24 August 2017
Supreme Court
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JUSTICE K.S.PUTTASWAMY(RETD) Vs UNION OF INDIA

Bench: HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR, HON'BLE MR. JUSTICE J. CHELAMESWAR, HON'BLE MR. JUSTICE S.A. BOBDE, HON'BLE MR. JUSTICE R.K. AGRAWAL, HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN, HON'BLE MR. JUSTICE ABHAY MANOHAR SAPRE, HON'BLE DR. JUSTICE D.Y. CHANDRACHUD, HON'BLE MR. JUSTICE SANJAY KISHAN KAUL, HON'BLE MR. JUSTICE S. ABDUL NAZEER
Judgment by: HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR
Case number: W.P.(C) No.-000494-000494 / 2012
Diary number: 35071 / 2012
Advocates: ANISH KUMAR GUPTA Vs


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 IN THE SUPREME COURT OF INDIA  

CIVIL ORIGINAL JURISDICTION      

WRIT PETITION (CIVIL) NO 494  OF 2012  

   

JUSTICE K S PUTTASWAMY (RETD.),   AND ANR.                          ..Petitioners     

VERSUS  

 

UNION OF INDIA AND ORS.                                    ..Respondents   

WITH   

T.C. (CIVIL)  NO 151 OF 2013  

T.C. (CIVIL) NO 152 OF 2013  

W.P.(CIVIL) NO 833 OF 2013  

W.P.(CIVIL) NO 829 OF 2013  

W.P.(CIVIL) NO 932 OF 2013  

CONMT. PET. (CIVIL) NO 144 OF 2014 IN W.P.(C) NO. 494/2012  

T.P.(CIVIL) NO 313 OF 2014  

T.P.(CIVIL) NO 312 OF 2014  

S.L.P(CRL.) NO.2524/2014  

W.P.(CIVIL) NO.37/2015  

W.P.(CIVIL) NO.220/2015  

REPORTABLE

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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  

 

J U D G M E N T  

 

Dr D Y CHANDRACHUD, J  

This judgment has been divided into sections to facilitate analysis. They are :    A The reference   

B     Decision in M P Sharma   

C Decision in Kharak Singh      

D  Gopalan doctrine: fundamental rights as isolated silos    

E Cooper and Maneka: Interrelationship between rights  

F Origins of privacy   

G Natural and inalienable rights  

H Evolution of the privacy doctrine in India    

I The Indian Constitution    

• Preamble   

•  Jurisprudence on dignity

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•  Fundamental Rights cases  

•  No waiver of Fundamental Rights  

• Privacy as intrinsic to freedom and liberty   

• Discordant Notes    :        (i) ADM Jabalpur   

               (ii) Suresh Koushal    J India’s commitments under International law  

K Comparative law on privacy     

(i) UK decisions  

(ii)  US Supreme Court decisions   

(iii)  Constitutional right to privacy in South Africa  

(iv)  Constitutional right to privacy in Canada  

(v)  Privacy under the European Convention on Human Rights and  

the European Charter  

(vi)  Decisions of the Inter-American Court of Human Rights  

 

L Criticisms of the privacy doctrine  

a Thomson’s Reductionism    

b Posner’s Economic critique   

c  Bork’s critique    

d Feminist critique    

  

M Constituent Assembly and privacy: limits of originalist interpretation  

N Is the statutory protection to privacy reason to deny a constitutional right?  

O Not an elitist construct   

P Not just a common law right  

Q Substantive Due Process   

R Essential nature of privacy  

S Informational privacy   

T Conclusions  

 

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PART A   

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A The reference   

 1 Nine judges of this Court assembled to determine whether privacy is a  

constitutionally protected value. The issue reaches out to the foundation of a  

constitutional culture based on the protection of human rights and enables this Court  

to revisit the basic principles on which our Constitution has been founded and their  

consequences for a way of life it seeks to protect. This case presents challenges for  

constitutional interpretation. If privacy is to be construed as a protected constitutional  

value, it would redefine in significant ways our concepts of liberty and the entitlements  

that flow out of its protection.   

 

2 Privacy, in its simplest sense, allows each human being to be left alone in a  

core which is inviolable. Yet the autonomy of the individual is conditioned by her  

relationships with the rest of society.  Those relationships may and do often pose  

questions to autonomy and free choice. The overarching presence of state and non-

state entities regulates aspects of social existence which bear upon the freedom of  

the individual. The preservation of constitutional liberty is, so to speak, work in  

progress. Challenges have to be addressed to existing problems. Equally, new  

challenges have to be dealt with in terms of a constitutional understanding of where  

liberty places an individual in the context of a social order. The emergence of new  

challenges is exemplified by this case, where the debate on privacy is being analysed  

in the context of a global information based society. In an age where information  

technology governs virtually every aspect of our lives, the task before the Court is to

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PART A   

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impart constitutional meaning to individual liberty in an interconnected world. While  

we revisit the question whether our constitution protects privacy as an elemental  

principle, the Court has to be sensitive to the needs of and the opportunities and  

dangers posed to liberty in a digital world.   

 

3 A Bench of three judges of this Court, while considering the constitutional  

challenge to the Aadhaar card scheme of the Union government noted in its order  

dated 11 August 2015 that the norms for and compilation of demographic biometric  

data by government was questioned on the ground that it violates the right to privacy.   

The Attorney General for India urged that the existence of a fundamental right of  

privacy is in doubt in view of two decisions : the first – M P Sharma v Satish Chandra,  

District Magistrate, Delhi1 (“M P Sharma”) was rendered by a Bench of eight   

judges and the second, in Kharak Singh v State of Uttar Pradesh2 (“Kharak  

Singh”) was rendered by a Bench of six judges.  Each of these decisions, in the  

submission of the Attorney General, contained observations that the Indian  

Constitution does not specifically protect the right to privacy.  On the other hand, the  

submission of the petitioners was that M P Sharma and Kharak Singh were founded  

on principles expounded in A K Gopalan v State of Madras3 (“Gopalan”). Gopalan,  

which construed each provision contained in the Chapter on fundamental rights as  

embodying a distinct protection, was held not to be good law by an eleven-judge  

                                                           1 (1954) SCR 1077   2 (1964) 1 SCR 332  3 AIR 1950 SC 27

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PART A   

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Bench in Rustom Cavasji Cooper v Union of India4 (“Cooper”). Hence the  

petitioners submitted that the basis of the two earlier decisions is not valid. Moreover,  

it was also urged that in the seven-judge Bench decision in Maneka Gandhi v Union  

of India5 (“Maneka”), the minority judgment of Justice Subba Rao in Kharak Singh  

was specifically approved of and the decision of the majority was overruled.    

 

4 While addressing these challenges, the Bench of three judges of this Court took  

note of several decisions of this Court in which the right to privacy has been held to  

be a constitutionally protected fundamental right.  Those decisions include : Gobind  

v State of Madhya Pradesh6 (“Gobind”), R Rajagopal v State of Tamil Nadu7  

(“Rajagopal”) and People’s Union for Civil Liberties v Union of India8 (“PUCL”).  

These subsequent decisions which affirmed the existence of a constitutionally  

protected right of privacy, were rendered by Benches of a strength smaller than those  

in M P Sharma and Kharak Singh.  Faced with this predicament and having due  

regard to the far-reaching questions of importance involving interpretation of the  

Constitution, it was felt that institutional integrity and judicial discipline would require  

a reference to a larger Bench.  Hence the Bench of three learned judges observed in  

its order dated 11 August 2015:   

 

“12. We are of the opinion that the cases on hand raise far reaching  

questions of importance involving interpretation of the Constitution.  

                                                           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

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PART A   

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What is at stake is the amplitude of the fundamental rights including  

that precious and inalienable right under Article 21. If the  

observations made in M.P. Sharma (supra) and Kharak Singh  

(supra) are to be read literally and accepted as the law of this  

country, the fundamental rights guaranteed under the Constitution  

of India and more particularly right to liberty under Article 21 would  

be denuded of vigour and vitality. At the same time, we are also of  

the opinion that the institutional integrity and judicial discipline  

require that pronouncement made by larger Benches of this Court  

cannot be ignored by the smaller Benches without appropriately  

explaining the reasons for not following the pronouncements made  

by such larger Benches. With due respect to all the learned Judges  

who rendered the subsequent judgments - where right to privacy is  

asserted or referred to their Lordships concern for the liberty of  

human beings, we are of the 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 of M.P. Sharma (supra) and Kharak Singh  

(supra) is scrutinized and the jurisprudential correctness of the  

subsequent decisions of this Court where the right to privacy is  

either asserted or referred be examined and authoritatively decided  

by a Bench of appropriate strength.”  

 

5 On 18 July 2017, a Constitution Bench presided over by the learned Chief  

Justice considered it appropriate that the issue be resolved by a Bench of nine judges.   

The order of the Constitution Bench reads thus:  

 

“During the course of the hearing today, it seems that it has become  

essential for us to determine whether there is any fundamental right  

of privacy under the Indian Constitution. The determination of this  

question would essentially entail whether the decision recorded by  

this Court in M.P. Sharma and Ors. vs. Satish Chandra, District  

Magistrate, Delhi and Ors. - 1950 SCR 1077 by an eight-Judge  

Constitution Bench, and also, in Kharak Singh  vs. The State of  

U.P. and Ors. - 1962 (1) SCR 332 by a six-Judge Constitution  

Bench, that there is no such fundamental right, is the correct  

expression of the constitutional position.  

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PART A   

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Before dealing with the matter any further, we are of the view that  

the issue noticed hereinabove deserves to be placed before the  

nine-Judge Constitution Bench. List these matters before the Nine-

Judge Constitution Bench on 19.07.2017.”  

 

 

6 During the course of hearing, we have been ably assisted on behalf of the  

petitioners by Mr Gopal Subramanium, Mr Kapil Sibal, Mr Arvind Datar, Mr Shyam  

Divan, Mr Anand Grover, Ms Meenakshi Arora, Mr Sajan Poovayya and Mr Jayant  

Bhushan, learned senior counsel.  Mr J S Attri, learned senior counsel supported them  

on behalf of the State of Himachal Pradesh.  On behalf of the Union of India, the Court  

has had the benefit of the erudite submissions of Mr K K Venugopal, Attorney General  

for India. He has been ably supported by Mr Tushar Mehta, Additional Solicitor  

General, Mr Rakesh Dwivedi, senior counsel for the State of Gujarat, Mr Aryama  

Sundaram for the State of Maharashtra, Mr Gopal Sankaranarayanan and  Dr Arghya  

Sengupta respectively. While some state governments have supported the stand of  

the Union government, others have supported the petitioners.   

 

7 The correctness of the decisions in M P Sharma and Kharak Singh, is to be  

evaluated during the course of the reference. Besides, the jurisprudential correctness  

of subsequent decisions holding the right to privacy to be a constitutionally protected  

right is to be determined.  The basic question whether privacy is a right protected  

under our Constitution requires an understanding of what privacy means.  For it is  

when we understand what interests or entitlements privacy safeguards, that we can  

determine whether the Constitution protects privacy. The contents of privacy need to  

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PART B   

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be analysed, not by providing an exhaustive enunciation or catalogue of what it  

includes but by indicating its broad contours.  The Court has been addressed on  

various aspects of privacy including : (i) Whether there is a constitutionally protected  

right to privacy; (ii) If there is a constitutionally protected right, whether this has the  

character of an independent fundamental right or whether it arises from within the  

existing guarantees of protected rights such as life and personal liberty; (iii) the  

doctrinal foundations of the claim to privacy; (iv) the content of privacy; and (v) the  

nature of the regulatory power of the state.  

 

B       Decision in M P Sharma       8 An investigation was ordered by the Union government under the Companies  

Act into the affairs of a company which was in liquidation on the ground that it had  

made an organized attempt to embezzle its funds and to conceal the true state of its  

affairs from the share-holders and on the allegation that the company had indulged in  

fraudulent transactions and falsified its records.  Offences were registered and search  

warrants were issued during the course of which, records were seized. The challenge  

was that the searches violated the fundamental rights of the petitioners under Article  

19(1)(f) and Article 20(3) of the Constitution. The former challenge was rejected.  The  

question which this Court addressed was whether there was a contravention of Article  

20(3). Article 20(3) mandates that no person accused of an offence shall be compelled  

to be a witness against himself. Reliance was  placed on   a   judgment9 of  the   US  

                                                           9 Boyd v. United States, 116 US 616 (1886)  

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PART B  

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Supreme Court holding that obtaining incriminating evidence by an illegal search and  

seizure violates the Fourth and Fifth Amendments of the American Constitution. While  

tracing the history of Indian legislation, this Court observed that provisions for search  

were contained in successive enactments of the Criminal Procedure Code. Justice  

Jagannadhadas, speaking for the Bench, held that a search or seizure does not  

infringe the constitutional right guaranteed by Article 20(3) of the Constitution:  

 “…there is no basis in the Indian law for the assumption that a search  

or seizure of a thing or document is in itself to be treated as compelled  

production of the same. Indeed a little consideration will show that the  

two are essentially different matters for the purpose relevant to the  

present discussion. A notice to produce is addressed to the party  

concerned and his production in compliance therewith constitutes a  

testimonial act by him within the meaning of Article 20(3) as above  

explained. But a search warrant is addressed to an officer of the  

Government, generally a police officer. Neither the search nor the  

seizure are acts of the occupier of the searched premises. They are  

acts of another to which he is obliged to submit and are, therefore, not  

his testimonial acts in any sense.”10  

 

9 Having held that the guarantee against self-incrimination is not offended by a  

search and seizure, the Court observed that :  

 “A power of search and seizure is in any system of jurisprudence  

an overriding power of the State for the protection of social security  

and that power is necessarily regulated by law. When the  

Constitution makers have thought fit not to subject such  

regulation to constitutional limitations by recognition of a  

fundamental right to privacy, analogous to the Fourth  

Amendment, we have no justification to import it, into a totally  

different fundamental right, by some process of strained  

construction. Nor is it legitimate to assume that the constitutional  

                                                           10 MP Sharma (Supra note 1), at page 1096

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protection under Article 20(3) would be defeated by the statutory  

provisions for searches.”11                           (emphasis supplied)  

 

10 These observations – to be more precise in one sentence - indicating that the  

Constitution makers did not subject the regulation by law of the power of search and  

seizure to a fundamental right of privacy, similar to the Fourth amendment of the US  

Constitution, have been pressed in aid to question the existence of a protected right  

to privacy under our Constitution.   

 

C Decision in Kharak Singh          11 After being challaned in a case of dacoity in 1941, Kharak Singh was released  

for want of evidence.  But the police compiled a “history sheet” against him. ‘History  

sheets’ were defined in Regulation 228 of Chapter XX of the U P Police Regulations  

as “the personal records of criminals under surveillance”.  Kharak Singh, who was  

subjected to regular surveillance, including midnight knocks, moved this Court for a  

declaration that his fundamental rights were infringed.  Among the measures of  

surveillance contemplated by Regulation 236 were the following:  

 

“(a) Secret picketing of the house or approaches to the houses of  

suspects;  

(b) domiciliary visits at night;  

(c) thorough periodical inquiries by officers not below the rank of  

sub-inspector into repute, habits, associations, income, expenses  

and occupation;  

(d) the reporting by constables and chaukidars of movements and  

absences from home;  

                                                           11 Ibid, at page 1096-97

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(c) the verification of movements and absences by means of inquiry  

slips;  

(f) the collection and record on a history-sheet of all information  

bearing on conduct.”    

12 This Court held that the freedom to move freely throughout the territory of India,  

guaranteed by Article 19(1)(d) was not infringed by a midnight knock on the door of  

the petitioner since “his locomotion is not impeded or prejudiced in any manner”.  

 

13  When the decision in Kharak Singh was handed down, the principles  

governing the inter-relationship between the rights protected by Article 19 and the  

right to life and personal liberty under Article 21 were governed by the judgment in  

Gopalan. Gopalan considered each of the articles in the Chapter on fundamental  

rights as embodying distinct (as opposed to over-lapping) freedoms. Hence in Kharak  

Singh, the Court observed :  

 

“In view of the very limited nature of the question before us it is  

unnecessary to pause to consider either the precise relationship  

between the “liberties” in Article 19(1)(a) & (d) on the one hand and  

that in Article 21 on the other, or the content and significance of the  

words “procedure established by law” in the latter Article, both of  

which were the subject of elaborate consideration by this Court  

in A.K. Gopalan v. State of Madras.”12  

 

14 The decision in Kharak Singh held that clause (b) of Regulation 236 which  

provided for domiciliary visits at night was violative of Article 21. The Court observed:    

“Is then the word “personal liberty” to be construed as excluding  

from its purview an invasion on the part of the police of the sanctity  

                                                           12 Kharak Singh (Supra note 2), at page 345

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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 manner and to be  

attributed that sense which would promote and achieve those  

objectives and by no means to stretch the meaning of the phrase to  

square with any pre-conceived notions or doctrinaire constitutional  

theories.”13   

 

 

15 In taking this view, Justice Rajagopala Ayyangar, speaking for a majority of five  

judges, relied upon the judgment of Justice Frankfurter, speaking for the US Supreme  

Court in Wolf v Colorado14, which held :  

 

“The security of one's privacy against arbitrary intrusion by the  

police … is basic to a free society…  

We have no hesitation in saying that were a State affirmatively to  

sanction such police incursion into privacy it would run counter to  

the guarantee of the Fourteenth Amendment.”15 (emphasis supplied)      

                    

 

While the Court observed that the Indian Constitution does not contain a guarantee  

similar to the Fourth Amendment of the US Constitution, it proceeded to hold that :  

 

“Nevertheless, these extracts would show that an unauthorised  

intrusion into a person's home and the disturbance caused to  

him thereby, is as it were the violation of a common law right of  

a man an ultimate essential of ordered liberty, if not of the very  

                                                           13 Ibid, at pages 347-348  14 338 US 25 (1949)  15 Cited in Kharak Singh (Supra note 2), at page 348

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concept of civilisation. An English Common Law maxim asserts that  

“every man's house is his castle” and in Semayne case [5 Coke  

91 : 1 Sm LC (13th Edn) 104 at p. 105] where this was applied, it  

was stated that “the house of everyone is to him as his castle  

and fortress as well as for his defence against injury and violence  

as for his repose”. We are not unmindful of the fact that Semayne  

case [(1604) 5 Coke 91 : 1 Sm LC (13th Edn) 104 at p. 105] was  

concerned with the law relating to executions in England, but the  

passage extracted has a validity quite apart from the context of the  

particular decision. It embodies an abiding principle which  

transcends mere protection of property rights and expounds a  

concept of “personal liberty” which does not rest on any element  

of feudalism or on any theory of freedom which has ceased to be of  

value.”16            (emphasis supplied)            

 

16 Kharak Singh regards the sanctity of the home and the protection against  

unauthorized intrusion an integral element of “ordered liberty”. This is comprised in  

‘personal liberty’ guaranteed by Article 21. The decision invalidated domiciliary visits  

at night authorised by Regulation 236 (b), finding them to be an unauthorized intrusion  

into the home of a person and a violation of the fundamental right to personal liberty.   

However, while considering the validity of clauses (c),(d) and (e) which provided for  

periodical enquiries, reporting by law enforcement personnel and verification of  

movements, this Court held as follows :  

 

“…the freedom guaranteed by Article 19(1)(d) is not infringed by a  

watch being kept over the movements of the suspect. Nor do we  

consider that Article 21 has any relevance in the context as was  

sought to be suggested by learned Counsel for the petitioner. As  

already pointed out, the right of privacy is not a guaranteed right  

under our Constitution and therefore the attempt to ascertain  

the movements of an individual which is merely a manner in  

                                                           16 Ibid, at page 349

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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 the right  

to freedom of movement under Article 19(1)(d) and the liberty of the individual under  

Article 21, it must satisfy the tests laid down in Article 19(2) as well as the requirements  

of Article 21. Justice Subba Rao held that :  

  “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 have  

many attributes and some of them are found in Article 19. If a  

person's fundamental right under Article 21 is infringed, the State  

can rely upon a law to sustain the action; but that cannot be a  

complete answer unless the said law satisfies the test laid down in  

Article 19(2) so far as the attributes covered by Article 19(1) are  

concerned. In other words, the State must satisfy that both the  

fundamental rights are not infringed by showing that there is a law  

and that it does amount to a reasonable restriction within the  

meaning of Article 19(2) of the Constitution. But in this case no such  

defence is available, as admittedly there is no such law. So the  

petitioner can legitimately plead that his fundamental rights both  

under Article 19(1)(d) and Article 21 are infringed by the State.”18  

                                                           17 Ibid, at page 351  18 Ibid, at pages 356-357

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18 Justice Subba Rao held that Article 21 embodies the right of the individual to  

be free from restrictions or encroachments.  In this view, though the Constitution does  

not expressly declare the right to privacy as a fundamental right, such a right is  

essential to personal liberty. The dissenting opinion places the matter of principle as  

follows:  

 “In an uncivilized society where there are no inhibitions, only  

physical restraints may detract from personal liberty, but as  

civilization advances the psychological restraints are more effective  

than physical ones. The scientific methods used to condition a  

man's mind are in a real sense physical restraints, for they  

engender physical fear channelling one's actions through  

anticipated and expected grooves. So also the creation of  

conditions which necessarily engender inhibitions and fear  

complexes can be described as physical restraints. Further, the  

right to personal liberty takes in not only a right to be free from  

restrictions placed on his movements, but also free from  

encroachments on his private life. It is true our Constitution does  

not expressly declare a right to privacy as a fundamental right,  

but the said right is an essential ingredient of personal liberty.  

Every democratic country sanctifies domestic life; it is expected to  

give him rest, physical happiness, peace of mind and security. In  

the last resort, a person's house, where he lives with his family, is  

his “castle”; it is his rampart against encroachment on his personal  

liberty. The pregnant words of that famous Judge, Frankfurter  

J., in Wolf v. Colorado [[1949] 238 US 25] pointing out the  

importance of the security of one's privacy against arbitrary  

intrusion by the police, could have no less application to an  

Indian home as to an American one. If physical restraints on a  

person's movements affect his personal liberty, physical  

encroachments on his private life would affect it in a larger degree.  

Indeed, nothing is more deleterious to a man's physical happiness  

and health than a calculated interference with his privacy. We  

would, therefore, define the right of personal liberty in Article 21 as  

a right of an individual to be free from restrictions or encroachments  

on his person, whether those restrictions or encroachments are  

directly imposed or indirectly brought about by calculated  

measures. If so understood, all the   acts   of   surveillance   under

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Regulation 236 infringe the fundamental right of the petitioner under  

Article 21 of the Constitution.”19              (emphasis supplied)   

 

Significantly, both Justice Rajagopala Ayyangar for the majority and Justice Subba  

Rao in his dissent rely upon the observations of Justice Frankfurter in Wolf v  

Colorado which specifically advert to privacy. The majority, while relying upon them  

to invalidate domiciliary visits at night, regards the sanctity of the home as part of  

ordered liberty. In the context of other provisions of the regulation, the majority  

declines to recognise a right of privacy as a constitutional protection. Justice Subba  

Rao recognised a constitutional by protected right to privacy, considering it as an  

ingredient of personal liberty.    

 

D  Gopalan doctrine : fundamental rights as isolated silos    

19 When eight judges of this Court rendered the decision in M P Sharma in 1954  

and later, six judges decided the controversy in Kharak Singh in 1962, the ascendant  

and, even well established, doctrine governing the fundamental rights contained in  

Part III was founded on the Gopalan principle. In Gopalan, Chief Justice Kania,  

speaking for a majority of five of the Bench of six judges, construed the relationship  

between Articles 19 and 21 to be one of mutual exclusion.  In this line of enquiry, what  

was comprehended by Article 19 was excluded from Article 21.  The seven freedoms  

of Article 19 were not subsumed in the fabric of life or personal liberty in Article 21.   

                                                           19 Ibid, at pages 358-359

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The consequence was that a law which curtailed one of the freedoms guaranteed by  

Article 19 would be required to answer the tests of reasonableness prescribed by  

clauses 2 to 6 of Article 19 and those alone.  In the Gopalan perspective, free speech  

and expression was guaranteed by Article 19(1)(a) and was hence excluded from  

personal liberty under Article 21.  Article 21 was but a residue.  Chief Justice Kania  

held :   

 “Reading Article 19 in that way it appears to me that the concept of  

the right to move freely throughout the territory of India is an entirely  

different concept from the right to “personal liberty” contemplated  

by Article 21. “Personal liberty” covers many more rights in one  

sense and has a restricted meaning in another sense. For instance,  

while the right to move or reside may be covered by the expression,  

“personal liberty” the right to freedom of speech (mentioned in  

Article 19(1)(a)) or the right to acquire, hold or dispose of property  

(mentioned in 19(1)(f)) cannot be considered a part of  

the personal liberty of a citizen. They form part of the liberty of a  

citizen but the limitation imposed by the word “personal” leads me  

to believe that those rights are not covered by the expression  

personal liberty. So read there is no conflict between Articles 19 and  

21. The contents and subject-matters of Articles 19 and 21 are thus  

not the same and they proceed to deal with the rights covered by  

their respective words from totally different angles. As already  

mentioned in respect of each of the rights specified in sub-clauses  

of Article 19(1) specific limitations in respect of each is provided,  

while the expression “personal liberty” in Article 21 is generally  

controlled by the general expression “procedure established by  

law”.”20  

 

‘Procedure established by law’ under Article 21 was, in this view, not capable of being  

expanded to include the ‘due process of law’. Justice Fazl Ali dissented. The dissent  

                                                           20 Gopalan (Supra note 3), at pages 36-37

19

PART D  

19    

adopted the view that the fundamental rights are not isolated and separate but protect  

a common thread of liberty and freedom:  

 “To my mind, the scheme of the Chapter dealing with the  

fundamental rights does not contemplate what is attributed to it,  

namely, that each article is a code by itself and is independent of  

the others. In my opinion, it cannot be said that Articles 19,20, 21  

and 22 do not to some extent overlap each other.  The case of a  

person who is convicted of an offence will come under Articles 20  

and 21 and also under Article 22 so far as his arrest and detention  

in custody before trial are concerned.  Preventive detention, which  

is dealt with an Article 22, also amounts to deprivation of personal  

liberty which is referred to in Article 21, and is a violation of the right  

of freedom of movement dealt with in Article 19(1)(d)…  

It seems clear that the addition of the word “personal” before  

“liberty” in Article 21 cannot change the meaning of the words used  

in Article 19, nor can it put a matter which is inseparably bound up  

with personal liberty beyond its place...”21  

 

 20 In Satwant Singh Sawhney v D Ramarathnam22 (“Satwant Singh  

Sawhney”), Justice Hidayatullah, speaking for himself and Justice R S Bachawat, in  

the dissenting view noticed the clear lines of distinction between the dissent of Justice  

Subba Rao and the view of the majority in Kharak Singh. The observations of Justice  

Hidayatullah indicate that if the right of locomotion is embodied by Article 21 of which  

one aspect is covered by Article 19(1)(d), that would in fact advance the minority view  

in Kharak Singh:   

 

“Subba Rao J. (as he then was) read personal liberty as the  

antithesis of physical restraint or coercion and found that Articles  

19(1) and 21 overlapped and Article 19(1)(d) was not carved out of  

personal liberty in Article 21. According to him, personal liberty  

could be curtailed by law, but that law must satisfy the test in Article  

                                                           21 Ibid, at pages 52-53  22 (1967) 3 SCR 525

20

PART E  

20    

19(2) in so far as the specific rights in Article 19(1)(3) are  

concerned. In other words, the State must satisfy that both the  

fundamental rights are not infringed by showing that there is a law  

and that it does not amount to an unreasonable restriction within  

the meaning of Article 19(2) of the Constitution. As in that case  

there was no law, fundamental rights, both under Article 19(1)(d)  

and Article 21 were held to be infringed. The learned Chief Justice  

has read into the decision of the Court a meaning which it does not  

intend to convey. He excludes from Article 21 the right to free  

motion and locomotion within the territories of India and puts the  

right to travel abroad in Article 21. He wants to see a law and if his  

earlier reasoning were to prevail, the law should stand the test of  

Article 19(2). But since clause (2) deals with matters in Article 19(1)  

already held excluded, it is obvious that it will not apply. The law  

which is made can only be tested on the ground of articles other  

than Article 19 such as Articles 14, 20 and 22 which alone bears  

upon this matter. In other words, the majority decision of the Court  

in this case has rejected Ayyangar J.'s view and accepted the view  

of the minority in Kharak Singh case…  

This view obviously clashes 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 words, the present  

decision advances the minority view in Kharak Singh case above  

the majority view stated in that case.”23  

 

 

E Cooper and Maneka : Interrelationship between rights  

 

21 The theory that the fundamental rights are water-tight compartments was  

discarded in the judgment of eleven judges of this Court in Cooper.  Gopalan had  

adopted the view that a law of preventive detention would be tested for its validity only  

with reference to Article 22, which was a complete code relating to the subject.   

Legislation on preventive detention did not, in this view, have to meet the touchstone  

of Article 19(1)(d).  The dissenting view of Justice Fazl Ali in Gopalan was noticed by  

                                                           23 Ibid, at page 554

21

PART E   

21    

Justice J C Shah, speaking for this Court, in Cooper. The consequence of the  

Gopalan doctrine was that the protection afforded by a guarantee of personal freedom  

would be decided by the object of the State action in relation to the right of the  

individual and not upon its effect upon the guarantee.  Disagreeing with this view, the  

Court in Cooper held thus :  

 ”…it is necessary to bear in mind the enunciation of the guarantee  

of fundamental rights which has taken different forms. In some  

cases it is an express declaration of a guaranteed right: Articles  

29(1), 30(1), 26, 25 and 32; in others to ensure protection of  

individual rights they take specific forms of restrictions on State  

action — legislative or executive — Articles 14, 15, 16, 20, 21,  

22(1), 27 and 28; in some others, it takes the form of a positive  

declaration and simultaneously enunciates the restriction thereon:  

Articles 19(1) and 19(2) to (6); in some cases, it arises as an  

implication from the delimitation of the authority of the State, e.g.  

Articles 31(1) and 31(2); in still others, it takes the form of a general  

prohibition against the State as well as others: Articles 17, 23 and  

24. The enunciation of rights either express or by implication  

does not follow a uniform pattern. But one thread runs through  

them: they seek to protect the rights of the individual or groups  

of individuals against infringement of those rights within  

specific limits. Part III of the Constitution weaves a pattern of  

guarantees on the    texture    of    basic    human rights. The  

guarantees delimit the protection of those rights in their  

allotted fields: they do not attempt to enunciate distinct  

rights.”24    (emphasis supplied)  

 

22 The abrogation of the Gopalan doctrine in Cooper was revisited in a seven-

judge Bench decision in Maneka.  Justice P N Bhagwati who delivered the leading  

opinion of three Judges held that the judgment in Cooper affirms the dissenting  

                                                           24 Cooper (Supra note 4), at page 289 (para 52)

22

PART E   

22    

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 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's fundamental right under Article 21 is  

infringed, the State can rely upon a law to sustain the action, but  

that cannot be a complete answer unless the said law satisfies the  

test laid down in Article 19(2) so far as the attributes covered by  

Article 19(1) are concerned.” There can be no doubt that in view  

of the decision of this Court in R.C. Cooper v. Union of  

India [(1970) 2 SCC 298 : (1971) 1 SCR 512] the minority view  

must be regarded as correct and the majority view must be  

held to have been overruled.”25                  (emphasis supplied)   

 

23 Following the decision in Maneka, the established constitutional doctrine is that  

the expression ‘personal liberty’ in Article 21 covers a variety of rights, some of which  

                                                           25 Maneka (Supra Note 5), at page 278 (para 5)

23

PART E   

23    

‘have been raised to the status of distinct fundamental rights’ and given additional  

protection under Article 19.  Consequently, in Satwant Singh Sawhney, the right to  

travel abroad was held to be subsumed within Article 21 as a consequence of which  

any deprivation of that right could be only by a ‘procedure established by law’. Prior  

to the enactment of the Passports Act, 1967, there was no law regulating the right to  

travel abroad as a result of which the order of the Passport Officer refusing a passport  

was held to be invalid. The decision in Maneka carried the constitutional principle of  

the over-lapping nature of fundamental rights to its logical conclusion.  

Reasonableness which is the foundation of the guarantee against arbitrary state  

action under Article 14 infuses Article 21. A law which provides for a deprivation of life  

or personal liberty under Article 21 must lay down not just any procedure but a  

procedure which is fair, just and reasonable.    

 

24 The decisions in M P Sharma and Kharak Singh adopted a doctrinal position  

on the relationship between Articles 19 and 21, based on the view of the majority in  

Gopalan.  This view stands abrogated particularly by the judgment in Cooper and the  

subsequent statement of doctrine in Maneka. The decision in Maneka, in fact,  

expressly recognized that it is the dissenting judgment of Justice Subba Rao in  

Kharak Singh which represents the exposition of the correct constitutional principle.   

The jurisprudential foundation which held the field sixty three years ago in M P  

Sharma and fifty five years ago in Kharak Singh has given way to what is now a  

settled position in constitutional law. Firstly, the fundamental rights emanate from  

basic notions of liberty and dignity and the enumeration of some facets of liberty as

24

PART E   

24    

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 invalidation of the basic premise underlying the decisions in M P  

Sharma and Kharak Singh still leaves the issue of whether privacy is a right protected  

by Part III of the Constitution open for consideration. There are observations in both  

decisions that the Constitution does not contain a specific protection of the right to  

privacy. Presently, the matter can be looked at from the perspective of what actually  

was the controversy in the two cases. M P Sharma was a case where a law  

prescribing a search to obtain documents for investigating into offences was  

challenged as being contrary to the guarantee against self-incrimination in Article  

20(3). The Court repelled the argument that a search for documents compelled a  

person accused of an offence to be witness against himself. Unlike a notice to produce  

documents, which is addressed to a person and whose compliance would constitute  

a testimonial act, a search warrant and a seizure which follows are not testimonial  

acts of a person to whom the warrant is addressed, within the meaning of Article 20(3).  

The Court having held this, the controversy in M P Sharma would rest at that. The  

observations in M P Sharma to the effect that the constitution makers had not thought  

it fit to subject the regulatory power of search and seizure to constitutional limitations

25

PART E   

25    

by recognising a fundamental right of privacy (like the US Fourth amendment), and  

that there was no justification to impart it into a ‘totally different fundamental right’ are  

at the highest, stray observations.   

 

26 The decision in M P Sharma held that in the absence of a provision like the  

Fourth Amendment to the US Constitution, a right to privacy cannot be read into the  

Indian Constitution. The decision in M P Sharma did not decide whether a  

constitutional right to privacy is protected by other provisions contained in the  

fundamental rights including among them, the right to life and personal liberty under  

Article 21. Hence the decision cannot be construed to specifically exclude the  

protection of privacy under the framework of protected guarantees including those in  

Articles 19 or 21. The absence of an express constitutional guarantee of privacy still  

begs the question whether privacy is an element of liberty and, as an integral part of  

human dignity, is comprehended within the protection of life as well.    

 

27 The decision in Kharak Singh is noteworthy because while invalidating  

Regulation 236(b) of the Police Regulations which provided for nightly domiciliary  

visits, the majority construed this to be an unauthorized intrusion into a person’s home  

and a violation of ordered liberty. While arriving at this conclusion, the majority  

placed reliance on the privacy doctrine enunciated by Justice Frankfurter, speaking  

for the US Supreme Court in Wolf v Colorado (the extract from Wolf cited in the  

majority judgment specifically adverts to ‘privacy’ twice). Having relied on this doctrine

26

PART F   

26    

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 the Court cannot recognize a  

juristic concept which is so vague and uncertain that it fails to withstand constitutional  

scrutiny.  This makes it necessary to analyse the origins of privacy and to trace its  

evolution.   

 

29 The Greek philosopher Aristotle spoke of a division between the public sphere  

of political affairs (which he termed the polis) and the personal sphere of human life  

(termed oikos).  This dichotomy may provide an early recognition of “a confidential  

zone on behalf of the citizen”26. Aristotle’s distinction between the public and private  

realms can be regarded as providing a basis for restricting governmental authority to  

activities falling within the public realm.  On the other hand, activities in the private  

                                                           26 Michael C. James, “A Comparative Analysis of the Right to Privacy in the United States, Canada and Europe”,  Connecticut Journal of International Law (Spring 2014), Vol. 29, Issue 2, at page 261

27

PART F   

27    

realm are more appropriately reserved for “private reflection, familial relations and  

self-determination”27.   

 

30 At a certain level, the evolution of the doctrine of privacy has followed the public  

– private distinction. William Blackstone in his Commentaries on the Laws of  

England (1765) spoke about this distinction while dividing wrongs into private wrongs  

and public wrongs. Private wrongs are an infringement merely of particular rights  

concerning individuals and are in the nature of civil injuries. Public wrongs constitute  

a breach of general and public rights affecting the whole community and according to  

him, are called crimes and misdemeanours.   

 

31 John Stuart Mill in his essay, ‘On Liberty’ (1859) gave expression to the need  

to preserve a zone within which the liberty of the citizen would be free from the  

authority of the state.  According to Mill :  

 “The only part of the conduct of any one, for which he is amenable  

to society, is that which concerns others.  In the part which merely  

concerns himself, his independence is, of right, absolute. Over  

himself, over his own body and mind, the individual is sovereign.”28  

   

While speaking of a “struggle between liberty and authority”29, Mill posited that the  

tyranny of the majority could be reined by the recognition of civil rights such as the  

individual right to privacy, free speech, assembly and expression.    

                                                           27 Ibid, at page 262  28 John Stuart Mill, On Liberty, Batoche Books (1859), at page 13  29 Ibid, at page 6

28

PART F   

28    

 

32 Austin in his Lectures on Jurisprudence (1869) spoke of the distinction  

between the public and the private realms : jus publicum and jus privatum.   

 

The distinction between the public and private realms has its limitations. If the reason  

for protecting privacy is the dignity of the individual, the rationale for its existence does  

not cease merely because the individual has to interact with others in the public arena.  

The extent to which an individual expects privacy in a public street may be different  

from that which she expects in the sanctity of the home. Yet if dignity is the underlying  

feature, the basis of recognising the right to privacy is not denuded in public spaces.  

The extent of permissible state regulation may, however, differ based on the legitimate  

concerns of governmental authority.   

 

33 James Madison, who was the architect of the American Constitution,  

contemplated the protection of the faculties of the citizen as an incident of the  

inalienable property rights of human beings.  In his words :  

 “In the former sense, a man’s land, or merchandize, or money is  

called his property. In the latter sense, a man has property in his  

opinions and the free communication of them…  

He has an equal property interest in the free use of his faculties and  

free 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,  

property of no sort is duly respected.  No man is safe in his opinions,  

his person, his faculties or his possessions…  

Conscience is the most sacred of all property; other property  

depending in part on positive law, the exercise of that, being a  

natural and inalienable right.  To guard a man’s house as his castle,

29

PART F   

29    

to pay public and enforce private debts with the most exact faith,  

can give no title to invade a man’s conscience which is more sacred  

than his castle, or to withhold from it that debt of protection, for  

which the public faith is pledged, by the very nature and original  

conditions of the social pact.”30   

 

 Madison traced the recognition of an inviolable zone to an inalienable right to property.  

Property is construed in the broadest sense to include tangibles and intangibles and  

ultimately to control over one’s conscience itself.   

 

34 In an article published on 15 December 1890 in the Harvard Law Review,  

Samuel D Warren and Louis Brandeis adverted to the evolution of the law to  

incorporate within it, the right to life as “a recognition of man’s spiritual nature, of his  

feelings and his intellect”31. As legal rights were broadened, the right to life had “come  

to mean the right to enjoy life – the right to be let alone”. Recognizing that “only a  

part of the pain, pleasure and profit of life lay in physical things” and that “thoughts,  

emotions, and sensations demanded legal recognition”, Warren and Brandeis  

revealed with a sense of perspicacity the impact of technology on the right to be let  

alone:  

 “Recent inventions and business methods call attention to the next  

step which must be taken for the protection of the person, and for  

securing to the individual what Judge Cooley calls the right “to be  

let alone”. Instantaneous photographs and newspaper enterprise  

have invaded the sacred precincts of private and domestic life; and  

numerous mechanical devices threaten to make good the  

prediction that “what is whispered in the closet shall be proclaimed  

                                                           30 James Madison, “Essay on Property”, in Gaillard Hunt ed., The Writings of James Madison (1906), Vol. 6, at  

pages 101-103.  31 Warren and Brandeis, “The Right to Privacy”, Harvard Law Review (1890), Vol.4, No. 5, at page 193

30

PART F   

30    

from the house-tops.” For years there has been a feeling that the  

law must afford some remedy for the unauthorized circulation of  

portraits of private persons…  

The intensity and complexity of life, attendant upon advancing  

civilization, have rendered necessary some retreat from the world,  

and man, under the refining influence of culture, has become more  

sensitive to publicity, so that solitude and privacy have become  

more essential to the individual; but modern enterprise and  

invention have, through invasions upon his privacy, subjected him  

to mental pain and distress, far greater than could be inflicted by  

mere bodily injury.”32  

 

   

In their seminal article, Warren and Brandeis observed that:  

 “The principle which protects personal writings and all other  

personal productions, not against theft and physical appropriation,  

but against publication in any form, is in reality not the principle of  

private property, but that of an inviolate personality.”33                                                                    

(emphasis supplied)  

   

The right “to be let alone” thus represented a manifestation of “an inviolate  

personality”, a core of freedom and liberty from which the human being had to be free  

from intrusion. The technology which provided a justification for the need to preserve  

the privacy of the individual was the development of photography. The right to be let  

alone was not so much an incident of property as a reflection of the 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  

                                                           32 Ibid, at pages 195-196  33 Ibid, at page 205

31

PART F   

31    

information technology. As societies have evolved, so have the connotations and  

ambit of privacy.   

 

36 Though many contemporary accounts attribute the modern conception of the  

‘right to privacy’ to the Warren and Brandeis article, historical material indicates that it  

was Thomas Cooley who adopted the phrase “the right to be let alone”, in his  

Treatise on the Law of Torts34. Discussing personal immunity, Cooley stated:   

“the right of one’s person may be said to be a right of complete  

immunity; the right to be alone.”35   

 

Roscoe Pound described the Warren and Brandeis article as having done “nothing  

less than add a chapter to our law”36. However, another writer on the subject states    

that:        

“This right to privacy was not new. Warren and Brandeis did not  

even coin the phrase, “right to privacy,” nor its common soubriquet,  

“the right to be let alone”.”37  

 

The right to be let alone is a part of the right to enjoy life. The right to enjoy life is, in  

its turn, a part of the fundamental right to life of the individual.   

 

                                                           34 Thomas Cooley, Treatise on the Law of Torts (1888), 2nd edition  35 Ibid, at page 29  36 Dorothy J Glancy, “The Invention of the Right to Privacy”, Arizona Law Review (1979) Vol. 21, No.1, at page 1.  

The article attributes the Roscoe Pound quotation to “Letter from Roscoe Pound to William Chilton (1916)” as  quoted in Alpheus Mason, Brandeis : A Free Man’s Life 70 (1956).  

37 Ibid, at pages 2-3.

32

PART F   

32    

37 The right to privacy was developed by Warren and Brandeis in the backdrop of  

the dense urbanization which occurred particularly in the East Coast of the United  

States. Between 1790 and 1890, the US population had risen from four million to sixty-

three million. The population of urban areas had grown over a hundred-fold since the  

end of the civil war. In 1890, over eight million people had immigrated to the US.  

Technological progress and rapid innovations had led to the private realm being  

placed under stress :  

“…technological progress during the post-Civil War decades had  

brought to Boston and the rest of the United States “countless, little-

noticed revolutions” in the form of a variety of inventions which  

made the personal lives and personalities of individuals  

increasingly accessible to large numbers of others, irrespective of  

acquaintance, social or economic class, or the customary  

constraints of propriety.  Bell invented the telephone in Boston; the  

first commercial telephone exchange opened there in 1877, while  

Warren and Brandeis were students at the Harvard Law School. By  

1890 there were also telegraphs, fairly inexpensive portable  

cameras, sound recording devices, and better and cheaper  

methods of making window glass. Warren and Brandeis recognized  

that these advances in technology, coupled with intensified  

newspaper enterprise, increased the vulnerability of individuals to  

having their actions, words, images, and personalities  

communicated without their consent beyond the protected circle of  

family and chosen friends.”38  

 

Coupled with this was the trend towards ‘newspaperization’39, the increasing presence  

of the print media in American society. Six months before the publication of the Warren  

and Brandeis’ article, E L Godkin, a newspaper man had published an article on the  

same subject in Scribner’s magazine in July 1890. Godkin, however, suggested no  

                                                           38 Ibid, at pages 7-8  39 Ibid, at page 8

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PART F   

33    

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 century. By the time Warren and Brandeis wrote their article  

in 1890, publication of the truth was perhaps no longer actionable under the law of  

defamation. It was this breach or lacuna that they sought to fill up by speaking of the  

right to privacy which would protect the control of the individual over her personality.44  

The right to privacy evolved as a “leitmotif” representing “the long tradition of American  

individualism”.45   

 

39 Conscious as we are of the limitations with which comparative frameworks46 of  

law and history should be evaluated, the above account is of significance. It reflects  

                                                           40 Ibid, at page 9  41 Ibid, at page 10  42 Ibid, at page 12  43 Ibid, at page 14  44 Ibid, at Pages 15-16  45 Id at Pages 21-22  46 Illustratively, the Centre for Internet and Society has two interesting articles tracing the origin of privacy within  Classical Hindu Law and Islamic Law. See Ashna Ashesh and Bhairav Acharya ,“Locating Constructs of Privacy

34

PART G   

34    

the basic need of every individual to live with dignity. Urbanization and economic  

development lead to a replacement of traditional social structures. Urban ghettos  

replace the tranquillity of self-sufficient rural livelihoods. The need to protect the  

privacy of the being is no less when development and technological change  

continuously threaten to place the person into public gaze and portend to submerge  

the individual into a seamless web of inter-connected lives.  

 

G Natural and inalienable rights  

40 Privacy is a concomitant of the right of the individual to exercise control over  

his or her personality. It finds an origin in the notion that there are certain rights which  

are natural to or inherent in a human being. Natural rights are inalienable because  

they are inseparable from the human personality. The human element in life is  

impossible to conceive without the existence of natural rights. In 1690, John Locke  

had in his Second Treatise of Government observed that the lives, liberties and  

estates of individuals are as a matter of fundamental natural law, a private preserve.  

The idea of a private preserve was to create barriers from outside interference. In  

1765, William Blackstone in his Commentaries on the Laws of England spoke of  

a “natural liberty”. There were, in his view, absolute rights which were vested in the  

individual by the immutable laws of nature. These absolute rights were divided into  

                                                           within Classical Hindu Law”, The Centre for Internet and Society, available at https://cis-india.org/internet- governance/blog/loading-constructs-of-privacy-within-classical-hindu-law. See also Vidushi Marda and Bhairav  Acharya, “Identifying Aspects of Privacy in Islamic Law”, The Centre for Internet and Society, available at  https://cis-india.org/internet-governance/blog/identifying-aspects-of-privacy-in-islamic-law   

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rights of personal security, personal liberty and property. The right of personal security  

involved a legal and uninterrupted enjoyment of life, limbs, body, health and reputation  

by an individual.   

 41 The notion that certain rights are inalienable was embodied in the American  

Declaration of Independence (1776) in the following terms:   

“We hold these truths to be self-evident, that all men are created  

equal, that they are endowed by their Creator with certain  

unalienable rights, that among these are life, liberty and the  

pursuit of happiness”.                               (emphasis supplied)

 

The term inalienable rights was incorporated in the Declaration of the Rights of Man  

and of the Citizen (1789) adopted by the French National Assembly in the following  

terms:   

  “For its drafters, to ignore, to forget or to depreciate the rights of  

man are the sole causes of public misfortune and government  

corruption. These rights are natural rights, inalienable and  

sacred, the National Assembly recognizes and proclaims them-it  

does not grant, concede or establish them-and their conservation is  

the reason for all political communities; within these rights figures  

resistance to oppression”.               (emphasis supplied)  

 

42 In 1921, Roscoe Pound, in his work titled “The Spirit of the Common Law”,  

explained the meaning of natural rights:   

 “Natural 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

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creates them. But it is fatal to all sound thinking to treat them as  

legal conceptions. For legal rights, the devices which law employs  

to secure such of these interests as it is expedient to recognize, are  

the work of the law and in that sense the work of the state.”47  

 

Two decades later in 1942, Pound in “The Revival of Natural Law” propounded       

that:   

“Classical natural law in the seventeenth and eighteenth centuries  

had three postulates. One was natural rights, qualities of the ideal  

or perfect man in a state of perfection by virtue of which he ought  

to have certain things or be able to do certain things. These were  

a guarantee of stability because the natural rights were taken  

to be immutable and inalienable. (2) The social compact, a  

postulated contract basis of civil society. Here was a guide to  

change. (3) An ideal law of which positive laws were only  

declaratory; an ideal body of perfect precepts governing human  

relations and ordering human conduct, guaranteeing the natural  

rights and expressing the social compact.”48 (emphasis supplied)  

 

43 In 1955, Edwin W Patterson in “A Pragmatist Looks At Natural Law and  

Natural Rights” observed that rights which individuals while making a social compact  

to create a government, reserve to themselves, are natural rights because they  

originate in a condition of nature and survive the social compact. In his words:  

“The basic rights of the citizen in our political society are regarded  

as continuing from a prepolitical condition or as arising in society  

independently of positive constitutions, statutes, and judicial  

decisions, which merely seek to “secure” or “safeguard” rights  

already reserved. These rights are not granted by a benevolent  

despot to his grateful subjects. The “natural rights” theory thus  

provided a convenient ideology for the preservation of such  

important rights as freedom of speech, freedom of religion and  

procedural due process of law.  As a pragmatist, I should prefer to  

                                                           47 Roscoe Pound, The Spirit of the Common Law, Marshall Jones Company (1921), at page 92  48 Roscoe Pound, “The Revival of Natural Law”, Notre Damne Lawyer (1942), Vol. 27, No 4, at page 330  

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explain them as individual and social interests which arise or exist  

normally in our culture and are tuned into legal rights by being  

legally protected.” 49   

 

44 Natural rights are not bestowed by the state. They inhere in human beings  

because they are human. They exist equally in the individual irrespective of class or  

strata, gender or orientation.   

 

45 Distinguishing an inalienable right to an object from the object itself  

emphasises the notion of inalienability. All human beings retain their inalienable rights  

(whatever their situation, whatever their acts, whatever their guilt or innocence). The  

concept of natural inalienable rights secures autonomy to human beings. But the  

autonomy is not absolute, for the simple reason that, the concept of inalienable rights  

postulates that there are some rights which no human being may alienate. While  

natural rights protect the right of the individual to choose and preserve liberty, yet the  

autonomy of the individual is not absolute or total. As a theoretical construct, it would  

otherwise be strictly possible to hire another person to kill oneself or to sell oneself  

into slavery or servitude. Though these acts are autonomous, they would be in  

violation of inalienable rights. This is for the reason that:  

  “…These acts, however autonomous, would be in violation of  

inalienable rights, as the theories would have it. They would be  

morally invalid, and ineffective 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  

                                                           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

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autonomy.    

 

Natural inalienable rights, like other natural rights, have long rested  

upon what has been called the law of nature of natural law.  Perhaps  

all of the theories discussed above could be called law of nature or  

natural law theories. The American tradition, even as early as 1641,  

ten years before Thomas Hobbes published Leviathan, included  

claims of natural rights, and these claims appealed to the law of  

nature, often in terms.  Without a moral order of the law of nature  

sort, natural inalienable rights are difficult to pose. “’It is from natural  

law, and from it alone, that man obtains those rights we refer to as  

inalienable and inviolable…Human rights can have no foundation  

other than natural law.”50  

 

46 The idea that individuals can have rights against the State that are prior to rights  

created by explicit legislation has been developed as part of a liberal theory of law  

propounded by Ronald Dworkin. In his seminal work titled “Taking Rights  

Seriously”51 (1977), he states that:    

“Individual rights are political trumps held by individuals.  

Individuals have rights when, for some reason, a collective goal is  

not a sufficient justification for denying them what they wish, as  

individuals, to have or to do, or not a sufficient justification for  

imposing some loss or injury upon them.”52 (emphasis supplied)  

 

Dworkin asserts the existence of a right against the government as essential to  

protecting the dignity of the individual:   

“It makes sense to say that a man has a fundamental right  

against the Government, in the strong sense, like free speech,  

if that right is necessary to protect his dignity, or his standing  

                                                           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

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as equally entitled to concern and respect, or some other  

personal value of like consequence.”53   (emphasis supplied)  

 

Dealing with the question whether the Government may abridge the rights of others  

to act when their acts might simply increase the risk, by however slight or speculative  

a margin, that some person’s right to life or property will be violated, Dworkin says :  

“But no society that purports to recognize a variety of rights, on the  

ground that a man’s dignity or equality may be invaded in a variety  

of ways, can accept such a principle54…  

If rights make sense, then the degrees of their importance cannot  

be so different that some count not at all when others are  

mentioned55…  

If the Government does not take rights seriously, then it does not  

take law seriously either56…”  

 

Dworkin states that judges should decide how widely an individual’s rights extend. He  

states:  

“Indeed, the suggestion that rights can be demonstrated by a  

process of history rather than by an appeal to principle shows either  

a confusion or no real concern about what rights are…  

This has been a complex argument, and I want to summarize it. Our  

constitutional system rests on a particular moral theory, namely,  

that men have moral rights against the state. The different clauses  

of the Bill of Rights, like the due process and equal protection  

clauses, must be understood as appealing to moral concepts rather  

than laying down particular concepts; therefore, a court that  

undertakes the burden of applying these clauses fully as law must                  

                                                           53 Ibid, at page 199  54 Ibid, at page 203  55 Ibid, at page 204  56  Ibid, at page 205

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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 not violated because :  

“Where a person talking on the telephone allows another person to  

record it or to hear it, it cannot be said that the other person who is  

allowed to do so is damaging, removing, tampering, touching  

machinery battery line or post for intercepting or acquainting himself  

with the contents of any message. There was no element of  

coercion or compulsion in attaching the tape recorder to the  

telephone.”59  

 This Court followed the same line of reasoning as it had in Kharak Singh while  

rejecting a privacy based challenge under Article 21. Significantly, the Court observed  

that :  

 “Article 21 was invoked by submitting that the privacy of the  

appellant’s conversation was invaded. Article 21 contemplates  

procedure established by law with regard to deprivation of life or  

personal liberty. The telephone conversation of an innocent citizen  

will be protected by Courts against wrongful or high handed  

interference by tapping the conversation. The protection is not for  

                                                           57  Ibid, at page 147  58 (1973) 1 SCC 471   59 Ibid, at page 476 (para 20)

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the guilty citizen against the efforts of the police to vindicate the law  

and prevent corruption of public servants. It must not be understood  

that the Court will tolerate safeguards for the protection of the  

citizen to be imperilled by permitting the police to proceed by  

unlawful or irregular methods.”60  

 

 In other words, it was the targeted and specific nature of the interception which  

weighed with the Court, the telephone tapping being directed at a guilty person. Hence  

the Court ruled that the telephone conversation of an innocent citizen will be protected  

against wrongful interference by wiretapping.  

 

48 In Gobind61, a Bench of three judges of this Court considered a challenge to  

the validity of Regulations 855 and 856 of State Police Regulations under which a  

history sheet was opened against the petitioner who had been placed under  

surveillance. The Bench of three judges adverted to the decision in Kharak Singh  

and to the validation of the Police Regulations (other than domiciliary visits at night).  

By the time the decision was handed down in Gobind, the law in the US had evolved  

and this Court took note of the decision in Griswold v Connecticut62 (“Griswold”) in  

which a conviction under a statute on a charge of giving information and advice to  

married persons on contraceptive methods was held to be invalid. This Court adverted  

to the dictum that specific guarantees of the Bill of Rights have penumbras which  

create zones of privacy. The Court also relied upon the US Supreme Court decision  

in Jane Roe v Henry Wade63 in which the Court upheld the right of a married woman  

                                                           60 Ibid, at page 479 (para 31)  61 (1975) 2 SCC 148  62 381 US 479 (1965)  63 410 US 113 (1973)

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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 decision in Gobind would indicate that the Court  

eventually did not enter a specific finding on the existence of a right to privacy under  

the Constitution.  The Court indicated that if the Court does find that a particular right  

should be protected as a fundamental privacy right, it could be overridden only subject  

to a compelling interest of the State :  

 “There can be no doubt that privacy-dignity claims deserve to be  

examined with care and to be denied only when an important  

countervailing interest is shown to be superior. If the Court does  

find that a claimed right is entitled to protection as a  

fundamental privacy right, a law infringing it must satisfy the  

compelling State interest test. Then the question would be  

                                                           64 277 US 438  (1928)  65 Supra note 6, at page 155 (para 20)

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whether a State interest is of such paramount importance as would  

justify an infringement of the right.”66    (emphasis supplied)  

   

While emphasising individual autonomy and the dangers of individual privacy being  

eroded by new developments that “will make it possible to be heard in the street what  

is whispered in the closet”, the Court had obvious concerns about adopting a broad  

definition of privacy since the right of privacy “is not explicit in the Constitution”.  

Observing that the concept of privacy overlaps with liberty, this Court noted thus :  

“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 street what is  

whispered in the closet. Yet, too broad a definition of privacy  

raises serious questions about the propriety of judicial  

reliance on a right that is not explicit in the Constitution. Of  

course, privacy primarily concerns the individual.  It therefore  

relates to and overlaps with the concept of liberty. The most serious  

advocate of privacy must confess that there are serious problems  

of defining the essence and scope of the right. Privacy interest in  

autonomy must also be placed in the context of other rights and  

values.”67  (emphasis supplied)  

   

Justice Mathew proceeded to explain what any right of privacy must encompass and  

protect and found it to be implicit in the concept of ordered liberty :  

 “Any right to privacy must encompass and protect the personal  

intimacies of the home, the family, marriage, motherhood,  

procreation and child rearing. This catalogue approach to the  

question is obviously not as instructive as it does not give an  

analytical picture of the distinctive characteristics of the right of  

                                                           66 Ibid, at page 155 (para 22)  67 Ibid, at page 156 (para 23)

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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 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 an independent right of privacy as an emanation  

from them which one can characterize as a fundamental right, we  

do not think that the right is absolute.”69                                              

(emphasis supplied)  

 

Again a similar “assumption” was made by the Court in the following observations:  

 “…Assuming that the fundamental rights explicitly guaranteed to a  

citizen have penumbral zones and that the right to privacy is itself a  

fundamental right, that fundamental right must be subject to  

restriction on the basis of compelling public interest.  As Regulation  

856 has the force of law, it cannot be said that the fundamental right  

of the petitioner under Article 21 has been violated by the provisions  

                                                           68 Ibid, at page 156 (para 24)  69 Ibid, at page 157 (para 28)

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contained in it : for, what is guaranteed under that Article is that no  

person shall be deprived of his life or personal liberty except by the  

procedure established by ‘law’. We think that the procedure is  

reasonable having regard to the provisions of Regulations 853 (c)  

and 857.”70  (emphasis supplied)  

   

 

The Court declined to interfere with the regulations.    

 

50 The judgment in Gobind does not contain a clear statement of principle by the  

Court of the existence of an independent right of privacy or of such a right being an  

emanation from explicit constitutional guarantees.  The Bench, which consisted of  

three judges, may have been constrained by the dictum in the latter part of Kharak  

Singh.  Whatever be the reason, it is evident that in several places Justice Mathew  

proceeded on the “assumption” that if the right to privacy is protected under the  

Constitution, it is a part of ordered liberty and is not absolute but subject to restrictions  

tailor-made to fulfil a compelling state interest. This analysis of the decision in Gobind  

assumes significance because subsequent decisions of smaller Benches have  

proceeded on the basis that Gobind does indeed recognise a right to privacy. What  

the contours of such a right are, emerges from a reading of those decisions. This is  

the next aspect to which we now turn.  

 

51 Malak Singh v State of Punjab and Haryana71 (“Malak Singh”) dealt with the  

provisions of Section 23 of the Punjab Police Rules under which a surveillance register  

                                                           70 Ibid, at page 157-158 (para 31)  71 (1981) 1 SCC 420

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was to be maintained among other persons, of all convicts of a particular description  

and persons who were reasonably believed to be habitual offenders whether or not,  

they were convicted.  The validity of the rules was not questioned in view of the  

decisions in Kharak Singh and Gobind.  The rules provided for modalities of  

surveillance. Justice O Chinnappa Reddy speaking for a Bench of two judges of this  

Court recognised the need for surveillance on habitual and potential offenders. In his  

view:  

  

“Prevention of crime is one of the prime purposes of the constitution  

of a police force. The preamble to the Police Act, 1861 says:  

“Whereas it is expedient to reorganise the police and to make it a  

more efficient instrument for the prevention and detection of crime.”  

Section 23 of the Police Act prescribes it as the duty of police  

officers “to collect and communicate intelligence affecting the public  

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 may be intrusive and it may so seriously encroach  

on the privacy of a citizen as to infringe his fundamental right  

to personal liberty guaranteed by Article 21 of the Constitution  

and the freedom of movement guaranteed by Article 19(1)(d). That  

cannot be permitted. This is recognised by the Punjab Police Rules  

themselves. Rule 23.7, which prescribes the mode of surveillance,  

permits the close watch over the movements of the person under  

surveillance but without any illegal interference. Permissible  

surveillance is only to the extent of a close watch over the  

movements of the person under surveillance and no more. So long  

as surveillance is for the purpose of preventing crime and is  

confined to the limits prescribed by Rule 23.7 we do not think a  

person whose name is included in the surveillance register can  

have a genuine cause for complaint. We may notice here that  

interference in accordance with law and for the prevention of  

disorder and crime is an exception recognised even by European  

Convention of Human Rights to the right to respect for a person's  

private and family life. Article 8 of the Convention reads as follows:

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“(1) Everyone's right to respect for his private and  

family life, his home and his correspondence shall be  

recognised.  

(2) There shall be no interference by a public authority  

with the exercise of this right, except such as is in  

accordance with law and is necessary in a democratic  

society in the interests of national security, public  

safety, for the prevention of disorder and crime or for  

the protection of health or morals.””72   (emphasis  

supplied)  

 

 

The Court did not consider it unlawful for the police to conduct surveillance so long as  

it was for the purpose of preventing crime and was confined to the limits prescribed  

by Rule 23.7 which, while authorising a close watch on the movement of a person  

under surveillance, contained a condition that this should be without any illegal  

interference.  The object being to prevent crime, the Court held that the person who  

is subject to surveillance is not entitled to access the register nor was a pre-decisional  

hearing compliant with natural justice warranted. Confidentiality, this Court held, was  

required in the interest of the public, including keeping in confidence the sources of  

information.  Again the Court held:  

 

“But all this does not mean that the police have a licence to enter  

the names of whoever they like (dislike?) in the surveillance  

register; nor can the surveillance be such as to squeeze the  

fundamental freedoms guaranteed to all citizens or to obstruct the  

free exercise and enjoyment of those freedoms; nor can the  

surveillance so intrude as to offend the dignity of the individual.  

Surveillance of persons who do not fall within the categories  

mentioned in Rule 23.4 or for reasons unconnected with the  

prevention of crime, or excessive surveillance falling beyond the  

limits prescribed by the rules, will entitle a citizen to the court's  

protection which the court will not hesitate to give. The very Rules  

                                                           72 Ibid, at pages 424-425 (para 6)

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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 be unobtrusive and within bounds.”73  

 

 

The observations in Malak Singh on the issue of privacy indicate that an  

encroachment on privacy infringes personal liberty under Article 21 and the right to  

the freedom of movement under Article 19(1)(d). Without specifically holding that  

privacy is a protected constitutional value under Article 19 or Article 21, the judgment  

of this Court indicates that serious encroachments on privacy impinge upon personal  

liberty and the freedom of movement. The Court linked such an encroachment with  

the dignity of the individual which would be offended by surveillance bereft of  

procedural protections and carried out in a manner that would obstruct the free  

exercise of freedoms guaranteed by the fundamental rights.  

 

52 State of Maharashtra v Madhukar Narayan Mardikar74 is another decision by  

a two-judge Bench which dealt with a case of a police inspector who was alleged to  

have attempted to have non-consensual intercourse with a woman by entering the  

hutment where she lived. Following an enquiry, he was dismissed from service but  

the punishment was modified, in appeal, to removal so as to enable him to apply for  

                                                           73 Ibid, at page 426 (para 9)  74 (1991) 1 SCC 57

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pensionary benefits.  The High Court quashed the punishment both on the ground of  

a violation of the principles of natural justice, and by questioning the character of the  

victim.  Holding that this approach of the High Court was misconceived, Justice A M  

Ahmadi (as the learned Chief Justice then was) held that though the victim had  

admitted “the dark side of her life”, she was yet entitled to her privacy :    

“The High Court observes that since Banubi is an unchaste woman  

it would be extremely unsafe to allow the fortune and career of a  

government official to be put in jeopardy upon the uncorroborated  

version of such a woman who makes no secret of her illicit intimacy  

with another person. She was honest enough to admit the dark side  

of her life. Even a woman of easy virtue is entitled to privacy  

and no one can invade her privacy as and when he likes. So  

also it is not open to any and every person to violate her  

person as and when he wishes. She is entitled to protect her  

person if there is an attempt to violate it against her wish. She  

is equally entitled to the protection of law. Therefore, merely  

because she is a woman of easy virtue, her evidence cannot  

be thrown overboard. At the most the officer called upon to  

evaluate her evidence would be required to administer caution unto  

himself before accepting her evidence.”75 (emphasis supplied)  

 

 As the above extract indicates, the issue before this Court was essentially based on  

the appreciation of the evidence of the victim by the High Court.  However, the  

observations of this Court make a strong statement of the bodily integrity of a woman,  

as an incident of her privacy.    

 

53 The decision In Life Insurance Corporation of India v Prof Manubhai D  

Shah76,  incorrectly attributed to the decision in Indian Express Newspapers  

                                                           75 Ibid, at pages 62-63 (para 8)  76 (1992) 3 SCC 637

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(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 the prisoner while he was confined to jail and opined that a publication in  

the name of a convict was against prison rules. The prisoner in question had been  

found guilty of six murders and was sentenced to death. Among the questions which  

were posed by this Court for decision was whether a citizen could prevent another  

from writing about the life story of the former and whether an unauthorized publication  

infringes the citizen’s right to privacy.  Justice Jeevan Reddy speaking for a Bench of  

two judges recognised that the right of privacy has two aspects: the first affording an  

action in tort for damages resulting from an unlawful invasion of privacy, while the  

second is a constitutional right. The judgment traces the constitutional protection of  

privacy to the decisions in Kharak Singh and Gobind. This appears from the  

following observations:  

 

                                                           77 (1985) 1 SCC 641  78 (1994) 6 SCC 632

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“…The first decision of this Court dealing with this aspect is Kharak  

Singh v. State of U.P. [(1964) 1 SCR 332 : AIR 1963 SC 1295 :  

(1963) 2 Cri LJ 329] A more elaborate appraisal of this right took  

place in a later decision in Gobind v.State of M.P.[(1975) 2 SCC  

148 : 1975 SCC (Cri) 468] wherein Mathew, J. speaking for himself,  

Krishna Iyer and Goswami, JJ. traced the origins of this right and  

also pointed out how the said right has been dealt with by the United  

States Supreme Court in two of its well-known decisions  

in Griswold v. Connecticut [381 US 479 : 14 L Ed 2d 510 (1965)]  

and Roe v. Wade [410 US 113 : 35 L Ed 2d 147 (1973)]…”79  

 

 

 

 

 The decision in Rajagopal considers the decisions in Kharak Singh and Gobind thus:  

 

“… Kharak Singh [(1964) 1 SCR 332 : AIR 1963 SC 1295 : (1963)  

2 Cri LJ 329] was a case where the petitioner was put under  

surveillance as defined in Regulation 236 of the U.P. Police  

Regulations…  

Though right to privacy was referred to, the decision turned on the  

meaning and content of “personal liberty” and “life” in Article  

21. Gobind [(1975) 2 SCC 148 : 1975 SCC (Cri) 468] was also a  

case of surveillance under M.P. Police Regulations. Kharak  

Singh [(1964) 1 SCR 332 : AIR 1963 SC 1295 : (1963) 2 Cri LJ 329]  

was followed even while at the same time elaborating the right to  

privacy…”80  

 

 The Court held that neither the State nor its officials can impose prior restrictions on  

the publication of an autobiography of a convict.  In the course of its summary of the  

decision, the Court held:  

 

                                                           79 Ibid, at pages 639-640 (para 9)  80 Ibid, at page 643 (para 13)

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“(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 interests of decency [Article 19(2)] an exception must be carved  

out to this rule, viz., a female who is the victim of a sexual assault,  

kidnap, abduction or a like offence should not further be subjected  

to the indignity of her name and the incident being publicised in  

press/media.  

(3) There is yet another exception to the rule in (1) above — indeed,  

this is not an exception but an independent rule. In the case of  

public officials, it is obvious, right to privacy, or for that matter, the  

remedy of action for damages is simply not available with respect  

to their acts and conduct relevant to the discharge of their official  

duties. This is so even where the publication is based upon facts  

and statements which are not true, unless the official establishes  

that the publication was made (by the defendant) with reckless  

disregard for truth. In such a case, it would be enough for the  

defendant (member of the press or media) to prove that he acted  

after a reasonable verification of the facts; it is not necessary for  

him to prove that what he has written is true. Of course, where the  

publication is proved to be false and actuated by malice or personal  

animosity, the defendant would have no defence and would be  

liable for damages. It is equally obvious that in matters not relevant  

to the discharge of his duties, the public official enjoys the same  

protection as any other citizen, as explained in (1) and (2) above. It  

needs no reiteration that judiciary, which is protected by the power  

to punish for contempt of court and Parliament and legislatures  

protected as their privileges are by Articles 105 and 104

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respectively of the Constitution of India, represent exceptions to this  

rule…”81  

 

 

55 The judgment of Justice Jeevan Reddy regards privacy as implicit in the right  

to life and personal liberty under Article 21. In coming to the conclusion, the judgment  

in Rajagopal notes that while Kharak Singh had referred to the right of privacy, the  

decision turned on the content of life and personal liberty in Article 21. The decision  

recognises privacy as a protected constitutional right, while tracing it to Article 21.  

 

56  In an interesting research article on ‘State’s surveillance and the right to  

privacy’, a contemporary scholar has questioned the theoretical foundation of the  

decision in Rajagopal on the ground that the case essentially dealt with cases in the  

US concerning privacy against governmental intrusion which was irrelevant in the  

factual situation before this Court.82 In the view of the author, Rajagopal involved a    

publication of an article by a private publisher in a magazine, authored by a private  

individual, albeit a convict. Hence the decision has been criticized on the ground that  

Rajagopal was about an action between private parties and, therefore, ought to have  

dealt with privacy in the context of tort law.83 While it is true that in Rajagopal it is a  

private publisher who was seeking to publish an article about a death row convict, it  

is equally true that the Court dealt with a prior restraint on publication imposed by the  

                                                           81 Ibid, at pages 649-650 (para 26)  82 Gautam Bhatia, “State Surveillance and the Right to Privacy in India: A Constitutional Biography”, National  

Law School of India Review (2014), Vol. 26(2), at pages 138-139   83 Ibid

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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 socially ostracized by the disclosure of his HIV+ status by the  

hospital, filed a claim for damages before the National Consumer Disputes Redressal  

Commission (NCDRC) alleging that the hospital had unauthorizedly disclosed his HIV  

status resulting in his marriage being called off and in social opprobrium.  Justice  

Saghir Ahmad, speaking for a Bench of two judges of this Court, adverted to the duty  

of the doctor to maintain secrecy in relation to the patient but held that there is an  

exception to the rule of confidentiality where public interest will override that duty. The  

judgment of this Court dwelt on the right of privacy under Article 21 and other  

provisions of the Constitution relating to the fundamental rights and the Directive  

Principles:  

 

“Right to privacy has been culled out of the provisions of Article 21  

and other provisions of the Constitution relating to the Fundamental  

Rights read with the Directive Principles of State Policy. It was in  

this context that it was held by this Court in Kharak Singh v. State  

of U.P. [AIR 1963 SC 1295 : (1964) 1 SCR 332] that police  

surveillance of a person by domiciliary visits would be violative of  

                                                           84 (1998) 8 SCC 296

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Article 21 of the Constitution. This decision was considered by  

Mathew, J. in his classic judgment in Gobind v. State of  

M.P. [(1975) 2 SCC 148 : 1975 SCC (Cri) 468] in which the origin  

of “right to privacy” was traced and a number of American decisions,  

including Munn v. Illinois [94 US 113 : 24 L Ed 77 (1877)]  

, Wolf v. Colorado [338 US 25 : 93 L Ed 1782 (1949)] and various  

articles were considered…”85  

 

 

The Court read the decision in Malak Singh as reiterating the view taken earlier, on  

privacy in Kharak Singh and Gobind.  The Court proceeded to rely on the decision  

in Rajagopal. The Court held that the right to privacy is not absolute and is subject to  

action lawfully taken to prevent crime or disorder or to protect the health, morals and  

the rights and freedoms of others. Public disclosure of even true facts, the Court held,  

may amount to invasion of the right to privacy or the right to be let alone when a doctor  

breaches confidentiality.  The Court held that:  

 

“Disclosure of even true private facts has the tendency to disturb a  

person's tranquillity. It may generate many complexes in him and  

may even lead to psychological problems. He may, thereafter, have  

a disturbed life all through. In the face of these potentialities, and as  

already held by this Court in its various decisions referred to above,  

the right of privacy is an essential component of the right to life  

envisaged by Article 21. The right, however, is not absolute and  

may be lawfully restricted for the prevention of crime, disorder or  

protection of health or morals or protection of rights and freedom of  

others.”86  

 

 However, the disclosure that the appellant was HIV+ was held not to be violative of  

the right to privacy of the appellant on the ground that the woman to whom he was to  

                                                           85 Ibid, at page 305 (para 21)  86 Ibid, at page 307 (para 28)

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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 decision of a Bench of two judges of this Court in PUCL87, the Court dealt  

with telephone tapping. The petitioner challenged the constitutional validity of Section  

5(2) of the Indian Telegraph Act, 1885 and urged in the alternative for adopting  

procedural safeguards to curb arbitrary acts of telephone tapping. Section 5(2)  

authorises the interception of messages in transmission in the following terms:  

 

“On the occurrence of any public emergency, or in the interest of  

the public safety, the Central Government or a State Government  

or any officer specially unauthorised in this behalf by the Central  

Government or a State Government may, if satisfied that it is  

necessary or expedient so to do in the interests of the sovereignty  

and integrity of India, the security of the State, friendly relations with  

foreign States or public order or for preventing incitement to the  

commission of an offence, for reasons to be recorded in writing, by  

order, direct 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  

                                                           87 (1997) 1 SCC 301  

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telegraph, shall not be transmitted, or shall be intercepted or  

detained, or shall be disclosed to the Government making the order  

or an officer thereof mentioned in the order:  

Provided that press messages intended to be published in India of  

correspondents accredited to the Central Government or a State  

Government shall not be intercepted or detained, unless their  

transmission has been prohibited under this sub-section.”  

 

 

60 The submission on the invalidity of the statutory provision authorising telephone  

tapping was based on the right to privacy being a fundamental right under Articles  

19(1) and 21 of the Constitution. Justice Kuldip Singh adverted to the observations  

contained in the majority judgment in Kharak Singh which led to the invalidation of  

the provision for domiciliary visits at night under Regulation 236(b).   PUCL cited the  

minority view of Justice Subba Rao as having gone even further by invalidating  

Regulation 236, in its entirety.  The judgment, therefore, construes both the majority  

and minority judgments as having affirmed the right to privacy as a part of Article 21:  

 

“Article 21 of the Constitution has, therefore, been interpreted by all  

the seven learned Judges in Kharak Singh case [(1964) 1 SCR 332  

: AIR 1963 SC 1295] (majority and the minority opinions) to include  

that “right to privacy” as a part of the right to “protection of life and  

personal liberty” guaranteed under the said Article.”88  

 

Gobind was construed to have upheld the validity of State Police Regulations  

providing surveillance on the ground that the ‘procedure established by law’ under  

Article 21 had not been violated.  After completing its summation of precedents,  

Justice Kuldip Singh held as follows:  

 

                                                           88 Ibid, at page 310 (para 14)

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“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 claimed or has  

been infringed in a given case would depend on the facts of the said  

case. But the right to hold a telephone conversation in the privacy  

of one's home or office without interference can certainly be claimed  

as “right to privacy”. Conversations on the telephone are often of an  

intimate and confidential character. Telephone conversation is a  

part of modern man's life. It is considered so important that more  

and more people are carrying mobile telephone instruments in their  

pockets. Telephone conversation is an important facet of a man's  

private life. Right to privacy would certainly include telephone  

conversation in the privacy of one's home or office. Telephone-

tapping would, thus, infract Article 21 of the Constitution of India  

unless it is permitted under the procedure established by law.”90  

 

The Court also held that telephone tapping infringes the guarantee of free speech and  

expression under Article 19(1)(a) unless authorized by Article 19(2).  The judgment  

relied on the protection of privacy under Article 17 of the International Covenant on  

Civil and Political Rights (and a similar guarantee under Article 12 of the Universal  

Declaration of Human Rights) which, in its view, must be an interpretative tool for  

                                                           89 Ibid, at page 311 (para 17)  90 Ibid, at page 311 (para 18)

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construing the provisions of the Constitution. Article 21, in the view of the Court, has  

to be interpreted in conformity with international law.  In the absence of rules providing  

for the precautions to be adopted for preventing improper interception and/or  

disclosure of messages, the fundamental rights under Articles 19(1)(a) and 21 could  

not be safeguarded.  But the Court was not inclined to require prior judicial scrutiny  

before intercepting telephone conversations. The Court ruled that it would be  

necessary to lay down procedural safeguards for the protection of the right to privacy  

of a person until Parliament intervened by framing rules under Section 7 of the  

Telegraph Act. The Court accordingly framed guidelines to be adopted in all cases  

envisaging telephone tapping.   

 

61 The judgment in PUCL construes the earlier decisions in Kharak Singh  

(especially the majority view on the invalidity of domiciliary visits), Gobind and  

Rajagopal in holding that the right to privacy is embodied as a constitutionally  

protected right under Article 21. The Court was conscious of the fact that the right to  

privacy has “by itself” not been identified under the Constitution. The expression “by  

itself” may indicate one of two meanings. The first is that the Constitution does not  

recognise a standalone right to privacy.  The second recognizes that there is no  

express delineation of such a right. Evidently, the Court left the evolution of the  

contours of the right to a case by case determination.  Telephone conversations from  

the home or office were construed to be an integral element of the privacy of an  

individual.  In PUCL, the Court consciously established the linkages between various  

articles conferring guarantees of fundamental rights when it noted that wire-tapping

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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 Court ascribes to privacy is  

evident from the fact that it did not await the eventual formulation of rules by  

Parliament and prescribed that in the meantime, certain procedural safeguards which  

it envisaged should be put into place.  

 

62 While dealing with a case involving the rape of an eight year old child, a three-

judge Bench of this Court in State of Karnataka v Krishnappa91 held:   

“Sexual violence apart from being… dehumanising… is an unlawful  

intrusion of the right to privacy and sanctity… It… offends her…  

dignity.”92  

 

Similar observations were made in Sudhansu Sekhar Sahoo v State of Orissa93.  

63 In Sharda v Dharmpal94, the appellant and respondent were spouses. The  

respondent sued for divorce and filed an application for conducting a medical  

examination of the appellant which was opposed.  The Trial Court allowed the  

                                                           91 (2000) 4 SCC 75  92 Ibid, at page 82 (para 15)  93  (2002) 10 SCC 743  94 (2003) 4 SCC 493

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application.  The High Court dismissed the challenge in a Civil Revision which led the  

appellant to move this Court. The appellant argued before this Court that compelling  

her to undergo a medical examination violated her personal liberty under Article 21  

and that in the absence of an empowering provision, the matrimonial Court had no  

jurisdiction to compel a party to undergo a medical examination. Justice S B Sinha,  

speaking for the Bench of three judges, dealt with the first aspect of the matter  

(whether a matrimonial Court has jurisdiction to order a medical examination) in the  

following terms:  

 

“Even otherwise the court may issue an appropriate direction so as  

to satisfy itself as to whether apart from treatment he requires  

adequate protection inter alia by way of legal aid so that he may not  

be subject to an unjust order because of his incapacity. Keeping in  

view of the fact that in a case of mental illness the court has  

adequate power to examine the party or get him examined by a  

qualified doctor, we are of the opinion that in an appropriate case  

the court may take recourse to such a procedure even at the  

instance of the party to the lis95…  

Furthermore, the court must be held to have the requisite power  

even under Section 151 of the Code of Civil Procedure to issue  

such direction either suo motu or otherwise which, according to him,  

would lead to the truth.96”  

 

64 The second question considered by the Court was whether a compulsive  

subjecting of a person to a medical examination violates Article 21.  After noticing the  

observations in M P Sharma and Kharak Singh where it was held that the  

Constitution has not guaranteed the right of privacy, the Court held that in subsequent  

decisions, such a right has been read into Article 21 on an expansive interpretation of  

                                                           95 Ibid, at page 513 (para 52)  96 Ibid, at page 513 (para 53)

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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 extensive interpretation of the phrase “personal liberty” this  

right has been read into Article 21, it cannot be treated as an  

absolute right…”97  

   

The right of privacy was held not to be breached.   

 

65 In District Registrar and Collector, Hyderabad v Canara Bank98 (“Canara  

Bank”), a Bench of two judges of this Court considered the provisions of the Indian  

Stamp Act, 1899 (as amended by a special law in Andhra Pradesh).  Section 73, which  

was invalidated by the High Court, empowered the Collector to inspect registers,  

books and records, papers, documents and proceedings in the custody of any public  

officer ‘to secure any duty or to prove or would lead to the discovery of a fraud or  

omission’. Section 73 was in the following terms:   

 

                                                           97 Ibid, at page 523 (para 76)  98 (2005) 1 SCC 496

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“73. Every public officer having in his custody any registers, books,  

records, papers, documents or proceedings, the inspection whereof  

may tend to secure any duty, or to prove or lead to the discovery of  

any fraud or omission in relation to any duty, shall at all reasonable  

times permit any person authorised in writing by the Collector to  

inspect for such purpose the registers, books, papers, documents  

and proceedings, and to take such notes and extracts as he may  

deem necessary, without fee or charge.”  

 After adverting to the evolution of the doctrine of privacy in the US from a right  

associated with property99 to a right associated with the individual100, Chief Justice  

Lahoti referred to the penumbras created by the Bill of Rights resulting in a zone of  

privacy101 leading up eventually to a “reasonable expectation of privacy”102. Chief  

Justice Lahoti considered the decision in M P Sharma to be “of limited help” to the  

discussion on privacy.  However, it was Kharak Singh which invalidated nightly-

domiciliary visits that provided guidance on the issue.  The evaluation of Kharak  

Singh was in the following terms:  

 “In…Kharak Singh v State of U P [(1964) 1 SCR 332 : (1963) 2  

Cri LJ 329] the U.P. Regulations regarding domiciliary visits were in  

question and the majority referred to Munn v. Illinois [94 US 113  

: 24 L Ed 77 (1877)] and held that though our Constitution did  

not refer to the right to privacy expressly, still it can be traced  

from the right to “life” in Article 21. According to the majority,  

clause 236 of the relevant Regulations in U.P., was bad in law; it  

offended Article 21 inasmuch as there was no law permitting  

interference by such visits. The majority did not go into the question  

whether these visits violated the “right to privacy”. But, Subba Rao,  

J. while concurring that the fundamental right to privacy was part of  

the right to liberty in Article 21, part of the right to freedom of speech  

and expression in Article 19(1)(a), and also of the right to movement  

in Article 19(1)(d), held that the Regulations permitting surveillance  

                                                           99 Boyd v United States, 116 US 616 (1886)  100 Olmstead v United States,  277 US 438 (1928)  101 Griswold v State of Connecticut, 381 US 479 (1965)  102  Katz v United States, 389 US 347 (1967)

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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 Court dealt with the application of Section 73 of the Indian Stamp Act (as  

amended), to documents of a customer in the possession of a bank. The Court held:  

 

“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-à-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 provision  

                                                           103 Supra Note 95, at page 516 (para 36)  104 Ibid, at page 518 (para 39)

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relating to search and inspection and seizure so as to save it from  

any unconstitutionality.”105  

 

Hence the Court repudiated the notion that a person who places documents with a  

bank would, as a result, forsake an expectation of confidentiality.  In the view of the  

Court, even if the documents cease to be at a place other than in the custody and  

control of the customer, privacy attaches to persons and not places and hence the  

protection of privacy is not diluted.  Moreover, in the view of the Court, there has to be  

a reasonable basis or material for the Collector to form an opinion that the documents  

in the possession of the bank would secure the purpose of investigating into an act of  

fraud or an omission in relation to duty.  The safeguards which the Court introduced  

were regarded as being implicit in the need to make a search of this nature  

reasonable. The second part of the ruling of the Court is equally important for it finds  

fault with a statutory provision which allows an excessive delegation of the power  

conferred upon the Collector to inspect documents. The provision, the Court rules,  

would allow the customers’ privacy to be breached by non-governmental persons.  

Hence the statute, insofar as it allowed the Collector to authorize any person to seek  

inspection, would be unenforceable. In the view of the Court:  

“Secondly, the impugned provision in Section 73 enabling the  

Collector to authorise “any person” whatsoever to inspect, to take  

notes or extracts from the papers in the public office suffers from  

the vice of excessive delegation as there are no guidelines in the  

Act and more importantly, the section allows the facts relating to the  

customer's privacy to reach non-governmental persons and would,  

on that basis, be an unreasonable encroachment into the  

customer's rights. This part of Section 73 permitting delegation to  

                                                           105 Ibid, at page 523 (para 53)

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“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 under Article 21.  Secondly, the Court finds  

the foundation for the reaffirmation of this right not only in the judgments in Kharak  

Singh and Gobind and the cases which followed, but also in terms of India’s  

international commitments under the Universal Declaration of Human Rights (UDHR)  

and International Covenant on Civil and Political Rights (ICCPR). Thirdly, the right to  

privacy is construed as a right which attaches to the person. The significance of this  

is that the right to privacy is not lost as a result of confidential documents or information  

being parted with by the customer to the custody of the bank.  Fourthly, the Court  

emphasised the need to read procedural safeguards to ensure that the power of  

search and seizure of the nature contemplated by Section 73 is not exercised  

arbitrarily. Fifthly, access to bank records to the Collector does not permit a delegation  

of those powers by the Collector to a private individual. Hence even when the power  

to inspect and search is validly exercisable by an organ of the state, necessary  

safeguards would be required to ensure that the information does not travel to  

unauthorised private hands. Sixthly, information provided by an individual to a third  

party (in that case a bank) carries with it a reasonable expectation that it will be utilised  

                                                           106 Ibid, at page 524 (para 54)

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only for the purpose for which it is provided. Parting with information (to the bank)  

does not deprive the individual of the privacy interest. The reasonable expectation is  

allied to the purpose for which information is provided. Seventhly, while legitimate  

aims of the state, such as the protection of the revenue may intervene to permit a  

disclosure to the state, the state must take care to ensure that the information is not  

accessed by a private entity. The decision in Canara Bank has thus important  

consequences for recognising informational privacy.   

 

67 After the decision in Canara Bank, the provisions for search and seizure under  

Section 132(5) of the Income Tax Act, 1961 were construed strictly by this Court in P  

R Metrani v Commissioner of Income Tax107 on the ground that they constitute a  

“serious intrusion into the privacy of a citizen”. Similarly, the search and seizure  

provisions of Sections 42 and 43 of the NDPS108 Act were construed by this Court in  

Directorate of Revenue v Mohd Nisar Holia109.  Adverting to Canara Bank, among  

other decisions, the Court held that the right to privacy is crucial and imposes a  

requirement of a written recording of reasons before a search and seizure could be  

carried out.    

 

68 Section 30 of the Punjab Excise Act, 1914 prohibited the employment of “any  

man under the age of 25 years” or “any woman” in any part of the premises in which  

                                                           107 (2007) 1 SCC 789  108 Narcotic Drugs and Psychotropic Substances Act, 1985  109 (2008) 2 SCC 370   

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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  

women to discharge the duty freely in accordance to the  

requirements of the profession they choose to follow. Any other  

policy inference (such as the one embodied under Section 30)  

from societal conditions would be oppressive on the women  

and against the privacy rights112…  

The Court’s task is to determine whether the measures  

furthered by the State in form of legislative mandate, to  

augment the legitimate aim of protecting the interests of  

women are proportionate to the other bulk of well-settled  

gender norms such as autonomy, equality of opportunity, right  

to privacy et al.113” (emphasis supplied)  

 

69 In Hinsa Virodhak Sangh v Mirzapur Moti Kuresh Jamat114 (“Hinsa  

Virodhak Sangh”), this Court dealt with the closure of municipal slaughterhouses in  

the city of Ahmedabad for a period of nine days each year during the Jain observance  

                                                           110 (2008) 3 SCC 1  111 Ibid, at page 15 (para 35)  112 Ibid, at pages 16-17 (para 43)  113 Ibid, at page 19 (para 51)  114 (2008) 5 SCC 33

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of paryushan, pursuant to the resolution of the municipal corporation. The High Court  

had set aside the resolutions. In appeal, this Court observed as follows:   

“Had the impugned resolutions ordered closure of municipal  

slaughterhouses for a considerable period of time we may have  

held the impugned resolutions to be invalid being an excessive  

restriction on the rights of the butchers of Ahmedabad who practise  

their profession of meat selling. After all, butchers are practising a  

trade and it is their fundamental right under Article 19(1)(g) of the  

Constitution which is guaranteed to all citizens of India. Moreover,  

it is not a matter of the proprietor of the butchery shop alone. There  

may be also several workmen therein who may become  

unemployed if the slaughterhouses are closed for a considerable  

period of time, because one of the conditions of the licence given  

to the shop-owners is to supply meat regularly in the city of  

Ahmedabad and this supply comes from the municipal  

slaughterhouses of Ahmedabad. Also, a large number of people are  

non-vegetarian and they cannot be compelled to become  

vegetarian for a long period. What one eats is one's personal  

affair and it is a part of his right to privacy which is included in  

Article 21 of our Constitution as held by several decisions of  

this Court. In R. Rajagopal v. State of T.N. [(1994) 6 SCC 632 :  

AIR 1995 SC 264] (vide SCC para 26 : AIR para 28) this Court held  

that the right to privacy is implicit in the right to life and liberty  

guaranteed by Article 21. It is a “right to be let alone”.”115                                                                       

(emphasis supplied)  

 

However, since the closure of slaughterhouses was for a period of nine days, the  

Court came to the conclusion that it did not encroach upon the freedom guaranteed  

by Article 19(1)(g). The restriction was held not to be excessive.    

 

                                                           115 Ibid, at pages 46-47 (para 27)

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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 above extract include Section 14,  

which requires details of the organized crime that is being committed or is about to be  

committed, before surveillance could be authorized. The requirements also mandate  

describing the nature and location of the facilities from which the communication is to  

be intercepted, the nature of the communication and the identity of the person, if it is  

known. A statement is also necessary on whether other modes of enquiry or  

intelligence gathering were tried or had failed or why they reasonably appear to be  

unlikely to succeed if tried or whether these would be too dangerous or would likely  

result in the identification of those connected with the operation. The duration of the  

surveillance is restricted in time and the provision requires “minimal interception”118.   

                                                           116 (2008) 13 SCC 5  117 Ibid, at page 28 (para 61)  118 Gautam Bhatia (supra note 82), at page 148

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71 During the course of the last decade, this Court has had occasion to deal with  

the autonomy of a woman and, as an integral part, her control over the body.  Suchita  

Srivastava v Chandigarh Administration119 (“Suchita Srivastava”) arose in the  

context of the Medical Termination of Pregnancy Act (MTP) Act, 1971. A woman who  

was alleged to have been raped while residing in a welfare institution run by the  

government was pregnant. The district administration moved the High Court to seek  

termination of the pregnancy. The High Court directed that the pregnancy be  

terminated though medical experts had opined that the victim had expressed her  

willingness to bear the child.  The High Court had issued this direction without the  

consent of the woman which was mandated under the statute where the woman is a  

major and does not suffer from a mental illness. The woman in this case was found to  

suffer from a case of mild to moderate mental retardation.  Speaking for a Bench of  

three judges, Chief Justice Balakrishnan held that the reproductive choice of the  

woman should be respected having regard to the mandate of Section 3. In the view  

of the Court:  

 

“There is no doubt that a woman's right to make reproductive  

choices is also a dimension of “personal liberty” as understood  

under Article 21 of the Constitution of India. It is important to  

recognise that reproductive choices can be exercised to procreate  

as well as to abstain from procreating. The crucial consideration  

is that a woman's right to privacy, dignity and bodily integrity  

should be respected. This means that there should be no  

restriction whatsoever on the exercise of reproductive choices such  

as a woman's right to refuse participation in sexual activity or  

alternatively the insistence on use of contraceptive methods.  

Furthermore, women are also free to choose birth control methods  

such as undergoing sterilisation procedures. Taken to their logical  

                                                           119 (2009) 9 SCC 1

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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-

charge of the welfare institution was bound to respect the personal autonomy of the  

woman.  

   

72 The decision in Suchita Srivastava dwells on the statutory right of a woman  

under the MTP Act to decide whether or not to consent to a termination of pregnancy  

and to have that right respected where she does not consent to termination.  The  

statutory recognition of the right is relatable to the constitutional right to make  

reproductive choices which has been held to be an ingredient of personal liberty under  

Article 21.  The Court deduced the existence of such a right from a woman’s right to  

privacy, dignity and bodily integrity.    

 

                                                           120 Ibid, at page 15 (para 22)

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73 In Bhavesh Jayanti Lakhani v State of Maharashtra121, this Court dealt with  

a challenge to the validity of an arrest warrant issued by a US court and a red corner  

notice issued by INTERPOL on the ground that the petitioner had, in violation of an  

interim custody order, returned to India with the child. The Court did not accept the  

submission that the CBI, by coordinating with INTERPOL had breached the  

petitioner’s right of privacy.  However, during the course of the discussion, this Court  

held as follows:    

“Right to privacy is not enumerated as a fundamental right either in  

terms of Article 21 of the Constitution of India or otherwise. It,  

however, by reason of an elaborate interpretation by this Court  

in Kharak Singh v. State of U.P. [AIR 1963 SC 1295 : (1964) 1 SCR  

332] was held to be an essential ingredient of “personal liberty”.”122   

“This Court, however, in Gobind v. State of M.P. upon taking an  

elaborate view of the matter in regard to right to privacy vis-à-vis  

the Madhya Pradesh Police Regulations dealing with surveillance,  

opined that the said Regulations did not violate the “procedure  

established by law”. However, a limited fundamental right to privacy  

as emanating from Articles 19(1)(a), (d) and 21 was upheld, but the  

same was held to be not absolute wherefore reasonable restrictions  

could be placed in terms of clause (5) of Article 19.”123   

   74 In Selvi v State of Karnataka124 (“Selvi”), a Bench of three judges of this Court  

dealt with a challenge to the validity of three investigative techniques:  narco-analysis,  

polygraph test (lie-detector test) and Brain Electrical Activation Profile (BEAP) on the  

ground that they implicate the fundamental rights under Articles 20(3) and 21 of the  

Constitution. The Court held that the results obtained through an involuntary  

                                                           121 (2009) 9 SCC 551  122 Ibid, at pages 584-585 (para 102)  123 Ibid, at page 585 (para 103)  124 (2010) 7 SCC 263

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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) 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's  

decision to make a statement is the product of a private choice and  

there should be no scope for any other individual to interfere with  

such autonomy, especially in circumstances where the person  

faces exposure to criminal charges or penalties…  

Therefore, it is our considered opinion that subjecting a person to  

the impugned techniques in an involuntary manner violates the  

prescribed boundaries of privacy. Forcible interference with a  

person's mental processes is not provided for under any statute and  

it most certainly comes into conflict with the “right against self-

incrimination”.”125  

 

 

                                                           125 Ibid, at pages 369-370 (paras 225-226)

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In tracing the right to privacy under Article 20(3), as well as Article 21, the decision  

marks a definite shift away from the M P Sharma rationale. The right not to be  

compelled to speak or to incriminate oneself when accused of an offence is an  

embodiment of the right to privacy. Selvi indicates how the right to privacy can  

straddle the ambit of several constitutional rights - in that case, Articles 20(3) and 21.  

 

75    In Bhabani Prasad Jena v Orissa State Commission for Women126, the Court  

was considering the question whether the High Court was justified in issuing a  

direction for a DNA test of a child and the appellant who, according to the mother of  

the child, was the father. It was held that:  

“In a matter where paternity of a child is in issue before the court,  

the use of DNA test is an extremely delicate and sensitive aspect.  

One view is that when modern science gives the means of  

ascertaining the paternity of a child, there should not be any  

hesitation to use those means whenever the occasion requires. The  

other view is that the court must be reluctant in the use of such  

scientific advances and tools which result in invasion of right to  

privacy of an individual and may not only be prejudicial to the rights  

of the parties but may have devastating effect on the child.  

Sometimes the result of such scientific test may bastardise an  

innocent child even though his mother and her spouse were living  

together during the time of conception.”127   

 

76 In Amar Singh v Union of India128, a Bench of two judges of this Court dealt  

with a petition under Article 32 alleging that the fundamental right to privacy of the  

                                                           126 (2010) 8 SCC 633  127 Ibid, at page 642 (para 21)  128 (2011) 7 SCC 69

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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 In Ram Jethmalani v Union of India130 (“Ram Jethmalani”), a Bench of two  

judges was dealing with a public interest litigation concerned with unaccounted  

monies and seeking the appointment of a Special Investigating Team to follow and  

investigate a money trail.  This Court held that the revelation of the details of the bank  

accounts of individuals without the establishment of a prima facie ground of  

wrongdoing would be a violation of the right to privacy. This Court observed thus:  

 

“Right to privacy is an integral part of right to life. This is a cherished  

constitutional value, and it is important that human beings be  

allowed domains of freedom that are free of public scrutiny unless  

they act in an unlawful manner. We understand and appreciate the  

fact that the situation with respect to unaccounted for monies is  

                                                           129 Ibid, at page 84 (para 39)  130 (2011) 8 SCC 1

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extremely grave. Nevertheless, as constitutional adjudicators we  

always have to be mindful of preserving the sanctity of constitutional  

values, and hasty steps that derogate from fundamental rights,  

whether urged by Governments or private citizens, howsoever well  

meaning they may be, have to be necessarily very carefully  

scrutinised. The solution for the problem of abrogation of one zone  

of constitutional values cannot be the creation of another zone of  

abrogation of constitutional values…  

The rights of citizens, to effectively seek the protection of  

fundamental rights, under clause (1) of Article 32 have to be  

balanced against the rights of citizens and persons under Article 21.  

The latter cannot be sacrificed on the anvil of fervid desire to find  

instantaneous solutions to systemic problems such as unaccounted  

for monies, for it would lead to dangerous circumstances, in which  

vigilante investigations, inquisitions and rabble rousing, by masses  

of other citizens could become the order of the day. The right of  

citizens to petition this Court for upholding of fundamental rights is  

granted in order that citizens, inter alia, are ever vigilant about the  

functioning of the State in order to protect the constitutional project.  

That right cannot be extended to being inquisitors of fellow citizens.  

An inquisitorial order, where citizens' fundamental right to  

privacy is breached by fellow citizens is destructive of social  

order. The notion of fundamental rights, such as a right to  

privacy as part of right to life, is not merely that the State is  

enjoined from derogating from them. It also includes the  

responsibility of the State to uphold them against the actions  

of others in the society, even in the context of exercise of  

fundamental rights by those others.”131 (emphasis supplied)  

 

The Court held that while the State could access details of the bank accounts of  

citizens as an incident of its power to investigate and prosecute crime, this would not  

enable a private citizen to compel a citizen to reveal bank accounts to the public at  

large.  

 

                                                           131 Ibid, at pages 35-36 (paras 83-84)

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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, Union of India134, Justice B  

S Chauhan in a concurring judgment held that:  

 

“Right to privacy has been held to be a fundamental right of the  

citizen being an integral part of Article 21 of the Constitution of India  

by this Court. Illegitimate intrusion into privacy of a person is not  

permissible as right to privacy is implicit in the right to life and liberty  

guaranteed under our Constitution. Such a right has been extended  

even to woman of easy virtues as she has been held to be entitled  

to her right of privacy. However, right of privacy may not be absolute  

and in exceptional circumstance particularly surveillance in  

consonance with the statutory provisions may not violate such a  

right.”135  

 

 

In the view of the Court, privacy and dignity of human life have “always been  

considered a fundamental human right of every human being” like other constitutional  

values such as free speech.  We must also take notice of the construction placed by  

                                                           132 (2011) 13 SCC 155  133 Ibid, at page 156 (para 6)  134 (2012) 5 SCC 1  135 Ibid, at pages 119-120 (para 312)

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the judgment on the decision in Kharak Singh as having “held that the right to privacy  

is a part of life under Article 21 of the Constitution” and which was reiterated in PUCL.    

 

80 The judgment of a Bench of two judges of this Court in Bihar Public Service  

Commission v Saiyed Hussain Abbas Rizwi136 dealt with the provisions of Section  

8(1)(g) of the Right to Information Act, 2005. A person claiming to be a public-spirited  

citizen sought information under the statute from the Bihar Public Service Commission  

on a range of matters relating to interviews conducted by it on two days. The  

commission disclosed the information save and except for the names of the interview  

board. The High Court directed disclosure. Section 8(1)(g) provides an exemption  

from disclosure of information of the following nature:   

“information, the disclosure of which would endanger the life or  

physical safety of any person or identify the source of information  

or assistance given in confidence for law enforcement and security  

purposes.”   

 

Justice Swatanter Kumar, speaking for the Court, held thus:   

“Certain matters, particularly in relation to appointment, are  

required to be dealt with great confidentiality. The information may  

come to knowledge of the authority as a result of disclosure by  

others who give that information in confidence and with complete  

faith, integrity and fidelity. Secrecy of such information shall be  

maintained, thus, bringing it within the ambit of fiduciary capacity.  

Similarly, there may be cases where the disclosure has no  

relationship to any public activity or interest or it may even  

cause unwarranted invasion of privacy of the individual. All  

these protections have to be given their due implementation as they  

spring from statutory exemptions. It is not a decision simpliciter  

between private interest and public interest. It is a matter  

                                                           136 (2012) 13 SCC 61

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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 the right of  

rape survivors to privacy, physical and mental integrity and dignity. The Court held  

thus:  

“In view of International Covenant on Economic, Social, and  

Cultural Rights 1966; United Nations Declaration of Basic Principles  

of Justice for Victims of Crime and Abuse of Power 1985, rape  

survivors are entitled to legal recourse that does not retraumatize  

them or violate their physical or mental integrity and dignity. They  

are also entitled to medical procedures conducted in a manner that  

respects their right to consent. Medical procedures should not be  

carried out in a manner that constitutes cruel, inhuman, or  

degrading treatment and health should be of paramount  

consideration while dealing with gender-based violence. The  

State is under an obligation to make such services available to  

survivors of sexual violence. Proper measures should be  

taken to ensure their safety and there should be no arbitrary or  

unlawful interference with his privacy.”139   (emphasis supplied)  

 

                                                           137 Ibid, at page 74 (para 23)  138 (2013) 14 SCC 643  139 Ibid, at page 648 (para 13)

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82 In Thalappalam Service Cooperative Bank Limited v State of Kerala140,  

another Bench of two judges considered the correctness of a decision of the Kerala  

High Court which upheld a circular issued by the Registrar of Cooperative Societies.  

By the circular all cooperative institutions under his administrative control were  

declared to be public authorities within the meaning of Section 2(h) of the Right to  

Information Act, 2005. Section 8(j) contains an exemption from the disclosure of  

personal information which has no relationship to any public activity or interest, or  

which would cause “unwarranted invasion of the privacy of the individual” unless the  

authority is satisfied that the larger public interest justifies its disclosure. This Court  

observed that the right to privacy has been recognized as a part of Article 21 of the  

Constitution and the statutory provisions contained in Section 8(j) of the RTI Act have  

been enacted by the legislature in recognition of the constitutional protection of  

privacy. The Court held thus:   

“The right to privacy is also not expressly guaranteed under the  

Constitution of India. However, the Privacy Bill, 2011 to provide for  

the right to privacy to citizens of India and to regulate the collection,  

maintenance and dissemination of their personal information and  

for penalisation for violation of such rights and matters connected  

therewith, is pending. In several judgments including Kharak  

Singh v. State of U.P .[AIR 1963 SC 1295 : (1963) 2 Cri LJ 329] , R.  

Rajagopal v. State of T.N. [(1994) 6 SCC 632] , People's Union for  

Civil Liberties v. Union of India [(1997) 1 SCC 301] and State of  

Maharashtra v. Bharat Shanti Lal Shah [(2008) 13 SCC 5] this  

Court has recognised the right to privacy as a fundamental right  

emanating from Article 21 of the Constitution of India.”141   

“Recognising the fact that the right to privacy is a sacrosanct facet  

of Article 21 of the Constitution, the legislation has put a lot of  

                                                           140 (2013) 16 SCC 82  141 Ibid, at page 112 (para 57)

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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 the Constitution in addition to those which have been provided by  

the legislature.  In that context, the leading judgment observes:  

 

“In this regard, inclusion of many a facet within the ambit of Article  

21 is well established. In R. Rajagopal v. State of T.N. [(1994) 6  

SCC 632] , right to privacy has been inferred from Article 21.  

Similarly, in Joginder Kumar v. State of U.P. [(1994) 4 SCC 260 :  

1994 SCC (Cri) 1172 : AIR 1994 SC 1349] , inherent rights under  

Articles 21 and 22 have been stated. Likewise, while dealing with  

freedom of speech and expression and freedom of press, the Court,  

in Romesh Thappar v. State of Madras [AIR 1950 SC 124 : (1950)  

51 Cri LJ 1514] , has observed that freedom of speech and  

expression includes freedom of propagation of ideas…  

There is no speck of doubt that the Court has applied the doctrine  

of implication to expand the constitutional concepts, but the context  

in which the horizon has been expanded has to be borne in mind…  

                                                           142 Ibid, at page 114 (para 64)  143 (2014) 9 SCC 1

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At this juncture, it is seemly to state that the principle of implication  

is fundamentally founded on rational inference of an idea from the  

words used in the text…  

Any proposition that is arrived at taking this route of interpretation  

must find some resting pillar or strength on the basis of certain  

words in the text or the scheme of the text.  In the absence of that,  

it may not be permissible for a court to deduce any proposition as  

that would defeat the legitimacy of reasoning.  A proposition can be  

established by reading a number of articles cohesively, for that will  

be in the domain of substantive legitimacy.”144 (emphasis supplied)  

 

 84 In National Legal Services Authority v Union of India145 (“NALSA”), a  

Bench of two judges, while dealing with the rights of transgenders, adverted to  

international conventions acceded to by India including the UDHR and ICCPR.  

Provisions in these conventions which confer a protection against arbitrary and  

unlawful interference with a person’s privacy, family and home would, it was held, be  

read in a manner which harmonizes the fundamental rights contained in Articles 14,  

15, 19 and 21 with India’s international obligations. Justice K S Radhakrishnan held  

that:  

 

“Gender identity, therefore, lies at the core of one's personal  

identity, gender expression and presentation and, therefore, it will  

have to be protected under Article 19(1)(a) of the Constitution of  

India. A transgender's personality could be expressed by the  

transgender's behaviour and presentation. State cannot prohibit,  

restrict or interfere with a transgender's expression of such  

personality, which reflects that inherent personality. Often the State  

and its authorities either due to ignorance or otherwise fail to digest  

the innate character and identity of such persons. We, therefore,  

hold that values of privacy, self-identity, autonomy and personal  

integrity are fundamental rights guaranteed to members of the  

transgender community under Article 19(1)(a) of the Constitution of  

                                                           144 Ibid, at pages 47-48 (paras 69-70)  145  (2014) 5 SCC 438

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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 to dignity has been recognised to  

be an essential part of the right to life and accrues to all persons on  

account of being humans. In Francis Coralie Mullin v. UT of  

Delhi[(1981) 1 SCC 608 : 1981 SCC (Cri) 212] (SCC pp. 618-19,  

paras 7 and 8), this Court held that the right to dignity forms an  

essential part of our constitutional culture which seeks to ensure the  

full development and evolution of persons and includes “expressing  

oneself in diverse forms, freely moving about and mixing and  

comingling with fellow human beings…147  

  

Article 21, as already indicated, guarantees the protection of  

“personal autonomy” of an individual. In Anuj Garg v. Hotel Assn. of  

India [(2008) 3 SCC 1] (SCC p. 15, paras 34-35), this Court held  

that personal autonomy includes both the negative right of not to be  

subject to interference by others and the positive right of individuals  

to make decisions about their life, to express themselves and to  

choose which activities to take part in. Self-determination of gender  

is an integral part of personal autonomy and self-expression and  

falls within the realm of personal liberty guaranteed under Article 21  

of the Constitution of India.148”  

 Dr Justice A K Sikri wrote a lucid concurring judgment.  

                                                           146 Ibid, at page 490 (para 72)  147 Ibid, at page 490 (para 73)  148 Ibid, at page 491 (para 75)

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NALSA indicates the rationale for grounding of a right to privacy in the protection of  

gender identity within Article 15. The intersection of Article 15 with Article 21 locates  

a constitutional right to privacy as an expression of individual autonomy, dignity and  

identity. NALSA indicates that the right to privacy does not necessarily have to fall  

within the ambit of any one provision in the chapter on fundamental rights. Intersecting  

rights recognise the right to privacy. Though primarily, it is in the guarantee of life and  

personal liberty under Article 21 that a constitutional right to privacy dwells, it is  

enriched by the values incorporated in other rights which are enumerated in Part III of  

the Constitution.   

 

85 In ABC v The State (NCT of Delhi)149, the Court dealt with the question  

whether it is imperative for an unwed mother to specifically notify the putative father  

of the child of her petition for appointment as guardian of her child. It was stated by  

the mother of the child that she does not want the future of her child to be marred by  

any controversy regarding his paternity, which would indubitably result should the  

father refuse to acknowledge the child as his own. It was her contention that her own  

fundamental right to privacy will be violated if she is compelled to disclose the name  

and particulars of the father of her child. Looking into the interest of the child, the  

Bench directed that “if a single parent/unwed mother applies for the issuance of a Birth  

Certificate for a child born from her womb, the Authorities concerned may only require  

                                                           149 (2015) 10 SCC 1

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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 fundamental right that all people  

enjoy”. Justice Lokur observed thus:    

“The balance between transparency and confidentiality is very  

delicate and if some sensitive information about a particular person  

is made public, it can have a far-reaching impact on his/her  

reputation and dignity. The 99th Constitution Amendment Act and  

the NJAC Act have not taken note of the privacy concerns of an  

individual. This is important because it was submitted by the  

learned Attorney General that the proceedings of NJAC will be  

completely transparent and any one can have access to information  

that is available with NJAC. This is a rather sweeping  

generalization which obviously does not take into account the  

privacy of a person who has been recommended for  

appointment, particularly as a Judge of the High Court or in the  

first instance as a Judge of the Supreme Court. The right to  

know is not a fundamental right but at best it is an implicit  

fundamental right and it is hedged in with the implicit  

fundamental right to privacy that all people enjoy. The balance  

between the two implied fundamental rights is difficult to maintain,  

                                                           150 Ibid, at page 18 (para 28)  151 (2016) 5 SCC 1

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but the 99th Constitution Amendment Act and the NJAC Act do not  

even attempt to consider, let alone achieve that balance.”152                  

(emphasis supplied)                             

 

87 A comprehensive analysis of precedent has been necessary because it  

indicates the manner in which the debate on the existence of a constitutional right to  

privacy has progressed. The content of the constitutional right to privacy and its  

limitations have proceeded on a case to case basis, each precedent seeking to build  

upon and follow the previous formulations. The doctrinal foundation essentially rests  

upon the trilogy of M P Sharma – Kharak Singh – Gobind upon which subsequent  

decisions including those in Rajagopal, PUCL, Canara Bank, Selvi and NALSA have  

contributed. Reconsideration of the doctrinal basis cannot be complete without  

evaluating what the trilogy of cases has decided.   

 

88 M P Sharma dealt with a challenge to a search on the ground that the statutory  

provision which authorized it, violated the guarantee against self-incrimination in  

Article 20(3). In the absence of a specific provision like the Fourth Amendment to the  

US Constitution in the Indian Constitution, the Court answered the challenge by its  

ruling that an individual who is subject to a search during the course of which material  

is seized does not make a voluntary testimonial statement of the nature that would  

attract Article 20(3). The Court distinguished a compulsory search from a voluntary  

statement of disclosure in pursuance of a notice issued by an authority to produce  

                                                           152 Ibid, at page 676 (para 953)

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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 first dealing with  

the validity of a regulation for nocturnal domiciliary visits (which was struck down) and  

the second dealing with the rest of the regulation (which was upheld). The decision  

on the first part, which dealt with Regulation 236(b) conveys an inescapable  

impression that the regulation invaded the sanctity of the home and was a violation of  

ordered liberty. Though the reasoning of the Court does not use the expression  

‘privacy’, it alludes to the decision of the US Supreme Court in Wolf v Colorado, which  

deals with privacy. Besides, the portion extracted in the judgment has a reference to  

privacy specifically at two places. While holding domiciliary visits at night to be invalid,  

the Court drew sustenance from the right to life under Article 21 which means

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something more than a mere animal existence. The right under Article 21 includes the  

enjoyment of those faculties which render the right meaningful. Hence, the first part  

of the decision in Kharak Singh represents an amalgam of life, personal liberty and  

privacy. It protects interests which are grounded in privacy under the rubric of liberty.  

The difficulty in construing the decision arises because in the second part of its  

decision, the majority upheld the rest of the regulation and observed (while doing so)  

that there is an absence of a protected right to privacy under the Constitution. These  

observations in the second part are at variance with those dealing with the first. The  

view about the absence of a right to privacy is an isolated observation which cannot  

coexist with the essential determination rendered on the first aspect of the regulation.  

Subsequent Benches of this Court in the last five decades and more, have attempted  

to make coherent doctrine out of the uneasy coexistence between the first and the  

second parts of the decision in Kharak Singh. Several of them rely on the protection  

of interests grounded in privacy in the first part, under the conceptual foundation of  

ordered liberty.  

 

90 Gobind proceeded on the basis of an assumption and explains what according  

to the Court would be the content of the right to privacy if it is held to be a constitutional  

right. Gobind underlines that the right would be intrinsic to ordered liberty and would  

cover intimate matters such as family, marriage and procreation. Gobind, while  

recognizing that the right would not be absolute and would be subject to the regulatory  

power of the State, conditioned the latter on the existence of a compelling state

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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, narco-analysis, gender based identity, medical information, informational  

autonomy and other manifestations of privacy. As far as the decisions following upon  

Gobind are concerned, it does emerge that the assumptions which find specific  

mention in several parts of the decision were perhaps not adequately placed in  

perspective. Gobind has been construed by subsequent Benches as affirming the  

right to privacy.   

 

91 The right to privacy has been traced in the decisions which have been rendered  

over more than four decades to the guarantee of life and personal liberty in Article 21

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and the freedoms set out in Article 19. In addition, India’s commitment to a world order  

founded on respect for human rights has been noticed along with the specific articles  

of the UDHR and the ICCPR which embody the right to privacy.153 In the view of this  

Court, international law has to be construed as a part of domestic law in the absence  

of legislation to the contrary and, perhaps more significantly, the meaning of  

constitutional guarantees must be illuminated by the content of international  

conventions to which India is a party. Consequently, as new cases brought new issues  

and problems before the Court, the content of the right to privacy has found  

elaboration in these diverse contexts. These would include telephone tapping (PUCL),  

prior restraints on publication of material on a death row convict (Rajagopal),  

inspection and search of confidential documents involving the banker - customer  

relationship (Canara Bank), disclosure of  HIV status (Mr X v Hospital Z), food  

preferences and animal slaughter (Hinsa Virodhak Sangh), medical termination of  

pregnancy (Suchita Srivastava), scientific tests in criminal investigation (Selvi),  

disclosure of bank accounts held overseas (Ram Jethmalani) and the right of  

transgenders (NALSA). Early cases dealt with police regulations authorising  

intrusions on liberty, such as surveillance. As Indian society has evolved, the assertion  

of the right to privacy has been considered by this Court in varying contexts replicating  

the choices and autonomy of the individual citizen.  

 

                                                           153 See Rishika Taneja and Sidhant Kumar, Privacy Law: Principles, Injunctions and Compensation, Eastern  Book Company (2014), for a comprehensive account on the right to privacy and privacy laws in India.

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92 The deficiency, however, is in regard to a doctrinal formulation of the basis on  

which it can be determined as to whether the right to privacy is constitutionally  

protected. M P Sharma need not have answered the question; Kharak Singh dealt  

with it in a somewhat inconsistent formulation while Gobind rested on assumption. M  

P Sharma being a decision of eight judges, this Bench has been called upon to decide  

on the objection of the Union of India to the existence of such a right in the first place.  

 

I The Indian Constitution    

 Preamble   

93 The Preamble to the Constitution postulates that the people of India have  

resolved to constitute India into a Republic which (among other things) is Sovereign  

and Democratic and to secure to all its citizens:  

“JUSTICE, social, economic and political;  

LIBERTY of thought, expression, belief, faith and worship;  

EQUALITY of status and of opportunity; and to promote among  

them all  

FRATERNITY assuring 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  

                                                           154 (1965) 1 SCR 933

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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 Bharati”),  

Chief Justice Sikri noticed that the Preamble is a part of the Constitution.  The  

Preamble emphasises the need to secure to all citizens justice, liberty, equality and  

fraternity. Together they constitute the founding faith or the blueprint of values  

embodied with a sense of permanence in the constitutional document. The Preamble  

speaks of securing liberty of thought, expression, belief, faith and worship.  Fraternity  

is to be promoted to assure the dignity of the individual.  The individual lies at the core  

of constitutional focus and the ideals of justice, liberty, equality and fraternity animate  

the vision of securing a dignified existence to the individual.  The Preamble envisions  

a social ordering in which fundamental constitutional values are regarded as  

indispensable to the pursuit of happiness. Such fundamental values have also found  

reflection in the foundational document of totalitarian regimes in other parts of the  

world. What distinguishes India is the adoption of a democratic way of life, founded  

on the rule of law. Democracy accepts differences of perception, acknowledges  

divergences in ways of life, and respects dissent.   

 

 

 

                                                           155 (1973) 4  SCC 225

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Jurisprudence on dignity  

 

96 Over the last four decades, our constitutional jurisprudence has recognised the  

inseparable relationship between protection of life and liberty with dignity. Dignity as  

a constitutional value finds expression in the Preamble. The constitutional vision  

seeks the realisation of justice (social, economic and political); liberty (of thought,  

expression, belief, faith and worship); equality (as a guarantee against arbitrary  

treatment of individuals) and fraternity (which assures a life of dignity to every  

individual). These constitutional precepts exist in unity to facilitate a humane and  

compassionate society. The individual is the focal point of the Constitution because it  

is in the realisation of individual rights that the collective well being of the community  

is determined.  Human dignity is an integral part of the Constitution. Reflections of  

dignity are found in the guarantee against arbitrariness (Article 14), the lamps of  

freedom (Article 19) and in the right to life and personal liberty (Article 21).   

 

97 In Prem Shankar Shukla v Delhi Administration156, which arose from the  

handcuffing of the prisoners, Justice Krishna Iyer, speaking for a three-judge Bench  

of this Court held:  

 “…the guarantee of human dignity, which forms part of our  

constitutional culture, and the positive provisions of Articles 14, 19  

and 21 spring into action when we realise that to manacle man is  

more than to mortify him; it is to dehumanize him and, therefore, to  

                                                           156 (1980) 3 SCC 526

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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 to life enshrined in Article 21 cannot be restricted to mere  

animal existence. It means something much more than just physical  

survival.161   

…We think that the right to life includes the right to live with human  

dignity and all that goes along with it, namely, the bare necessaries  

of life such as adequate nutrition, clothing and shelter and facilities  

for reading, writing and expressing one-self in diverse forms, freely  

moving about and mixing and commingling with fellow human  

beings…Every act which offends against or impairs human dignity  

would constitute deprivation pro tanto of this right to live and it would  

have to be in accordance with reasonable, fair and just procedure  

                                                           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)

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established by law  which stands the test of other fundamental  

rights…162”  

 

99 In Bandhua Mukti Morcha v Union of India163, a Bench of three judges of this  

Court while dealing with individuals who were living in bondage observed that:    

 “…This right to live with human dignity enshrined in Article  

21 derives its life breath from the Directive Principles of  

State Policy and particularly Clause (e) and (f) of “Article 39  

and Arts. 41 and 42 and at the least, therefore, it must  

include protection of the health and strength of the workers,  

men and women, and of the tender age of children against  

abuse, opportunities and facilities for children to develop in  

a healthy manner and in conditions of freedom and dignity,  

educational facilities, just and humane conditions of work  

and maternity relief. These are the minimum requirements  

which must exist in order to enable a person to live with  

human dignity, and nor State - neither the Central  

Government - has the right to take any action which will  

deprive a person of the enjoyment of these basic  

essentials.”164  

 

100 Dealing with an allegation that activists of an organization were arrested and  

paraded throughout the town by the police and were beaten up in police custody, this  

Court in Khedat Mazdoor Chetna Sangath v State of M P165 held that:    

 “It is, therefore, absolutely essential in the interest of justice,  

human dignity and democracy that this Court must  

intervene; order an investigation determine the correct facts  

and take strongest possible action against the respondents  

who are responsible for these atrocities…166   

                                                           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)

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If dignity or honor vanishes what remains of life. 167”   

 

101 Human dignity was construed in M Nagaraj v Union of India168 by a  

Constitution Bench of this Court to be intrinsic to and inseparable from human  

existence.  Dignity, the Court held, is not something which is conferred and which can  

be taken away, because it is inalienable:    

 “The rights, liberties and freedoms of the individual are not  

only to be protected against the State, they should be  

facilitated by it… It is the duty of the State not only to  

protect the human dignity but to facilitate it by taking  

positive steps in that direction. No exact definition of  

human dignity exists. It refers to the intrinsic value of  

every human being, which is to be respected. It cannot  

be taken away. It cannot give. It 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, rights conferred on citizens and non-citizens are  

not merely individual or personal rights. They have a large  

social and political content, because the objectives of the  

Constitution cannot be otherwise realized.170” (emphasis  

supplied)  

 

                                                           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)

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102 In Maharashtra University of Health Sciences v Satchikitsa Prasarak  

Mandal171, this Court held that the dignity of the individual is a core constitutional  

concept.  In Selvi, this Court recognised that:    

“…we must recognize that a forcible intrusion into a person's  

mental processes is also an affront to human dignity and  

liberty, often with grave and long-lasting  

consequences…”172    

 

103 In Dr Mehmood Nayyar Azam v State of Chhattisgarh173, this Court noted  

that when dignity is lost, life goes into oblivion.  The same emphasis on dignity finds  

expression in the decision in NALSA.  

  

104 The same principle was more recently reiterated in Shabnam v Union of  

India174 in the following terms:  

“This right to human dignity has many elements. First and foremost,  

human dignity is the dignity of each human being ‘as a human  

being’. Another element, which needs to be highlighted, in the  

context of the present case, is that human dignity is infringed if a  

person’s life, physical or mental welfare is alarmed. It is in this  

sense torture, humiliation, forced labour, etc. all infringe on human  

dignity. It is in this context many rights of the accused derive from  

his dignity as a human being.”175  

 

                                                           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)

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105 The recent decision in Jeeja Ghosh v Union of India176 construed the  

constitutional protection afforded to human dignity. The Court observed:    

“…human dignity is a constitutional value and a constitutional goal.  

What are the dimensions of constitutional value of human dignity?  

It is beautifully illustrated by Aharon Barak177 (former Chief Justice  

of the Supreme Court of Israel) in the following manner:  

“The constitutional value of human dignity has a  

central normative role. Human dignity as a  

constitutional value is the factor that unites the human  

rights into one whole. It ensures the normative unity of  

human rights. This normative unity is expressed in the  

three ways: first, the value of human dignity serves as  

a normative basis for constitutional rights set out in the  

constitution; second, it serves as an interpretative  

principle for determining the scope of constitutional  

rights, including the right to human dignity; third, the  

value of human dignity has an important role in  

determining the proportionality of a statute limiting a  

constitutional right.”178    

 

106 Life is precious in itself.  But life is worth living because of the freedoms which  

enable each individual to live life as it should be lived. The best decisions on how life  

should be lived are entrusted to the individual. They are continuously shaped by the  

social milieu in which individuals exist. The duty of the state is to safeguard the ability  

to take decisions – the autonomy of the individual – and not to dictate those decisions.  

‘Life’ within the meaning of Article 21 is not confined to the integrity of the physical  

                                                           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)

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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 the fundamental rights because the fundamental rights seek to achieve for each  

individual the dignity of existence. Privacy with its attendant values assures dignity to  

the individual and it is only when life can be enjoyed with dignity can liberty be of true  

substance.  Privacy ensures the fulfilment of dignity and is a core value which the  

protection of life and liberty is intended to achieve.     

 

Fundamental Rights cases  

108 In Golak Nath v State of Punjab179, there was a challenge to the Punjab  

Security of Land Tenures Act, 1953 and to the Mysore Land Reforms Act (as  

amended) upon their inclusion in the Ninth Schedule to the Constitution.   

  

Chief Justice Subba Rao dwelt on the rule of law and its purpose in ensuring that  

every authority constituted by the Constitution is subject to it and functions within its  

                                                           179 (1967) 2 SCR 762

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parameters.  One of the purposes of constraining governmental power was to shield  

the fundamental freedoms against legislative majorities.  This thought is reflected in  

the following extract from the judgment of Chief Justice Subba Rao:  

“…But, having regard to the past history of our country, it could not  

implicitly believe the representatives of the people, for uncontrolled  

and unrestricted power might lead to an authoritarian State. It,  

therefore, preserves the natural rights against the State  

encroachment and constitutes the higher judiciary of the State  

as the sentinel of the said rights and the balancing wheel  

between the rights, subject to social control. In short, the  

fundamental rights, subject to social control, have been  

incorporated in the rule of law…”180      (emphasis supplied)  

 

The learned Judge emphasised the position of the fundamental rights thus:  

“…They are the rights of the people preserved by our Constitution.  

“Fundamental Rights” are the modern name for what have  

been traditionally known as “natural rights”.  As one author  

puts: “they are moral rights which every human being everywhere  

all times ought to have simply because of the fact that in  

contradistinction with other things is rational and moral”.  They are  

the primordial rights necessary for the development of human  

personality. They are the rights which enable a man to chalk out of  

his own life in the manner he likes best…”181  (emphasis supplied)  

 

The fundamental rights, in other words, are primordial rights which have traditionally  

been regarded as natural rights.  In that character these rights are inseparable from  

human existence.  They have been preserved by the Constitution, this being a  

recognition of their existence even prior to the constitutional document.   

                                                           180 Ibid, at page 788  181 Ibid, at page 789

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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 in the Preamble, adopted the  

democratic ideal, which assures to the citizen the dignity of the  

individual and other cherished human values as a means to the full  

evolution and expression of his personality, and in delegating to the  

legislature, the executive and the judiciary their respective powers  

in the Constitution, reserved to themselves certain fundamental  

rights so-called, I apprehend because they have been retained by  

the people and made paramount to the delegated powers, as in the  

American Model. (Per Patanjali Sastri, J., in Gopalan v. State of  

Madras. [AIR 1950 SC 27: 1950 SCR 88, 198-199 : 1950 SCJ 174]  

(Emphasis supplied).   

 

(ii) “That article (Article 19) enumerates certain freedoms under the  

caption ‘right to freedom’ and deals with those great and basic  

rights which are recognised and guaranteed as the natural  

rights inherent in the status of a citizen of a free country. (Per  

Patanjali Sastri, C J., in State of West Bengal v. Subodh Gopal  

Bose [AIR 1954 SC 92 : 1954 SCR 587, 596 : 1954 SCJ 127] )  

(Emphasis supplied).   

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“I have no doubt that the framers of our Constitution drew the same  

distinction and classed the natural right or capacity of a citizen ‘to  

acquire, hold and dispose of property’ with other natural rights and  

freedoms inherent in the status of a free citizen and embodied them  

in Article 19(1)… (ibid, p. 597)” (Emphasis supplied).  

 

“For all these reasons, I am of opinion that under the scheme of the  

Constitution, all those broad and basic freedoms inherent in the  

status of a citizen as a free man are embodied and protected from  

invasion by the State under clause (1) of Article 19…” (ibid, p. 600)  

(Emphasis supplied).   

 

(iii) “The people, however, regard certain rights as paramount,  

because they embrace liberty of action to the individual in  

matters of private life, social intercourse and share in the  

Government of the country and other spheres. The people who  

vested the three limbs of Government with their power and  

authority, at the same time kept back these rights of citizens and  

also some times of non-citizens, and made them inviolable except  

under certain conditions. The rights thus kept back are placed in  

Part III of the Constitution, which is headed ‘Fundamental Rights’,  

and the conditions under which these rights can be abridged are  

also indicated in that Part. (Per Hidayatullah,J. in Ujjambai v. State  

of U.P. [(1963) 1 SCR 778, 926-27 : AIR 1962 SC 1621]) (Emphasis  

supplied).   

 

301. The High Court Allahabad has described them as follows:  

“(iv)…man has certain natural or inalienable rights and that it  

is the function of the State, in order that human liberty might  

be preserved and human personality developed, to give  

recognition and free play to those rights…suffice it to say that  

they represent a trend in the democratic thought of our age. (Motilal  

v. State of U.P.)” (Emphasis supplied).”182  

 

This was the doctrinal basis for holding that the fundamental rights could not be  

“amended out of existence”.  Elaborating all those features of the Constitution which  

formed a part of the basic structure, Sikri, C J held that:  

                                                           182 Supra note 155, at page 367-368 (para 300)

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“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 following  

features:  

(1) Supremacy of the Constitution;  

(2) Republican and Democratic form of Government;  

(3) Secular character of the Constitution;  

(4) Separation of powers between the legislature, the executive and  

the judiciary;  

(5) Federal character of the Constitution.”183  

 

 

Justices Shelat and Grover held that “[t]he dignity of the individual secured by the  

various freedoms and basic rights in Part III and the mandate to build a welfare State  

contained in Part IV”184 constituted a part of the basic structure.   

Justices Hegde and Mukherjea emphasised that the primary object before the  

Constituent Assembly were: (i) to constitute India into a sovereign, democratic  

republic and (ii) to secure its citizens the rights mentioned in it.  Hence, the learned  

Judges found it impossible to accept that the Constitution makers would have made  

a provision in the Constitution itself for the destruction of the very ideals which they  

had embodied in the fundamental rights. Hence, Parliament had no power to abrogate  

the fundamental features of the Constitution including among them “the essential  

features of the individual freedoms secured to the citizens”.   

“On a careful consideration of the various aspects of the case, we  

are convinced that the Parliament has no power to abrogate or  

                                                           183 Ibid, at page 366 (para 292)  184 Ibid, at page 454 (para 582)

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emasculate the basic elements or fundamental features of the  

Constitution such as the sovereignty of India, the democratic  

character of our polity, the unity of the country, the essential  

features of the individual freedoms secured to the citizens. Nor  

has the Parliament the power to revoke the mandate to build a  

welfare State and egalitarian society. These limitations are only  

illustrative and not exhaustive. Despite these limitations, however,  

there can be no question that the amending power is a wide power  

and it reaches every Article and every part of the Constitution. That  

power can be used to reshape the Constitution to fulfil the obligation  

imposed on the State. It can also be used to reshape the  

Constitution within the limits mentioned earlier, to make it an  

effective instrument for social good. We are unable to agree with  

the contention that in order to build a welfare State, it is  

necessary to destroy some of the human freedoms. That, at  

any rate is not the perspective of our Constitution. Our  

Constitution envisages that the State should without delay  

make available to all the citizens of this country the real  

benefits of those freedoms in a democratic way. Human  

freedoms are lost gradually and imperceptibly and their destruction  

is generally followed by authoritarian rule. That is what history has  

taught us. Struggle between liberty and power is eternal. Vigilance  

is the price that we like every other democratic society have to pay  

to safeguard the democratic values enshrined in our Constitution.  

Even the best of Governments are not averse to have more and  

more power to carry out their plans and programmes which they  

may sincerely believe to be in public interest. But a freedom once  

lost is hardly ever regained except by 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 of the Constitution…”186  

 

                                                           185 Ibid, at pages 486-487 (para 666)  186 Ibid, at page 666 (para 1212)

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Justice Khanna in the course of the summation of his conclusions held, as regards  

the power of amendment, that:  

“The power of amendment under Article 368 does not include the  

power to abrogate the Constitution nor does it include the power to  

alter the basic structure or framework of the Constitution. Subject to  

the retention of the basic structure or framework of the Constitution,  

the power of amendment is plenary and includes within itself the  

power to amend the various articles of the Constitution, including  

those relating to fundamental rights as well as those which may be  

said to relate to essential features. No part of a fundamental right  

can claim immunity from amendatory process by being described  

as the essence, or core of that right. The power of amendment  

would also include within itself the power to add, alter or repeal the  

various articles.”187  

 

Significantly, even though Justice Mathew was in the minority, the learned Judge in  

the course of his decision observed the importance of human dignity:   

“The social nature of man, the generic traits of his physical and  

mental constitution, his sentiments of justice and the morals within,  

his instinct for individual and collective preservations, his desire for  

happiness, his sense of human dignity, his consciousness of man’s  

station and purpose in life, all these are not products of fancy but  

objective factors in the realm of existence…”188  

 

110 In Indira Nehru Gandhi v Raj Narain189, Justice Khanna clarified that his view  

in Kesavananda Bharati is that Parliament in the exercise of its power to amend the  

Constitution cannot destroy or abrogate the basic structure of the Constitution. No  

distinction was made in regard to the scope of the amending power relating to the  

                                                           187 Ibid, at page 824 (para 1537(vii))  188 Ibid, at pages 866-867 (para 1676)  189 (1975) 1 Suppl. SCC 1

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provisions of the fundamental rights and in respect of matters other than the  

fundamental rights:  

“…The limitation inherent in the word “amendment” according to  

which it is not permissible by amendment of the Constitution to  

change the basic structure of the Constitution was to operate  

equally on articles pertaining to fundamental rights as on other  

articles not pertaining to those rights…”190  

  

Justice Khanna noted that the right to property was held by him not to be a part of the  

basic structure. Justice Khanna observed that it would have been unnecessary for  

him to hold so, if none of the fundamental rights were to be a part of the basic structure  

of the Constitution.   

 

111 Chandrachud C J, in the course of his judgment for the Constitution Bench in  

Minerva Mills Ltd v Union of India191, traced the history of the evolution of inalienable  

rights, founded in inviolable liberties, during the course of the freedom movement and  

observed that both Parts III and IV of the Constitution had emerged as inseparably  

inter-twined, without a distinction between the negative and positive obligations of the  

state.   

The Constitution, in this view, is founded on “the bedrock of the balance between  

Parts III and IV” and to give absolute primacy to one over the other would be to disturb  

the harmony of the Constitution. In the view of the Chief Justice:  

                                                           190 Ibid, at page 115 (para 251)  191 (1980) 3 SCC 625

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“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 democratic polity which carries with it the  

obligation of securing to the people liberty of thought, expression,  

belief, faith and worship; equality of status and of opportunity and  

the assurance that the dignity of the individual will at all costs be  

preserved. We, therefore, put Part III in our Constitution conferring  

those rights on the people…”192  

 

Articles 14 and 19, the Court held, confer rights essential for the proper functioning of  

a democracy and are universally so regarded by the Universal Declaration of Human  

Rights. Withdrawing the protection of Articles 14 and 19 was plainly impermissible  

and the immunity granted by the 42nd Amendment to the Constitution to a law against  

the challenge that it violates Articles 14 or 19 (if the law is for giving effect to the  

Directive Principles) amounted to a violation of the basic structure.   

 

No waiver of Fundamental Rights  

112 In Behram Khurshed Pesikaka v The State of Bombay193, Chief Justice  

Mahajan, speaking for the Constitution Bench, noted the link between the  

constitutional vision contained in the Preamble and the position of the fundamental  

rights as a means to facilitate its fulfilment.  Though Part III embodies fundamental  

rights, this was construed to be part of the wider notion of securing the vision of justice  

                                                           192 Ibid, at page 654 (para 57)   193 (1955) 1 SCR 613

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of the founding fathers and, as a matter of doctrine, the rights guaranteed were held  

not to be capable of being waived.  Mahajan, CJ, observed:  

“We think that the rights described as fundamental rights are a  

necessary consequence of the declaration in the Preamble that the  

people of India have solemnly resolved to constitute India into a  

sovereign 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.   

These fundamental rights have not been put in the Constitution  

merely for individual benefit, though ultimately they come into  

operation in considering individual rights. They have been put there  

as a matter of public policy and the doctrine of waiver can have no  

application to provisions of law which have been enacted as a  

matter of constitutional policy.”194  

 

Privacy as intrinsic to freedom and liberty  

113 The submission that recognising the right to privacy is an exercise which would  

require a constitutional amendment and cannot be a matter of judicial interpretation is  

not an acceptable doctrinal position. The argument assumes that the right to privacy  

is independent of the liberties guaranteed by Part III of the Constitution.  There lies  

the error. The right to privacy is an element of human dignity.  The sanctity of privacy  

lies in its functional relationship with dignity. Privacy ensures that a human being can  

lead a life of dignity by securing the inner recesses of the human personality from  

unwanted intrusion.  Privacy recognises the autonomy of the individual and the right  

of every person to make essential choices which affect the course of life. In doing so  

privacy recognises that living a life of dignity is essential for a human being to fulfil the  

                                                           194 Ibid, at pages 653-654

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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 available to each person  

under the fabric of those constitutional guarantees which are protected. Courts have  

traditionally discharged that function and in the context of Article 21 itself, as we have  

already noted, a panoply of protections governing different facets of a dignified  

existence has been held to fall within the protection of Article 21.  

 

114 In Olga Tellis v Bombay Municipal Corporation195, Chandrachud C J, while  

explaining the ambit of Article 21 found a rationale for protecting the right to livelihood  

as an incident of the right to life. For, as the Court held, deprivation of livelihood would  

result in the abrogation of the right to life:  

“148. The sweep of the right to life conferred by Article 21 is wide  

and far-reaching.  It does not mean merely that life cannot be  

extinguished or taken away as, for example, by the imposition and  

execution of the death sentence, except according to procedure  

established by law.  That is but one aspect of the right to life. An  

equally important facet of that right is the right to livelihood because,  

no person can live without the means of living, that is, the means of  

livelihood. If the right to livelihood is not treated as a part of the  

constitutional right to life, the easiest way of depriving a person of  

his right to life would be to deprive him of his means of livelihood to  

the point of abrogation. Such deprivation would not only denude the  

                                                           195 (1985) 3 SCC 545

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life of its effective content and meaningfulness but it would make  

life impossible to live. And yet, such deprivation would not have to  

be in accordance with the procedure established by law, if the right  

to livelihood is not regarded as a part of the right to life.  That, which  

alone makes it possible to live, leave aside what makes life liveable,  

must be deemed to be an integral component of the right to life.  

Deprive a person of his right to livelihood and you shall have  

deprived him of his life…”196    

 

115 In Unnikrishnan v State of Andhra Pradesh197, Justice Jeevan Reddy,  

speaking for this Court, held that though the right to education (as the Constitution  

then stood) was not “stated expressly as a fundamental right” in Part III, that would  

not militate against its being protected under the rubric of life under Article 21. These  

decisions have been ultimately guided by the object of a Constitutional Court which  

must be to expand the boundaries of fundamental human freedoms rather than to  

attenuate their content through a constricted judicial interpretation  In  Maneka,  it has  

been stated that:  

“The attempt of the court should be to expand the reach and ambit  

of the fundamental rights rather than attenuate their meaning and  

content by process of judicial construction…  

“personal liberty” in Article 21 is of the widest amplitude.”198  

 

 

116 Now, would this Court in interpreting the Constitution freeze the content of  

constitutional guarantees and provisions to what the founding fathers perceived?  The  

Constitution was drafted and adopted in a historical context.  The vision of the  

founding fathers was enriched by the histories of suffering of those who suffered  

                                                           196 Ibid, at page 572 (para 32)  197 (1993) 1 SCC 645  198 Maneka (Supra note 5), at page 280 (para 5)

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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 flexibly to meet the  

challenges in a rapidly growing knowledge economy.  Above all, constitutional  

interpretation is but a process in achieving justice, liberty and dignity to every citizen.   

 

117 Undoubtedly, there have been aberrations.  In the evolution of the doctrine in  

India, which places the dignity of the individual and freedoms and liberties at the  

forefront, there have been a few discordant notes. Two of them need attention.   

 Discordant Notes   

(i) ADM Jabalpur   

118 In ADM Jabalpur v Shivakant Shukla199 (“ADM Jabalpur”), the issue before  

this Court was whether an order issued by the President under Article 359(1) of the  

Constitution suspends the right of every person to move any Court for the enforcement  

of the right to personal liberty under Article 21 upon being detained under a law  

providing for preventive detention.  The submission of the detenues in this Court was  

                                                           199 (1976) 2 SCC 521

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that the suspension of the remedy to enforce Article 21 does not automatically entail  

suspension of the right or the rule of law and that even during an emergency the rule  

of law could not be suspended. A majority of four judges of this Court (Justice H R  

Khanna dissenting) held that:  

“Liberty is confined and controlled by law, whether common law or  

statute. It is in the words of Burke a regulated freedom. It is not an  

abstract or absolute freedom. The safeguard of liberty is in the good  

sense of the people and in the system of representative and  

responsible government which has been evolved. If extraordinary  

powers are given, they are given because the emergency is  

extraordinary, and are limited to the period of the emergency.”200  

 

 

Dealing with the issue as to whether Article 21 is the sole repository of the right to life,  

Ray C J, observed that where any right which existed before the commencement of  

the Constitution has been incorporated in Part III, the common law right would not  

exist under the Constitution.  In a concurring judgment Justice Beg held that while  

adopting the Constitution, there was a notional surrender by the people of India of the  

control over these rights to a sovereign republic and it is only the Constitution which  

is supreme and which can confer rights and powers. There was, in this view, a notional  

surrender of individual freedom. Justice Beg held that:  

“The whole object of guaranteed fundamental rights is to make  

those basic aspects of human freedom, embodied in fundamental  

rights, more secure than others not so selected. In thus recognising  

and declaring certain basic aspects of rights as fundamental by the  

Constitution of the country, the purpose was to protect them against  

undue encroachments upon them by the legislative, or executive,  

and, sometimes even judicial (e.g. Article 20) organs of the State.  

The encroachment must remain within permissible limits and must  

                                                           200 Ibid, at page 571 (para 33)

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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 if it mentions Articles 19, 20, 21 and 22 because, every  

preliminary objection by the Government to a petition to enforce the  

right to personal liberty can be effectively answered by contending  

that what is being enforced is either the natural right to personal  

liberty or generally, the pre-Constitution right to personal liberty.  

The error of the respondents argument lies in its assumption,  

and in regard to the argument of some of the counsel in its  

major articulate premise, that the qualitative content of the  

non-constitutional or pre-constitutional right to personal  

liberty is different from the content of the right to personal  

liberty conferred by Part III of the Constitution…”202               

(emphasis supplied)  

 

In his view:    

“It therefore does not make any difference whether any right to  

personal liberty was in existence prior to the enactment of the  

Constitution, either by way of a natural right, statutory right,  

common law right or a right available under the law of torts.  

Whatever may be the source of the right and whatever may be its  

jurisdiction, the right in essence and substance is the right to  

personal liberty. That right having been included in Part III, its  

                                                           201 Ibid, at page 604 (para 183)  202 Ibid, at page 664 (para 379)

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enforcement will stand suspended if it is mentioned in the  

Presidential Order issued under Article 359(1).”203  

 

Justice Bhagwati held as follows:  

“Now, to my mind, it is clear that when this principle of rule of law  

that the Executive cannot deprive a person of his liberty except by  

authority of law, is recognised and embodied as a fundamental right  

and enacted as such in Article 21, it is difficult to comprehend how  

it could continue to have a distinct and separate existence,  

independently and apart from this article in which it has been given  

constitutional vesture. I fail to see how it could continue in force  

under Article 372 when it is expressly recognised and embodied as  

a fundamental right in Article 21 and finds a place in the express  

provisions of the Constitution. Once this principle is recognised  

and incorporated in the Constitution and forms part of it, it  

could not have any separate existence apart from the  

Constitution, unless it were also enacted as a statutory  

principle by some positive law of the State…”204 (emphasis  

supplied)  

 

In his view, it is the Constitution which is supreme and if it ordains that a person who  

is detained otherwise than in accordance with law would not be entitled to enforce the  

right of personal liberty, the Court was duty bound to give effect to it:  

“…it cannot be overlooked that, in the ultimate analysis, the  

protection of personal liberty and the supremacy of law which  

sustains it must be governed by the Constitution itself. The  

Constitution is the paramount and supreme law of the land and if it  

says that even if a person is detained otherwise than in accordance  

with the law. he shall not be entitled to enforce his right of personal  

liberty, whilst a Presidential Order under Article 359, clause (1)  

specifying Article 21 is in force, I have to give 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  

                                                           203 Ibid, at page 666 (para 383)  204 Ibid, at page 701 (para 459)

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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 be worth living. It is one of the pillars of free democratic  

society. Men have readily laid down their lives at its altar, in order  

to secure it, protect it and preserve it. But I do not think it would be  

right for me to allow my love of personal liberty to cloud my vision  

or to persuade me to place on the relevant provision of the  

Constitution a construction which its language cannot reasonably  

bear. I cannot assume to myself the role of Plato's “Philosopher  

King” in order to render what I consider ideal justice between the  

citizen and the State. After all, the Constitution is the law of all laws  

and there alone judicial conscience must find its ultimate support  

and its final resting place. It is in this spirit of humility and obedience  

to the Constitution and driven by judicial compulsion, that I have  

come to the conclusion that the Presidential Order dated June 27,  

1975 bars maintainability of a writ petition for habeas corpus where  

an order of detention is challenged on the ground that it is mala fide  

or not under the Act or not in compliance with it.”205  

 

In his dissenting opinion, Justice Khanna emphatically held that the suspension of the  

right to move any Court for the enforcement of the right under Article 21, upon a  

proclamation of emergency, would not affect the enforcement of the basic right to life  

and liberty.  The Constitution was not the sole repository of the right to life and liberty:  

“I am of the opinion that Article 21 cannot be considered to be the  

sole repository of the right to life and personal liberty. The right to  

life and personal liberty is the most precious right of human beings  

in civilised societies governed by the rule of law. Many modern  

Constitutions incorporate certain fundamental rights, including the  

one relating to personal freedom. According to Blackstone, the  

absolute rights of Englishmen were the rights of personal security,  

personal liberty and private property. The American Declaration of  

Independence (1776) states that all men are created equal, and  

                                                           205 Ibid, at pages 723-724 (para 487)

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among their inalienable rights are life, liberty, and the pursuit of  

happiness…”206  

 

Even in the absence of Article 21, it would not have been permissible for the State to  

deprive a person of his life and liberty without the authority of the law:  

“Even in the absence of Article 21 in the Constitution, the State has  

got no power to deprive a person of his life or liberty without the  

authority of law. This is the essential postulate and basic  

assumption of the rule of law and not of men in all civilised nations.  

Without such sanctity of life and liberty, the distinction between a  

lawless society and one governed by laws would cease to have any  

meaning. The principle that no one shall be deprived of his life or  

liberty without the authority of law is rooted in the consideration that  

life and liberty are priceless possessions which cannot be made the  

plaything of individual whim and caprice and that any act which has  

the effect of tampering with life and liberty must 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 where there is no provision  

corresponding to Article 21, a claim was ever sustained by the  

courts that the State can deprive a person of his life or liberty without  

the authority of law…”207  

 

The remedy for the enforcement of the right to life or liberty would not stand  

suspended even if the right to enforce Article 21 is suspended:  

“Recognition as fundamental right of one aspect of the pre-

constitutional right cannot have the effect of making things less  

favourable so far as the sanctity of life and personal liberty is  

                                                           206 Ibid, at page 747 (para 525)  207 Ibid, at pages 749-750 (para 530)

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concerned compared to the position if an aspect of such right had  

not been recognised as fundamental right because of the  

vulnerability of fundamental rights accruing from Article 359…”208  

 

Justice Khanna held that while wide powers to order preventive detention are vested  

in the State, there is no antithesis between the power to detain and power of the Court  

to examine the legality of such a detention:  

“The impact upon the individual of the massive and comprehensive  powers of preventive detention with which the administrative  officers are armed has to be cushioned with legal safeguards  against arbitrary deprivation of personal liberty if the premises of  the rule of law is not to lose its content and become  meaningless…”209  

 

119 The judgments rendered by all the four judges constituting the majority in ADM  

Jabalpur are seriously flawed. Life and personal liberty are inalienable to human  

existence. These rights are, as recognised in Kesavananda Bharati, primordial  

rights. They constitute rights under natural law.  The human element in the life of the  

individual is integrally founded on the sanctity of life. Dignity is associated with liberty  

and freedom. No civilized state can contemplate an encroachment upon life and  

personal liberty without the authority of law. Neither life nor liberty are bounties  

conferred by the state nor does the Constitution create these rights. The right to life  

has existed even before the advent of the Constitution. In recognising the right, the  

Constitution does not become the sole repository of the right.  It would be  

preposterous to suggest that a democratic Constitution without a Bill of Rights would  

leave individuals governed by the state without either the existence of the right to live  

                                                           208 Ibid, at page 751 (para 531)  209 Ibid, page 767 (para 574)

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or the means of enforcement of the right. The right to life being inalienable to each  

individual, it existed prior to the Constitution and continued in force under Article 372  

of the Constitution. Justice Khanna was clearly right in holding that the recognition of  

the right to life and personal liberty under the Constitution does not denude the  

existence of that right, apart from it nor can there be a fatuous assumption that in  

adopting the Constitution the people of India surrendered the most precious aspect of  

the human persona, namely, life, liberty and freedom to the state on whose mercy  

these rights would depend. Such a construct is contrary to the basic foundation of the  

rule of law which imposes restraints upon 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 must be accepted, and accepted in reverence for  

the strength of its thoughts and the courage of its convictions.    

 

121 When histories of nations are written and critiqued, there are judicial decisions  

at the forefront of liberty. Yet others have to be consigned to the archives, reflective

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of what was, but should never have been.  The decision of the US Supreme Court in  

Buck v Bell210 ranks amongst the latter. It was a decision in which Justice Oliver  

Wendell Holmes Jr. accepted the forcible sterilization by tubular ligation of Carrie  

Bucks as part of a programme of state sponsored eugenic sterilization. Justice  

Holmes, while upholding the programme opined that: “three generations of imbeciles  

is enough”211. In the same vein was the decision of the US Supreme Court in  

Korematsu v United States212, upholding the imprisonment of a citizen in a  

concentration camp solely because of his Japanese ancestry.   

ADM Jabalpur must be and is accordingly overruled. We also overrule the decision  

in Union of India v Bhanudas Krishna Gawde213, which followed ADM Jabalpur.   

 

122 In I R Coelho v State of Tamil Nadu214, this Court took the view that ADM  

Jabalpur has been impliedly overruled by various subsequent decisions:   

“During Emergency, the fundamental rights were read even more  

restrictively as interpreted by the majority in ADM, Jabalpur v.  

Shivakant Shukla [(1976) 2 SCC 521]. The decision in ADM,  

Jabalpur [(1976) 2 SCC 521] about the restrictive reading of right to  

life and liberty stood impliedly overruled by various subsequent  

decisions.”215  

 

                                                           210 274 US 200 (1927)  211 A moving account of the times and the position is to be found in Siddhartha Mukherjee, The Gene: An Intimate  

History, Penguin Books Ltd. (2016), pages 78-85.  212 323 US 214 (1944)  213 (1977) 1 SCC 834  214 (2007) 2 SCC 1  215 Ibid, at page 76 (para 29)

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We now expressly do so.   

123 As a result of the Forty-Fourth Amendment to the Constitution, Article 359 has  

been amended to provide that during the operation of a proclamation of emergency,  

the power of the President to declare a suspension of the right to move a Court for  

the enforcement of the fundamental rights contained in Part III shall not extend to  

Articles 20 and 21.  

(ii) Suresh Koushal  

 124 Another discordant note which directly bears upon the evolution of the  

constitutional jurisprudence on the right to privacy finds reflection in a two judge Bench  

decision of this Court in Suresh Kumar Koushal v NAZ foundation216 (“Koushal”).  

The proceedings before this Court arose from a judgment217 of the Delhi High Court  

holding that Section 377 of the Indian Penal Code, insofar as it criminalises  

consensual sexual acts of adults in private is violative of Articles 14, 15 and 21 of the  

Constitution. The Delhi High Court, however, clarified that Section 377 will continue  

to govern non-consensual penile, non-vaginal sex and penile non-vaginal sex  

involving minors. Among the grounds of challenge was that the statutory provision  

constituted an infringement of the rights to dignity and privacy.  The Delhi High Court  

held that:  

“…The sphere of privacy allows persons to develop human  

relations without interference from the outside community or from  

                                                           216 (2014) 1 SCC 1  217 Naz Foundation v Government of NCT, 2010 Cri LJ 94

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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 Court,  

the South African Constitutional Court and the European Court of Human Rights.  The  

view of the High Court was that a statutory provision targeting homosexuals as a class  

violates Article 14, and amounted to a hostile discrimination on the grounds of sexual  

orientation (outlawed by Article 15). The High Court, however, read down Section 377  

in the manner which has been adverted to above.    

 

125 When the matter travelled to this Court, Justice Singhvi, speaking for the Bench  

dealt with several grounds including the one based on privacy – dignity.  The Court  

recognised that the right to privacy which is recognised by Article 12 of the Universal  

Declaration and Article 17 of ICCPR has been read into Article 21 “through expansive  

reading of the right to life and liberty”.  This Court, however, found fault with the basis  

of the judgment of the High Court for the following, among other reasons:  

“…the Division Bench of the High Court overlooked that a  

miniscule fraction of the country's population constitutes  

                                                           218 Ibid, at page 110 (para 48)

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lesbians, gays, bisexuals or transgenders and in last more  

than 150 years less than 200 persons have been prosecuted  

(as per the reported orders) for committing offence under Section  

377 IPC and this cannot be made sound basis for declaring that  

section ultra vires the provisions of Articles 14, 15 and 21 of the  

Constitution.”219 (emphasis supplied)  

 

The privacy and dignity based challenge was repelled with the following observations:  

“In its anxiety to protect the so-called rights of LGBT persons  

and to declare that Section 377 IPC violates the right to  

privacy, autonomy and dignity, the High Court has extensively  

relied upon the judgments of other jurisdictions. Though these  

judgments shed considerable light on various aspects of this right  

and are informative in relation to the plight of sexual minorities, we  

feel that they cannot be applied blindfolded for deciding the  

constitutionality of the law enacted by the Indian Legislature.”220  

(emphasis supplied)  

 

126 Neither of the above reasons can be regarded as a valid constitutional basis  

for disregarding a claim based on privacy under Article 21 of the Constitution.  That  

“a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals  

or transgenders” (as observed in the judgment of this Court) is not a sustainable basis  

to deny the right to privacy.  The purpose of elevating certain rights to the stature of  

guaranteed fundamental rights is to insulate their exercise from the disdain of  

majorities, whether legislative or popular. The guarantee of constitutional rights does  

not depend upon their exercise being favourably regarded by majoritarian opinion.   

The test of popular acceptance does not furnish a valid basis to disregard rights which  

are conferred with the sanctity of constitutional protection.  Discrete and insular  

                                                           219 Koushal (Supra note 216), at page 69-70 (para 66)  220 Ibid, at page 78 (para 77)

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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 by Articles 14, 15 and  

21 of the Constitution.  

  

127 The view in Koushal that the High Court had erroneously relied upon  

international precedents “in its anxiety to protect the so-called rights of LGBT.  

persons” is similarly, in our view, unsustainable. The rights of the lesbian, gay,  

bisexual and transgender population cannot be construed to be “so-called rights”.  The  

expression “so-called” seems to suggest the exercise of a liberty in the garb of a right  

which is illusory.  This is an inappropriate construction of the privacy based claims of  

the LGBT population.  Their rights are not “so-called” but are real rights founded on  

sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and  

dignity. They constitute the essence of liberty and freedom. Sexual orientation is an  

essential component of identity. Equal protection demands protection of the identity  

of every individual without discrimination.   

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128 The decision in Koushal presents a de minimis rationale when it asserts that  

there have been only two hundred prosecutions for violating Section 377. The de  

minimis hypothesis is misplaced because the invasion of a fundamental right is not  

rendered tolerable when a few, as opposed to a large number of persons, are  

subjected to hostile treatment. The reason why such acts of hostile discrimination are  

constitutionally impermissible is because of the chilling effect which they have on the  

exercise of the fundamental right in the first place. For instance, pre-publication  

restraints such as censorship are vulnerable because they discourage people from  

exercising their right to free speech because of the fear of a restraint coming into  

operation. The chilling effect on the exercise of the right poses a grave danger to the  

unhindered fulfilment of one’s sexual orientation, as an element of privacy and dignity.   

The chilling effect is due to the danger of a human being subjected to social  

opprobrium or disapproval, as reflected in the punishment of crime.  Hence the  

Koushal rationale that prosecution of a few is not an index of violation is flawed and  

cannot be accepted. Consequently, we disagree with the manner in which Koushal  

has dealt with the privacy – dignity based claims of LGBT persons on this aspect.    

Since the challenge to Section 377 is pending consideration before a larger Bench of  

this Court, we would leave the constitutional validity to be decided in an appropriate  

proceeding.  

 

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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 as well as to the protection  

of the right.”   

 

The Protection of Human Rights Act, 1993 which has been enacted by Parliament  

refers to the ICCPR as a human rights instrument. Section 2(1)(d) defines human  

rights:   

                                                           221 Article 51(c) of the Indian Constitution  

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“human rights” means the rights relating to life, liberty, equality and  

dignity of the individual guaranteed by the Constitution or embodied  

in the International Covenants and enforceable by courts in India.”  

 Section 2(1)(f) defines International Covenants:   

“International Covenants” means 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 [and  

such other Covenant or Convention adopted by the General  

Assembly of the United Nations as the Central Government may,  

by notification, specify”  

 Under Section 12(f) of the Protection of Human Rights Act, 1993, the National Human  

Rights Commission:  

“is entrusted with the function of studying treaties and other  

international instruments on human rights and make  

recommendations for their effective implementation.”   

 130 The ICCPR casts an obligation on states to respect, protect and fulfil its norms.   

The duty of a State to respect mandates that it must not violate the right. The duty to  

protect mandates that the government must protect it against interference by private  

parties.  The duty to fulfil postulates that government must take steps towards  

realisation of a right. While elaborating the rights under Article 17, general comment  

16 specifically stipulates 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 practice.”  

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Significantly, while acceding to the ICCPR, India did not file any reservation or  

declaration to Article 17. While India filed reservations against Articles 1, 9 and 13,  

there was none to Article 17:  

“Article 1 refers to the right to self-determination. The reservation to  

Article 1 states that “the Government of the Republic of India  

declares that the words ‘the right of self-determination’ appearing in  

[this article] apply only to the peoples under foreign domination and  

that these words do not apply to sovereign independent States or  

to a section of a people or nation-which is the essence of national  

integrity. ‘ The reservation to Article 9, which refers to the right to  

liberty and security of person, detention and compensation payable  

on wrongful arrest or detention, states that “the government of the  

Republic of India takes the position that the provisions of the article  

shall be so applied as to be in consonance with the provisions of  

clauses (3) to (7) of article 22 of the Constitution of India. Further  

under the Indian Legal System, there is no enforceable right to  

compensation for persons claiming to be victims of unlawful arrest  

or detention 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  

 

   

                                                           222 “The Right to privacy in the Digital age”, Report of the Office of the United Nations High Commissioner for  Human Rights (30 June 2014)   223  Ibid, at page 5 (para 13)

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131 In Bachan Singh v State of Punjab224 (“Bachan Singh”), this Court  

considered in relation to the death penalty, the obligations assumed by India in  

international law, following the ratification of the ICCPR. The Court held that the  

requirements of Article 6 of the ICCPR are substantially similar to the guarantees  

contained in Articles 20 and 21 of the Constitution. The penal law of India was held to  

be in accord with its international commitments. In Francis Coralie, this Court, while  

explaining the ambit of Article 21, held that:   

 “…there is implicit in Article 21 the right to protection against torture  

or cruel, inhuman or degrading treatment which is enunciated in  

Article 5 of the Universal Declaration of Human Rights and  

guaranteed by Article 7 of the International Covenant on Civil and  

Political Rights…”225  

 

 

132 In Vishaka v State of Rajasthan226, this Court observed that in the absence of  

domestic law, the Convention on the Elimination of Discrimination against Women  

(CEDAW) is applicable. In NALSA, while dealing with the rights of transgenders, this  

Court found that the international conventions were not inconsistent with the  

fundamental rights guaranteed by the Constitution and must be recognised and  

followed.   

 

133 The position in law is well settled. Where there is a contradiction between  

international law and a domestic statute, the Court would give effect to the latter.   In  

                                                           224  (1980) 2 SCC 684  225 Francis Coralie (Supra note 159), at page 619 (para 8)  226 (1997) 6 SCC 241

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the present case, there is no contradiction between the international obligations which  

have been assumed by India and the Constitution.  The Court will not readily presume  

any inconsistency. On the contrary, constitutional provisions must be read and  

interpreted in a manner which would enhance their conformity with the global human  

rights regime.  India is a responsible member of the international community and the  

Court must adopt an interpretation which abides by the international commitments  

made by the country particularly where its constitutional and statutory mandates  

indicate no deviation. In fact, the enactment of the Human Rights Act by Parliament  

would indicate a legislative desire to implement the human rights regime founded on  

constitutional values and international conventions acceded to by India.  

 K Comparative Law    

134 This section analyses the evolution of the concept of privacy in other  

jurisdictions from a comparative law perspective. The Court is conscious of the limits  

of a comparative approach. Each country is governed by its own constitutional and  

legal structure. Constitutional structures have an abiding connection with the history,  

culture, political doctrine and values which a society considers as its founding  

principles. Foreign judgments must hence be read with circumspection ensuring that  

the text is not read isolated from its context. The countries which have been dealt with  

are:   

(i) United Kingdom;  

(ii) United States;     

(iii) South Africa; and

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(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 defence against injury and violence, as for his repose …”

  

 

  

Then, in the case of Entick v Carrington228 (1765), Entick’s house had been forcibly  

entered into by agents of the State/King. Lord Camden CJ held that:     

 “By the laws of England, every invasion of private property, be it  

ever so minute, is a trespass. No man can set his foot upon my  

ground without my licence, but he is liable to an action, though the  

damage be nothing; which is proved by every declaration in  

trespass, where the defendant is called upon to answer for bruising  

the grass and even treading upon the soil.”  

                                                           227 Peter Semayne v Richard Gresham, 77 ER 194  228 (1765) 19 St. Tr. 1029

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Privacy jurisprudence developed further in the 19th century. In 1849, in Prince Albert  

v Strange229 (1849), publication was sought to be restrained of otherwise unpublished  

private etchings and lists of works done by Prince Albert and Queen Victoria. In the  

High Court of Chancery, Lord Cottenham observed that:   

 “… where privacy is the right invaded, postponing the injunction  

would be equivalent to denying it altogether. The interposition of  

this Court in these cases does not depend upon any legal right, and  

to be effectual, it must be immediate.”  

 

 

However, the approach adopted by the Court in Prince Albert case took a different  

turn in the case of Kaye v Robertson230 (1991). In this case, when the appellant, after  

an accident, was recovering from brain surgery in a private hospital room, two  

journalists posed as doctors and took photographs of him. The appellant attempted to  

obtain an order to restrain publication of the photographs. The Court of Appeal held  

that:  

“… in English law there is no right to privacy, and accordingly there  

is no right of action for breach of a person's privacy”  

 

 

The decision in R v Director of Serious Fraud Office, ex parte Smith231 (1993)  

discussed the question of the right to silence. The applicant (the chairman and  

managing director of a company) was charged of doing acts with the intent to defraud  

its creditors. After having been cautioned, he was asked to answer questions of the  

Director of the Serious Fraud Office. The issue was whether the requirement to  

                                                           229 (1849) 41 ER 1171  230 [1991] FSR 62  231 [1993] AC 1

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answer questions infringed the right to silence. It was held that the powers of the  

Director of the Serious Fraud Office, under the Criminal Justice Act 1987, entitled  

him/her to compel the applicant to answer questions on pain of commission of a  

criminal offence. Lord Mustill, who delivered the leading opinion of the Court, held  

that:  

 

“[It] is a simple reflection of the common view that one person  

should so far as possible be entitled to tell another person to mind  

his own business. All civilised states recognise this assertion of  

personal liberty and privacy. Equally, although there may be  

pronounced disagreements between states, and between individual  

citizens within states, about where the line should be drawn, few  

would dispute that some curtailment of the liberty is indispensable  

to the stability of society; 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. The son, who was mentally impaired and  

suffered from cerebral palsy, later developed post-traumatic stress disorder. Claims  

for damages arising from trespass and trespass to the person were issued. At the time  

                                                           232  Lord Neuberger,  “Privacy in the 21st Century”, UK Association of Jewish Lawyers and Jurists' Lecture (28  November 2012)  233 [2004] 2 AC 406

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of the incident, the Human Rights Act, 1998 (HRA) had not yet come into force. When  

the case reached before House of Lords, it was argued that “the law of tort should  

give a remedy for any kind of distress caused by an infringement of the right of privacy  

protected by article 8 of the European Convention for the Protection of Human Rights”.  

It was further argued that reliance must be placed upon the judgment of Sedley LJ in  

Douglas v Hello! Ltd234 (2001), where it was said that:   

 "What a concept of privacy does, however, is accord  

recognition to the fact that the law has to protect not only those  

people whose trust has been abused but those who simply find  

themselves subjected to an unwanted intrusion into their  

personal lives. The law no longer needs to construct an artificial  

relationship of confidentiality between intruder and victim: it can  

recognise privacy itself as a legal principle drawn from the  

fundamental value of personal autonomy." (emphasis supplied)  

 

 

However, Lord Hoffman in Wainwright rejected all the contentions and held that:   

 “I do not understand Sedley LJ to have been advocating the  

creation of a high-level principle of invasion of privacy. His  

observations are in my opinion no more (although certainly no less)  

than a plea for the extension and possibly renaming of the old action  

for breach of confidence.”  

 

Lord Hoffman also observed that:  

 “What the courts have so far refused to do is to formulate a general  

principle of “invasion of privacy” …  

 

There seems to me a great difference between identifying privacy  

as a value which underlies the existence of a rule of law (and may  

point the direction in which the law should develop) and privacy as  

a principle of law in itself. The English common law is familiar with  

                                                           234 [2001] QB 967

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the notion of underlying values - principles only in the broadest  

sense - which direct its development…   

 

Nor is there anything in the jurisprudence of the European Court of  

Human Rights which suggests that the adoption of some high level  

principle of privacy is necessary to comply with article 8 of the  

Convention. The European Court is concerned only with whether  

English law provides an adequate remedy in a specific case in  

which it considers that there has been an invasion of privacy  

contrary to article 8(1) and not justifiable under article 8(2).”  

 

 

There has been a transformation in this approach after the Human Rights Act, 1998  

(HRA) came into force. For the first time, privacy was incorporated as a right under  

the British law.235 In Campbell v MGN236 (2004), a well-known model was  

photographed leaving a rehabilitation clinic, following public denials that she was a  

recovering drug addict. The photographs were published 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.”  

 

                                                           235 The UK Human Rights Act incorporates the rights set out in the European Convention on Human Rights  (ECHR) into domestic British law. The Preamble of the Act states that it “gives further effect to rights and  freedoms guaranteed” under the ECHR. Under the Act (S. 6), it is unlawful for any public authority, including a  court or tribunal at any level, to act in a manner which is incompatible with a Convention right. The Convention  rights 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.

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In holding so, Lord Hope relied upon the following statement of Lord Woolf in A v B  

Inc237 (2003):  

 “A duty of confidence will arise whenever a party subject to the duty  

is in a situation where he either knows or ought to know that the  

other person can reasonably expect his privacy to be protected.”  

 

 

Lord Hope also held that the Courts, in order to decide a case, must carry out a  

“balancing operation, weighing the public interest in maintaining confidence against a  

countervailing public interest favouring disclosure”.  

Baroness Hale wrote a concurring judgment and held that:  

“The Human Rights 1998 Act does not create any new cause of action  

between private persons. But if there is a relevant cause of action  

applicable, the court as a public authority must act compatibly with both  

parties' Convention rights. In a case such as this, the relevant vehicle  

will usually be the action for breach of confidence, as Lord Woolf CJ  

held in A v B plc [2002] EWCA Civ 337, [2003] QB 195, 202, para 4 :  

 

"[Articles 8 and 10] have provided new parameters  

within which the court will decide, in an action for  

breach of confidence, whether a person is entitled  

to have his privacy protected by the court or  

whether the restriction of freedom of expression  

which such protection involves cannot be justified.  

The court's approach to the issues which the  

applications raise has been modified because,  

under section 6 of the 1998 Act, the court, as a  

public authority, is required not to 'act in a way  

which is incompatible with a Convention right'. The  

court is able to achieve this by absorbing the rights  

which articles 8 and 10 protect into the long-

established action for breach of confidence. This  

involves giving a new strength and breadth to the  

action so that it accommodates the requirements of  

these articles."  

                                                           237 [2003] QB 195

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Later, in Douglas v Hello! Ltd238, it was held that:  

 “What the House [in Campbell] was agreed upon was that the  

knowledge, actual or imputed, that information is private will  

normally impose on anyone publishing that information the duty to  

justify what, in the absence of justification, will be a wrongful  

invasion of privacy.”  

 

 

Subsequent cases establish the contribution the HRA has made in jurisprudence on  

privacy in the UK. In Associated Newspapers Limited v His Royal Highness the  

Prince of Wales239 (2006), an appeal was made against the judgment in respect of  

the claim of Prince Charles for breach of confidence and infringement of copyright.  

The case brought about when ‘The Mail on Sunday’ published extracts of a dispatch  

by the Prince of Wales. The Court held that:    

 “The information at issue in this case is private information, public  

disclosure of which constituted an interference with Prince Charles’  

Article 8 rights. As heir to the throne, Prince Charles is an important  

public figure. In respect of such persons the public takes an interest  

in information about them that is 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:   

                                                           238 [2006] QB 125  239 [2006] EWCA Civ 1776  240 [2008] 3 WLR 1360

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 “[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 nature  

of the activity in which the claimant was engaged, the place at which  

it was happening, the nature and purpose of the intrusion, the  

absence of consent and whether it was known or could be inferred,  

the effect on the claimant and the circumstances in which and the  

purposes for which the information came into the hands of the  

publisher… [I]t is at least arguable that David had a reasonable  

expectation of privacy. The fact that he is a child is in our view of  

greater significance than the judge thought.”   

 

 

R v The Commissioner of Police of the Metropolis241 (2011) was a case concerning  

the extent of the police's power (under guidelines issued by the Association of Chief  

Police Officers- the ACPO guidelines) to indefinitely retain biometric data associated  

with individuals who are no longer suspected of a criminal offence. The UK Supreme  

Court, by a majority held that the police force's policy of retaining DNA evidence in the  

absence of 'exceptional circumstances' was unlawful and a violation of Article 8 of the  

European Convention on Human Rights. Lord Dyson, on behalf of the majority, held  

that:  

 

“It is important that, in such an important and sensitive area as the  

retention of biometric data by the police, the court reflects its  

decision by making a formal order to declare what it considers to be  

the true legal position. But it is not necessary to go further. Section  

8(1) of the HRA gives the court a wide discretion to grant such relief  

or remedy within its powers as it considers just and appropriate.  

Since Parliament is already seized of the matter, it is neither just  

nor appropriate to make an order requiring a change in the  

legislative scheme within a specific period…  

 

                                                           241 [2011] UKSC 21

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….he present ACPO guidelines are unlawful because they are  

incompatible with article 8 of the ECHR. I would grant no other  

relief.”    

 

   

In the matter of an application by JR38 for Judicial Review (Northern Ireland)242  

(2015), the Appellant was involved in rioting in 2010, when still only 14 years of age.  

The police, in order to identify those responsible, and for the sake of deterrence,  

published CCTV footage depicting the Appellant in two newspapers. The issue  

involved was: “Whether the publication of photographs by the police to identify a young  

person suspected of being involved in riotous behaviour and attempted criminal damage  

can ever be a necessary and proportionate interference with that person’s article 8  

rights?” The majority held that Article 8 was not engaged, as there was no reasonable  

expectation of privacy in the case. Lord Toulson (with whom Lord Hodge agreed), while  

stating that the conduct of the police did not amount, prima facie, to an interference with  

the appellant’s right to respect for his private life, held that:  

 “The reasonable or legitimate expectation test is an objective test.  

It is to be applied broadly, taking account of all the 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.”  

 

 

 

                                                           242 [2015] UKSC 42  

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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 to keep private. He  

could not have had an objectively reasonable expectation that such  

photographs, taken for the limited purpose of identifying who he  

was, would not be published.”  

 

The decision in PJS v News Group Newspapers Ltd243 (2016) dealt with an  

anonymised privacy injunction244. The injunction was sought by the claimant to  

restrain publication of details of his sexual relationship with two other people, on the  

ground that the publication would breach his rights to privacy and confidentiality,  

protected by Article 8 of ECHR. The UK Supreme Court by majority ruled in favour  

of the applicant. Speaking on behalf of the majority, Lord Mance held that:  

 “… having regard to the nature of the material sought to be  

published and the identity and financial circumstances of the  

appellant, that the appellant’s real concern is indeed with the  

invasion of privacy that would be involved in further disclosure and  

publication in the English media, and that any award of damages,  

however assessed, would be an inadequate remedy.”    

 

The HRA has rendered clarity on the existence of a right to privacy in UK  

jurisprudence and substantially resolved conflicting approaches regarding privacy in  

decided cases. The HRA, by incorporating the provisions of the European  

                                                           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.pdf  

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Convention on Human Rights (ECHR), has adopted the guarantee of the right to  

privacy into UK domestic law. The Convention, together with its adoption into  

domestic legislation, has led to a considerable change in the development of  

protection of human privacy in English law.  

 

(ii) US Supreme Court decisions  

The US Constitution does not contain an express right to privacy. But American  

privacy jurisprudence reflects that it has been protected under several amendments245  

of the US Constitution.  

 As early as 1886, in Boyd v United States246, the question before the US Supreme  

Court was whether compulsory production of a person’s private papers to be used in  

evidence against him in a judicial proceeding, is an unreasonable search and seizure  

within the meaning of the Fourth Amendment. Justice Bradley delivered the opinion  

of the Court and held as follows:   

“The principles laid down in this opinion affect the very essence of  

constitutional liberty and security… they apply to all invasions  

on the part of the government and its employees of the sanctity  

of a man's home and the privacies of life. It is not the breaking  

of his doors and the rummaging of his drawers that constitutes  

the essence of the offence, but it is the invasion of his  

indefeasible right of personal security, personal liberty, and  

private property, -- it is the invasion of this sacred right ...  

                                                           245The concept of privacy plays a major role in the jurisprudence of the First, Third, Fourth, Fifth, and Fourteenth  Amendments. The Ninth Amendment has also been interpreted to justify broadly reading the Bill of Rights to  protect privacy in ways not specifically provided in the first eight amendments.   246 116 US 616 (1886)

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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 teachers to decide on the best course  

of education for young students. On liberty, Justice McReynolds held:  

 “Without doubt, it denotes not merely freedom from bodily restraint, but  

also the right of the individual to contract, to engage in any of the common  

occupations of life, to acquire useful knowledge, to marry, establish a  

home and bring up children, to worship God according to the dictates of  

his own conscience, and generally to enjoy those privileges long  

recognized at common law as essential to the orderly pursuit of happiness  

by free men. The established doctrine is that this liberty may not be  

interfered with, under the guise of protecting the public interest, by  

legislative action which is arbitrary or without reasonable relation to some  

purpose within the competency of the State to effect.”  

 

                                                           247 262 US 390 (1923)

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Two years later, in Pierce v Society of Sisters248 (1925), the Court, relying upon  

Mayer v Nebraska, struck down the Oregon Compulsory Education Act, which  

mandated all children (between eight and sixteen years) to attend  public schools. It  

was held the said statute is an “unreasonable interference with the liberty of the  

parents and guardians to direct the upbringing of the children, and in that respect  

violates the Fourteenth Amendment”.  

In Olmstead v United States249 (1928), the question before the Court was whether  

the use of evidence of private telephone conversations, intercepted by means of  

wiretapping amounted to a violation of the Fourth and Fifth Amendments. In a 5:4  

decision, it was held that there was no violation of the Fourth and Fifth Amendments.  

Chief Justice Taft wrote the majority judgment, holding that:   

“The Amendment itself shows that the search is to be of material  

things -- the person, the house, his papers, or his effects…. The  

Amendment does not forbid what was done here. There was no  

searching. There was no seizure. The evidence was secured by the  

use of the sense of hearing, and that only. There was no entry of  

the houses or offices of the defendants.”  

 

However, Justice Louis Brandeis wrote a dissenting opinion and observed that:  

“… time works changes, brings into existence new conditions and  

purposes." Subtler and more far-reaching means of invading  

privacy have become available to the Government. Discovery and  

invention have made it possible for the Government, by means far  

more effective than stretching upon the rack, to obtain disclosure in  

court of what is whispered in the closet. Moreover, “in the  

                                                           248 (268) US 510 (1925)  249 277 US 438 (1928)

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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 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...” (emphasis supplied)  

 

The Court, in the case of Griswold v Connecticut250 (1965), invalidated a state law  

prohibiting the possession, sale, and distribution of contraceptives to married couples,  

for the reason that the law violated the right to marital privacy. Justice Douglas, who  

delivered the main opinion, observed that this right emanated from “penumbras” of  

the fundamental constitutional guarantees and rights in the Bill of Rights, which  

together create “zones of privacy”. Accordingly, it was held that:  

                                                           250 381 US 479 (1965)

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“The present case, then concerns a relationship lying within the  

zone of privacy created by several fundamental constitutional  

guarantees… Would we allow the police to search the sacred  

precincts of marital bedrooms of telltale signs of the use of  

contraceptives? The very idea is repulsive to the notions of privacy  

surrounding the marriage relationship.”  

 

Justice Goldberg wrote in the concurring opinion that:  

“The fact that no particular provision of the Constitution explicitly  

forbids the State from disrupting the traditional relation of the family  

-- a relation as old and as fundamental as our entire civilization --  

surely does not show that the Government was meant to have the  

power to do so. Rather, as the Ninth Amendment expressly  

recognizes, there are fundamental personal rights such as this one,  

which are protected from abridgment by the Government, though  

not specifically mentioned in the Constitution.”  

 

The 1967 decision in Katz v United States251 (“Katz”) overruled Olmstead v United  

States (supra) and revolutionized the interpretation of the Fourth Amendment  

regarding the extent to which a constitutional right to privacy applies against  

government interference. In this case, Charles Katz was a gambler who used a public  

telephone booth to transmit illegal wagers. Unbeknownst to Katz, the FBI which was  

investigating Katz’s activity, was recording his conversations via an electronic  

eavesdropping device attached to the exterior of the phone booth. Subsequently, Katz  

was convicted based on these recordings. He challenged his conviction, arguing that  

the recordings were obtained in violation of his Fourth Amendment rights. The  

constitutional question in the case was whether the 4th Amendment protection from  

‘unreasonable searches and seizures’ was restricted to the search and seizure of  

                                                           251 389 US 347 (1967)

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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 that:  

“One who occupies it [a telephone booth], shuts the door behind  

him, and pays the toll that permits him to place a call is surely  

entitled to assume that the words he utters into the  

mouthpiece will not be broadcast to the world. To read the  

Constitution more narrowly is to ignore the vital role that the  

public telephone has come to play in private communication.”  

(emphasis supplied)  

 

Justice Harlan wrote the concurring judgment holding that:  

“a) that an enclosed telephone booth is an area where, like a  home… a person has a constitutionally protected reasonable  expectation of privacy; (b) that electronic, as well as physical,

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intrusion into a place that is in this sense private may  constitute a violation of the Fourth Amendment....”                                   (emphasis  supplied)    

The reasonable expectation of privacy test was formulated as follows:  

“....the Fourth Amendment protects people, not places." The  

question, however, is what protection it affords to those  

people. Generally, as here, the answer to that question requires  

reference to a "place." My understanding of the rule that has  

emerged from prior decisions is that there is a twofold requirement,  

first that a person has exhibited an actual (subjective)  

expectation of privacy and, second, that the expectation be  

one that society is prepared to recognize as "reasonable."  

Thus, a man's home is, for most purposes, a place where he  

expects privacy, but objects, activities, or statements that he  

exposes to the "plain view" of outsiders are not "protected,"  

because no intention to keep them to himself has been  

exhibited. On the other hand, conversations in the open would  

not be protected against being overheard, for the expectation  

of privacy under the circumstances would be unreasonable.”  

(emphasis supplied)  

 

In Stanley v Georgia252 (1969), the Court analyzed the constitutionality of a statute  

imposing criminal sanctions upon the knowing possession of obscene matter. The  

Court, in a unanimous decision, held that mere private possession of obscene matter  

cannot constitutionally be made a crime:  

“For also fundamental is the right to be free, except in very limited  

circumstances, from unwanted governmental intrusions into one's  

privacy...  

[T]he rights that the appellant is asserting in the case before us...the  

right to read or observe what he pleases -- the right to satisfy his  

intellectual and emotional needs in the privacy of his own  

home…..the right to be free from state inquiry into the contents of  

his library...  

                                                           252 394 US 557 (1969)

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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  

decision whether to bear or beget a child.”  

 

The decision in Paris Adult Theatre I v Slaton254 (1973), upheld a state court's  

injunction against the showing of obscene films in a movie theatre, restricted to  

consenting adults. The Court distinguished the case from Stanley v Georgia (supra),  

on the ground that the privacy of the home in Stanley was not the same as the  

commercial exhibition of obscene movies in a theatre. Chief Justice Burger observed  

that the prior decisions of the Supreme Court on the right to privacy only included  

those personal rights that were “fundamental" or “implicit in the concept of ordered  

                                                           253 405 US 438 (1972)  254 413 US 49 (1973)

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liberty” such as “the personal intimacies of the home, the family, marriage,  

motherhood, procreation and childbearing” and held that:  

“Nothing, however, in this Court's decisions intimates that there is  

any "fundamental" privacy right "implicit in the concept of ordered  

liberty" to watch obscene movies in places of public  

accommodation… The idea of a "privacy" right and a place of public  

accommodation are, in this context, mutually exclusive.”  

 

In the landmark decision on the right to abortion, Roe v Wade255 (1973), the Court  

dealt with the question of the right of an unmarried pregnant woman to terminate her  

pregnancy by abortion. The constitutionality of a Texas Statute prohibiting abortions  

except with respect to those procured or admitted by medical advice for the purpose  

of saving the life of the mother was challenged on the ground that the law improperly  

invaded the right and the choice of a pregnant woman to terminate her pregnancy and  

was violative of the “liberty” guaranteed under the Fourteenth Amendment and the  

right to privacy recognized in Griswold. The Court ruled 7:2 that a right to privacy  

under the Due Process Clause of the Fourteenth Amendment extended to a woman's  

decision to have an abortion, but that this right must be balanced against the state's  

interests in regulating abortions. Justice Blackmun delivered the majority judgment  

and held that:  

“The Constitution does not explicitly mention any right of  privacy. In a line of decisions, however, the Court has  recognised that a right of personal privacy, or a guarantee of  certain areas or zones of privacy, does exist under the  Constitution. In varying contexts, the Court or individual Justices  have, indeed, found at least the roots of that right in the First  Amendment; in the penumbras of the Bill of Rights; in the Ninth  

                                                           255 410 US 113 (1973)

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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 that his bank is required to keep in compliance with the Bank  

Secrecy Act of 1970, and that Miller had no right to privacy in his bank records. Writing  

for the majority, Justice Lewis F. Powell asserted that the “documents subpoenaed...  

are not [Miller’s] ‘private papers’,” but instead, part of the bank’s business records. It  

was held:  

“There is no legitimate "expectation of privacy" in the contents  

of the original checks and deposit slips, since the checks are  

not confidential communications, but negotiable instruments  

to be used in commercial transactions, and all the documents  

obtained contain only information voluntarily conveyed to the banks  

and exposed to their employees in the ordinary course of business.  

                                                           256 425 US 435 (1976)

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The Fourth Amendment does not prohibit the obtaining of  

information revealed to a third party and conveyed by him to  

Government authorities. The Act's recordkeeping requirements do  

not alter these considerations so as to create a protectable Fourth  

Amendment interest of a bank depositor in the bank's records of his  

account.”  

 

However, Justice Brennan dissented and held that:  

“A bank customer's reasonable expectation is that, absent a  

compulsion by legal process, the matters he reveals to the bank will  

be utilized by the bank only for internal banking purposes... [A]  

depositor reveals many aspects of his personal affairs, opinions,  

habits, associations. Indeed, the totality of bank records provides a  

virtual current biography…Development of...sophisticated  

instruments have accelerated the ability of the government to  

intrude into areas which a person normally chooses to exclude from  

prying eyes and inquisitive minds. Consequently, judicial  

interpretations of the constitutional protection of individual privacy  

must keep pace with the perils created by these new devices.”  

 Continuing its trend of expansion of individual rights in the 1960s and 1970s,  

particularly in the domain of reproductive health - the right to contraceptives as well  

as the right to abortion, the decision in Carey v Population Services International257  

(1977) expanded these rights from adults to also include minors. In this case, a New  

York law banning sale of even non-prescription contraceptives by persons other than  

licensed pharmacists; sale or distribution to minors under sixteen; and contraceptive  

display and advertising was declared unconstitutional. Justice Brennan delivered the  

majority opinion of the Court and held that the Fourteenth Amendment is not for “adults  

alone” and “Minors, as well as adults, are protected by the Constitution”:  

                                                           257 431 US 678 (1977)

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“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 interest’.  

In Smith v Maryland258 (1979), it was held that installation and use of a ‘pen register’  

was not a “search” within the meaning of the Fourth Amendment, and hence no  

warrant was required.  Justice Blackmun delivered the majority (5: 4) opinion and held  

that the petitioner’s claim that he had a “legitimate expectation of privacy” could not  

be sustained:  

“First, we doubt that people in general entertain any actual  

expectation of privacy in the numbers they dial. All telephone  

users realize that they must "convey" phone numbers to the  

telephone company, since it is through telephone company  

                                                           258 442 US 735 (1979)

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switching equipment that their calls are completed. All subscribers  

realize, moreover, that the phone company has facilities for making  

permanent records of the numbers they dial, for they see a list of  

their long-distance (toll) calls on their monthly bills. In fact, pen  

registers and similar devices are routinely used by telephone  

companies "for the purposes of checking billing operations,  

detecting fraud, and preventing violations of law." (emphasis  

supplied)  

 

The majority adopted the “reasonable expectation of privacy” test as formulated by  

Justice Harlan in Katz and held as follows:  

“[The] inquiry, as Mr. Justice Harlan aptly noted in his Katz  

concurrence, normally embraces two discrete questions. The first  

is whether the individual, by his conduct, has "exhibited an actual  

(subjective) expectation of privacy"... whether... the individual has  

shown that "he seeks to preserve [something] as private"... The  

second question is whether the individual's subjective expectation  

of privacy is "one that society is prepared to recognize as  

reasonable,'"... whether... the individual's expectation, viewed  

objectively, is "justifiable" under the circumstances.  

Since the pen register was installed on telephone company  

property at the telephone company's central offices, petitioner  

obviously cannot claim that his "property" was invaded or that  

police intruded into a "constitutionally protected area."   

 

Thus the Court held that the petitioner in all probability entertained no actual  

expectation of privacy in the phone numbers he dialled, and that, even if he did, his  

expectation was not “legitimate.” However, the judgment also noted the limitations of  

the Katz test:   

“Situations can be imagined, of course, in which Katz' two-

pronged inquiry would provide an inadequate index of Fourth  

Amendment protection… In such circumstances, where an  

individual's subjective expectations had been "conditioned" by  

influences alien to well recognized Fourth Amendment freedoms,  

those subjective expectations obviously could play no meaningful

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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 telephonic communication that, under Katz, is  

entitled to constitutional protection…”  

 

Justice Marshal dissented and opined on the dangers of permitting such surveillance,  

holding:  

“The use of pen registers, I believe, constitutes such an extensive  

intrusion. To hold otherwise ignores the vital role telephonic  

communication plays in our personal and professional  

relationships, as well as the First and Fourth Amendment interests  

implicated by unfettered official surveillance. Privacy in placing calls  

is of value not only to those engaged in criminal activity. The  

prospect of unregulated governmental monitoring will undoubtedly  

prove disturbing even to those with nothing illicit to hide. Many  

individuals, including members of unpopular political organizations  

or journalists with confidential sources, may legitimately wish to  

avoid disclosure of their personal contacts...   

Permitting governmental access to telephone records on less  

than probable cause may thus impede certain forms of political  

affiliation and journalistic endeavor that are the hallmark of a  

truly free society. Particularly given the Government's previous  

reliance on warrantless telephonic surveillance to trace reporters'  

sources and monitor protected political activity...  

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I am unwilling to insulate use of pen registers from independent  

judicial review.” (emphasis supplied)  

 In Planned Parenthood v Casey259 (1992), several Pennsylvania state statutory  

provisions regarding abortion such as spousal consent were challenged. The Court  

reaffirmed- what it called- the “essential holding”260 of Roe v Wade (supra), and  

observed:   

“...Our precedents “have respected the private realm of family life  

which the state cannot enter.” ... These matters, involving the most  

intimate and personal choices a person may make in a lifetime,  

choices central to personal dignity and autonomy, are central to the  

liberty protected by the Fourteenth Amendment. At the heart of  

liberty is the right to define one’s own concept of existence, of  

meaning, of the universe, and of the mystery of human life. Beliefs  

about these matters could not define the attributes of personhood  

were they formed under compulsion of the State…  

The woman’s right to terminate her pregnancy before viability is the  

most central principle of Roe v. Wade. It is a rule of law and a  

component of liberty we cannot renounce.”  

 

In Minnesota v Carter261 (1998), the question was whether the Fourth Amendment  

protected against the viewing by an outside police officer, through a drawn window  

blind, of the defendants’ bagging cocaine in an apartment. The Court answered this  

question in the negative. Chief Justice Rehnquist delivered the majority opinion of the  

                                                           259 505 US 833 (1992)  260 The essential holding of Roe, as summarized in Planned Parenthood, comprised of the following three parts:   (1) a recognition of a woman's right to choose to have an abortion before foetal viability and to obtain it without  undue interference from the State, whose pre-viability interests are not strong enough to support an abortion  prohibition or the imposition of substantial obstacles to the woman's effective right to elect the procedure; (2) a  confirmation of the State's power to restrict abortions after viability, if the law contains exceptions for pregnancies  endangering a woman's life or health; and (3) the principle that the State has legitimate interests from the outset  of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.  261 525 US 83 (1998)

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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, and indeed less than, a similar expectation in  an individual's home."...  

And while it was a "home" in which respondents were present, it  was not their home…  

the purely commercial nature of the transaction engaged in here,  the relatively short period of time on the premises, and the lack of  any previous connection between respondents and the  householder, all lead us to conclude .... any search which may have  occurred did not violate their Fourth Amendment rights.” (emphasis  supplied)  

 

Justice Ginsburg wrote the dissenting opinion joined by Justice Stevens and Justice  

Souter, and held that:   

 

“Our decisions indicate that people have a reasonable expectation  

of privacy in their homes in part because they have the prerogative  

                                                           262 495 US 91 (1990)

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to exclude others… Through the host’s invitation, the guest gains a  

reasonable expectation of privacy in the home. Minnesota v. Olson,  

495 U. S. 91 (1990), so held with respect to an overnight guest. The  

logic of that decision extends to shorter term guests as well.”   

 

In Kyllo v United States263 (2001), the Court held (5:4 majority) that the thermal  

imaging of the house of a person suspected of growing marijuana was a violation of  

the right to privacy. Justice Scalia delivered the opinion of the Court and held that  

there is no distinction between “off-the-wall” and “through-the-wall” surveillance as  

both lead to an intrusion into an individual’s privacy:   

“Limiting the prohibition of thermal imaging to “intimate  

details” would not only be wrong in principle; it would be  

impractical in application, failing to provide “a workable  

accommodation between the needs of law enforcement and  

the interests protected by the Fourth Amendment,”…   

We…would have to develop a jurisprudence specifying which home  

activities are “intimate” and which are not. And even when (if ever)  

that jurisprudence were fully developed, no police officer would be  

able to know in advance whether his through-the-wall surveillance  

picks up “intimate” details–and thus would be unable to know in  

advance whether it is constitutional…” (emphasis supplied)  

 

It was concluded that even though no “significant” compromise of the homeowner’s  

privacy had occurred due to the thermal imaging, “the long view, from the original  

meaning of the Fourth Amendment” must be taken forward.  

 

                                                           263 533 US 27 (2001)

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In Lawrence v Texas264, the Court in a 6:3 decision struck down the sodomy law in  

Texas and by extension invalidated sodomy laws in 13 other states, making same-

sex sexual activity legal in every state and territory of the United States. The Court  

overturned its previous ruling on the same issue in the 1986 case, Bowers v  

Hardwick265 (1986), where it upheld a challenged Georgia statute and did not find a  

constitutional protection of sexual privacy. Justice Anthony Kennedy wrote the  

majority opinion (6: 3 decision) and held that:   

“The petitioners are entitled to respect for their private lives. The  

State cannot demean their existence or control their destiny by  

making their private 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 envisaged in previous US Supreme Court judgments namely  

Whalen v Roe267 (1977) and Nixon v Administrator of General Services268 (1977),  

                                                           264 539 US 558 (2003)  265 478 US 186 (1986)  266 562 US 134 (2011)  267 429 US 589 (1977). In this case, for the first time, the Court explicitly recognized an individual’s interest in  nondisclosure of information. The Court chose to address the status of privacy in the Constitution, underlining  that the constitutional right to privacy remains largely undefined and then identified the types of constitutionally  protected privacy interests as follows: “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 disclosure of personal  matters, and another is the interest in independence in making certain kinds of important decisions.”  268 433 US 425 (1977). In this case, the former President of US, Nixon, was challenging the Presidential  Recordings and Material Preservation Act, 1974 on the ground that it violated his right of privacy, as there would

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was violated by background checks. The majority judgment delivered by Justice Alito,  

decided the case assuming that there existed a constitutional right to privacy. The  

Court held that:  

“We hold, however, that the challenged portions of the  

Government’s background check do not violate this right in the  

present case. The Government’s interests as employer and  

proprietor in managing its internal operations, combined with the  

protections against public dissemination provided by the Privacy  

Act of 1974, satisfy any “interest in avoiding disclosure” that may  

“arguably ha[ve] its roots in the Constitution… The Government has  

good reason to ask employees about their recent illegal-drug use.”  

 

The majority also rejected all the contentions regarding the misuse of collected data  

and held:   

“… the mere possibility that security measures will fail provides no  

“proper ground” for a broad-based attack on government  

information-collection practices. Ibid. Respondents also cite a  

portion of SF–85 that warns of possible disclosure “[t]o the news  

media or the general public.” App. 89. By its terms, this exception  

allows public disclosure only where release is “in the public  

interest” and would not result in “an unwarranted invasion of  

personal privacy.” Ibid. Respondents have not cited any  

example of such a disclosure, nor have they identified any  

plausible scenario in which their information might be unduly  

disclosed under this exception… In light of the protection  

provided by the Privacy Act’s nondisclosure requirement, and  

because the challenged portions of the forms consist of  

reasonable inquiries in an employment background check, we  

conclude that the Government’s inquiries do not violate a  

constitutional right to informational privacy.” (emphasis  

supplied)  

 

                                                           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”.

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Justice Scalia, in a concurring opinion joined by Justice Thomas, agreed that the  

background checks did not violate any constitutional rights, but argued that the Court  

should have settled the constitutional privacy question in the negative. The view held  

was that there exists no constitutional right to informational privacy. Scalia J. criticized  

the Court's decision to evade the constitutional question, stating that:   

 

“If, on the other hand, the Court believes that there is a  

constitutional right to informational privacy, then I fail to see the  

minimalist virtues in delivering a lengthy opinion analyzing that right  

while coyly noting that the right is “assumed” rather than  

“decided”… The Court decides that the Government did not  

violate the right to informational privacy without deciding  

whether there is a right to informational privacy, and without  

even describing what hypothetical standard should be used to  

assess whether the hypothetical right has been violated.”  

(emphasis supplied)  

 

In United States v Jones269 (2012), it was held unanimously that installing a Global  

Positioning System (GPS) 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  

                                                           269 565 US 400 (2012)

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Scalia, however, left unanswered the question surrounding the privacy implications of  

a warrantless use of GPS data without physical intrusion.  

 Justice Sonia Sotomayor, concurred with Justice Scalia, but addressed the privacy  

aspects of the judgment. Justice Sotomayor agreed with Justice Alito’s concurrence  

that “physical intrusion is now unnecessary to many forms of surveillance”, and held  

that “[i]n cases of electronic or other novel modes of surveillance that do not depend  

upon a physical invasion on property, the majority opinion’s trespassory test may  

provide little guidance”.  It was further observed:  

“GPS monitoring generates a precise, comprehensive record of a  

person’s public movements that reflects a wealth of detail about her  

familial, political, professional, religious, and sexual associations.  

Disclosed in [GPS] data… will be trips the indisputably private  

nature of which takes little imagination to conjure: trips to the  

psychiatrist, the plastic surgeon, the abortion clinic, the AIDS  

treatment center, the strip club, the criminal defense attorney, the  

by-the-hour motel, the union meeting, the mosque, synagogue or  

church, the gay bar and on and on… The Government can store  

such records and efficiently mine them for information years into the  

future… And because GPS monitoring is cheap in comparison to  

conventional surveillance techniques and, by design, proceeds  

surreptitiously, it evades the ordinary checks that constrain abusive  

law enforcement practices: “limited police resources and  

community hostility”…  

The net result is that GPS monitoring—by making available at  

a relatively low cost such a substantial quantum of intimate  

information about any person whom the Government, in its  

unfettered discretion, chooses to track—may “alter the  

relationship between citizen and government in a way that is  

inimical to democratic society”.” (emphasis supplied)  

 

Justice Sotomayor concluded, by stating:  

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“[I] doubt that people would accept without complaint the  

warrantless disclosure to the Government of a list of every Web site  

they had visited [or phone numbers dialled]... I would not assume  

that all information voluntarily disclosed to some member of the  

public for a limited purpose is, for that reason alone, disentitled to  

Fourth Amendment protection.”   

   

In Florida v Jardines270 (2013), the Court held that police use of a trained detection  

dog to sniff for narcotics on the front porch of a private home is a “search” within the  

meaning of the Fourth Amendment to the US Constitution, and therefore, without  

consent, requires both probable cause and a search warrant. Justice Scalia who  

delivered the opinion of the Court held as follows:   

“We… regard the area “immediately surrounding and  

associated with the home”—…..as “part of the home itself for  

Fourth Amendment purposes.” ….This area around the home is  

“intimately linked to the home, both physically and  

psychologically,” and is where “privacy expectations are most  

heightened”.” (emphasis supplied)  

 

Justice Kagan, in a concurring opinion, wrote:  

“Like the binoculars, a drug-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)  

 

                                                           270 569 US 1 (2013)

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Three years ago, in Riley v California271 (2014), the Court unanimously held that the  

warrantless search and seizure of digital contents of a cell phone during an arrest is  

unconstitutional. Chief Justice Roberts delivered the opinion of the Court and  

commented on the impact on privacy in an era of cell phones:  

“Before cell phones, a search of a person was limited by  

physical realities and tended as a general matter to constitute  

only a narrow intrusion on privacy...the possible intrusion on  

privacy is not physically limited in the same way when it comes  

to cell phones…Data on a cell phone can also reveal where a  

person has been. Historic location information is a standard  

feature on many smart phones and can reconstruct someone’s  

specific movements down to the minute, not only around town  

but also within a particular building… Mobile application  

software on a cell phone, or “apps,” offer a range of tools for  

managing detailed information about all aspects of a person’s  

life…  

Modern cell phones are not just another technological  

convenience. With all they contain and all they may reveal,  

they hold for many Americans “the privacies of life”... The fact  

that technology now allows an individual to carry such  

information in his hand does not make the information any less  

worthy of the protection for which the Founders fought. Our  

answer to the question of what police must do before searching a  

cell phone seized incident to an arrest is accordingly simple— get  

a warrant.” (emphasis supplied)  

 

In Obergefell v Hodges272, the Court held in a 5:4 decision that the fundamental right  

to marry is guaranteed to same-sex couples by both the Due Process Clause and the  

Equal Protection Clause of the Fourteenth Amendment. Justice Kennedy authored  

the majority opinion (joined by Justices Ginsburg, Breyer, Sotamayor and Kagan):  

                                                           271 573 US __ (2014)  272 576 US __ (2015)

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“Indeed, the Court has noted it would be contradictory to  

recognize a right of privacy with respect to other matters of  

family life and not with respect to the decision to enter the  

relationship that is the foundation of the family in our society.”  

(emphasis supplied)  

 

The development of the jurisprudence on the right to privacy in the United States of  

America shows that even though there is no explicit mention of the word ‘privacy’ in  

the Constitution, the courts of the country have not only recognised the right to privacy  

under various Amendments of the Constitution but also progressively extended the  

ambit of protection under the right to privacy. In its early years, the focus was on  

property and protection of physical spaces that would be considered private such as  

an individual’s home. This ‘trespass doctrine’ became irrelevant when it was held that  

what is protected under the right to privacy is “people, not places”. The ‘reasonable  

expectation of privacy’ test has been relied on subsequently by various other  

jurisdictions while developing the right to privacy. Having located the right to privacy  

in the ‘person’, American jurisprudence on the right to privacy has developed to shield  

various private aspects of a person’s life from 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 privacy with the interest of the  

State in maintaining law and order. Decisions of the Supreme Court decriminalizing

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consensual sexual activity between homosexuals and guaranteeing same-sex  

couples the right to marry indicate that the right to privacy is intrinsic to the  

constitutional guarantees of liberty and equal protection of laws.   

(iii) Constitutional right to privacy in South Africa  

In South Africa, the right to privacy has been enshrined in Section 14 of the Bill of  

Rights in the 1996 Constitution. Section 14 provides that:  

 

“14. Privacy.-Everyone has the right to privacy, which includes the right  

not to have-  

(a) their person or home searched;  

(6) their property searched;  

(c) their possessions seized; or  

(d) the privacy of their communications infringed.”  

 

In National Media Ltd v Jooste273 (1996), Justice Harms defined privacy in the  

following terms:   

 

“Privacy is an individual condition of life characterised by exclusion  

from the public and publicity. The condition embraces all those  

personal facts which a person concerned has determined him to be  

excluded from the knowledge of outsiders and in respect of which he  

has the will that they be kept private”  

     

 

On the ambit of the right to privacy, the Court held that:  

“A right to privacy encompasses the competence to determine the  

destiny of private facts…  

The individual concerned is entitled to dictate the ambit of disclosure ...  

                                                           273 1996 (3) SA 262 (A)

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the purpose and method [of] the disclosure... when and under what  

conditions private facts may be made public. A contrary view will place  

undue constraints upon the individual's so-called “absolute rights of  

personality”…  

It will also mean that rights of personality are of a lower order than real  

or personal rights”.   

 

 

In Bernstein v Bester and Others274 (1996), the South African Supreme Court  

decided on a challenge to the constitutionality of certain sections of the Companies  

Act,  on the ground that examination under these sections violated the general right  

to personal privacy (section 13). It was held that the provisions were not in breach of  

the Constitution. Justice Ackermann expounded upon the concept of privacy as  

follows:  

“The scope of privacy has been closely related to the concept of identity  and ... [that] the right… [is] based on a notion of the unencumbered  self, but on the notion of what is necessary to have one’s own  autonomous identity”.    

 

The Court observed that like every other right, the right to privacy also has its limits:               

“[67] In the context of privacy it is only the inner sanctum of a person,  

such as his/her family life, sexual preference and home environment,  

which is shielded from erosion by conflicting rights of the community.  

This implies that community rights and the rights of fellow members  

place a corresponding obligation on a citizen, thereby shaping the  

abstract notion of individualism towards identifying a concrete member  

of civil society. Privacy is acknowledged in the truly personal realm, but  

as a person moves into communal relations and activities such as  

business and social interaction, the scope of personal space shrinks  

accordingly.”  

 

  

                                                           274 1996 (2) SA 751 (CC)

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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 autonomy which allows us to establish and nurture human  

relationships without interference from the outside community. The way  

in which we give expression to our sexuality is at the core of this area  

of private intimacy. If, in expressing our sexuality, we act consensually  

and without harming one another, invasion of that precinct will be a  

breach of our privacy…”  

  

Sachs J. discussed the interrelation between equality and privacy and held that:   

 

“...equality and privacy cannot be separated, because they are both  

violated simultaneously by anti-sodomy laws. In the present matter,  

such laws deny equal respect for difference, which lies at the heart of  

equality, and become the basis for the invasion of privacy. At the same  

time, the negation by the state of different forms of intimate personal  

behaviour becomes the foundation for the repudiation of equality.”   

 

On the meaning of ‘autonomy’, the Court observed that:   

“Autonomy must mean far more than the right to occupy an  

envelope of space in which a socially detached individual can act  

freely from interference by the state. What is crucial is the nature  

of the activity, not its site. While recognising the unique worth of each  

person, the Constitution does not presuppose that a holder of rights  

is as an isolated, lonely and abstract figure possessing a disembodied  

and socially disconnected self. It acknowledges that people live in  

their bodies, their communities, their cultures, their places and  

their times. ...It is not for the state to choose or to arrange the choice  

                                                           275 1999 (1) SA 6 (CC)

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of partner, but for the partners to choose themselves.” (emphasis  

supplied)  

 

 

Justice Sachs noted that the motif which links and unites equality and privacy, and  

which runs right through the protections offered by the Bill of Rights, is dignity.  

 

In Investigating Directorate: Serious Offences v Hyundai Motor Distributors  

Ltd276 (2001), the Court was concerned with the constitutionality of the provisions of  

the National Prosecuting Authority Act that authorised the issuing of warrants of  

search and seizure for purposes of a “preparatory investigation”.  

Langa J. delivered judgment on the right to privacy of juristic persons and held that:  

“... privacy is a right which becomes more intense the closer it moves  

to the intimate personal sphere of the life of human beings, and less  

intense as it moves away from that core. This understanding of the right  

flows... from the value placed on human dignity by the Constitution.  

Juristic persons are not the bearers of human dignity. Their privacy  

rights, therefore, can never be as intense as those of human beings.  

However, this does not mean that juristic persons are not protected by  

the right to privacy. Exclusion of juristic persons would lead to the  

possibility of grave violations of privacy in our society, with serious  

implications for the conduct of affairs.”   

   

Highlighting the need to balance interests of the individual and the State, it was held  

that:    

“[54] ...Search and seizure provisions, in the context of a preparatory  

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  

                                                           276 2001 (1) SA 545 (CC)

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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  

individual and that of the state, a task that lies at the heart of the  

inquiry into the limitation of rights.” (emphasis supplied)  

 

In Minister of Home Affairs and Another v Fourie and Another277 (2006), the  

Constitutional Court of South Africa ruled unanimously that same-sex couples have a  

constitutional right to marry. The judgment delivered by Justice Sachs, held that:  

“Section 9(1) of the Constitution provides: “Everyone is equal before  

the law and has the right to equal protection and benefit of the law.”...  

Sections 9(1) and 9(3) cannot be read as merely protecting same-sex  

couples from punishment or stigmatisation. They also go beyond  

simply preserving a private space in which gay and lesbian  

couples may live together without interference from the state.  

Indeed, what the applicants in this matter seek is not the right to  

be left alone, but the right to be acknowledged as equals and to  

be embraced with dignity by the law…   

It is demeaning to adoptive parents to suggest that their family is  

any less a family and any less entitled to respect and concern than  

a family with procreated children. It is even demeaning of a couple  

who voluntarily decide not to have children or sexual relations  

with one another; this being a decision entirely within their  

protected sphere of freedom and privacy...” (emphasis supplied)  

   

In NM and Others v Smith and Others278 (2007), the names of three women who  

were HIV positive were disclosed in a biography. They alleged that the publication,  

without their prior consent, violated their rights to privacy, dignity and psychological  

integrity. The Court by majority held that the respondents were aware that the  

applicants had not given their express consent but had published their names, thereby  

                                                           277 2006 (1) SA 524 (CC).   278 2007 (5) SA 250 (CC).  

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violating their privacy and dignity rights. Justice Madala delivered the majority  

judgment on the basis of the value of privacy and confidentiality in medical information  

and held that:  

“Private and confidential medical information contains highly sensitive  

and personal information about individuals. The personal and intimate  

nature of an individual’s health information, unlike other forms of  

documentation, reflects delicate decisions and choices relating to  

issues pertaining to bodily and psychological integrity and personal  

autonomy…   

 

Individuals value the privacy of confidential medical information  

because of the vast number of people who could have access to the  

information and the potential harmful effects that may result from  

disclosure. The lack of respect for private medical information and its  

subsequent disclosure may result in fear jeopardising an individual’s  

right to make certain fundamental choices that he/she has a right to  

make. There is therefore a strong privacy interest in maintaining  

confidentiality.”  

 

 

The decision of the Court was that there must be a pressing social need for the right  

to privacy to be interfered with and that there was no such compelling public interest  

in this case.  

 In the dissenting opinion, 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,

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we are nevertheless entitled to a personal sphere from which we  

may and do exclude that community. In that personal sphere, we  

establish and foster intimate human relationships and live our daily  

lives. This sphere in which to pursue our own ends and interests in  

our own ways, although often mundane, is intensely important to  

what makes human life meaningful.”   

 

According to the decision, there are two inter-related reasons for the constitutional  

protection of privacy- one flows from the “constitutional conception of what it means  

to be a human being” and the second from the “constitutional conception of the state”:  

 “An implicit part of [the first] 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.  

…Secondly, we value privacy as a necessary part of a  

democratic society and as a constraint on the power of the  

state... In authoritarian societies, the state generally does not afford  

such protection. People and homes are often routinely searched  

and the possibility of a private space from which the state can be  

excluded is often denied. The consequence is a denial of liberty and  

human dignity. In democratic societies, this is impermissible.”  

(emphasis supplied)  

 

 

The limits of the right to privacy and the need to balance it with other rights emerge  

from the following observations:  

“Recognition of legitimate limits on the inviolability of personal  

space, however, does not mean that the space is not worthy of  

protection. The Constitution seeks to ensure that rights reinforce  

one another in a constructive manner in order to promote human  

rights generally. At times our Constitution recognises that a balance  

has to be found to provide protection for the different rights.”   

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On the inter-relationship between the right to privacy, liberty and dignity, the Court  

observed that:  

“The right to privacy recognises the importance of protecting the  

sphere of our personal daily lives from the public. In so doing, it  

highlights the inter-relationship between privacy, liberty and  

dignity as the key constitutional rights which construct our  

understanding of what it means to be a human being. All these  

rights are therefore inter-dependent and mutually reinforcing.  

We value privacy for this reason at least – that the constitutional  

conception of being a human being asserts and seeks to foster the  

possibility of human beings choosing how to live their lives within  

the overall framework of a broader community.” (emphasis  

supplied)  

 

 

The interim as well as the Final Constitution of South Africa contain explicit provisions  

guaranteeing the right to privacy. The Judges of South African Supreme Court have  

given an expansive meaning to the 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 been  

relied on by the Supreme Court of Canada to recognize a right to privacy. Most

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notably, Section 8279 (the Canadian version of the Fourth Amendment of the US  

Constitution) has been employed in this respect. Privacy issues have also been  

recognized in respect of Section 7280 of the Charter. In 1983, the Privacy Act was  

enacted to regulate how federal government collects, uses and discloses personal  

information.281 The Personal Information Protection and Electronic Documents Act  

(PIPEDA) governs how private sector organisations collect, use and disclose personal  

information in the course of commercial activities  

 One of the landmark cases on the right to privacy was Hunter v Southam Inc282  

(1984). This was also the first Supreme Court of Canada decision to consider Section  

8 of the Charter. In this case, the Combines Investigation Act had authorized several  

civil servants to enter the offices of Southam Inc and examine documents. The  

company claimed that this Act violated Section 8 of the Canadian Charter.  The Court  

unanimously held that the Combines Investigation Act violated the Charter as it did  

not provide an appropriate standard for administering warrants.  

 Dickson J. wrote the opinion of the Court and observed that the Canadian Charter is  

a “purposive document” whose purpose is to “guarantee and to protect, within the  

limits of reason, the enjoyment of the rights and freedoms it enshrines” and to  

                                                           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 values and rights set out in the Constitution”. The Court also stated that the "The Privacy Act is a reminder  of the extent to which the protection of privacy is necessary to the preservation of a free and democratic society”.  282 [1984] 2 SCR 145

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constrain governmental action inconsistent with those rights and freedoms. The Court  

held that since Section 8 is an entrenched constitutional provision, it was “not  

vulnerable to encroachment by legislative enactments in the same way as common  

law protections.”   

 The Court held that the purpose of Section 8 is to protect an individual's reasonable  

expectation of privacy but right to privacy must be balanced against the government’s  

duty to enforce the law. It was further held that:   

“The guarantee of security from unreasonable search and seizure only  

protects a reasonable expectation. This limitation on the right  

guaranteed by s. 8, whether it is expressed negatively as freedom from  

"unreasonable" search and seizure, or positively as an entitlement to a  

"reasonable" expectation of privacy, indicates that an assessment must  

be made as to whether in a particular situation the public's interest in  

being left alone by government must give way to the government's  

interest in intruding on the individual's privacy in order to advance its  

goals, notably those of law enforcement.”  

 

 

In Her Majesty, The Queen v Brandon Roy Dyment283 (1988), a patient had met  

with an accident on a highway. A doctor collected a sample of blood from his wound.  

The blood sample was taken for medical purposes but was given to a police officer.  

As a result of an analysis carried out by the police officer, the patient was charged  

with impaired driving. The Court held that the seizing of blood taken for medical  

purposes was a violation of Section 8 of 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:  

                                                           283 [1988] 2 SCR 417

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“[L]egal 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 this reason alone, it is worthy of  

constitutional protection, but it also has profound significance for  

the public order. The restraints imposed on government to pry  

into the lives of the citizen go to the essence of a democratic  

state.” (emphasis supplied)  

 

On the importance of informational privacy, it was held:  

 “This notion of privacy derives from the assumption that all  

information about a person is in a fundamental way his own, for him  

to communicate or retain for himself as he sees fit...  

 

In modern society, especially, retention of information about oneself  

is extremely important. We may, for one reason or another, wish or  

be compelled to reveal such information, but situations abound  

where the reasonable expectations of the individual that the  

information shall remain confidential to the persons to whom, and  

restricted to the purposes for which it is divulged, must be  

protected.”  

 

 

Justice La Forest wrote on the importance of consent and held that “the use of a  

person's body without his consent to obtain information about him, invades an area of  

personal privacy essential to the maintenance of his human dignity.”   

     The Court found that the patient had a “well-founded” and “reasonable” expectation  

of privacy that his blood sample, collected by the doctor, would be used for medical  

purposes only and that such expectation “is intended to protect people not things”. It  

was held that:

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“In the present case, however, the respondent may, for some  

purposes perhaps, be deemed to have impliedly consented to a  

sample being taken for medical purposes, but he retained an  

expectation that his privacy interest in the sample continue past the  

time of its taking…Under these circumstances, the sample was  

surrounded by an aura of privacy meriting Charter protection. For  

the state to take it in violation of a patient's right to privacy  

constitutes a seizure for the purposes of s. 8.”   

 

R v Plant284 (1993) is a leading decision of the Supreme Court of Canada on the  

protection of personal information under the Charter. In this case, a police officer, on  

the basis of information that marijuana was being grown in an area, accessed the  

electrical utility’s computer system and discovered that a particular house was  

consuming an extremely high amount of electricity. Two officers then performed a  

warrantless perimeter search of the property and observed that the basement  

windows were covered with something opaque and a that a vent had been blocked  

using a plastic bag. On the basis of this information, the police obtained a warrant to  

search the home and discovered over a hundred seedling marijuana plants. The  

accused was charged with cultivation of marijuana and possession for the purpose of  

trafficking. The issue was whether the warrantless perimeter search of his home and  

the seizure of electricity consumption records violated his right against unreasonable  

search and seizure under section 8 of the Charter.  

 

                                                           284 [1993] 3 S.C.R. 281

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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 individual.”  

 

The Court held that the perimeter search violated the Charter and that the seizure of  

consumption records was not in violation of Section 8. This decision was based on  

the ground that the pattern of electricity consumption revealed as a result of computer  

investigations could not be said to reveal intimate details since “electricity  

consumption reveals very little about the personal lifestyle or private decisions.”  

 In Her Majesty, The Queen v Walter Tessling286 (2004), the Supreme Court of  

Canada held that the use of thermal imaging by the police in the course of an  

investigation of a suspect's property did not constitute a violation of the accused's  

right to a reasonable expectation of privacy under Section 8 of the Canadian Charter.  

 On the reasonable expectation of privacy, it was held that the totality of circumstances  

need to be considered with particular emphasis on both the existence of a subjective  

expectation of privacy, and the objective reasonableness of the expectation. The  

Court ruled that the cases of privacy interests (protected by S. 8 of the Canadian  

                                                           285 425 US 435 (1976)  286 (2004) SCC 67

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Charter) need to be distinguished between personal privacy, territorial privacy and  

informational privacy.”  

 

The Court relied on Justice Sopinka’s understanding of the scope of the protection of  

informational privacy in R v Plant (supra) and held that the information generated by  

FLIR imaging did not reveal a “biographical core of personal information” or “intimate  

details of [his] lifestyle”, and therefore section 8 had not been violated.  

 

The decision in R v Spencer287 (2014) was related to informational privacy. In this  

case, the appellant used an online software to download child pornography onto a  

computer and shared it publicly. The police requested subscriber information  

associated with an IP address from the appellant’s Internet Service Provider and on  

the basis of it, searched the computer used by him. The Canadian Supreme Court  

unanimously ruled that the request for an IP address infringed the Charter's guarantee  

against unreasonable search and seizure. It was held that the appellant had a  

reasonable expectation of privacy. In doing so, it assessed whether there is a  

“reasonable expectation of privacy” in the “totality of the circumstances”, which  

includes “the nature of the privacy interests implicated by the state action” and “factors  

more directly concerned with the expectation of privacy, both subjectively and  

objectively viewed, in relation to those interests”. It was further held:   

“...factors that may be considered in assessing the reasonable  

expectation of privacy can be grouped under four main headings for  

analytical convenience: (1) the subject matter of the alleged  

search; (2) the claimant's interest in the subject matter; (3) the  

claimant's subjective expectation of privacy in the subject  

                                                           287 (2014) SCC 43

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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 situations…”  

 

The Court found that the nature of appellant’s privacy interest in subscriber  

information relating to a computer used privately was primarily an informational  

one and held:  

 “... the identity of a person linked to their use of the Internet must be  

recognized as giving rise to a privacy interest beyond that inherent in  

the person’s name, address and telephone number found in the  

subscriber information.”  

 

 

It then set out three key elements of informational privacy: privacy as secrecy,  

privacy as control, and privacy as anonymity. It further emphasised on the  

importance of anonymity in informational privacy, particularly in the age of the  

Internet and held that:  

 “... anonymity may, depending on the totality of the circumstances, be  

the foundation of a privacy interest that engages constitutional  

protection against unreasonable search and seizure...”  

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Though the Court stopped short of recognizing an absolute right to anonymity, it held  

that “anonymous Internet activity engages a high level of informational privacy”. The  

Court further held that:   

 “The disclosure of this information will often amount to the identification  of a user with intimate or sensitive activities being carried out online,  usually on the understanding that these activities would be anonymous.  A request by a police officer that an ISP voluntarily disclose such  information amounts to a search.”      

 The Canadian Supreme Court has used provisions of the Charter to expand the  

scope of the right to privacy, used traditionally to protect individuals from an invasion  

of their property rights, to an individual’s “reasonable expectation of privacy”. The  

right to privacy has been held to be more than just a physical right as it includes the  

privacy in information about one’s identity. Informational privacy has frequently been  

addressed under Section 8 of the Charter. Canadian privacy jurisprudence has  

developed with the advent of technology and the internet. Judicial decisions have  

significant implications for internet/digital privacy.     

 

(v) Privacy under The European Convention on Human Rights and the European Charter  

In Europe, there are two distinct but related frameworks to ensure the protection of  

the right of privacy. The first is the European Convention on Human Rights (ECHR),  

an international agreement to protect human rights and fundamental freedoms in  

Europe. The second is the Charter of Fundamental Rights of the European Union  

(CFREU), a treaty enshrining certain political, social, and economic rights for the

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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 or crime, for the protection of health or morals,  

or for the protection of the rights and freedoms of others.”  

 

 

Under the Charter, the relevant provisions are:   

Article 7   

Respect for private and family life  

Everyone has the right to respect for his or her private and family life,  

home and communications.  

Article 8   

Protection of personal data  

1. Everyone has the right to the protection of personal data concerning  

him or her.

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2. Such data must be processed fairly for specified purposes and on  

the basis of the consent of the person concerned or some other  

legitimate basis laid down by law. Everyone has the right of access to  

data which has been collected concerning him or her, and the right to  

have it rectified.   

3. Compliance with these rules shall be subject to control by an  

independent authority.  

Article 52    

Scope of guaranteed rights  

1. Any limitation on the exercise of the rights and freedoms recognised  

by this Charter must be provided for by law and respect the essence of  

those rights and freedoms. Subject to the principle of proportionality,  

limitations may be made only if they are necessary and genuinely meet  

objectives of general interests recognised by the Union of the need to  

protect the rights and freedoms of others.   

2. Rights recognised by this Charter which are based on the  

Community Treaties or the Treaty on European Union shall be  

exercised under the conditions and within the limits defined by those  

Treaties.   

3. In so far as this Charter contains rights which correspond to rights  

guaranteed by the Convention of the Protection of Human Rights and  

Fundamental Freedoms, the meaning and scope of those rights shall  

be the same as those laid down by the said Convention. This provision  

shall not prevent Union law providing more extensive protection.  

 

Article 52(3) provides for the ECHR as a minimum standard of human rights in the  

EU. Article 52(3) thus leads the EU to be indirectly bound by the ECHR as it must  

always be obeyed when restricting fundamental rights in the EU. Moreover, in the pre-

Charter era, the protection of privacy was held to form part of the right to privacy in  

line with how the ECtHR in Strasbourg interprets Art. 8 of ECHR till date288.   

                                                           288 In the case of J McB v LE, Case C-400/10 PPU, [2010] ECR I-nyr, the CJEU ruled that where Charter rights  paralleled ECHR rights, the Court of Justice should follow any consistent jurisprudence of the European Court of  Human Rights, elucidating that: “It is clear that the said Article 7 [of the EU Charter] contains rights corresponding  to those guaranteed by Article 8(1) of the ECHR. Article 7 of the Charter must therefore be given the same  meaning and the same scope as Article 8(1) of the ECHR...” Reference can be passed to a case before ECtHR,

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Thus, in order to understand the protection extended to the right to privacy in EU, the  

jurisprudence of Article 8 of the Convention and Article 7 of the Charter need to be  

analyzed. The term ‘private life’ is an essential ingredient of both these provisions and  

has been interpreted to encompass a wide range of interests.   

In the case of Niemietz v Germany289 (1992), the ECtHR observed that:   

“The Court does not consider it possible or necessary to attempt an  

exhaustive definition of the notion of "private life". However, it would be  

too restrictive to limit the notion to an "inner circle" in which the  

individual may live his own personal life as he chooses and 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  

integrity of a person... It can therefore embrace multiple aspects of the  

person's physical and social identity... Elements such as, for example,  

gender identification, name and sexual orientation and sexual life fall  

within the personal sphere protected by Article 8... Beyond a person's  

                                                           Varec SA v. État belge, Case C-450/06, [2008] ECR I-581, where it was observed that that: “...the right to respect  for private life, enshrined in Article 8 of the ECHR, which flows from the common constitutional traditions of the  Member States.... is restated in Article 7 of the Charter of fundamental rights of the European Union”.    289 Application no. 13710/88, judgment dated 16 September 1992.  290 Application no. 13134/87, judgment dated 25 March 1993.  291  [2008] ECHR 1581

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name, his or her private and family life may include other means of  

personal identification and of linking to a family... Information about the  

person's health is an important element of private life... The Court  

furthermore considers that an individual's ethnic identity must be  

regarded as another such element... The concept of private life  

moreover includes elements relating to a person's right to their  

image…”  

 

In Uzun v Germany292 (2010), the European Court of Human Rights while examining  

an application claiming violation of Article 8 observed that:   

“Article 8 protects, inter alia, a right to identity and personal  

development, and the right to establish and develop relationships with  

other human beings and the outside world. There is, therefore, a zone  

of interaction of a person with others, even in a public context, which  

may fall within the scope of “private life”...  

There are a number of elements relevant to a consideration of whether  

a person's private life is concerned by measures effected outside a  

person's home or private premises. Since there are occasions when  

people knowingly or intentionally involve themselves in activities which  

are or may be recorded or reported in a public manner, a person's  

reasonable expectations as to privacy may be a significant, although  

not necessarily conclusive, factor…”  

 Thus, the determination of a complaint by an individual under Article 8 of the Convention  

necessarily involves a two-stage test293, which can be summarized as below:  

“Stage 1: Article 8 para. 1  

1.1 Does the complaint fall within the scope of one of the rights  

protected by Article 8 para 1?  

1.2 If so, is there a positive obligation on the State to respect an  

individual’s right and has it been fulfilled?  

Stage 2: Article 8 para. 2  

2.1 Has there been an interference with the Article 8 right?  

2.2 If so,   

                                                           292 Application No. 35623/05  293 Ursula Kilkelly, “The right to respect for private and family life: A guide to the implementation of Article 8 of the  European Convention on Human Rights”, Council of Europe (2001), at page 9

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2.2.1 is it in accordance with law?  

2.2.2 does it pursue a legitimate aim?  

2.2.3 is it necessary in a democratic society?  

This test is followed by the Court each time it applies Article 8 in a  

given case.”   

 

In other words, a fair balance is struck between the general interest of the community  

and the interests of the individual.  

The Grand Chamber of 18 judges at the ECtHR, in S and Marper v United Kingdom  

(supra), examined the claim of the applicants that their Right to Respect for Private  

Life under Article 8 was being violated as their fingerprints, cell samples and DNA  

profiles were retained in a database after successful termination of criminal  

proceedings against 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 personal information retained by the  

authorities involves any of the private-life aspects mentioned above,  

the Court will have due regard to the specific context in which the  

information at issue has been recorded and retained, the nature of the  

records, the way in which these records are used and processed and  

the results that may be obtained.”  

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Applying the above principles, it was held that:  

“The Court notes at the outset that all three categories of the personal  

information retained by the authorities in the present cases, namely  

fingerprints, DNA profiles and cellular samples, constitute personal  

data within the meaning of the Data Protection Convention as they  

relate to identified or identifiable individuals. The Government accepted  

that all three categories are “personal data” within the meaning of the  

Data Protection Act 1998 in the hands of those who are able to identify  

the individual.”  

 

Regarding the retention of cellular samples and DNA profiles, it was held that:  

“Given the nature and the amount of personal information contained in  

cellular samples, their retention per se must be regarded as interfering  

with the right to respect for the private lives of the individuals  

concerned. That only a limited part of this information is actually  

extracted or used by the authorities through DNA profiling and that no  

immediate detriment is caused in a particular case does not change  

this conclusion… [T]he DNA profiles' capacity to provide a means of  

identifying genetic relationships between individuals… is in itself  

sufficient to conclude that their retention interferes with the right to the  

private life of the individuals concerned... The possibility the DNA  

profiles create for inferences to be drawn as to ethnic origin makes their  

retention all the more sensitive and susceptible of affecting the right to  

private life.”   

 

Regarding retention of fingerprints, it was held that:  

“...fingerprints objectively contain unique information about the  

individual concerned allowing his or her identification with precision in  

a wide range of circumstances. They are thus capable of affecting his  

or her private life and retention of this information without the consent  

of the individual concerned cannot be regarded as neutral or  

insignificant…”  

 

In Uzun v Germany (supra), the ECtHR examined an application claiming violation of  

Article 8 of European Convention of Human Rights where the applicant’s data was

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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 proportionate.”  

 The decision of the CJEU in the case Asociación Nacional de Establecimientos  

Financieros de Crédito (ASNEF) v Spain294 relied upon the Article 7 right to respect  

for private life and Article 8(1) of the Charter to find that the implementation in Spain  

of the Data Protection Directive was defective in that it applied only to information kept  

in a specified public data bank rather than more generally to public and private  

databases, on the basis that “the processing of data appearing in non-public sources  

necessarily implies that information relating to the data subject’s private life will  

thereafter be known by the data controller and, as the case may be, by the third party  

or parties to whom the data is disclosed. This more serious infringement of the data  

                                                           294 C-468/10, 24 November, [2011] ECR I-nyr

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subject’s rights enshrined in Articles 7 and 8 of the Charter must be properly taken  

into account”.  

 

In Digital Rights Ireland Ltd v Minister295 (2014), the CJEU examined the validity of  

a Data Protection Directive, which required telephone and internet service providers  

to retain details of internet and call data for 6 to 24 months, as well as related data  

necessary to identify the subscriber or user, so as to ensure that the data is available  

for the purpose of prevention, investigation, detection and prosecution of serious  

crimes. The Court ruled that the Directive is incompatible with Article 52(1) of the  

Charter, because the limitations which the said Directive placed were “not  

accompanied by the necessary principles for governing the guarantees needed to  

regulate access to the data and their use”. It was held that:  

“To establish the existence of an interference with the fundamental  

right to privacy, it does not matter whether the information on the private  

lives concerned is sensitive or whether the persons concerned have  

been inconvenienced in any way.”  

 

While stating that data relating to the use of electronic communications is particularly  

important and therefore a valuable tool in the prevention of offences and the fight  

against crime, in particular organised crime, the Court looked into the proportionality  

of the interference with the right to privacy and held that:  

“As regards the necessity for the retention of data required by Directive  

2006/24, it must be held that the fight against serious crime, in  

particular against organised crime and terrorism, is indeed of the  

utmost importance in order to ensure public security and its  

                                                           295 C-293/12

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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 or her private life and correspondence...  

Consequently, in such cases it will expect the same safeguards to be  

in place to protect individuals from arbitrary interference with their  

Article 8 rights...  

Surveillance of “appropriate adult”-detainee consultations were not  

subject to legal privilege and therefore a detainee would not have the  

same expectation of privacy.…The relevant domestic provisions,  

insofar as they related to the possible surveillance of consultations  

between detainees and “appropriate adults”, were accompanied by  

“adequate safeguards against abuse”, notably as concerned the  

authorisation, review and record keeping. Hence, there is no violation  

of Article 8.”  

                                                           296 Application No. 62498/11  297 As per the facts of the case, an “appropriate adults” could be a relative or guardian, or a person experienced  in dealing with mentally disordered or mentally vulnerable people.

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In Roman Zakharov v Russia298 (2015), ECtHR examined an application claiming  

violation of Article 8 of the Convention alleging that the mobile operators had permitted  

unrestricted interception of all telephone communications by the security services  

without prior judicial authorisation, under the prevailing national law. The Court  

observed that:  

“Mr Zakharov was entitled to claim to be a victim of a violation of the  

European Convention, even though he was unable to allege that he  

had been the subject of a concrete measure of surveillance. Given the  

secret nature of the surveillance measures provided for by the  

legislation, their broad scope (affecting all users of mobile telephone  

communications) and the lack of effective means to challenge them at  

national level… Russian law did not meet the “quality of law”  

requirement and was incapable of keeping the interception of  

communications to what was “necessary in a democratic society”.  

There had accordingly been a violation of Article 8 of the Convention.”  

Both the ECtHR and the CJEU, while dealing with the application and interpretation  

of Article 8 of ECHR and Article 7 of the Charter, have kept a balanced approached  

between individual interests and societal interests. The two-step test in examining an  

individual claim related to a Convention right has strictly been followed by ECtHR.  

 

(vi) Decisions of the Inter-American Court of Human Rights  

Article 11 of the American Convention on Human Rights deals with the Right to  

Privacy. The provision is extracted below:   

“1. Everyone has the right to have his honor respected and his dignity  

recognized.  

                                                           298 Application No. 47143/06

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2. No one may be the object of arbitrary or abusive interference with his  

private life, his family, his home, or his correspondence, or of unlawful  

attacks on his honor or reputation.  

3. Everyone has the right to the protection of the law against such  

interference or attacks.”  

 

The decision in Artavia Murillo ET AL. (“In Vitro Fertilization”) v Costa Rica299  

(2012), addressed the question of whether the State’s prohibition on the practice of in  

vitro fertilisation constituted an arbitrary interference with 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 with the outside  

world. The effective exercise of the right to private life is  

decisive for the possibility of exercising personal autonomy on  

the future course of relevant events for a person’s quality of  

life. Private life includes the way in which individual views  

himself and how he decides to project this view towards  

others, and is an essential condition for the free development  

of the personality… Furthermore, the Court has indicated that  

motherhood is an essential part of the free development of a  

woman’s personality. Based on the foregoing, the Court considers  

that the decision of whether or not to become a parent is part of the  

right to private life and includes, in this case, the decision of whether  

or not to become a mother or father in the genetic or biological  

sense.” (emphasis supplied)  

 

                                                           299 Inter-Am. Ct. H.R. (Ser. C) No. 257

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In Escher et al v Brazil300 (2009), telephonic interception and monitoring of telephonic  

lines was carried out by the military police of the State between April and June 1999.  

The Court found that the State violated the American Convention on Human Rights  

and held that:  

 “Article 11 applies to telephone conversations irrespective of their  

content and can even include both the technical operations  

designed to record this content by taping it and listening to it, or any  

other element of the communication process; for example, the  

destination or origin of the calls that are made, the identity of the  

speakers, the frequency, time and duration of the calls, aspects that  

can be verified without the need to record the content of the call by  

taping the conversation…  

 

Article 11 of the Convention recognizes that every person has the  

right to respect for his honor, prohibits an illegal attack against honor  

and reputation, and imposes on the States the obligation to provide  

legal protection against such attacks. In general, the right to honor  

relates to self-esteem and self-worth, while reputation refers to the  

opinion that others have of a person…  

 

[O]wing to the inherent danger of abuse in any monitoring system,  

this measure must be based on especially precise legislation with  

clear, detailed rules. The American Convention protects the  

confidentiality and inviolability of communications from any kind of  

arbitrary or abusive interference from the State or individuals;  

consequently, the surveillance, intervention, recording and  

dissemination of such communications is prohibited, except in the  

cases established by law that are adapted to the objects and  

purposes of the American Convention.”  

 

Like other international jurisdictions, the Inter-American Court of Human Rights dealt  

with the concept of privacy and private life in broad terms which enhance the value  

of liberty and freedom.   

 

                                                           300 Inter-Am. Ct. H.R. (Ser. C) No. 200

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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 facets, among them being:   

(i)  there is no general or fundamental right to privacy under the Constitution;   

(ii)  no blanket right to privacy can be read as part of the fundamental rights and  

where some of the constituent facets of privacy are already covered by the  

enumerated guarantees in Part III, those facets will be protected in any case;   

(iii)  where specific species of privacy are governed by the protection of liberty in  

Part III of the Constitution, they are subject to reasonable restrictions in the  

public interest as recognized in several decisions of this Court ;  

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(iv)  privacy is a concept which does not have any specific meaning or definition  

and the expression is inchoate; and   

(v)  the draftsmen of the Constitution specifically did not include such a right as  

part of the chapter on fundamental rights and even the ambit of the expression  

liberty which was originally sought to be used in the draft Constitution was  

pruned to personal liberty. These submissions have been buttressed by Mr  

Aryama Sundaram, learned senior counsel.   

 

136 Criticism and critique lie at the core of democratic governance. Tolerance of  

dissent is equally a cherished value. In deciding a case of such significant dimensions,  

the Court must factor in the criticisms voiced both domestically and internationally.   

These, as we notice, are based on academic, philosophical and practical  

considerations.   

 

137 The Stanford Encyclopaedia of Philosophy adverts to “several sceptical and  

critical accounts of privacy”. The criticism is set out thus:   

“There are several sceptical and critical accounts of privacy.  

According to one well known argument there is no right to privacy  

and there is nothing special about privacy, because any interest  

protected as private can be equally well explained and protected by  

other interests or rights, most notably rights to property and bodily  

security (Thomson, 1975). Other critiques argue that privacy  

interests are not distinctive because the personal interests they  

protect are economically inefficient (Posner, 1981) or that they are  

not grounded in any adequate legal doctrine (Bork, 1990). Finally,  

there is the feminist critique of privacy, that granting special status

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to privacy is detrimental to women and others because it is used as  

a shield to dominate and control them, silence them, and cover up  

abuse (MacKinnon, 1989).”301  

 

138 In a 2013 article published in the Harvard Law Review, a professor of law at  

Georgetown Law Center, Georgetown University, described privacy as having an  

“image problem”302. Privacy, as she notes, has been cast as “old-fashioned at best  

and downright harmful at worst - anti-progressive, overly costly, and inimical to the  

welfare of the body politic”303. The consequences in her view are predictable:   

“…when privacy and its purportedly 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 need for knowledge, innovation and development.  These concerns cannot  

be discarded and must be factored in. They are based on the need to provide  

economic growth and social welfare to large swathes of an impoverished society.   

                                                           301 “Privacy” , Stanford Encyclopaedia of Philosophy (2002) , available at   https://plato.stanford.edu/entries/privacy/  302 Julie E Cohen, “What Privacy Is For”, Harvard Law Review (2013), Vol. 126, at page 1904  303 Ibid  304 Ibid, at pages 1904-1905.

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139  Another criticism, which is by Robert Bork, questions the choice of  

fundamental values of the Constitution by judges of the US Supreme Court and the  

theory (propounded by Justice Douglas in Griswold) of the existence of ‘penumbras’  

or zones of privacy created by the Bill of Rights as a leap of judicial interpretation.305  

 

140 The Stanford Encyclopaedia of Philosophy seeks to offer an understanding  

of the literature on privacy in terms of two concepts: reductionism and coherentism.306  

Reductionists are generally critical of privacy while the Coherentists defend  

fundamental values of privacy interests. The criticisms of privacy have been broadly  

summarised as consisting of the following :  

 

a Thomson’s Reductionism307    

Judith Jarvis Thomson, in an article published in 1975, noted that while there is little  

agreement on the content of privacy, ultimately privacy is a cluster of rights which  

overlap with property rights or the right to bodily security.  In her view, the right to  

privacy is derivative in the sense that a privacy violation is better understood as  

violation of a more basic right.  

 

 

 

                                                           305 For this criticism, see :  Robert H Bork, “Neutral Principles and some First Amendment Problems”,  Indiana  

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

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b Posner’s Economic critique308   

Richard Posner, in ‘the Economics of Justice’ published in 1981, argued that  

privacy is protected in ways that are economically inefficient.  In his view, privacy  

should be protected only when access to information would reduce its value such as  

when a student is allowed access to a letter of recommendation for admission,  

rendering such a letter less reliable. According to Posner, privacy when manifested  

as control over information about oneself, is utilised to mislead or manipulate others.  

 

c  Bork’s critique    

Robert Bork, in ‘The Tempting of America: The Political Seduction of the Law’309,  

has been severe in his criticism of the protection of privacy by the US Supreme Court.  

In his view, Justice Douglas in Griswold did not derive privacy from some pre-existing  

right but sought to create a new right which has no foundation in the Bill of Rights,  

thereby overstepping the bounds of a judge by making new law and not by interpreting  

it.    

Many theorists urge that the constitutional right to privacy is more correctly regarded  

as a right to liberty.   

The powerful counter argument to these criticisms is that while individuals possess  

multiple liberties under the Constitution, read in isolation, many of them are not related  

to the kinds of concerns that emerge in privacy issues.  In this view, liberty is a concept  

                                                           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

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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 gender and autonomy. As a result, gender violence is often  

treated as a matter of “family honour” resulting in the victim of violence suffering twice  

over – the physical and mental trauma of her dignity being violated and the perception  

that it has cause an affront to “honour”. Privacy must not be utilised as a cover to  

conceal and assert patriarchal mindsets.   

 

Catherine MacKinnon in a 1989 publication titled ‘Towards a Feminist Theory of  

the State’312 adverts to the dangers of privacy when it is used to cover up physical  

harm done to women by perpetrating their subjection.  Yet, it must also be noticed  

                                                           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

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that women have an inviolable interest in privacy. Privacy is the ultimate guarantee  

against violations caused by programmes not unknown to history, such as state  

imposed sterilization programmes or mandatory state imposed drug testing for  

women. The challenge in this area is to enable the state to take the violation of the  

dignity of women in the domestic sphere seriously while at the same time protecting  

the privacy entitlements of women grounded in the identity of gender and liberty.   

 

141 The submission that privacy has no accepted or defined connotation can be  

analysed with reference to the evolution of the concept in the literature on the subject.   

Some of the leading approaches which should be considered for an insight into the  

ambit and content of privacy:    

 

(i)  Alan Westin313 defined four basic states of privacy which reflect on the nature  

and extent of the involvement of the individual in the public sphere. At the core is  

solitude – the most complete state of privacy involving the individual in an “inner  

dialogue with the mind and conscience”.314 The second state is the state of intimacy  

which refers not merely to intimate relations between spouses or partners but also  

between family, friends and colleagues. The third state is of anonymity where an  

individual seeks freedom from identification despite being in a public space.  The  

fourth state is described as a state of reservation which is expressed as “the need to  

                                                           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

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hold some aspects of ourselves back from others, either as too personal and sacred  

or as too shameful and profane to express”315.    

 

(ii) Roger Clarke has developed a classification of privacy on Maslow’s pyramid  

of values316. The values described in Maslow’s pyramid are: self-actualization, self-

esteem, love or belonging, safety and physiological or biological need. Clarke’s  

categories include (a) privacy of the person also known as bodily privacy. Bodily  

privacy is violated by compulsory extraction of samples of body fluids and body tissue  

and compulsory sterilization; (b) privacy of personal behaviour which is part of a  

private space including the home; (c) Privacy of personal communications which is  

expressed as the 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)  

                                                           315 Ibid, at page 497  316 Ibid, at 498  317  Ibid, at 500

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decisional privacy which protects the right of citizens to make intimate choices about  

their rights from intrusion by the State; (d) proprietary privacy which relates to the  

protection of one’s reputation; (e) associational privacy which protects the right of  

groups with certain defined characteristics to determine whom they may include or  

exclude.318   

Privacy has distinct connotations including (i) spatial control; (ii) decisional autonomy;  

and (iii) informational control.319 Spatial control denotes the creation of private spaces.  

Decisional autonomy comprehends intimate personal choices such as those  

governing reproduction as well as choices expressed in public such as faith or modes  

of dress.  Informational control empowers the individual to use privacy as a shield to  

retain personal control over information pertaining to the person.  With regard to  

informational privacy, it has been stated that :  

   

“…perhaps the most convincing conception is proposed by Helen  

Nissenbaum who argues that privacy is the expectation that  

information about a person will be treated appropriately.  This  

theory of “contextual integrity” believes people do not want to  

control their information or become inaccessible as much as they  

want their information to be treated in accordance with their  

expectation (Nissenbaum 2004, 2010, 2011).”320   

   

 

Integrated together, the fundamental notions of privacy have been depicted in a  

seminal article published in 2017 titled “A Typology of privacy”321 in the University  

                                                           318 Ibid, at pages 500-501  319  Bhairav Acharya, “The Four Parts of Privacy in India”, Economic & Political Weekly (2015), Vol. 50 Issue 22,  

at page 32  320 Ibid, at page 34  

321 Bert-Jaap Koops  et al., “A Typology of Privacy”, University of Pennsylvania Journal of International Law (2017),  Vol. 38  Issue 2, at page 566

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of Pennsylvania Journal of International Law. The article contains an excellent visual  

depiction of privacy, which is presented in the following format :    

        

 

 

 

 

 

 

 

 

 

 

 

142 The above diagrammatical representation presents two primary axes: a  

horizontal axis consisting of four zones of privacy and a vertical axis which  

emphasises two aspects of freedom: the freedom to be let alone and the freedom for  

self-development. The nine primary types of privacy are, according to the above  

depiction: (i) bodily privacy which reflects the privacy of the physical body. Implicit in  

this is the negative freedom of being able to prevent others from violating one’s body  

or from restraining the freedom of bodily movement; (ii) spatial privacy which is  

reflected in the privacy of a private space through which access of others can be  

restricted to the space; intimate relations and family life are an apt illustration of spatial  

privacy; (iii) communicational privacy which is reflected in enabling an  individual  to

(emphasis  on)  Freedom  to be  let  alone”    

(emphasis on)  

Freedom to  “self- development”    

personal  zone  

intimate  zone  

semi-private  zone  “secrecy”  

public zone  “inconspicuousness”  

 

 

behavioural  

privacy  

 

 

associational  

privacy  

 

 

decisional  

privacy  

   intellectual  privacy  

 

bodily privacy  

 

 

spatial privacy  

 

communicational  

Privacy  

 proprietary  Privacy  

     

i n f o rm a t i o n a l  p r i va c y  

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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 self from being disseminated and controlling the  

extent of access to information.   

 

M Constituent Assembly and privacy: limits of originalist interpretation  

143 The founding fathers of the Constitution, it has been urged, rejected the notion  

of privacy being a fundamental right. Hence it has been submitted that it would be  

outside the realm of constitutional adjudication for the Court to declare a fundamental  

right to privacy. The argument merits close consideration.    

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144 On 17 March 1947, K M Munshi submitted Draft articles on the fundamental  

rights and duties of citizens to the Sub-committee on fundamental rights. Among the  

rights of freedom proposed in clause 5 were the following322 :   

“…(f) the right to the inviolability of his home,  

(g) the right to the secrecy of his correspondence,  

(h) the right to maintain his person secure by the law of the Union  

from exploitation in any manner contrary to law or public authority…”  

   

145 On 24 March 1947, Dr Ambedkar submitted a Memorandum and Draft articles  

on the rights of states and minorities. Among the draft articles on fundamental rights  

of citizens was the following323 :  

“…10. The right of the people to be secure in their persons, houses,  

papers and effects against unreasonable searches and seizures, shall  

not be violated and no warrants shall issue but upon probable cause,  

supported by oath or affirmation, and particularly describing the place  

to be searched, and the persons or things to be seized…”  

 

146 The draft report of the Sub-committee submitted on 3 April 1947 contained a  

division between the fundamental rights into justiciable and non-justiciable rights.  

Clause 9(d) and Clause 10 provided as follows324 :  

“9(d) The right of every citizen to the secrecy of his  

correspondence. Provision may be made by law to regulate  

the interception or detention of articles and messages in  

course of transmission by post, telegraph or otherwise on  

the occurrence of any public emergency or in the interests  

of public safety or tranquillity…  

                                                           322 B. Shiva Rao, The Framing of India’s Constitution, Indian Institute of Public Administration (1967), Vol. 2, at  page 75  323 Ibid, at page 87  324 Ibid, at page 139

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10. The right of the people to be secure in their persons,  

houses, papers and effects against unreasonable searches  

and seizures, shall not be violated and no warrants shall  

issue but upon probable cause, supported by oath or  

affirmation, and particularly describing the place to be  

searched, and the persons or things to be seized”  

 

147 Dr B N Rau in his notes on the draft report had reservations about clause 10  

which were expressed thus325:  

“Clause 10. If this means that there is to be no search without a  

court’s warrant, it may seriously affect the powers of investigation  

of the police. Under the existing law, eg., Criminal Procedure Code,  

section 165 (relevant extracts given below), the police have 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 the ordinary law of the land contained in the various enactments.  

There is no such right in the American Constitution. Such a  

provision finds a place only in the post-First World War  

constitutions. The effect of the clauses upon the sections of the  

Indian Evidence Act bearing upon privilege will have to be  

considered. Restrictions -vide chapter 9, s 120-127. The result of  

                                                           325 Ibid, at page 152  326 Ibid, at pages 158-159

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this clause will be that every private correspondence will assume  

the rank of a State paper, or, in the language of s. 123 and 124, a  

record relating to the affairs of State.   

A clause like this might checkmate the prosecution in establishing  

any case of conspiracy or abetment, the plaintiff being helpless to  

prove the same by placing before the court the correspondence that  

passed between the parties which in all these cases would furnish  

the most material evidence. The opening words of the clause  

“public order and morality” would not be of any avail in such cases.  

On a very careful consideration of the whole subject I feel that  

inclusion of such a clause in the chapter on fundamental rights will  

lead to endless complications and difficulties in the administration  

of justice. It will be for the committee to consider whether a  

reconsideration of the clause is called for in the above  

circumstances.   

Clause 10. Unreasonable searches, In regard to this subject I  

pointed out the difference between the conditions obtaining in  

America at the time when the American Constitution was drafted  

and the conditions in India obtaining at present after the provisions  

of the Criminal Procedure Code in this behalf have been in force for  

nearly a century. The effect of the clause, as it is, will be to abrogate  

some of the provisions of the Criminal Procedure Code and to leave  

it to the Supreme Court in particular cases to decide whether the  

search is reasonable or unreasonable. While I am averse to  

reagitating the matter I think it may not be too late for the committee  

to consider this particular clause.”  

 

During the course of the comments and suggestions on the draft Constitution, Jaya  

Prakash Narayan suggested the inclusion of the secrecy of postal, telegraphic and  

telephonic communications. Such an inclusion was, however, objected to on the  

following grounds327 :  

“…It is also hardly necessary to include secrecy of postal,  

telegraphic and telephonic communications as a fundamental right  

in the Constitution itself as that might lead to practical difficulties in  

                                                           327 B. Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institute of Public Administration (1968), at  pages 219-220

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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 conspiracy or abetment.   

Similarly, his objection to clause 10 was that it would abrogate some of the provisions  

of the Code of Criminal Procedure.  B N Rau likewise stated that this would seriously  

affect the powers of investigation of the police.  The clause protecting the secrecy of  

correspondence was thus dropped on the ground that it would constitute a serious  

impediment in prosecutions while the protection against unreasonable searches and  

seizures was deleted on the ground that there were provisions in the Code of Criminal  

Procedure, 1898 covering the area.  The debates of the Constituent Assembly indicate

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that the proposed inclusion (which was eventually dropped) was in two specific areas  

namely correspondence and searches and seizures. From this, it cannot be concluded  

that the Constituent Assembly had expressly resolved to reject the notion of the right  

to privacy as an integral element of the liberty and freedoms guaranteed by the  

fundamental rights.   

 

 

149 The Constitution has evolved over time, as judicial interpretation, led to the  

recognition of specific interests and entitlements. These have been subsumed within  

the freedoms and liberties guaranteed by the Constitution.  Article 21 has been  

interpreted by this Court to mean that life does not mean merely a physical existence.   

It includes all those faculties by which life is enjoyed. The ambit of ‘the procedure  

established by law’ has been interpreted to mean that the procedure must be fair, just  

and reasonable.  The coalescence of Articles 14, 19 and 21 has brought into being a  

jurisprudence which recognises the inter-relationship between rights.  That is how the  

requirements of fairness and non-discrimination animate both the substantive and  

procedural aspects of Article 21. These constitutional developments have taken place  

as the words of the Constitution have been interpreted to deal with new exigencies  

requiring an expansive reading of liberties and freedoms to preserve human rights  

under the rule of law. India’s brush with a regime of the suspension of life and personal  

liberty in the not too distant past is a grim reminder of how tenuous liberty can be, if  

the judiciary is not vigilant. The interpretation of the Constitution cannot be frozen by  

its original understanding. The Constitution has evolved and must continuously evolve

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to meet the aspirations and challenges of the present and the future. Nor can judges  

foresee every challenge and contingency which may arise in the future. This is  

particularly of relevance in an age where technology reshapes our fundamental  

understanding of information, knowledge and human relationships that was unknown  

even in the recent past.  Hence as Judges interpreting the Constitution today, the  

Court must 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 restrictions  

contemplated in clauses 2 to 6, have to meet the parameters of a valid ‘procedure  

established by law’ under Article 21 where it impacts on life or personal liberty.  The  

law would be assessed not with reference to its object but on the basis of its effect  

and impact on the fundamental rights.  Coupled with the breakdown of the theory that  

the fundamental rights are water-tight compartments, the post Maneka jurisprudence  

infused the test of fairness and reasonableness in determining whether the ‘procedure

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established by law’ passes muster under Article 21.  At a substantive level, the  

constitutional values underlying each article in the Chapter on fundamental rights  

animate the meaning of the others. This development of the law has followed a natural  

evolution. The basis of this development after all is that every aspect of the diverse  

guarantees of fundamental rights deals with human beings. Every element together  

with others contributes in the composition of the human personality. In the very nature  

of things, no element can be read in a manner disjunctive from the composite whole.  

The close relationship between each of the fundamental rights has led to the  

recognition of constitutional entitlements and interests.  Some of them may straddle  

more than one, and on occasion several, fundamental rights.  Yet others may reflect  

the core value upon which the fundamental rights are founded.  Even at the birth of  

the Constitution, the founding fathers recognised in the Constituent Assembly that, for  

instance, the freedom of speech and expression would comprehend the freedom of  

the press. Hence the guarantee of free speech and expression has been interpreted  

to extend to the freedom of the press. Recognition of the freedom of the press does  

not create by judicial fiat, a new fundamental right but is an acknowledgment of that,  

which lies embedded and without which the guarantee of free speech and expression  

would not be complete.  Similarly, Article 21 has been interpreted to include a  

spectrum of entitlements such as a right to a clean environment, the right to public  

health, the right to know, the right to means of communication and the right to  

education, besides a panoply of rights in the context of criminal law and procedure in  

matters such as handcuffing and speedy trial. The rights which have been held to flow  

out of Article 21 include the following:   

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(i) The right to go abroad – Satwant Singh Sawhney v D Ramarathnam APO  

New Delhi 328.  

(ii) The right against solitary confinement – Sunil Batra v Delhi Administration329.  

(iii) The right of prisoners against bar fetters – Charles Sobraj v Supdt. Central    

Jail330.  

(iv) The right to legal aid – M H Hoskot v State of Maharashtra331.   

(v)    The 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.  

                                                           328 (1967) 3 SCR 525  329 (1978) 4 SCC 494   330 (1978) 4 SCC 104  331 (1978) 3 SCC 544  332 (1980) 1 SCC 81  333 (1980) 3 SCC 526  334 (1983) 2 SCC 96  335 (1989) Suppl.(1) SCC 264  336 (1989) 4 SCC 286  337 (1990) 1 SCC 520  338 (1995) 2 SCC 577  339 (1983) 4 SCC 141

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(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 Corporation342.  

   

Neither is this an exercise in constitutional amendment brought about by judicial  

decision nor does it result in the creation of a new set of fundamental rights. The  

exercise has been one of interpreting existing rights guaranteed by the Constitution  

and while understanding the core of those rights, to define the ambit of what the right  

comprehends.    

 

151 The draftsmen of the Constitution had a sense of history both global and  

domestic– as they attempted to translate their vision of freedom into guarantees  

against authoritarian behaviour. The Constitution adopted a democratic form of  

government based on the rule of law. The framers were conscious of the widespread  

abuse of human rights by authoritarian regimes in the two World Wars separated over  

a period of two decades. The framers were equally conscious of the injustice suffered  

under a colonial regime and more recently of the horrors of partition.  The backdrop  

of human suffering furnished a reason to preserve a regime of governance based on  

the rule of law which would be subject to democratic accountability against a violation  

of fundamental freedoms. The content of the fundamental rights evolved over the  

                                                           340(1978) 4 SCC 494  341 (2013) 10 SCC 591  342 (1985) 3 SCC 545

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course of our constitutional history and any discussion of the issues of privacy,  

together with its relationship with liberty and dignity, would be incomplete without a  

brief reference to the course of history as it unravels in precedent. By guaranteeing  

the freedoms and liberties embodied in the fundamental rights, the Constitution has  

preserved natural rights and ring-fenced them from attempts to attenuate their  

existence.  

Technology, as we experience it today is far different from what it was in the lives of  

the generation which drafted the Constitution. Information technology together with  

the internet and the social media and all their attendant applications have rapidly  

altered the course of life in the last decade.  Today’s technology renders models of  

application of a few years ago obsolescent. Hence, it would be an injustice both to the  

draftsmen of the Constitution as well as to the document which they sanctified to  

constrict its interpretation to an originalist interpretation. Today’s problems have to be  

adjudged by a vibrant application of constitutional doctrine and cannot be frozen by a  

vision suited to a radically different society. We describe the Constitution as a living  

instrument simply for the reason that while it is a document which enunciates eternal  

values for Indian society, it possesses the resilience necessary to ensure its continued  

relevance.  Its continued relevance lies precisely in its ability to allow succeeding  

generations to apply the principles on which it has 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.

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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 in the  

case of the Indian Constitution, as part of the fundamental rights. Elevating a right to  

the position of a constitutionally protected right places it beyond the pale of legislative  

majorities.  When a constitutional right such as the right to equality or the right to life  

assumes the character of being a part of the basic structure of the Constitution, it  

assumes inviolable status: inviolability even in the face of the power of amendment.   

Ordinary legislation is not beyond the pale of legislative modification. A statutory right  

can be modified, curtailed or annulled by a simple enactment of the legislature.  In  

other words, statutory rights are subject to the compulsion of legislative majorities.  

The purpose of infusing a right with a constitutional element is precisely to provide it  

a sense of immunity from popular opinion and, as its reflection, from legislative  

annulment. Constitutionally protected rights embody the liberal belief that personal  

liberties of the individual are so sacrosanct that it is necessary to ensconce them in a

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protective shell that places them beyond the pale of ordinary legislation. To negate a  

constitutional right on the ground that there is an available statutory protection is to  

invert constitutional theory.  As a matter of fact, legislative protection is in many cases,  

an acknowledgment and recognition of a constitutional right which needs to be  

effectuated and enforced through protective laws.   

For instance, the provisions of Section 8(1)(j) of the Right to Information Act, 2005  

which contain an exemption from the disclosure of information refer to such  

information which would cause an unwarranted invasion of the privacy of the  

individual.     

 

But the important point to note is that when a right is conferred with an entrenched  

constitutional status in Part III, it provides a touchstone on which the validity of  

executive decision making can be assessed and the validity of law can be determined  

by judicial review.  Entrenched constitutional rights provide the basis of evaluating the  

validity of law.  Hence, it would be plainly unacceptable to urge that the existence of  

law negates the rationale for a constitutional right or renders the constitutional right  

unnecessary.  

 

O Not an elitist construct   

154 The Attorney General argued before us that the right to privacy must be  

forsaken in the interest of welfare entitlements provided by the State. In our view, the  

submission that the right to privacy is an elitist construct which stands apart from the

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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 their  

rights. The theory that civil and political rights are subservient to socio-economic rights  

has been urged in the past and has been categorically rejected in the course of  

constitutional adjudication by this Court.   

 

155 Civil and political rights and socio-economic rights do not exist in a state of  

antagonism. The conditions necessary for realising or fulfilling socio-economic rights  

do not postulate the subversion of political freedom. The reason for this is simple.   

Socio-economic entitlements must yield true benefits to those for whom they are  

intended. This can be achieved by eliminating rent-seeking behaviour and by

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preventing the capture of social welfare benefits by persons who are not entitled to  

them. Capture of social welfare benefits can be obviated only when political systems  

are transparent and when there is a free flow of information. Opacity enures to the  

benefit of those who monopolize scarce economic resources. On the other hand,  

conditions where civil and political freedoms flourish ensure that governmental  

policies are subjected to critique and assessment. It is this scrutiny which sub-serves  

the purpose of ensuring that socio-economic benefits actually permeate to the under-

privileged for whom they are meant. Conditions of freedom and a vibrant assertion of  

civil and political rights promote a constant review of the justness of socio-economic  

programmes and of their effectiveness in addressing deprivation and want. Scrutiny  

of public affairs is founded upon the existence of freedom.  Hence civil and political  

rights and socio-economic rights are complementary and not mutually exclusive.   

 

156 Some of these themes have been addressed in the writings of the Nobel  

laureate, Amartya Sen. Sen compares the response of many non-democratic regimes  

in critical situations such as famine with the responses of democratic societies in  

similar situations.343 His analysis reveals that the political immunity enjoyed by  

government leaders in authoritarian states prevents effective measures being taken  

to address such conditions:  

“For example, Botswana had a fall in food production of 17 percent  

and Zimbabwe one of 38 percent between 1979-1981 and 1983-

1984, in the same period in which the food production decline  

                                                           343 Amartya Sen, Development as Freedom, Oxford University Press (2000), at page 178-179

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amounted to a relatively modest 11 or 12 percent in Sudan and  

Ethiopia.  But while Sudan and Ethiopia, with comparatively smaller  

declines in food output, had massive famines, Botswana and  

Zimbabwe had none, and this was largely due to timely and  

extensive famine prevention policies by these latter countries.  

Had the governments in Botswana and Zimbabwe failed to  

undertake timely action, they would have been under severe  

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 democratic rights are hence regarded as ‘constituent components’ of  

development.346 In contrast during the drought which took place in Maharashtra in  

1973, food production failed drastically and the per capita food output was half of that  

in sub-Saharan Africa. Yet there was no famine in Maharashtra where five million  

people were employed in rapidly organized public projects while there were  

                                                           344 Ibid, at page 179  345 Amartya Sen, The Idea of Justice, Penguin Books (2009),  at page 339  346 Ibid, at page 347

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substantial famines in sub-Saharan Africa. This establishes what he terms as “the  

protective role of democracy”.  Sen has analysed the issue succinctly:  

 

“The causal connection between democracy and the non-

occurrence of famines is not hard to seek.  Famines kill millions of  

people in different countries in the world, but they don’t kill the  

rulers.  The kings and the presidents, the bureaucrats and the  

bosses, the military leaders and the commanders never are famine  

victims.  And if there are no elections, no opposition parties, no  

scope for uncensored public criticism, then those in authority don’t  

have to suffer the political consequences of their failure to prevent  

famines.  Democracy, on the other hand, would spread the penalty  

of famines to the ruling groups and political leaders as well.  This  

gives them the political incentive to try to prevent any threatening  

famine, and since famines are in fact easy to prevent (the economic  

argument clicks into the political one at this stage), the approaching  

famines are firmly prevented.”347  

 

There is, in other words, an intrinsic relationship between development and freedom:   

“…development cannot really be seen merely as the process of  

increasing inanimate objects of convenience, such as raising the  

GNP per head, or promoting industrialization or technological  

advance or social modernization.  These accomplishments are, of  

course, valuable – often crucially important – but their value must  

depend on what they do to the lives and freedoms of the people  

involved. For adult human beings, with responsibility for choice, the  

focus must ultimately be on whether they have the freedom to do  

what they have reason to value. In this sense, development consists  

of expansion of people’s freedom.”348  

 

                                                           347 Amartya Sen, Development as Freedom, Oxford University Press (2000), at page 180  348 Amartya Sen, “The Country of First Boys”, Oxford University Press, Pg.80-81

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In an article recently published in July 2017 in Public Law, titled “The Untapped  

Potential of the Mandela Constitution”349, Justice Edwin Cameron, a distinguished  

judge of the Constitutional Court of South Africa, has provided a telling example.   

President Mbeki of South Africa doubted the medical science underlying AIDS and  

effectively obstructed a feasible ARV programme.  This posture of AIDS denialism  

plunged South Africa into a crisis of public health as a result of which the drug  

Nevirapine which was offered 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  

                                                           349 Edwin Cameron and Max Taylor, “The Untapped Potential of the Mandela Constitution”, Public Law (2017),  at page 394   350 Minister of Health v Treatment Action Campaign, (2002) 5 SA 721 (CC)  351 Edwin Cameron and Max Taylor, “The Untapped Potential of the Mandela Constitution”, Public Law (2017),  at page 395

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the Constitution to liberty and freedom. Liberty and freedom are values which are  

intrinsic to our constitutional order.  But they also have an instrumental value in  

creating conditions in which socio-economic rights can be achieved.  India has no iron  

curtain. Our society prospers in the shadow of its drapes which let in sunshine and  

reflect a multitude of hues based on language, religion, culture and ideologies.   

 

157 We need also emphasise the lack of substance in the submission that privacy  

is a privilege for the few.  Every individual in society irrespective of social class or  

economic status is entitled to the intimacy and autonomy which privacy protects. It is  

privacy as an intrinsic and core feature of life and personal liberty which enables an  

individual to stand up against a programme of forced sterilization.  Then again, it is  

privacy which is a powerful guarantee if the State were to introduce compulsory drug  

trials of non-consenting men or women.  The sanctity of marriage, the liberty of  

procreation, the choice of a family life and the dignity of being are matters which  

concern every individual irrespective of social strata or economic well being.  The  

pursuit of happiness is founded upon autonomy and dignity.  Both are essential  

attributes of privacy which makes no distinction between the birth marks of individuals.   

 P Not just a common law right  

158 There is also no merit in the defence of the Union and the States that privacy  

is merely a common law right. The fact that a right may have been afforded protection  

at common law does not constitute a bar to the constitutional recognition of the right.  

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The Constitution recognises the right simply because it is an incident of a fundamental  

freedom or liberty which the draftsperson considered to be so significant as to require  

constitutional protection.  Once privacy is held to be an incident of the protection of  

life, personal liberty and of the liberties guaranteed by the provisions of Part III of the  

Constitution, the submission that privacy is only a right at common law misses the  

wood for the trees. The central theme is that privacy is an intrinsic part of life, personal  

liberty and of the freedoms guaranteed by Part III which entitles it to protection as a  

core of constitutional doctrine. The protection of privacy by the Constitution liberates  

it, as it were, from the uncertainties of statutory law which, as we have noted, is subject  

to the range of legislative annulments open to a majoritarian government.  Any  

abridgment must meet the requirements prescribed by Article 21, Article 19 or the  

relevant freedom. The Constitutional right is placed at a pedestal which embodies  

both a negative and a positive freedom. The negative freedom protects the individual  

from unwanted 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….

                                                           352 Anna Jonsson Cornell, “Right to Privacy”, Max Planck Encyclopaedia of Comparative Constitutional Law  (2015)

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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 of the State of Gujarat submitted that the requirement of a valid  

law with reference to Article 21 is not conditioned by the notion of substantive due  

process. Substantive due process, it was urged is a concept which has been evolved  

in relation to the US Constitution but is inapposite in relation to the Indian Constitution.  

The history surrounding the drafting of Article 21 indicates a conscious decision by  

the Constituent Assembly not to introduce the expression “due process of law” which  

is incorporated in the Fifth and Fourteenth Amendments of the US Constitution.  The  

draft Constitution which was prepared by the Drafting Committee chaired by Dr B R  

Ambedkar contained a ‘due process’ clause to the effect that ‘nor any State shall  

deprive any person of life, liberty and property without due process of law’. The clause  

as originally drafted was subjected to three important changes in the Constituent  

Assembly. Firstly, the reference to property was deleted from the above clause of the  

draft Constitution. The members of the Constituent Assembly perceived that retaining  

the right to property as part of the due process clause would pose a serious  

impediment to legislative reform particularly with the redistribution of property. The  

second important change arose from a meeting which Shri B N Rau had with Justice

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Felix Frankfurter in the US. In the US particularly in the years around the Great  

Depression, American Courts had utilised the due process clause to invalidate social  

welfare legislation. In the Lochner353 era, the US Supreme Court invalidated  

legislation such as statutes prohibiting employers from making their employees work  

for more than ten hours a day or sixty hours a week on the supposition that this  

infringed the liberty of contract. Between 1899 and 1937 (excluding the civil rights  

cases), 159 US Supreme Court decisions held state statutes unconstitutional under  

the due process and equal protection clauses. Moreover, 25 other statutes were  

struck down under the due process clause together with other provisions of the  

American Constitution.354 Under the due process clause, the US Supreme Court  

struck down labour legislation prohibiting employers from discriminating on the  

grounds of union activity; regulation of wages; regulation of prices for commodities  

and services; and legislation denying entry into business.355 These decisions were  

eventually distinguished or overruled in 1937 and thereafter.356   

 

  

160 The Constituent Assembly, in this background, made a second important  

change in the original draft by qualifying the expression ‘liberty’ with the word  

‘personal’. Shri B N Rau suggested that if this qualification were not to be introduced,  

                                                           353 Lochner v New York, 198 US 45 (1905)  354 William B Lockhart, et al, Constitutional Law: Cases- Comments-Questions, West Publishing Co. (1986), 6th  edition, at page 394   

355 Adair v United States, 208 US 161, 28 S. Ct. 277, 52 L.Ed. 436 (1908) (fifth amendment);      Adkins v Children’s Hosp. 261 US 525, 43 S.Ct. 22, 70 L.Ed (1923) (fifth amendment);      Tyson & Bro. v. Banton, 273 US 418, 47 S.Ct. 426, 71 L.Ed. 718 (1927); and       New State Ice Co. v. Liebmann, 285 US 262, 52 S Ct. 371, 76 L.Ed. 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)

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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, who told him that he  

considered the power of judicial review implied in the due process  

clause both undemocratic – because a few judges could veto  

legislation enacted by the representatives of a nation – and  

burdensome to the Judiciary. Frankfurter had been strongly  

influenced by the Harvard Law School’s great constitutional lawyer,  

James Bradley Thayer, who also feared that too great a reliance on  

due process as a protection against legislative oversight or  

misbehaviour might weaken the democratic process.  Thayer’s  

views had impressed Rau even before he met Frankfurter. In his  

Constitutional Precedents, Rau had pointed out that Thayer and  

others had ‘drawn attention to the dangers of attempting to find in  

the Supreme Court – instead of in the lessons of experience – a  

safeguard against the mistakes of the representatives of people’.”   

 

                                                           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

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Though several members of the Constituent Assembly spoke against the deletion, Sir  

Alladi Krishnaswamy Ayyar supported the move on the ground that the expression  

‘due process’ would operate as a great handicap for all social legislation and introduce  

“judicial vagaries into the moulding of law”359. In his words360 :  

“…In the development of the doctrine of ‘due process’ the United  States Supreme Court has not adopted a consistent  view at all and  the decisions are conflicting…  

The Minimum Wage Law or a Restraint on Employment have in  some cases been regarded as an invasion of personal liberty and  freedom, by the United States Supreme Court in its earlier  decisions, the theory being that it is an essential part of personal  liberty that every person in the world be she a woman, be he a child  over fourteen years of age or be he a labourer, has the right to enter  into any contract he or she liked and it is not the province of other  people to interfere with that liberty. On that ground, in the earlier  decisions of Supreme Court it has been held that the Minimum  Wages Laws are invalid as invading personal liberty…  

The clause may serve as a great handicap for all social legislation,  and for the protection of women…  

I trust that the House will take into account the various aspects of  this question, the future progress of India, the well-being and the  security of the States, the necessity of maintaining a minimum of  liberty, the need for co-ordinating social control and personal liberty,  before coming to a decision.  One thing also will have to be taken  into account, viz., that the security of the State is far from being so  secure as we are imagining at present…”   

 On the other hand, several members of the Constituent Assembly preferred the  

retention of the phrase ‘due process’, among them being Dr Sitaramayya, T T  

Krishnamachari, K Santhanam, M A Ayyangar, Dr B V Keskar, S L Saksena, Thakur  

                                                           359 Constituent Assembly Debates, Vol. 7 (6th December 1948), available at   http://parliamentofindia.nic.in/ls/debates/vol7p20b.htm   360 Ibid

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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. Other Assembly members  

agreed: whilst not wishing to impede the passage of social reform  

legislation they sought to protect the individual’s personal liberty  

against prejudicial action by an arbitrary Executive.”  

 Dr B R Ambedkar in an insightful observation, presented the merits and demerits of  

the rival viewpoints dispassionately. In his words363 :  

“There are two views on this point. One view is this; that the  

legislature may be trusted not to make any law which would  

abrogate the fundamental rights of man, so to say, the fundamental  

rights which apply to every individual, and consequently, there is no  

danger arising from the introduction of the phrase ‘due process’.   

Another view is this : that it is not possible to trust the legislature;  

the legislature is likely to err, is likely to be led away by passion, by  

party prejudice, by party considerations, and the legislature may  

make a law which may abrogate what may be regarded as the  

fundamental principles which safeguard the individual rights of a  

citizen.  We are therefore placed in two difficult positions. One is to  

give the judiciary the authority to sit in judgment over the will of the  

legislature and to question the law made by the legislature on the  

ground that it is not good law, in consonance with fundamental  

principles.  Is that a desirable principle? The second position is that  

                                                           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

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the legislature ought to be trusted not to make bad laws. It is very  

difficult to come to any definite conclusion.  There are dangers on  

both sides. For myself I cannot altogether omit the possibility of a  

Legislature packed by party men making laws which may abrogate  

or violate what we regard as certain fundamental principles  

affecting the life and liberty of an individual. At the same time, I do  

not see how five or six gentlemen sitting in the Federal or Supreme  

Court examining laws made by the Legislature and by dint of their  

own individual conscience or their bias or their prejudices be trusted  

to determine which law is good and which law is bad.  It is rather a  

case where a man has to sail between Charybdis and Scylla and I  

therefor would not say anything. I would leave it to the House to  

decide in any way it likes.”    

 The amendments proposed by some members to reintroduce ‘due process’ were  

rejected on 13 December 1948 and the phrase “due process of law” was deleted from  

the original draft Constitution. However, Article 22 was introduced into the Constitution  

to protect against arbitrary arrest and detention by incorporating several safeguards.  

 

162 In Gopalan, the Preventive Detention Act, 1950 was challenged on the ground  

that it denied significant procedural safeguards 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’

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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 process of law” which could not, therefore, be read into Article 21.   

Hence, the view of the majority was that once the procedure was established by a  

validly enacted law, Article 21 would not be violated.    

 

163 In his celebrated dissent, Justice Fazl Ali pointed out that the phrase ‘procedure  

established by law’ was borrowed from the Japanese Constitution (which was drafted  

under American influence at the end of the Second World War) and hence the  

expression means ‘procedural due process’. In Justice Fazl Ali’s view the deprivation  

of life and personal liberty under Article 21, had to be preceded by (i) a notice; (ii) an  

opportunity of being heard; (iii) adjudication by an impartial tribunal;  and (iv) an orderly  

course of procedure. Formulating these four principles, Justice Fazl Ali held thus:  

“…Article 21 purports to protect life and personal liberty, and it  

would be a precarious protection and a protection not worth having,  

if the elementary principle of law under discussion which, according  

to Halsbury is on a par with fundamental rights, is to be ignored and  

excluded. In the course of his arguments, the learned counsel for  

the petitioner repeatedly asked whether the Constitution would  

permit a law being enacted, abolishing the mode of trial permitted  

by the existing law and establishing the procedure of trial by battle  

or trial by ordeal which was in vogue in olden times in England. The  

question envisages something which is not likely to happen, but it  

does raise a legal problem which can perhaps be met only in this  

way that if the expression “procedure established by law” simply  

means any procedure established or enacted by statute it will be  

difficult to give a negative answer to the question, but if the word  

“law” includes what I have endeavoured to show it does, such an  

answer may be justified. It seems to me that there is nothing

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revolutionary in the doctrine that the words “procedure established  

by law” must include the four principles set out in Professor Willis’  

book, which, as I have already stated, are different aspects of the  

same principle and which have no vagueness or uncertainty about  

them. These principles, as the learned author points out and as the  

authorities show, are not absolutely rigid principles but are  

adaptable to the circumstances of each case within certain limits. I  

have only to add that it has not been seriously controverted that  

“law” in this article means valid law and “procedure” means certain  

definite rules of proceeding and not something which is a mere  

pretence for procedure.”364  

 

In Maneka, where the passport of the petitioner was impounded without furnishing  

reasons, a 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;  

otherwise, it would be no procedure at all and the requirement of  

Article 21 would not be satisfied.”366  

                                                           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)

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“Krishna Iyer, J.:   

…So I am convinced that to frustrate Article 21 by relying on any  

formal adjectival statute, however, flimsy or fantastic its provisions  

be, is to rob what the constitution treasures.  

…To sum up, “procedure” in Article 21 means fair, not formal  

procedure. “Law” is reasonable law, not any enacted piece.”367  

 

Soon after the decision in Maneka, the Supreme Court considered a challenge to the  

provisions for solitary confinement under Section 30(2) of the Prisons Act, 1894 which  

stipulated that a prisoner “under sentence of death” is to be kept in a cell apart from  

other prisoners. In Sunil Batra v Delhi Administration368, the Court pointed out that  

Sections 73 and 74 of the Penal Code which contain a substantive punishment by  

way of solitary confinement was not under challenge.  Section 30(2) of the Prisons  

Act was read down by holding that the expression “under sentence of death” would  

apply only after the entire process of remedies had been exhausted by the convict  

and the clemency petition had been denied.  Justice D A Desai, speaking for the  

majority, held that:   

“…the word “law” in the expression “procedure established by law”  

in Article 21 has been interpreted to mean in Maneka Gandhi’s case  

that the law must be right, just and fair and not arbitrary, fanciful or  

oppressive.”369  

 

                                                           367 Ibid, at page 338 (paras 82 and 85)  368 (1978) 4 SCC 494  369 Ibid, at pages 574-575 (para 228)

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Justice Krishna Iyer took note of the fact that our Constitution does not contain a due  

process clause and opined that after the decision in Maneka, the absence of such a  

clause would make no difference:  

“…true, our Constitution has no ‘due process’ clause or the VIIIth  

Amendment; but, in this branch of law, after Cooper and Maneka  

Gandhi the consequence is the same.”370  

 

164 A substantive challenge to the constitutional validity of the death penalty on a  

conviction on a charge of murder was raised in Bachan Singh371. The judgment  

noted:  

“136. Article 21 reads as under:  

“No person shall be deprived of his life or personal liberty  

except according to procedure established by law.”  

If this Article is expanded in accordance with the interpretative  

principle indicated in Maneka Gandhi, it will read as follows:  

“No person shall be deprived of his life or personal liberty  

except according to fair, just and reasonable procedure  

established by valid law."  

In the converse positive form, the expanded Article will read as  

below:  

“A person may be deprived of his life or personal liberty in  

accordance with fair, just and reasonable procedure  

established by valid law.””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.  

                                                           370 Ibid, at page 518 (para 52)  371 (1980) 2 SCC 684  372 Ibid, at page 730 (para 136)

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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 sentence of life imprisonment. Section  

303 excluded the procedural safeguards under Section 235(2) and 354(3) of the  

Criminal Procedure Code under which the accused is required to be heard on the  

question of sentence and “special reasons” need to be adduced for imposing the  

death sentence. In the course of the judgment, Chandrachud C J indicated examples  

of situations where a substantive enactment could be challenged on the touchstone  

of Articles 14 and 21.  The observations of the Court, which are extracted below would  

indicate that while the Court did not use the expression “substantive due process” it  

recognised that a law would be amenable to challenge under Article 21 not only on  

the ground that the procedure which it prescribes is not fair, just and reasonable but  

                                                           373 (1982) 3 SCC 24  374 Ibid, at page 55 (para 17)  375 (1983) 2 SCC 277

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on the touchstone of having imposed a penalty which is savage or, as the Court held,  

an anathema of civilised jurisprudence :  

“These decisions have expanded the scope of Article 21 in a  

significant way and it is now too late in the day to contend that it is  

for the legislature to prescribe the procedure and for the courts to  

follow it; that it is for the legislature to provide the punishment and  

for the courts to impose it.  Two instances, undoubtedly extreme,  

may be taken by way of illustration for the purpose of showing how  

the courts are not bound, and are indeed not free, to apply a  

fanciful procedure by a blind adherence to the letter of the law  

or to impose a savage sentence. A law providing that an  

accused shall not be allowed to lead evidence in self-defence  

will be hit by Articles 14 and 21. Similarly, if a law were to  

provide that the offence of theft will be punishable with the  

penalty of the cutting of hands, the law will be bad as violating  

Article 21. A savage sentence is anathema to the civilized  

jurisprudence of Article 21.  These are, of course, extreme  

illustrations and we need have no fear that our legislatures will ever  

pass such laws. But these examples serve to illustrate that the  

last word on the question of justice and fairness does not rest  

with the legislature. Just as reasonableness of restrictions under  

clauses (2) to (6) of Article 19 is for the courts to determine, so is it  

for the courts to decide whether the procedure prescribed by a law  

for depriving a person of his life or liberty is fair, just and reasonable.   

The question which then arises before us is whether the sentence  

of death, prescribed by Section 303 of the Penal Code for the  

offence of murder committed by a person who is under a sentence  

of life imprisonment, is arbitrary and oppressive so as to be violative  

of the 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  

                                                           376 Ibid, at pages 284-285 (para 6)  377 (1982) 1 SCC 271

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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 of  

Article 21 is one thing: that power can be spelt out from the  

language of that article. Procedural safeguards are the  

handmaids of equal justice and since, the power of the  

government is colossal as compared with the power of an  

individual, the freedom of the individual can be safe only if he  

has a guarantee that he will be treated fairly.  The power to  

decide upon the justness of the law itself is quite another  

thing: that power springs from a ‘due process’ provision such  

as is to be found in the 5th and 14th Amendments of the  

American Constitution by which no person can be deprived of  

life, liberty or property “without due process of law”.”378  

(emphasis supplied)   

 

In Saroj Rani v Sudarshan Kumar379, this Court upheld the constitutional validity of  

the provision for restitution of conjugal rights contained in Section 9 of the Hindu  

Marriage Act, 1955. The Court found that the provision served a social purpose of  

preventing the breakdown of marriages and contained safeguards against its being  

used arbitrarily.  

 

                                                           378 Ibid, at page 301 (para 35)  379 (1984) 4 SCC 90

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In Mohd. Arif v Supreme Court380, a Constitution Bench of this Court held that the  

expression “reasonable procedure” in the context of Article 21 would encompass an  

oral hearing of review petitions arising out of death penalties. Tracing the history of  

the evolution of Article 21, Justice Rohinton Fali Nariman, speaking for the majority in  

the Constitution Bench, observed as follows:  

“The wheel has turned full circle. Substantive due process is now to  

be applied to the fundamental right to life and liberty.”381  

 

More recently, Justice Chelameswar, speaking for a Bench of two judges in Rajbala  

v State of Haryana382, has struck a note of caution, by drawing attention to the  

position that the expression ‘due process of law’ was consciously deleted in the  

drafting process after the framing of the Constitution. Hence, in the view of the learned  

Judge, it would be inappropriate to incorporate notions of substantive due process  

adopted in the US while examining the constitutionality of Indian legislation. The Court  

observed:  

“From the above extract from McDowell & Co. case it is clear that  

the courts in this country do not undertake the task of  

declaring a piece of legislation unconstitutional on the ground  

that the legislation is “arbitrary” since such an exercise implies  

a value judgment and courts do not examine the wisdom of  

some specific provision of the Constitution.  To undertake  

such an examination would amount to virtually importing the  

doctrine of “substantive due process” employed by the  

American Supreme Court at an earlier point of time while  

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.  

                                                           380 (2014) 9 SCC 737  381 Ibid, at page 756 (para 28)  382 (2016) 2 SCC 445

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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  

framers of our Constitution was the invalidation of social welfare legislation in the US  

on the anvil of the due process clause on the ground that it violated the liberty of  

contract of men, women and children to offer themselves for work in a free market for  

labour. This model evidently did not appeal to those who opposed the incorporation  

of a similar phrase into the Indian Constitution.    

 

Yet the debates in the Constituent Assembly indicate that there was a substantial  

body of opposition to the deletion of the due process clause, which eventually led Dr  

B R Ambedkar to objectively sum up the rival view points for decision by the House.  

Evidently ‘due process’ was substituted with the expression ‘procedure established by  

law’. ‘Liberty’ was qualified by ‘personal’.   

 

                                                           383 Ibid, at page 481 (para 64)

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Having noticed this, the evolution of Article 21, since the decision in Cooper indicates  

two major areas of change. First, the fundamental rights are no longer regarded as  

isolated silos or water tight compartments. In consequence, Article 14 has been held  

to animate the content of Article 21. Second, the expression ‘procedure established  

by law’ in Article 21 does not connote a formalistic requirement of a mere presence of  

procedure in enacted law. That expression has been held to signify the content of the  

procedure and its quality which must be fair, just and reasonable. The mere   fact that  

the law provides for the deprivation of life or personal liberty is not sufficient to  

conclude its validity and the procedure to be constitutionally valid must be fair, just  

and reasonable. The quality of reasonableness does not attach only to the content of  

the procedure which the law prescribes with reference to Article 21 but to the content  

of the law itself. In other words, the requirement of Article 21 is not fulfilled only by the  

enactment of fair and reasonable procedure under the law and a law which does so  

may yet be susceptible to challenge on the ground that its content does not accord  

with the requirements of a valid law. The law is open to substantive challenge on the  

ground that it violates the fundamental right.  

 

In dealing with a substantive challenge to a law on the ground that it violates a  

fundamental right, there are settled principles of constitutional interpretation which  

hold the field. The first is the presumption of constitutionality384 which is based on the  

                                                           384 Charanjit Lal Chowdhury v. The Union of India, AIR 1951 SC 41  ; Ram Krishna Dalmia v. Shri Justice S.R.  Tendolkar, AIR 1958 SC 538  ;  Burrakur Coal Co. Ltd. v. Union of India AIR 1961 SC 954  ; Pathumma v. State  of Kerala (1970) 2 SCR 537  ;  R.K. Garg v. Union of India, (1981) 4 SCC 675  ; State of Bihar v. Bihar Distillery  Limited, AIR 1997 SC 1511  ; State of Andhra Pradesh v. K. Purushottam Reddy (2003) 9 SCC 564,  ; Mardia  Chemicals Ltd. v. Union of India, (2004) 4 SCC 311  ; State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat,

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foundational principle that the legislature which is entrusted with the duty of law  

making best understands the needs of society and would not readily be assumed to  

have transgressed a constitutional limitation. The 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 reasonableness can be laid down as applicable to all  

cases. The nature of the right alleged to have been infringed,  

the underlying purpose of the restrictions imposed, the extent  

and urgency of the evil sought to be remedied thereby, the  

disproportion of the imposition, the prevailing conditions at  

the time, should all enter into the judicial verdict. In evaluating  

                                                           2005 (8) SCC 534  ; Bhanumati v. State of Uttar Pradesh, (2010) 12 SCC 1  ; K.T. Plantation Pvt. Ltd. v. State of  Karnataka, (2011) 9 SCC 1  ; State of Madhya Pradesh v. Rakesh Kohli, (2012) 6 SCC 312  ; Namit Sharma v.  Union of India, (2013) 1 SCC 745  385 R.K. Garg v. Union of India, (1981) 4 SCC 675; Maharashtra State Board of Secondary and Higher Secondary  Education v. Paritosh Bhupesh Kurmarsheth, AIR 1984 SC 1543; State of Andhra Pradesh v. McDowell, (1996)  3 SCC 709   ; Union of India v. Azadi Bachao Andolan, (2004) 10 SCC 1  ; State of U.P. v. Jeet S. Bisht, (2007)  6 SCC 586  ; K.T. Plantation Pvt. Ltd. v. State of Karnataka, (2011) 9 SCC 1  ; Bangalore Development Authority  v. The Air Craft Employees Cooperative Society Ltd., 2012 (1) SCALE 646  386 (1952) SCR 597

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such elusive factors and forming their own conception of what is  

reasonable, in all the circumstances of a given case, it is inevitable  

that the social philosophy and the scale of values of the judges  

participating in the decision should play an important part, and the  

limit of their interference with legislative judgment in such cases can  

only be dictated by their sense of responsibility and self-restraint  

and the sobering reflection that the Constitution is meant not  

only for people of their way of thinking but for all, and that the  

majority of the elected representatives of the people have, in  

authorizing the imposition of the restrictions, considered them to be  

reasonable.”387 (emphasis supplied)  

 

165 The Court, in the exercise of its power of judicial review, is unquestionably  

vested with the constitutional power to adjudicate upon the validity of a law.  When  

the validity of a law is questioned on the ground that it violates a guarantee contained  

in Article 21, the scope of the challenge is not confined only to whether the procedure  

for the deprivation of life or personal liberty is fair, just and reasonable.  Substantive  

challenges to the validity of laws encroaching upon the right to life or personal liberty  

has been considered and dealt with in varying contexts, such as the death penalty  

(Bachan Singh) and mandatory death sentence (Mithu), among other cases.  A  

person cannot be deprived of life or personal liberty except in accordance with the  

procedure established by law. Article 14, as a guarantee against arbitrariness, infuses  

the entirety of Article 21. The inter-relationship between the guarantee against  

arbitrariness and the protection of life and personal liberty operates in a multi-faceted  

plane. First, it ensures that the procedure for deprivation must be fair, just and  

reasonable. Second, Article 14 impacts both the procedure and the expression “law”.  

                                                           387 Ibid, at page 607

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A law within the meaning of Article 21 must be consistent with the norms of fairness  

which originate in Article 14. As a matter of principle, once Article 14 has a connect  

with Article 21, norms of fairness and reasonableness would apply not only to the  

procedure but to the law as well.   

 166 Above all, it must be 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 regard to the constitutional history surrounding the  

deletion of that phrase in our Constitution, it would be inappropriate to equate the  

jurisdiction of a Constitutional Court in India to entertain a substantive challenge to the  

validity of a law with the exercise of substantive due process under the US  

Constitution.  Reference to substantive due process in some   of    the   judgments  is

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essentially a reference to a substantive challenge to the validity of a law on the ground  

that its substantive (as distinct from procedural) provisions violate the Constitution.  

 

R Essential nature of privacy  

168 What, then, does privacy postulate? Privacy postulates the reservation of a  

private space for the individual, described as the right to be let alone. The concept is  

founded on the autonomy of the individual. The ability of an individual to make choices  

lies at the core of the human personality. The notion of privacy enables the individual  

to assert and control the human element which is inseparable from the personality of  

the individual. The inviolable nature of the human personality is manifested in the  

ability to make decisions on matters intimate to human life. The autonomy of the  

individual is associated over matters which can be kept private. These are concerns  

over which there is a legitimate expectation of privacy. The body and the mind are  

inseparable elements of the human personality. The integrity of the body and the  

sanctity of the mind can exist on the foundation that each individual possesses an  

inalienable ability and right to preserve a private space in which the human personality  

can develop. Without the ability to make choices, the inviolability of the personality  

would be in doubt. Recognizing a zone of privacy is but an acknowledgment that each  

individual must be entitled to chart and pursue the course of development of  

personality. Hence privacy is a postulate of human dignity itself. Thoughts and  

behavioural patterns which are intimate to an individual are entitled to a zone of  

privacy where one is free of social expectations. In that zone of privacy, an individual

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is not judged by others. Privacy enables each individual to take crucial decisions which  

find expression in the human personality. It enables individuals to preserve their  

beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against  

societal demands of homogeneity. Privacy is an intrinsic recognition of heterogeneity,  

of the right of the individual to be different and to stand against the tide of conformity  

in creating a zone of solitude. 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 liberties may not be exercised in privacy.  Yet others can be fulfilled only  

within a private space. Privacy enables the individual to retain the autonomy of the  

body and mind.  The autonomy of the individual is the ability to make decisions on  

vital matters of concern to life.  Privacy has not been couched as an independent  

fundamental right.  But that does not detract from the constitutional protection afforded

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to it, once the true nature of privacy and its relationship with those fundamental rights  

which are expressly protected is understood. Privacy lies across the spectrum of  

protected freedoms.  The guarantee of equality is a guarantee against arbitrary state  

action.  It prevents the state from discriminating between individuals. The destruction  

by the state of a sanctified personal space whether of the body or of the mind is  

violative of the guarantee against arbitrary state action.  Privacy of the body entitles  

an individual to the integrity of the physical aspects of personhood. The intersection  

between one’s mental integrity and privacy entitles the individual to freedom of  

thought, the freedom to believe in what is right, and the freedom of self-determination.  

When these guarantees intersect with gender, they create a private space which  

protects all those elements which are crucial to gender identity. The family, marriage,  

procreation and sexual orientation are all integral to the dignity of the individual.   

Above all, the privacy of the individual recognises an inviolable right to determine how  

freedom shall be exercised.  An individual may perceive that the best form of  

expression is to remain silent. Silence postulates a realm of privacy. An artist finds  

reflection of the soul in a creative endeavour. A writer expresses the outcome of a  

process of thought. A musician contemplates upon notes which musically lead to  

silence. The silence, which lies within, reflects on the ability to choose how to convey  

thoughts and ideas or interact with others. These are crucial aspects of personhood.   

The freedoms under Article 19 can be fulfilled where the individual is entitled to decide  

upon his or her preferences.  Read in conjunction with Article 21, liberty enables the  

individual to have a choice of preferences on various facets of life including what and  

how one will eat, the way one will dress, the faith one will espouse and a myriad other

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matters on which autonomy and self-determination require a choice to be made within  

the privacy of the mind.  The constitutional right to the freedom of religion under Article  

25 has implicit within it the 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  

personal. Yet, it is necessary to acknowledge that individuals live in communities and  

work in communities. Their personalities affect and, in turn are shaped by their social  

environment. The individual is not a hermit. The lives of individuals are as much a  

social phenomenon. In their interactions with others, individuals are constantly  

engaged in behavioural patterns and in relationships impacting on the rest of society.  

Equally, the life of the individual is being consistently shaped by cultural and social  

values imbibed from living in the community. This state of flux   which   represents  a

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constant evolution of individual personhood in the relationship with the rest of society  

provides the rationale for reserving to the individual a zone of repose. The lives which  

individuals lead as members of society engender a reasonable expectation of privacy.  

The notion of a reasonable expectation of privacy has elements both of a subjective  

and objective nature. Privacy at a subjective level is a reflection of those areas where  

an individual desire to be left alone. On an objective plane, privacy is defined by those  

constitutional values which shape the content of the protected zone where the  

individual ought to be left alone. The notion that there must exist a reasonable  

expectation of privacy ensures that while on the one hand, the individual has a  

protected zone of privacy, yet on the other, the exercise of individual choices is subject  

to the rights of others to lead orderly lives. For instance, an individual who possesses  

a plot of land may decide to build upon it subject to zoning regulations. If the building  

bye laws define the area upon which construction can be raised or the height of the  

boundary wall around the property, the right to privacy of the individual is conditioned  

by regulations designed to protect the interests of the community in planned spaces.  

Hence while the individual is entitled to a zone of privacy, its extent is based not only  

on the subjective expectation of the individual but on an objective principle which  

defines a reasonable expectation.    

 

S Informational privacy    

170 Ours is an age of information.  Information is knowledge.  The old adage that  

“knowledge is power” has stark implications for the position of the individual where

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data is ubiquitous, an all-encompassing presence. Technology has made life  

fundamentally interconnected.  The internet has become all pervasive as individuals  

spend more and more time online each day of their lives.  Individuals connect with  

others and use the internet as a means of 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  

information which provide knowledge of the sort of person that the user is and her  

interests388.  Individually, these information silos may seem inconsequential. In  

aggregation, they disclose the nature of the personality: food habits, language, health,  

hobbies, sexual preferences, friendships, ways of dress and political affiliation. In  

                                                           388 See Francois Nawrot, Katarzyna Syska and Przemyslaw Switalski, “Horizontal application of fundamental  

rights – Right to privacy on the internet”, 9th Annual European Constitutionalism Seminar (May 2010),  University of Warsaw, available at http://en.zpc.wpia.uw.edu.pl/wp- content/uploads/2010/04/9_Horizontal_Application_of_Fundamental_Rights.pdf

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aggregation, information provides a picture of the being: of things which matter and  

those that don’t, of things to be disclosed and those best hidden.   

 

171 Popular websites install cookie files by the user’s browser. Cookies can tag  

browsers for unique identified numbers, which allow them to recognise rapid users  

and secure information about online behaviour. Information, especially the browsing  

history of a user is utilised to create user profiles.  The use of algorithms allows the  

creation of profiles about internet users.  Automated content analysis of e-mails allows  

for reading of user e-mails.  An e-mail can be analysed to deduce user interests and  

to target suitable advertisements to a user on the site of the window. The books which  

an individual purchases on-line provide footprints for targeted advertising of the same  

genre. Whether an airline ticket has been purchased on economy or business class,  

provides vital information about employment profile or spending capacity. Taxi rides  

booked on-line to shopping malls provide a profile of customer preferences. A woman  

who purchases pregnancy related medicines on-line would be in line to receive  

advertisements for baby products. Lives are open to electronic scrutiny. To put it  

mildly, privacy concerns are seriously an issue in the age of information.   

 

172 A Press Note released by the Telecom Regulatory Authority of India on 3 July,  

2017389 is indicative of the prevalence of telecom services in India as on 31 December,  

2016. The total number of subscribers stood at 1151.78 million, reflecting a 11.13  

                                                           389 Press Release 45/2017, available at http://trai.gov.in/sites/default/files/PR_No.45of2017.pdf   

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percent change over the previous year. There were 683.14 million urban subscribers  

and 468.64 million rural subscribers.  The total number of internet subscribers stood  

at 391.50 million reflecting an 18.04 per cent change over the previous quarter.   

236.09 million were broadband subscribers. 370 million is the figure of wireless  

internet subscribers.  The total internet subscribers per 100 population stood at 30.56;  

urban internet subscribers were 68.86 per 100 population; and rural internet  

subscribers being 13.08. The figures only increase.  

 

173 The age of information has resulted in complex issues for informational privacy.   

These issues 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.   

 

 

                                                           390 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 153  391 Ibid

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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 results in the creation of new  

knowledge about individuals; something which even she or he did not possess.  This  

poses serious issues for the Court. In an age of rapidly evolving technology it is  

impossible for a judge to conceive of all the possible uses of information or its  

consequences:  

“…The creation of new knowledge complicates data privacy law as  

it involves information the individual did not possess and could not  

disclose, knowingly or otherwise.  In addition, as our state becomes  

an “information state” through increasing reliance on information –  

such that information is described as the “lifeblood that sustains  

political, social, and business decisions. It becomes impossible to  

conceptualize all of the possible uses of information and resulting  

harms. Such a situation poses a challenge for courts who are  

effectively asked to anticipate and remedy invisible, evolving  

harms.” 392  

 

 

The contemporary age has been aptly regarded as “an era of ubiquitous dataveillance,  

or the systematic monitoring of citizen’s communications or actions through the use  

of information technology”393.  It is also an age of “big data” or the collection of data  

sets. These data sets are capable of being searched; they have linkages with other  

data sets; and are marked by their exhaustive scope and the permanency of  

collection.394 The challenges which big data poses to privacy interests emanate from  

                                                           392 Ibid, at page 154  393 Yvonne McDermott, “Conceptualizing the right to data protection in an era of Big Data”, Big Data and    Society  

(2017), at page 1   394 Ibid, at pages 1 and 4

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State and non-State entities. Users of wearable devices and social media networks  

may not conceive of themselves as having volunteered data but their activities of use  

and engagement result in the generation of vast amounts of data about individual  

lifestyles, choices and preferences. Yvonne McDermott speaks about the quantified  

self in eloquent terms:  

 

“…The rise in the so-called ‘quantified self’, or the self-tracking of  

biological, environmental, physical, or behavioural information  

through tracking devices, Internet-of-things devices, social network  

data and other means (?Swan.2013) may result in information  

being gathered not just about the individual user, but about people  

around them as well. Thus, a solely consent-based model does not  

entirely ensure the protection of one’s data, especially when data  

collected for one purpose can be repurposed for another.”395   

   

175 Daniel J Solove deals with the problem of “aggregation”.  Businesses and  

governments often aggregate a variety of information fragments, including pieces of  

information which may not be viewed as private in isolation to create a detailed portrait  

of personalities 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  

                                                           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

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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 is related to the protection of one’s identity.  Data protection relates  

closely with the latter sphere.  Data such as medical information would be a category  

to which a reasonable expectation of privacy attaches.  There may be other data which  

falls outside the reasonable expectation paradigm.  Apart from safeguarding privacy,  

data protection regimes seek to protect the autonomy of the individual. This is evident  

from the emphasis in the European data protection regime on the centrality of consent.  

Related to the issue of consent is the requirement of transparency which requires a  

disclosure by the data recipient of information pertaining to data transfer and use.    

 

178 Another aspect which data protection regimes seek to safeguard is the principle  

of non-discrimination which ensures that the collection of data should be carried out  

                                                           398 Yvonne McDermott, “Conceptualizing the right to data protection in an era of Big Data”, Big Data and Society  

(2017), at page 4.

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in a manner which does not discriminate on the basis of racial or ethnic origin, political  

or religious beliefs, genetic or health status or sexual orientation.  

 

179 Formulation of a regime for data protection is a complex exercise which needs  

to be undertaken by the State after a careful balancing of the requirements of privacy  

coupled with other values which the protection of data sub-serves together with the  

legitimate concerns of the State.  One of the chief concerns which the formulation of  

a data protection regime has to take into account is that while the web is a source of  

lawful activity-both personal and commercial, concerns of national security intervene  

since the seamless structure of the web can be exploited by terrorists to wreak havoc  

and destruction on civilised societies. Cyber attacks can threaten financial systems.  

Richard A Posner, in an illuminating article, has observed:  

 

“Privacy is the terrorist’s best friend, and the terrorist’s privacy has  

been enhanced by the same technological developments that have  

both made data mining feasible and elicited vast quantities of  

personal information from innocents: the internet, with its  

anonymity, and the secure encryption of digitized data which, when  

combined with that anonymity, make the internet a powerful tool of  

conspiracy. The government has a compelling need to exploit  

digitization in defense of national security…”399   

 

 

Posner notes that while “people value their informational privacy”, yet “they surrender  

it at the drop of a hat” by readily sharing personal data in the course of simple daily  

transactions. The paradox, he observes, can be resolved by noting that as long as  

                                                           399 Richard A. Posner, “Privacy, Surveillance, and Law”, The University of Chicago Law Review (2008), Vol.75,  

at page 251

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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 encroachment on privacy is an express requirement of Article 21. For, no  

person can be deprived of his life or personal liberty except in accordance with the  

procedure established by law.  The existence of law is an essential requirement.   

Second, the requirement of a need, in terms of a legitimate state aim, ensures that  

the nature and content of the law which imposes the restriction falls within the zone of  

reasonableness mandated by Article 14, which is a guarantee against arbitrary state  

action. The pursuit of a legitimate state aim ensures that the law does not suffer from  

                                                           400 Ibid  401 Ibid

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manifest arbitrariness.  Legitimacy, as a postulate, involves a value judgment.  Judicial  

review does not re-appreciate or second guess the value judgment of the legislature  

but is for deciding whether the aim which is sought to be pursued suffers from palpable  

or manifest arbitrariness.  The third requirement ensures that the means which are  

adopted by the legislature are proportional to the object and needs sought to be  

fulfilled by the law. Proportionality is an essential facet of the guarantee against  

arbitrary state action because it ensures that the nature and quality of the  

encroachment on the right is not disproportionate to the purpose of the law.  Hence,  

the three-fold requirement for a valid law arises out of the mutual inter-dependence  

between the fundamental guarantees against arbitrariness on the one hand and the  

protection of life and personal liberty, on the other. The right to privacy, which is an  

intrinsic part of the right to life and liberty, and the freedoms embodied in Part III is  

subject to the same restraints which apply to those freedoms.   

 

181 Apart from national security, the state may have justifiable reasons for the  

collection and storage of data.  In a social welfare state, the government embarks  

upon programmes which provide benefits to impoverished and marginalised sections  

of society. There is a vital state interest in ensuring that scarce public resources are  

not dissipated by the diversion of resources to persons who do not qualify as  

recipients. Allocation of resources for human development is coupled with a legitimate  

concern that the utilisation of resources should not be siphoned away for extraneous  

purposes. Data mining with the object of ensuring that resources are properly  

deployed to legitimate beneficiaries is a valid ground for the state to insist on the

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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 analysing data borne from hospital records  

to understand and deal with a public health epidemic such as malaria or dengue to  

obviate a serious impact on the population. If the State preserves the anonymity of the  

individual it could legitimately assert a valid state interest in the preservation of public  

health to design appropriate policy interventions on the basis of the data available to  

it.  

                                                           402 See in this connection, Jeffrey M. Skopek, “Reasonable Expectations of Anonymity”, Virginia Law Review  

(2015), Vol.101, at pages 691-762  

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183    Privacy has been held to be an intrinsic element of the right to life and personal  

liberty under Article 21 and as a constitutional value which is embodied in the  

fundamental freedoms embedded in Part III of the Constitution. Like the right to life  

and liberty, privacy is not absolute.  The limitations which operate on the right to life  

and personal liberty would operate on the right to privacy.  Any curtailment or  

deprivation of that right would have to take place under a regime of law. The procedure  

established by law must be fair, just and reasonable.  The law which provides for the  

curtailment of the right must also be subject to constitutional safeguards.   

 

184 The Union government constituted a Group of Experts on privacy under the  

auspices of the erstwhile Planning Commission. The Expert Group in its Report403  

(dated 16 October 2012) proposed a framework for the protection of privacy concerns  

which, it was expected, would serve as a conceptual foundation for legislation  

protecting privacy. The framework suggested by the expert group was based on five  

salient features: (i) Technological neutrality and interoperability with international  

standards; (ii) Multi-Dimensional privacy; (iii) Horizontal applicability to state and non-

state entities; (iv) Conformity with privacy principles; and (v) A co-regulatory  

enforcement regime. After reviewing international best practices, the Expert Group  

proposed nine privacy principles. They are:   

                                                           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  

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(i) Notice: A data controller shall give simple-to-understand notice of its information  

practices to all individuals in clear and concise language, before personal  

information is collected;  

(ii) Choice and Consent: A data controller shall give individuals choices (opt-in/opt-

out) with regard to providing their personal information, and take individual  

consent only after providing notice of its information practices;   

(iii)  Collection Limitation:  A data controller shall only collect personal information  

from data subjects as is necessary for the purposes identified for such collection,  

regarding which notice has been provided and consent of the individual taken.  

Such 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

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able to obtain from the data controller a copy of the personal data. Access and  

correction to personal information may not be given by the data controller if it is  

not, despite best efforts, possible to do so without affecting the privacy rights of  

another person, unless that person has explicitly consented to disclosure;  

(vi) Disclosure of Information: A data controller shall not disclose personal information  

to third parties, except after providing notice and seeking informed consent from  

the individual for such disclosure. Third parties are bound to adhere to relevant  

and applicable privacy principles. Disclosure for law enforcement purposes must  

be in accordance with the laws in force. Data controllers shall not publish or in any  

other way make public personal information, including personal sensitive  

information;  

(vii) Security:  A data controller shall secure personal information that they have either  

collected or have in their custody, by reasonable security safeguards against loss,  

unauthorised access, destruction, use, processing, storage, modification,  

deanonymization, unauthorized disclosure [either accidental or incidental] or other  

reasonably foreseeable risks;  

(viii) Openness: A data controller shall take all necessary steps to implement  

practices, procedures, policies and systems in a manner proportional to the scale,  

scope, and sensitivity to the data they collect, in order to ensure compliance with  

the privacy principles, information regarding which shall be made in an intelligible  

form, using clear and plain language, available to all individuals; and  

(ix) Accountability:  The data controller shall be accountable for complying with  

measures which give effect to the privacy principles. Such measures should

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include mechanisms to implement privacy policies; including tools, training, and  

education; external and internal audits, and requiring organizations or overseeing  

bodies extend all necessary support to the Privacy Commissioner and comply  

with the specific and general orders of the Privacy Commissioner.  

 

185 During the course of the hearing of these proceedings, the Union government  

has placed on the record an Office Memorandum dated 31 July 2017 by which it has  

constituted a committee chaired by Justice B N Srikrishna, former Judge of the  

Supreme Court of India to review inter alia data protection norms in the country and  

to make its recommendations. The terms of reference of the Committee are :   

a) To study various issues relating to data protection in India;  

b) To make specific 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

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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.  M P Sharma is overruled to the  

extent to which it indicates to the contrary.   

   

2 Kharak Singh has correctly held that the content of the expression ‘life’ under  

Article 21 means not merely the right to a person’s “animal existence” and that the  

expression ‘personal liberty’ is a guarantee against invasion into the sanctity of a  

person’s home or an intrusion into personal security.  Kharak Singh also correctly  

laid down that the dignity of the individual must lend content to the meaning of  

‘personal liberty’.  The first part of the decision in Kharak Singh which invalidated  

domiciliary visits at night on the ground that they violated ordered liberty is an  

implicit recognition of the right to privacy. The second part of the decision,  

however, which holds that the right to privacy is not a guaranteed right under our  

Constitution, is not reflective of the correct position.  Similarly, Kharak Singh’s  

reliance upon the decision of the majority in Gopalan is not reflective of the correct  

position in view of the decisions in Cooper and in Maneka. Kharak Singh to the  

extent that it holds that the right to privacy is not protected under the Indian  

Constitution is overruled.   

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3 (A) Life and personal liberty are inalienable rights. These are rights which are  

inseparable from a dignified human existence.  The dignity of the individual,  

equality between human beings and the quest for liberty are the foundational pillars  

of the Indian Constitution;   

 (B) Life and personal liberty are not creations of the Constitution. These rights are  

recognised by the Constitution as inhering in each individual as an intrinsic and  

inseparable part of the human element which dwells within;  

 (C)  Privacy is a constitutionally protected right which emerges primarily from the  

guarantee of life and personal liberty in Article 21 of the Constitution.  Elements of  

privacy also arise in varying contexts from the other facets of freedom and dignity  

recognised and guaranteed by the fundamental rights contained in Part III;  

 (D)  Judicial recognition of the existence of a constitutional right of privacy is not an  

exercise in the nature of amending the Constitution nor is the Court embarking on  

a constitutional function of that nature which is entrusted to Parliament;   

 (E) Privacy is the constitutional core of human dignity. Privacy has both a normative  

and descriptive function.  At a normative level privacy sub-serves those eternal  

values upon which the guarantees of life, liberty and freedom are founded. At a  

descriptive level, privacy postulates a bundle of entitlements and interests which  

lie at the foundation of ordered liberty;  

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263    

(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 in the right to privacy. The Constitution must  

evolve with the felt necessities of time to meet the challenges thrown up in a  

democratic order governed by the rule of law. The meaning of the Constitution  

cannot be frozen on the perspectives present when it was adopted.  Technological  

change has given rise to concerns which were not present seven decades ago  

and the rapid growth of technology may render obsolescent many notions of the  

present. Hence the interpretation of the Constitution must be resilient and flexible  

to allow future generations to adapt its content bearing in mind its basic or  

essential features;  

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264    

(H) Like other rights which form part of the fundamental freedoms protected by Part  

III, including the right to life and personal liberty under Article 21, privacy is not an  

absolute right.  A law which encroaches upon privacy will have to withstand the  

touchstone of permissible restrictions on fundamental rights. In the context of  

Article 21 an invasion of privacy must be justified on the basis of a law which  

stipulates a procedure which is fair, just and reasonable. The law must also be  

valid with reference to the encroachment on life and personal liberty under Article  

21.  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  

 (I) Privacy has both positive and negative content.  The negative content restrains the  

state from committing an intrusion upon the life and personal liberty of a citizen. Its  

positive content imposes an obligation on the state to take all necessary measures  

to protect the privacy of the individual.   

 4 Decisions rendered by this Court subsequent to Kharak Singh, upholding the right  

to privacy would be read subject to the above principles.     

 5 Informational privacy is a facet of the right to privacy.  The dangers to privacy in  

an age of information can originate not only from the state but from non-state actors  

as well. We commend to the Union Government the need to examine and put into  

place a robust regime for data protection.  The creation of such a regime requires

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265    

a careful and sensitive balance between individual interests and legitimate  

concerns of the state. The legitimate aims of the state would include for instance  

protecting national security, preventing and 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]   

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266    

       

                                                                                                           .............................................J  

          [S ABDUL NAZEER]        New Delhi;  Dated : 24, August 2017     

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Reportable  

IN THE SUPREME COURT OF INDIA  

CIVIL ORIGINAL JURISDICTION  

WRIT PETITION (CIVIL) NO.494 OF 2012  

Justice K.S. Puttaswamy (Retd.) & Another … Petitioners  

Versus  

Union of India & Others     … Respondents  

 

WITH  

TRANSFERRED CASE (CIVIL) NO.151 OF 2013    

TRANSFERRED CASE (CIVIL) NO.152 OF 2013    

WRIT PETITION (CIVIL) NO. 833 OF 2013  

 

WRIT PETITION (CIVIL) NO. 829 OF 2013  

 

WRIT PETITION (CIVIL)  NO. 932 OF 2013    

CONTEMPT PETITION (CIVIL) NO. 144 OF 2014  IN  

WRIT PETITION (CIVIL) NO. 494 OF 2012    

TRANSFER PETITION (CIVIL) NO. 313 OF 2014    

TRANSFER PETITION (CIVIL) NO. 312 OF 2014    

SPECIAL LEAVE PETITION (CRIMINAL) NO. 2524 OF 2014    

WRIT PETITION (CIVIL) NO. 37 OF 2015    

WRIT PETITION (CIVIL) NO. 220 OF 2015    

CONTEMPT PETITION (CIVIL) NO. 674 OF 2015  IN

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2  

 

WRIT PETITION (CIVIL) NO. 829 OF 2013    

TRANSFER PETITION (CIVIL) NO. 921 OF 2015    

CONTEMPT PETITION (CIVIL) NO. 470 OF 2015  IN  

WRIT PETITION (CIVIL) NO. 494 OF 2012    

CONTEMPT PETITION (CIVIL) NO. 444 OF 2016  IN  

WRIT PETITION (CIVIL) NO. 494 OF 2012    

CONTEMPT PETITION (CIVIL) NO. 608 OF 2016  IN  

WRIT PETITION (CIVIL) NO. 494 OF 2012    

WRIT PETITION (CIVIL) NO. 797 OF 2016    

CONTEMPT PETITION (CIVIL) NO. 844 OF 2017  IN  

WRIT PETITION (CIVIL) NO. 494 OF 2012    

WRIT PETITION (CIVIL) NO. 342 OF 2017    

WRIT PETITION (CIVIL) NO. 372 OF 2017    

J U D G M E N T  

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 required to be  

examined by this Bench, to answer the reference.  The factual  

background in which these questions arise and the history of the

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instant litigation is set out in the judgments of my learned brothers.   

There is no need to repeat.  Having regard to the importance of the  

matter, I am unable to desist recording few of my views regarding  

the various questions which were debated in this matter.  

2.   The following three questions, in my opinion, constitute the  crux of the enquiry;   

(i) Is there any Fundamental Right to Privacy under the  

Constitution of India?   

(ii) If it exists, where is it located?   

(iii) What are the contours of such Right?    

3. These questions arose because Union of India and some of the  

respondents took a stand that, in view of two larger bench  

judgments of this Court1, no fundamental right of privacy is  

guaranteed under the Constitution.    

4. Therefore, at the outset, it is necessary to examine whether it  

is the ratio decidendi of M.P. Sharma and Kharak Singh that under  

our Constitution there is no Fundamental Right of Privacy; and if  

that be indeed the ratio of either of the two rulings whether they  

were rightly decided?  The issue which fell for the consideration of  

                                                           1 M.P. Sharma & Others v. Satish Chandra & Others, AIR 1954 SC 300 and Kharak Singh v. State of U.P. &  Others, AIR 1963 SC 1295, (both decisions of Constitution Bench of Eight and Six Judges respectively).

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this Court in M.P. Sharma was – whether seizure of documents from  

the custody of a person accused of an offence would amount to  

“testimonial compulsion” prohibited under Article 20(3) of our  

Constitution?  

5. The rule against the “testimonial compulsion” is contained in  

Article 20(3)2 of our Constitution.  The expression “testimonial  

compulsion” is not found in that provision.  The mandate contained  

in Article 20(3) came to be described as the rule against testimonial  

compulsion.  The rule against self-incrimination owes its origin to  

the revulsion against the inquisitorial methods adopted by the Star  

Chamber of England3 and the same was incorporated in the Fifth  

Amendment of the American Constitution.4      

                                                           2 “Article 20(3) of the Constitution of India: “No person accused of any offence shall be compelled to be a witness  against himself.”  3  “In English law, this principle of protection against self-incrimination had a historical origin.  It resulted from a  feeling of revulsion against the inquisitorial methods adopted and the barbarous sentences imposed, by the Court of  Star Chamber, in the exercise of its criminal jurisdiction.  This came to a head in the case of John Lilburn, 3 State  Trials 1315, which brought about the abolition of the Star Chamber and the firm recognition of the principle that the  accused should not be put on oath and that no evidence should be taken from him.  This principle, in course of time,  developed into its logical extensions, by way of privilege of witnesses against self-incrimination, when called for  giving oral testimony or for production of documents.  A change was introduced by the Criminal Evidence Act of  1898 by making an accused a competent witness on his own behalf, if he applied for it.  But so far as the oral  testimony of witnesses and the production of documents are concerned, the protection against self-incrimination  continued as before.  (See Phipson on Evidence, 9th Edition, pages 215 and 474).         These principles, as they were before the statutory change in 1898, were carried into the American legal system  and became part of its common law.  (See Wigmore on Evidence, Vol.VIII, pages 301 to 303).  This was later on  incorporated into their Constitution by virtue of the Fifth Amendment thereof.”  4 “Amendment V of 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 …"

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6. Does the rule against “testimonial compulsion”, entrenched as  

a fundamental right under our Constitution create a right of  

privacy? - is a question not examined in M.P. Sharma.  It was  

argued in M.P. Sharma “that a search to obtain documents for investigation  

into an offence is a compulsory procuring of incriminatory evidence from the  

accused himself and is, therefore, hit by Article 20(3) …” by necessary  

implication flowing from “certain canons of liberal construction”.   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                                                              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.”

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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 American Fourth Amendment, we have  no justification to import it, into a totally different fundamental  right, by some process of strained construction.”    

 

7.   I see no warrant for a conclusion (which is absolute) that their  

lordships held that there is no right of privacy under our  

Constitution.  All that, in my opinion, their Lordships meant to say  

was that contents of the U.S. Fourth Amendment cannot be  

imported into our Constitution, while interpreting Article 20(3).  

That is the boundary of M.P. Singh’s ratio.  Such a conclusion, in  

my opinion, requires  a  further  examination  in  an  appropriate   

case since it is now too well settled that the text  of  the   

Constitution  is  only  the  primary  source  for  understanding  the   

Constitution and  the  silences  of  the  Constitution  are  also  to   

be ascertained to understand the Constitution.  Even according to  

the American Supreme Court, the Fourth Amendment is not the

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sole repository of the right to privacy7. Therefore, values other than  

those informing the Fourth Amendment can ground a right of  

privacy if such values are a part of the Indian Constitutional  

framework, and M.P. Sharma does not contemplate this possibility  

nor was there an occasion, therefore as the case was concerned  

with Article 20(3). Especially so as the Gopalan era  

compartmentalization ruled the roost during the time of the M.P.  

Sharma ruling and there was no Maneka Gandhi  interpretation of  

Part III as a cohesive and fused code as is presently.   

 Whether the right of privacy is implied in any other  

fundamental right guaranteed under Articles 21, 14, 19 or 25 etc.  

was not examined in M.P Sharma.  The question whether a  

fundamental right of privacy is implied from these Articles, is  

therefore, res integra and M.P. Sharma is no authority on that  

aspect.  I am, therefore, of the opinion that M.P. Sharma is not an  

authority for an absolute proposition that there is no right of  

privacy under our Constitution; and such is not the ratio of that  

judgment.   

                                                           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.  

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8. The issue in Kharak Singh was the constitutionality of police  

regulations of UP which inter alia provided for ‘surveillance’ of  

certain categories of people by various methods, such as,  

domiciliary visits at night’, ‘verification of movements and absences’  

etc.  Two judgments (4:2) were delivered.  Majority took the view  

that the impugned regulation insofar as it provided for ‘domiciliary  

visits at night’ is unconstitutional whereas 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

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“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 guarantee of the Fourteenth  

Amendment8 and against the “very essence of a scheme of ordered liberty”.9  The  

majority judgment in Kharak Singh noticed that the conclusion  

recorded in Wolf v. Colorado is based on the prohibition contained  

in the Fourth Amendment of the U.S. Constitution, and a  

corresponding provision is absent in our Constitution.  Nonetheless,  

their Lordships concluded that the impugned regulation insofar as  

it sanctioned domiciliary visits is plainly violative of Article 21.  For  

this conclusion, their Lordships relied upon the English Common  

Law maxim that “every man's house is his castle"10. In substance  

domiciliary visits violate liberty guaranteed under Article 21.   

 The twin conclusions recorded, viz., that Article 21 takes  

within its sweep various rights other than mere freedom from  

physical restraint; and domiciliary visits by police violate the right  

of Kharak Singh guaranteed under Article 21, are a great leap from  

                                                           8 Frankfurter, J.   9 Murphy, J.   10 See (1604) 5 Coke 91 – Semayne’s case

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the law declared by this Court in Gopalan11 - much before R.C.  

Cooper12  and Maneka Gandhi13 cases.  The logical inconsistency in  

the judgment is that while on the one hand their Lordships opined  

that the maxim “every man’s house is his castle” is a part of the liberty  

under Article 21, concluded on the other, that absence of a  

provision akin to the U.S. Fourth Amendment would negate the  

claim to the right of privacy.  Both statements are logically  

inconsistent.  In the earlier part of the judgment their Lordships  

noticed14 that it is the English Common Law which formed the basis  

of the U.S. Fourth Amendment and is required to be read into  

Article 21; but nevertheless declined to read the right of privacy into  

Article 21.  This is the incongruence.   

10. Interestingly as observed by Justice Nariman, when it came to  

the constitutionality of the other provisions impugned in Kharak  

Singh, their Lordships held that such provisions are not violative of  

Article 21 since there is no right to privacy under our  

                                                           11

A.K. Gopalan Vs. State of Madras AIR 1950 SC 27  12 RC Cooper Vs. Union of India (1970) 1 SCC 248  13 Maneka Gandhi Vs. Union of India (1978) 1 SCC 248  14  See F/N 3 (supra)

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Constitution15.  I completely endorse the view of my learned brother  

Nariman in this regard.  

11. I now proceed to examine the salient features of the minority  

view.  

(i) Disagreement with the majority on the conclusion  

that Article 21 contains those aspects of personal  

liberty excluding those enumerated under Article  

19(1);  

(ii) after noticing that Gopalan held that the expression  

“personal liberty” occurring under Article 21 is only  

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.”;     

                                                           15 Nor do we consider that Article 21 has any relevance in the context as was sought to be suggested by learned  Counsel for the petitioner.  As already pointed out, the right of privacy is not a guaranteed right under our  Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in  which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III.

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(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 settled principles of interpretation of even an  

ordinary statute; and wholly unwarranted in the context of  

constitutional interpretation.  If a right is recognised by the express  

language of a statute, no question of implying such a right from  

                                                           16 Kharak Singh v. The State of U.P. & Others, (1962) 1 SCR 332 at page 351  

“… Nor do we consider that Article 21 has any relevance in the context as was sought to be suggested by  learned Counsel for the petitioner.  As already pointed out, the right of privacy is not a guaranteed right  under our Constitution and therefore the attempt to ascertain the movements of an individual which is  merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by  Part III.”   

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some provision of such statute arises.  Implications are logical  

extensions of stipulations in the express language of the statute  

and arise only when a statute is silent on certain aspects.   

Implications are the product of the interpretative process, of  

silences of a Statute.  It is by now well settled that there are  

implications even in written Constitutions.17 The scope and  

amplitude of implications are to be ascertained in the light of the  

scheme and purpose sought to be achieved by a statute.  The  

purpose of the statute is to be ascertained from the overall scheme  

of the statute.  Constitution is the fundamental law adumbrating  

the powers and duties of the various organs of the State and rights  

of the SUBJECTS18 and limitations thereon, of the State.  In my  

opinion, provisions purportedly conferring power on the State are in  

fact limitations on the State power to infringe on the liberty of  

SUBJECTS.  In the context of the interpretation of a Constitution  

                                                           17

 (1947) 74 CLR 31 – The Melbourne Corporation v. The Commonwealth  “ ... Thus, the purpose of the Constitution, and the scheme by which it is intended to be given effect,  necessarily give rise to implications as to the manner in which the Commonwealth and the States  respectively may exercise their powers, vis-à-vis each other.”  

Also see: His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala & Another, (1973) 4 SCC  225  

18  Citizens and non-citizens who are amenable to the Constitutional authority of the State

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the intensity of analysis to ascertain the purpose is required to be  

more profound.19    

 The implications arising from the scheme of the Constitution  

are “Constitution’s dark matter” and are as important as the  

express stipulations in its text.  The principle laid down by this  

Court in Kesvananda20, that the basic structure of the Constitution  

cannot be abrogated is the most outstanding and brilliant  

exposition of the ‘dark matter’ and is a part of our Constitution,  

though there is nothing in the text suggesting that principle.  The  

                                                           19

Two categories of Constitutional interpretation - textualist and living constitutionalist approach are well known.  

The former, as is illustrated by the Gopalan case, focuses on the text at hand i.e. the language of the relevant  provision. The text and the intent of the original framers are determinative under the textualist approach. The living  constitutionalist approach, while acknowledging the importance of the text, takes into account a variety of factors as  aids to interpret the text. Depending on the nature of factor used, academics have added further nuance to the this  approach of interpretation (For instance, in his book titled ‘Constitutional Interpretation’ (which builds 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 criticisms against the living constitutionalist approach are that of uncertainty and that it can lead to  arbitrary exercise of judicial power.  The living constitutionalist approach in my view is preferable despite these  criticisms, for two reasons. First, adaptability cannot be equated to lack of discipline in judicial reasoning. Second, it  is still the text of the constitution which acquires the requisite interpretative hues and therefore, it is not as if there is  violence being perpetrated upon the text if one resorts to the living constitutionalist approach.  

20  His Holiness Kesavananda Bharati Sripadagalvaru & Others. v. State of Kerala & Another  (1973) 4 SCC 225

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necessity of probing seriously and respectfully into the invisible  

portion of the Constitution cannot be ignored without being  

disrespectful to the hard earned political freedom and the declared  

aspirations of the liberty of ‘we the people of India’.  The text of  

enumerated fundamental rights is “only the primary source of expressed  

information” as to what is meant by liberty proclaimed by the  

preamble of the Constitution.  

13. To embrace a rule that the text of the Constitution is the only  

material to be looked at to understand the purpose and scheme of  

the Constitution would not only be detrimental to liberties of  

SUBJECTS but could also render 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  

                                                           21 ADM Jabalpur Vs. S.S. Shukla AIR 1976 SC 1207  22  Sakal Papers (P) Ltd. & Others etc. v. Union of India, AIR 1962 SC 305 at page 311  

“Para 28. It must be borne in mind that the Constitution must be interpreted in a broad way and not in a narrow  and pedantic sense. Certain rights have been enshrined in our Constitution as fundamental and, therefore, while  considering the nature and content of those rights the Court must not be too astute to interpret the language of  the Constitution in so literal a sense as to whittle them down. On the other hand the Court must interpret the  Constitution in a manner which would enable the citizen to enjoy the rights guaranteed by it in the fullest  measure subject, of course, to permissible restrictions. Bearing this principle in mind it would be clear that the  right to freedom of speech and expression carries with it the right to publish and circulate one's ideas, opinions  and views with complete freedom and by resorting to any available means of publication, subject again to such  restrictions as could be legitimately imposed under clause (2) of Article 19. The first decision of this Court in  which this was recognized is Romesh Thapar v. State of Madras, AIR 1950 SC 124.. There, this Court held that

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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  

punishments were not unknown to this country.  They were in  

vogue in the middle ages.  Flaying a man alive was one of the  

                                                                                                                                                                                           

freedom of speech and expression includes freedom of propagation of ideas and that this freedom is ensured by  the freedom of circulation. In that case this Court has also pointed out that freedom of speech and expression are  the foundation of all democratic organisations and are essential for the proper functioning of the processes of  democracy. ...”   

23 Romesh Thappar Vs. State of Madras AIR 1950 SC 124  24

“VIII Amendment to the American Constitution:  “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments  inflicted.”

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favoured punishments of some of the Rulers of those days.  I only  

hope that this Court would have no occasion to hear an argument  

that the Parliament or State legislatures would be constitutionally  

competent to prescribe cruel punishments like amputation or  

blinding or flaying alive of convicts merely an account of a  

prescription akin to the VIIIth Amendment being absent in our  

Constitution.25  

15. This Court by an interpretive process read the right to earn a  

livelihood26, the right to education27, the right to speedy trial28, the  

right to protect one’s reputation29 and the right to have an  

environment free of pollution30 in the expression ‘life’ under Article  

21 of the Indian Constitution.   

Similarly, the right to go abroad31 and the right to speedy trial  

of criminal cases32 were read into the expression liberty occurring  

                                                           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

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under Article 21.  This court found delayed execution of capital  

punishment violated both the rights of life and ‘liberty’ guaranteed  

under Article 2133 and also perceived reproductive rights and the  

individual’s autonomy regarding sterilization to being inherent in  

the rights of life and liberty under Art. 2134.   

16. None of the above-mentioned rights are to be found anywhere  

in the text of the Constitution.  

17. To sanctify an argument that whatever is not found in the text  

of the Constitution cannot become a part of the Constitution would  

be too primitive an understanding of the Constitution and contrary  

to settled cannons of constitutional interpretation. Such an  

approach regarding the rights and liberties of citizens would be an  

affront to the collective wisdom of our people and the wisdom of the  

members of the Constituent Assembly.  The fact that some of the  

members opined during the course of debates in that Assembly,  

that the right of privacy need not find an express mention in the  

Constitution, would not necessarily lead to the conclusion that they  

were oblivious to the importance of the right to privacy.    

                                                           33 Vatheeswaran, T.V. Vs. State of T.N. (1983) 2 SCC 68  34 Devika Biswas Vs. Union of India (2016) 10 SCC 726

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Constituent Assembly was not a seminar on the right to privacy and  

its amplitude.  A close scrutiny of the debates reveals that the  

Assembly only considered whether there should be an express  

provision guaranteeing the right of privacy in the limited context of  

‘searches’ and ‘secrecy of correspondence’.   Dimensions of the 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.    

                                                           35

However, various forces which go into the making of history are dynamic.  Those who are entrusted with the  responsibility of the working of the Constitution must necessarily keep track of the dynamics of such forces.   Evolution of science and growth of technology is another major factor in the modern world which is equally a factor  to be kept in mind to successfully work the constitution.  

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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, not only of their generation but generations to follow.   

The Constitution cannot be seen as a document written in ink to  

replace one legal regime by another.  It is a testament created for  

securing the goals professed in the Preamble36.  Part-III of the  

Constitution is incorporated to ensure achievement of the objects  

contained in the Preamble.37  ‘We the People’ of this country are the  

intended beneficiaries38 of the Constitution. It must be seen as a  

document written in the blood of innumerable martyrs of  

                                                           36

 Kesavananda Bharati (supra)  “Para 91. … Our Preamble outlines the objectives of the whole constitution.  It expresses “what we had thought  or dreamt for so long”.”   

37   In re, The Kerala Education Bill, 1957, AIR 1958 SC 956  

“… To implement and fortify these supreme purposes set forth in the Preamble, Part III of our Constitution has  provided for us certain fundamental rights.”  

38  Bidi Supply Co. v. Union of India & Others, AIR 1956 SC 479 at page 487  

“Para 23. After all, for whose benefit was the Constitution enacted? What was the point of making all this other  about fundamental rights? I am clear that the Constitution is not for the exclusive benefit governments and  States; it is not only for lawyers and politicians and officials and those highly placed. It also exists for the  common man, for the poor and the humble, for those who have businesses at stake, for the “butcher, the baker  and the candlestick maker”. It lays down for this land “a rule of law” as understood in the free democracies of  the world. It constitutes India into a Sovereign Republic and guarantees in every page rights and freedom to the  side by side and consistent with the overriding power of the State to act for the common good of all.  

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Jalianwala Bagh and the like. Man is not a creature of the State.    

Life and liberty are not granted by the Constitution. Constitution  

only stipulates the limitations on the power of the State to interfere  

with our life and liberty.  Law is essential to enjoy the fruits of  

liberty; it is not the source of liberty and emphatically not the  

exclusive source.  

19. To comprehend whether the right to privacy is a Fundamental  

Right falling within the sweep of any of the Articles of Part-III, it is  

necessary to understand what “fundamental right” and the “right of  

privacy” mean conceptually.  Rights arise out of custom, contract or  

legislation, including a written Constitution. The distinction  

between an ordinary legislation and an enacted Constitution is that  

the latter is believed and expected to be a relatively permanent piece  

of legislation which cannot be abrogated by a simple majority of  

representatives elected for a limited tenure to legislative bodies  

created thereby. The Constitution of any country is a document  

which contains provisions specifying the rules of governance in its  

different aspects.  It defines the powers of the legislature and the  

procedures for law making, the powers of the executive to  

administer the State by enforcing the law made by the legislature

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and the powers of the judiciary.  The underlying belief is that the  

Constitution of any country contains certain core political values  

and beliefs of the people of that country which cannot normally be  

tinkered with lightly, by transient public opinion.  

20. The Constitution of India is one such piece of legislation.   

Comparable are constitutions of United States of America, Canada  

and Australia to mention only some.   All such Constitutions apart  

from containing provisions for administration of the State, contain  

provisions specifying or identifying certain rights of citizens and  

even some of the rights 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  

                                                           39

 Bidi Supply Co. v. Union of India & Others, AIR 1956 SC 479   Para 24. I make no apology for turning to older democracies and drawing inspiration from them, for though our law  is an amalgam drawn from many sources, its firmest foundations are rooted in the freedoms of other lands where  men are free in the democratic sense of the term. England has no fundamental rights as such and its Parliament is  supreme but the liberty of the subject is guarded there as jealously as the supremacy of Parliament.”

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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 politic mandating periodic  

elections.  They also create rights in favour of individuals to  

participate in such electoral process either as an elector or to  

become an elected representative of the people/voters.  

22. Though each of the rights created by a Constitution is of great  

importance for sustenance of a democratic form of Government  

chosen by us for achieving certain objectives declared in the  

                                                                                                                                                                                           

 

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Preamble, the framers of our Constitution believed that some of the  

rights enshrined in the Constitution are more crucial to the pursuit  

of happiness of the people of India and, therefore, called them  

fundamental rights.  The belief is based on the study of human  

history and the Constitution of other nations which in turn are  

products of historical events.     

 The scheme of our Constitution is that the power of the State  

is divided along a vertical axis between the Union and the States  

and along the horizontal axis between the three great branches of  

governance, the legislative, the executive and the judiciary.  Such  

division of power is believed to be conducive to preserving the  

liberties of the people of India.  The very purpose of creating a  

written Constitution is to secure justice, liberty and equality to the  

people of India. Framers of the Constitution believed that certain  

freedoms are essential to enjoy the fruits of liberty and that the  

State shall not be permitted to trample upon those freedoms except  

for achieving certain important and specified objectives in the larger  

interests of society.   Therefore, the authority of the State for  

making a law inconsistent with fundamental rights, is cabined  

within constitutionally proclaimed limitations.  

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23. Provisions akin to the Fundamental Rights guaranteed under  

our Constitution exist in American Constitution also40.  They are  

anterior to our Constitution.   

24. The inter-relationship of various fundamental rights  

guaranteed under Part III of the Constitution and more specifically  

between Articles 14, 19 and 21 of the Constitution has been a  

matter of great deal of judicial discourse starting from A.K. Gopalan.     

The march of the law in this regard is recorded by Justices Nariman  

and Chandrachud in detail.    

25. R.C. Cooper and Maneka Gandhi gave a different orientation to  

the topic.   Justice Bhagwati in Maneka Gandhi speaking for the  

majority opined41 that in view of the later decision of this Court in  

                                                           40

 The first 8 amendments to the Constitution are some of them.  

41  5. ....It was in Kharak Singh v. State of U.P. & Ors. 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  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's fundamental right under Article 21 is infringed, the State can rely upon a law to sustain the action, but that  cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the attributes  covered by Article 19(1) are concerned". There can be no doubt that in view of the decision of this Court in R. C.

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R.C. Cooper, the minority 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”  

                                                                                                                                                                                           

Cooper v. Union of India(2) the minority view must be regarded as correct and the majority view must be held to  have been overruled…….  

42  6.  …..The law, must, therefore, now be taken to be well settled that Article 21 does not exclude Article 19 and  

that even if there is a law prescribing a procedure for depriving a person of 'personal liberty' and there is  consequently no infringement of the fundamental right conferred by Article 21, such law, in so far as it abridges or  takes away any fundamental right under Article 19 would have to meet the challenge of that article. This proposition  can no longer be disputed after the decisions in R. C. Cooper's case, Shambhu Nath Sarkar's case and Haradhan  Saha's case. Now, if a law depriving a person of 'personal liberty' and prescribing a procedure for that purpose  within the meaning of Article 21 has to stand the test of one or more of the fundamental rights conferred  under Article 19 which may be applicable in a given situation, ex hypothesi it must also be liable to be tested with  reference to Article 14. This was in fact not disputed by the learned Attorney General and indeed he could not do so  in view of the clear and categorical statement made by Mukharjea, J., in A. K. Gopalan's case that Article 21  "presupposes that the law is a valid and binding law under the provisions of the Constitution having regard to the  competence of the legislature and the subject it relates to and does not infringe any of the fundamental rights which  the Constitution provides for", including Article 14.....   

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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  

21. “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 reveals that the minority opined  

that the right to move freely is an attribute of personal liberty.  

Minority only disputed the correctness of the proposition that by  

enumerating certain freedoms in Article 19(1), the makers of the  

Constitution excluded those freedoms from the expression liberty in  

Article 21.  The minority opined that both the freedoms enumerated  

in Article 19(1) and 21 are independent fundamental rights, though  

there is “overlapping”.  

The expression ‘liberty’ is capable of taking within its sweep  

not only the right to move freely, guaranteed under Article 19(1)(d);  

                                                           43

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 Art. 21 excludes that attribute.   In our view, this is not a correct approach.   Both  are independent fundamental rights, though there is overlapping.

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but also each one of the other freedoms mentioned under Article  

19(1).  Personal liberty takes within its sweep not only the right not  

to be subjected to physical restraints, but also the freedom of  

thought, belief, emotion and sensation and a variety of other  

freedoms.   The most basic understanding of the expression liberty  

is the freedom of an individual to do what he pleases.   But the idea  

of liberty is more complex than that.  Abraham Lincoln’s  

statement44  that our nation “was conceived in liberty” is equally  

relevant in the context of the proclamation contained in our  

Preamble; and as evocatively expressed in the words of Justice  

Brandies;  

“Those who won our independence believed that the final end  of the State was to make men free to develop their faculties;  and that in its government the deliberative forces should  prevail over the arbitrary. They valued liberty both as an end  and as a means. They believed liberty to be the secret of  happiness and courage to be the secret of liberty.”   

– Whitney v. California, 274 U.S. 357, 375  

 

28. The question now arises as to what is the purpose the framers  

of the Constitution sought to achieve by specifically enumerating  

some of the freedoms which otherwise would form part of the  

expression ‘liberty’.  To my mind the answer is that the Constituent  

                                                           44

Gettysburg Speech

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Assembly thought it fit that some aspects of liberty require a more  

emphatic declaration so as to restrict the authority of the State to  

abridge or curtail them. The need for such an emphatic declaration  

arose from the history of this nation.  In my opinion, the purpose  

sought to be achieved is two-fold.  Firstly, to place the expression  

‘liberty’ beyond the argumentative process45 of ascertaining the  

meaning of the expression liberty, and secondly, to restrict the  

authority of the State to abridge those 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  

                                                           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  public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause    

(5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it  imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the  rights conferred by the said sub clauses either in the interests of the general public or for the protection of the  interests of any Scheduled Tribe    

(6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes,  or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on  the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause shall affect  the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,    

(i) the professional or technical qualifications necessary for practising any profession or carrying on any  occupation, trade or business, or    

(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade,  business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise  

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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 law  

                                                           47

That was exactly the State’s submission in A.K. Gopalan’s case which unfortunately found favour with this Court.  48  See Hans Muller of Nurenburg Vs. Superintendent, Presidency Jail, Calcutta and Others AIR 1955 SC 367,    (Paras 34 and 38)     State Trading Corporation of India Ltd. Vs. The Commercial Tax  Officer and Others, AIR 1963 SC 1811, Para 20     Indo-China Steam Navigation Co. Ltd. Vs. Jasjit Singh, Additional Collector of Customs, Calcutta and Others,          AIR  1964 SC 1140, (Para 35)     Charles Sobraj Vs. Supdt. Central Jail, Tihar, New Delhi, AIR 1978 SC 104, (Para 16 )     Louis De Raedt Vs. Union of India and Others, (1991) 3 SCC 554, (Para 13)     

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(2)  ‘law’ in the context means a valid legislation.  

(3) If the person whose liberty is sought to be deprived is a  

citizen and that liberty happens to be one of the freedoms  

enumerated in Article 19(1), such a law is required to be a  

reasonable within the parameters stipulated in clauses (2) to  

(6) of Article 19, relevant to the nature of the entrenched  

freedom/s, such law seeks to abridge.  

(4) If the person whose liberty is sought to be deprived of is a  

non-citizen or even if a citizen is with respect to any freedom  

other than those specified in Articles 19(1), the law should be  

just, fair and reasonable.  

30. My endeavour qua the aforesaid analysis is only to establish  

that the expression liberty in Article 21 is wide enough to take in  

not only the various freedoms enumerated in Article 19(1) but also  

many others which are not enumerated.   I am of the opinion that a  

better view of the whole scheme of the chapter on fundamental  

rights is to look at each one of the guaranteed fundamental rights  

not as a series of isolated points, but as a rational continuum of the  

legal concept of liberty i.e. freedom from all substantial, arbitrary

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encroachments and purposeless restraints sought to be made by  

the State.  Deprivation of liberty could lead to curtailment of one or  

more of freedoms which a human being possesses, but for  

interference by the State.  

31. Whether it is possible to arrive at a coherent, integrated and  

structured statement explaining the right of privacy is a question  

that has been troubling scholars and judges in various jurisdictions  

for decades.49 Considerable amount of literature both academic and  

judicial came into existence.   In this regard various taxonomies50  

have been proposed suggesting that there are a number of interests  

and values into which the right to privacy could be dissected.     

32. Claims for protection of privacy interests can arise against the  

State and its instrumentalities and against non-State entities –  

such as, individuals acting in their private capacity and bodies  

corporate or unincorporated associations etc., without any element  

of State participation.  Apart from academic literature, different  

                                                           49

Gobind v. State of Madhya Pradesh & Another,  (1975) 2 SCC 148  “Para 23.  … The most serious advocate of privacy must confess that there are serious problems of defining the  essence and scope of the right. …”   

50  For a detailed account of the taxonomy of the constitutional right to privacy in India see, Mariyam Kamil, ‘The  

Structure of the Right to Privacy in India’ (MPhil thesis, University of Oxford, 2015).   

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claims based on different asserted privacy interests have also found  

judicial support. Cases arose in various jurisdictions in the context  

of privacy interests based on (i) Common Law; (ii) statutory  

recognition; and (iii) constitutionally 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  

                                                           51

 It is a settled principle of law that some of the Fundamental Rights like 14 and 29 are guaranteed even to non-

citizens

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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  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 indicate to the contrary, stand  overruled.  The later judgments of this Court recognizing privacy as  a fundamental right do not need to be revisited.  These cases are,  therefore, sent back for adjudication on merits to the original  Bench of 3 honourable Judges of this Court in light of the  judgment just delivered by us.”  

Justice Chandrachud held :  

“(C)  Privacy is a constitutionally protected right which emerges  primarily from the guarantee of life and personal liberty in Article  21 of the Constitution.  Elements of privacy also arise in varying  contexts from the other facets of freedom and dignity recognised  and guaranteed by the fundamental rights contained in Part III;”  

 

36. One of the earliest cases where the constitutionality of State’s  

action allegedly infringing the right of privacy fell for the  

consideration of the US Supreme Court is Griswold et al v.  

Connecticut, 381 US 479.  The Supreme Court of the United States  

sustained a claim of a privacy interest on the theory that the  

Constitution itself creates certain zones of privacy - ‘repose’ and

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‘intimate decision.52 Building on this framework, Bostwick53  

suggested that there are in fact, three aspects of privacy – “repose”,  

“sanctuary” and “intimate decision”. “Repose” refers to freedom  

from unwarranted stimuli, “sanctuary” to protection against  

intrusive observation, and “intimate decision” to autonomy with  

respect to the most personal life choices.  Whether any other facet  

of the right of privacy exists cannot be divined now.   In my opinion,  

there is no need to resolve all definitional concerns at an abstract  

level to understand the nature of the right to privacy. The ever  

growing possibilities of technological and psychological intrusions  

by the State into the liberty of SUBJECTS must leave some doubt in  

this context. Definitional uncertainty is no reason to not recognize  

the existence of the right of privacy.  For the purpose of this case, it  

is sufficient to go by the understanding that the right to privacy  

consists of three facets i.e. repose, sanctuary and intimate decision.    

Each of these facets is so essential for the liberty of human beings  

that I see no reason to doubt that the right to privacy is part of the  

liberty guaranteed by our Constitution.     

                                                           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.

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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  

                                                           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 any law-  (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with  religious practice;  (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character  to all classes and sections of Hindus.  Explanation I.- The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh  religion.

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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 falling within the zone of purely private thought  

process and is an aspect of liberty.  There are areas other than  

religious beliefs which form part of the individual’s freedom of  

conscience such as political belief etc. which form part of the liberty  

under Article 21.      

38. Concerns of privacy arise when the State seeks to intrude into  

the body of SUBJECTS.57  Corporeal punishments were not  

unknown to India, their abolition is of a recent vintage.   Forced  

feeding of certain persons by the State raises concerns of privacy.      

An individual’s rights to refuse life prolonging medical treatment or  

terminate his life is another freedom which fall within the zone of  

the right of privacy.  I am conscious of the fact that the issue is  

pending before this Court.  But in various other jurisdictions, there  

                                                                                                                                                                                           

Explanation II.- In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to  persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be  construed accordingly.\  57

Skinner Vs. Oklahoma,  316 U.S. 535 (1942) - There are limits to the extent to which a legislatively represented  majority may conduct biological experiments at the expense of the dignity and personality and natural powers of a  minority – even those who have been guilty of what the majority defines as crimes - Jackson, J.  

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is a huge debate on those issues though it is still a grey area.58     A  

woman’s freedom of choice whether to bear a child or abort her  

pregnancy are areas which fall in the realm of privacy.  

Similarly, the freedom to choose either to work or not and the  

freedom to choose the nature of the work are areas of private  

decision making process.  The right to travel freely within the  

country or go abroad is an area falling within the right of privacy.  

The text of our Constitution recognised the freedom to travel  

throughout the country under Article 19(1)(d).  This Court has  

already recognised that such a right takes within its sweep the right  

to travel abroad.59  A person’s freedom to choose the place of his  

residence once again is a part of his right of privacy60 recognised by  

the Constitution of India under Article 19(1)(e) though the pre-

dominant purpose of enumerating the above mentioned two  

freedoms in Article 19(1) is to disable both the federal and State  

Governments from creating barriers which are incompatible with  

the federal nature of our country and its Constitution.   The choice                                                              58

For the legal debate in this area in US, See Chapter 15.11 of the American Constitutional Law by Laurence H.  Tribe – 2nd Edition.    

59  Maneka Gandhi Vs. Union of India, (1978) 1 SCC 248  

60  Williams Vs. Fears, 179 U.S. 270 (1900) – Undoubtedly the right of locomotion, the right to remove from one  

place to another according to inclination, is an attribute of personal liberty,…….

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of appearance and apparel are also aspects of the right of privacy.   

The freedom of certain groups of SUBJECTS to determine their  

appearance and apparel (such as keeping long hair and wearing a  

turban) are protected not as a part of the right of privacy but as a  

part of their religious belief.   Such a freedom need not necessarily  

be based on religious beliefs falling under Article 25. Informational  

traces are also an area which is the subject matter of huge debate  

in various jurisdictions falling within the realm 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

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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 residence are  

purely private and fall within the realm of the right of privacy.  It is  

one of the most intimate decisions.       

All liberal democracies believe that the State should not have  

unqualified authority to intrude into certain aspects of human life  

and that the authority should be limited by parameters  

constitutionally fixed. Fundamental rights are the only  

constitutional firewall to prevent State’s interference with those core  

freedoms constituting liberty of a human being.  The right to  

privacy is certainly one of the core freedoms which is to be  

                                                           61

The High Court of AP held that Article 19(1)(c) would take within its sweep the matrimonial association in T.  Sareetha Vs. T. Venkata Subbaiah, AIR 1983 AP 356.      However, this case was later overruled by this Court in  Saroj Rani Vs. Sudarshan Kumar Chadha, AIR 1984 SC 1562  

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defended.   It is part of liberty within the meaning of that expression  

in Article 21.  

41. I am in complete agreement with the conclusions recorded by  

my learned brothers in this regard.  

42. It goes without saying that no legal right can be absolute.    

Every right has limitations.   This aspect of the matter is conceded  

at the bar. Therefore, even a fundamental right to privacy has  

limitations.  The limitations are to be identified on case to case  

basis depending upon the nature of the privacy interest claimed.    

There are different standards of review to test infractions of  

fundamental rights. While the concept of reasonableness overarches  

Part III, it operates differently across Articles (even if only slightly  

differently across some of them). Having emphatically interpreted  

the Constitution’s liberty guarantee to contain a fundamental right  

of privacy, it is necessary for me to outline the manner in which  

such a right to privacy can be limited. I only do this to indicate the  

direction of the debate as the nature of limitation is not at issue  

here.

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43. To begin with, the options canvassed for limiting the right to  

privacy include an Article 14 type reasonableness enquiry62;  

limitation as per the express provisions of Article 19; a just, fair and  

reasonable basis (that is, substantive due process) for limitation per  

Article 21; and finally, a just, fair and reasonable standard per  

Article 21 plus the amorphous standard of ‘compelling state  

interest’. The last of these four options is the highest standard of  

scrutiny63 that a court can adopt. It is from this menu that a  

standard of review for limiting the right of privacy needs to be  

chosen.   

44. At the very outset, if a privacy claim specifically flows only  

from one of the expressly enumerated provisions under Article 19,  

then the standard of review would be as expressly 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  

                                                           62A challenge under Article 14 can be made if there is an unreasonable classification and/or if the impugned  measure is arbitrary. The classification is unreasonable if there is no intelligible differentia justifying the  classification and if the classification has no rational nexus with the objective sought to be achieved. Arbitrariness,  which was first explained at para 85 of E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, is very simply the  lack of any reasoning.  

63A tiered level of scrutiny was indicated in what came to be known as the most famous footnote in Constitutional  law that is Footnote Four in United States v. Carolene Products, 304 U.S. 144 (1938). Depending on the graveness  of the right at stake, the court adopts a correspondingly rigorous standard of scrutiny.  

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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 contours in the US. Hence, it is critical that this standard  

be adopted with some clarity as to when and in what types of  

privacy claims it is to be used. Only in privacy claims which deserve  

                                                           64 District Registrar & Collector, Hyderabad v Canara Bank AIR 2005 SC 186; State of Maharashtra v Bharat Shanti  Lal Shah (2008) 13 SCC 5.

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the strictest scrutiny is the standard of compelling State interest to  

be used. As for others, the just, fair and reasonable standard under  

Article 21 will apply.  When the compelling State interest standard  

is to be employed must depend upon the context of concrete cases.  

However, this discussion sets the ground rules within which a  

limitation for the right of privacy is to be found.  

 

 

..….....................................J.  

                    (J. CHELAMESWAR)  

 

 

New Delhi  

August 24, 2017.  

  

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REPORTABLE  

 

IN THE SUPREME COURT OF INDIA  CIVIL ORIGINAL JURISDICTION  

 

WRIT PETITION (CIVIL) No.494 OF 2012  

 

JUSTICE K S PUTTASWAMY (RETD.) AND ANR.   …. PETITIONERS    

VERSUS  

UNION OF INDIA AND ORS.            …. RESPONDENTS  

 

WITH  

 

T.C. (CIVIL) No. 151 OF 2013  

T.C. (CIVIL) No. 152 OF 2013  

W.P. (CIVIL) No. 833 OF 2013  

W.P. (CIVIL) No. 829 OF 2013  

W.P. (CIVIL) No. 932 OF 2013  

CONMT. PET. (CIVIL) No.144 OF 2014 IN W.P.(C) NO.494/2012  

T.P. (CIVIL) No. 313 OF 2014  

T.P. (CIVIL) No. 312 OF 2014  

S.L.P. (CRL) No.2524 OF 2014  

W.P. (CIVIL) No. 37 OF 2015  

W.P. (CIVIL) No. 220 OF 2015  

CONMT. PET. (CIVIL) No.674 OF 2015 IN W.P.(C) NO.829/2013  

T.P. (CIVIL) No. 921 OF 2015

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2    

CONMT. PET. (C) No.470 OF 2015 IN W.P.(C) NO.494/2012  

CONMT. PET. (C) No.444 OF 2016 IN W.P.(C) NO.494/2012  

CONMT. PET. (C) No.608 OF 2016 IN W.P.(C) NO.494/2012  

W.P.(CIVIL) NO.797/2016  

CONMT. PET. (CIVIL) No.844 OF 2017 IN W.P.(C) NO.494/2012  

AND  

W.P. (CIVIL) No. 342 OF 2017  

W.P. (CIVIL) No. 372 OF 2017  

 

 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

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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 are of the opinion that the cases on hand  

raise far-reaching questions of importance involving  interpretation of the Constitution. What is at stake is  

the amplitude of the fundamental rights including  that precious and inalienable right under Article 21.  

If the observations made in MP Sharma and Kharak  Singh are to be read literally and accepted as the law  

of this country, the fundamental rights guaranteed  under the Constitution of India and more particularly  

right to liberty under Article 21 would be denuded of  vigour and vitality. At the same time, we are also of  

the opinion that the institutional integrity and judicial  

discipline require that pronouncements made by  larger Benches of this Court cannot be ignored by  smaller Benches without appropriately explaining the  reasons for not following the pronouncements made  

by such larger Benches. With due respect to all the  learned Judges who rendered subsequent judgments  

– where right to privacy is asserted or referred to  their 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 quietus to the  kind of controversy raised in this batch of cases once  

and for all, it is better that the ratio decidendi of MP  Sharma and Kharak Singh is scrutinized and the  

                                                           1 MP Sharma v. Satish Chandra, 1954 SCR 1077  2 Kharak Singh v. State of UttarPradesh, AIR 1963 SC 1295  

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jurisprudential correctness of the subsequent  

decisions of this Court where the right to privacy is  either asserted or referred be examined and  

authoritatively decided by a Bench of appropriate  strength3.”  

 

3. We have had the benefit of submissions from Shri Soli Sorabjee,  

Shri Gopal Subramanium, Shri Shyam Divan, Shri Arvind Datar,   

Shri Anand Grover, Shri Sajan Poovayya, Ms. Meenakshi Arora,   

Shri Kapil Sibal, Shri P.V. Surendranath and Ms. Aishwarya Bhati for the  

Petitioners, and Shri K.K. Venugopal, learned Attorney General for the  

Union of India, Shri Tushar Mehta, learned Additional Solicitor General  

for the Union, Shri Aryama Sundaram for the State of Maharashtra,   

Shri Rakesh Dwivedi for the State of Gujarat, Shri Arghya Sengupta for  

the State of Haryana, Shri Jugal Kishore for the State of Chattisgarh and  

Shri Gopal Sankaranarayanan for an intervenor supporting the  

Respondents. We would like to record our appreciation for their able  

assistance in a matter of such great import as the case before us.  

 

 

                                                           3 Justice KS Puttaswamy (Retd.) v. Union of India, W.P. (Civil) No. 494 of 2012, Order dated  

11 August 2015

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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

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wrongly took the United States Fourth Amendment – which in itself is no  

more than a limited protection against unlawful surveillance – to be a  

comprehensive constitutional guarantee of privacy in that jurisdiction.  

6. Neither does the 4:2 majority in Kharak Singh v. State of Uttar  

Pradesh (supra) furnish a basis for the proposition that no constitutional  

right to privacy exists. Ayyangar, J.’s opinion for the majority found that  

Regulation 236 (b) of the Uttar Pradesh Police Regulations, which inter  

alia enabled the police to make domiciliary visits at night was “plainly  

violative of Article 21”4.  In reasoning towards this conclusion, the Court  

impliedly acknowledged a constitutional right to privacy. In particular, it  

began by finding that though India has no like guarantee to the Fourth  

Amendment, “an unauthorised intrusion into a person’s home and the  

disturbance caused to him thereby, is as it were the violation of a  

common law right of a man – an ultimate essential of ordered liberty, if  

not of the very concept of civilization”5.  It proceeded to affirm that the  

statement in Semayne’s case6 that “the house of everyone is to him as  

                                                           4 Id., at p. 350  5 Id., at p. 349  6 (1604) 5 Coke 91   

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his castle and fortress as well as for his defence against injury and  

violence as for his repose” articulated an “abiding principle which  

transcends mere protection of property rights and expounds a concept  

of “personal liberty.” Thus far, the Kharak Singh majority makes out the  

case of the Attorney General. But, in its final conclusion, striking down  

Regulation 236 (b) being violative of Article 21 could not have been  

arrived at without allowing that a right of privacy was covered by that  

guarantee.  

7. The M.P. Sharma Court did not have the benefit of two  

interpretative devices that have subsequently become indispensable  

tools in this Court’s approach to adjudicating constitutional cases. The  

first of these devices derives from R.C. Cooper v. Union of India7 and its  

progeny – including Maneka Gandhi v. Union of India8 – which require  

us to read Part III’s guarantees of rights together. Unlike AK Gopalan v.  

State of Madras9 which held the field in M.P. Sharma’s time, rights  

demand to be read as overlapping rather than in silos, so that Part III is  

now conceived as a constellation of harmonious and mutually reinforcing                                                              7(1970) 1 SCC 248   8 (1978) 1 SCC 248  9 AIR 1950 SC 27

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guarantees. Part III does not attempt to delineate rights specifically.   

I take the right to privacy, an indispensable 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  

                                                           10 (1985) 3 SCC 545   11 (1989) 4 SCC 286   

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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 their context may suggest otherwise, the shift  

in our understanding of the nature and location of various fundamental  

rights in Part III brought about by R.C. Cooper and Maneka Gandhi has  

removed the foundations of M.P. Sharma and Kharak Singh.   

10. Petitioners submitted that decisions numbering atleast 30 –  

beginning with Mathews, J.’s full-throated acknowledgement of the  

existence and value of a legal concept of privacy in Gobind v. State of  

M.P.12 – form an unbroken line of cases that affirms the existence of a  

constitutional right to privacy. In view of the foregoing, this view should  

be accepted as correct.  

The Form of the Privacy Right  

11.   It was argued for the Union by Mr. K.K. Venugopal, learned  

Attorney General that the right of privacy may at best be a common law  

                                                           12 (1975) 2 SCC 148

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right, but not a fundamental right guaranteed by the Constitution.  This  

submission is difficult to accept. In order to properly appreciate the  

argument, an exposition of the first principles concerning the nature and  

evolution of rights is necessary.   

12. According to Salmond, rights are interests protected by ‘rules of  

right’, i.e., by moral or legal rules13. When interests are worth  

protecting on moral grounds, irrespective of the existence of a legal  

system or the operation of law, they are given the name of a natural  

right. Accordingly, Roscoe Pound refers to natural law as a theory of  

moral qualities inherent in human beings, and to natural rights as  

deductions demonstrated by reason from human nature14.  He defines  

natural rights, and distinguishes them from legal rights (whether at  

common law or under constitutions) in the following way:  

“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 legal conceptions. For legal rights, the  

devices which law employs to secure such of these  

                                                           13

PJ FITZGERALD, SALMOND ON JURISPRUDENCE 217 (Twelfth Edition, 1966)  14

ROSCOE POUND, THE SPIRIT OF THE COMMON LAW 88 (1921)

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interests as it is expedient to recognize, are the work  

of the law and in that sense the work of the state.”15    

Privacy, with which we are here concerned, eminently qualifies as an  

inalienable natural right, intimately connected to two values whose  

protection is a matter of universal moral agreement: the innate dignity  

and autonomy of man.  

13. Legal systems, which in India as in England, began as  

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  

                                                           15

Id., at p. 92    16

(1604) 5 Coke 91

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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 to compel compliance through  

penal laws) was vested. First, the state is an abstract and diffuse entity,  

while the monarch was a tangible, single entity. Second, the advent of  

the state came with a critical transformation in the status of the  

governed from being subjects under the monarch to becoming citizens,  

                                                           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)  

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and themselves becoming agents of political power qua the state.  

Constitutions like our own are means by which individuals – the  

Preambular ‘people of India’ – create ‘the state’, a new entity to serve  

their interests and be accountable to them, and transfer a part of their  

sovereignty to it. The cumulative effect of both these circumstances is  

that individuals governed by constitutions have the new advantage of a  

governing entity that draws its power from and is accountable to them,  

but they face the new peril of a diffuse and formless entity against whom  

existing remedies at common law are no longer efficacious.   

15. Constitutions address the rise of the new political hegemon that  

they create by providing for a means by which to guard against its  

capacity for invading the liberties available and guaranteed to all civilized  

peoples. Under our constitutional scheme, these means – declared to be  

fundamental rights – reside in Part III, and are made effective by the  

power of this Court and the High Courts under Articles 32 and 226  

respectively. This narrative of the progressive expansion of the types of  

rights available to individuals seeking to defend their liberties from  

invasion – from natural rights to common law rights and finally to

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14    

fundamental rights – is consistent with the account of the development  

of rights that important strands in constitutional theory present18.  

16. This court has already recognized the capacity of constitutions to  

be the means by which to declare recognized natural rights as applicable  

qua the state, and of constitutional courts to enforce these declarations.  

In Kesavananda Bharati v. State of Kerala19, Mathew, J. borrows from  

Roscoe Pound to explain this idea in the following terms:  

“While dealing with natural rights, Roscoe  Pound states on p. 500 of Vol. I of his Jurisprudence:  

 “Perhaps nothing contributed so much to create and  

foster hostility to courts and law and constitutions as  this conception of the courts as guardians of  

individual natural rights against the State and  

against society; this conceiving of the law 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 super-

constitution, beyond the reach of any agency but  judicial decision.” (Emphasis supplied)  

 

                                                           18

MARTIN LOUGHLIN, THE FOUNDATIONS OF PUBLIC LAW 344-46 (2010)  19 (1973) 4 SCC 225, 1461 at p. 783  

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15    

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  

“[f]undamental rights have two aspects, firstly, they act as fetter on  

plenary legislative powers, and secondly, they provide conditions for  

fuller development of our people including their individual dignity.”  

 

17. Once we have arrived at this understanding of the nature of  

fundamental rights, we can dismantle a core assumption of the Union’s  

argument: that a right must either be a common law right or a  

fundamental right. The only material distinctions between the two  

classes of right – of which the nature and content may be the same – lie  

in the incidence of the duty to respect the right and in the forum in which  

a failure to do so can be redressed. Common law rights are horizontal in  

                                                           20 (2005) 2 SCC 436  21 (2012) 6 SCC 1 at 27   

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16    

their operation when they are violated by one’s fellow man, he can be  

named and proceeded against in an ordinary court of law. Constitutional  

and fundamental rights, on the other hand, provide remedy against the  

violation of a valued interest by the ‘state’, as an abstract entity,  

whether through legislation or otherwise, as well as by identifiable public  

officials, being individuals clothed with the powers of the state. It is  

perfectly possible for an interest to simultaneously be recognized as a  

common law right and a fundamental right. Where the interference with  

a recognized interest is by the state or any other like entity recognized  

by Article 12, a claim for the violation of a fundamental right would lie.  

Where the author of an identical interference is a non-state actor, an  

action at common law would lie in an ordinary court.  

18. Privacy has the nature of being both a common law right as well  

as a fundamental right. Its content, in both forms, is identical. All that  

differs is the incidence of burden and the forum for enforcement for each  

form.  

 

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17    

The Content of the Right of Privacy  

19. It might be broadly necessary to determine the nature and  

content of privacy in order to consider the extent of its constitutional  

protection. As in the case of ‘life’ under Article 21, a precise definition of  

the term ‘privacy’ may not be possible. This difficulty need not detain us.  

Definitional and boundary-setting challenges are not unique to the rights  

guaranteed in Article 21. This feature is integral to many core rights,  

such as the right to equality.  Evidently, the expansive character of any  

right central to constitutional democracies like ours has nowhere stood in  

the way of recognizing a right and treating it as fundamental where there  

are strong constitutional grounds 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

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18    

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 instinctive resentment is evident in the present day as well.  

For instance, the non-consensual revelation of personal information such  

as the state of one’s health, finances, place of residence, location, daily  

routines and so on efface one’s sense of personal and financial security.  

In District Registrar and Collector v. Canara Bank23, this Court observed  

what the jarring reality of a lack of privacy may entail:  

“ ...If the right is to be held to be not attached to  the person, then “we would not shield our account  

balances, income figures and personal telephone and  address books from the public eye, but might instead  

go about with the information written on our  ‘foreheads or our bumper stickers’. ”  

 

                                                           22 Pavesich v. New England Life Insurance co. et al., 50 S.E. 68 (Supreme Court of Georgia)  23 (2005) 1 SCC 496 at 48

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19    

21.   ‘Privacy’ is “[t]he condition or state of being free from public  

attention to intrusion into or interference with one’s acts or decisions”24.  

The right to be in this condition has been described as ‘the right to be let  

alone’25. What seems to be essential to privacy is the power to seclude  

oneself and keep others from intruding it in any way. These intrusions  

may be physical or visual, and may take any of several forms including  

peeping over one’s shoulder to eavesdropping directly or through  

instruments, devices or technological aids.   

22. Every individual is entitled to perform his actions in private. In  

other words, she is entitled to be in a state of repose and to work  

without being disturbed, or otherwise observed or spied upon. The  

entitlement to such a condition is not confined only to intimate spaces  

such as the bedroom or the washroom but goes with a person wherever  

he is, even in a public place. Privacy has a deep affinity with seclusion  

(of our physical persons and things) as well as such ideas as repose,  

solitude, confidentiality and secrecy (in our communications), and  

                                                           24

BLACK’S LAW DICTIONARY (Bryan Garner, ed.) 3783 (2004)  25 Samuel D. Warren and Louis D. Brandeis, The Right To Privacy, 4 HARV. L. REV. 193  

(1890)   

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20    

intimacy. But this is not to suggest that solitude is always essential to  

privacy. It is in this sense of an individual’s liberty to do things privately  

that a group of individuals, however large, is entitled to seclude itself  

from others and be private. In fact, a conglomeration of individuals in a  

space to which the rights of admission are reserved – as in a hotel or a  

cinema hall –must be regarded as private. Nor is the right to privacy lost  

when a person moves about in public. The law requires a specific  

authorization for search of a person even where there is suspicion26.  

Privacy 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.  

                                                           26 Narcotic Drugs and Psychotropic Substances Act, 1985, s. 42

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21    

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 of not eating and drinking in the presence of  

anyone else. Similarly in Islam, peeping into others’ houses is strictly  

prohibited28.  Just as the United States Fourth Amendment guarantees  

privacy in one’s papers and personal effects, the Hadith makes it  

reprehensible to read correspondence between others. In Christianity,  

we find the aspiration to live without interfering in the affairs of others in  

the text of the Bible29. Confession of one’s sins is a private act30.   

                                                           

 27

KAUTILYA’S ARTHASHASTRA189-90 (R. Shamasastri, trans., 1915)  28

AA MAUDUDI, HUMAN RIGHTS IN ISLAM 27 (1982)  29 Thessalonians 4:11 THE BIBLE

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22    

Religious and social customs affirming privacy also find  

acknowledgement in our laws, for example, in the Civil Procedure Code’s  

exemption of a pardanashin lady’s appearance in Court31.  

24. Privacy, that is to say, the condition arrived at after excluding  

other persons, is a basic pre-requisite for exercising the liberty and the  

freedom to perform that activity. The inability to create a condition of  

selective seclusion virtually denies an individual the freedom to exercise  

that particular liberty or freedom necessary to do that activity.   

25. It is not possible to truncate or isolate the basic freedom to do  

an activity in seclusion from the freedom to do the activity itself. The  

right to claim a basic condition like privacy in which guaranteed  

fundamental rights can be exercised must itself be regarded as a  

fundamental right. Privacy, thus, constitutes the basic, irreducible  

condition necessary for the exercise of ‘personal liberty’ and freedoms  

guaranteed by the Constitution. It is the inarticulate major premise in  

Part III of the Constitution.  

 

                                                                                                                                                                                           30 James 5:16 THE BIBLE  31 Code of Civil Procedure, 1989, S. 132

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23    

Privacy’s Connection to Dignity and Liberty   

26. Undoubtedly, privacy exists, as the foregoing demonstrates, as a  

verifiable fact in all civilized societies. But privacy does not stop at being  

merely a descriptive claim. It also embodies a normative one. The  

normative case for privacy is intuitively simple. Nature has clothed man,  

amongst other things, with dignity and liberty so that he may be free to  

do what he will consistent with the freedom of another and to develop his  

faculties to the fullest measure necessary to live in happiness and peace.  

The Constitution, through its Part III, enumerates many of these  

freedoms and their corresponding rights as fundamental rights. Privacy is  

an essential condition for the exercise of most of these freedoms.   

Ex facie, every right which is integral to the constitutional rights to  

dignity, life, personal liberty 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

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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 to suit our own character; of doing as we like,  

subject to such consequences as may follow: without  impediment from our fellow-creatures, so long as  

what we do does not harm them, even though they  should think our conduct foolish, perverse, or wrong.  

Thirdly, from this liberty of each individual, follows  the liberty, within the same limits, of combination  

among individuals; freedom to unite, for any purpose  not involving harm to others: the persons combining  

being supposed to be of full age, and not forced or  

deceived.     No society in which these liberties are not, on  the whole, respected, is free, whatever may be  

its form of government; and none is completely  free in which they do not exist absolute and  unqualified. The only freedom which deserves  the name, is that of pursuing our own good in  

our own way, so long as we do not attempt to  deprive others of theirs, or impede their efforts  to obtain it. Each is the proper guardian of his  own health, whether bodily, or mental and  

spiritual. Mankind are greater gainers by suffering

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each other to live as seems good to themselves,  

than by compelling each to live as seems good to the  rest.   

 Though this doctrine is anything but new, and, to  

some persons, may have the air of a truism, there is  no doctrine which stands more directly opposed to  

the general tendency of existing opinion and  practice. Society has expended fully as much effort  

in the attempt (according to its lights) to compel  people to conform to its notions of personal, as of  

social excellence.”32 (Emphasis supplied)     

28. The first and natural home for a right of privacy is in Article 21  

at the very heart of ‘personal liberty’ and life itself. Liberty and privacy  

are integrally connected in a way that privacy is often the basic condition  

necessary for exercise of the right of personal liberty. There are  

innumerable activities which are virtually incapable of being performed at  

all and in many cases with dignity unless an individual is left alone or is  

otherwise empowered to ensure his or her privacy.  Birth and death are  

events when privacy is required for ensuring dignity amongst all civilized  

people. Privacy is thus one of those rights “instrumentally required if one  

is to enjoy”33 rights specified and enumerated in the constitutional text.   

                                                           32

JOHN STUART MILL, ON LIBERTY AND OTHER ESSAYS 15-16 (Stefan Collini ed., 1989) (1859)  33 Laurence H. Tribe and Michael C. Dorf, Levels Of Generality In The Definition Of Rights,  

57 U. CHI. L. REV. 1057 (1990) at 1068

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26    

29. This Court has endorsed the view that ‘life’ must mean  

“something more than mere animal existence”34 on a number 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  

                                                           34 Munn v. Illinois, (1877) 94 US 113 (Per Field, J.) as cited In Kharak Singh at p. 347-8  35 (1978) 4 SCC 494  36 (1981) 1 SCC 608  37 Francis Coralie Mullin at  7

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27    

against its deprivation extends to all those limbs and  

faculties by which life is enjoyed. The provision  equally prohibits the mutilation of the body or  

amputation of an arm or leg or the putting out of an  eye or the destruction of any other organ of the body  

through which the soul communicates with the outer  world.”  

 and this passage was again accepted as laying down  

the correct law by the Constitution Bench of this  Court in the first Sunil Batra case (supra). Every  

limb or faculty through which life is enjoyed is  thus protected by Article 21 and a fortiori, this  

would include the faculties of thinking and  feeling. Now deprivation which is inhibited by Article  

21 may be total or partial, neither any limb or faculty  can be totally destroyed nor can it be partially  damaged. Moreover it is every kind of deprivation  

that is hit by Article 21, whether such deprivation be  permanent or temporary and, furthermore,  

deprivation is not an act which is complete once and  for all: it is a continuing act and so long as it lasts, it  

must be in accordance with procedure established by  law. It is therefore clear that any act which  

damages or injures or interferes with the use  of, any limb or faculty of a person, either  

permanently or even temporarily, would be  within the inhibition of Article 21.”   

                                          (Emphasis supplied)    

Privacy is therefore necessary in both its mental and physical aspects as  

an enabler of guaranteed freedoms.  

30. It is difficult to see how dignity – whose constitutional  

significance is acknowledged both by the Preamble and by this Court in  

its exposition of Article 21, among other rights – can be assured to the

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28    

individual without privacy. Both dignity and privacy are intimately  

intertwined and are natural conditions for the birth and death of  

individuals, and for many significant events in life between these events.  

Necessarily, then, the right of privacy is an integral part of both ‘life’ and  

‘personal liberty’ under Article 21, and is intended to enable the rights  

bearer to develop her potential to the fullest extent made possible only  

in consonance with the constitutional values expressed in the Preamble  

as well as across Part III.  

Privacy as a Travelling Right  

31. I have already shown that the right of privacy is as inalienable as  

the right to perform any constitutionally permissible act. Privacy in all its  

aspects constitutes the springboard for the exercise of the freedoms  

guaranteed by Article 19(1). Freedom of speech and expression is always  

dependent on the capacity to 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

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29    

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 the state. Article 28(3) expressly recognizes the right of a student  

attending an educational institution recognized by the state, to be left  

alone. Such a student cannot be compelled to take part in any religious  

instruction imparted in any such institution unless his guardian has  

consented to it.  

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30    

33. The right of privacy is also integral to the cultural and  

educational rights whereby a group having a distinct language, script or  

culture shall have the right to conserve the same. It has also always  

been an integral part of the right to own property and has been treated  

as such in civil law as well as in criminal law vide all the offences and  

torts of trespass known to law.  

34. Therefore, privacy is the necessary condition precedent to the  

enjoyment of any of the guarantees in Part III. As a result, when it is  

claimed by rights bearers before constitutional courts, a right to privacy  

may be situated not only in Article 21, but also simultaneously in any of  

the other guarantees in Part III. In the current state of things, Articles  

19(1), 20(3), 25, 28 and 29 are all rights helped up and made  

meaningful by the exercise of privacy. This is not an exhaustive list.  

Future developments in technology and social ordering may well reveal  

that there are yet more constitutional sites in which a privacy right  

inheres that are not at present evident to us.                                                                                                 

 

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31    

Judicial Enumeration of the Fundamental Right to Privacy  

35. There is nothing unusual in the judicial enumeration of one right  

on the basis of another under the Constitution. In the case of Article 21’s  

guarantee of ‘personal liberty’, this practice is only natural if Salmond’s  

formulation of liberty as “incipient rights”38 is correct. By the process of  

enumeration, constitutional courts merely give a name and specify the  

core of guarantees already present in the residue of constitutional  

liberty. Over time, the Supreme Court has been able to imply by its  

interpretative process, that several fundamental rights including the right  

to privacy emerge out of expressly stated Fundamental Rights.  In Unni  

Krishnan, J.P. v. State of A.P.39, a Constitution Bench of this Court held  

that “several unenumerated rights fall within Article 21 since personal  

liberty is of widest amplitude”40 on the way to affirming the existence of  

a right to education. It went on to supply the following indicative list of  

such rights, which included the right to privacy:  

“30. The following rights are held to be covered  under Article 21:  

                                                           38

SALMOND, at p. 228  39 (1993) SCC 1 645  40 Id. at  29

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32    

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 SCC 286.  

12. Shelter. Santistar Builder v. N.KI. Totame,  (1990) 1 SCC 520”  

 

In the case of privacy, the case for judicial enumeration is especially  

strong. It is no doubt a fair implication from Article 21, but also more.  

Privacy is be a right or condition, “logically presupposed”41 by rights  

expressly recorded in the constitutional text, if they are to make sense.  

                                                           

41 Laurence H. Tribe And Michael C. Dorf, Levels Of Generality In The Definition Of  

Rights, 57 U. CHI. L. REV. 1057 (1990) at p. 1068

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33    

As a result, privacy is more than merely a derivative constitutional right.  

It is the necessary and unavoidable logical entailment of rights  

guaranteed in the text of the constitution.  

36. Not recognizing character of privacy as a fundamental right is  

likely to erode the very sub-stratum of the personal liberty guaranteed  

by the constitution. The decided cases clearly demonstrate that  

particular fundamental rights could not have been exercised without the  

recognition of the right of privacy as a fundamental right. Any  

derecognition or diminution in the importance of the right of privacy will  

weaken the fundamental rights which have been expressly conferred.  

37. Before proceeding to the question of how constitutional courts  

are to review whether a violation of privacy is unconstitutional, three  

arguments from the Union and the states deserve to be dealt with  

expressly.  

38. The Learned Attorney General relied on cases holding that there  

is no fundamental right to trade in liquor to submit by analogy that there  

can be no absolute right to privacy. Apprehensions that the recognition  

of privacy would create complications for the state in its exercise of

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34    

powers is not well-founded. The declaration of a right cannot be avoided  

where there is good constitutional ground for doing so. It is only after  

acknowledging that the right of privacy is a fundamental right, that we  

can consider how it affects the plenary powers of the state. In any event,  

the state can always legislate a reasonable restriction to protect and  

effectuate a compelling state interest, like it may while restricting any  

other fundamental right. There is no warrant for the assumption or for  

the conclusion that the fundamental right to privacy is an absolute right  

which cannot be reasonably restricted given a sufficiently compelling  

state interest.  

39. Learned Additional Solicitor General, Shri Tushar Mehta listed  

innumerable statutes which protect the right of privacy wherever  

necessary and urged that it is neither necessary nor appropriate 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.

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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 its opposite, which shows what it is not. Accordingly,  

we understand justice as the absence of injustice, and freedom as the  

absence of restraint. So too privacy may be understood as the antonym  

of publicity. In law, the distinction between what is considered a private  

trust as opposed to a public trust illuminates what I take to be core and

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irreducible attributes of privacy. In Deoki Nandan v. Murlidhar42, four  

judges of this Court articulated the distinction in the following terms:   

“The distinction between a private trust and a  public trust is that whereas in the former the  

beneficiaries are specific individuals, in the latter  they are the general public or a class thereof. While  

in the former the beneficiaries are persons who are  ascertained or capable of being ascertained, in the  

latter they constitute a body which is incapable of  ascertainment.”  

 

This same feature, namely the right of a member of public as such to  

enter upon or use such property, distinguishes private property from  

public property and private ways from public roads.  

42. Privacy is always connected, whether directly or through its  

effect on the actions which are sought to be secured from interference,  

to the act of associating with others. In this sense, privacy is usually best  

understood as a relational right, even as its content frequently concerns  

the exclusion of others from one’s society.  

43. The trusts illustration also offers us a workable test for  

determining when a constitutionally cognizable privacy claim has been  

made, and the basis for acknowledging that the existence of such a claim  

                                                           42 (1956) SCR 756

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is context-dependent. To exercise one’s right to privacy is to choose and  

specify on two levels. It is to choose which of the various activities that  

are taken in by the general residue of liberty available to her she would  

like to perform, and to specify whom to include in one’s circle when  

performing them. It is also autonomy in the negative, and takes in the  

choice and specification of which activities not to perform and which  

persons to exclude from one’s circle. Exercising privacy is the signaling  

of one’s intent to these specified others – whether they are one’s co-

participants or simply one’s audience – as well as to society at large, to  

claim and exercise the right. To check for the existence of an actionable  

claim to privacy, all that needs to be considered is if such an intent to  

choose 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

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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 the action interdicted by a particular law. At a  

minimum, since privacy is always integrated with personal liberty, the  

constitutionality of the law which is alleged to have invaded into a rights  

bearer’s privacy must be tested by the same standards by which a law  

which invades personal liberty under Article 21 is liable to be tested.  

Under Article 21, the standard test at present is the rationality review  

expressed in Maneka Gandhi’s case. This requires that any procedure by

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which the state interferes with an Article 21 right to be “fair, just and  

reasonable, not fanciful, oppressive or arbitrary”43.  

46. Once it is established that privacy imbues every constitutional  

freedom with its efficacy and that it can be located in each of them, it  

must follow that interference with it by the state must be tested against  

whichever one or more Part III guarantees whose enjoyment is curtailed.  

As a result, privacy violations will usually have to answer to tests in  

addition to the one applicable to Article 21. Such a view would be wholly  

consistent with R.C. Cooper v. Union of India.  

Conclusion  

47. In view of the foregoing, I answer the reference before us in the  

following terms:  

a. The ineluctable conclusion must be that an inalienable  

constitutional right to privacy inheres in Part III of the  

Constitution. M.P. Sharma and the majority opinion in Kharak  

Singh must stand overruled to the extent that they indicate to  

the contrary.  

                                                           43 Maneka Gandhi v. Union of India (1978) 1 SCC 248 at para 48

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b. The right to privacy is inextricably bound up with all  

exercises of human liberty – both as it is specifically enumerated  

across Part III, and as it is guaranteed in the residue under  

Article 21. It is distributed across the various articles in Part III  

and, mutatis mutandis, takes the form of whichever of their  

enjoyment its violation curtails.  

c. Any interference with privacy by an entity covered by  

Article 12’s description of the ‘state’ must satisfy the tests  

applicable to whichever one or more of the Part III freedoms the  

interference affects.   

 

 

................................. J.  

[S. A. BOBDE]   New Delhi;  

August 24, 2017    

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REPORTABLE  

 IN THE SUPREME COURT OF INDIA  

CIVIL ORIGINAL/APPELLATE JURISDICTION  

CRIMINAL APPELLATE JURISDICTION  

WRIT PETITION (CIVIL) NO.494 OF 2012  

 JUSTICE K.S. PUTTASWAMY   (RETD.) AND ANR.     …PETITIONERS       

VERSUS      

UNION OF INDIA AND ORS.   …RESPONDENTS    

 WITH  

 TRANSFERRED CASE (CIVIL) NO.151 OF 2013  

 TRANSFERRED CASE (CIVIL) NO.152 OF 2013  

 WRIT PETITION (CIVIL) NO.833 OF 2013  

 WRIT PETITION (CIVIL) NO.829 OF 2013  

 WRIT PETITION (CIVIL) NO.932 OF 2013  

 CONTEMPT PETITION (CIVIL) NO.144 OF 2014   

IN   WRIT PETITION (CIVIL) NO.494 OF 2012  

 TRANSFER PETITION (CIVIL) NO. 313 OF 2014  

 TRANSFER PETITION (CIVIL) NO. 312 OF 2014  

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2  

 

 SPECIAL LEAVE PETITION (CRIMINAL) NO.2524 OF 2014  

 WRIT PETITION (CIVIL) NO.37 OF 2015  

 WRIT PETITION (CIVIL) NO.220 OF 2015  

 CONTEMPT PETITION (CIVIL) NO.674 OF 2015   

IN  WRIT PETITION (CIVIL) NO.829 OF 2013  

 TRANSFER PETITION (CIVIL) NO. 921 OF 2015  

 CONTEMPT PETITION (CIVIL) NO.470 OF 2015   

IN   WRIT PETITION (CIVIL) NO.494 OF 2012  

 CONTEMPT PETITION (CIVIL) NO.444 OF 2016   

IN   WRIT PETITION (CIVIL) NO.494 OF 2012  

 CONTEMPT PETITION (CIVIL) NO.608 OF 2016   

IN   WRIT PETITION (CIVIL) NO.494 OF 2012  

 WRIT PETITION (CIVIL) NO.797 OF 2016  

 CONTEMPT PETITION (CIVIL) NO.844 OF 2017   

IN   WRIT PETITION (CIVIL) NO.494 OF 2012  

 WRIT PETITION (CIVIL) NO.342 OF 2017  

 WRIT PETITION (CIVIL) NO.372 OF 2017  

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   J U D G M E N T    R.F. Nariman, J.       Prologue  

 

1. The importance of the present matter is such that  

whichever way it is decided, it will have huge repercussions for  

the democratic republic that we call “Bharat” i.e. India.  A Bench  

of 9-Judges has been constituted to look into questions relating  

to basic human rights. A 3-Judge Bench of this Court was  

dealing with a scheme propounded by the Government of India  

popularly known as the Aadhar card scheme.  Under the said  

scheme, the Government of India collects and compiles both  

demographic and biometric data of the residents of this country  

to be used for various purposes.  One of the grounds of attack  

on the said scheme is that the very collection of such data is  

violative of the “Right to Privacy”.  After hearing the learned  

Attorney General, Shri Gopal Subramanium and Shri Shyam  

Divan, a 3-Judge Bench opined as follows:  

“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

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that precious and inalienable right under Article 21.  If the observations made in M.P. Sharma (supra)  and Kharak Singh (supra) are to be read literally  and accepted as the law of this country, the  fundamental rights guaranteed under the  Constitution of India and more particularly right to  liberty under Article 21 would be denuded of vigour  and vitality. At the same time, we are also of the  opinion that the institutional integrity and judicial  discipline require that pronouncement made by  larger Benches of this Court cannot be ignored by  the smaller Benches without appropriately  explaining the reasons for not following the  pronouncements made by such larger Benches.  With due respect to all the learned Judges who  rendered the subsequent judgments—where right to  privacy is asserted or referred to their Lordships  concern for the liberty of human beings, we are of  the 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 of  M.P. Sharma (supra) and Kharak Singh (supra) is  scrutinized and the jurisprudential correctness of the  subsequent decisions of this Court where the right  to privacy is either asserted or referred be examined  and authoritatively decided by a Bench of  appropriate strength.”       

2. The matter was heard by a Bench of 5 learned Judges on  

July 18, 2017, and was thereafter referred to 9 learned Judges  

in view of the fact that the judgment in M.P. Sharma and  

others v. Satish Chandra, District Magistrate, Delhi, and

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others, 1954 SCR 1077, was by a Bench of 8 learned Judges  

of this Court.   

 3. Learned senior counsel for the petitioners, Shri Gopal  

Subramanium, Shri Shyam Divan, Shri Arvind Datar, Shri Sajan   

Poovayya, Shri Anand Grover and Miss Meenakshi Arora, have  

argued that the judgments contained in M.P. Sharma (supra)  

and Kharak Singh v. State of U.P., (1964) 1 SCR 332, which  

was by a Bench of 6 learned Judges, should be overruled as  

they do not reflect the correct position in law.  In any case, both  

judgments have been overtaken by R.C. Cooper v. Union of  

India, (1970) 1 SCC 248, and Maneka Gandhi v. Union of  

India, (1978) 1 SCC 248, and therefore require a revisit at our  

end.  According to them, the right to privacy is very much a  

fundamental right which is co-terminus with the liberty and  

dignity of the individual.  According to them, this right is found in  

Articles 14, 19, 20, 21 and 25 when read with the Preamble of  

the Constitution. Further, it was also argued that several  

international covenants have stated that the right to privacy is  

fundamental to the development of the human personality and  

that these international covenants need to be read into the

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fundamental rights chapter of the Constitution.  Also, according  

to them, the right to privacy should be evolved on a case to  

case basis, and being a fundamental human right should only  

yield to State action if such State action is compelling,  

necessary and in public interest.  A large number of judgments  

were cited by all of them. They also invited this Court to  

pronounce upon the fact that the right to privacy is an  

inalienable natural right which is not conferred by the  

Constitution but only recognized as such.   

 4. Shri Kapil Sibal, learned senior counsel on behalf of the  

States of Karnataka, West Bengal, Punjab and Puducherry  

broadly supported the petitioners.  According to him, the 8-  

Judge Bench and the 6-Judge Bench decisions have ceased to  

be relevant in the context of the vastly changed circumstances  

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;  

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• 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 right and all aspects  

of privacy do not elevate themselves into being a fundamental  

right. If at all, the right to privacy can only be one amongst

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several varied rights falling under the umbrella of the right to  

personal liberty.  According to him, the right to life stands above  

the right to personal liberty, and any claim to privacy which  

would destroy or erode this basic foundational right can never  

be elevated to the status of a fundamental right.  He also  

argued that the right to privacy cannot be claimed when most of  

the aspects which are sought to be protected by such right are  

already in the public domain and the information in question  

has already been parted with by citizens.    

 7. Shri Tushar Mehta, learned Additional Solicitor General of  

India, appearing for UIDAI and the State of Madhya Pradesh,  

generally supported and adopted the arguments of the learned  

Attorney General.  According to him, privacy is an inherently  

vague and subjective concept and cannot, therefore, be  

accorded the status of a fundamental right.  Further, codified  

statutory law in India already confers protection to the  

individual’s right to privacy.  According to him, no further  

expansion of the rights contained in Part III of our Constitution  

is at all warranted.  Also, the position under English Law is that  

there is no common law right to privacy.  He cited before us

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examples of other countries in the world where privacy is  

protected by legislation and not by or under the Constitution.    

 8. Shri Aryama Sundaram, appearing for the State of  

Maharashtra, also supported the arguments made by the  

learned Attorney General.  According to him, there is no  

separate “privacy” right and violation of a fundamental right  

should directly be traceable to rights expressly protected by  

Part III of the Constitution.  Further, privacy is a vague and  

inchoate expression.  He also referred to the Constituent  

Assembly debates to buttress the same proposition that the  

right to privacy was expressly discountenanced by the framers  

of the Constitution.   He went on to state that “personal liberty”  

in Article 21 is liberty which is circumscribed – i.e. it relates only  

to the person of the individual and is smaller conceptually than  

“civil liberty”.  According to him, the ratio of Kharak Singh  

(supra) is that there is no fundamental right to privacy, but any  

fundamental right that is basic to ordered liberty would certainly  

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

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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 when individuals disclose certain personal  

information in order to avail a benefit that it could be said that  

they have no reasonable expectation of privacy as they have  

voluntarily and freely parted with such information. Also,

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according to him, it is only specialized data, if parted with,  

which would require protection.  As an example, he stated that  

a person’s name and mobile number, already being in the  

public domain, would not be reasonably expected by that  

person to be something private.  On the other hand, what is  

contained in that person’s bank account could perhaps be  

stated to be information over which he expects a reasonable  

expectation of privacy and would, if divulged by the bank to  

others, constitute an infraction of his fundamental right to  

privacy.  According to him:  

“…when a claim of privacy seeks inclusion in Article  21 of the Constitution of India, the Court needs to  apply the reasonable expectation of privacy test.  It  should see:–    (i) What is the context in which a privacy law is  

set up.    

(ii) Does the claim relate to private or family life,  or a confidential relationship.    

(iii) Is the claim serious one or is it trivial.    

(iv) Is the disclosure likely to result in any serious  or significant injury and the nature and the  extent of disclosure.  

 (v) Is disclosure for identification purpose or  

relates to personal and sensitive information  of an identified person.

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(vi) Does disclosure relate to information already  disclosed publicly to third parties or several  parties willingly and unconditionally. Is the  disclosure in the course of e commerce or  social media?  

 Assuming, that in a case that it is found that a claim  for privacy is protected by Article 21 of the  Constitution, the test should be following:-  

 (i) the infringement should be by legislation.  

 (ii) the legislation should be in public interest.  

 (iii) the legislation should be reasonable and have  

nexus with the public interest.    

(iv) the State would be entitled to adopt that  measure which would most efficiently achieve  the objective without being excessive.  

 (v) if apart from Article 21, the legislation infringes  

any other specified Fundamental Right then it  must stand the test in relation to that specified  Fundamental Right.  

 (vi) Presumption of validity would attach to the  

legislations.”      10. Shri A. Sengupta, appearing on behalf of the State of  

Haryana, has supported the arguments 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

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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) through R.C. Cooper  

(supra) and Maneka Gandhi (supra).  He further argued that  

being incapable of precise definition, privacy ought not to be

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elevated in all its aspects to the level of a fundamental right.   

According to him, the words “life” and “personal liberty” in  

Article 21 have already been widely interpreted to include many  

facets of what the petitioners refer to as privacy. Those facets  

which have statutory protection are not protected by Article 21.  

He also argued that we must never forget that when  

recognizing aspects of the right to privacy as a fundamental  

right, such aspects cannot be waived and this being the case, a  

privacy interest ought not to be raised to the level of a  

fundamental right. He also cautioned us against importing  

approaches from overseas out of context.  

 Early Views on Privacy    13. Any discussion with regard to a right of privacy of the  

individual must necessarily begin with Semayne’s case, 77 ER  

194. This case was decided in the year 1603, when there was a  

change of guard in England. The Tudor dynasty ended with the  

death of Elizabeth I, and the Stuart dynasty, a dynasty which  

hailed from Scotland took over under James VI of Scotland,

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who became James I of England.1  James I was an absolute  

monarch who ruled believing that he did so by Divine Right.   

Semayne’s case (supra) was decided in this historical setting.   

 14. The importance of Semayne’s case (supra) is that it  

decided that every man’s home is his castle and fortress for his  

defence against injury and violence, as well as for his repose.   

William Pitt, the Elder, put it thus: “The poorest man may in his  

cottage bid defiance to all the force of the Crown. It may be frail  

— its roof may shake — the wind may blow through it — the  

storm may enter, the rain may enter — but the King of England  

cannot enter — all his force dare not cross the threshold of the  

ruined tenement.” A century and a half later, pretty much the  

same thing was said in Huckle v. Money, 95 ER 768 (1763), in  

which it was held that Magistrates cannot exercise arbitrary  

powers which violated the Magna Carta (signed by King John,  

conceding certain rights to his barons in 1215), and if they did,  

exemplary damages must be given for the same.  It was stated  

                                                           1  It is interesting to note that from 1066 onwards, England has never been ruled by a native Anglo-Saxon.  The  

Norman French dynasty which gave way to the Plantagenet dynasty ruled from 1066-1485; the Welsh Tudor  

dynasty then ruled from 1485-1603 AD; the Stuart dynasty, a Scottish dynasty, then ruled from 1603; and barring a  

minor hiccup in the form of Oliver Cromwell, ruled up to 1714. From 1714 onwards, members of a German dynasty  

from Hanover have been monarchs of England and continue to be monarchs in England.  

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that, “To enter a man’s house by virtue of a nameless warrant,  

in order to procure evidence is worse than the Spanish  

Inquisition, a law under which no Englishman would 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.  

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16. When we cross the Atlantic Ocean and go to the United  

States, we find a very interesting article printed in the Harvard  

Law Review in 1890 by Samuel D. Warren and Louis D.  

Brandeis [(4 Harv. L. Rev. 193)]. The opening paragraph of the  

said article is worth quoting:  

“THAT the individual shall have full protection in  person and in property is a principle as old as the  common law; but it has been found necessary from  time to time to define anew the exact nature and  extent of such protection. Political, social, and  economic changes entail the recognition of new  rights, and the common law, in its eternal youth,  grows to meet the demands of society. Thus, in very  early times, the law gave a remedy only for physical  interference with life and property, for trespasses vi  et armis. Then the “right to life” served only to  protect the subject from battery in its various forms;  liberty meant freedom from actual restraint; and the  right to property secured to the individual his lands  and his cattle. Later, there came a recognition of  man’s spiritual nature, of his feelings and his  intellect. Gradually the scope of these legal rights  broadened; and now the right to life has come to  mean the right to enjoy life,— the right to be let  alone; the right to liberty secures the exercise of  extensive civil privileges; and the term “property”  has grown to comprise every form of possession—  intangible, as well as tangible.”       

17. This article is of great importance for the reason that it  

spoke of the right of the individual “to be let alone”.  It stated in  

unmistakable terms that this right is not grounded as a property

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right, but is grounded in having the right of an “inviolate  

personality”.  Limitations on this right were also discussed in  

some detail, and remedies for the invasion of this right of  

privacy were suggested, being an action of tort for damages in  

all cases and perhaps an injunction in some. The right of  

privacy as expounded in this article did not explore the  

ramifications of the said right as against State action, but only  

explored invasions of this right by private persons.   

 Three Great Dissents  

18. When the Constitution of India was framed, the  

fundamental rights chapter consisted of rights essentially of  

citizens and persons against the State.  Article 21, with which  

we are directly concerned, was couched in negative form in  

order to interdict State action that fell afoul of its contours.  This  

Article, which houses two great human rights, the right to life  

and the right to personal liberty, was construed rather narrowly  

by the early Supreme Court of 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.  

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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 institutional  impact of the Court and handicap it in the doing of  its fundamental job.  Dissents …. need to be saved  for major matters if the Court is not to appear  indecisive and quarrelsome….. To have discarded  some of his separate opinions is a supreme  example of Brandeis’s sacrifice to the strength and  consistency of the Court.  And he had his reward:  

                                                           2  See, E. Gaffney Jr., “The Importance of Dissent and the Imperative of Judicial Civility” (1994) 28 Val. U.L. Rev 583.

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his shots were all the harder because he chose his  ground.”3      

21. Whichever way one looks at it, the foresight of Fazl Ali, J.  

in A.K. Gopalan v. State of Madras, 1950 SCR 88, simply  

takes our breath away. The subject matter of challenge in the  

said case was the validity of certain provisions of the Preventive  

Detention Act of 1950.  In a judgment which anticipated the  

changes made in our constitutional law twenty years later, this  

great Judge said:  

“To my mind, the scheme of the Chapter dealing  with the fundamental rights does not contemplate  what is attributed to it, namely, that each article is a  code by itself and is independent of the others. In  my opinion, it cannot be said that articles 19, 20, 21  and 22 do not to some extent overlap each other.  The case of a person who is convicted of an offence  will come under articles 20 and 21 and also under  article 22 so far as his arrest and detention in  custody before trial are concerned. Preventive  detention, which is dealt with in article 22, also  amounts to deprivation of personal liberty which is  referred to in article 21, and is a violation of the right  of freedom of movement dealt with in article  19(1)(d). That there are other instances of  overlapping of articles in the Constitution may be  illustrated by reference to article 19(1)(f) and article  31 both of which deal with the right to property and  to some extent overlap each other.”  

(at page 148)  

                                                           3  John P. Frank, Book Review, 10 J. Legal Education 401, 404 (1958).

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 He went on thereafter to hold that the fact that “due process”  

was not actually used in Article 21 would be of no moment.  He  

said:  

“It will not be out of place to state here in a few  words how the Japanese Constitution came into  existence. It appears that on the 11th October,  1945, General McArthur directed the Japanese  Cabinet to initiate measures for the preparation of  the Japanese Constitution, but, as no progress was  made, it was decided in February, 1946, that the  problem of constitutional reform should be taken  over by the Government Section of the Supreme  Commander’s Headquarters. Subsequently the  Chief 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).

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Now there are two matters which deserve to be  noticed:- (1) that the Japanese Constitution was  framed wholly under American influence; and (2)  that at the time it was framed the trend of judicial  opinion in America was in favour of confining the  meaning of the expression “due process of law” to  what is expressed by certain American writers by  the somewhat quaint but useful expression  “procedural due process.” That there was such a  trend would be clear from the following passage  which I quote from Carl Brent Swisher’s “The  Growth of Constitutional Power in the United States”  (page 107):-  

“The American history of its  interpretation falls into three periods.  During the first period, covering roughly  the first century of government under  the Constitution, due process was  interpreted principally as a restriction  upon procedure—and largely the judicial  procedure—by which the government  exercised its powers. During the second  period, which, again roughly speaking,  extended through 1936, due process  was expanded to serve as a restriction  not merely upon procedure but upon the  substance of the activities in which the  government might engage. During the  third period, extending from 1936 to  date, the use of due process as a  substantive restriction has been largely  suspended or abandoned, leaving it  principally in its original status as a  restriction upon procedure.”  

In the circumstances mentioned, it seems  permissible to surmise that the expression  “procedure established by law” as used in the  Japanese Constitution represented the current trend

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of American judicial opinion with regard to “due  process of law,” and, if that is so, the expression as  used in our Constitution means all that the  American writers have read into the words  “procedural due process.” But I do not wish to base  any conclusions upon mere surmise and will try to  examine the whole question on its merits.  

The word “law” may be used in an abstract or  concrete sense. Sometimes it is preceded by an  article such as “a” or “the” or by such words as  “any,” “all,” etc., and sometimes it is used without  any such prefix. But, generally, the word “law” has a  wider meaning when used in the abstract sense  without being preceded by an article. The question  to be decided is whether the word “law” means  nothing more than statute law.    Now whatever may be the meaning of the  expression “due process of law,” the word “law” is  common to that expression as well as “procedure  established by law” and though 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

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this Court to realize how correct he was, and in R.C. Cooper  

(supra), an 11-Judge Bench of this Court, agreeing with Fazl  

Ali, J., finally held:  

“52. In dealing with the argument that Article  31(2) is a complete code relating to infringement of  the right to property by compulsory acquisition, and  the validity of the law is not liable to be tested in the  light of the reasonableness of the restrictions  imposed thereby, it is necessary to bear in mind the  enunciation of the guarantee of fundamental rights  which has taken different forms. In some cases it is  an express declaration of a guaranteed right:  Articles 29(1), 30(1), 26, 25 & 32; in others to  ensure protection of individual rights they take  specific forms of restrictions on State action— legislative or executive—Articles 14, 15, 16, 20, 21,  22(1), 27 and 28; in some others, it takes the form  of a positive declaration and simultaneously  enunciates the restriction thereon: Articles 19(1)  and 19(2) to (6); in some cases, it arises as an  implication from the delimitation of the authority of  the State, e.g., Articles 31(1) and 31(2); in still  others, it takes the form of a general prohibition  against the State as well as others: Articles 17, 23  and 24. The enunciation of rights either express or  by implication does not follow a uniform pattern. But  one thread runs through them: they seek to protect  the rights of the individual or groups of individuals  against infringement of those rights within specific  limits. Part III of the Constitution weaves a pattern of  guarantees on the texture of basic human rights.  The guarantees delimit the protection of those rights  in their allotted fields: they do not attempt to  enunciate distinct rights.     53.  We are therefore unable to hold that the  challenge to the validity of the provision for

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acquisition is liable to be tested only on the ground  of non-compliance with Article 31(2). Article 31(2)  requires that property must be acquired for a public  purpose and that it must be acquired under a law  with characteristics set out in that Article. Formal  compliance with the conditions under Article 31(2) is  not sufficient to negative the protection of the  guarantee of the right to property. Acquisition must  be under the authority of a law and the expression  “law” means a law which is within the competence  of the Legislature, and does not impair the  guarantee of the rights in Part III. We are unable,  therefore, to agree that Articles 19(1)(f) and 31(2)  are mutually exclusive.”4  

(at page 289)    

22. Insofar as the other part of Fazl Ali, J.’s judgment is  

concerned, that “due process” was an elastic enough  

expression to comprehend substantive due process, a recent  

judgment in Mohd. Arif v. Registrar, Supreme Court of India  

& Ors., (2014) 9 SCC 737, by a Constitution Bench of this  

Court, has held:-  

“27. The stage was now set for the judgment in  Maneka Gandhi (1978) 1 SCC 248.  Several  judgments were delivered, and the upshot of all of  

                                                           4  Shri Gopal Sankaranarayanan has argued that the statement contained in R.C. Cooper (supra) that 5 out of 6  

learned Judges had held in Gopalan (supra) that Article 22 was a complete code and was to be read as such, is  

incorrect.  He referred to various extracts from the judgments in Gopalan (supra) to demonstrate that this was, in  

fact, incorrect as Article 21 was read together with Article 22.  While Shri Gopal Sankaranarayanan may be correct,  

it is important to note that at least insofar as Article 19 was concerned, none of the judgments except that of Fazl  

Ali, J. were prepared to read Articles 19 and 21 together. Therefore, on balance, it is important to note that R.C.  

Cooper (supra) cleared the air to state that none of the fundamental rights can be construed as being mutually  

exclusive.  

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them was that Article 21 was to be read along with  other fundamental 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 procedural safeguard  save such as a legislature’s mood  chooses.”    

28. Close on the heels of Maneka Gandhi case  came Mithu vs. State of Punjab, (1983) 2 SCC 277,  in which case the Court noted as follows: (SCC pp.  283-84, para 6)

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“6…In Sunil Batra v. Delhi  Administration, (1978) 4 SCC 494, while  dealing with the question as to whether  a person awaiting death sentence can  be kept in solitary confinement, Krishna  Iyer J. said that though our Constitution  did not have a “due process” clause as  in the American Constitution; the same  consequence ensued after the decisions  in the Bank Nationalisation case (1970)  1 SCC 248, and Maneka Gandhi case  (1978) 1 SCC 248.…     In Bachan Singh (Bachan Singh v. State  of Punjab, (1980) 2 SCC 684) which  upheld the constitutional validity of the  death penalty, Sarkaria J., speaking for  the majority, said that if Article 21 is  understood in accordance with the  interpretation put upon it in Maneka  Gandhi, it will read to say that: (SCC  p.730, para 136)    

“136. No person shall be deprived  of his life or personal liberty except  according to fair, just and  reasonable procedure established  by valid law.”   

 The wheel has turned full circle. Substantive due  process is now to be applied to the fundamental  right to life and liberty.”5  

                                                           5  Shri Rakesh Dwivedi has argued before us that in Maneka Gandhi (supra), Chandrachud, J. had, in paragraph 55  

of the judgment, clearly stated that substantive due process is no part of the Constitution of India.  He further  

argued that Krishna Iyer, J.’s statement in Sunil Batra (supra) that a due process clause as contained in the U.S.  

Constitution is now to be read into Article 21, is a standalone statement of the law and that “substantive due  

process” is an expression which brings in its wake concepts which do not fit into the Constitution of India. It is not  

possible to accept this contention for the reason that in the Constitution Bench decision in Mithu (supra),  

Chandrachud, C.J., did not refer to his concurring judgment in Maneka Gandhi (supra), but instead referred, with  

approval, to Krishna Iyer, J.’s statement of the law in paragraph 6.  It is this statement that is reproduced in  

paragraph 28 of Mohd. Arif (supra).  Also, “substantive due process” in our context only means that a law can be

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(at pages 755-756)      

23. The second great dissent, which is of Subba Rao, J., in  

Kharak Singh (supra), has a direct bearing on the question to  

be decided by us.6  In this judgment, Regulation 237 of the U.P.  

Police Regulations was challenged as violating fundamental  

                                                                                                                                                                                           

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 identical, for it has to be borne in mind that the Constitution framers  

deliberately avoided in this context the use of the expression ‘due process’ with its  

comprehensiveness, flexibility and attendant vagueness, in favour of a somewhat more definite  

word “reasonable”, and caution has, therefore, to be exercised before the literal application of  

American decisions.”  

Mathew, J. in Kesavananda Bharati v. State of Kerala, (1973) Supp. SCR 1 at 824, 825 and 826 commented on this  

particular passage thus:   

“When a court adjudges that a legislation is bad on the ground that it is an unreasonable  

restriction, it is drawing the elusive ingredients for its conclusion from several sources. In fact,  

you measure the reasonableness of a restriction imposed by law by indulging in an authentic bit  

of special legislation [See Learned Hand, Bill of Rights, p. 26]. “The words ‘reason’ and  

‘reasonable’ denote for the common law lawyer ideas which the ‘Civilians’ and the ‘Canonists’  

put under the head of the ‘law of nature’…”  

 

“…The limitations in Article 19 of the Constitution open the doors to judicial review of legislation  

in India in much the same manner as the doctrine of police power and its companion, the due  

process clause, have done in the United States. The restrictions that might be imposed by the  

Legislature to ensure the public interest must be reasonable and, therefore, the Court will have  

to apply the yardstick of reason in adjudging the reasonableness. If you examine the cases  

relating to the imposition of reasonable restrictions by a law, it will be found that all of them  

adopt a standard which the American Supreme Court has adopted in adjudging reasonableness  

of a legislation under the due process clause..”  

 

“…In the light of what I have said, I am unable to understand how the word ‘reasonable’ is more  

definite than the words ‘due process’…"  

    6  Chief Justice S.R. Das in his farewell speech had this to say about Subba Rao, J., “Then we have brother Subba  

Rao, who is extremely unhappy because all our fundamental rights are going to the dogs on account of some ill-

conceived judgments of his colleagues which require reconsideration.”   

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rights under Article 19(1)(d) and Article 21. The Regulation  

reads as follows:-  

“Without prejudice to the right of Superintendents of  Police to put into practice any legal measures, such  as shadowing in cities, by which they find they can  keep in touch with suspects in particular localities or  special circumstances, surveillance may for most  practical purposes be defined as consisting of one  or more of the following measures:-  

(a) Secret picketing of the house or approaches to  the house of suspects;  

(b) domiciliary visits at night;  

(c) through periodical inquiries by officers not below  the rank of Sub-Inspector into repute, habits,  associations, income, expenses and occupation;  

(d) the reporting by constables and chaukidars of  movements and absences from home;  

(e) the verification of movements and absences by  means of inquiry slips;  

(f) 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

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country sanctifies domestic life; it is expected to  give him rest, physical happiness, peace of mind  and security. In the last resort, a person’s house,  where he lives with his family, is his “castle”: it is his  rampart against encroachment on his personal  liberty. The pregnant words of that famous Judge,  Frankfurter J., in Wolf v. Colorado (1949) 338 U.S.  25, pointing out the importance of the security of  one’s privacy against arbitrary intrusion by the  police, could have no less application to an Indian  home as to an American one. If physical restraints  on a person’s movements affect his personal liberty,  physical encroachments on his private life would  affect it in a larger degree. Indeed, nothing is more  deleterious to a man’s physical happiness and  health than a calculated interference with his  privacy. We would, therefore, define the right of  personal liberty in Article 21 as a right of an  individual to be free from restrictions or  encroachments on his person, whether those  restrictions or encroachments are directly imposed  or indirectly brought about by calculated measures.  If so understood, all the acts of surveillance under  Regulation 236 infringe the fundamental right of the  petitioner under Article 21 of the Constitution.”  

(at page 359)      The 8 Judge Bench Decision in M.P. Sharma and the 6  Judge Bench Decision in Kharak Singh  

 25. This takes us to the correctness of the aforesaid view,  

firstly in light of the decision of the 8-Judge Bench in M.P.  

Sharma (supra).  The facts of that case disclose that certain  

searches were made as a result of which a voluminous mass of  

records was seized from various places. The petitioners prayed

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that the search warrants which allowed such searches and  

seizures to take place be quashed, based on an argument  

founded on Article 20(3) of the Constitution which says that no  

person accused of any offence shall be compelled to be a  

witness against himself. The argument which was turned down  

by the Court was that since this kind of search would lead to the  

discovery of several incriminating documents, a person  

accused of an offence would be compelled to be a witness  

against himself as such documents would incriminate him.  This  

argument was turned down with reference to the law of  

testimonial compulsion in the U.S., the U.K. and in this country.     

While dealing with the argument, this Court noticed that there is  

nothing in our Constitution corresponding to the Fourth     

Amendment of the U.S. Constitution, which interdicts  

unreasonable searches and seizures. In so holding, this Court  

then observed:  

“It is, therefore, clear that there is no basis in the  Indian law for the assumption that a search or  seizure of a thing or document is in itself to be  treated as compelled production of the same.  Indeed a little consideration will show that the two  are essentially different matters for the purpose  relevant to the present discussion. A notice to  produce is addressed to the party concerned and

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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 into the Indian  

equivalent of that part of the Fifth Amendment which is the  

same as Article 20(3) of the Constitution of India.  Also, the  

fundamental right to privacy, stated to be analogous to the  

Fourth Amendment, was held to be something which could not  

be read into Article 20(3).  

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 27. The second interesting thing to be noted about these  

observations is that there is no broad ratio in the said judgment  

that a fundamental right to privacy is not available in Part III of  

the Constitution.  The observation is confined to Article 20(3).   

Further, it is clear that the actual finding in the aforesaid case  

had to do with the law which had developed in this Court as  

well as the U.S. and the U.K. on Article 20(3) which, on the  

facts of the case, was held not to be violated.  Also we must not  

forget that this was an early judgment of the Court, delivered in  

the Gopalan (supra) era, which did not have the benefit of R.C.  

Cooper (supra) or Maneka Gandhi (supra).  Quite apart from  

this, it is clear that by the time this judgment was delivered,  

India was already a signatory to the Universal Declaration of  

Human Rights, Article 12 of which states:  

“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.”  

  

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28. It has always been the law of this Court that international  

treaties must be respected. Our Constitution contains Directive  

Principle 51(c), which reads as under:  

“51. The State shall endeavour to—   

(a) & (b) xxx xxx xxx  

(c) foster respect for international law and treaty  obligations in the dealings of organized peoples with  one another;”   

In order that legislation be effected to implement an  

international treaty, Article 253 removes legislative competence  

from all the States and entrusts only the Parliament with such  

legislation.  Article 253 reads as follows:  

“253. Legislation for giving effect to international  agreements. - Notwithstanding anything in the  foregoing provisions of this Chapter, Parliament has  power to make any law for the whole or any part of  the territory of India for implementing any treaty,  agreement or convention with any other country or  countries or any decision made at any international  conference, association or other body.”  

  We were shown judgments of the highest 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:

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“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 Mullin v.  

Administrator, Union Territory of Delhi & Ors., (1981) 1 SCC  

608 at paragraph 8, Vishaka & Ors. v. State of Rajasthan &  

Ors., (1997) 6 SCC 241 at paragraph 7 and National Legal  

Services Authority v. Union of India, (2014) 5 SCC 438 at

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paragraphs 51-60). This last judgment is instructive in that it  

refers to international treaties and covenants, the Constitution,  

and various earlier judgments.  The conclusion in paragraph 60  

is as follows:  

“The principles discussed hereinbefore on TGs and  the international conventions, including Yogyakarta  Principles, which we have found not inconsistent  with the various fundamental rights guaranteed  under the Indian Constitution, must be recognized  and followed, which has sufficient legal and  historical justification in our country.”  

(at page 487)    30. In fact, the Protection of Human Rights Act, 1993, makes  

interesting reading in this context.   

Section 2(1)(d) and (f) are important, and read as follows:  

“2. Definitions. – (1) In this Act, unless the context  otherwise requires, -   (a) xxx xxx xxx  (b) xxx xxx xxx  (c) xxx xxx xxx  (d) “human rights” means the rights relating to  life, liberty, equality and dignity of the individual  guaranteed by the Constitution or embodied in the  International Covenants and enforceable by courts  in India;  (e) xxx xxx xxx  (f) “International Covenants” means 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 and such other Covenant or

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Convention adopted by the General Assembly of  the United Nations as the Central Government may,  by notification, specify;”    

31. In terms of Section 12(f), one important function of the  

National Human Rights Commission is to study treaties and  

other international instruments on human rights and make  

recommendations for their effective implementation.  In a recent  

judgment delivered by Lokur, J. in Extra Judl. Exec. Victim  

Families Association & Anr. v. Union of India & Ors. in  

W.P.(Crl.) No.129 of 2012 decided on July 14, 2017, this Court  

highlighted the Protection of Human Rights Act, 1993 as  

follows:-  

“29. Keeping this in mind, as well as the Universal  Declaration of Human Rights, Parliament enacted  the Protection of Human Rights Act, 1993. The  Statement of Objects and Reasons for the  Protection 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

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aforesaid covenants stand substantially  protected by the Constitution.   

2. However, there has been growing  concern in the country and abroad about  issues relating to human rights. Having  regard to this, changing social realities  and the emerging trends in the nature of  crime and violence, Government has  been reviewing the existing laws,  procedures and systems of  administration of justice; with a view to  bringing about greater accountability  and transparency in them, and devising  efficient and effective methods of  dealing with the situation.   

3. Wide ranging discussions were held  at various fora such as the Chief  Ministers’ Conference on Human Rights,  seminars organized in various parts of  the country and meetings with leaders of  various political parties. Taking into  account the views expressed in these  discussions, the present Bill is brought  before Parliament.”   

 30. Under the provisions of the Protection of Human  Rights Act, 1993 the NHRC has been constituted as  a high-powered statutory body whose Chairperson  is and always has been a retired Chief Justice of  India. Amongst others, a retired judge of the  Supreme Court and a retired Chief Justice of a High  Court is and has always been a member of the  NHRC.     31. In Ram Deo Chauhan v. Bani Kanta Das ((2010)  14 SCC 209), this Court recognized that the words  ‘human rights’ though not defined in the Universal  Declaration of Human Rights have been defined in  the Protection of Human Rights Act, 1993 in very

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broad terms and that these human rights are  enforceable by courts in India. This is what this  Court had to say in this regard in paragraphs 47-49  of the Report:     

“Human rights are the basic, inherent,  immutable and inalienable rights to  which a person is entitled simply by  virtue of his being born a human. They  are such rights which are to be made  available as a matter of right. The  Constitution and legislations of a  civilised country recognise them since  they are so quintessentially part of every  human being. That is why every  democratic country committed to the  rule of law put into force mechanisms for  their enforcement and protection.     Human rights are universal in nature.  The Universal Declaration of Human  Rights (hereinafter referred to as UDHR)  adopted by the General Assembly of the  United Nations on 10-12-1948  recognises and requires the observance  of certain universal rights, articulated  therein, to be human rights, and these  are acknowledged and accepted as  equal and inalienable and necessary for  the inherent dignity and development of  an individual. Consequently, though the  term “human rights” itself has not been  defined in UDHR, the nature and  content of human rights can be  understood from the rights enunciated  therein.     Possibly considering the wide sweep of  such basic rights, the definition of  “human rights” in the 1993 Act has been

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designedly kept very broad to  encompass within it all the rights relating  to life, liberty, equality and dignity of the  individual guaranteed by the  Constitution or embodied in the  International Covenants and  enforceable 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…..”  

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33. Ignoring Article 12 of the 1948 Declaration would by itself  

sound the death knell to the observations on the fundamental  

right of privacy contained in M.P. Sharma (supra).    

 

34. It is interesting to note that, in at least three later  

judgments, this judgment was referred to only in passing in:   

(1) Sharda v. Dharmpal, (2003) 4 SCC 493 at 513-514:  

“54. The right to privacy has been developed by the  Supreme Court over a period of time. A bench of  eight judges in M.P. Sharma v. Satish Chandra (AIR  1954 SC 300), AIR at pp. 306-07, para 18, in the  context of search and seizure observed that:  

“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.”  

55. Similarly in Kharak Singh v. State of U.P. (AIR  1963 SC 1295), the majority judgment observed  thus: (AIR p. 1303, para 20)  

“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

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fundamental right guaranteed by Part  III.”  

56. With the expansive interpretation of the phrase  “personal liberty”, this right has been read into  Article 21 of the Indian Constitution. (See R.  Rajagopal v. State of T.N., (1994) 6 SCC 632 and  People’s Union for Civil Liberties v. Union of India,  (1997) 1 SCC 301). In some cases the right has  been held to amalgam of various rights.”  

 (2) District Registrar and Collector, Hyderabad & Anr. v.  

Canara Bank etc., (2005) 1 SCC 496 at 516, where this Court  

held:  

“35. The earliest case in India to deal with “privacy”  and “search and seizure” was M.P. Sharma v.  Satish Chandra (1954 SCR 1077) in the context of  Article 19(1)(f) and Article 20(3) of the Constitution  of India. The contention that search and seizure  violated Article 19(1)(f) was rejected, the Court  holding that a mere search by itself did not affect  any right to property, and though seizure affected it,  such effect was only temporary and was a  reasonable restriction on the right. The question  whether search warrants for the seizure of  documents from the accused were unconstitutional  was not gone into. The Court, after referring to the  American authorities, observed that in the US,  because of the language in 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

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was developed in later cases by spelling it out from  the right to freedom of speech and expression in  Article  19(1)(a) and the right to “life” in Article 21.”      

And (3) Selvi v. State of Karnataka, (2010) 7 SCC 263 at 363,  

this Court held as follows:-  

“205. In M.P. Sharma (M.P. Sharma v. Satish  Chandra, AIR 1954 SC 300: 1954 SCC 1077), it  had been noted that the Indian Constitution did not  explicitly include a “right to privacy” in a manner  akin to the Fourth Amendment of the US  Constitution.  In that case, this distinction was one  of the reasons for upholding the validity of search  warrants issued for documents required to  investigate charges of misappropriation and  embezzlement.”      

35. It will be seen that different smaller Benches of this court  

were not unduly perturbed by the observations contained in  

M.P. Sharma (supra) as it was an early judgment of this Court  

delivered in the Gopalan (supra) era which had been eroded by  

later judgments dealing with the inter-relation between  

fundamental rights and the development of the fundamental  

right of privacy as being part of the liberty and dignity of the  

individual.   

 36. Therefore, given the fact that this judgment dealt only with  

Article 20(3) and not with other fundamental rights; given the

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fact that the 1948 Universal Declaration of Human Rights  

containing the right to privacy was not pointed out to the Court;  

given the fact that it was delivered in an era when fundamental  

rights had to be read disjunctively in watertight compartments;  

and given the fact that Article 21 as we know it today only  

sprung into life in the post Maneka Gandhi (supra) era, we are  

of the view that this judgment is completely out of harm’s way  

insofar as the grounding of the right to privacy in the  

fundamental rights chapter is concerned.   

 37. We now come to the majority judgment of 4 learned  

Judges in Kharak Singh (supra). When examining sub-clause  

(b) of Regulation 236, which endorsed domiciliary visits at night,  

even the majority had no hesitation in striking down the  

aforesaid provision.  This Court said that “life” used in Article 21  

must mean something more than mere animal existence and  

“liberty” something more than mere freedom from physical  

restraint.  This was after quoting the judgment of Field, J. in  

Munn v. Illinois, 94 U.S. 113 (1876).  The majority judgment,  

after quoting from Gopalan (supra), then went on to hold that  

Article 19(1) and Article 21 are to be read separately, and so

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read held that Article 19(1) deals with particular species or  

attributes of personal liberty, whereas Article 21 takes in and  

comprises the residue.7  

 38. This part of the judgment has been expressly overruled  

by R.C. Cooper (supra) as recognized by Bhagwati, J. in  

Maneka Gandhi (supra):  

“5. It is obvious that Article 21, though couched in  negative language, confers the fundamental right to  life and personal liberty. So far as the right to  personal liberty is concerned, it is ensured by  providing that no one shall be deprived of personal  liberty except according to procedure prescribed by  law. The first question that arises for consideration  on the language of Article 21 is: what is the  meaning and content of the words ‘personal liberty’  as used in this 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  

                                                           7  This view of the law is obviously incorrect.  If the Preamble to the Constitution of India is to be a guide as to the  

meaning of the expression “liberty” in Article 21, liberty of thought and expression would fall in Article 19(1)(a) and  

Article 21 and belief, faith and worship in Article 25 and Article 21.  Obviously, “liberty” in Article 21 is not confined  

to these expressions, but certainly subsumes them.  It is thus clear that when Article 21 speaks of “liberty”, it is,  

atleast, to be read together with Articles 19(1)(a) and 25.

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Articles 19 and 21. It was in Kharak Singh v. State  of U.P. (AIR 1963 SC 1295: (1964) 1 SCR 332:  (1963) 2 Cri LJ 329) that the question as to the  proper scope and meaning of the expression  ‘personal liberty’ came up pointedly for  consideration for the first time before this Court. The  majority of the Judges took the view “that ‘personal  liberty’ is used in the article as a compendious term  to include within itself all the varieties of rights which  go to make up the ‘personal liberties’ of man other  than those dealt with in the several clauses of  Article 19(1). In other words, while Article 19(1)  deals with particular species or attributes of that  freedom, ‘personal liberty’ in Article 21 takes in and  comprises the residue”. 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's  fundamental right under Article 21 is infringed, the  State can rely upon a law to sustain the action, but  that cannot be a complete answer unless the said  law satisfies the test laid down in Article 19(2) so far  as the attributes covered by Article 19(1) are  concerned.” There can be no doubt that in view of  the decision of this Court in R.C. Cooper v. Union of  India [(1970) 2 SCC 298: (1971) 1 SCR 512] the  minority view must be regarded as correct and the  majority view must be held to have been overruled.”   

(at pages 278-279)

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39. The majority judgment in Kharak Singh (supra) then  

went on to refer to the Preamble to the Constitution, and stated  

that Article 21 contained the cherished human value of dignity  

of the individual as the means of ensuring his full development  

and evolution. A passage was then quoted from Wolf v.  

Colorado, 338 U.S. 25 (1949) to the effect that the security of  

one’s privacy against arbitrary intrusion by the police is basic to  

a free society.  The Court then went on to quote the U.S. Fourth  

Amendment which guarantees the rights of the people to be  

secured in their persons, houses, papers and effects against  

unreasonable searches and seizures. Though the Indian  

Constitution did not expressly confer a like guarantee, the  

majority held that nonetheless an unauthorized intrusion into a  

person’s home would violate the English Common Law maxim  

which asserts that every man’s house is his castle.  In this view  

of Article 21, Regulation 236(b) was struck down.  

 40. However, while upholding sub-clauses (c), (d) and (e) of  

Regulation 236, the Court stated (at page 351):

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“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  

SCC 301 at paragraph 14; Mr. ‘X’ v. Hospital ‘Z’, (1998) 8  

SCC 296 at paragraphs 21 and 22; District Registrar and

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Collector, Hyderabad & Anr. v. Canara Bank, etc., (2005) 1  

SCC 496 at paragraph 36; and Thalappalam Service Co-

operative Bank Limited & Ors. v. State of Kerala & Ors.,  

(2013) 16 SCC 82 at paragraph 57).   

 42. If the passage in the judgment dealing with domiciliary  

visits at night and striking it down is contrasted with the later  

passage upholding the other clauses of Regulation 236  

extracted above, it becomes clear that it cannot be said with  

any degree of clarity that the majority judgment upholds the  

right to privacy as being contained in the fundamental rights  

chapter or otherwise.  As the majority judgment contradicts  

itself on this vital aspect, it would be correct to say that it cannot  

be given much value as a binding precedent.  In any case, we  

are of the view that the majority judgment is good law when it  

speaks of Article 21 being designed to assure the dignity of the  

individual as a most cherished human value which ensures the  

means of full development and evolution of a human being.   

The majority judgment is also correct in pointing out that Article  

21 interdicts unauthorized intrusion into a person’s home.   

Where the majority judgment goes wrong is in holding that

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fundamental rights are in watertight compartments and in  

holding that the right of privacy is not a guaranteed right under  

our Constitution.  It can be seen, therefore, that the majority  

judgment is like the proverbial curate’s egg – good only in parts.   

Strangely enough when the good parts alone are seen, there is  

no real difference between Subba Rao, J.’s approach in the  

dissenting judgment and the majority judgment.  This then  

answers the major part of the reference to this 9-Judge Bench  

in that we hereby declare that neither the 8-Judge nor the 6-

Judge Bench can be read to come in the way of reading the  

fundamental right to privacy into Part III of the Constitution.   

 43. However, the learned Attorney General has argued in  

support of the 8-Judge Bench and the 6-Judge Bench, stating  

that the framers of the Constitution expressly rejected the right  

to privacy being made part of the fundament rights chapter of  

the Constitution.  While he may be right, Constituent Assembly  

debates make interesting reading only to show us what exactly  

the framers had in mind when they framed the Constitution of  

India.  As will be pointed out later in this judgment, our  

judgments expressly recognize that the Constitution governs

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the lives of 125 crore citizens of this country and must be  

interpreted to respond to the changing needs of society at  

different points in time.    

 44. The phrase “due process” was distinctly avoided by the  

framers of the Constitution and replaced by the colourless  

expression “procedure established by law”.  Despite this, owing  

to changed circumstances, Maneka Gandhi (supra) in 1978,  

followed by a number of judgments, have read what was  

expressly rejected by the framers into Article 21, so that by the  

time of Mohd. Arif (supra), this Court, at paragraph 28, was  

able to say that the wheel has turned full circle and substantive  

due process is now part and parcel of Article 21.  Given the  

technological revolution of the later part of the 20th century and  

the completely altered lives that almost every citizen of this  

country leads, thanks to this revolution, the right to privacy has  

to be judged in today’s context and not yesterday’s.  This  

argument, therefore, need not detain us.  

 45. The learned Attorney General then argued that between  

the right to life and the right to personal liberty, the former has

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primacy and any claim to privacy which would destroy or erode  

this basic foundational right can never be elevated to the status  

of a fundamental right.  Elaborating further, he stated that in a  

developing country where millions of people are denied the  

basic necessities of life and do not even have shelter, food,  

clothing or jobs, no claim to a right to privacy as a fundamental  

right would lie.  First and foremost, we do not find any conflict  

between the right to life and the right to personal liberty.  Both  

rights are natural and inalienable rights of every human being  

and are required in order to develop his/her personality to the  

fullest.  Indeed, the right to life and the right to personal liberty  

go hand-in-hand, with the right to personal liberty being an  

extension of the right to life.  A large number of poor people that  

Shri Venugopal talks about are persons who in today’s  

completely different and changed world have cell phones, and  

would come forward to press the fundamental right of privacy,  

both against the Government and against other private  

individuals.  We see no antipathy whatsoever between the rich  

and the poor in this context.  It seems to us that this argument  

is made through the prism of the Aadhar (Targeted Delivery of

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Financial and other Subsidies, Benefits and Services) Act,  

2016, by which the Aadhar card is the means to see that  

various beneficial schemes of the Government filter down to  

persons for whom such schemes are intended.  This 9-Judge  

Bench has not been constituted to look into the constitutional  

validity of the Aadhar Act, but it has been constituted to  

consider a much larger question, namely, that the right of  

privacy would be found, inter alia, in Article 21 in both “life” and  

“personal liberty” by rich and poor alike primarily against State  

action.  This argument again does not impress us and is  

rejected.  

 46. Both the learned Attorney General and Shri Sundaram  

next argued that the right to privacy is so vague and amorphous  

a concept that it cannot be held to be a fundamental right.  This  

again need not detain us.  Mere absence of a definition which  

would encompass the many contours of the right to privacy  

need not deter us from recognizing privacy interests when we  

see them.  As this judgment will presently show, these interests  

are broadly classified into interests pertaining to the physical  

realm and interests pertaining to the mind.  As case law, both in

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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  to another had thereby lost his privacy rights. Prof.

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Tribe states in his treatise (see p. 1391) that this  theory reveals “alarming tendencies” because the  Court has gone back to the old theory that privacy is  in relation to property while it has laid down that the  right is one attached to the person rather than to  property. If the right is to be held to be not attached  to the person, then “we would not shield our  account balances, income figures and personal  telephone and address books from the public eye,  but might instead go about with the information  written on our ‘foreheads or our bumper stickers’.”  He observes that the majority in Miller, 425 US 435  (1976), confused “privacy” with “secrecy” and that  “even their notion of secrecy is a strange one, for  a secret remains a secret even when shared with  those whom one selects for one's confidence”. Our  cheques are not merely negotiable instruments but  yet the world can learn a vast amount about us by  knowing how and with whom we have spent our  money. Same is the position when we use the  telephone or post a letter. To say that one assumes  great risks by opening a bank account appeared to  be a wrong conclusion. Prof. Tribe asks a very  pertinent question (p. 1392):    

“Yet one can hardly be said to  have assumed a risk of surveillance in a  context where, as a practical matter,  one had no choice. Only the most  committed — and perhaps civilly  committable — hermit can live without  a telephone, without a bank account,  without mail. To say that one must take  a bitter pill with the sweet when one  licks a stamp is to exact a high  constitutional price indeed for living in  contemporary society.”    

He concludes (p. 1400):   

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“In our information-dense technological  era, when living inevitably entails  leaving not just informational footprints  but parts of one's self in myriad  directories, files, records and  computers, to hold that the Fourteenth  Amendment did not reserve to  individuals some power to say when and  how and by whom that information and  those confidences were to be used,  would be to denigrate the central role  that informational autonomy must play in  any developed concept of the self.”  

 (ii) Prof. Yale Kamisar (again quoted by Prof.  

Tribe) (p. 1392) says:    

“It is beginning to look as if the only way  someone living in our society can avoid  ‘assuming the risk’ that various  intermediate institutions will reveal  information 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

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after Miller, 425 US 435 (1976), Congress enacted  the Right to Financial Privacy Act, 1978 (Public Law  No. 95-630) 12 USC with Sections 3401 to 3422).  The statute accords customers of banks or similar  financial institutions, certain rights to be notified of  and a right to challenge the actions of Government  in court at an anterior stage before disclosure is  made. Section 3401 of the Act contains “definitions”.  Section 3402 is important, and it says that “except  as provided by Section 3403(c) or (d), 3413 or  3414, no government authority may have access to  or obtain copies of, or the information contained in  the financial records of any customer from a  financial institution unless the financial records are  reasonably described and that (1) such customer  has authorised such disclosure in accordance with  Section 3404; (2) such records are disclosed in  response to (a) administrative subpoenas or  summons to meet requirement of Section 3405; (b)  the requirements of a search warrant which meets  the requirements of Section 3406; (c) requirements  of a judicial subpoena which meets the requirement  of Section 3407; or (d) the requirements of a formal  written requirement under Section 3408. If the  customer decides to challenge the Government’s  access to the records, he may file a motion in the  appropriate US District Court, to prevent such  access. The Act also provides for certain specific  exceptions.”                                         (at page 522)    

 48. Shri Sundaram has argued that rights have to be traced  

directly to those expressly stated in the fundamental rights  

chapter of the Constitution for such rights to receive protection,  

and privacy is not one of them.  It will be noticed that the dignity  

of the individual is a cardinal value, which is expressed in the

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Preamble to the Constitution.  Such dignity is not expressly  

stated as a right in the fundamental rights chapter, but has  

been read into the right to life and personal liberty.  The right to  

live with dignity is expressly read into Article 21 by the judgment  

in Jolly George Varghese v. Bank of Cochin, (1980) 2 SCC  

360 at paragraph 10.  Similarly, the right against bar fetters and  

handcuffing being integral to an individual’s dignity was read  

into Article 21 by the judgment in Charles Sobraj v. Delhi  

Administration, (1978) 4 SCC 494 at paragraphs 192, 197-B,  

234 and 241 and Prem Shankar Shukla v. Delhi  

Administration, (1980) 3 SCC 526 at paragraphs 21 and 22.  It  

is too late in the day to canvas that a fundamental right must be  

traceable to express language in Part III of the Constitution.  As  

will be pointed out later in this judgment, a Constitution has to  

be read in such a way that words deliver up principles that are  

to be followed and if this is kept in mind, it is clear that the  

concept of privacy is contained not merely in personal liberty,  

but also in the dignity of the individual.  

 49. The judgment in Stanley v. Georgia, 22 L.Ed. 2d 542 at  

549, 550 and 551 (1969) will serve to illustrate how privacy is

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conceptually different from an expressly enumerated  

fundamental right.  In this case, the appellant before the Court  

was tried 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, 63  S Ct 862 (1943); see Griswold v. Connecticut, 381  US 479, 482, 14 L Ed 2d 510, 513, 85 S Ct 1678  (1965); Lamont v. Postmaster General, 381 U.S.  301, 307-308, 14 L Ed 2d 398, 402, 403, 85 S Ct  1493 (1965) (Brennan, J., concurring); cf. Pierce v.  Society of the Sisters, 268 U.S. 510, 69 L Ed 1070,  45 S Ct 571, 39 ALR 468 (1925). This right to  receive information and ideas, regardless of their  social worth, see Winters v. New York, 333 US 507,  510, 92 L Ed 840, 847, 68 S Ct 665 (1948), is  fundamental to our free society. Moreover, in the  context of this case—a prosecution for mere  possession of printed or filmed matter in the privacy  of a person's own home—that right takes on an  added dimension. For also fundamental is the right  to be free, except in very limited circumstances,  from unwanted governmental intrusions into one's  privacy…   

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These are the rights that appellant is asserting in  the case before us. He is asserting the right to read  or observe what he pleases—the right to satisfy his  intellectual and emotional needs in the privacy of his  own home. He is asserting the right to be free from  state inquiry into the contents of his library. Georgia  contends that appellant does not have these rights,  that there are certain types of materials that the  individual may not read or even possess. Georgia  justifies this assertion by arguing that the films in the  present case are obscene. But we think that mere  categorization of these films as “obscene” is  insufficient justification for such a drastic invasion of  personal liberties guaranteed by the First and  Fourteenth Amendments. Whatever may be the  justifications for other statutes regulating obscenity,  we do not think they reach into the privacy of one's  own home. If the First Amendment means anything,  it means that a 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.”          (Emphasis Supplied)    

The Court concluded by stating:  

“We hold that the First and Fourteenth Amendments  prohibit making mere private possession of obscene  material a crime. Roth and the cases following that  decision are not impaired by today's holding. As we  have said, the States retain broad power to regulate  obscenity; that power simply does not extend to  mere possession by the individual in the privacy of  his own home.”  

   50. This case, more than any other, brings out in bold relief,  

the difference between the right to privacy and the right to

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freedom of speech.  Obscenity was held to be outside the  

freedom of speech amended by the First Amendment, but a  

privacy interest which related to the right to read obscene  

material was protected under the very same Amendment.   

Obviously, therefore, neither is privacy as vague and  

amorphous as has been argued, nor is it correct to state that  

unless it finds express mention in a provision in Part III of the  

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;

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• Details and documents required to be  

furnished for the purpose of obtaining a passport;  

• Prohibitions pertaining to viewing  

pornography.”  

 53. We are afraid that this is really putting the cart before the  

horse. Taxation laws which require the furnishing of information  

certainly impinge upon the privacy of every individual which  

ought to receive protection.  Indeed, most taxation laws which  

require the furnishing of such information also have, as a  

concomitant provision, provisions which prohibit the  

dissemination of such information to others except under  

specified circumstances which have relation to some legitimate  

or important State or societal interest.  The same would be the  

case in relation to a census and details and documents  

required to be furnished for obtaining a passport.  Prohibitions  

pertaining to viewing pornography have been dealt with earlier  

in this judgment.  The U.S. Supreme Court’s decision in  

Stanley (supra) held that such prohibitions would be invalid if  

the State were to intrude into the privacy of one’s home.   

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54. The learned Attorney General drew our attention to a  

number of judgments which have held that there is no  

fundamental right to trade in liquor and cited Khoday  

Distilleries Ltd. v. State of Karnataka,  (1995) 1 SCC 574.   

Quite obviously, nobody has the fundamental right to carry on  

business in crime.  Indeed, in a situation where liquor is  

expressly permitted to be sold under a licence, it would be  

difficult to state that such seller of liquor would not have the  

fundamental right to trade under Article 19(1)(g), even though  

the purport of some of our decisions seems to stating exactly  

that – See the difference in approach between the earlier  

Constitution Bench judgment in Krishna Kumar Narula v.  

State of Jammu and Kashmir, (1967) 3 SCR 50, and the later  

Constitution Bench judgment in Har Shankar v. The Dy.  

Excise and Taxation Commr., (1975) 1 SCC 737.  In any  

event, the analogy to be drawn from the cases dealing with  

liquor does not take us further for the simple reason that the  

fundamental right to privacy once recognized, must yield in  

given circumstances to legitimate State interests in combating  

crime.  But this arises only after recognition of the right to

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privacy as a fundamental right and not before.  What must be a  

reasonable restriction in the interest of a legitimate State  

interest or in public interest cannot determine whether the  

intrusion into a person’s affairs is or is not a fundamental right.   

Every State intrusion into privacy interests which deals with the  

physical body or the dissemination of information personal to an  

individual or personal choices relating to the individual would be  

subjected to the balancing test prescribed under the  

fundamental right that it infringes depending upon where the  

privacy interest claimed is founded.   

 55. The learned Attorney General and Shri Tushar Mehta,  

learned Additional Solicitor General, in particular, argued that  

our statutes are replete 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

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Tax Act, 1961, the Aadhaar (Targeted Delivery of Financial and  

other Subsidies, Benefits and Services) Act, 2016, the Census  

Act, 1948, the Collection of Statistics Act, 2008, the Juvenile  

Justice (Care and Protection of Children) Act, 2015, the  

Protection of Children from Sexual Offences Act, 2012 and the  

Information Technology Act, 2000.  According to them, since  

these statutes already protect the privacy rights of individuals, it  

is unnecessary to read a fundamental right of privacy into Part  

III of the Constitution.  

 56. Statutory law can be made and also unmade by a simple  

Parliamentary majority.  In short, the ruling party can, at will, do  

away with any or all of the protections contained in the statutes  

mentioned hereinabove.  Fundamental rights, on the other  

hand, are contained in the Constitution so that there would be  

rights that the citizens of this country may enjoy despite the  

governments that they may elect.  This is all the more so when  

a particular fundamental right like privacy of the individual is an  

“inalienable” right which inheres in the individual because he is  

a human being. The recognition of such right in the  

fundamental rights chapter of the Constitution is only a

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recognition that such right exists notwithstanding the shifting  

sands of majority governments. Statutes may protect  

fundamental rights; they may also infringe them. In case any  

existing statute or any statute to be made in the future is an  

infringement of the inalienable right to privacy, this Court would  

then be required to test such statute against such fundamental  

right and if it is found that there is an infringement of such right,  

without any countervailing societal or public interest, it would be  

the duty of this Court to declare such legislation to be void as  

offending the fundamental right to privacy.  This argument,  

therefore, also merits rejection.  

 57. Shri Rakesh Dwivedi referred copiously to the  

“reasonable expectation of privacy” test laid down by decisions  

of the U.S. Supreme Court.  The origin of this test is to be found  

in the concurring judgment of Harlan, J. in Katz v. United  

States, 389 U.S. 347 (1967). Though this test has been applied  

by several subsequent decisions, even in the United States, the  

application of this test has been criticized.    

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58. In Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469 at  

477 (1998), the concurring judgment of Scalia, J. criticized the  

application of the aforesaid test in the following terms:  

“The dissent believes that “[o]ur obligation to  produce coherent results” requires that we ignore  this clear text and 4-century-old tradition, and apply  instead the notoriously unhelpful test adopted in a  “benchmar[k]” decision that is 31 years old.  Post, at  110, citing Katz v. United States, 389 U.S. 347, 88  S.Ct. 507, 19 L.Ed.2d 576 (1967). In my view, the  only thing the past three decades have established  about the Katz test (which has come to mean the  test enunciated by Justice Harlan’s separate  concurrence in Katz, see id., at 360, 88 S.Ct. 507) is  that, unsurprisingly, those “actual (subjective)  expectation[s] of privacy” “that society is prepared to  recognize as ‘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

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thermal imaging device, aimed at a private home from a public  

street, to detect relative amounts of heat within the private  

home would be an invasion of the privacy of the individual.  In  

so holding, the U.S. Supreme Court stated:  

“The Katz test—whether the individual has an  expectation of privacy that society is prepared to  recognize as reasonable—has often been criticized  as circular, and hence subjective and unpredictable.  See 1 W. LaFave, Search and Seizure §2.1(d), pp.  393-394 (3d ed. 1996); Posner, The Uncertain  Protection of Privacy by the Supreme Court, 1979  S. Ct. Rev. 173, 188; Carter, supra, at 97, 119 S.  Ct. 469 (SCALIA, J., concurring). But  see Rakas, supra, at 143-144, n. 12, 99 S. Ct. 421.  While it may be difficult to refine Katz when the  search of areas such as telephone booths,  automobiles, or even the curtilage and uncovered  portions of residences are at issue, in the case of  the search of the interior of homes—the prototypical  and hence most commonly litigated area of  protected privacy—there is a ready criterion, with  roots deep in the common law, of the minimal  expectation of privacy that exists, and that is  acknowledged to be reasonable. To withdraw  protection of this minimum expectation would be to  permit police technology to erode the privacy  guaranteed by the Fourth Amendment. We think  that obtaining by sense-enhancing technology any  information regarding the interior of the home that  could not otherwise have been obtained without  physical “intrusion into a constitutionally protected  area,” Silverman, 365 U.S., at 512, 81 S. Ct. 679  constitutes a search—at least where (as here) the  technology in question is not in general public use.  This assures preservation of that degree of privacy

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against government that existed when the Fourth  Amendment was adopted.”      

59. It is clear, therefore, that in the country of its origin, this  

test though followed in certain subsequent judgments, has been  

the subject matter of criticism.  There is no doubt that such a  

test has no plausible foundation in the text of Articles 14, 19, 20  

or 21 of our Constitution.  Also, as has rightly been held, the  

test is circular in the sense that there is no invasion of privacy  

unless the individual whose privacy is invaded had a  

reasonable expectation of privacy.  Whether such individual will  

or will not have such an expectation ought to depend on what  

the position in law is.  Also, this test is intrinsically linked with  

the test of voluntarily parting with information, inasmuch as if  

information is voluntarily parted with, the person concerned can  

reasonably be said to have no expectation of any privacy  

interest.  This is nothing other than reading of the “reasonable  

expectation of privacy” with the test in Miller (supra), which is  

that if information is 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

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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.  

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• The State would be barred from contractually obtaining  

virtually any information about a person, including  

identification, fingerprints, residential address,  

photographs, employment details, etc., unless they were  

all found to be not a part of the right to privacy.  

 • The consequence would be that the judiciary would be  

testing what aspects of privacy could be excluded from  

Article 21 rather than what can be included in Article 21.  

This argument again need not detain us. Statutory  

provisions that deal with aspects of privacy would continue to  

be tested on the ground that they would violate the fundamental  

right to privacy, and would not be struck down, if it is found on a  

balancing test that the social or public interest and the  

reasonableness of the restrictions would outweigh the particular  

aspect of privacy claimed.   If this is so, then statutes which  

would enable the State to contractually obtain information about  

persons would pass muster in given circumstances, provided  

they safeguard the individual right to privacy as well.  A simple  

example would suffice.  If a person was to paste on Facebook

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vital information about himself/herself,  such  information,  being   

in  the public  domain,  could  not  possibly  be  claimed  as  a   

privacy   right  after  such disclosure.   But,  in  pursuance of a  

statutory requirement,  if  certain  details  need  to  be                                

given for the concerned statutory purpose, then such details  

would certainly affect the right to privacy, but would on a  

balance, pass muster as the State action concerned has  

sufficient inbuilt safeguards to protect this right – viz. the fact  

that such information cannot be disseminated to anyone else,  

save on compelling grounds of public interest.  

The Fundamental Right to Privacy  

 61. This conclusion brings us to where the right to privacy  

resides and what its contours are.  But before getting into this  

knotty question, it is important to restate a few constitutional  

fundamentals.  

 62. Never must we forget the great John Marshall, C.J.’s  

admonition that it is a Constitution that we are expounding.  

[(see: McCulloch v. Maryland, 17 U.S. 316 at 407 (1819)].   

Indeed a Constitution is meant to govern people’s lives, and as  

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people’s lives keep evolving and changing with the times, so  

does the interpretation of the Constitution to keep pace with  

such changes. This was well expressed in at least two  

judgments of this Court.  In Ashok Tanwar & Anr. v. State of  

H.P. & Ors.,  (2005) 2 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

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constitutional issues are not solved by a  mere appeal to the meaning of the  words without an acceptance of the line  of their growth. It is aptly said that ‘the  intention of a Constitution is rather to  outline principles than to engrave  details’.”  

 In the First B.N. Rau Memorial Lecture on “Judicial  Methods” M. Hidayatullah, J. observed:    

“More freedom exists in the  interpretation of the Constitution than in  the interpretation of ordinary laws. This  is due to the fact that the ordinary law is  more often before courts, that there are  always dicta of judges readily available  while in the domain of constitutional law  there is again and again novelty of  situation and approach.”    

Chief Justice Marshall while deciding the celebrated  McCulloch v. Maryland [4 Wheaton (17 US) 316 : 4  L Ed 579 (1819)] (Wheaton at p. 407, L.Ed. at p.  602) made the pregnant remark—“we must never  forget that it is the constitution we are  expounding”— meaning thereby that it is a question  of new meaning in new circumstances. Cardozo in  his lectures also said: “The great generalities of the  Constitution have a content and a significance that  vary from age to age.” Chief Justice Marshall in  McCulloch v. Maryland [4 Wheaton (17 US) 316 : 4  L Ed 579 (1819)] (L.Ed at pp 603-604) declared that  the Constitution was “intended to endure for ages to  come, and consequently, to be adapted to the  various crises of human affairs”. In this regard it is  worthwhile to see the observations made in  paragraphs 324 to 326 in Supreme Court

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Advocates-on-Record Assn, (1993) 4 SCC 441:  (SCC pp. 645-46)    

“324. The case before us must be  considered in the light of our entire  experience and not merely in that of  what was said by the framers of the  Constitution. While deciding the  questions posed before us we must  consider what is the judiciary today and  not what it was fifty years back. The  Constitution has not only to be read in  the light of contemporary circumstances  and values, it has to be read in such a  way that the circumstances and values  of the present generation are given  expression in its provisions. An eminent  jurist observed that ‘constitutional  interpretation is as much a process of  creation as one of discovery.’  

325. It would be useful to quote  hereunder a paragraph from the  judgment of Supreme Court of Canada  in Hunter v. Southam Inc. (1984) 2 SCR  145: [SCR at p.156 (Can)]  

‘It is clear that the meaning of  “unreasonable” cannot 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

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exercise of governmental power and,  when joined by a Bill or a Charter of  Rights, for the unremitting protection of  individual rights and liberties. Once  enacted, its provisions cannot easily be  repealed or amended. It must, therefore,  be capable of growth and development  over time to meet new social, political  and historical realities often unimagined  by its framers. The judiciary is the  guardian of the Constitution and must, in  interpreting its provisions, bear these  considerations in mind. Professor Paul  Freund expressed this idea aptly when  he admonished the American Courts  “not to read the provisions of the  Constitution like a last will and  testament lest it become one”.’  

326. The constitutional provisions  cannot be cut down by technical  construction rather it has to be given  liberal and meaningful interpretation.  The ordinary rules and presumptions,  brought in aid to interpret the statutes,  cannot be made applicable while  interpreting the provisions of the  Constitution. In Minister of Home Affairs  v. Fisher [(1979) 3 All ER 21 : 1980 AC  319] dealing with Bermudian  Constitution, Lord Wilberforce reiterated  that a Constitution is a document ‘sui  generis, calling for principles of  interpretation of its own, suitable to its  character’.”  

This Court in Aruna Roy v. Union of India, (2002) 7  SCC 368, recalled the famous words of the Chief  Justice Holmes that “spirit of law is not logic but it  has been experience” and observed that these  words apply with greater force to constitutional law.

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In the same judgment this Court expressed that  Constitution is a permanent document framed by  the people and has been accepted by the people to  govern them for all times to come and that the  words and expressions used in the Constitution, in  that sense, have no fixed meaning and must receive  interpretation based on the experience of the people  in the course of working of the Constitution. The  same thing cannot be said in relation to interpreting  the words and expressions in a statute.”              (at pages 114-116)      

63. To similar effect is the judgment of a 9-Judge Bench in  

I.R. Coelho (dead) by LRs v. State of Tamil Nadu & Ors.,  

(2007) 2 SCC 1, which states:  

“42. The Constitution is a living document. The  constitutional provisions have to be construed  having regard to the march of time and the  development of law. It is, therefore, necessary that  while construing the doctrine of basic structure due  regard be had to various decisions which led to  expansion and development of the law.”   

                           (at page 79)    

 64. It is in this background that the fundamental rights chapter  

has been interpreted. We may also refer to paragraph 19 in M.   

Nagaraj & Ors. v. Union of India & Ors., (2006) 8 SCC 212,  

for the proposition that any true interpretation of fundamental  

rights must be expansive, like the universe in which we live.

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The content of fundamental rights keeps expanding to keep  

pace with human activity.   

 65. It is as a result of constitutional interpretation that after  

Maneka Gandhi (supra), Article 21 has been the repository of a  

vast multitude of human rights8.   

 

66. In India, therefore, the doctrine of originalism, which was  

referred to and relied upon by Shri Sundaram has no place.   

According to this doctrine, the first inquiry to be made is  

                                                           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 para 10; (9) The right to earn a livelihood. Olga  

Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545 at para 37; (10) The right to know. Reliance  

Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers (1988) 4 SCC 592 at para 34; (11) The right  

against public hanging. A.G. of India v. Lachma Devi (1989) Supp (1) SCC 264 at para 1; (12) The right to doctor’s  

assistance at government hospitals.  Paramanand Katara v. Union of India (1989) 4 SCC 286 at para 8; (13) The  

right to medical care. Paramanand Katara v. Union of India (1989) 4 SCC 286 at para 8; (14) The right to shelter.  

Shantistar Builders v. N.K. Totame (1990) 1 SCC 520 at para 9 and 13; (15) The right to pollution free water and air.  

Subhash Kumar v. State of Bihar (1991) 1 SCC 598 at para 7; (16) The right to speedy trial. A.R. Antulay v. R.S.  

Nayak (1992) 1 SCC 225 at para 86; (17) The right against illegal detention. Joginder Kumar v. State of Uttar  

Pradesh (1994) 4 SCC 260 at paras 20 and 21; (18) The right to a healthy environment. Virender Gaur v. State of  

Haryana (1995) 2 SCC 577 at para 7; (19) The right to health and medical care for workers. Consumer Education  

and Research Centre v. Union of India (1995) 3 SCC 42 at paras 24 and 25; (20) The right to a clean environment.  

Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC 647 at paras 13, 16 and 17; (21) The right against  

sexual harassment. Vishaka and others v. State of Rajasthan and others (1997) 6 SCC 241 at paras 3 and 7; (22)  

The right against noise pollution. In Re, Noise Pollution (2005) 5 SCC 733 at para 117; (23) The right to fair trial.  

Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors. (2006) 3 SCC 374 at paras 36 and 38; (24) The right to  

sleep. In Re, Ramlila Maidan Incident (2012) 5 SCC 1 at paras 311 and 318; (25) The right to reputation. Umesh  

Kumar v. State of Andhra Pradesh (2013) 10 SCC 591 at para 18; (26) The right against solitary confinement.  

Shatrugan Chauhan & Anr. v. Union of India (2014) 3 SCC 1 at para 241.

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whether the founding fathers had accepted or rejected a  

particular right in the Constitution.  According to the learned  

Attorney General and Shri Sundaram, the right to privacy has  

been considered and expressly rejected by our founding  

fathers.  At the second level, according to this doctrine, it is not  

open to the Supreme Court to interpret the Constitution in a  

manner that will give effect to a right that has been rejected by  

the founding fathers.  This can only be done by amending the  

Constitution.  It was, therefore, urged that it was not open for us  

to interpret the fundamental rights chapter in such a manner as  

to introduce a fundamental right to privacy, when the founding  

fathers had rejected the same.  It is only the Parliament in its  

constituent capacity that can introduce such a right.  This  

contention must be rejected having regard to the authorities  

cited above.  Further, in our Constitution, it is not left to all the  

three organs of the State to interpret the Constitution.  When a  

substantial question as to the interpretation of the Constitution  

arises, it is this Court and this Court alone under Article 145(3)  

that is to decide what the interpretation of the Constitution shall

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be, and for this purpose the Constitution entrusts this task to a  

minimum of 5 Judges of this Court.    

 67. Does a fundamental right to privacy reside primarily in  

Article 21 read with certain other fundamental rights?  

 68. At this point, it is important to advert to the U.S.  Supreme  

Court’s development of the right of privacy.   

 The earlier cases tended to see the right of privacy as a  

property right as they were part of what was called the ‘Lochner  

era’ during which the doctrine of substantive due process    

elevated property rights over societal interests9. Thus in an  

early case, Olmstead v. United States, 277 U.S. 438 at 474,  

478 and 479 (1928), the majority of the Court held that wiretaps  

attached to telephone wires on public streets did not constitute  

a “search” under the Fourth Amendment since there was no  

physical entry into any house or office of the defendants. In a  

classic dissenting judgment, Louis Brandeis, J. held that this  

                                                           9  This era lasted from the early 20

th  Century till 1937, when the proverbial switch in time that saved nine was made  

by Justice Roberts.  It was only from 1937 onwards that President Roosevelt’s New Deal legislations were upheld  

by a majority of 5:4, having been struck down by a majority of 5:4 previously.

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was too narrow a construction of the Fourth Amendment and  

said in words that were futuristic that:  

“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.  “That  places the liberty of every man in the hands of every  petty officer” was said by James Otis of much lesser  intrusions than these. To Lord Camden, a far  slighter intrusion seemed “subversive of all the  comforts of society.”  Can it be that the Constitution  affords no protection against such invasions of  individual security?”      

69. Also in a ringing declaration of the right to privacy, that  

great Judge borrowed from his own co-authored article, written  

almost 40 years earlier, in order to state that the right of privacy  

is a constitutionally protected right:  

“The protection guaranteed by the Amendments is  much broader in scope. The makers of our  Constitution undertook to secure conditions  favorable to the pursuit of happiness.  They  recognized the significance of man’s spiritual  nature, of his feelings, and of his intellect.  They  knew that only a part of the pain, pleasure and

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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 (1965), Douglas, J.’s majority opinion found that the right to  

privacy was contained in the penumbral regions of the First,  

Third, Fourth and Fifth Amendments to the U.S. Constitution.   

Goldberg, J. found this right to be embedded in the Ninth  

Amendment which states that certain rights which are not  

enumerated are nonetheless recognized as being reserved to  

the people. White, J. found this right in the due process clause

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of the Fourteenth Amendment, which prohibits the deprivation  

of a person’s liberty without following due process. This view of  

the law was recognized and applied in Roe v. Wade, 410 U.S.  

113 (1973), in which a woman’s right to choose for herself  

whether or not to abort a fetus was established, until the fetus  

was found “viable”.  Other judgments also recognized this right  

of independence of choice in personal decisions relating to  

marriage, Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817,  

1823, 18 L.Ed.2d 1010 (1967); procreation, Skinner v.  

Oklahoma, 316 U.S. 535, 541-542, 62 S.Ct. 1110, 1113-1114,  

86 L.Ed. 1655 (1942); contraception, Eisenstadt v. Baird, 405  

U.S. 438, 453-454, 92 S.Ct. 1029, 1038-1039, 31 L.Ed.2d 349  

(1972), family relationships, Prince v. Massachusetts, 321  

U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944); and  

child rearing and education, Pierce v. Society of Sisters, 268  

U.S. 510, 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925).  

 71. In a recent decision of the U.S. Supreme Court in United  

States v. Jones, 565 U.S. 400 (2012), the U.S. Supreme  

Court’s majority judgment traces the right of privacy through the

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labyrinth of case law in Part II of Scalia, J.’s opinion, and  

regards it as a constitutionally protected right.   

 72. Based  upon  the  prevalent  thinking of the U.S. Supreme  

Court, a  seminal  judgment  was  delivered  by  Mathew,          

J. in Gobind (supra).  This judgment dealt with the M.P. Police  

Regulations, similar to the Police Regulations contained in  

Kharak Singh (supra).  After setting out the majority and  

minority opinions in the said judgment, Mathew, J. went on to  

discuss the U.S. Supreme Court judgments in Griswold (supra)  

and Roe (supra). In a very instructive passage the learned  

Judge held:  

“22. There can be no doubt that privacy-dignity  claims deserve to be examined with care and to be  denied only when an important countervailing  interest is shown to be superior. If the Court does  find that a claimed right is entitled to protection as a  fundamental privacy right, a law infringing it must  satisfy the compelling State interest test. Then the  question would be whether a State interest is of  such paramount importance as would justify an  infringement of the right. Obviously, if the  enforcement of morality were held to be a  compelling as well as a permissible State interest,  the characterization of a claimed right as a  fundamental privacy right would be of far less  significance. The question whether enforcement of  morality is a State interest sufficient to justify the  infringement of a fundamental privacy right need not

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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 street what is  whispered in the closet. Yet, too broad a definition  of privacy raises serious questions about the  propriety of judicial reliance on a right that is not  explicit in the Constitution. Of course, privacy  primarily concerns the individuals. It therefore  relates to and overlaps with the concept of liberty.  The most serious advocate of privacy must confess  that there are serious problems of defining the  essence and scope of the right. Privacy interest in  autonomy must also be placed in the context of  other rights and values.  

24. 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  analytical picture of 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.  

27. There are two possible theories for protecting  privacy of home. The first is that activities in the

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home harm others only to the extent that they cause  offence resulting from the mere thought that  individuals might be engaging in such activities and  that such ‘harm’ is not constitutionally protectable by  the State. The second is that individuals need a  place of sanctuary where they can be free from  societal control. The importance of such a sanctuary  is that individuals can drop the mask, desist for a  while from projecting on the world the image they  want to be accepted as themselves, an image that  may reflect the values of their peers rather than the  realities of their natures.  

 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 an independent right of  privacy as an emanation from them which one can  characterize as a fundamental right, we do not think  that the right is absolute.”  

(at pages 155-157)    The Police Regulations were, however, not struck down,  

but were termed as being perilously close to being  

unconstitutional.   

 73. Shri Sundaram has brought to our notice the fact that  

Mathew, J. did not declare privacy as a fundamental right.  By  

this judgment, he reached certain conclusions on the  

assumption that it was a fundamental right.  He is correct in this  

submission.  However, this would not take the matter very

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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 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.

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(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 interests of decency [Article 19(2)] an  exception must be carved out to this rule, viz., a  female who is the victim of a sexual assault, kidnap,  abduction or a like offence should not further be  subjected to the indignity of her name and the  incident being publicised in press/media.   

(3) There is yet another exception to the rule in (1)  above—indeed, this is not an exception but an  independent rule. In the case of public officials, it is  obvious, right to privacy, or for that matter, the  remedy of action for damages is simply not  available with respect to their acts and conduct  relevant to the discharge of their official duties. This  is so even where the publication is based upon facts  and statements which are not true, unless the  official establishes that the publication was made  (by the defendant) with reckless disregard for truth.  In such a case, it would be enough for the  defendant (member of the press or media) to prove  that he acted after a reasonable verification of the  facts; it is not necessary for him to prove that what  he has written is true. Of course, where the  publication is proved to be false and actuated by  malice or personal animosity, the defendant would  have no defence and would be liable for damages.  It is equally obvious that in matters not relevant to  the discharge of his duties, the public official enjoys  the same protection as any other citizen, as  explained in (1) and (2) above. It needs no  reiteration that judiciary, which is protected by the

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power to punish for contempt of court and  Parliament and legislatures protected as their  privileges are by Articles 105 and 104 respectively  of the Constitution of India, represent exceptions to  this rule.  

(4) So far as the Government, local authority and  other organs and institutions exercising  governmental power are concerned, they cannot  maintain a suit for damages for defaming them.  

(5) Rules 3 and 4 do not, however, mean  that Official Secrets Act, 1923, or any similar  enactment or provision having the force of law does  not bind the press or media.  

(6) There is no law empowering the State or its  officials to prohibit, or to impose a prior restraint  upon the press/media.”10  

(at pages 649-651)    

75. Similarly, in PUCL v. Union of India, (1997) 1 SCC 301,  

this Court dealt with telephone tapping as follows:  

“17. We have, therefore, no hesitation in holding  that right to privacy is a part of the right to “life” and  “personal liberty” enshrined under Article 21 of the  Constitution. Once the facts in a given case  constitute a right to privacy, Article 21 is attracted.  The said right cannot be curtailed “except according  to procedure established by law”.    18. The right to privacy—by itself—has not been  identified under the Constitution. As a concept it  may be too broad and moralistic to define it  judicially. Whether right to privacy can be claimed or  has been infringed in a given case would depend on  

                                                           10

It will be noticed that this judgment grounds the right of privacy in Article 21.  However, the Court was dealing  

with the aforesaid right not in the context of State action, but in the context of press freedom.

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the facts of the said case. But the right to hold a  telephone conversation in the privacy of one’s home  or office without interference can certainly be  claimed as “right to privacy”. Conversations on the  telephone are often of an intimate and confidential  character. Telephone conversation is a part of  modern man’s life. It is considered so important that  more and more people are carrying mobile  telephone instruments in their pockets. Telephone  conversation is an important facet of a man’s private  life. Right to privacy would certainly include  telephone conversation in the privacy of one’s home  or office. Telephone-tapping would, thus,  infract Article 21 of the Constitution of India unless it  is permitted under the procedure established by  law.”  

(at page 311)    The Court then went on to apply Article 17 of the  

International Covenant on Civil and Political Rights, 1966 which  

recognizes the right to privacy and also referred to Article 12 of  

the Universal Declaration of Human Rights, 1948 which is in the  

same terms.  It then imported these international law concepts  

to interpret Article 21 in accordance with these concepts.   

 76. In Sharda v. Dharmpal (supra), this Court was  

concerned with whether a medical examination could be  

ordered by a Court in a divorce proceeding.  After referring to  

some of the judgments of this Court and the U.K. Courts, this  

Court held:

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“81. To sum up, our conclusions are:  

1. A matrimonial court has the power to order a  person to undergo medical test.  

2. Passing of such an order by the court would not  be in violation of the right to personal liberty  under Article 21 of the Indian Constitution.    3. However, the court should exercise such a power  if the applicant has a strong prima facie case and  there is sufficient material before the court. If  despite the order of the court, the respondent  refuses to submit himself to medical examination,  the court will be entitled to draw an adverse  inference against him.”  

(at page 524)  

In Canara Bank (supra), this Court struck down Section  

73 of the Andhra Pradesh Stamp Act, as it concluded that the  

involuntary impounding of documents under the said provision  

would be violative of the fundamental right of privacy contained  

in Article 21.  The Court exhaustively went into the issue and  

cited many U.K. and U.S. judgments.  After so doing, it  

analysed some of this Court’s judgments and held:  

“53. Once we have accepted in Gobind [(1975) 2  SCC 148 : 1975 SCC (Cri) 468] and in later cases  that the right to privacy deals with “persons and not  places”, the documents or copies of documents of  the customer which are in a bank, must continue to  remain confidential vis-a-vis the person, even if they  are no longer at the customer’s house and have  been voluntarily sent to a bank. If that be the correct

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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  provision relating to search and inspection and  seizure so as to save it from any unconstitutionality.    56. In Smt. Maneka Gandhi vs. Union of India,  (1978) 1 SCC 248, a seven-Judge Bench decision,  P.N. Bhagwati, J. (as His Lordship then was) held  that the expression “personal liberty” in Article 21 is  of the widest amplitude and it covers a variety of  rights which go to constitute the personal liberty of  man and some of them have been raised to the  status of distinct fundamental rights and given  additional protection under Article 19 (emphasis  supplied). Any law interfering with personal liberty of  a person must satisfy a triple test: (i) it must  prescribe a procedure; (ii) the procedure must  withstand the test of one or more of the fundamental  rights conferred under Article 19 which may be  applicable in a given situation; and (iii) it must also  be liable to be tested with reference to Article 14. As  the test propounded by Article 14 pervades Article  21 as well, the law and procedure authorizing  interference with personal liberty and right of privacy  must also be right and just and fair and not arbitrary,  fanciful or oppressive. If the procedure prescribed  does not satisfy the requirement of Article 14 it  would be no procedure at all within the meaning  of Article 21.”  

(at pages 523 and 524)

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 In Selvi v. State of Karnataka (supra), this Court went  

into an in depth analysis of the right in the context of lie detector  

tests used to detect alleged criminals. A number of judgments  

of this Court were examined and this Court, recognizing the  

difference between privacy in a physical sense and the privacy  

of one’s mental processes, held that both received  

constitutional protection. This was stated in the following words:  

“224. Moreover, a distinction must be made  between the character of restraints placed on the  right to privacy. While the ordinary exercise of police  powers contemplates restraints of a physical nature  such as the extraction of bodily substances and the  use of reasonable force for subjecting a person to a  medical examination, it is not viable to extend these  police powers to the forcible extraction of  testimonial responses. In conceptualising the “right  to privacy” we must highlight the distinction between  privacy in a physical sense and the privacy of one’s  mental processes.    225. So far, the judicial understanding of privacy in  our country has mostly stressed on the protection of  the body and physical spaces from intrusive actions  by the State. While the scheme of criminal  procedure as well as evidence law mandates  interference with physical privacy through statutory  provisions that enable arrest, detention, search and  seizure among others, the same cannot be the  basis for compelling a person “to impart personal  knowledge about a relevant fact”. The theory of  interrelationship of rights mandates that the right  against self-incrimination should also be read as a

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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’s decision to  make a statement is the product of a private choice  and there should be no scope for any other  individual to interfere with such autonomy,  especially in circumstances where the person faces  exposure to criminal charges or penalties.”  

(at pages 369-370)    

77. All this leads to a discussion on what exactly is the  

fundamental right of privacy – where does it fit in Chapter III of  

the Constitution, and what are the parameters of its  

constitutional protection.   

 78. In an instructive article reported in Volume 64 of the  

California Law Review, written in 1976, Gary L. Bostwick  

suggested that the right to privacy in fact encompasses three  

separate and distinct rights. According to the learned author,  

these three components are the components of repose,

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sanctuary, and intimate decision.  The learned author puts it  

thus (at pages 1482-1483):-  

“The extent of constitutional protection is not the  only distinction between the types of privacy. Each  zone protects a unique type of human transaction.  Repose maintains the actor’s peace; sanctuary  allows an individual to keep some things private,  and intimate decision grants the freedom to act in  an autonomous fashion. Whenever a generalized  claim to privacy is put forward without distinguishing  carefully between the transactional types, parties  and courts alike may become hopelessly muddled  in obscure claims. The clear standards that appear  within each zone are frequently ignored by  claimants anxious to retain some aspect of their  personal liberty and by courts impatient with the  indiscriminate invocation of privacy.     Finally, it should be recognized that the right of  privacy is a continually evolving right. This  Comment has attempted to show what findings of  fact will lead to the legal conclusion that a person  has a right to privacy. Yet the same findings of fact  may lead to different conclusions of law as time  passes and society’s ideas change about how much  privacy is reasonable and what kinds of decisions  are best left to individual choice. Future litigants  must look to such changes in community concerns  and national acceptance of ideas as harbingers of  corresponding changes in the contours of the zones  of privacy.”      

79. Shortly thereafter, in 1977, an instructive judgment is to  

be found in Whalen v. Roe, 429 U.S. 589 at 598 and 599 by  

the U.S. Supreme Court. This case dealt with a legislation by

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the State of New York in which the State, in a centralized  

computer file, registered the names and addresses of all  

persons who have obtained, pursuant to a Doctor’s  

prescription, certain drugs for which there is both a lawful and  

unlawful market.  The U.S. Supreme Court upheld the statute,  

finding that it would seem clear that the State’s vital interest in  

controlling the distribution of dangerous drugs would support  

the legislation at hand.  In an instructive footnote – 23 to the  

judgment, the U.S. Supreme Court found that the right to  

privacy was grounded after Roe (supra) in the Fourteenth  

Amendment’s concept of personal liberty. Having thus  

grounded the right, the U.S. Supreme Court in a very significant  

passage stated:  

“At the very least, it would seem clear that the  State’s vital interest in controlling the distribution of  dangerous drugs would support a decision to  experiment with new techniques for control…    …Appellees contend that the statute invades a  constitutionally protected “zone of privacy.” The  cases sometimes characterized as protecting  “privacy” have in fact involved at least two different  kinds of interests.  One is the individual interest in  avoiding disclosure of personal matters, and  another is the interest in independence in making  certain kinds of important decisions.”     

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80. In fact, in the Constitution of South Africa of 1996, which  

Constitution was framed after apartheid was thrown over by the  

South African people, the right to privacy has been expressly  

declared as a fundamental freedom as follows:  

“10. Human dignity   

Everyone has inherent dignity and the right to have  their dignity respected and protected.  

12. Freedom and security of the person   

(1) Everyone has the right to freedom and security  of the person, which includes the right—  

(a) not to be deprived of freedom arbitrarily or  without just cause;   

(b) not to be detained without trial;   

(c) to be free from all forms of violence from either  public or private sources;   

(d) not to be tortured in any way; and   

(e) not to be treated or punished in a cruel, inhuman  or degrading way.   

(2) Everyone has the right to bodily and  psychological integrity, which includes the right—   

(a) to make decisions concerning reproduction;   

(b) to security in and control over their body; and   

(c) not to be subjected to medical or scientific  experiments without their informed consent.   

14. Privacy   

Everyone has the right to privacy, which includes  the right not to have—  

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(a) their person or home searched;  

(b) their property searched;   

(c) their possessions seized; or   

(d) the privacy of their communications infringed.”  

 

The Constitutional Court of South Africa in NM & Ors. v.  

Smith & Ors., 2007 (5) SA 250 (CC), had this to say about the  

fundamental right to privacy recognized by the South African  

Constitution:  

“131.    The right to privacy recognizes the  importance of protecting the sphere of our personal  daily lives from the public.  In so doing, it highlights  the inter-relationship between privacy, liberty and  dignity as the key constitutional rights which  construct our understanding of what it means to be  a human being.  All these rights are therefore inter- dependent and mutually reinforcing.  We value  privacy for this reason at least – that the  constitutional conception of being a human being  asserts and seeks to foster the possibility of human  beings choosing how to live their lives within the  overall framework of a broader community.   The  protection of this autonomy, which flows from our  recognition of individual human worth, presupposes  personal space within which to live this life.  

132.  This first reason for asserting the value of  privacy therefore lies in our constitutional  understanding of what it means to be a human  being.  An implicit part of this aspect of privacy is  the right to choose what personal information of  ours is released into the public space. The more

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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 lead to infringement of this right; and   

• The privacy of choice, which protects an individual’s  

autonomy over fundamental personal choices.    

For instance, we can ground physical privacy or privacy relating  

to the body in Articles 19(1)(d) and (e) read with Article 21;  

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ground personal information privacy under Article 21; and the  

privacy of choice in Articles 19(1)(a) to (c), 20(3), 21 and 25.     

The argument based on ‘privacy’ being a vague and nebulous  

concept need not, therefore, detain us.   

 82. We have been referred to the Preamble of the  

Constitution, which can be said to reflect core constitutional  

values.  The core value of the nation being democratic, for  

example, would be hollow unless persons in a democracy are  

able to develop fully in order to make informed choices for  

themselves which affect their daily lives and their choice of how  

they are to be governed.  

 83. In his well-known thesis “On Liberty”, John Stuart Mill, as  

far back as in 1859, had this to say:  

“…. the sole end for which mankind are warranted,  individually or collectively, in interfering with the  liberty of action of any of their number, is self- protection.  That the only purpose for which power  can be rightfully exercised over any member of a  civilised community, against his will, is to prevent  harm to others.  His own good, either physical or  moral, is not a sufficient warrant.  He cannot  rightfully be compelled to do or forbear because it  will be better for him to do so, because it will make  him happier, because, in the opinions of others, to  do so would be wise, or even right.  These are good

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reasons for remonstrating with him, or reasoning  with him, or persuading him, or entreating him, but  not for compelling him, or visiting him with any evil  in case he do otherwise.  To justify that, the conduct  from which it is desired to deter him must be  calculated to produce evil to someone else.  The  only part of the conduct of any one, for which he is  amenable to society, is that which concerns others.   In the part which merely concerns himself, his  independence is, of right, absolute.  Over himself,  over his own body and mind, the individual is  sovereign.  

(…)  

This, then, is the appropriate region of human  liberty.  It comprises, first, the inward domain of  consciousness; demanding liberty of conscience in  the most comprehensive sense; liberty of thought  and feeling; absolute freedom of opinion and  sentiment on all subjects, practical or speculative,  scientific, moral, or theological.  The liberty of  expressing and publishing opinions may seem to fall  under a different principle, since it belongs to that  part of the conduct of an individual which concerns  other people; but, being almost of as much  importance as the liberty of thought itself, and  resting in great part on the same reasons, is  practically inseparable from it.  Secondly, the  principle requires liberty of tastes and pursuits; of  framing the plan of our life to suit our own character;  of doing as we like, subject to such consequences  as may follow: without impediment from our fellow  creatures, so long as what we do does not harm  them, even though they should think our conduct  foolish, perverse, or wrong.  Thirdly, from this liberty  of each individual, follows the liberty, within the  same limits, of combination among individuals;  freedom to unite, for any purpose not involving harm  to others: the persons combining being supposed to  be of full age, and not forced or deceived.  

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No society in which these liberties are not, on the  whole, respected, is free, whatever may be its form  or government; and none is completely free in which  they do not exist absolute and unqualified.  The only  freedom which deserves the name, is that of  pursuing our own good in our own way, so long as  we do not attempt to deprive others of theirs, or  impede their efforts to obtain it.”    

Noting the importance of liberty to individuality, Mill wrote:  

“It is not by wearing down into uniformity all that is  individual in themselves, but by cultivating it, and  calling it forth, within the limits imposed by the rights  and interests of others, that human beings become  a noble and beautiful object of contemplation; and  as the works partake the character of those who do  them, by the same process human life also  becomes rich, diversified, and animating, furnishing  more abundant aliment to high thoughts and  elevating feelings, and strengthening the tie which  binds every individual to the race, by making the  race infinitely better worth belonging to.  In  proportion to the development of his individuality,  each person becomes more valuable to himself,  and is therefore capable of being more valuable to  others.  There is a greater fullness of life about his  own existence, and when there is more life in the  units there is more in the mass which is composed  of them…..   The means of development which the  individual loses by being prevented from gratifying  his inclinations to the injury of others, are chiefly  obtained at the expense of the development of other  people…. To be held to rigid rules of justice for the  sake of others, develops the feelings and capacities  which have the good of others for their object.  But  to be restrained in things not affecting their good, by  their mere displeasure, develops nothing valuable,  except such force of character as may unfold itself  in resisting the restraint.  If acquiesced in, it dulls

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and blunts the whole nature. To give any fair play to  the nature of each, it is essential that different  persons should be allowed to lead different lives.”  

(Emphasis Supplied)      84. “Liberty” in the Preamble to the Constitution, is said to be  

of thought, expression, belief, faith and worship.  This cardinal  

value can be found strewn all over the fundamental rights  

chapter.  It can be found in Articles 19(1)(a), 20, 21, 25 and 26.  

As is well known, this cardinal constitutional value has been  

borrowed from the Declaration of the Rights of Man and of the  

Citizen of 1789, which defined “liberty” in Article 4 as follows:  

“Liberty consists in being able to do anything that  

does not harm others: thus, the exercise of the  

natural rights of every man has no bounds other  

than those that ensure to the other members of  

society the enjoyment of these same rights. These  

bounds may be determined only by Law.”  

Even in this limited sense, privacy begins where liberty ends –  

when others are harmed, in one sense, issues relating to  

reputation, restraints on physical locomotion etc. set in. It is,  

therefore, difficult to accept the argument of Shri Gopal

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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  

choices and control over dissemination of personal information  

which may be infringed through an unauthorized use of such  

information.  It is clear that Article 21, more than any of the  

other Articles in the fundamental rights chapter, reflects each of  

                                                           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 at  

paragraphs 12.4 and 14 and Jeeja Ghosh v. Union of India, (2016) 7 SCC 761 at paragraph 37.

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these constitutional values in full, and is to be read in  

consonance with these values and with the international  

covenants that we have referred to.  In the ultimate analysis,  

the fundamental right of privacy, which has so many developing  

facets, can only be developed on a case to case basis.   

Depending upon the particular facet that is relied upon, either  

Article 21 by itself or in conjunction with other fundamental  

rights would get attracted.   

 86. But this is not to say that such a right is absolute. This  

right is subject to reasonable regulations made by the State to  

protect legitimate State interests or public interest. However,  

when it comes to restrictions on this right, the drill of various  

Articles to which the right relates must be scrupulously  

followed. For example, if the restraint on privacy is over  

fundamental personal choices that an individual is to make,  

State action can be restrained under Article 21 read with Article  

14 if it is arbitrary and unreasonable; and under Article 21 read  

with Article 19(1) (a) only if it relates to the subjects mentioned  

in Article 19(2) and the tests laid down by this Court for such  

legislation or subordinate legislation to pass muster under the

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said Article. Each of the tests evolved by this Court, qua  

legislation or executive action, under Article 21 read with Article  

14; or Article 21 read with Article 19(1)(a) in the aforesaid  

examples must be met in order that State action pass muster.   

In the ultimate analysis, the balancing act that is to be carried  

out between individual, societal and State interests must be left  

to the training and expertise of the judicial mind.   

 87. It is important to advert to one other interesting argument  

made on the side of the petitioner.  According to the petitioners,  

even in British India, the right to privacy was always legislatively  

recognized.  We were referred to the Indian Telegraph Act of  

1885, vintage and in particular Section 5 thereof which reads as  

under:-  

“5. (1) On the occurrence of any public  emergency, or in the interest of the public safety,  the Governor General in Council or a Local  Government, or any officer specially authorized in  this behalf by the Governor General in Council,  may–     (a) take temporary possession of any telegraph  

established, maintained or worked by any  person licensed under this Act; or  

 (b) order that any message or class of messages  

to or from any person or class of persons, or

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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 Central or the State Government  may, by order in writing, direct that any postal article  or class or description of postal articles in course of  transmission by post shall be intercepted or  detained, or shall be disposed of in such manner as  the authority issuing the order may direct.    (2) If any doubt arises as to the existence of a public  emergency, or as to whether any act done under  sub-section (1) was in the interest of the public  safety or tranquility, a certificate of the Central  Government or, as the case may be, of the State  Government shall be conclusive proof on the point.”  

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88. Coming to more recent times, the Right to Information  

Act, 2005 in Section 8(1)(j) states as follows:-  

“8. Exemption from disclosure of information.—  (1) Notwithstanding anything contained in this Act,  there shall be no obligation to give any citizen,—  

(a) to (i) xxx xxx xxx  

(j) information which relates to personal  information the disclosure of which has not  relationship to any public activity or interest, or  which would cause unwarranted invasion of the  privacy of the individual unless the Central Public  Information Officer or the State Public Information  Officer or the appellate authority, as the case may  be, is satisfied that the larger public interest justifies  the disclosure of such information:   

Provided that the information, which cannot be  denied to the Parliament or a State Legislature shall  not be denied to any person.”      It will be noticed that in this statutory provision, the  

expression “privacy of the individual” is specifically mentioned.   

In an illuminating judgment, reported as Thalappalam Service  

Co-operative Bank Limited & Ors., v. State of Kerala & Ors.,  

(2013) 16 SCC 82, this Court dealt with the right to information  

as a facet of the freedom of speech guaranteed to every  

individual.  In certain instructive passages, this Court held:  

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“57. The right to privacy is also not expressly  guaranteed under the Constitution of India.  However, the Privacy Bill, 2011 to provide for the  right to privacy to citizens of India and to regulate  the collection, maintenance and dissemination of  their personal information and for penalization for  violation of such rights and matters connected  therewith, is pending. In several judgments  including Kharak Singh v. State of U.P. (AIR 1963  SC 1295 : (1963) 2 Cri LJ 329), R. Rajagopal v.  State of T.N. (1994) 6 SCC 632, People’s Union for  Civil Liberties v. Union of India (1997) 1 SCC 301  and State of Maharashtra v. Bharat Shanti Lal Shah  (2008) 13 SCC 5, this Court has recognized the  right to privacy as a fundamental right emanating  from Article 21 of the Constitution of India.   

58. The right to privacy is also recognized as a  basic human right under Article 12 of the Universal  Declaration of Human Rights Act, 1948, which  states as follows:  

“12. No one shall be subjected to  arbitrary interference with his privacy,  family, home or correspondence, not to  attack upon his honour and reputation.  Everyone has the right to the protection  of the law against such interference or  attacks.”   

59. Article 17 of the International Covenant on Civil  and Political Rights Act, 1966, to which India is a  party also protects that right and states as follows:  

“17. (1) No one shall be subjected to  arbitrary or unlawful interference with his  privacy, family, home and  correspondence nor to unlawful attacks  on his honour and reputation.”  

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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 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 matters.”   

 

62. The public authority also is not legally obliged to  give or provide information even if it is held, or  under its control, if that information falls under  clause (j) of sub-section (1) of Section 8. Section  8(1)(j) is of considerable importance so far as this  case is concerned, hence given below, for ready  reference:-  

“8. Exemption from disclosure of  information – (1) Notwithstanding  anything contained in this Act, there  shall be no obligation to give any citizen  –  

(a) to (i) xxx xxx xxx  

(j) information which relates to personal  information the disclosure of which has  no relationship to any public activity or  interest, or which would cause  unwarranted invasion of the privacy of  the individual unless the Central Public  Information Officer or the State Public  Information Officer or the appellate  authority, as the case may be, is  satisfied that the larger public interest

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justifies the disclosure of such  information:   

Provided that the information which  cannot be denied to Parliament or a  State Legislature shall not be denied to  any person.”  

63.  Section 8 begins with a non obstante clause,  which gives that section an overriding effect, in case  of conflict, over the other provisions of the Act. Even  if, there is any indication to the contrary, still there is  no obligation on the public authority to give  information to any citizen of what has been  mentioned in clauses (a) to (j). The public authority,  as already indicated, cannot access all the  information from a private individual, but only those  information which he is legally obliged to pass on to  a public authority by law, and also only those  information to which the public authority can have  access in accordance with law. Even those  information, if personal in nature, can be made  available only subject to the limitations provided  in Section 8(j) of the RTI Act. Right to be left alone,  as propounded in Olmstead v. United States [72 L  Ed 944 : 277 US 438 (1928)], is the most  comprehensive of the rights and most valued by  civilized man.  

64. Recognizing the fact that the right to privacy is a  sacrosanct facet of Article 21 of the Constitution, the  legislation has put a lot of safeguards to protect the  rights under Section 8(j), as already indicated. If the  information sought for is personal and has no  relationship with any public activity or interest or it  will not subserve larger public interest, the public  authority or the officer concerned is not legally  obliged to provide those information. Reference  may be made to a recent judgment of this Court  in Girish Ramchandra Deshpande v. Central  Information Commissioner (2013) 1 SCC 212,

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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 privacy and, therefore, it is too late in  

the day to go back on this.  Much water has indeed flowed  

under the bridge since the decisions in M.P. Sharma (supra)  

and Kharak Singh (supra).  

The Inalienable Nature of the Right to Privacy  

90. Learned counsel for the petitioners also referred to  

another important aspect of the right of privacy.  According to  

learned counsel for the petitioner this right is a natural law right  

which is inalienable.  Indeed, the reference order itself, in  

paragraph 12, refers to this aspect of the fundamental right  

contained.  It was, therefore, argued before us that given the

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international conventions referred to hereinabove and the fact  

that this right inheres in every individual by virtue of his being a  

human being, such right is not conferred by the Constitution but  

is only recognized and given the status of being fundamental.   

There is no doubt that the petitioners are correct in this  

submission.  However, one important road block in the way  

needs to be got over.   

 91. In Additional District Magistrate, Jabalpur v. S.S.  

Shukla, (1976) 2 SCC 521, a Constitution Bench of this Court  

arrived at the conclusion (by majority) that Article 21 is the sole  

repository of all rights to life and personal liberty, and, when  

suspended, takes away those rights altogether.    

A remarkable dissent was that of Khanna,J.12  

                                                           12

Khanna, J. was in line to be Chief Justice of India but was superseded because of this dissenting judgment.  Nani  

Palkhivala in an article written on this great Judge’s supersession ended with a poignant sentence, “To the stature  

of such a man, the Chief Justiceship of India can add nothing.” Seervai, in his monumental treatise “Constitutional  

Law of India” had to this to say:   

“53. If in this Appendix the dissenting judgment of Khanna J. has not been considered in detail, it  

is not for lack of admiration for the judgment, or the courage which he showed in delivering it  

regardless of the cost and consequences to himself. It cost him the Chief Justiceship of India, but  

it gained for him universal esteem not only for his courage but also for his inflexible judicial  

independence. If his judgment is not considered in detail it is because under the theory of  

precedents which we have adopted, a dissenting judgment, however valuable, does not lay down  

the law and the object of a critical examination of the majority judgments in this Appendix was to  

show that those judgments are untenable in law, productive of grave public mischief and ought  

to be overruled at the earliest opportunity. The conclusion which Justice Khanna has reached on  

the effect of the suspension of Article 21 is correct.  His reminder that the rule of law did not  

merely mean giving effect to an enacted law was timely, and was reinforced by his reference to  

the mass murders of millions of Jews in Nazi concentration camps under an enacted law.  

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The learned Judge held:-   

“525. The effect of the suspension of the right to  move any court for the enforcement of the right  conferred by Article 21, in my opinion, is that when  a petition is filed in a court, the court would have to  proceed upon the basis that no reliance can be  placed upon that article for obtaining relief from the  court during the period of emergency. Question then  arises as to whether the rule that no one shall be  deprived of his life or personal liberty without the  authority of law still survives during the period of  emergency despite the Presidential Order  suspending the right to move any court for the  enforcement of the right contained in Article 21. The  answer to this question is linked with the answer to  the question as to whether Article 21 is the sole  repository of the right to life and personal liberty.  After giving the matter my earnest consideration, I  am of the opinion that Article 21 cannot be  considered to be the sole repository of the right to  life and personal liberty. The right to life and  personal liberty is the most precious right of human  beings in civilised societies governed by the rule of  law. Many modern Constitutions incorporate certain  fundamental rights, including the one relating to  personal freedom. According to Blackstone, the  absolute rights of Englishmen were the rights of  personal security, personal liberty and private  property. The American Declaration of  Independence (1776) states that all men are  created equal, and among their inalienable rights  are life, liberty, and the pursuit of happiness. The  Second Amendment to the US Constitution refers  inter alia to security of person, while the Fifth  Amendment prohibits inter alia deprivation of life  

                                                                                                                                                                                           

However, the legal analysis in this Chapter confirms his conclusion though on different grounds  

from those which he has given.” (at Appendix pg. 2229).  

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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 Declaration of Human Rights. One of its  most notable achievements was the Declaration of  Delhi, 1959. This resulted from a Congress held in  New Delhi attended by jurists from more than 50  countries, and was based on a questionnaire  circulated to 75,000 lawyers. “Respect for the  supreme value of human personality” was stated to  be the basis of all law (see page 21 of the  Constitutional and Administrative Law by O. Hood  Phillips, 3rd Ed.).  

 

531. I am unable to subscribe to the view that when  right to enforce the right under Article 21 is  suspended, the result would be that there would be  no remedy against deprivation of a person’s life or  liberty by the State even though such deprivation is  without the authority of law or even in flagrant  violation of the provisions of law. The right not to be  deprived of one’s life or liberty without the authority  of law was not the creation of the Constitution. Such  right existed before the Constitution came into force.  The fact that the framers of the Constitution made  an aspect of such right a part of the fundamental  rights did not have the effect of exterminating the  independent identity of such right and of making  Article 21 to be the sole repository of that right. Its  real effect was to ensure that a law under which a  person can be deprived of his life or personal liberty  should prescribe a procedure for such deprivation

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or, according to the dictum laid down by Mukherjea,  J. in Gopalan’s case, such law should be a valid law  not violative of fundamental rights guaranteed by  Part III of the Constitution. Recognition as  fundamental right of one aspect of the pre- constitutional right cannot have the effect of making  things less favourable so far as the sanctity of life  and personal liberty is concerned compared to the  position if an aspect of such right had not been  recognised as fundamental right because of the  vulnerability of fundamental rights accruing from  Article 359. I am also unable to agree that in view of  the Presidential Order in the matter of sanctity of life  and liberty, things would be worse off compared to  the state of law as it existed before the coming into  force of the Constitution.”  

(at pages 747 and 751)    92. According to us this is a correct enunciation of the law for  

the following reasons:   

(i) It is clear that the international covenants and  

declarations to which India was a party, namely, the 1948  

Declaration and the 1966 Covenant both spoke of the  

right to life and liberty as being “inalienable”.  Given the  

fact that this has to be read as being part of Article 21 by  

virtue of the judgments referred to supra, it is clear that  

Article 21 would, therefore, not be the sole repository of  

these human rights but only reflect the fact that they were

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“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 subsequent decisions.”, and  

expressly held that these rights are natural rights that  

inhere in human beings thus:-  

“61. The approach in the interpretation of  fundamental rights has been evidenced in a

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recent case M. Nagaraj v. Union of India,  (2006) 8 SCC 212, in which the Court noted:  “20. This principle of interpretation is  particularly apposite to the interpretation of  fundamental rights. It is a fallacy to regard  fundamental rights as a gift from the State to  its citizens. Individuals possess basic human  rights independently of any constitution by  reason of the basic fact that they are  members of the human race. These  fundamental rights are important as they  possess intrinsic value. Part III of the  Constitution does not confer fundamental  rights. It confirms their existence and gives  them protection. Its purpose is to withdraw  certain subjects from the area of political  controversy to place them beyond the reach of  majorities and officials and to establish them  as legal principles to be applied by the courts.  Every right has a content. Every foundational  value is put in Part III as a fundamental right  as it has intrinsic value. The converse does  not apply. A right becomes a fundamental  right because it has foundational value. Apart  from the principles, one has also to see the  structure of the article in which the  fundamental value is incorporated.  Fundamental right is a limitation on the power  of the State. A Constitution, and in particular  that of it which protects and which entrenches  fundamental rights and freedoms to which all  persons in the State are to be entitled is to be  given a generous and purposive construction.  In Sakal Papers (P) Ltd. v. Union of India [AIR  1962 SC 305 : (1962) 3 SCR 842], this Court  has held that while considering the nature and  content of fundamental rights, the Court must  not be too astute to interpret the language in a  literal sense so as to whittle them down. The  Court must interpret the Constitution in a

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manner which would enable the citizens to  enjoy the rights guaranteed by it in the fullest  measure. An instance of literal and narrow  interpretation of a vital fundamental right in the  Indian Constitution is the early decision of the  Supreme Court in A.K. Gopalan v. State of  Madras [AIR 1950 SC 27 : 1950 SCR 88 :  1950 Cri LJ 1383]. Article 21 of the  Constitution provides that no person shall be  deprived of his life and personal liberty except  according to procedure established by law.  The Supreme Court by a majority held that  ‘procedure established by law’ means any  procedure established by law made by the  Parliament or the legislatures of the State.  The Supreme Court refused to infuse the  procedure with principles of natural justice. It  concentrated solely upon the existence of  enacted law. After three decades, the  Supreme Court overruled its previous decision  in A.K. Gopalan [A.K. Gopalan v. State of  Madras (AIR 1950 SC 27 : 1950 SCR 88 :  1950 Cri LJ 1383)] and held in its landmark  judgment in Maneka Gandhi v. Union of India,  (1978) 1 SCC 248, that the procedure  contemplated by Article 21 must answer the  test of reasonableness. The Court further held  that the procedure should also be in  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 III on the principle that certain  unarticulated rights are implicit in the  enumerated guarantees.”

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120  

 

                                              (at pages 85-86)    

(iii) Seervai in a trenchant criticism of the majority judgment  

states as follows:  

“30. The result of our discussion so far may  be stated thus: Article 21 does not confer a  right to life or personal liberty: Article 21  assumes or recognizes the fact that those  rights exist and affords protection against the  deprivation of those rights to the extent there  provided.  The expression “procedure  established by law” does not mean merely a  procedural law but must also include  substantive laws.  The word “law” must mean  a valid law, that is, a law within the legislative  competence of the legislature enacting it,  which law does not violate the limitations  imposed on legislative power by fundamental  rights.   “Personal liberty” means the liberty of  the person from external restraint or coercion.   Thus Article 21 protects life and personal  liberty by putting restrictions on legislative  power, which under Articles 245 and 246 is  subject to the provisions of “this Constitution”,  and therefore subject to fundamental rights.   The precise nature of this protection is difficult  to state, first because among other things,  such protection is dependent on reading  Article 21 along with other Articles conferring  fundamental rights, such as Articles 14, 20  and 22(1) and (2); and, secondly, because  fundamental rights from their very nature refer  to ordinary laws which deal with the subject  matter of those rights.     31. The right to life and personal liberty  which inheres in the body of a living person is  recognized and protected not merely by

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Article 21 but by the civil and criminal laws of  India, and it is unfortunate that in the Habeas  Corpus Case this aspect of the matter did not  receive the attention which it deserved.   Neither the Constitution nor any law confers  the right to life.  That right arises from the  existence of a living human body.  The most  famous remedy for securing personal liberty,  the writ of habeas corpus, requires the  production before the court of the body of the  person alleged to be illegally detained.  The  Constitution gives protection against the  deprivation of life and personal liberty; so do  the civil and criminal laws in force in India…”  (See, Seervai, Constitutional Law of India (4th  Edition) Appendix pg. 2219).    

  We are of the view that the aforesaid statement made by  

the learned author reflects the correct position in constitutional  

law. We, therefore, expressly overrule the majority judgments in  

ADM Jabalpur (supra).  

  

93. Before parting with this subject, we may only indicate that  

the majority opinion was done away with by the Constitution’s  

44th Amendment two years after the judgment was delivered.   

By that Amendment, Article 359 was amended to state that  

where a proclamation of emergency is in operation, the  

President may by order declare that the right to move any Court  

for the enforcement of rights conferred by Part III of the

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122  

 

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 indicate to the contrary,  

stand overruled. The later judgments of this Court recognizing  

privacy as a fundamental right do not need to be revisited.  

These cases are, therefore, sent back for adjudication on merits  

to the original Bench of 3 honourable Judges of this Court in  

light of the judgment just delivered by us.   

     …………………………......J.  (R.F. Nariman)  

New Delhi;  August 24, 2017.

473

1  

    REPORTABLE  

IN THE SUPREME COURT OF INDIA    

CIVIL ORIGINAL JURISDICTION    

WRIT PETITION (CIVIL) NO. 494 OF 2012    

    Justice K.S. Puttaswamy (Retd.)   & Anr.      …….Petitioner (s)      

    VERSUS       

Union of India & Ors.   …….Respondent(s)         WITH    

T.C.(C) No. 151 of 2013  

T.C.(C) No. 152 of 2013  

W.P.(C) No. 833 of 2013  

W.P.(C) No. 829 of 2013  

W.P.(C) No. 932 of 2013  

Cont. Pet. (C) No. 144 of 2014  

IN  

 W.P. (C) No. 494 of 2012  

T.P. (C) No. 313 of 2014  

T.P. (C) No. 312 of 2014

474

2  

S.L.P. (Crl.) No. 2524 of 2014  

W.P. (C) No. 37 of 2015  

W.P. (C) No. 220 of 2015  

Cont. Pet. (C) No. 674 of 2015  

IN  

W.P. (C) No. 829 of 2013  

T.P.(C) No. 921 of 2015  

Cont. Pet. (C) No. 470 of 2015  

IN  

W.P. (C) No. 494 of 2012  

Cont. Pet. (C) No. 444 of 2016  

IN  

W.P. (C) No. 494 of 2012  

Cont. Pet. (C) No. 608 of 2016  

IN  

W.P. (C) No. 494 of 2012  

W.P. (C) No. 797 of 2016  

Cont. Pet. (C) No. 844 of 2017  

IN  

W.P. (C) No. 494 of 2012  

W.P. (C) No. 342 of 2017    AND

475

3  

 W.P. (C) No. 372 of 2017    

       J U D G M E N T                       

 

Abhay Manohar Sapre, J.       

1) I have had the benefit of reading the scholarly  

opinions of my esteemed learned brothers, Justice J.  

Chelameswar, Justice S.A. Bobde, Justice Rohinton  

Fali Nariman and Dr. Justice D.Y. Chandrachud.  

Having read them carefully, I have nothing more  

useful to add to the reasoning and the conclusion  

arrived at by my esteemed brothers in their respective  

opinions.  

2) However, keeping in view the importance of the  

questions referred to this Bench, I wish to add only  

few words of concurrence of my own.

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4  

3) In substance, two questions were referred to this  

Nine Judge Bench, first, whether the law laid down in  

the case of M.P.Sharma and others vs. Satish  

Chandra, District Magistrate Delhi & Ors., AIR 1954  

SC 300 and Kharak Singh vs. State of Uttar Pradesh  

& Ors. AIR 1963 SC 1295 insofar as it relates to the  

"right to privacy of an individual”  is correct and  

second, whether "right to privacy" is a fundamental  

right under Part III of the Constitution of India?     

4) Before I examine these two questions, it is  

apposite to take note of the Preamble to the  

Constitution, which, in my view, has bearing on the  

questions referred.  

5) The Preamble to the Constitution reads as  

under:-  

“WE, THE PEOPLE OF INDIA, having  solemnly resolved to constitute India into a  SOVEREIGN SOCIALIST SECULAR

477

5  

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 "People of India" by using the expression, WE, THE  

PEOPLE OF INDIA, in the beginning of the Preamble.  

The Constitution was accordingly adopted, enacted  

and then given to ourselves.    

478

6  

8) The keynote of the Preamble was to lay emphasis  

on two positive aspects – one, "the Unity of the Nation"  

and the second "Dignity of the individual".  The  

expression "Dignity" carried with it moral and spiritual  

imports.  It also implied an obligation on the part of  

the Union to respect the personality of every citizen  

and create the conditions in which every citizen would  

be left free to find himself/herself and attain self-

fulfillment.   

9) The incorporation of expression "Dignity of the  

individual" in the Preamble was aimed essentially to  

show explicit repudiation of what people of this  

Country had inherited from the past. Dignity of the  

individual was, therefore, always considered the prime  

constituent of the fraternity, which assures the dignity  

to every individual. Both expressions are  

interdependent and intertwined.  

479

7  

10) In my view, unity and integrity of the Nation  

cannot survive unless the dignity of every individual  

citizen is guaranteed. It is inconceivable to think of  

unity and integration without the assurance to an  

individual to preserve his dignity. In other words,  

regard and respect by every individual for the dignity  

of the other one brings the unity and integrity of the  

Nation.  

11) The expressions "liberty“, "equality" and  

"fraternity" incorporated in the Preamble are not  

separate entities. They have to be read in juxtaposition  

while dealing with the rights of the citizens. They, in  

fact, form a union. If these expressions are divorced  

from each other, it will defeat the very purpose of  

democracy.   

12) In other words, liberty cannot be divorced from  

equality so also equality cannot be divorced from

480

8  

liberty and nor can liberty and equality be divorced  

from fraternity. The meaning assigned to these  

expressions has to be given due weightage while  

interpreting Articles of Part III of the Constitution.  

13) It is, therefore, the duty of the Courts and  

especially this Court as sentinel on the qui vive to  

strike a balance between the changing needs of the  

Society and the protection of the rights of the citizens  

as and when the issue relating to the infringement of  

the rights of the citizen comes up for consideration.  

Such a balance can be achieved only through securing  

and protecting liberty, equality and fraternity with  

social and political justice to all the citizens under rule  

of law (see-S.S. Bola & Ors. vs. B.D. Sardana & Ors.  

1997 (8) SCC 522).  

14) Our Constitution has recognized certain existing  

cherished rights of an individual. These rights are

481

9  

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 fundamental

482

10

rights falling in Part III though not defined in the  

Constitution. It was done keeping in view the fact that  

the Constitution is a sacred living document and,  

hence, susceptible to appropriate interpretation of its  

provisions based on changing needs of "We, the  

People” and other well defined parameters.  

16) Article 21 is perhaps the smallest Article in terms  

of words (18) in the Constitution. It is the heart of the  

Constitution as was said by Dr. B. R. Ambedkar.  It  

reads as under: -   

“No person shall be deprived of his life or  personal liberty except according to  procedure established by law.”  

  17) This Article is in Part III of the Constitution and  

deals with Fundamental    rights of the citizens. It has  

been the subject matter of judicial interpretation by  

this Court along with other Articles of Part III in  

several landmark cases beginning from A.K.Gopalan

483

11

vs. State of Madras, AIR 1950 SC 27 up to Mohd Arif  

@ Ashfaq vs. Registrar, Supreme Court of India   

(2014) 9 SCC 737. In between this period, several  

landmark judgments were rendered by this Court.  

18) Part III of the Constitution and the true meaning  

of the expression "personal liberty" in Article 21 and  

what it encompasses was being debated all along in  

these cases. The great Judges of this Court with their  

vast knowledge, matured thoughts, learning and with  

their inimitable style of writing coupled with the able  

assistance of great lawyers gradually went on to  

expand the meaning of the golden words (personal  

liberty) with remarkable clarity and precision.   

19) The learned Judges endeavored and expanded  

the width of the fundamental rights and preserved the  

freedom of the citizens. In the process of the judicial

484

12

evolution, the law laid down in some earlier cases was  

either overruled or their correctness doubted.  

20) It is a settled rule of interpretation as held in the  

case of Rustom Cavasjee Cooper vs. Union of India,  

(1970) 1 SCC 248 that the Court should always make  

attempt to expand the reach and ambit of the  

fundamental rights rather than to attenuate their  

meaning and the content by process of judicial  

construction. Similarly, it is also a settled principle of  

law laid down in His Holiness Kesavananda Bharati  

Sripadagalvaru vs. State of Kerala & Anr., (1973) 4  

SCC 225 that the Preamble is a part of the  

Constitution and, therefore, while interpreting any  

provision of the Constitution or examining any  

constitutional issue or while determining the width or  

reach of any provision or when any ambiguity or  

obscurity is noticed in any provision, which needs to

485

13

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

486

14

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 decades, this Court  

has interpreted our Constitution keeping in view the  

socio, economic and political conditions of the Indian  

Society, felt need of, We, the People of this Country  

and the Country in general in comparison to the  

conditions prevailing in other Countries.  

24) Indeed, it may not be out of place to state that  

this Court while interpreting the provisions of Indian  

Companies Act, which is modeled on English  

Company’s Act has cautioned that the Indian Courts  

will have to adjust and adapt, limit or extend, the  

principles derived from English decisions, entitled as  

they are to great respect, suiting the conditions to the  

Indian society as a whole. (See - Hind Overseas (P)

487

15

Ltd. vs. Raghunath Prasad Jhunjhunwala & Anr.   

(1976) 3 SCC 259).   The questions referred need  

examination in the light of these principles.  

25) In my considered opinion, “right to privacy of any  

individual” is essentially a natural right, which inheres  

in every human being by birth. Such right remains  

with the human being till he/she breathes last. It is  

indeed inseparable and inalienable from human being.  

In other words, it is born with the human being and  

extinguish with human being.   

26) One cannot conceive an individual enjoying  

meaningful life with dignity without such right. Indeed,  

it is one of those cherished rights, which every civilized  

society governed by rule of law always recognizes in  

every human being and is under obligation to  

recognize such rights in order to maintain and  

preserve the dignity of an individual regardless of

488

16

gender, race, religion, caste and creed. It is, of course,  

subject to imposing certain reasonable restrictions  

keeping in view the social, moral and compelling  

public interest, which the State is entitled to impose  

by law.    

27) “Right to privacy” is not defined in law except in  

the dictionaries. The Courts, however, by process of  

judicial interpretation, has assigned meaning to this  

right in the context of specific issues involved on case-

to-case basis.  

28) The most popular meaning of “right to privacy”  

is - "the right to be let alone”. In Gobind vs. State of  

Madhya Pradesh & Anr., (1975) 2 SCC 148,  

K.K.Mathew, J. noticed multiple facets of this right  

(Para 21-25) and then gave a rule of caution while  

examining the contours of such right on case-to-case  

basis.    

489

17

29) In my considered view, the answer to the  

questions can be found in the law laid down by this  

Court in the cases beginning from Rustom Cavasjee  

Cooper (supra) followed by Maneka Gandhi vs. Union  

of India & Anr. (1978) 1 SCC 248, People’s Union for  

Civil Liberties (PUCL) vs. Union of India & Anr.,  

(1997) 1 SCC 301,  Gobind’s case (supra), Mr. "X"  vs.  

Hospital ‘Z’ (1998) 8 SCC 296, District Registrar &  

Collector, Hyderabad & Anr. vs. Canara Bank &  

Ors., (2005) 1 SCC 496 and lastly in Thalappalam  

Service Coop. Bank Ltd. & Ors. vs. State of Kerala  

& Ors., (2013) 16 SCC 82.  

30) It is in these cases and especially the two –  

namely, Gobind(supra) and District Registrar(supra),  

their Lordships very succinctly examined in great  

detail the issue in relation to "right to privacy" in the

490

18

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 an independent right of privacy as an  emanation from them which one can  characterize as a fundamental right, we do  not think that the right is absolute.”  

 32) Similarly in the case of District Registrar(supra),  

the learned Chief Justice R.C.Lahoti (as His Lordship  

then was) speaking for the Bench with his distinctive  

style of writing concluded in Para 39 as under :  

“39. 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

491

19

intrusion can be a reasonable restriction only  if it has reasonable basis or reasonable  materials to support it.”  

 33) In all the aforementioned cases, the question of  

“right to privacy” was examined in the context of  

specific grievances made by the citizens wherein their  

Lordships, inter alia, ruled that firstly, “right to  

privacy” has multiple facets and though such right can  

be classified as a part of fundamental right emanating  

from Article 19(1)(a) and (d) and Article 21, yet it is not  

absolute and secondly,  it is always subject to certain  

reasonable restrictions on the basis of compelling  

social, moral and public interest and lastly,  any such  

right when asserted by the citizen in the Court of law  

then it has to go through a process of case-to-case  

development.   

34) I, therefore, do not find any difficulty in tracing  

the  "right to privacy“ emanating from the two

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expressions of the Preamble namely, "liberty of  

thought, expression, belief, faith and worship" and  

"Fraternity assuring the dignity of the individual“ and  

also emanating from Article 19 (1)(a) which gives to  

every citizen  "a freedom of speech and expression"  

and further emanating from Article 19(1)(d) which  

gives to every citizen  "a right to move freely  

throughout the territory of India" and lastly,  

emanating from the expression “personal liberty"  

under Article 21.  Indeed, the right to privacy is inbuilt  

in these expressions and flows from each of them and  

in juxtaposition.   

35) In view of foregoing discussion, my answer to  

question No. 2 is that “right to privacy” is a part of  

fundamental right of a citizen guaranteed under Part  

III of the Constitution. However, it is not an absolute  

right but is subject to certain reasonable restrictions,

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21

which the State is entitled to impose on the basis of  

social, moral and compelling public interest in  

accordance with law.  

36) Similarly, I also hold that the “right to privacy”  

has multiple facets, and, therefore, the same has to go  

through a process of case-to-case development as and  

when any citizen raises his grievance complaining of  

infringement of his alleged right in accordance with  

law.  

37) My esteemed learned brothers, Justice J.  

Chelameswar, Justice S.A. Bobde, Justice Rohinton  

Fali Nariman and Dr. Justice D.Y. Chandrachud have  

extensively dealt with question No. 1 in the context of  

Indian and American Case law on the subject  

succinctly. They have also dealt with in detail the  

various submissions of the learned senior counsel  

appearing for all the parties.

494

22

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 some senior counsel also made attempts to  

attack the legality and correctness of Aadhar Scheme  

in their submissions.   

40) These submissions, in my view, cannot be  

entertained in this case. It is for the reason that firstly,  

this Bench is constituted to answer only specific  

questions; secondly, the submissions pressed in  

service are not referred to this Bench and lastly, it is a

495

23

settled principle of law that the reference Court cannot  

travel beyond the reference made and is confined to  

answer only those questions that are referred. (See -  

Naresh Shridhar Mirajkar & Ors. vs. State of  

Maharashtra & Anr. (1966) 3 SCR 744 at page 753).   

41) Suffice it to say that as and when any of these  

questions arise in any case, the appropriate Bench will  

examine such questions on its merits in accordance  

with law.  

42) Before I part, I wish to place on record that it was  

pleasure hearing the erudite arguments addressed by  

all the learned counsel. Every counsel argued with  

brevity, lucidity and with remarkable clarity. The hard  

work done by each counsel was phenomenal and  

deserves to be complimented. Needless to say, but for  

their able assistance both in terms of oral argument as  

well as written briefs (containing thorough

496

24

submissions, variety of case law and the literature on  

the subject), it was well nigh  impossible to express the  

views.   

                    ………..................................J.                          [ABHAY MANOHAR SAPRE]  

New Delhi,  August 24, 2017.                                         

497

1  

 

REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CIVIL ORIGINAL JURISDICTION  

WRIT  PETITION (CIVIL) NO. 494 OF 2012  

 

JUSTICE K.S. PUTTASWAMY (RETD.),  

AND ANOTHER       …PETITIONERS  

 

VS.  

 

UNION OF INDIA AND OTHERS             …RESPONDENTS  

 

 

WITH  

 

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  

 

CONTEMPT PETITION (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 OF 2014  

 

W.P.(C) NO.37 OF 2015

498

2  

 

 

W.P.(CIVIL) NO. 220 OF 2015  

 

CONTEMPT PETITION (C) NO.674 OF 2015 IN W.P. (C) NO.829 OF 2013  

 

T.P. (CIVIL) NO. 921/2015  

 

CONTEMPT PETITION (C) NO.470 OF 2015 IN W.P.(C) NO.494 OF 2012  

 

CONTEMPT PETITION (C) NO.444 OF 2016 IN W.P. (C) NO.494 OF 2012  

 

CONTEMPT PETITION (C) NO.608 OF 2016 IN W.P. (C) NO.494 OF 2012  

 

W.P.(C) NO. 797 OF 2016  

 

CONTEMPT PETITION (C) NO.844 OF 2017 IN W.P. (C) NO.494 OF 2012  

 

AND  

 

W.P. (CIVIL) NO. 000372 OF 2017  

 

 

 

J U D G M E N T  

 

SANJAY KISHAN   KAUL, J  

 

1. I have had the benefit of reading the exhaustive and erudite  

opinions of Rohinton F. Nariman, J, and Dr. D.Y. Chandrachud, J.   The  

conclusion is the same, answering the reference that privacy is not just a  

common law right, but a fundamental right falling in Part III of the

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3  

 

Constitution of India.  I agree with this conclusion as privacy is a primal,  

natural right which is inherent to an individual. However, I am tempted  

to set out my perspective on the issue of privacy as a right, which to my  

mind, is an important core of any individual existence.   

2. A human being, from an individual existence, evolved into a  

social animal. Society thus envisaged a collective living beyond the  

individual as a unit to what came to be known as the family. This, in  

turn, imposed duties and obligations towards the society. The right to  

“do as you please” became circumscribed by norms commonly  

acceptable to the larger social group. In time, the acceptable norms  

evolved into formal legal principles.    

3. “The right to be”, though not extinguished for an individual, as  

the society evolved, became hedged in by the complexity of the norms.   

There has been a growing concern of the impact of technology which  

breaches this “right to be”, or privacy – by whatever name we may call  

it.  

4. The importance of privacy may vary from person to person  

dependent on his/her approach to society and his concern for being left

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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  

views, it became necessary for the reference to be made to a nine-

Judges  Bench.  

8. It is nobody’s case that privacy is not a valuable right, but the  

moot point is whether it is only a common law right or achieves the  

status of a fundamental right under the Grundnorm – the Indian

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5  

 

Constitution.  We have been ably assisted by various senior counsels  

both for and against the proposition as to whether privacy is a  

Constitutional right or not.  

PRIVACY  

9. In the words of Lord Action:  

“the sacred rights of mankind are not to be rummaged for  

among old parchments of musty records.  They are written,  

as with a sunbeam, in the whole volume of human nature,  

by the hand of Divinity itself, and can never be obscured by  

mortal power 1 .”  

 

10. Privacy is an inherent right. It is thus not given, but already exists.  

It is about respecting an individual and it is undesirable to ignore a  

person’s wishes without a compelling reason to do so.  

11. The right to privacy may have different aspects starting from ‘the  

right to be let alone’ in the famous article by Samuel Warren and Louis  

D. Brandeis 2 . One such aspect is an individual’s right to control  

dissemination of his personal information. There is nothing wrong in  

individuals limiting access and their ability to shield from unwanted  

access. This aspect of the right to privacy has assumed particular  

                                                           1 The History of Freedom and Other Essays (1907), p 587  

2   The Right to Privacy 4 HLR 193  

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significance in this information age and in view of technological  

improvements. A person-hood would be a protection of one’s  

personality, individuality and dignity. 3   However, no right is unbridled  

and so is it with privacy. We live in a society/ community. Hence,  

restrictions arise from the interests of the community, state and from  

those of others. Thus, it would be subject to certain restrictions which I  

will revert to later.   

PRIVACY & TECHNOLOGY   

12. We are in an information age.  With the growth and  

development of technology, more information is now easily available.  

The information explosion has manifold advantages but also some  

disadvantages. The access to information, which an individual may not  

want to give, needs the protection of privacy.    

The right to privacy is claimed qua the State and non-State actors.  

Recognition and enforcement of claims qua non-state actors may  

require legislative intervention by the State.  

 

                                                           3  Daniel Solove, ’10 Reasons Why Privacy Matters’ published on January 20, 2014  

https://www.teachprivacy.com/10-reasons-privacy-matters/

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A. Privacy Concerns Against The State   

13. The growth and development of technology has created new  

instruments for the possible invasion of privacy by the State, including  

through surveillance, profiling and data collection and processing.  

Surveillance is not new, but technology has permitted surveillance in  

ways that are unimaginable.  Edward Snowden shocked the world with  

his disclosures about global surveillance. States are utilizing technology  

in the most imaginative ways particularly in view of increasing global  

terrorist attacks and heightened public safety concerns. One such  

technique being adopted by States is ‘profiling’. The European Union  

Regulation of 2016 4  on data privacy defines ‘Profiling’ as any form of  

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,  

                                                           

4  Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of  

natural persons with regard to the processing of personal data and on the free movement of such data, and  

repealing Directive 95/46/EC (General Data Protection Regulation)   

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interests, reliability, behaviour, location or movements 5 . 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, not only in our country, but  

throughout the world makes the safety of persons and the State a  

matter to be balanced against this right to privacy.  

B. Privacy Concerns Against Non-State Actors   

15. The capacity of non-State actors to invade the home and privacy  

has also been enhanced. Technological development has facilitated  

journalism that is more intrusive than ever before.  

16. Further, in this digital age, individuals are constantly generating  

valuable data which can be used by non-State actors to track their  

moves, choices and preferences. Data is generated not just by active  

sharing of information, but also passively, with every click on the ‘world  

                                                           

5  Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of  

natural persons with regard to the processing of personal data and on the free movement of such data, and  

repealing Directive 95/46/EC (General Data Protection Regulation)   

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9  

 

wide web’. We are stated to be creating an equal amount of information  

every other day, as humanity created from the beginning of recorded  

history to the year 2003 – enabled by the ‘world wide web’. 6
  

17. Recently, it was pointed out that “‘Uber’, the world’s largest taxi  

company, owns no vehicles. ‘Facebook’, the world’s most popular media  

owner, creates no content. ‘Alibaba’, the most valuable retailer, has no  

inventory. And ‘Airbnb’, the world’s largest accommodation provider,  

owns no real estate. Something interesting is happening.” 7  ‘Uber’ knows  

our whereabouts and the places we frequent. ‘Facebook’ at the least,  

knows who we are friends with. ‘Alibaba’ knows our shopping habits.  

‘Airbnb’ knows where we are travelling to. Social networks providers,  

search engines, e-mail service providers, messaging applications are all  

further examples of non-state actors that have extensive knowledge of  

our movements, financial transactions, conversations – both personal  

and professional, health, mental state, interest, travel locations, fares  

and shopping habits. As we move towards becoming a digital economy  

                                                           6 Michael L. Rustad, SannaKulevska, Reconceptualizing the right to be forgotten to enable transatlantic data flow,  

28 Harv. J.L. & Tech. 349  

7 https://techcrunch.com/2015/03/03/in-the-age-of-disintermediation-the-battle-is-all-for-the-customer-interface/  

Tom Goodwin ‘The Battle is for Customer Interface’

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10  

 

and increase our reliance on internet based services, we are creating  

deeper and deeper digital footprints – passively and actively.   

18. These digital footprints and extensive data can be analyzed  

computationally to reveal patterns, trends, and associations, especially  

relating to human behavior and interactions and hence, is valuable  

information. This is the age of ‘big data’. The advancement in technology  

has created not just new forms of data, but also new methods of  

analysing the data and has led to the discovery of new uses for data. The  

algorithms are more effective and the computational power has  

magnified exponentially. A large number of people would like to keep  

such search history private, but it rarely remains private, and is collected,  

sold and analysed for purposes such as targeted advertising. Of course,  

‘big data’ can also be used to further public interest. There may be cases  

where collection and processing of big data is legitimate and  

proportionate, despite being invasive of privacy otherwise.   

19. Knowledge about a person gives a power over that person. The  

personal data collected is capable of effecting representations,  

influencing decision making processes and shaping behaviour.  It can be

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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 may be desirable and  

permissible in order to ensure national security, it cannot be  

unregulated. 8   

21. The concept of ‘invasion of privacy’ is not the early conventional  

thought process of ‘poking ones nose in another person’s affairs’.  It is  

not so simplistic.  In today’s world, privacy is a limit on the government’s  

power as well as the power of private sector entities. 9   

                                                           

8 Kadhim Shubber, Blackberry gives Indian Government ability to intercept messages published by Wired on 11 July,  

2013  http://www.wired.co.uk/article/blackberry-india  

9  Daniel Solove, ’10 Reasons Why Privacy Matters’ published on January 20, 2014  

https://www.teachprivacy.com/10-reasons-privacy-matters/

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12  

 

22. George Orwell created a fictional State in ‘Nineteen Eighty-Four.’   

Today, it can be a reality. The technological development today can  

enable not only the state, but also big corporations and private entities  

to be the ‘big brother’.  

The Constitution of India - A Living Document  

23. The  Constitutional jurisprudence of  all democracies in the  

world, in some way or the other, refer to ‘the brooding spirit of the law’,  

‘the collective conscience’, ‘the intelligence of a future day’, ‘the heaven  

of freedom’ , etc.  The spirit is justice for all, being the cherished value.  

24. This spirit displays many qualities, and has myriad ways of  

expressing herself – at times she was liberty, at times dignity. She was  

equality, she was fraternity, reasonableness and fairness. She was in  

Athens during the formative years of the demoscratos and she  

manifested herself in England as the Magna Carta. Her presence was felt  

in France during the Revolution, in America when it was being founded  

and in South Africa during the times of Mandela.

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13  

 

25. In our country, she inspired our founding fathers – The Sovereign,  

Socialist, Secular Democratic Republic of India was founded on her very  

spirit.   

26. During the times of the Constituent Assembly, the great  

intellectuals of the day sought to give this brooding spirit a form, and  

sought to invoke her in a manner that they felt could be understood,  

applied and interpreted – they drafted the Indian Constitution.   

27. In it they poured her essence, and gave to her a grand throne in  

Part III  of the Indian Constitution.  

28. The document that they created had her everlasting blessings,  

every part of the Constitution resonates with the spirit of Justice and what  

it stands for: ‘peaceful, harmonious and orderly social living’. The  

Constitution stands as a codified representation of the great spirit of  

Justice itself. It is because it represents that Supreme Goodness that it has  

been conferred the status of the Grundnorm, that it is the Supreme Legal  

Document in the country.   

29. The Constitution was not drafted for a specific time period or for a  

certain generation, it was drafted to stand firm, for eternity. It sought to

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14  

 

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 which may appear on the horizon of the future. It  

endears. The Constitution was never intended to serve as a means to stifle  

the protection of the valuable rights of its citizens. Its aim and purpose  

was completely the opposite.    

                                                           10

Dhananjay Keer, Dr.Ambedkar: Life and Mission, Bombay: Popular Prakashan, 1971 [1954], p.410.)

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15  

 

32. The founders of the Constitution, were aware of the fact that the  

Constitution would need alteration to keep up with the mores and trends  

of the age. This was precisely the reason that an unrestricted amending  

power was sought to be incorporated in the text of the Constitution in  

Part 20 under Article 368. The very incorporation of such a plenary power  

in a separate part altogether is prima facie proof that the Constitution,  

even during the times of its making was intended to be a timeless  

document, eternal in nature, organic and living.   

33. Therefore, the theory of original intent itself supports the stand that  

the original intention of the makers of the Constitutional was to ensure  

that it does not get weighed down by the originalist  

interpretations/remain static/fossilised, but changes and evolves to suit  

the felt need of the times. The original intention theory itself  

contemplates a Constitution which is organic in nature.   

34. The then Chief Justice of India, Patanjali Sastri, in the State of West  

Bengal vs. Anwar Ali Sarkar 11

observed as follows:  

“90. I find it impossible to read these portions of the  

Constitution without regard to the background out of which  

                                                           11

 AIR 1952 SCR 284

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16  

 

they arose. I cannot blot out their history and omit from  

consideration the brooding spirit of the times. They are not  

just dull, lifeless words static and hide-bound as in some  

mummified manuscript, but, living flames intended to give  

life to a great nation and order its being, tongues of  

dynamic fire, potent to mould the future as well as guide  

the present. The Constitution must, in my judgment, be left  

elastic enough to meet from time to time the altering  

conditions of a changing world with its shifting emphasis  

and differing needs.”  

 

35. How the Constitution should be read and interpreted is best found  

in the words of Khanna,J., in Kesavananda Bharati v. State of Kerala 12

as  

follows:  

“1437. …. A Constitution is essentially different from  

pleadings filed in Court of litigating parties. Pleadings  

contain claim and counter-claim of private parties engaged  

in litigation, while a Constitution provides for the  

framework of the different organs of the State viz. the  

executive, the legislature and the judiciary. A Constitution  

also reflects the hopes and aspirations of a people. Besides  

laying down the norms for the functioning of different  

organs a Constitution encompasses within itself the broad  

indications as to how the nation is to march forward in  

times to come. A Constitution cannot be regarded as a  

mere legal document to be read as a will or an agreement  

nor is Constitution like a plaint or written statement filed in  

a suit between two litigants. A Constitution must of  

necessity be the vehicle of the life of a nation. It has also to  

be borne in mind that a Constitution is not a gate but a  

                                                           12

(1973) 4 SCC 225

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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  

intended for the unknown future. The words of Holmes  

while dealing with the U.S. Constitution have equal  

relevance for our Constitution. Said the great Judge:  

 

“… the provisions of the Constitution are not mathematical  

formulas having their essence in their form; they are  

organic living institutions transplanted from English soil.  

Their significance is vital not formal; it is to be gathered not  

simply by taking the words and a dictionary, but by  

considering their origin and the line of their growth.”  

[See Gompers v. United States, 233 U.S. 604, 610 (1914)].  

It is necessary to keep in view Marshall's great premises  

that “It is a Constitution we are expounding”. To quote the  

words of Felix Frankfurter in his tribute to Holmes:  

“Whether the Constitution is treated primarily as a text for  

interpretation or as an instrument of Government may  

make all the difference in the word. The fate of cases, and  

thereby of legislation, will turn on whether the meaning of  

the document is derived from itself or from one's  

conception of the country, its development, its needs, its  

place in a civilized society.” (See Mr Justice Holmes edited  

by Felix Frankfurter, p. 58). (Emphasis supplied)

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18  

 

 

36.       In the same judgment, K.K. Mathew, J., observed :  

1563 ... That the Constitution is a framework of great  

governmental powers to be exercised for great public ends  

in the future, is not a pale intellectual concept but a  

dynamic idea which must dominate in any consideration of  

the width of the amending power. No existing Constitution  

has reached its final form and shape and become, as it  

were a fixed thing incapable of further growth. Human  

societies keep changing; needs emerge, first vaguely felt  

and unexpressed, imperceptibly gathering strength,  

steadily becoming more and more exigent, generating a  

force which, if left unheeded and denied response so as to  

satisfy the impulse behind it, may burst forthwith an  

intensity that exacts more than reasonable satisfaction.        

[See Felix Frankfurter, of Law and Men, p 35] As Wilson  

said, a living Constitution must be Darwinian in structure  

and practice. [See Constitutional Government in The  

United States, p 25] The Constitution of a nation is the  

outward and visible manifestation of the life of the people  

and it must respond to the deep pulsation for change  

within. “A Constitution is an experiment as all life is an  

experiment.” [See Justice Holmes in Abrams v United  

States, 250 US 616]…”  

37.        In the context of the necessity of the doctrine of flexibility while  

dealing with the Constitution, it was observed in Union of India vs. Naveen   

Jindal 13

:  

“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.                                                              13

(2004) 2 SCC 510

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19  

 

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  

soul of the nation and like a phoenix, grows and evolves, but at the same  

time remains young and malleable.  

39.   The notions of goodness, fairness, equality and dignity can never  

be satisfactorily defined, they can only be experienced. They are felt.  

They were let abstract for the reason that these rights, by their very  

nature, are not static. They can never be certainly defined or applied, for  

they change not only with time, but also with situations. The same  

concept can be differently understood, applied and interpreted and  

therein lies their beauty and their importance. This multiplicity of  

interpretation and application is the very core which allows them to be

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20  

 

differently understood and applied in changing social and cultural  

situations.   

40.     Therefore, these core values, these core principles, are all various  

facets of the spirit that pervades our Constitution and they apply and  

read differently in various scenarios. They manifest themselves differently  

in different ages, situations and conditions. Though being rooted in  

ancient Constitutional principles, they find mention and applicability as  

different rights and social privileges. They appear differently, based on  

the factual circumstance. Privacy, for example is nothing but a form of  

dignity, which itself is a subset of liberty.  

41.     Thus, from the one great tree, there are branches, and from  

these branches there are sub-branches and leaves. Every one of these  

leaves are rights, all tracing back to the tree of justice. They are all  

equally important and of equal need in the great social order. They  

together form part of that ‘great brooding spirit’.  Denial of one of them  

is the denial of the whole, for these rights, in manner of speaking,  

fertilise and nurture each other.  

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21  

 

42. What is beautiful in this biological, organic growth is this: While the  

tree appears to be great and magnificent, apparently incapable of further  

growth, there are always new branches appearing, new leaves and buds  

growing. These new rights, are the rights of future generations that  

evolve over the passage of time to suit and facilitate the civility of  

posterity. They are equally part of this tree of rights and equally trace  

their origins to those natural rights which we are all born with. These  

leaves, sprout and grow with the passage of time, just as certain rights  

may get weeded out due to natural evolution.   

43.     At this juncture of time, we are incapable and it is nigh impossible  

to anticipate and foresee what these new buds may be. There can be no  

certainty in making this prediction. However, what remains certain is that  

there will indeed be a continual growth of the great tree that we call the  

Constitution. This beautiful aspect of the document is what makes it  

organic, dynamic, young and everlasting. And it is important that the tree  

grows further, for the Republic finds a shade under its branches.  

44.   The challenges to protect privacy have increased manifold.  The  

observations made in the context of the need for law to change, by

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22  

 

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 the law fails to respond to the needs of  

changing society, then either it will stifle the growth of the  

society and choke its progress or if the society is vigorous  

enough, it will cast away the law which stands in the way of  

its growth. Law must therefore constantly be on the move  

adapting itself to the fast-changing society and not lag  

behind.”  

 

45. It is wrong to consider that the concept of the supervening spirit of  

justice manifesting in different forms to cure the evils of a new age is  

unknown to Indian history. Lord Shri Krishna declared in Chapter 4 Text 8 of  

The Bhagavad Gita thus:  

“प�र�ाणायसाधूनां   �वनाशायचद�ुकृताम।्  

 धम�सं�थापनाथा�य  स�भवा!म  युगे युगे ||”    

                                                           14

(1983) 1 SCC 228

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23  

 

46. The meaning of this profound statement, when viewed after a  

thousand generations is this: That each age and each generation brings with  

it the challenges and tribulations of the times. But that Supreme spirit of  

Justice manifests itself in different eras, in different continents and in  

different social situations, as different values to ensure that there always  

exists the protection and preservation of certain eternally cherished rights  

and ideals. It is a reflection of this divine ‘Brooding spirit of the law’, ‘the  

collective conscience’, ‘the intelligence of a future day’ that has found  

mention in the ideals enshrined in inter- alia, Article 14 and 21, which  

together serve as the heart stones of the Constitution. The spirit that finds  

enshrinement in these articles manifests and reincarnates  itself in ways  

and forms that protect the needs of the society in various ages, as the  

values of liberty, equality, fraternity, dignity, and various other  

Constitutional values, Constitutional principles. It always grows stronger  

and covers within its sweep the great needs of the times. This spirit can  

neither remain dormant nor static and can never be allowed to fossilise.  

47. An issue like privacy could never have been anticipated to acquire  

such a level of importance when the Constitution was being contemplated.

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Yet, today, the times we live in necessitate that it be recognised not only as  

a valuable right, but as a right Fundamental in Constitutional jurisprudence.   

48. There are sure to be times in the future, similar to our experience  

today, perhaps as close as 10 years from today or as far off as a 100 years,  

when we will debate and deliberate whether a certain right is fundamental  

or not. At that time it must be understood that the Constitution was always  

meant to be an accommodative and all-encompassing document, framed to  

cover in its fold all those rights that are most deeply cherished and required  

for a ‘peaceful, harmonious and orderly social living.  

49. The Constitution and its all-encompassing spirit forever grows, but  

never ages.  

Privacy is essential to liberty and dignity  

50. Rohinton F. Nariman, J., and Dr. D.Y. Chandrachud J., have  

emphasized the importance of the protection of privacy to ensure  

protection of liberty and dignity. I agree with them and seek to refer to  

some legal observations in this regard:

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In Robertson and Nicol on Media Law 15

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 Lord Hoffmann in their opinion in Naomi  

Campbell’s case 16

recognized the importance of the protection of privacy.   

Lord Hoffman opined as under:  

“50. What human rights law has done is to identify private  

information as something worth protecting as an aspect of  

human autonomy and dignity. And this recognition has  

raised inescapably the question of why it should be worth  

protecting against the state but not against a private  

person. There may of course be justifications for the  

publication of private information by private persons which  

would not be available to the state - I have particularly in  

mind the position of the media, to which I shall return in a  

moment - but I can see no logical ground for saying that a  

person should have less protection against a private  

individual than he would have against the state for the  

                                                           15

Geoffrey Robertson, QC and Andrew Nicol, QC, Media Law fifth edition p. 265  

16   Campbell V. MGN Ltd.2004 UKHL 22

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publication of personal information for which there is no  

justification. Nor, it appears, have any of the other judges  

who have considered the matter.  

51. The result of these developments has been a shift in the  

centre of gravity of the action for breach of confidence  

when it is used as a remedy for the unjustified publication of  

personal information. …. Instead of the cause of action  

being based upon the duty of good faith applicable to  

confidential personal information and trade secrets alike, it  

focuses upon the protection of human autonomy and  

dignity - the right to control the dissemination of  

information about one's private life and the right to the  

esteem and respect of other people.”  

Lord Nicholls opined as under:   

“12. The present case concerns one aspect of invasion of  

privacy: wrongful disclosure of private information. The  

case involves the familiar competition between freedom of  

expression and respect for an individual's privacy. Both are  

vitally important rights. Neither has precedence over the  

other. The importance of freedom of expression has been  

stressed often and eloquently, the importance of privacy  

less so. But it, too, lies at the heart of liberty in a modern  

state. A proper degree of privacy is essential for the well-

being and development of an individual. And restraints  

imposed on government to pry into the lives of the citizen  

go to the essence of a democratic state: see La Forest J in R  

v Dymont  [1988] 2 SCR 417, 426.”  

52. Privacy is also the key to freedom of thought. A person has a right to  

think. The thoughts are sometimes translated into speech but confined to  

the person to whom it is made.  For example, one may want to criticize  

someone but not share the criticism with the world.

523

27  

 

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  

with the ability to correct and amend it. The hallmark of freedom in a  

democracy is having the autonomy and control over our lives which

524

28  

 

becomes impossible, if important decisions are made in secret without  

our awareness or participation. 17

 

54. Dr. D.Y. Chandrachud, J., notes that recognizing a zone of privacy  

is but an acknowledgement that each individual must be entitled to  

chart and pursue the course of development of their personality.  

Rohinton F. Nariman,J., recognizes informational privacy which  

recognizes that an individual may have control over the dissemination of  

material which is personal to him.  Recognized thus, from the right to  

privacy in this modern age emanate certain other rights such as the right  

of individuals to exclusively commercially exploit their identity and  

personal information, to control the information that is available about  

them on the ‘world wide web’ and to disseminate certain personal  

information for limited purposes alone.  

55. Samuel Warren and Louis Brandeis in 1890 expressed the belief  

that an individual should control the degree and type of private –

personal information that is made public :  

                                                           17

Daniel Solove, ’10 Reasons Why Privacy Matters’ published on January 20, 2014  

https://www.teachprivacy.com/10-reasons-privacy-matters/

525

29  

 

“The common law secures to each individual the right of  

determining, ordinarily, to what extent his thoughts,  

sentiments, and emotions shall be communicated to  

others.... It is immaterial whether it be by word or by signs,  

in painting, by sculpture, or in music.... In every such case  

the individual is entitled to decide whether that which is his  

shall be given to the public.”   

 

This formulation of the right to privacy has particular relevance in  

today’s information and digital age.   

56. An individual has a right to protect his reputation from being  

unfairly harmed and such protection of reputation needs to exist not  

only against falsehood but also certain truths. It cannot be said that a  

more accurate judgment about people can be facilitated by knowing  

private details about their lives – people judge us badly, they judge us in  

haste, they judge out of context, they judge without hearing the whole  

story and they judge with hypocrisy.  Privacy lets people protect  

themselves from these troublesome judgments 18

.  

57. There is no justification for making all truthful information  

available to the public. The public does not have an interest in knowing  

                                                           18

Daniel Solove, ’10 Reasons Why Privacy Matters’ published on January 20, 2014  

https://www.teachprivacy.com/10-reasons-privacy-matters/  

526

30  

 

all information that is true. Which celebrity has had sexual relationships  

with whom might be of interest to the public but has no element of  

public interest and may therefore be a breach of privacy. 19

Thus, truthful  

information that breaches privacy may also require protection.   

58. Every individual should have a right to be able to exercise control  

over his/her own life and image as portrayed to the world and to control  

commercial use of his/her identity. This also means that an individual  

may be permitted to prevent others from using his image, name 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-

                                                           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”.  

527

31  

 

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 torts 22

:   

1)  Unreasonable intrusion upon the seclusion of another;  

2)  Appropriation of another’s name or likeness;   

3)  Unreasonable publicity given to the other’s private life; and   

4)  Publicity that unreasonably places the other in a false light before  

the public  

From the second tort, the U.S. has adopted a right to publicity. 23

 

61. In the poetic words of Felicia Lamport mentioned in the book  

“The Assault on Privacy 24

” :  

“DEPRIVACY  

Although we feel unknown, ignored  

As unrecorded blanks,  

Take heart! Our vital selves are stored  

In giant data banks,  

 

Our childhoods and maturities,  

Efficiently compiled,  

Our Stocks and insecurities,  

All permanently filed,  

                                                             21

Mark P. McKenna, The Right of Publicity and Autonomous Self-Definition, 67 U. PITT. L. REV. 225, 282 (2005).  22

William L. Prosser, Privacy, 48 CAL. L. REV. 383 (1960)  23

the scope of the right to publicity varies across States in the U.S.  24

Arthur R. Miller, The University of Michigan Press

528

32  

 

Our tastes and our proclivities,  

In gross and in particular,  

Our incomes, our activities   

Both extra-and curricular.  

 

And such will be our happy state  

Until the day we die  

When we’ll be snatched up by the great  

Computer in the Sky”  

 

 

INFORMATIONAL PRIVACY  

 

62.   The right of an individual to exercise control over his personal  

data and to be able to control his/her own life would also encompass  

his right to control his existence on the internet. Needless to say that  

this would not be an absolute right.The existence of such a right does  

not imply that a criminal can obliterate his past, but that there are  

variant degrees of mistakes, small and big, and it cannot be said that a  

person should be profiled to the nth extent for all and sundry to know.  

63.    A high school teacher was fired after posting on her Facebook  

page that she was “so not looking forward to another [school] year”  

since that the school district’s residents were “arrogant and snobby”. A  

flight attended was fired for posting suggestive photos of herself in the

529

33  

 

company’s uniform. 25

In the pre-digital era, such incidents would have  

never occurred. People could then make mistakes and embarrass  

themselves, with the comfort that the information will be typically  

forgotten over time.   

64. The impact of the digital age results in information on the internet  

being permanent. Humans forget, but the internet does not forget and  

does not let humans forget. Any endeavour to remove information  

from the internet does not result in its absolute obliteration. The foot  

prints remain.  It is thus, said that in the digital world preservation is  

the norm and forgetting a struggle 26

.    

65. The technology results almost in a sort of a permanent storage in  

some way or the other making it difficult to begin life again giving up  

past mistakes.  People are not static, they change and grow through  

their lives.  They evolve.  They make mistakes.  But they are entitled to  

re-invent themselves and reform and correct their mistakes.  It is  

                                                           25

Patricia Sánchez Abril, Blurred Boundaries: Social Media Privacy and the Twenty-First-Century Employee, 49 AM.  

BUS. L.J. 63, 69 (2012).   

26  Ravi Antani, THE RESISTANCE OF MEMORY : COULD THE EUROPEAN UNION’S RIGHT TO BE FORGOTTEN EXIST IN  

THE UNITED STATES ?

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34  

 

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.  

                                                           

 27

Michael L. Rustad, Sanna Kulevska, Reconceptualizing the right to be forgotten to enable transatlantic data flow,  

28 Harv. J.L. & Tech. 349


531

35  

 

68. Whereas this right to control dissemination of personal  

information in the physical and virtual space should not amount to a  

right of total eraser of history, this right, as a part of the larger right of  

privacy, has to be balanced against other fundamental rights like the  

freedom of expression, or freedom of media, fundamental to a  

democratic society.   

69. Thus, The European Union Regulation of 2016 28

has recognized  

what has been termed as ‘the right to be forgotten’. This does not  

mean that all aspects of earlier existence are to be obliterated, as some  

may have a social ramification. If we were to recognize a similar right, it  

would only mean that an individual  who is no longer desirous of his  

personal data to be processed or stored, should be able to remove it  

from the system where the personal data/ information is no longer  

necessary, relevant, or is incorrect and serves no legitimate interest.  

Such a right cannot be exercised where the information/ data is  

necessary, for exercising the right of freedom of expression and  

information, for compliance with  legal obligations, for the  

                                                           28

Supra   

532

36  

 

performance of a task carried out in public interest, on the grounds of  

public interest in the area of public health, for archiving purposes in  

the public interest, scientific or historical research purposes or  

statistical purposes, or for the establishment, exercise or defence of  

legal claims. Such justifications would be valid in all cases of breach of  

privacy, including breaches of data privacy.   

Data Regulation  

70. I agree with Dr. D.Y. Chandrachud, J., that formulation of data  

protection is a complex exercise which needs to be undertaken by the  

State after a careful balancing of privacy concerns and legitimate State  

interests, including public benefit arising from scientific and historical  

research based on data collected and processed. The European Union  

Regulation of 2016 29

of the European Parliament and of the Council of  

27 April 2016 on the protection of natural persons with regard to the  

processing of personal data and on the free movement of such data  

may provide useful guidance in this regard. The State must ensure that  

                                                           

29  Supra  

533

37  

 

information is not used without the consent of users and that it is used  

for the purpose and to the extent it was disclosed. Thus, for e.g. , if the  

posting on social media websites is meant only for a certain audience,  

which is possible as per tools available, then it cannot be said that all  

and sundry in public have a right to somehow access that information  

and make use of it.  

Test: Principle of Proportionality and Legitimacy  

71. The concerns expressed on behalf of the petitioners arising from  

the possibility of the State infringing the right to privacy can be met by  

the test suggested for limiting the discretion of the State:      

“ (i) The action must be sanctioned by law;  

 (ii)  The proposed action must be necessary 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  

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38  

 

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 30

. Restrictions of the right to privacy may be justifiable in the  

following circumstances subject to the principle of proportionality:  

(a) Other fundamental rights:  The right to privacy must be  considered in relation to its function in society and be  

balanced against other fundamental rights.   

 

(b) Legitimate national security interest   

(c) Public interest including scientific or historical research  

purposes or statistical purposes  

                                                           

30  Supra   

535

39  

 

(d) Criminal Offences: the need of the competent authorities  for prevention investigation, prosecution of criminal  

offences including safeguards against threat to public  

security;  

 

(e) The unidentifiable data: the information does not relate to  identifiedor identifiable natural person but remains  

anonymous. The European Union Regulation of  

2016 31

refers to ‘pseudonymisation’ which means the  

processing of personal data in such a manner that the  

personal data can no longer be attributed to a specific data  

subject without the use of additional information,  

provided that such additional information is kept  

separately and is subject to technical and organisational  

measures to ensure that the personal data are not  

attributed to an identified or identifiable natural person;   

 

(f) The tax etc: the regulatory framework of tax and working  of financial institutions, markets may require disclosure of  

private information. But then this would not entitle the  

disclosure of the information to all and sundry and there  

should be data protection rules according to the objectives  

of the processing. There may however, be processing  

which is compatible for the purposes for which it is initially  

collected.  

 

Report of Group of Experts on Privacy  

 

74. It is not as if the aspect of privacy has not met with concerns. The  

Planning Commission of India constituted the Group of Experts on Privacy  

                                                           

31  Supra   

536

40  

 

under the Chairmanship of Justice A.P. Shah, which submitted a report on  

16 October, 2012.   The five salient features, in his own words, are as  

follows:  

“1. Technological Neutrality and Interoperability with  

International Standards:  The Group agreed that any  

proposed framework for privacy legislation must be  

technologically neutral and interoperable with international  

standards. Specifically the Privacy Act should not make any  

reference to specific technologies and must be generic  

enough such that the principles and enforcement  

mechanisms remain adaptable to changes in society, the  

marketplace, technology, and the government.  To do this it  

is important to closely harmonise the right to privacy with  

multiple international regimes, create trust and facilitate co-

operation between national and international stakeholders  

and provide equal and adequate levels of protection to data  

processed inside India as well 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 privacy, which are crucial  

in establishing a  national ethos for privacy protection,

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41  

 

though the specific forms such protection will take must  

remain flexible to address new and emerging concerns.  

3. Horizontal Applicability:  The Group agreed that any  

proposed privacy legislation must apply both to the  

government as well as to the private sector.   Given that the  

international trend is towards a set of unified norms  

governing both the private and public sector, and both  

sectors process large amounts of data in India, it is  

imperative to bring both within the purview of the  

proposed legislation.  

4.  Conformity with Privacy Principles:  This report  

recommends nine fundamental Privacy Principles to form  

the bedrock of the proposed Privacy Act in India.  These  

principles, drawn from best practices internationally, and  

adapted suitably to an Indian context, are intended to  

provide the baseline level of privacy protection to all  

individual data subjects. The fundamental philosophy  

underlining the principles is the need to hold the data  

controller accountable for the collection, processing     and  

use to which the data is put thereby ensuring that the  

privacy of the data subject is guaranteed.  

5.  Co-Regulatory Enforcement Regime: This report  

recommends the establishment of the office of the Privacy  

Commissioner, both at the central and regional levels.  The  

Privacy Commissioners shall be the primary authority for  

enforcement of the provisions of the Act.  However, rather  

than prescribe a pure top-down approach to enforcement,  

this report recommends a system of co-regulation, with  

equal emphasis on Self-Regulating Organisations (SROs)  

being vested  with the responsibility of autonomously  

ensuring compliance with the Act, subject to regular  

oversight by the Privacy Commissioners.  The SROs, apart  

from possessing industry-specific knowledge, will also be  

better placed to create awareness about the right to  

privacy and explaining the sensitivities of privacy protection  

both within industry as well as to the public in respective

538

42  

 

sectors.  This recommendation of a co-regulatory regime  

will not derogate from the powers of courts which will be  

available as a forum of last resort in case of persistent and  

unresolved violations of the Privacy Act.”  

 

75. The enactment of a law on the subject is still awaited.  This was  

preceded by the Privacy Bill of the year of 2005 but there appears to have  

been little progress. It was only in the course of the hearing that we were  

presented with an office memorandum of the Ministry of Electronics and  

Information Technology dated 31.7.2017, through which a Committee of  

Experts had been constituted to deliberate on a data protection  

framework for India, under the 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.

539

43  

 

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 the  

technology has made it possible to enter a citizen’s house without  

knocking at his/her door and this is equally possible both by the State and  

non-State actors.  It is an individual’s choice as to who enters his house,  

how he lives and in what relationship.  The privacy of the home must  

protect the family, marriage, procreation and sexual orientation which are  

all important aspects of dignity.  

79. If the individual permits someone to enter the house it does not  

mean that others can enter the house.   The only check and balance is  

that it should not harm the other individual or affect his or her rights.   

This applies both to the physical form and to technology.  In an era where  

there are wide, varied, social and cultural  norms and more so in a country  

like ours which prides itself on its diversity, privacy is one of the most

540

44  

 

important rights to be protected both against State and non-State actors  

and be recognized as a fundamental right.  How it thereafter works out in  

its inter-play with other fundamental rights and when such restrictions  

would become necessary would depend on the factual matrix of each  

case. That it may give rise to more litigation can hardly be the reason not  

to recognize this important, natural, primordial right as a fundamental  

right.   

80. There are two aspects of the opinion of Dr. D.Y. Chandrachud,J.,  

one of which is common to the opinion of Rohinton F. Nariman,J.,   

needing specific mention.  While considering the evolution of  

Constitutional jurisprudence on the right of privacy he has referred to the  

judgment in Suresh Kumar Koushal Vs. Naz Foundation. 32

In the challenge  

laid to Section 377 of the Indian Penal Code before the Delhi High Court,  

one of the grounds of challenge was that the said provision amounted to  

an infringement of the right to dignity and privacy.  The Delhi High Court,  

inter alia, observed that the right to live with dignity and the right of  

privacy both are recognized as dimensions of Article 21 of the  

Constitution of India. The view of the High Court, however did not find  

                                                           32

(2014) 1 SCC 1

541

45  

 

favour with the Supreme Court and it was observed that only a miniscule  

fraction of the country’s population constitutes lesbians, gays, bisexuals  

or transgenders and thus, there cannot be any basis for declaring the  

Section ultra virus of provisions of Articles 14, 15 and 21 of the  

Constitution. The matter did not rest at this, as the issue of privacy and  

dignity discussed by the High Court was also observed upon.  The sexual  

orientation even within the four walls of the house thus became an  

aspect of debate.  I am in agreement with the view of Dr. D.Y.  

Chandrachud, J., who in paragraphs 123 & 124 of his judgment, states  

that the right of privacy cannot be 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:  

                                                           33

 (2008) EWHS 1777 (QB)

542

46  

 

“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  

person’s Article 8 rights, and in particular  in the context of  

his freedom to conduct his sex life and personal  

relationships as he wishes, it is right to afford a remedy and  

to vindicate that right. The only permitted exception is  

where there is a countervailing public interest which in the  

particular circumstances is strong enough to outweigh it;  

that is to say, because one at least of the established  

“limiting principles” comes into play.  Was it necessary and  

proportionate for the intrusion to take place, for example,  

in order to expose illegal activity or to prevent the public  

from being significantly misled by public claims hitherto  

made by the individual concerned (as with Naomi  

Campbell’s public denials of drug-taking)?  Or was it  

necessary because the information, in the words of the  

Strasbourg court in Von Hannover at (60) and (76), would  

make a contribution to “a debate of general interest”?  That  

is, of course, a very high test, it is yet to be determined how  

far that doctrine will be taken in the courts of this  

jurisdiction in relation to photography in public places.  If  

taken literally, it would mean a very significant change in  

what is permitted.  It would have a profound effect on the  

tabloid and celebrity culture to which we have become  

accustomed in recent years.”  

 

81. It is not necessary to delve into this issue further, other than in the  

context of privacy as that would be an issue to be debated before the  

appropriate Bench, the matter having been referred to a larger Bench.

543

47  

 

82. The second aspect is the discussion in respect of the majority  

judgment in the case of ADM Jabalpur vs. Shivkant Shukla 34

in both the  

opinions.   In I.R. Coelho Vs. The State of Tamil Nadu 35

 it was observed  

that the ADM Jabalpur case has been impliedly overruled and that the  

supervening event was the 44 th

Amendment to the Constitution,  

amending Article 359 of the Constitution.  I fully agree with the view  

expressly overruling the ADM Jabalpur case which was an aberration in  

the constitutional jurisprudence of our country and the desirability of  

burying the majority opinion ten fathom deep, with no chance of  

resurrection.   

83. Let the right of privacy, an inherent right, be unequivocally a  

fundamental right embedded in part-III of the Constitution of India, but  

subject to the restrictions specified, relatable to that part. This is the call  

of today.  The old order changeth yielding place to new.  

 

……………………………………..J.  

(SANJAY  KISHAN  KAUL)  

New Delhi  

August 24 , 2017.  

  

                                                           34

(1976) 2  SCC 521  35

(2007) 2 SCC 1

544

1  

 

 

     

  IN THE SUPREME COURT OF INDIA  

CIVIL ORIGINAL JURISDICTION        

WRIT PETITION (CIVIL) NO   494  OF 2012      

 

JUSTICE K.S.PUTTASWAMY (RETD.),   AND ANR.                    ..Petitioners     

VERSUS  

 

UNION OF INDIA AND ORS.                      ..Respondents   

 

WITH   

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  

REPORTABLE

545

2  

 

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

546

3  

 

 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 Justice Abhay Manohar  

Sapre, Shri Justice Rohinton Fali Nariman and Shri Justice Sanjay Kishan Kaul  

delivered separate judgments.  

 

2 The reference is disposed of in the following terms:  

 

(i) The decision in M P Sharma which holds that the right to privacy is not  

protected by the Constitution stands over-ruled;  

(ii) The decision in Kharak Singh to the extent that it holds that the right to  

privacy is not protected by the Constitution stands over-ruled;  

(iii) The right to privacy is protected as an intrinsic part of the right to life and  

personal liberty under Article 21 and as a part of the freedoms guaranteed  

by Part III of the Constitution.  

 

 

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(iv) Decisions subsequent to Kharak Singh which have enunciated the position  

in (iii) above lay down the correct position in law.    

 

     ........................................................CJI                            [JAGDISH SINGH KHEHAR]      

                                                             ……...….............................................J  

                          [J CHELAMESWAR]      

                                                    ..…….................................................J                              [S A BOBDE]        

                                                                      .........................................................J                              [R K AGRAWAL]    

                                            

                                                 ….…..................................................J                                        [ROHINTON FALI  NARIMAN]        

                                                    ….……...............................................J                             [ABHAY MANOHAR SAPRE]      

                                                      ............................................................J  

                          [Dr  D Y  CHANDRACHUD]        

                                                    ............................................................J                            [SANJAY KISHAN KAUL]      

                                                    ….........................................................J                            [S ABDUL NAZEER]  New Delhi;  AUGUST 24, 2017