacy are interchangeable concepts. Equally, it is difficult to accept the Respondents submission that there is no concept of privacy , but only the constitutional concept of ordered liberty . Arguments of both sides on this score must, therefore, be rejected. 85. But most important of all is the cardinal value of fratern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Telegraph Act of 1885, vintage and in particular Section 5 thereof which reads as under:- 5. (1) On the occurrence of any public emergency, or in the interest of the public safety, the Governor General in Council or a Local Government, or any officer specially authorized in this behalf by the Governor General in Council, may (a) take temporary possession of any telegraph established, maintained or worked by any person licensed under this Act; or (b) order that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government or an officer thereof mentioned in the order. (2) If any doubt arises as to the existence of a public emergency, or whether any act done under sub-section (1) was in the interest of the public safety, a certificate signed by a Secretary to the Government of India or to the Local Government shall be conclusive proof on the point. We were also referred to Section 26 of the Indian Post Office Act, 1898 for the same p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntenance and dissemination of their personal information and for penalization for violation of such rights and matters connected therewith, is pending. In several judgments including Kharak Singh v. State of U.P. (AIR 1963 SC 1295 : (1963) 2 Cri LJ 329), R. Rajagopal v. State of T.N. (1994) 6 SCC 632, People s Union for Civil Liberties v. Union of India (1997) 1 SCC 301 and State of Maharashtra v. Bharat Shanti Lal Shah (2008) 13 SCC 5, this Court has recognized the right to privacy as a fundamental right emanating from Article 21 of the Constitution of India. 58. The right to privacy is also recognized as a basic human right under Article 12 of the Universal Declaration of Human Rights Act, 1948, which states as follows: 12. No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, not to attack upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. 59. Article 17 of the International Covenant on Civil and Political Rights Act, 1966, to which India is a party also protects that right and states as follows: 17. (1) No one shall be subjected to arbitr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided in Section 8(j) of the RTI Act. Right to be left alone, as propounded in Olmstead v. United States [72 L Ed 944 : 277 US 438 (1928)], is the most comprehensive of the rights and most valued by civilized man. 64. Recognizing the fact that the right to privacy is a sacrosanct facet of Article 21 of the Constitution, the legislation has put a lot of safeguards to protect the rights under Section 8(j), as already indicated. If the information sought for is personal and has no relationship with any public activity or interest or it will not subserve larger public interest, the public authority or the officer concerned is not legally obliged to provide those information. Reference may be made to a recent judgment of this Court in Girish Ramchandra Deshpande v. Central Information Commissioner (2013) 1 SCC 212, wherein this Court held that since there is no bona fide public interest in seeking information, the disclosure of said information would cause unwarranted invasion of privacy of the individual under Section 8(1)(j) of the Act. Further, if the authority finds that information sought for can be made available in the larger public interest, then the officer should record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined in Article 21. The answer to this question is linked with the answer to the question as to whether Article 21 is the sole repository of the right to life and personal liberty. After giving the matter my earnest consideration, I am of the opinion that Article 21 cannot be considered to be the sole repository of the right to life and personal liberty. The right to life and personal liberty is the most precious right of human beings in civilised societies governed by the rule of law. Many modern Constitutions incorporate certain fundamental rights, including the one relating to personal freedom. According to Blackstone, the absolute rights of Englishmen were the rights of personal security, personal liberty and private property. The American Declaration of Independence (1776) states that all men are created equal, and among their inalienable rights are life, liberty, and the pursuit of happiness. The Second Amendment to the US Constitution refers inter alia to security of person, while the Fifth Amendment prohibits inter alia deprivation of life and liberty without due process, of law. The different Declarations of Human Rights and fundamental freedoms have all laid stress upon t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e matter of sanctity of life and liberty, things would be worse off compared to the state of law as it existed before the coming into force of the Constitution. (at pages 747 and 751) 92. According to us this is a correct enunciation of the law for the following reasons: (i) It is clear that the international covenants and declarations to which India was a party, namely, the 1948 Declaration and the 1966 Covenant both spoke of the right to life and liberty as being inalienable . Given the fact that this has to be read as being part of Article 21 by virtue of the judgments referred to supra, it is clear that Article 21 would, therefore, not be the sole repository of these human rights but only reflect the fact that they were inalienable ; that they inhere in every human being by virtue of the person being a human being; (ii) Secondly, developments after this judgment have also made it clear that the majority judgments are no longer good law and that Khanna, J. s dissent is the correct version of the law. Section 2(1)(d) of the Protection of Human Rights Act, 1993 recognises that the right to life, liberty, equality and dignity referable to international covenants a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would enable the citizens to enjoy the rights guaranteed by it in the fullest measure. An instance of literal and narrow interpretation of a vital fundamental right in the Indian Constitution is the early decision of the Supreme Court in A.K. Gopalan v. State of Madras [AIR 1950 SC 27 : 1950 SCR 88 : 1950 Cri LJ 1383]. Article 21 of the Constitution provides that no person shall be deprived of his life and personal liberty except according to procedure established by law. The Supreme Court by a majority held that procedure established by law means any procedure established by law made by the Parliament or the legislatures of the State. The Supreme Court refused to infuse the procedure with principles of natural justice. It concentrated solely upon the existence of enacted law. After three decades, the Supreme Court overruled its previous decision in A.K. Gopalan [A.K. Gopalan v. State of Madras (AIR 1950 SC 27 : 1950 SCR 88 : 1950 Cri LJ 1383)] and held in its landmark judgment in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, that the procedure contemplated by Article 21 must answer the test of reasonableness. The Court further held that the procedure should also be in confo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remedy for securing personal liberty, the writ of habeas corpus, requires the production before the court of the body of the person alleged to be illegally detained. The Constitution gives protection against the deprivation of life and personal liberty; so do the civil and criminal laws in force in India (See, Seervai, Constitutional Law of India (4th Edition) Appendix pg. 2219). We are of the view that the aforesaid statement made by the learned author reflects the correct position in constitutional law. We, therefore, expressly overrule the majority judgments in ADM Jabalpur (supra). 93. Before parting with this subject, we may only indicate that the majority opinion was done away with by the Constitution s 44th Amendment two years after the judgment was delivered. By that Amendment, Article 359 was amended to state that where a proclamation of emergency is in operation, the President may by order declare that the right to move any Court for the enforcement of rights conferred by Part III of the Constitution may remain suspended for the period during which such proclamation is in force, excepting Articles 20 and 21. On this score also, it is clear that the right of priv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra), Chandrachud, J. had, in paragraph 55 of the judgment, clearly stated that substantive due process is no part of the Constitution of India. He further argued that Krishna Iyer, J. s statement in Sunil Batra (supra) that a due process clause as contained in the U.S. Constitution is now to be read into Article 21, is a standalone statement of the law and that substantive due process is an expression which brings in its wake concepts which do not fit into the Constitution of India. It is not possible to accept this contention for the reason that in the Constitution Bench decision in Mithu (supra), Chandrachud, C.J., did not refer to his concurring judgment in Maneka Gandhi (supra), but instead referred, with approval, to Krishna Iyer, J. s statement of the law in paragraph 6. It is this statement that is reproduced in paragraph 28 of Mohd. Arif (supra). Also, substantive due process in our context only means that a law can be struck down under Article 21 if it is not fair, just or reasonable on substantive and not merely procedural grounds. In any event, it is Chandrachud,C.J s earlier view that is a standalone view. In Collector of Customs, Madras v. Nathella S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ech had this to say about Subba Rao, J., Then we have brother Subba Rao, who is extremely unhappy because all our fundamental rights are going to the dogs on account of some ill- conceived judgments of his colleagues which require reconsideration. 7 This view of the law is obviously incorrect. If the Preamble to the Constitution of India is to be a guide as to the meaning of the expression liberty in Article 21, liberty of thought and expression would fall in Article 19(1)(a) and Article 21 and belief, faith and worship in Article 25 and Article 21. Obviously, liberty in Article 21 is not confined to these expressions, but certainly subsumes them. It is thus clear that when Article 21 speaks of liberty , it is, atleast, to be read together with Articles 19(1)(a) and 25. 8 (1) The right to go abroad. Maneka Gandhi v. Union of India (1978) 1 SCC 248 at paras 5, 48, 90, 171 and 216; (2) The right of prisoners against bar fetters. Charles Sobraj v. Delhi Administration (1978) 4 SCC 494 at paras 192, 197-B, 234 and 241; (3) The right to legal aid. M.H. Hoskot v. State of Maharashtra (1978) 3 SCC 544 at para 12; (4) The right to bail. Babu Singh v. State of Ut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Andhra Pradesh (2013) 10 SCC 591 at para 18; (26) The right against solitary confinement. Shatrugan Chauhan Anr. v. Union of India (2014) 3 SCC 1 at para 241. 9 This era lasted from the early 20th Century till 1937, when the proverbial switch in time that saved nine was made by Justice Roberts. It was only from 1937 onwards that President Roosevelt s New Deal legislations were upheld by a majority of 5:4, having been struck down by a majority of 5:4 previously. 10 It will be noticed that this judgment grounds the right of privacy in Article 21. However, the Court was dealing with the aforesaid right not in the context of State action, but in the context of press freedom. 11 In 1834, Jacques-Charles Dupont de l Eure associated the three terms liberty, equality and fraternity together in the Revue R publicaine, which he edited, as follows: Any man aspires to liberty, to equality, but he cannot achieve it without the assistance of other men, without fraternity. Many of our decisions recognize human dignity as being an essential part of the fundamental rights chapter. For example, see Prem Shankar Shukla v. Delhi Administration , (1980) 3 SCC 526 at parag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ud. Having read them carefully, I have nothing more useful to add to the reasoning and the conclusion arrived at by my esteemed brothers in their respective opinions. 2) However, keeping in view the importance of the questions referred to this Bench, I wish to add only few words of concurrence of my own. 3) In substance, two questions were referred to this Nine Judge Bench, first, whether the law laid down in the case of M.P.Sharma and others vs. Satish Chandra, District Magistrate Delhi Ors., AIR 1954 SC 300 and Kharak Singh vs. State of Uttar Pradesh Ors. AIR 1963 SC 1295 insofar as it relates to the right to privacy of an individual is correct and second, whether right to privacy is a fundamental right under Part III of the Constitution of India? 4) Before I examine these two questions, it is apposite to take note of the Preamble to the Constitution, which, in my view, has bearing on the questions referred. 5) The Preamble to the Constitution reads as under:- WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, social, economic and po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y cannot be divorced from liberty and nor can liberty and equality be divorced from fraternity. The meaning assigned to these expressions has to be given due weightage while interpreting Articles of Part III of the Constitution. 13) It is, therefore, the duty of the Courts and especially this Court as sentinel on the qui vive to strike a balance between the changing needs of the Society and the protection of the rights of the citizens as and when the issue relating to the infringement of the rights of the citizen comes up for consideration. Such a balance can be achieved only through securing and protecting liberty, equality and fraternity with social and political justice to all the citizens under rule of law (see-S.S. Bola Ors. vs. B.D. Sardana Ors. 1997 (8) SCC 522). 14) Our Constitution has recognized certain existing cherished rights of an individual. These rights are incorporated in different Articles of Part III of the Constitution under the heading-Fundamental Rights. In so doing, some rights were incorporated and those, which were not incorporated, were read in Part III by process of judicial interpretation depending upon the nature of right asserted by the citiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion as held in the case of Rustom Cavasjee Cooper vs. Union of India, (1970) 1 SCC 248 that the Court should always make attempt to expand the reach and ambit of the fundamental rights rather than to attenuate their meaning and the content by process of judicial construction. Similarly, it is also a settled principle of law laid down in His Holiness Kesavananda Bharati Sripadagalvaru vs. State of Kerala Anr., (1973) 4 SCC 225 that the Preamble is a part of the Constitution and, therefore, while interpreting any provision of the Constitution or examining any constitutional issue or while determining the width or reach of any provision or when any ambiguity or obscurity is noticed in any provision, which needs to be clarified, or when the language admits of meaning more than one, the Preamble to the Constitution may be relied on as a remedy for mischief or/and to find out the true meaning of the relevant provision as the case may be. 21) In my considered opinion, the two questions referred herein along with few incidental questions arising therefrom need to be examined carefully in the light of law laid down by this Court in several decided cases. Indeed, the answer to the quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts, however, by process of judicial interpretation, has assigned meaning to this right in the context of specific issues involved on caseto- case basis. 28) The most popular meaning of right to privacy is - the right to be let alone . In Gobind vs. State of Madhya Pradesh Anr., (1975) 2 SCC 148, K.K.Mathew, J. noticed multiple facets of this right (Para 21-25) and then gave a rule of caution while examining the contours of such right on case-to-case basis. 29) In my considered view, the answer to the questions can be found in the law laid down by this Court in the cases beginning from Rustom Cavasjee Cooper (supra) followed by Maneka Gandhi vs. Union of India Anr. (1978) 1 SCC 248, People s Union for Civil Liberties (PUCL) vs. Union of India Anr., (1997) 1 SCC 301, Gobind s case (supra), Mr. X vs. Hospital Z (1998) 8 SCC 296, District Registrar Collector, Hyderabad Anr. vs. Canara Bank Ors., (2005) 1 SCC 496 and lastly in Thalappalam Service Coop. Bank Ltd. Ors. vs. State of Kerala Ors., (2013) 16 SCC 82. 30) It is in these cases and especially the two namely, Gobind(supra) and District Registrar(supra), their Lordships very succinctly examined in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ritory of India and lastly, emanating from the expression personal liberty under Article 21. Indeed, the right to privacy is inbuilt in these expressions and flows from each of them and in juxtaposition. 35) In view of foregoing discussion, my answer to question No. 2 is that right to privacy is a part of fundamental right of a citizen guaranteed under Part III of the Constitution. However, it is not an absolute right but is subject to certain reasonable restrictions, which the State is entitled to impose on the basis of social, moral and compelling public interest in accordance with law. 36) Similarly, I also hold that the right to privacy has multiple facets, and, therefore, the same has to go through a process of case-to-case development as and when any citizen raises his grievance complaining of infringement of his alleged right in accordance with law. 37) My esteemed learned brothers, Justice J. Chelameswar, Justice S.A. Bobde, Justice Rohinton Fali Nariman and Dr. Justice D.Y. Chandrachud have extensively dealt with question No. 1 in the context of Indian and American Case law on the subject succinctly. They have also dealt with in detail the various submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to my mind, is an important core of any individual existence. 2. A human being, from an individual existence, evolved into a social animal. Society thus envisaged a collective living beyond the individual as a unit to what came to be known as the family. This, in turn, imposed duties and obligations towards the society. The right to do as you please became circumscribed by norms commonly acceptable to the larger social group. In time, the acceptable norms evolved into formal legal principles. 3. The right to be , though not extinguished for an individual, as the society evolved, became hedged in by the complexity of the norms. There has been a growing concern of the impact of technology which breaches this right to be , or privacy by whatever name we may call it. 4. The importance of privacy may vary from person to person dependent on his/her approach to society and his concern for being left alone or not. That some people do not attach importance to their privacy cannot be the basis for denying recognition to the right to privacy as a basic human right. 5. It is not India alone, but the world that recognises the right of privacy as a basic human right. The Unive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion age. With the growth and development of technology, more information is now easily available. The information explosion has manifold advantages but also some disadvantages. The access to information, which an individual may not want to give, needs the protection of privacy. The right to privacy is claimed qua the State and non-State actors. Recognition and enforcement of claims qua non-state actors may require legislative intervention by the State. A. Privacy Concerns Against The State 13. The growth and development of technology has created new instruments for the possible invasion of privacy by the State, including through surveillance, profiling and data collection and processing. Surveillance is not new, but technology has permitted surveillance in ways that are unimaginable. Edward Snowden shocked the world with his disclosures about global surveillance. States are utilizing technology in the most imaginative ways particularly in view of increasing global terrorist attacks and heightened public safety concerns. One such technique being adopted by States is profiling . The European Union Regulation of 2016 4 on data privacy defines Profiling as any form of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nternet based services, we are creating deeper and deeper digital footprints passively and actively. 18. These digital footprints and extensive data can be analyzed computationally to reveal patterns, trends, and associations, especially relating to human behavior and interactions and hence, is valuable information. This is the age of big data . The advancement in technology has created not just new forms of data, but also new methods of analysing the data and has led to the discovery of new uses for data. The algorithms are more effective and the computational power has magnified exponentially. A large number of people would like to keep such search history private, but it rarely remains private, and is collected, sold and analysed for purposes such as targeted advertising. Of course, big data can also be used to further public interest. There may be cases where collection and processing of big data is legitimate and proportionate, despite being invasive of privacy otherwise. 19. Knowledge about a person gives a power over that person. The personal data collected is capable of effecting representations, influencing decision making processes and shaping behaviour. It can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eted they drafted the Indian Constitution. 27. In it they poured her essence, and gave to her a grand throne in Part III of the Indian Constitution. 28. The document that they created had her everlasting blessings, every part of the Constitution resonates with the spirit of Justice and what it stands for: peaceful, harmonious and orderly social living . The Constitution stands as a codified representation of the great spirit of Justice itself. It is because it represents that Supreme Goodness that it has been conferred the status of the Grundnorm, that it is the Supreme Legal Document in the country. 29. The Constitution was not drafted for a specific time period or for a certain generation, it was drafted to stand firm, for eternity. It sought to create a Montesquian framework that would endear in both war time and in peace time and in Ambedkar s famous words, if things go wrong under the new Constitution the reason will not be that we had a bad Constitution. What we will have to say is that Man was vile. 10 30. It has already outlived its makers, and will continue to outlive our generation, because it contains within its core, a set of undefinable values and ideal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he present. The Constitution must, in my judgment, be left elastic enough to meet from time to time the altering conditions of a changing world with its shifting emphasis and differing needs. 35. How the Constitution should be read and interpreted is best found in the words of Khanna,J., in Kesavananda Bharati v. State of Kerala 12 as follows: 1437. . A Constitution is essentially different from pleadings filed in Court of litigating parties. Pleadings contain claim and counter-claim of private parties engaged in litigation, while a Constitution provides for the framework of the different organs of the State viz. the executive, the legislature and the judiciary. A Constitution also reflects the hopes and aspirations of a people. Besides laying down the norms for the functioning of different organs a Constitution encompasses within itself the broad indications as to how the nation is to march forward in times to come. A Constitution cannot be regarded as a mere legal document to be read as a will or an agreement nor is Constitution like a plaint or written statement filed in a suit between two litigants. A Constitution must of necessity be the vehicle of the life of a nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gth, steadily becoming more and more exigent, generating a force which, if left unheeded and denied response so as to satisfy the impulse behind it, may burst forthwith an intensity that exacts more than reasonable satisfaction. [See Felix Frankfurter, of Law and Men, p 35] As Wilson said, a living Constitution must be Darwinian in structure and practice. [See Constitutional Government in The United States, p 25] The Constitution of a nation is the outward and visible manifestation of the life of the people and it must respond to the deep pulsation for change within. A Constitution is an experiment as all life is an experiment. [See Justice Holmes in Abrams v United States, 250 US 616] 37. In the context of the necessity of the doctrine of flexibility while dealing with the Constitution, it was observed in Union of India vs. Naveen Jindal13 : 39. Constitution being a living organ, its ongoing interpretation is permissible. The supremacy of the Constitution is essential to bring social changes in the national polity evolved with the passage of time. 40. Interpretation of the Constitution is a difficult task. While doing so, the Constitutional courts are not only re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e each other. 42. What is beautiful in this biological, organic growth is this: While the tree appears to be great and magnificent, apparently incapable of further growth, there are always new branches appearing, new leaves and buds growing. These new rights, are the rights of future generations that evolve over the passage of time to suit and facilitate the civility of posterity. They are equally part of this tree of rights and equally trace their origins to those natural rights which we are all born with. These leaves, sprout and grow with the passage of time, just as certain rights may get weeded out due to natural evolution. 43. At this juncture of time, we are incapable and it is nigh impossible to anticipate and foresee what these new buds may be. There can be no certainty in making this prediction. However, what remains certain is that there will indeed be a continual growth of the great tree that we call the Constitution. This beautiful aspect of the document is what makes it organic, dynamic, young and everlasting. And it is important that the tree grows further, for the Republic finds a shade under its branches. 44. The challenges to protect privacy have increase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dormant nor static and can never be allowed to fossilise. 47. An issue like privacy could never have been anticipated to acquire such a level of importance when the Constitution was being contemplated. Yet, today, the times we live in necessitate that it be recognised not only as a valuable right, but as a right Fundamental in Constitutional jurisprudence. 48. There are sure to be times in the future, similar to our experience today, perhaps as close as 10 years from today or as far off as a 100 years, when we will debate and deliberate whether a certain right is fundamental or not. At that time it must be understood that the Constitution was always meant to be an accommodative and all-encompassing document, framed to cover in its fold all those rights that are most deeply cherished and required for a peaceful, harmonious and orderly social living. 49. The Constitution and its all-encompassing spirit forever grows, but never ages. Privacy is essential to liberty and dignity 50. Rohinton F. Nariman, J., and Dr. D.Y. Chandrachud J., have emphasized the importance of the protection of privacy to ensure protection of liberty and dignity. I agree with them and seek to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se involves the familiar competition between freedom of expression and respect for an individual's privacy. Both are vitally important rights. Neither has precedence over the other. The importance of freedom of expression has been stressed often and eloquently, the importance of privacy less so. But it, too, lies at the heart of liberty in a modern state. A proper degree of privacy is essential for the well- being and development of an individual. And restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state: see La Forest J in R v Dymont [1988] 2 SCR 417, 426. 52. Privacy is also the key to freedom of thought. A person has a right to think. The thoughts are sometimes translated into speech but confined to the person to whom it is made. For example, one may want to criticize someone but not share the criticism with the world. Privacy Right To Control Information 53. I had earlier adverted to an aspect of privacy the right to control dissemination of personal information. The boundaries that people establish from others in society are not only physical but also informational. There are different kinds of bounda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect his reputation from being unfairly harmed and such protection of reputation needs to exist not only against falsehood but also certain truths. It cannot be said that a more accurate judgment about people can be facilitated by knowing private details about their lives people judge us badly, they judge us in haste, they judge out of context, they judge without hearing the whole story and they judge with hypocrisy. Privacy lets people protect themselves from these troublesome judgments18. 57. There is no justification for making all truthful information available to the public. The public does not have an interest in knowing all information that is true. Which celebrity has had sexual relationships with whom might be of interest to the public but has no element of public interest and may therefore be a breach of privacy.19 Thus, truthful information that breaches privacy may also require protection. 58. Every individual should have a right to be able to exercise control over his/her own life and image as portrayed to the world and to control commercial use of his/her identity. This also means that an individual may be permitted to prevent others from using his image, name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dents would have never occurred. People could then make mistakes and embarrass themselves, with the comfort that the information will be typically forgotten over time. 64. The impact of the digital age results in information on the internet being permanent. Humans forget, but the internet does not forget and does not let humans forget. Any endeavour to remove information from the internet does not result in its absolute obliteration. The foot prints remain. It is thus, said that in the digital world preservation is the norm and forgetting a struggle26. 65. The technology results almost in a sort of a permanent storage in some way or the other making it difficult to begin life again giving up past mistakes. People are not static, they change and grow through their lives. They evolve. They make mistakes. But they are entitled to re-invent themselves and reform and correct their mistakes. It is privacy which nurtures this ability and removes the shackles of unadvisable things which may have been done in the past. 66. Children around the world create perpetual digital footprints on social network websites on a 24/7 basis as they learn their ABCs : Apple, Bluetooth, and Chat f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of privacy concerns and legitimate State interests, including public benefit arising from scientific and historical research based on data collected and processed. The European Union Regulation of 201629 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data may provide useful guidance in this regard. The State must ensure that information is not used without the consent of users and that it is used for the purpose and to the extent it was disclosed. Thus, for e.g. , if the posting on social media websites is meant only for a certain audience, which is possible as per tools available, then it cannot be said that all and sundry in public have a right to somehow access that information and make use of it. Test: Principle of Proportionality and Legitimacy 71. The concerns expressed on behalf of the petitioners arising from the possibility of the State infringing the right to privacy can be met by the test suggested for limiting the discretion of the State: (i) The action must be sanctioned by law; ii. The proposed action must be necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocessing which is compatible for the purposes for which it is initially collected. Report of Group of Experts on Privacy 74. It is not as if the aspect of privacy has not met with concerns. The Planning Commission of India constituted the Group of Experts on Privacy under the Chairmanship of Justice A.P. Shah, which submitted a report on 16 October, 2012. The five salient features, in his own words, are as follows: 1. Technological Neutrality and Interoperability with International Standards: The Group agreed that any proposed framework for privacy legislation must be technologically neutral and interoperable with international standards. Specifically the Privacy Act should not make any reference to specific technologies and must be generic enough such that the principles and enforcement mechanisms remain adaptable to changes in society, the marketplace, technology, and the government. To do this it is important to closely harmonise the right to privacy with multiple international regimes, create trust and facilitate co- operation between national and international stakeholders and provide equal and adequate levels of protection to data processed inside India as well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment, this report recommends a system of co-regulation, with equal emphasis on Self-Regulating Organisations (SROs) being vested with the responsibility of autonomously ensuring compliance with the Act, subject to regular oversight by the Privacy Commissioners. The SROs, apart from possessing industry-specific knowledge, will also be better placed to create awareness about the right to privacy and explaining the sensitivities of privacy protection both within industry as well as to the public in respective sectors. This recommendation of a co-regulatory regime will not derogate from the powers of courts which will be available as a forum of last resort in case of persistent and unresolved violations of the Privacy Act. 75. The enactment of a law on the subject is still awaited. This was preceded by the Privacy Bill of the year of 2005 but there appears to have been little progress. It was only in the course of the hearing that we were presented with an office memorandum of the Ministry of Electronics and Information Technology dated 31.7.2017, through which a Committee of Experts had been constituted to deliberate on a data protection framework for India, under the Chairmanshi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of privacy he has referred to the judgment in Suresh Kumar Koushal Vs. Naz Foundation.32 In the challenge laid to Section 377 of the Indian Penal Code before the Delhi High Court, one of the grounds of challenge was that the said provision amounted to an infringement of the right to dignity and privacy. The Delhi High Court, inter alia, observed that the right to live with dignity and the right of privacy both are recognized as dimensions of Article 21 of the Constitution of India. The view of the High Court, however did not find favour with the Supreme Court and it was observed that only a miniscule fraction of the country s population constitutes lesbians, gays, bisexuals or transgenders and thus, there cannot be any basis for declaring the Section ultra virus of provisions of Articles 14, 15 and 21 of the Constitution. The matter did not rest at this, as the issue of privacy and dignity discussed by the High Court was also observed upon. The sexual orientation even within the four walls of the house thus became an aspect of debate. I am in agreement with the view of Dr. D.Y. Chandrachud, J., who in paragraphs 123 124 of his judgment, states that the right of privacy cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench. 82. The second aspect is the discussion in respect of the majority judgment in the case of ADM Jabalpur vs. Shivkant Shukla34 in both the opinions. In I.R. Coelho Vs. The State of Tamil Nadu35 it was observed that the ADM Jabalpur case has been impliedly overruled and that the supervening event was the 44th Amendment to the Constitution, amending Article 359 of the Constitution. I fully agree with the view expressly overruling the ADM Jabalpur case which was an aberration in the constitutional jurisprudence of our country and the desirability of burying the majority opinion ten fathom deep, with no chance of resurrection. 83. 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. ( SANJAY KISHAN KAUL, J ) New Delhi August 24 , 2017. IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO 494 OF 2012 JUSTICE K.S.PUTTASWAMY (RETD.), AND ANR. Versus UNION OF INDIA AND ORS. T.C. (CIVIL) NO 151 OF 2013 T.C. (CIVI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) 5 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) 6Michael L. Rustad, SannaKulevska, Reconceptualizing the right to be forgotten to enable transatlantic data flow, 28 Harv. J.L. Tech. 349 7https://techcrunch.com/2015/03/03/in-the-age-of-disintermediation-the-battle-is-all-for-the-customer-interface/ Tom Goodwin The Battle is for Customer Interface 8Kadhim Shubber, Blackberry gives Indian Government ability to intercept messages published by Wired on 11 July, 2013 http://www.wired.co.uk/article/blackberry-india 9 Daniel Solove, 10 Reasons Why Privacy Matters published on January 20, 2014 https://www.teachprivacy.com/10-reasons-privacy-matters/ 10 Dhananjay Keer, Dr.Ambedkar: Life and Mission, Bombay: Popular Prakashan, 1971 [1954], p.410.) 11 AIR 1952 SCR 284 12 (1973) 4 SCC 225 13 (2004) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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