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TMI Blog2017 (8) TMI 938X X X X Extracts X X X X X X X X Extracts X X X X ..... r rights which form part of the fundamental freedoms protected by Part III, including the right to life and personal liberty under Article 21, privacy is not an absolute right. A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. 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. X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 global information based society. In an age ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 the opinion that the institutional integrity and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 be analysed, not by providing an exhaustive enunciation or catalogu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 protection under Article 20(3) would be defeated by the statutory provisions fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 underlying the constitution which would point to such vital words as "personal liberty" having to be construed in a reasonable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usion 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. Justice Subba Rao held that the rights conferred by Part III have overlapping areas. Where a law is challenged as infringing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions 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 encroachments on his private life would affect it in a larger degree. Indeed, nothing is more deleterious to a man's physical happiness and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory 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 limitations in respect of each is provided, while the expression "personal liberty" in Article 21 is generally controlled by the general expression "pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble 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 with the reading of Article 21 in Kharak Singh case, because there the right of motion and locomotion was held to be excluded from Article 21. In other wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an 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 comprises the residue. The minority Judges, however, disagreed with this view taken by the majority and explained their position in the following words: "No doubt the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 action must not be arbitrary and must fulfil the requirement of reasonableness, imparts meaning to the constitutional guarantees in Part III. 25 The doctrinal invalida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 privacy is essential in order to understand whether (as the Union of India postulates), the concept is so amorphous as to defy description. The submission of the government is that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idual, 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 choice of the objects on which to employ them. In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights. Where an excess of power prevails, prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 inviolable nature of the human personality. 35 The ringing observations of Warren and Brandeis on the impact of technology have continued relevance today in a globalized world dominated by the internet and information ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Before truth came to be accepted as a defence in defamation actions, criminal libel prosecutions flourished in the State courts.43 Similarly, truth was not regarded as a valid defence to a civil libel action in much of the nineteenth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 rights mean simply interests which we think ought to be secured; demands which human beings may make which we think ought to be satisfied. It is perfectly true that neither law nor state creates them. But it is fatal to all sound thinking to treat them as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lienable 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 actually to alienate inalienable rights. Although self-regarding, they pretend to an autonomy that does not exist. Inalienable rights are precisely directed against such false autonomy. Natural inalienable rights, like other natural rights, have long rested upon what has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 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 developed in Indian precedent. H Evolution of the privacy doctrine in India 47 Among the early decisions of this Court following Kharak Singh was R M Malkani v State of Maharashtra58. In that case, this Court held that Section 25 of the Indian Telegraph Act, 1885 was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hts 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 government a sphere where he should be let alone".65 These observations follow upon a reference to the Warren and Brandeis article; the two decisions of the US Supreme Court noted earlier; the writings of Locke and Kant; and to dignity, liberty and autonomy. 49 Yet a close reading of the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to case elaboration. The following observations were carefully crafted to hold that even on the "assumption" that there is an independent right of privacy emanating from personal liberty, the right to movement and free speech, the right is not absolute: "The right to privacy in any event will necessarily have to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 peace; to prevent the commission of offences and public nuisances". In connection with these duties it will be necessary to keep discreet surveillance over reputed bad characters, habitual offenders and other potential offenders. Organised crime cannot be successfully fought without close watch of suspects. But, surveillance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ames 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 following Rule 23.4 is instructive. It enjoins a duty upon the police officer to construe the rule strictly and confine the entries in the surveillance register to the class of persons mentioned in the rule. Similarly Rule 23.7 demands that there should be no illegal interference in the guise of surveillance. Surveillance, therefore, has to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence 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 . In that case, in a proceeding under Article 32 of the Constitution, a writ was sought for restraining the state and prison authorities from interfering with the publication of an autobiography of a condemned prisoner in a magazine. The prison authorities, in a communication to the publisher, denied the claim that the autobiography had been authored by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 dealt with in a series of judgments of this Court, among them being Mr X v Hospital Z84 . In that case, the appellant was a doctor in the health service of a state. He was accompanying a patient for surgery from Nagaland to Chennai and was tested when he was to donate blood. The blood sample was found to be HIV+. The appellant claiming to have been so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tentialities, 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 as a constitutional right, while the earlier part invalidated domiciliary visits in the context of an invasion of 'ordered liberty'. Similarly, several observations in Gobind proceed on an assumption: if there is a right of privacy, it would comprehend certain matters and would be subject to a regulation to protect compelling state interests. 59 In a de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ajority 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 conversations were construed to be an important ingredient of privacy and the tapping of such conversations was held to infringe Article 21, unless permitted by 'procedure established by law' : "The right to privacy - by itself - has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 read the fundamental constitutional guarantees with a purpose illuminated by India's commitment to the international regime of human rights' protection also weighed in the decision. Section 5(2) of the Telegraph Act was to be regulated by rules framed by the Government to render the modalities of telephone tapping fair, just and reasonable under Article 21. The importance which the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 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 right to personal liberty as enshrined under Article 21 of the Constitution of India, then it may in most of such cases become impossible to arrive at a conclusion. It may render the very grounds on which divorce is permissible nugatory. Therefore, when there is no right to privacy specifically conferred by Article 21 of the Constitution of India and with the extensi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterference 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 Constitution: "We have referred in detail to the reasons given by Mathew, J. in Gobind to show that, the right to privacy has been implied in Articles 19(1)(a) and (d) and Article 21; that, the right is not absolute and that any State intrusion can be a reasonable restriction only if it has reasonable basis or reasonable materials to support it."104 (emphasis supplied) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 by designation or state that the power can be delegated to officers not below a particular rank in the official hierarchy, as may be designated by the State."106 66 The significance of the judgment in Canara Bank lies first in its reaffirmation of the right to privacy as emanating from the liberties guaranteed by Article 19 and from the protection of life and personal liberty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 should not be so strong that the essence of the guarantee is lost. State protection must not translate into censorship111… Instead of prohibiting women employment in the bars altogether the state should focus on factoring in ways through which unequal consequences of sex differences can be eliminated. It is state's duty to ensure circumstances of safety which inspire confidence in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 oral communication only if it is intended to prevent the commission of an organised crime or if it is intended to collect the evidence to the commission of such an organised crime. The procedures authorising such interception are also provided therein with enough procedural safeguards, some of which are indicated and discussed hereinbefore."117 The safeguards that the Court adverts to in the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Act, 1971 can also be viewed as reasonable restrictions that have been placed on the exercise of reproductive choices."120 (emphasis supplied) The Court noted that the statute requires the consent of a guardian where the woman has not attained majority or is mentally ill. In the view of the Court, there is a distinction between mental illness and mental retardation and hence the State which was in- ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esults 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 "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 cannot act on any communication. Sanctity and regularity in official communication in such matters must be maintained especially when the service provider is taking the serious step of intercepting the telephone conversation of a person and by doing so is invading the privacy right of the person concerned and which is a fundamental right protected under the Constitution, as has been held by this Court."129 (emphasis supplied) 77 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... joined 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 following observations: "The unbridled power of the media can become dangerous if check and balance is not inherent in it. The role of the media is to provide to the readers and the public in general with information and views tested and found as true and correct. This power must be carefully regulated and must reconcile with a person's fundamental right to privacy."133 (emphasis supplied) 79 In Ramlila Maidan Incident v Home Secretary, U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 public interest, particularly when both these rights emerge from the constitutional values under the Constitution of India."137 (emphasis supplied) Significantly, though the Court was construing the text of a statutory exemption contained in Section 8, it dwelt on the privacy issues involved in the disclosure of information furnished in confidence by adverting to the constitutional right to privacy. 81 The decision Lillu @Rajesh v State of Haryana138 emphasized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... veral 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 public authorities and the decision under challenge was quashed. 83 In Manoj Narula v Union of India143, a Constitution Bench of this Court was hearing a petition filed in the public interest complaining of the increasing criminalization of politics. Dealing with the provisions of Article 75(1) of the Constitution, Justice Dipak Misra, while explaining the doctrine of "constitutional implications", considered whether the Court could read a disqualification into the provisions made by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution 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 ambit of Article 21, the Court noted: "Article 21 is the heart and soul of the Indian Constitution, which speaks of the rights to life and personal liberty. Right to life is one of the basic fundamental rights and not even the State has the authority to violate or take away that right. Article 21 takes all those aspects of life which go to make a person's life meaningful. Article 21 protects the dignity of human life, one's personal autonomy, one's right to privacy, etc. Right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 institutional process for the appointment of judges, the concurring judgment of Justice Madan B Lokur in Supreme Court Advocates on Record Association v Union of India151 dealt with privacy issues involved if disclosures were made about a candidate under consideration for appointment as a Judge of the Supreme Court or High Court. Dealing with the right to know of the general public on the one hand and the right to privacy on the other hand, Justice Lokur noted that the latter is an "implicit funda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 right to privacy in our Constitution was strictly speaking, not necessary for the decision of the Court in M P Sharma and the observation itself is no more than a passing observation. Moreover, the decision does not adjudicate upon whether privacy could be a constitutionally protected right under any other provision such as Article 21 or under Article 19. 89 Kharak Singh does not contain a reference to M P Sharma. The decision of the majority in Kharak Singh is essentially divided into two parts; the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubject 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 Kharak Singh which is construed as having recognized a constitutional entitlement to privacy without reconciling the second part which contains a specific observation on the absence of a protected constitutional right to privacy in the Constitution. Succeeding Benches of smaller strength were not obviously in a position to determine the correctness of the M P Sharma and Kharak Singh formulations. They had to weave a jurisprudence of privacy as new challenges emerged from a variety of sources: wire- tapping, nar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulation 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 the dignity of the individual and the unity of the Nation;…" 94 In Sajjan Singh v State of Rajasthan154, Justice Mudholkar alluded to the fact that the Preamble to our Constitution is "not of the common run" as is the Preamble in a legislative enactment but was marked both by a "stamp of deep deliberation" and precision. This was suggestive, in the words of the Court, of the special significance attached to the Preamble by the framers of the Constitution. 95 In Kesavananda Bharati v State of Kerala155 ("Kesavananda Bhara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) Act, 1974 to have an interview with a lawyer and the members of his family held that: "The fundamental right to life which is the most precious human right and which forms the ark of all other rights must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person…160 …the right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 simply is. Every human being has dignity by virtue of his existence…169 India is constituted into a sovereign, democratic republic to secure to all its citizens, fraternity assuring the dignity of the individual and the unity of the nation. The sovereign, democratic republic exists to promote fraternity and the dignity of the individual citizen and to secure to the citizens certain rights. This is because the objectives of the State can be realized only in and through the individuals. Therefore, rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 right comprehends one's being in its fullest sense. That which facilitates the fulfilment of life is as much within the protection of the guarantee of life. 107 To live is to live with dignity. The draftsmen of the Constitution defined their vision of the society in which constitutional values would be attained by emphasising, among other freedoms, liberty and dignity. So fundamental is dignity that it permeates the core of the rights guaranteed to the individual by Part III. Dignity is the core which unites t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral 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 acceded to the Universal Declaration, Sikri, C.J. held that the treatment of rights as inalienable must guide the interpretation of the Court. The Chief Justice relied upon a line of precedent holding these rights to be natural and inalienable and observed: "300. Various decisions of this Court describe fundamental rights as 'natural rights' or 'human rights'. Some of these decisions are extracted below: "There can be no doubt that the people of India have in exercise of their sovereign will as expressed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 of the basic structure, Sikri, C J held that: "The learned Attorney-General said that every provision of the Constitution is essential; otherwise it would not have been put in the Constitution. This is true. But this does not place every provision of the Constitution in the same position. The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same. The basic structure may be said to consist of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itizens 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 revolution. Every encroachment on freedom sets a pattern for further encroachments. Our constitutional plan is to eradicate poverty without destruction of individual freedoms."185 (emphasis supplied) Justice Jaganmohan Reddy held that: "…Parliament cannot under Article 368 expand its power of amendment so as to confer on itself the power to repeal, abrogate the Constitution or damage, emasculate or destroy any of the fundamental rights or essential elements of the basic structure of the Constitution or of destroying the identity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 one over the other would be to disturb the harmony of the Constitution. In the view of the Chief Justice: "The edifice of our Constitution is built upon the concepts crystallised in the Preamble. We resolved to constitute ourselves into a Socialist State which carried with it the obligation to secure to our people justice - social, economic and political. We, therefore, put Part IV into our Constitution containing directive principles of State policy which specify the socialistic goal to be achieved. We promised to our people a democr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 living a life of dignity is essential for a human being to fulfil the liberties and freedoms which are the cornerstone of the Constitution. To recognise the value of privacy as a constitutional entitlement and interest is not to fashion a new fundamental right by a process of amendment through judicial fiat. Neither are the judges nor is the process of judicial review entrusted with the constitutional responsibility to amend the Constitution. But judicial review certainly has the task before it of determining the nature and extent of the freedoms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uman 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 fathers was enriched by the histories of suffering of those who suffered oppression and a violation of dignity both here and elsewhere. Yet, it would be difficult to dispute that many of the problems which contemporary societies face would not have been present to the minds of the most perspicacious draftsmen. No generation, including the present, can have a monopoly over solutions or the confidence in its ability to foresee the future. As society evolves, so must constitutional doctrine. The institutions which the Constitution has created must adapt f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sole repository of ultimate control over those aspects of human freedom which were guaranteed there."201 (emphasis supplied) A similar position was adopted by Justice Chandrachud: "The right to personal liberty has no hallmark and therefore when the right is put in action it is impossible to identify whether the right is one given by the Constitution or is one which existed in the pre-Constitution era. If the argument of the respondents is correct, no action to enforce the right to personal liberty can at all fall within the mischief of the Presidential Order even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 effect to it. Sitting as I do, as a Judge under the Constitution, I cannot ignore the plain and emphatic command of the Constitution for what I may consider to be necessary to meet the ends of justice. It is said that law has the feminine capacity to tempt each devotee to find his own image in her bosom. No one escapes entirely. Some yield blindly, some with sophistication. Only a few more or less effectively resist. I have always leaned in favour of upholding personal liberty, for, I believe, it is one of the most cherished values of mankind. Without it life would not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 receive sustenance from and sanction of the laws of the land. Article 21 incorporates an essential aspect of that principle and makes it part of the fundamental rights guaranteed in Part III of the Constitution. It does not, however, follow from the above that if Article 21 had not been drafted and inserted in Part III, in that event it would have been permissible for the State to deprive a person of his life or liberty without the authority of law. No case has been cited before us to show that before the coming into force of the Constitution or in countries under rule of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sted 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 the powers vested in the modern state when it deals with the liberties of the individual. The power of the Court to issue a Writ of Habeas Corpus is a precious and undeniable feature of the rule of law. 120 A constitutional democracy can survive when citizens have an undiluted assurance that the rule of law will protect their rights and liberties against any invasion by the state and that judicial remedies would be available to ask searching questions and expect answers when a citizen has been deprived of these, most precious rights. The view taken by Justice Khanna mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vate 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 self-esteem, build relationships of his or her choice and fulfil all legitimate goals that he or she may set. In the Indian Constitution, the right to live with dignity and the right of privacy both are recognised as dimensions of Article 21…"218 Section 377 was held to be a denial of the dignity of an individual and to criminalise his or her core identity solely on account of sexuality would violate Article 21. The High Court adverted at length to global trends in the protection of privacy - dignity rights of homosexuals, including decisions emanating from the US Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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'. Yet in a democratic Constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties. Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lidity 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 to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks." Similarly, the International Covenant on Civil and Political Rights was adopted on 16 December 1979 and came into effect on 23 March 1976. India ratified it on 11 December 1977. Article 17 of the ICCPR provides thus: "The obligations imposed by this article require the State to adopt legislative and other measures to give effect to the prohibition against such interferences and attacks a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntegrity. ' 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 against the State." The reservation to Article 13 - which refers to protections for aliens, states that "the Government of the Republic of India reserves its right to apply its law relating to foreigners." On 30 June 2014, a report was presented by the Office of the United Nations High Commissioner for Human Rights.222 The report underscores that: "…there is universal recognition of the fundamental importance, and enduring relevance, of the right to privacy and of the need to ensure that it is safeguarded, in law and in practice."223 131 In Bachan Singh v State of Punjab224 ("Bachan Singh"), this Court considered in relatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitutional 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 Justice of the European Union and the Inter-American Court of Human Rights. These decisions are indicative of the manner in which the right to privacy has been construed in diverse jurisdictions based on the histories of the societies they govern and the challenges before them. (i) U K decisions The first common law case regarding protection of privacy is said to be Semayne's Case227 (1604). The case related to the entry into a property by the Sheriff of London in order to execute a valid writ. The case is famous for the words of Sir Edward Coke: "That the house of every one is to him as his castle and fortress, as well for his defenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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; and indeed in the United Kingdom today our lives are permeated by enforceable duties to provide information on demand, created by Parliament and tolerated by the majority, albeit in some cases with reluctance." Lord Mustill's statement "underlines the approach taken by the common law to privacy" that "it recognised privacy as a principle of general value" and that "privacy had only been given discrete and specific protection at common law".232 This approach was diluted in the case of Wainwright v Home Office233(2004), where a mother and son were subjected to a strip-search when visiting a prison in 1997, in accordance with existing Prison Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 in a publication run by MGN. She sought damages under the English law through her lawyers to bring a claim for breach of confidence engaging Section 6 of the Human Rights Act. The House of Lords by majority decided in her favour. Lord Hope writing for the majority held: "[I]f there is an intrusion in a situation where a person can reasonably expect his privacy to be respected, that intrusion will be capable of giving rise to liability unless the intrusion can be justified… [A] duty of confidence arises when confidential information comes to the knowledge of a person where he has notice that the information is confidential." In holding so, Lord Hope r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 relatively trivial. For this reason public disclosure of such information can be particularly intrusive… Prince Charles has a valid claim based on breach of confidence and interference with his Article 8 rights." In Murray v Big Pictures (UK) Ltd240 (2008), a photographer had taken a series of photographs of a writer's infant son, which were later published in a newspaper. The issue was whether there was misuse of private information by taking photographs. It was held that: "[The] question of whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssary 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 circumstances of the case (as Sir Anthony Clarke said in Murray's case) and having regard to underlying value or values to be protected. Thus, for example, the publication of a photograph of a young person acting in a criminal manner for the purpose of enabling the police to discover his identity may not fall within the scope of the protection of personal autonomy which is the purpose of article 8, but the publication of the same photograph for another purpose might." Lord Clarke wrote a separate judgment concurring with Lord Toulson and held that: "… the criminal nature of what the appellant was doing was not an aspect of his private life that he was entitled t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 purposes of despotic power, but it cannot abide the pure atmosphere of political liberty and personal freedom." (emphasis supplied) In two decisions in the 1920s, the Court read the Fourteenth Amendment's liberty to prohibit states from making laws interfering with the private decisions of parents and educators to shape the education of their children. In Meyer v Nebraska247 (1923), the Court struck down a state law that prohibited the teaching of foreign languages to students that had not yet completed the eighth grade. The Court in a 7:2 decision, written by Justice McReynolds, concluded that the state failed to show a compelling need to infringe upon the rights of parents and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions…" (emphasis supplied) He questioned whether the Constitution affords no protection against such invasions of individual security. Justice Brandeis answers this question in a celebrated passage: "The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 the Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements. Prior to 1967 when determining the 'reasonable expectation of privacy' for purposes of discussing Fourth Amendment violations, the analysis was focused on whether the authority had trespassed on a private location. This 'trespass doctrine' was the prevailing test until Katz, which extended the protection of the Fourth Amendment from 'places' to 'people', affording individuals more privacy even in public. The 'trespass doctrine' applied in Olmstead v United States (supra) was held to be no longer relevant. Justice Stewart wrote the majority (7:1) opinion and held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Baird253 (1972), the Court invalidated a law prohibiting the distribution of contraceptives to unmarried persons, ruling that it violated the Equal Protection Clause of the Constitution: "It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 pregnancy." (emphasis supplied) The right to privacy in bank records was analysed by the US Supreme Court in United States v Miller256 (1976). In this case federal agents were investigating the defendant for his involvement in a bootlegging conspiracy. The agents subpoenaed two banks and received his bank records. As a result, he was indicted. The question was whether an individual reasonably can expect that records kept incidental to his personal banking transactions will be protected from uncontrolled government inspection. In a 6:3 opinion, the Supreme Court held that a bank depositor has no Fourth Amendment interest in the records tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 marriage...; procreation...; contraception...; family relationships...; and childrearing and education..." It was further held that: "The decision whether or not to beget or bear a child is at the very heart of this cluster of constitutionally protected choices... This is understandable, for in a field that, by definition, concerns the most intimate of human activities and relationships, decisions whether to accomplish or to prevent conception are among the most private and sensitive…" The Court also held that the right to privacy may be limited by a regulation, which is governed by a sufficient 'compelling state inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 -- like the conversations that occur during a call -- are within the constitutional protection recognized in Katz. It seems clear to me that information obtained by pen register surveillance of a private telephone is information in which the telephone subscriber has a legitimate expectation of privacy. The information captured by such surveillance emanates from private conduct within a person's home or office -- locations that without question are entitled to Fourth and Fourteenth Amendment protection. Further, that information is an integral part of the te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sota 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 Fourth Amendment protects. The Court was of the view that while an overnight guest in a home may claim the protection of the Fourth Amendment, one who is merely present with the consent of the householder may not. The respondents, in this case, were not overnight guests, but were present for a business transaction and were only in the home for a few hours. The Court held: "Property used for commercial purposes is treated differently for Fourth Amendment purposes from residential property. "An expectation of privacy in commercial premises, however, is different from, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck 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 sexual conduct a crime… It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter… The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." Informational privacy was the core issue in NASA v Nelson266 (2011). The Court held unanimously that NASA's background checks of contract employees did not violate any constitutional privacy right. The employees had argued that their constitutional right to privacy as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lieves 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) tracking device on a vehicle and using the device to monitor the vehicle's movements constitutes a search under the Fourth Amendment. However, the judges were split 5:4 as to the fundamental reasons behind the conclusion. Justice Scalia delivered the majority judgment, applying the trespass test. It was held that the Government's physical intrusion onto the defendant's car for the purpose of obtaining information constituted trespass and therefore a "search". Justice Scalia, however, left unanswered the question surrounding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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-detection dog is a specialized device for discovering objects not in plain view (or plain smell). And as in the hypothetical above, that device was aimed here at a home- the most private and inviolate (or so we expect) of all the places and things the Fourth Amendment protects… the device is not "in general public use," training it on a home violates our "minimal expectation of privacy"-an expectation "that exists, and that is acknowledged to be reasonable"." (emphasis supplied) Three years ago, in Riley v Califo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution 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 interference by the state - such as conscience, education, personal information, communications and conversations, sexuality, marriage, procreation, contraception, individual beliefs, thoughts and emotions, political and other social groups. Various judgments of the Court have also analysed technological developments which have made surveillance more pervasive and affecting citizens' privacy. In all these cases, the Court has tried to balance the interests of the individual in maintaining the right to privac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 business and social interaction, the scope of personal space shrinks accordingly." The constitutional validity of laws making sodomy an offence was challenged in National Coalition for Gay and Lesbian Equality v Minister of Justice275 (1999). It was held that the common law offence of sodomy was inconsistent with the Constitution of the Republic of South Africa, 1996. Ackermann J. described how discrimination leads to invasion of privacy and held that: "Privacy recognises that we all have a right to a sphere of private intimacy and autonom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 investigation, serve an important purpose in the fight against crime. That the state has a pressing interest which involves the security and freedom of the community as a whole is beyond question. It is an objective which is sufficiently important to justify the limitation of the right to privacy of an individual in certain circumstances….On the other hand, state officials are not entitled without good cause to invade the premises of persons for purposes of searching and seizing property; ...A balance must therefore be struck between the interests of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber 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, Justice O'Regan held that the publication of the names and HIV status of the women was neither intentional nor negligent. In that view, the respondents had assumed that consent was given because the applicants' names and HIV status were published in a publication, with no disclaimer regarding their consent to the contrary. While elaborating on the constitutional right of privacy, the Court held that: "... although as human beings we live in a community and are in a real sense both constituted by and constitutive of that community, we are nevertheless entitled to a persona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... derstanding 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 right, making significant inter-linkages between equality, privacy and dignity. In doing so, it has been acknowledged that the right to privacy does not exist in a vacuum, its contravention having a significant bearing on other citizen rights as well. Such an interpretation may prove to have a catalytic effect on a country transitioning from an apartheid state to a democratic nation. (iv) Constitutional right to privacy in Canada Although the Canadian Charter of Rights and Freedoms of 1982 ("the Charter") does not explicitly provide for a right to privacy, certain sections of the Charter have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the Charter and that the spirit of the Charter "must not be constrained by narrow legalistic classifications based on notions of property". It was further held: "[Legal claims to privacy in this sense were largely confined to the home. But… [t]o protect privacy only in the home ... is to shelter what has become, in modern society, only a small part of the individual's daily environmental need for privacy... Privacy is at the heart of liberty in a modern state...Grounded in man's physical and moral autonomy, privacy is essential for the well-being of the individual. For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sement 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 Sopinka relied on a part of the United States v Miller285 decision, that in order to be constitutionally protected the information must be of a "personal and confidential" nature and held that: "In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 totality of the circumstances." (emphasis supplied) The issue in the case was whether there is a privacy interest in subscriber information with respect to computers used in homes for private purposes. The Court applied a broad approach in understanding the online privacy interests and held that: "Privacy is admittedly a "broad and somewhat evanescent concept"... [T]he Court has described three broad types of privacy interests - territorial, personal, and informational - which, while often overlapping, have proved helpful in identifying the nature of the privacy interest or interests at stake in particular situa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arter 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 Union and oversees the uniform application and interpretation of European Union law, in co-operation with the national judiciary of the member states. Article 8 of the ECHR provides that: "Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings." Similarly, in Costello-Roberts v United Kingdom290 (1993), the ECtHR stated that "the notion of "private life" is a broad one" and "is not susceptible to exhaustive definition". This broad approach is also present in the recent cases of European jurisprudence. In S and Marper v United Kingdom291 (2008), the ECtHR held, with respect to right to respect for private life, that : "...the concept of "private life"... covers the physical and psychological integri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds, 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 them. The Court held that there had been a violation of Article 8 of the Convention. Finding that the retention at issue had constituted a disproportionate interference with the applicants' right to respect for private life, the Court held that "the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons...fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation". It was further held that: "The mere storing of data relating to the private life of an individual amounts to an interference within the meaning of Article 8. However, in determining whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opean 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 investigate several counts of attempted murder for which a terrorist movement had claimed responsibility and to prevent further bomb attacks. It therefore served the interests of national security and public safety, the prevention of crime and the protection of the rights of the victims. It had only been ordered after less intrusive methods of investigation had proved insufficient, for a relatively short period of time - three months - and it had affected Mr Uzun only when he was travelling with his accomplice's car. Therefore, he could not be said to have been subjected to total and comprehensive surveillance. Given that the investigation concerned very serious crimes, the Court found that the GPS surveillance of Mr Uzun had been propor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sufficient safeguards, it was held that by adopting the Directive, the EU "exceeded the limits imposed by compliance with the principle of proportionality in the light of Articles 7, 8 and 52(1) of the Charter." In RE v The United Kingdom296 (2015), the applicant was arrested and detained on three occasions in relation to the murder of a police officer. He claimed violation of Article 8 under the regime of covert surveillance of consultations between detainees and their lawyers, medical advisors and appropriate adults297 sanctioned by the existing law. The ECtHR held that: "The Court…considers that the surveillance of a legal consultation constitutes an extremely high degree of intrusion into a person's right to respect for his o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rivate 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 the right to private life. The Court held that: "The scope of the protection of the right to private life has been interpreted in broad terms by the international human rights courts, when indicating that this goes beyond the right to privacy. The protection of private life encompasses a series of factors associated with the dignity of the individual, including, for example, the ability to develop his or her own personality and aspirations, to determine his or her own identity and to define his or her own personal relationships. The concept of private life encompasses aspects of physical and social identity, including the right to personal autonomy, personal development and the right to establish and develop relationships with other human beings and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmunications 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 importance and sanctity attributed to individual freedom and liberty. Constitutions which, like the Indian Constitution, contain entrenched rights place the dignity of the individual on a high pedestal. Despite cultural differences and disparate histories, a study of comparative law provides reassurance that the path which we have charted accords with a uniform respect for human values in the constitutional culture of the jurisdictions which we have analysed. These values are universal and of enduring character. L Criticisms of the privacy doctrine 135 The Attorney General for India, leading the arguments before this Court on behalf of Union of India, has been critical of the recognition being given to a general right of privacy. The submission has several fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 outdated values must be balanced against the cutting-edge imperatives of national security, efficiency, and entrepreneurship, privacy comes up the loser. The list of privacy counterweights is long and growing. The recent additions of social media, mobile platforms, cloud computing, data mining, and predictive analytics now threaten to tip the scales entirely, placing privacy in permanent opposition to the progress of knowledge."304 The article proceeds to explain that the perception of privacy as antiquated and socially retrograde is wrong. Nonetheless, this criticism has relevance to India. The nation aspires to move to a knowledge based economy. Information is the basis of knowledge. The scales must, according to this critique, tip in favour of the paramount national n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded 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 liberty.310 Hence it has been argued that privacy protects liberty and that "privacy protection gains for us the freedom to define ourselves and our relations to others"311. This rationale understands the relationship between liberty and privacy by stipulating that while liberty is a broader notion, privacy is essential for protecting liberty. Recognizing a constitutional right to privacy is a reaffirmation of the individual interest in making certain decisions crucial to one's personality and being. d Feminist critique Many writers on feminism express concern over the use of privacy as a veneer for patriarchal domination and abuse of women. Patriarchal notions still prevail in several societies including our own and are used as a shield to violate core constitutional rights of women based on ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 freedom of communication without interception or routine monitoring of one's communication by others; (d) Privacy of personal data which is linked to the concept of informational privacy. (iii) Anita Allen has, in a 2011 publication, developed the concept of "unpopular privacy"317. According to her, governments must design "unpopular" privacy laws and duties to protect the common good, even if privacy is being forced on individuals who may not want it. Individuals under this approach are not permitted to waive their privacy rights. Among the component elements which she notices are : (a) physical or spatial privacy - illustrated by the privacy in the home; (b) informational privacy including information data or facts about persons or their communications; (c) decisional privacy which protects the right of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 individual interest in the privacy of thought and mind and the development of opinions and beliefs; (vi) decisional privacy reflected by an ability to make intimate decisions primarily consisting one's sexual or procreative nature and decisions in respect of intimate relations; (vii) associational privacy which is reflected in the ability of the individual to choose who she wishes to interact with; (viii) behavioural privacy which recognises the privacy interests of a person even while conducting publicly visible activities. Behavioural privacy postulates that even when access is granted to others, the individual is entitled to control the extent of access and preserve to herself a measure of freedom from unwanted intrusion; and (ix) informational privacy which reflects an interest in preventing information about the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 certain important powers. Often in the course of investigation, a police officer gets information that stolen property has been secreted in a certain place. If he searches it at once, as he can at present, there is a chance of his recovering it; but he has to apply for a court's warrant, giving full details, the delay involved, under Indian conditions of distance and lack of transport in the interior may be fatal." A note was submitted by Sir Alladi Krishnaswamy Iyer on 10 April 1947 objecting to the 'secrecy of correspondence' mentioned in clause 9(d) and the protection against unreasonable searches in clause 10326 : "Clause (d). In regard to secrecy of correspondence I raised a point during the discussions that it need not find a place in chapter on fundamental rights and it had better be left to the protection afforded by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution 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 circumstances, such as, on the occurrence of an emergency and in the interests of public safety." Eventually, clause 9(d) and clause 10 were dropped from the chapter dealing with fundamental rights. 148 This discussion would indicate that there was a debate during the course of the drafting of the Constitution on the proposal to guarantee to every citizen the right to secrecy of correspondence in clause 9(d) and the protection to be secure against unreasonable searches and seizures in their persons houses, papers and assets. The objection to clause 9(d) was set out in the note of dissent of Sir Alladi Krishnaswamy Iyer and it was his view that the guarantee of secrecy of correspondence may lead to every private correspondence becoming a state paper. There was also a feeling that this would affect the prosecution especially in cases of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 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 leave open the path for succeeding generations to meet the challenges to privacy that may be unknown today. 150 The impact of the decision in Cooper is to establish a link between the fundamental rights guaranteed by Part III of the Constitution. The immediate consequence of the decision is that a law which restricts the personal liberties contained in Article 19 must meet the test of permissible restrictions contemplated by Clauses 2 to 6 in relation to the fundamental freedom which is infringed. Moreover, since the fundamental rights are inter-related, Article 21 is no longer to be construed as a residue of rights which are not specifically enumerated in Article 19. Both sets of rights overlap and hence a law which affects one of the personal freedoms under Article 19 would, in addition to the requirement of meeting the permissible rest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 right to speedy trial - Hussainara Khatoon v Home Secretary, State of Bihar332. (vi) The right against handcuffing - Prem Shankar Shukla v Delhi Administration333. (vii) The right against custodial violence - Sheela Barse v State of Maharashtra334. (viii) The right against public hanging - A G of India v Lachma Devi335. (ix) Right to doctor's assistance at government hospitals - Paramanand Katara v Union of India336. (x) Right to shelter - Shantistar Builders v N K Totame337. (xi) Right to a healthy environment - Virender Gaur v State of Haryana338. (xii) Right to compensation for unlawful arrest - Rudal Sah v State of Bihar339. (xiii) Right to freedom from torture - Sunil Batra v Delhi Administration340. (xiv) Right to reputation - Umesh Kumar v State of Andhra Pradesh341. (xv) Right to earn a livelihood - Olga Tellis v Bombay Municipal Cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strument 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 been founded to find innovative solutions to intractable problems of their times. In doing so, we must equally understand that our solutions must continuously undergo a process of re-engineering. N Is the statutory protection to privacy reason to deny a constitutional right? 152 The Union government and some of the States which have supported it have urged this Court that there is a statutory regime by virtue of which the right to privacy is adequately protected and hence it is not necessary to read a constitutional right to privacy into the fundamental rights. This submission is sought to be fortified by contending that privacy is merely a common law right and the statutory protection is a reflection of that position. 153 The submission betrays lack of understanding of the reason why rights are protected in the first place as entrenched guarantees in a Bill of Rights or, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Constitution places the individual at the forefront of its focus, guaranteeing civil and political rights in Part III and embodying an aspiration for achieving socio- economic rights in Part IV. The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised though history to wreak the most egregious violations of human rights. Above all, it must be realised that it is the right to question, the right to scrutinize and the right to dissent which enables an informed citizenry to scrutinize the actions of government. Those who are governed are entitled to question those who govern, about the discharge of their constitutional duties including in the provision of socio-economic welfare benefits. The power to scrutinize and to reason enables the citizens of a democratic polity to make informed decisions on basic issues which govern the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ood 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 criticism and pressure from the opposition and would have gotten plenty of flak from newspapers. In contrast, the Ethiopian and Sudanese governments did not have to reckon with those prospects, and the political incentives provided by democratic institutions were thoroughly absent in those countries. Famines in Sudan and Ethiopia - and in many other countries in sub-Saharan Africa - were fed by the political immunity enjoyed by governmental leaders in authoritarian countries. This would seem to apply to the present situation in North Korea as well."344 In the Indian context, Sen points out that the Bengal famine of 1943 "was made viable not only by the lack of democracy in colonial India but also by severe restrictions on reporting and criticism imposed on the Indian press, and the voluntary practice of 'silence' on the famine that the British-owned media chose to follow"345. Political liberties and dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ple. 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 to the South African government free of charge was refused. Eventually it was when the South African Constitutional Court intervened in the Treatment Action Campaign decision350 that it was held that the government had failed the reasonableness test. The article notes that as a result of the decision, the drug became available and "hundreds and thousands, perhaps millions, of lives have been saved". Besides, the article notes that the judgment changed the public discourse of AIDS and "cut-through the obfuscation of denials and in doing so, dealt it a fatal blow"351. Examples can be multiplied on how a state sanctioned curtain of misinformation or state mandated black-outs of information can cause a serious denial of socio- economic rights. The strength of Indian democracy lies in the foundation provided by the Constitution to liberty and freedom. Liberty and freedom are values which are intrinsic to our consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 intrusion. As a positive freedom, it obliges the State to adopt suitable measures for protecting individual privacy. An apt description of this facet is contained in the Max Planck Encyclopaedia of Comparative Constitutional Law, in its section on the right to privacy352 : "2. The right to privacy can be both negatively and positively defined. The negative right to privacy entails the individuals are protected from unwanted intrusion by both the state and private actors into their private life, especially features that define their personal identity such as sexuality, religion and political affiliation, ie the inner core of a person's private life…. The positive right to privacy entails an obligation of states to remove obstacles for an autonomous shaping of individual identities." Q Substantive Due Process 159 During the course of the hearing, Mr Rakesh Dwivedi, learned Senior Counsel appearing on behalf o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 qualification were not to be introduced, even price control legislation would be interpreted as interfering with the opportunity of contract between seller and buyer (see in this context B Shiva Rao's 'The Framing of India's Constitution: A Study'357). 161 The third major change which the Constituent Assembly made was that the phrase 'due process of law' was deleted from the text of the draft Constitution. Following B N Rau's meeting with Justice Frankfurter, the Drafting Committee deleted the phrase 'due process of law' and replaced it with 'procedure established by law'. Granville Austin refers to the interaction between Frankfurter and B N Rau and the reason for the deletion358 : "Soon after, Rau began his trip to the United States, Canada, Eire, and England to talk with justices, constitutionalists, and statesmen about the framing of the Constitution. In the United States he met Supreme Court Justice Felix Frankfurter, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision. 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 'due process', among them being Dr Sitaramayya, T T Krishnamachari, K Santhanam, M A Ayyangar, Dr B V Keskar, S L Saksena, Thakur Das Bhargava, Hukam Singh and four members of the Muslim League.361 K M Munshi stated that362 : "…a substantive interpretation of due process could not apply to liberty of contract - the basis on which the United States Supreme Court had, at the beginning of the century, declared some social legislation to be an infringement of due process and hence unconstitutional - but only to liberty of person, because 'personal' had been added to qualify liberty. 'When a law has been passed which entitles the government to take away the personal liberty of an individual, Munshi said, 'the court will consider whether the law which has been passed is such as is required by the exigencies of the case and therefore, as I said, the balance will be struck between individual liberty and social control. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 against arbitrary detention. The majority rejected the argument that the expression 'procedure established by law' meant procedural due process. Chief Justice Kania noted that Article 21 of our Constitution had consciously been drawn up by the draftsmen so as to not use the word 'due process' which was used in the American Constitution. Hence it was impermissible to read the expression 'procedure established by law' to mean 'procedural due process' or as requiring compliance with natural justice. Justice Patanjali Sastri held that reading the expression 'due process of law' into the Constitution was impermissible since it would lead to those 'subtle and elusive criteria' implied in the phrase which it was the deliberate purpose of the framers of our Constitution to avoid. Similarly, Justice Das also observed that our Constitution makers had deliberately declined to adopt "the uncertain and shifting American doctrine of due proces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 majority of judges found that the expression 'procedure established by law' did not mean any procedure howsoever arbitrary or fanciful. The procedure had to be fair, just and reasonable. The views of Justices Chandrachud, Bhagwati and Krishna Iyer emerge from the following brief extracts: "Chandrachud, J.: …But the mere prescription of some kind of procedure cannot ever meet the mandate of Article 21. The procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or arbitrary."365 "Bhagwati, J.: The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non- arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be "right and just and fair" and not arbitrary, fanciful or oppressive; other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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.""372 Bachan Singh clearly involved a substantive challenge to the constitutional validity of a statutory provision. The majority adjudicated upon the constitutional challenge under Article 21 and held that it did not suffer from substantive or procedural invalidity. In his dissent373, Justice Bhagwati significantly observed that the word "procedure" under Article 21 would cover the entire process by which deprivation is effected and that would include not only "the adjectival" but also substantive part of law. In the view of the Court: "The word 'procedure' in Article 21 is wide enough to cover the entire process by which deprivation is effected and that would include not only the adjectival but also the substantive part of law."374 In Mithu v State of Punjab375 ("Mithu"), a Constitution Bench considered the validity of Section 303 of the Penal Code which provided for a mandatory death penalty where a person commits murder while undergoing a sent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fundamental right conferred by Article 21."376 (emphasis supplied) In A K Roy v Union of India377, dealing with the question of preventive detention, a Constitution Bench of this Court adverted to the conscious decision in the Constituent Assembly to delete the expression 'due process of law' from Article 21. The Court held that: "The fact that England and America do not resort to preventive detention in normal times was known to our Constituent Assembly and yet it chose to provide for it, sanctioning its use for specified purposes. The attitude of two other well-known democracies to preventive detention as a means of regulating the lives and liberties of the people was undoubtedly relevant to the framing of our Constitution. But the framers having decided to adopt and legitimise it, we cannot declare it unconstitutional by importing our notions of what is right and wrong. The power to judge the fairness and justness of procedure established by a law for the purposes o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 examining the constitutionality of Indian legislation. As pointed out in the above extract, even in United States the doctrine is currently of doubtful legitimacy. This Court long back in A.S. Krishna v. State of Madras [1957 SCR 399] declared that the doctrine of due process has no application under the Indian Constitution. As pointed out by Frankfurter, J. arbitrariness became a mantra."383 (emphasis supplied) The constitutional history surrounding the drafting of Article 21 contains an abundant reflection of a deliberate and studied decision of the Constituent Assembly to delete the expression 'due process of law' from the draft Constitution when the Constitution was adopted. In the Constituent Assembly, the Drafting Committee chaired by Dr B R Ambedkar had included the phrase but it came to be deleted after a careful evaluation of the vagaries of the decision making process in the US involving interpretation of the due process clause. Significantly, present to the mind of the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 burden lies on the individual who asserts a constitutional transgression to establish it. Secondly, the Courts tread warily in matters of social and economic policy where they singularly lack expertise to make evaluations. Policy making is entrusted to the state.385 The doctrine of separation of powers requires the Court to allow deference to the legislature whose duty it is to frame and enact law and to the executive whose duty it is to enforce law. The Court would not, in the exercise of judicial review, substitute its own opinion for the wisdom of the law enacting or law enforcing bodies. In the context of Article 19, the test of reasonableness was explained in the erudite words of Chief Justice Patanjali Sastri in State of Madras v V G Row386, where the learned Chief Justice held thus: "It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 recognized that judicial review is a powerful guarantee against legislative encroachments on life and personal liberty. To cede this right would dilute the importance of the protection granted to life and personal liberty by the Constitution. Hence, while judicial review in constitutional challenges to the validity of legislation is exercised with a conscious regard for the presumption of constitutionality and for the separation of powers between the legislative, executive and judicial institutions, the constitutional power which is vested in the Court must be retained as a vibrant means of protecting the lives and freedoms of individuals. 167 The danger of construing this as an exercise of 'substantive due process' is that it results in the incorporation of a concept from the American Constitution which was consciously not accepted when the Constitution was framed. Moreover, even in the country of its origin, substantive due process has led to vagaries of judicial interpretation. Particularly having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rivacy 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. Privacy protects the individual from the searching glare of publicity in matters which are personal to his or her life. Privacy attaches to the person and not to the place where it is associated. Privacy constitutes the foundation of all liberty because it is in privacy that the individual can decide how liberty is best exercised. Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural culture. 169 Privacy of the individual is an essential aspect of dignity. Dignity has both an intrinsic and instrumental value. As an intrinsic value, human dignity is an entitlement or a constitutionally protected interest in itself. In its instrumental facet, dignity and freedom are inseparably inter-twined, each being a facilitative tool to achieve the other. The ability of the individual to protect a zone of privacy enables the realization of the full value of life and liberty. Liberty has a broader meaning of which privacy is a subset. All libertie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ability to choose a faith and the freedom to express or not express those choices to the world. These are some illustrations of the manner in which privacy facilitates freedom and is intrinsic to the exercise of liberty. The Constitution does not contain a separate article telling us that privacy has been declared to be a fundamental right. Nor have we tagged the provisions of Part III with an alpha suffixed right of privacy: this is not an act of judicial redrafting. Dignity cannot exist without privacy. Both reside within the inalienable values of life, liberty and freedom which the Constitution has recognised. Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self-determination. Privacy represents the core of the human personality and recognizes the ability of each individual to make choices and to take decisions governing matters intimate and perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et 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 communication. The internet is used to carry on business and to buy goods and services. Individuals browse the web in search of information, to send e-mails, use instant messaging services and to download movies. Online purchases have become an efficient substitute for the daily visit to the neighbouring store. Online banking has redefined relationships between bankers and customers. Online trading has created a new platform for the market in securities. Online music has refashioned the radio. Online books have opened up a new universe for the bibliophile. The old-fashioned travel agent has been rendered redundant by web portals which provide everything from restaurants to rest houses, airline tickets to art galleries, museum tickets to music shows. These are but a few of the reasons people access the internet each day of their lives. Yet every transaction of an individual user and every site that she visits, leaves electronic tracks generally without her knowledge. These electronic tracks contain powerful means of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nternet subscribers being 13.08. The figures only increase. 173 The age of information has resulted in complex issues for informational privacy. These issues arise from the nature of information itself. Information has three facets: it is nonrivalrous, invisible and recombinant390. Information is nonrivalrous in the sense that there can be simultaneous users of the good - use of a piece of information by one person does not make it less available to another. Secondly, invasions of data privacy are difficult to detect because they can be invisible. Information can be accessed, stored and disseminated without notice. Its ability to travel at the speed of light enhances the invisibility of access to data, "information collection can be the swiftest theft of all"391. Thirdly, information is recombinant in the sense that data output can be used as an input to generate more data output. 174 Data Mining processes together with knowledge discovery can be combined to create facts about individuals. Metadata and the internet of things have the ability to redefine human existence in ways which are yet fully to be perceived. This, as Christina Moniodis states in her illuminating article resu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... variety of information fragments, including pieces of information which may not be viewed as private in isolation to create a detailed portrait of personalities and behaviour of individuals.396 Yet, it is now a universally accepted fact that information and data flow are "increasingly central to social and economic ordering"397. Individuals are identified with reference to tax records, voting eligibility, and government-provided entitlements. There is what is now described as "'veillant panoptic assemblage', where data gathered through the ordinary citizen's veillance practices finds its way to state surveillance mechanisms, through the corporations that hold that data"398. 176 The balance between data regulation and individual privacy raises complex issues requiring delicate balances to be drawn between the legitimate concerns of the State on one hand and individual interest in the protection of privacy on the other. 177 The sphere of privacy stretches at one end to those intimate matters to which a reasonable expectation of privacy may attach. It expresses a right to be left alone. A broader connotation which has emerged in academic literature of a comparatively recent origin i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta 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 their health, intimacies and finances among others will be used to harm them in interaction with other people, they are content to reveal those details when they derive benefits from the revelation.400 As long as intelligence personnel can be trusted to use the knowledge gained only for the defence of the nation, "the public will be compensated for the costs of diminished privacy in increased security from terrorist attacks"401. Posner's formulation would indicate that the State does have a legitimate interest when it monitors the web to secure the nation against cyber attacks and the activities of terrorists. 180 While it intervenes to protect legitimate state interests, the state must nevertheless put into place a robust regime that ensures the fulfilment of a three-fold requirement. These three requirements apply to all restraints on privacy (not just informational privacy). They emanate from the procedural and content-based mandate of Article 21. The first requirement that there must be a law in existence to justify an encr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 utilised unauthorizedly for extraneous purposes. This will ensure that the legitimate concerns of the state are duly safeguarded while, at the same time, protecting privacy concerns. Prevention and investigation of crime and protection of the revenue are among the legitimate aims of the state. Digital platforms are a vital tool of ensuring good governance in a social welfare state. Information technology - legitimately deployed is a powerful enabler in the spread of innovation and knowledge. 182 A distinction has been made in contemporary literature between anonymity on one hand and privacy on the other.402 Both anonymity and privacy prevent others from gaining access to pieces of personal information yet they do so in opposite ways. Privacy involves hiding information whereas anonymity involves hiding what makes it personal. An unauthorised parting of the medical records of an individual which have been furnished to a hospital will amount to an invasion of privacy. On the other hand, the state may assert a legitimate interest in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sary for the purposes identified for such collection, regarding which notice has been provided and consent of the individual taken. Such collection shall be through lawful and fair means; (iv) Purpose Limitation: Personal data collected and processed by data controllers should be adequate and relevant to the purposes for which it is processed. A data controller shall collect, process, disclose, make available, or otherwise use personal information only for the purposes as stated in the notice after taking consent of individuals. If there is a change of purpose, this must be notified to the individual. After personal information has been used in accordance with the identified purpose it should be destroyed as per the identified procedures. Data retention mandates by the government should be in compliance with the National Privacy Principles; (v) Access and Correction: Individuals shall have access to personal information about them held by a data controller; shall be able to seek correction, amendments, or deletion of such information where it is inaccurate; be able to confirm that a data controller holds or is processing information about them; be able to obtain from the data con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence of the Committee are : a) To study various issues relating to data protection in India; b) To make specific suggestions for consideration of the Central Government on principles to be considered for data protection in India and suggest a draft data protection bill. Since the government has initiated the process of reviewing the entire area of data protection, it would be appropriate to leave the matter for expert determination so that a robust regime for the protection of data is put into place. We expect that the Union government shall follow up on its decision by taking all necessary and proper steps. T Our Conclusions 1 The judgment in M P Sharma holds essentially that in the absence of a provision similar to the Fourth Amendment to the US Constitution, the right to privacy cannot be read into the provisions of Article 20 (3) of the Indian Constitution. The judgment does not specifically adjudicate on whether a right to privacy would arise from any of the other provisions of the rights guaranteed by Part III including Article 21 and Article 19. The observation that privacy is not a right guaranteed by the Indian Constitution is not reflective of the correct position. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-serves those eternal values upon which the guarantees of life, liberty and freedom are founded. At a descriptive level, privacy postulates a bundle of entitlements and interests which lie at the foundation of ordered liberty; (F) Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being; (G) This Court has not embarked upon an exhaustive enumeration or a catalogue of entitlements or interests comprised i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms of the state would include for instance protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits. These are matters of policy to be considered by the Union government while designing a carefully structured regime for the protection of the data. Since the Union government has informed the Court that it has constituted a Committee chaired by Hon'ble Shri Justice B N Srikrishna, former Judge of this Court, for that purpose, the matter shall be dealt with appropriately by the Union government having due regard to what has been set out in this judgment. 6 The reference is answered in the above terms. CJI [JAGDISH SINGH KHEHAR] J. [R K AGRAWAL] J. [ Dr D Y CHANDRACHUD] J. [S ABDUL NAZEER] New Delhi; Dated : 24, August 2017 1 (1954) SCR 1077 2 (1964) 1 SCR 332 3 AIR 1950 SC 27 4 (1970) 1 SCC 248 5 (1978) 1 SCC 248 6 (1975) 2 SCC 148 7 (1994) 6 SCC 632 8 (1997) 1 SCC 301 9 Boyd v. United States, 116 US 616 (1886) 10 10 10 MP Sharma (Supra note 1), at page 1096 11 Ibid, at page 1096-97 12 Kharak Singh (Supra note 2), at page 345 13 Ibid, at page ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 49 Edwin W. Patterson, "A Pragmatist Looks At Natural Law and Natural Rights", in Arthur L. Harding ed., Natural Law and Natural Rights (1955), at pages 62-63 50 Craig A. Ster and Gregory M. Jones, "The Coherence of Natural Inalienable Rights", UMKC Law Review (2007- 08), Volume 76 (4), at pages 971-972 51 Ronald Dworkin, Taking Rights Seriously, Duckworth (1977) 52 Ibid, at page xi 53 Ibid, at page 199 54 Ibid, at page 203 55 Ibid, at page 204 56 Ibid, at page 205 57 Ibid, at page 147 58 (1973) 1 SCC 471 59 Ibid, at page 476 (para 20) 60 Ibid, at page 479 (para 31) 61 (1975) 2 SCC 148 62 381 US 479 (1965) 63 410 US 113 (1973) 64 277 US 438 (1928) 65 Supra note 6, at page 155 (para 20) 66 Ibid, at page 155 (para 22) 67 Ibid, at page 156 (para 23) 68 Ibid, at page 156 (para 24) 69 Ibid, at page 157 (para 28) 70 Ibid, at page 157-158 (para 31) 71 (1981) 1 SCC 420 72 Ibid, at pages 424-425 (para 6) 73 Ibid, at page 426 (para 9) 74 (1991) 1 SCC 57 75 Ibid, at pages 62-63 (para 8) 76 (1992) 3 SCC 637 77 (1985) 1 SCC 641 78 (1994) 6 SCC 632 79 Ibid, at pages 639-640 (para 9) 80 Ibid, at page 643 (para 13) 81 Ibid, at pages 649-650 (para 26) 82 Ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ples, Injunctions and Compensation, Eastern Book Company (2014), for a comprehensive account on the right to privacy and privacy laws in India. 154 (1965) 1 SCR 933 155 (1973) 4 SCC 225 156 (1980) 3 SCC 526 157 Ibid, at pages 529-530 (para 1) 158 Ibid, at page 537 (para 21) 159 (1981) 1 SCC 608 160 Ibid, at page 618 (para 6) 161 Ibid, at page 618 (para 7) 162 Ibid, at pages 618-619 (para 8) 163 (1984) 3 SCC 161 164 Ibid, at page 183 (para 10) 165 (1994) 6 SCC 260 166 Ibid, at pages 262-263 (para 10) 167 Ibid, at pages 271 (para 37) 168 (2006) 8 SCC 212 169 Ibid, at page 243-244 (para 26) 170 Ibid, at pages 247-248 (para 42) 171 (2010) 3 SCC 786 172 Ibid, at page 376 (para 244) 173 (2012) 8 SCC 1 174 (2015) 6 SCC 702 175 Ibid, at page 713 (para 14) 176 (2016) 7 SCC 761 177 Aharon Barak, Human Dignity- The Constitutional Value and the Constitutional Right, Cambridge University Press (2015) 178 Supra Note 176, at page 792 (para 37) 179 (1967) 2 SCR 762 180 Ibid, at page 788 181 Ibid, at page 789 182 Supra note 155, at page 367-368 (para 300) 183 Ibid, at page 366 (para 292) 184 Ibid, at page 454 (para 582) 185 Ibid, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hts take precedence over rules of common law or equity, and over most subordinate legislations. The Act, thereby, protects the right to privacy, which has been provided under Article 8 (1) of the ECHR. See Ben Emmerson et al. (ed), Human Rights and Criminal Justice, Sweet & Maxwell (2000). See also "Concerns and Ideas about the Developing English Law of Privacy", Institute of Global Law, available online at http://www.ucl.ac.uk/laws/global_law/publications/institute/docs/privacy_100804.pdf. 236 [2004] 2 AC 457 237 [2003] QB 195 238 [2006] QB 125 239 [2006] EWCA Civ 1776 240 [2008] 3 WLR 1360 241 [2011] UKSC 21 242 [2015] UKSC 42 243 [2016] UKSC 26 244 In English law, an anonymised injunction is "an interim injunction which restrains a person from publishing information which concerns the applicant and is said to be confidential or private where the names of either or both of the parties to the proceedings are not stated". See "Report of the Committee on Super-Injunctions: Super-Injunctions, Anonymised Injunctions and Open Justice" (2011), available online at https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Reports/super-injunction-report-20052011.pd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Material Preservation Act, 1974 on the ground that it violated his right of privacy, as there would be intrusion through the screening of his documents. Nixon's plea was rejected by the Court, which held held that "any intrusion [against privacy] must be weighed against the public interest". 269 565 US 400 (2012) 270 569 US 1 (2013) 271 573 US __ (2014) 272 576 US __ (2015) 273 1996 (3) SA 262 (A) 274 1996 (2) SA 751 (CC) 275 1999 (1) SA 6 (CC) 276 2001 (1) SA 545 (CC) 277 2006 (1) SA 524 (CC). 278 2007 (5) SA 250 (CC). 279 Section 8 of the Charter provides as follows: "Everyone has the right to be secure against unreasonable search or seizure." 280 Section 7 of the Canadian Charter deals with life, liberty and security of person and states that: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." 281 In Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 SCR 773, the Supreme Court of Canada recognised the Privacy Act as having a "quasi-constitutional" status, as it is "closely linked to the va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ana Law Journal (Fall 1971), Vol. 47(1), at pages 8-9 306 Supra note 301 307 Judith Jarvis Thomson, "The Right to Privacy" , Philosophy and Public Affairs (1975), Vol. 4, at pages 295-314, as cited in Supra note 301 308 Richard Posner, The Economics of Justice, Harvard University Press (1981), as cited in Supra note 301 309 Robert Bork, The Tempting of America : The Political Seduction of the Law, Simon and Schuster (1990), as cited in Supra note 301 310 Supra note 301 311 Ibid 312 Catherine MacKinnon, Toward a Feminist Theory of the State, Harvard University Press (1989), as cited in Supra note 301 313 Westin's categorization of privacy is based on the specific values which it sub-serves. Westin has drawn support from the distinction made in 1960 by William L. Prosser for the purposes of civil privacy violations or torts, Westin adopted a value based approach, unlike the harms based approach of Prosser. For Prosser's work, see William L. Prosser, "Privacy", California Law Review (1960), Vol. 48(3), pages 383-423. 314 Bert-Jaap Koops et al., "A Typology of Privacy", University of Pennsylvania Journal of International Law (2017), Vol. 38, Issue 2, at page 496 315 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 747 (1932) 356 NLRB v Jones & Laughlin Stell Corp. (1937); West Coast Hotel Co. v Parrish, 300 US 379, 57 S. Ct. 578, 81 L.Ed. 703 (1937) 357 B. Shiva Rao, The Framing of India's Constitution: A Study, Indian Institute of Public Administration (1968), at page 235. See also B. Shiva Rao, The Framing of India's Constitution, Vol. 2, at pages 20-36, 147-153 358 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1966), at page103 359 Constituent Assembly Debates, Vol. 7 (6th December 1948), available at http://parliamentofindia.nic.in/ls/debates/vol7p20b.htm 360 Ibid 361 Granville Austin (Supra note 358), at page 105 362 Ibid, at pages 105-106 363 Constituent Assembly Debates, Vol. 7 (13th December 1948), available at http://parliamentofindia.nic.in/ls/debates/vol7p25a.htm 364 Gopalan (Supra note 3), at pages 60-61 (para 77) 365 Maneka (Supra note 5), at page 323 (para 48) 366 Ibid, at page 284 (para 7) 367 Ibid, at page 338 (paras 82 and 85) 368 (1978) 4 SCC 494 369 Ibid, at pages 574-575 (para 228) 370 Ibid, at page 518 (para 52) 371 (1980) 2 SCC 684 372 Ibid, at page 730 (para 136) 373 (1982) 3 SCC 24 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a and Society (2017), at page 1 394 Ibid, at pages 1 and 4 395 Ibid, at page 4 396 Christina P. Moniodis, "Moving from Nixon to NASA: Privacy 's Second Strand- A Right to Informational Privacy", Yale Journal of Law and Technology (2012), Vol. 15 (1), at page 159. The article attributes Daniel Solove's work on privacy as- Daniel J. Solove, Understanding Privacy 70 (2008). 397 Ibid, at page 156 398 Yvonne McDermott, "Conceptualizing the right to data protection in an era of Big Data", Big Data and Society (2017), at page 4. 399 Richard A. Posner, "Privacy, Surveillance, and Law", The University of Chicago Law Review (2008), Vol.75, at page 251 400 Ibid 401 Ibid 402 See in this connection, Jeffrey M. Skopek, "Reasonable Expectations of Anonymity", Virginia Law Review (2015), Vol.101, at pages 691-762 403 "Report of the Group of Experts on Privacy" (16 October, 2012), Government of India, available at http://planningcommission.nic.in/reports/genrep/rep_privacy.pdf JUDGMENT Chelameswar, J. 1. I have had the advantage of reading the opinion of my learned brothers Justice Nariman and Justice Chandrachud. Both of them in depth dealt with various questions that are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n". Originally the rule was invoked only against oral evidence. But the judgment in Boyd v. United States5, extended the rule even to documents procured during the course of a constitutionally impermissible search6. This Court refused to read the principle enunciated in Boyd into Article 20(3) on the ground: "we have nothing in our Constitution corresponding to the Fourth Amendment". This Court held that the power of search and seizure is "an overriding power of the State for the protection of social security". It further held that such power (1) "is necessarily regulated by law"; and (2) Since the Constitution makers have not made any provision "analogous to the American Fourth Amendment", such a requirement could not be read into Article 20(3). It was in the said context that this Court referred to the right of privacy: "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 Ameri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereas the minority opined the impugned regulation is in its entirety unconstitutional. The Court was invited to examine whether the impugned regulations violated the fundamental rights of Kharak Singh guaranteed under Articles 21 and 19(1)(d). In that context, this Court examined the scope of the expression 'personal liberty' guaranteed under Article 21. Majority declared that the expression "personal liberty" occurring under Article 21: "is used in the Article as 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 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." 9. The Kharak Singh majority opined that the impugned regulation insofar as it provided for 'domiciliary visits' is plainly "violative of Article 21". The majority took note of the American decision in Wolf v. Colorado, 338 US 25 wherein it was held that State lacks the authority to sanction "incursion into privacy" of citizens. Such a power would run counter to the guarant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly the antithesis of physical restraint or coercion, opined that in modern world coercion need not only be physical coercion but can also take the form of psychological coercion; (iii) "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."; (iv) Though "our Constitution does not expressly declare the right to privacy as a fundamental right", "the said right is an essential ingredient of personal liberty". In substance Kharak Singh declared that the expression "personal liberty" in Article 21 takes within its sweep a bundle of rights. Both the majority and minority are ad idem on that conclusion. The only point of divergence is that the minority opined that one of the rights in the bundle is the right of privacy. In the opinion of the minority the right to privacy is "an essential ingredient of personal liberty". Whereas the majority opined that "the right of privacy is not a guaranteed right under our Constitution", and therefore the same cannot be read into Article 21.16 12. I am of the opinion that the approach adopted by the majority is illogical and against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the administration of the State unduly cumbersome. Fortunately, this Court did not adopt such a rule of interpretation barring exceptions like Gopalan (supra) and ADM Jabalpur21. Else, this Court could not have found the freedom of press under Article 19(1)(a) and the other rights22 which were held to be flowing from the guarantee under Article 21. Romesh Thappar23 and Sakal Papers (supra) are the earliest acknowledgment by this Court of the existence of Constitution's dark matter. The series of cases in which this Court subsequently perceived various rights in the expression 'life' in Article 21 is a resounding confirmation of such acknowledgment. 14. The U.S. VIth Amendment confers a "right to speedy and public trial" to the accused, the right "to be informed of the nature and cause of the accusation", the right to have the "assistance of counsel for his defence" etc. None of those rights are expressed in the text of our Constitution. Nonetheless, this Court declared these rights as implicit in the text of Articles 14 or 21. The VIIIth Amendment24 of the American Constitution contains stipulations prohibiting excessive bails, fines, cruel and unusual punishments etc. Cruel punis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e right of privacy are much larger and were not fully examined. The question whether the expression 'liberty' in Article 21 takes within its sweep the various aspects of the right of privacy was also not debated. The submissions before us revolve around these questions. Petitioners assert that the right to privacy is a part of the rights guaranteed under Article 19 and 21 and other Articles. 18. The Constitution of any country reflects the aspirations and goals of the people of that country voiced through the language of the few chosen individuals entrusted with the responsibility of framing its Constitution. Such aspirations and goals depend upon the history of that society. History invariably is a product of various forces emanating from religious, economic and political events35. The degree of refinement of the Constitution depends upon the wisdom of the people entrusted with the responsibility of framing the Constitution. Constitution is not merely a document signed by 284 members of the Constituent Assembly. It is a politically sacred instrument created by men and women who risked lives and sacrificed their liberties to fight alien rulers and secured freedom for our people, n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of non-citizens (both the classes of persons could be collectively referred to as SUBJECTS for the sake of convenience). Such rights came to be described as "basic", "primordial", "inalienable" or "fundamental" rights. Such rights are a protective wall against State's power to destroy the liberty of the SUBJECTS. Irrespective of the nomenclature adopted in different countries, such rights are believed in all democratic countries39 to be rights which cannot be abridged or curtailed totally by ordinary legislation and unless it is established that it is so necessary to abridge or curtail those rights in the larger interest of the society. Several Constitutions contain provisions stipulating various attendant conditions which any legislation intending to abridge such (fundamental) rights is required to comply with. 21. Provisions of any written Constitution create rights and obligations, belonging either to individuals or the body politic as such. For example, the rights which are described as fundamental rights in Chapter-III of our Constitution are rights of individuals whereas provisions of dealing with elections to legislative bodies create rights collectively in the body polit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view (in Kharak Singh) must be regarded as correct and the majority view must be held to be overruled. Consequently, it was held that any law which deprives any person of the liberty guaranteed under Article 21 must not only be just, fair and reasonable, but must also satisfy that it does not at the same time violate one or some of the other fundamental rights enumerated under Article 19, by demonstrating that the law is strictly in compliance with one of the corresponding clauses 2 to 6 of Article 19.42 26. In Kharak Singh, Ayyangar, J. speaking for the majority held that the expression 'personal liberty' used in Article 21 is a "compendious term to include within itself all varieties of rights which" constitute the "personal liberties of a man other than those specified in the several clauses of Article 19(1)." In other words, Article 19(1) deals with particular "species or attributes of personal liberty" mentioned in Article 1. "Article 21 takes in and comprises the residue." Such a construction was not accepted by the minority. The minority opined that both Articles 19 and 21 are independent fundamental rights but they are overlapping.43 27. An analysis of Kharak Singh revea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enumerated freedoms only to achieve the purposes indicated in the corresponding clauses (2) to (6) of Article 19.46 It must be remembered that the authority of the State to deprive any person of the fundamental right of liberty is textually unlimited as the only requirement to enable the State to achieve that result is to make a 'law'. When it comes to deprivation of the freedoms under Article 19(1), the requirement is: (a) that there must not only be a law but such law must be tailored to achieve the purposes indicated in the corresponding sub-Article47; and (b) to declare that the various facets of liberty enumerated in Article 19(1) are available only to the citizens of the country but not all SUBJECTS.48 As it is now clearly held by this Court that the rights guaranteed under Articles 14 and 21 are not confined only to citizens but available even to non-citizens aliens or incorporated bodies even if they are incorporated in India etc. 29. The inter-relationship of Article 19 and 21, if as understood by me, as stated in para 28, the authority of the State to deprive any person of his liberty is circumscribed by certain factors; (1) It can only be done under the authority of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utionally protected claims of the right of privacy. 33. I am of the opinion that for answering the present reference, this Court is only concerned with the question whether SUBJECTS who are amenable to the laws of this country have a Fundamental Right of Privacy against the State51. The text of the Constitution is silent in this regard. Therefore, it is required to examine whether such a right is implied in any one or more of the Fundamental Rights in the text of the Constitution. 34. To answer the above question, it is necessary to understand conceptually identify the nature of the right to privacy. 35. My learned brothers have discussed various earlier decisions of this Court and of the Courts of other countries, dealing with the claims of the Right of Privacy. International Treaties and Conventions have been referred to to establish the existence and recognition of the right to privacy in the various parts of the world, and have opined that they are to be read into our Constitution in order to conclude that there exists a Fundamental Right to privacy under our Constitution. While Justice Nariman opined - "94. This reference is answered by stating that the inalienable fundame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o privacy is part of the liberty guaranteed by our Constitution. 37. History abounds with examples of attempts by governments to shape the minds of SUBJECTS. In other words, conditioning the thought process by prescribing what to read or not to read; what forms of art alone are required to be appreciated leading to the conditioning of beliefs; interfering with the choice of people regarding the kind of literature, music or art which an individual would prefer to enjoy.54 Such conditioning is sought to be achieved by screening the source of information or prescribing penalties for making choices which governments do not approve.55 Insofar as religious beliefs are concerned, a good deal of the misery our species suffer owes its existence to and centres around competing claims of the right to propagate religion. Constitution of India protects the liberty of all SUBJECTS guaranteeing56 the freedom of conscience and right to freely profess, practice and propagate religion. While the right to freely "profess, practice and propagate religion" may be a facet of free speech guaranteed under Article 19(1)(a), the freedom of the belief or faith in any religion is a matter of conscience falli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lm of the right of privacy, such data is as personal as that of the choice of appearance and apparel. Telephone tappings and internet hacking by State, of personal data is another area which falls within the realm of privacy. The instant reference arises out of such an attempt by the Union of India to collect bio-metric data regarding all the residents of this country. The above-mentioned are some of the areas where some interest of privacy exists. The examples given above indicate to some extent the nature and scope of the right of privacy. 40. I do not think that anybody in this country would like to have the officers of the State intruding into their homes or private property at will or soldiers quartered in their houses without their consent. I do not think that anybody would like to be told by the State as to what they should eat or how they should dress or whom they should be associated with either in their personal, social or political life. Freedom of social and political association is guaranteed to citizens under Article 19(1)(c). Personal association is still a doubtful area.61 The decision making process regarding the freedom of association, freedoms of travel and res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sly provided under Article 19. However, the possibility of a privacy claim being entirely traceable to rights other than Art. 21 is bleak. Without discounting that possibility, it needs to be noted that Art. 21 is the bedrock of the privacy guarantee. If the spirit of liberty permeates every claim of privacy, it is difficult if not impossible to imagine that any standard of limitation, other than the one under Article 21 applies. It is for this reason that I will restrict the available options to the latter two from the above described four. 45. The just, fair and reasonable standard of review under Article 21 needs no elaboration. It has also most commonly been used in cases dealing with a privacy claim hitherto.64 Gobind resorted to the compelling state interest standard in addition to the Article 21 reasonableness enquiry. From the United States where the terminology of 'compelling state interest' originated, a strict standard of scrutiny comprises two things- a 'compelling state interest' and a requirement of 'narrow tailoring' (narrow tailoring means that the law must be narrowly framed to achieve the objective). As a term, compelling state interest does not have definite con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the American Constitution: "No person ……..shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law …" 5 116 US 616 6 A search in violation of the safeguards provided under the Fourth Amendment - "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." 7 In Griswold v. Connecticut, 381 US 479, Douglas, J who delivered the opinion of the Court opined that the I, II, IV, V and IX Amendments creates zones of privacy. Goldberg, J. opined that even the XIV Amendment creates a zone of privacy. This undoubtedly grounds a right of privacy beyond the IV amendment. Even after Griswold, other cases like Roe v. Wade, 410 U.S. 113 (1973) have made this point amply clear by sourcing a constitutional right of privacy from sources other than the IV amendment. 8 Frankfurter, J. 9 Murphy, J. 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on his earlier work titled 'Constitutional Fate'), Philip Bobbitt categorizes the six approaches to interpretation of Constitutions as historical, textual, prudential, doctrinal, structural, and ethical. The latter four approaches treat the text as less determinative than the former two approaches). This court has progressively adopted a living constitutionalist approach. Varyingly, it has interpreted the Constitutional text by reference to Constitutional values (liberal democratic ideals which form the bedrock on which our text sits); a mix of cultural, social, political and historical ethos which surround our Constitutional text; a structuralist technique typified by looking at the structural divisions of power within the Constitution and interpreting it as an integrated whole etc. This court need not, in the abstract, fit a particular interpretative technique within specific pigeonholes of a living constitutionalist interpretation. Depending on which particular source is most useful and what the matter at hand warrants, the court can resort to variants of a living constitutionalist interpretation. This lack of rigidity allows for an enduring constitution. The important criti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." 25 Mithu Etc. Vs. State of Punjab Etc. Etc., AIR 1983 SC 473 - "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." 26 Olga Tellis Vs. Bombay Municipal Corporation (1985) 3 SCC 545 27 Mohini Jain Vs. State of Karnataka (1992) 3 SCC 666, Unnikrishnan J.P. Vs. State of Andhra Pradesh (1993) 1 SCC 645 28 Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (1997) 7 SCC 622 29 State of Bihar Vs. Lal Krishna Advani (2003) 8 SCC 361 30 Shantistar Builders Vs. Narayan Khimalal Totame (1990) 1 SCC 520, M.C. Mehta Vs. Kamal Nath (2000) 6 SCC 2013 31 Satwant Singh Sawhney Vs. Asst. Passport Officer 1967 (3) SCR 525, 32 In Re. Hussainara Khatoon & Ors. Vs. Home Secretary, Home Secretary, Bihar (1980) 1 SCC 81 33 Vatheeswaran, T.V. Vs. State of T.N. (1983) 2 SCC 68 34 Devika Biswas Vs. Union of India (2016) 10 SCC 726 35 However, various forces which go into the making of history are dyn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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". The minority judges, however, disagreed with this view taken by the majority and explained their position in the following words : "No doubt the expression 'personal liberty' is a comprehensive one and the right to move freely is an attribute of personal liberty. It is said that the freedom to move freely is carved out of personal liberty and, therefore, the expression 'personal liberty' in Article 21 excludes that attribute. In our view, this is not a correct approach. Both are independent fundamental rights, though there is overlapping. There is no question of one being carved out of another. The fundamental right of life and personal liberty has many attributes and some of them are found in Article 19. If a person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttysburg Speech 45 That was exactly the State's submission in A.K. Gopalan's case which unfortunately found favour with this Court. 46 (2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence (3) Nothing in sub clause (b) 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 sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub clause (4) Nothing in sub clause (c) 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 sovereignty and integrity of India or pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Oxford, 2015). 51 It is a settled principle of law that some of the Fundamental Rights like 14 and 29 are guaranteed even to noncitizens 52Griswold v Connecticut 381 US 479 (1965) 487. 53 Gary Bostwick, 'A Taxonomy of Privacy: Repose, Sanctuary, and Intimate Decision' (1976) 64 California Law Review 1447. 54 Stanley Vs. Georgia, 394 U.S. 557 (1969) - that the mere private possession of obscene matter cannot constitutionally be made a crime…. ……State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds. 55 (1986) 3 SCC 615, Bijoe Emmanuel & Ors vs State Of Kerala & Others 56 25. Freedom of conscience and free profession, practice and propagation of religion.- (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e graveness of the right at stake, the court adopts a correspondingly rigorous standard of scrutiny. 64 District Registrar & Collector, Hyderabad v Canara Bank AIR 2005 SC 186; State of Maharashtra v Bharat Shanti Lal Shah (2008) 13 SCC 5. JUDGMENT S. A. Bobde, J. The Origin of the Reference 1. This reference calls on us to answer questions that would go to the very heart of the liberty and freedom protected by the Constitution of India. It arises in the context of a constitutional challenge to the Aadhaar project, which aims to build a database of personal identity and biometric information covering every Indian - the world's largest endeavour of its kind. To the Petitioners' argument therein that Aadhaar would violate the right to privacy, the Union of India, through its Attorney General, raised the objection that Indians could claim no constitutional right of privacy in view of a unanimous decision of 8 Judges of this Court in M.P. Sharma v. Satish Chandra1 and a decision by a majority of 4 Judges in Kharak Singh v. State of Uttar Pradesh2. 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 ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se before us. The Effect of M.P. Sharma and Kharak Singh 4. The question of whether Article 21 encompasses a fundamental right to privacy did not fall for consideration before the 8 Judges in the M.P. Sharma Court. Rather, the question was whether an improper search and seizure operation undertaken against a company and its directors would violate the constitutional bar against testimonial compulsion contained in Article 20(3) of the Constitution. This Court held that such a search did not violate Article 20(3). Its reasoning proceeded on the footing that the absence of a fundamental right to privacy analogous to the Fourth Amendment to the United States' constitution in our own constitution suggested that the Constituent Assembly chose not to subject laws providing for search and seizure to constitutional limitations. Consequently, this Court had no defensible ground on which to import such a right into Article 20(3), which was, at any event, a totally different right. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of personal liberty, to have this character. Such a view would have been wholly untenable in the AK Gopalan era. 8. M.P. Sharma also predates the practice of the judicial enumeration of rights implicit in a guarantee instantiated in the constitutional text. As counsel for the Petitioners correctly submitted, there is a whole host of rights that this court has derived from Article 21 to evidence that enumeration is a well-embedded interpretative practice in constitutional law. Article 21's guarantee to the right to 'life' is home to such varied rights as the right to go abroad (Maneka Gandhi v. Union of India), the right to livelihood (Olga Tellis v. Bombay Municipal Corporation10) and the right to medical care (Paramanand Katara v. Union of India11). 9. Therefore, nothing in M.P. Sharma and Kharak Singh supports the conclusion that there is no fundamental right to privacy in our Constitution. These two decisions and their inconclusiveness on the question 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... monarchies, concentrated the power of the government in the person of the king. English common law, whether it is expressed in the laws of the monarch and her Parliament, or in the decisions of the Courts, is the source of what the Attorney General correctly takes to be our own common law. Semayne's case16, in which it was affirmed that a man's home is his castle and that even the law may only enter it with warrant, clearly shows that elements of the natural right of privacy began to be received into the common law as early as in 1604. Where a natural law right could not have been enforced at law, the common law right is evidently an instrument by which invasions into the valued interest in question by one's fellow man can be addressed. On the very same rationale as Seymayne, Chapter 17 of the Indian Penal Code, 1860, treats trespass against property as a criminal offence17. 14. With the advent of democracy and of limited constitutional government 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw as a final and absolute body of doctrine declaring these individual natural rights; this theory of constitutions as declaratory of common law principles, which are also natural-law principles, anterior to the State and of superior validity to enactments by the authority of the state; this theory of Constitutions as having for their purpose to guarantee and maintain the natural rights of individuals against the Government and all its agencies.In effect, it set up the received traditional social, political, and economic ideals of the legal profession as a superconstitution, beyond the reach of any agency but judicial decision." (Emphasis supplied) This Court also recognizes the true nature of the relation between the citizen and the state as well as the true character and utility of Part III. Accordingly, in People's Union of Civil Liberties v. Union of India20, it has recently been affirmed that the objective of Part III 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 powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on which to do so. 20. The existence of zones of privacy is felt instinctively by all civilized people, without exception. The best evidence for this proposition lies in the panoply of activities through which we all express claims to privacy in our daily lives. We lock our doors, clothe our bodies and set passwords to our computers and phones to signal that we intend for our places, persons and virtual lives to be private. An early case in the Supreme Court of Georgia in the United States describes the natural and instinctive recognition of the need for privacy in the following terms: "The right of privacy has its foundation in the instincts of nature. It is recognized intuitively, consciousness being the witness that can be called to establish its existence. Any person whose intellect is in a normal condition recognizes at once that as to each individual member of society there are matters private and there 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 inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy must also mean the effective guarantee of a zone of internal freedom in which to think. The disconcerting effect of having another peer over one's shoulder while reading or writing explains why individuals would choose to retain their privacy even in public. It is important to be able to keep one's work without publishing it in a condition which may be described as private. The vigour and vitality of the various expressive freedoms guaranteed by the Constitution depends on the existence of a corresponding guarantee of cognitive freedom. 23. Even in the ancient and religious texts of India, a well-developed sense of privacy is evident. A woman ought not to be seen by a male stranger seems to be a well-established rule in the Ramayana. Grihya Sutras prescribe the manner in which one ought to build one's house in order to protect the privacy of its inmates and preserve its sanctity during the performance 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty and freedom, as indeed the right to privacy is, must itself be regarded as a fundamental right. 27. Though he did not use the name of 'privacy', it is clear that it is what J.S. Mill took to be indispensable to the existence of the general reservoir of liberty that democracies are expected to reserve to their citizens. In the introduction to his seminal On Liberty (1859), he characterized freedom in the following way: "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber of occasions, beginning with the Constitution Bench in Sunil Batra (I) v. Delhi Administration35. Sunil Batra connected this view of Article 21 to the constitutional value of dignity. In numerous cases, including Francis Coralie Mullin v. Administrator, Union Territory of Delhi36, this Court has viewed liberty as closely linked to dignity. Their relationship to the effect of taking into the protection of 'life' the protection of "faculties of thinking and feeling", and of temporary and permanent impairments to those faculties. In Francis Coralie Mullin, Bhagwati, J. opined as follows37: "Now obviously, the right to life enshrined in Article 21 cannot be restricted to mere animal existence. It means something much more than just physical survival. In Kharak Singh v. State of Uttar Pradesh, Subba Rao J. quoted with approval the following passage from the judgment 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o think, read and write in private and is often exercised in a state of privacy, to the exclusion of those not intended to be spoken to or communicated with. A peaceful assembly requires the exclusion of elements who may not be peaceful or who may have a different agenda. The freedom to associate must necessarily be the freedom to associate with those of one's choice and those with common objectives. The requirement of privacy in matters concerning residence and settlement is too well-known to require elaboration. Finally, it is not possible to conceive of an individual being able to practice a profession or carry on trade, business or occupation without the right to privacy in practical terms and without the right and power to keep others away from his work. 32. Ex facie, privacy is essential to the exercise of freedom of conscience and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luded the right to privacy: "30. The following rights are held to be covered under Article 21: 1. The right to go abroad. Satwant Singh v. D. Ramarathnam A.P. O., New Delhi (1967) 3 SCR 525. 2. The right to privacy. Gobind v. State of M.P.., (1975)2 SCC 148. In this case reliance was placed on the American decision in Griswold v. Connecticut, 381 US 479 at 510. 3. The right against solitary confinement. Sunil Batra v. Delhi Administration, (1978) 4 SCC 494 at 545. 4. The right against bar fetters. Charles Sobhraj v. Supdt. (Central Jail0, (1978)4 SCR 104 5. The right to legal aid. MH Hoskot v. State of Maharashtra, (1978) 3 SCC 544. 6. The right to speedy trial. Hussainara Khatoon v. Home Secy, State of Bihar, (1980)1 SCC81 7. The right against hand cuffing. Prem Shankar v. Delhi Administration (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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... priate to recognize privacy as a fundamental right. This argument cannot be accepted any more in the context of a fundamental right to privacy than in the context of any other fundamental right. Several legislations protect and advance fundamental rights, but their existence does not make the existence of a corresponding fundamental right redundant. This is obviously so because legislations are alterable and even repealable unlike fundamental rights, which, by design, endure. 40. Shri Rakesh Dwivedi, appearing for the State of Gujarat, while referring to several judgments of the Supreme Court of the United States, submitted that only those privacy claims which involve a 'reasonable expectation of privacy' be recognized as protected by the fundamental right. It is not 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se and specify exists, whether directly in its manifestation in the rights bearer's actions, or otherwise. 44. Such a formulation would exclude three recurring red herrings in the Respondents' arguments before us. Firstly, it would not admit of arguments that privacy is limited to property or places. So, for example, taking one or more persons aside to converse at a whisper even in a public place would clearly signal a claim to privacy, just as broadcasting one's words by a loudspeaker would signal the opposite intent. Secondly, this formulation would not reduce privacy to solitude. Reserving the rights to admission at a large gathering place, such as a cinema hall or club, would signal a claim to privacy. Finally, neither would such a formulation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1989) 4 SCC 286 12 (1975) 2 SCC 148 13 PJ FITZGERALD, SALMOND ON JURISPRUDENCE 217 (Twelfth Edition, 1966) 14 ROSCOE POUND, THE SPIRIT OF THE COMMON LAW 88 (1921) 11 15 Id., at p. 92 16 (1604) 5 Coke 91 17 Several other pre-constitutional enactments which codify the common law also acknowledge a right to privacy, both as between the individuals and the government, as well as between individuals inter se. These include: 1. S. 126-9, The Indian Evidence Act, 1872 (protecting certain classes of communication as privileged) 2. S. 4, The Indian Easements Act, 1882 (defining 'easements' as the right to choose how to use and enjoy a given piece 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the observations made in M.P. Sharma (supra) and Kharak Singh (supra) are to be read literally and accepted as the law of this country, the fundamental rights guaranteed under the Constitution of India and more particularly right to liberty under Article 21 would be denuded of vigour and vitality. At the same time, we are also of the opinion that the institutional integrity and judicial discipline require that pronouncement made by larger Benches of this Court cannot be ignored by the smaller Benches without appropriately explaining the reasons for not following the pronouncements made by such larger Benches. With due respect to all the learned Judges who rendered the subsequent judgments-where right to privacy is asserted or referred to their Lordships concern for the liberty of human beings, we are of the 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 correctn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of today. Further, according to him, State action that violates the fundamental right to privacy must contain at least four elements, namely: • "The action must be sanctioned by law; • The proposed action must be necessary in a democratic society for a legitimate aim; • The extent of such interference must be proportionate to the need for such interference; • There must be procedural guarantees against abuse of such interference." 5. Shri P.V. Surendra Nath, appearing on behalf of the State of 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inly be included as a fundamental right. According to him, Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148, did not state that there was any fundamental right to privacy and the later judgments which referred only to Gobind (supra) as laying down such a right are incorrect for this reason. 9. Shri Rakesh Dwivedi, learned senior counsel appearing for the State of Gujarat, has argued that both the petitioners as well as the learned Attorney General have taken extreme positions. According to him, the petitioners 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents of the learned Attorney General and has gone on to state that even the U.S. Supreme Court no longer uses the right to privacy to test laws that were earlier tested on this ground. Any right to privacy is conceptually unsound, and only comprehensive data protection legislation can effectively address concerns of data protection and privacy. The Government of India is indeed alive to the need for such a law. He further argued that privacy as a concept is always 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) thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld wish to live an hour." 15. This statement of the law was echoed in Entick v. Carrington, 95 ER 807 (1765), in which Lord Camden held that an illegal search warrant was "subversive of all the comforts of society" and the issuance of such a warrant for the seizure of all of a man's papers, and not only those alleged to be criminal in nature, was "contrary to the genius of the law of England." A few years later, in Da Costa v. Jones, 98 ER 1331 (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 Har ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India. But then, there were Judges who had vision and dissented from their colleagues. This judgment will refer to three great dissents by Justices Fazl Ali, Subba Rao and Khanna. 19. Charles Evans Hughes, before he became the Chief Justice of the United States and while he was still a member of the New York Court of Appeals, delivered a set of six lectures at Columbia University.2 The famous passage oft quoted in many judgments 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 institutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hief of this Section and the staff drafted the Constitution with the help of American constitutional lawyers who were called to assist the Government Section in the task. This Constitution, as a learned writer has remarked, bore on almost every page evidences of its essentially Western origin, and this characteristic was especially evident in the preamble "particularly reminiscent of the American Declaration of Independence, a preamble 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 Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh we are not bound to adopt the construction put on "law" or "due process of law" in America, yet since a number of eminent American Judges have devoted much thought to the subject, I am not prepared to hold that we can derive no help from their opinions and we should completely ignore them." (at pages 159-161) He also went on to state that "law" in Article 21 means "valid law". On all counts, his words 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al rights, and so read not only has the procedure established by law to be just, fair and reasonable, but also the law itself has to be reasonable as Articles 14 and 19 have now to be read into Article 21. [See: at SCR pp. 646-648 per Beg, CJ., at SCR pp. 669, 671-674 and 687 per Bhagwati, J. and at SCR pp. 720-723 per Krishna Iyer, J.]. Krishna Iyer, J. set out the new doctrine with remarkable 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 proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) the collection and record on a history-sheet of all information bearing on conduct." 24. All 6 Judges struck down sub-para (b), but Subba Rao, J. joined by Shah, J., struck down the entire Regulation as violating the individual's right to privacy in the following words: "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) 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 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his production in compliance therewith constitutes a testimonial act by him within the meaning of article 20(3) as above explained. But 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." "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hest Courts in the U.K. and the U.S in this behalf. At one extreme stands the United Kingdom, which states that international treaties are not a part of the laws administered in England. At the other end of the spectrum, Article VI of the U.S. Constitution declares: "xxx xxx xxx This 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Human Rights Act, 1993 is of considerable significance and accepts the importance of issues relating to human rights with a view, inter alia, to bring accountability and transparency in human rights jurisprudence. The Statement 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceable by courts in India. Thus, if a person has been guaranteed certain rights either under the Constitution or under an International Covenant or under a law, and he is denied access to such a right, 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 observation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Fourth Amendment, there was a distinction between legal and illegal searches and seizures and that such a distinction need not be imported into our Constitution. The 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. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his article? This question incidentally came up for discussion in some of the judgments in A.K. Gopalan v. State of Madras (AIR 1950 SC 27: 1950 SCR 88: 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, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upholding sub-clauses (c), (d) and (e) of Regulation 236, the Court stated (at page 351): "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." 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution of India. As will be pointed out later in this judgment, our judgments expressly recognize that the Constitution governs 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ysical realm and interests pertaining to the mind. As case law, both in the U.S. and India show, this concept has travelled far 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nformation to the police is by engaging in drastic discipline, the kind of discipline of life under 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 financ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and convicted under a Georgia statute for knowingly having possession of obscene 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 fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Constitution, it should not be regarded as a fundamental right. 51. Shri Sundaram'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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te with a recognition of the right to privacy, and Shri Tushar Mehta cited provisions of 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. Fun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'reasonable,' " id., at 361, 88 S.Ct. 507, bear an uncanny resemblance to those 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voluntarily parted with, no right to privacy exists. As has been held by us, 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC 104, a Constitution Bench stated as follows: "This apart, the interpretation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be determined by recourse to a dictionary, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to and 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution 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 U.S. 479 (19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 possible to be heard in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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, motherhood, child- bearing and education among other matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iament 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 established by law". 18. The right to privacy-by itself-has not been identified under the Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 duty, the search or taking notes or extracts therefore, cannot be valid. The above safeguards must necessarily be read into the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ostly 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 answer. We must recognise the importance of personal autonomy in aspects such as the choice between remaining silent and speaking. An individual' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 sometimes characterized as protecting "privacy" have in fact involved at least two different kinds of interests. One is the individual interest in avoiding disclosur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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 which does not deal with a person's body but deals with a person's mind, and therefore recognizes that an individual may have control over the dissemination of material that is personal to him. Unauthorised use of such information may, therefore le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedom 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 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 or government; and n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fraternity which assures the dignity of the individual.11 The dignity of the individual encompasses the right of the individual to develop to the full extent of his potential. And this development can only be if an individual has autonomy over fundamental personal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 purpose. "26. Power to intercept postal articles for public good.- (1) On the occurrence of any public emergency, or in the interest of the public safety or tranquility, the Central Government, or a State Government, or any officer specially authorized in this behalf by the Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 arbitrary or unlawful interference with his privacy, family, home and correspondence nor to unlawful attacks on his honour and reputation." 60. This Court in R. Rajagopal, (1994) 6 SCC 632 held as follows: (SCC pp. 649-50, para 26) "(1)… The right to privacy is implicit in the right to life and liberty guaranteed to the citiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ards 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 his reasons in writing before providing the information, because the person from whom information is sought for, has also a right to privacy guaranteed under Article 21 of the Constitution." (at page 112-114) 89. There can be no doubt that counsel for the petitioners are right in their submission that the legislature has also recognized the fundamental right of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iberty 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 the sanctity of life and liberty. They have also given expression in varying words to the principle that no one shall be derived of his life or liberty without the authority of law. The International Commission of Jurists, which is affiliated to UNESCO, has been attempting with, considerable success to give material content to "the rule of law", an expression used in the Universal Declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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 and enforceable by Courts in India are "human rights". And international covenants expressly state that these rights are 'inalienable' as they inhere in persons because they are human beings. In I.R. Coelho (supra), this Court noticed in paragraph 29 that, "The decision in ADM Jabalpur, (1976) 2 SCC 521, about the restrictive reading of the right to life and liberty stood impliedly overruled by various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 conformity with the principles of natural justice. This example is given to demonstrate an instance of expansive interpretation of a fundamental right. The expression 'life' in Article 21 does not connote merely physical or animal existence. The right to life includes right to live with human dignity. This Court has in numerous cases deduced fundamental features which are not specifically mentioned in Part II ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 privacy is an inalienable human right which inheres in every person by virtue of the fact that he or she is a human being. Conclusion 94. This reference is answered by stating that the inalienable fundamental right to privacy resides in Article 21 and other fundamental freedoms contained in Part III of the Constitution of India. M.P. Sharma (supra) and the majority in Kharak Singh (supra), to the extent that they indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Sampathu Chetty, (1962) 3 SCR 786 at 816, a Constitution Bench of this Court, when asked to apply certain American decisions, stated the following: "It would be seen that the decisions proceed on the application of the "due process" clause of the American Constitution. Though the tests of 'reasonableness' laid down by clauses (2) to (6) of Article 19 might in great part coincide with that for judging of 'due process', it must not be assumed that these are ide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ression 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 Uttar Pradesh (1978) 1 SCC 579 at para 8; (5) The right to live with dignity. Jolly George Varghese v. Bank of Cochin (1980) 2 SCC 360 at para 10; (6) The right against handcuffing. Prem Shankar Shukla v. Delhi Administration (1980) 3 SCC 526 at paras 21 and 22; (7) The right against custodial violence. Sheela Barse v. State of Maharashtra (1983) 2 SCC 96 at para 1; (8) The right to compensation for unlawful arrest. Rudul Sah v. State of Bihar (1983) 4 SCC 141 at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Républicaine, 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 paragraph 21, Francis Coralie Mullin v. Administrator, Union Territory of Delhi & Ors., (1981) 1 SCC 608 at paragraphs 6, 7 and 8, Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 at paragraph 10, Maharashtra University of Health Sciences v. Satchikitsa Prasarak Mandal, (2010) 3 SCC 786 at paragraph 37, Shabnam v. Union of India, (2015) 6 SCC 702 atparagraphs 12.4 and 14 and Jeeja Ghosh v. Union of India, (2016) 7 SCC 761 at paragraph 37. 12 Khanna, J. was in line to be Chief Justice of India but was superseded because of this dissenting judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; And to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;" 6) Perusal of the words in the Preamble would go to show that every word used therein was cautiously chosen by the founding fathers and then these words were arranged and accordingly placed in a proper order. Every word incorporated in the Preamble has significance and proper meaning. 7) The most important place of pride was given to the "Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration. 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 citizens on case-to-case basis. 15) It was not possible for the framers of the Constitution to incorporate each and every right be that a natural or common law right of an individual in Part III of the Constitution. Indeed, as we can see whenever occasion arose in the last 50 years to decide as to whether any particular right alleged by the citizen is a fundamental right or not, this Court with the process of judicial interpretation recognized with remarkable clarity several existing natural and common law rights of an individual as fun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution 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 questions can be found in the law laid down in the decided cases of this Court alone and one may not require taking the help of the law laid down by the American Courts. 22) It is true that while interpreting our laws, the English decisions do guide us in reaching to a particular conclusion arising for consideration. The law reports also bear the testimony that this Court especially in its formative years has taken the help of English cases for interpreting the provisions of our Constitution and other laws. 23) However, in the last seven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 great detail the issue in relation to "right to privacy" in the light of Indian and American case law and various international conventions. 31) In Gobind' case, the learned Judge, K.K.Mathew J. speaking for the Bench held and indeed rightly in Para 28 as under: "28. The right to privacy in any event will necessarily have to go through a process of case-by-case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 submissions of the learned senior counsel appearing for all the parties. 38) I entirely agree with their reasoning and the conclusion on question No. 1 and hence do not wish to add anything to what they have said in their respective scholarly opinions. 39) Some learned senior counsel appearing for the petitioners, however, argued that the law laid down by this Court in some earlier decided cases though not referred for consideration be also overruled while answering the questions referred to this Bench whereas so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Universal Declaration of Human Rights to which India is a signatory, recognises privacy as an international human right. 6. The importance of this right to privacy cannot be diluted and the significance of this is that the legal conundrum was debated and is to be settled in the present reference by a nine-Judges Constitution Bench. 7. This reference has arisen from the challenge to what is called the 'Aadhar Card Scheme'. On account of earlier judicial pronouncements, there was a cleavage of opinions and to reconcile this divergence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents 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 automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning that natural person's performance at work, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements5. Such profiling can result in discrimination based on religion, ethnicity and caste. However, 'profiling' can also be used to further public interest and for the benefit of national security. 14. The security environment, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 be used as a tool to exercise control over us like the 'big brother' State exercised. This can have a stultifying effect on the expression of dissent and difference of opinion, which no democracy can afford. 20. Thus, there is an unprecedented need for regulation regarding the extent to which such information can be stored, processed and used by non-state actors. There is also a need for protection of such information from the State. Our Government was successful in compelling Blackberry to give to it the ability to intercept data sent over Blackberry devices. While such interception ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 ideals that are eternal in nature. It is because it houses these values so cherished by mankind that it lives for eternity, as a Divine Chiranjeevi. 31. The Constitution, importantly, was also drafted for the purpose of assisting and at all times supporting this 'peaceful, harmonious and orderly social living'. The Constitution thus lives for the people. Its deepest wishes are that civil society flourishes and there is a peaceful social order. Any change in the sentiments of the people are recognised by it. It seeks to incorporate within its fold all possible civil rights which existed in the past, and those rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... z. 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 nation. It has also to be borne in mind that a Constitution is not a gate but a road. Beneath the drafting of a Constitution is the awareness that things do not stand still but move on, that life of a progressive nation, as of an individual, is not static and stagnant but dynamic and dashful. A Constitution must therefore contain ample provision for experiment and trial in the task of administration. A Constitution, it needs to be emphasised, is not a document for fastidious dialectics but the means of ordering the life of a people. It had (sic) its roots in the past, its continuity is reflected in the present and it is int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustice 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 required to take into consideration their own experience over the time, the international treaties and covenants but also keeping the doctrine of flexibility in mind. This Court times without number has extended the scope and extent of the provisions of the fundamental rights, having regard to several factors including the intent and purport of the Constitution-makers as reflected in Parts IV and IV-A of the Constitution of India." 38. The document itself, though inked in a parched paper of timeless value, never grows old. Its ideals and values forever stay young and energetic, forever changing with the times. It represents the pulse and so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure 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 increased manifold. The observations made in the context of the need for law to change, by Bhagwati, J., as he then was, in National Textile Workers Union Vs. P.R. Ramakrishnan 14 would equally apply to the requirements of interpretation of the Constitution in the present context: "We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 refer to some legal observations in this regard: In Robertson and Nicol on Media Law15 it was observed: "Individuals have a psychological need to preserve an intrusion-free zone for their personality and family and suffer anguish and stress when that zone is violated. Democratic societies must protect privacy as part of their facilitation of individual freedom, and offer some legal support for the individual choice as to what aspects of intimate personal life the citizen is prepared to share with others. This freedom in other words springs from the same source as freedom of expression: a liberty that enhances individual life in a democratic community." 51. Lord Nicholls and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k. 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 boundaries in respect to different relations. Privacy assists in preventing awkward social situations and reducing social frictions. Most of the information about individuals can fall under the phrase "none of your business". On information being shared voluntarily, the same may be said to be in confidence and any breach of confidentiality is a breach of the trust. This is more so in the professional relationships such as with doctors and lawyers which requires an element of candor in disclosure of information. An individual has the right to control one's life while submitting personal data for various facilities and services. It is but essential that the individual knows as to what the data is being used for w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 and other aspects of his/her personal life and identity for commercial purposes without his/her consent.20 59. Aside from the economic justifications for such a right, it is also justified as protecting individual autonomy and personal dignity. The right protects an individual's free, personal conception of the 'self.' The right of publicity implicates a person's interest in autonomous self-definition, which prevents others from interfering with the meanings and values that the public associates with her.21 60. Prosser categorized the invasion of privacy into four separate torts22: 1. Unreasonable intrusion upon the seclusion of another; 2. Appropriation of another's name or likeness; 3. Unreasonable publicity given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olve. 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 followed by Download, E-Mail, Facebook, Google, Hotmail, and Instagram.27 They should not be subjected to the consequences of their childish mistakes and naivety, their entire life. Privacy of children will require special protection not just in the context of the virtual world, but also the real world. 67. People change and an individual should be able to determine the path of his life and not be stuck only on a path of which he/she treaded initially. An individual should have the capacity to change his/her beliefs and evolve as a person. Individuals should not live in fear that the views they expressed will forever be associated with them and thus refrain from expressing themselves. 68. Whereas this right to control dissemination of personal information in the physical and virtual s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in a democratic society for a legitimate aim; iii. The extent of such interference must be proportionate to the need for such interference; iv. There must be procedural guarantees against abuse of such interference." The Restrictions 72. The right to privacy as already observed is not absolute. The right to privacy as falling in part III of the Constitution may, depending on its variable facts, vest in one part or the other, and would thus be subject to the restrictions of exercise of that particular fundamental right. National security would thus be an obvious restriction, so would the provisos to different fundamental rights, dependent on where the right to privacy would arise. The Public interest element would be another aspect. 73. It would be useful to turn to The European Union Regulation of 2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciety, 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 as outside it. In doing so, the framework should recognise that data has economic value, and that global data flows generate value for the individual as data creator, and for businesses that collect and process such data. Thus, one of the focuses of the framework should be on inspiring the trust of global clients and their end users, without compromising the interests of domestic customers in enhancing their privacy protection. 2. Multi-Dimensional Privacy: This report recognises the right to privacy in its multiple dimensions. A framework on the right to privacy in India must include privacy-related concerns around data protection on the internet and challenges emerging therefrom, appropriate protection from unauthorised interception, audio and video surveillance, use of personal identifiers, bodily privacy including DNA as well as physical pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Chairmanship of Mr. Justice B.N. Srikrishna, former Judge of the Supreme Court of India, in order to identify key data protection issues in India and recommend methods of addressing them. So there is hope ! 76. The aforesaid aspect has been referred to for purposes that the concerns about privacy have been left unattended for quite some time and thus an infringement of the right of privacy cannot be left to be formulated by the legislature. It is a primal natural right which is only being recognized as a fundamental right falling in part III of the Constitution of India. CONCLUSION 77. The right of privacy is a fundamental right. It is a right which protects the inner sphere of the individual from interference from both State, and non-State actors and allows the individuals to make autonomous life choices. 78. It was rightly expressed on behalf of the petitioners that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 denied, even if there is a miniscule fraction of the population which is affected. The majoritarian concept does not apply to Constitutional rights and the Courts are often called up on to take what may be categorized as a non-majoritarian view, in the check and balance of power envisaged under the Constitution of India. Ones sexual orientation is undoubtedly an attribute of privacy. The observations made in Mosley vs. News Group Papers Ltd. 33, in a broader concept may be usefully referred to: "130… It is not simply a matter of personal privacy versus the public interest. The modern perception is that there is a public interest in respecting personal privacy. It is thus a question of taking account of conflicting public interest considerations and evaluating them according to increasingly well recognized criteria. 131. When the courts identify an infringement of a per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ielding 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. (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 1 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.(CIVIL)NO.220/2015 CONMT. PET. (C)NO.674/2015 IN W.P.(C)NO.829/2013 T.P.(CIVIL)NO.921/2015 CONMT.PET.(C)NO.470/2015 IN W.P.(C)NO.494/2012 CONMT.PET.(C)NO.444/2016 IN W.P.(C)NO.494/2012 CONMT.PET.(C)NO.608/2016 IN W.P.(C)NO.494/2012 W.P.(CIVIL)NO.797/2016 CONMT.PET.(C)NO.844/2017 IN W.P.(C)NO.494/2012 W.P.(C) NO.342/2017 AND WITH W.P.(C)NO.000372/2017 ORDER OF THE COURT 1. The judgment on behalf of the Hon'ble Chief Justice Shri Justice Jagdish Singh Khehar, Shri Justice R K Agrawal, Shri Justice S Abdul Nazeer and Dr Justice D Y Chandrachud was delivered by Dr Justice D Y Chandrachud. Shri Justice J Chelameswar, Shri Justice S A Bobde, Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons-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) 2 SCC 510 14 (1983) 1 SCC 228 15 Geoffrey Robertson, QC and Andrew Nicol, QC, Media Law fifth edition p. 265 16 Campbell V. MGN Ltd.2004 UKHL 22 17 Daniel Solove, '10 Reasons Why Privacy Matters' published on January 20, 2014 https://www.teachprivacy.com/10-reasons-privacy-matters/ 18 Daniel Solove, '10 Reasons Why Privacy Matters' published on January 20, 2014 https://www.teachprivacy.com/10-reasons-privacy-matters/ 19 The UK Courts granted in super-injunctions to protect privacy of certain celebrities by tabloids which meant that not only could the private information not be published but the very fact of existence of that case & injunction could also not be published. 20 The Second Circuit's decision in Haelan Laboratories v. Topps Chewing Gum. 202 F.2d 866 (2d Cir. 1953) penned by Judge Jerome Frank defined the right to publicity as "the right to grant the exclusive privilege of publishing his picture". 21Mark P. McKenna, The Right of Publicity and Autonomous Self-Definition, 67 U. PITT. L. REV. 225 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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