1. The present submissions are being filed for the limited purpose of assisting this Hon'ble Court on the question of whether “the right to privacy” is a fundamental right under Part III of the Constitution. The instant submissions do not concern the merits of the main matters and the validity of the Aadhar legislation. These submissions address the questions raised in the order dated 18-7-2017 (2017) 10 SCC 641, the relevant portion of which reads as under:
“In our opinion to give a quietus to the kind of controversy raised in this batch of cases, once and for all, it is better that the ratio decidendi of M.P. Sharma Kharak Singh is scrutinised 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…
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”
2. The instant submissions are broadly divided into two parts:
2.1. Part I deals with the legal and practical aspects relating to the right to privacy in today's context; and
2.2. Part II deals with decisions of this Hon'ble Court on the right to privacy.
Part I
Delineating the right to privacy in today's context
3. At the outset, it may be noted that the challenges confronting both citizens and State today are quintessentially different from those addressed by the Supreme Court in M.P. Sharma v. Satish Chandra 1954 SCR 1077, AIR 1954 SC 300, 1954 Cri LJ 865 and Kharak Singh v. State of U.P. (1964) 1 SCR 332, AIR 1963 SC 1295, (1963) 2 Cri LJ 329 The aforesaid decisions cannot possibly be relevant to appreciate the contours of the right to privacy in the present societal context where advances in the technology and communication have transformed the relationship between stakeholders inter se and in particular the relationship between the State and its citizens. This Hon'ble Court should, therefore, in the context of changed circumstances address the issue of privacy afresh and ought not to consider the issue of privacy from the prism of an era where issues confronting temporary society did not exist.
4. The right to privacy as an inalienable natural right is based on the classic premise of the individual's wish to be alone. However, the contours of the right needs to be understood with changing times. Rapid advances in science and technology pose considerable challenges in delineating the exact contours of the right.
5. Thus, a simplistic definition of the right to privacy as “to be let alone” is under-inclusive. Privacy is a right which protects the inner sphere of the individual from interference from State and non-State actors and allows the individual to make autonomous life choices regarding the construction of her identity, not only in seclusion from others but in the personal, familial and social contexts. Privacy expands or contracts depending on the way the three basic variables of subject-matter, relations, and space present themselves in the context of a concrete case.
6. Thus, privacy relates to one's physical being, one's thoughts, and inter-personal relationships, private communication, information and data which one does not wish to be shared and be put in the public domain.
7. With advances in technology the State in the 21st century is far more powerful than it ever was, and is capable of entering a citizens' house without knocking at his/her door. Evolution of technology has facilitated easy intrusion into the life of individuals by the State and non-State actors.
8. To address the issue of the right to privacy, we must be cognizant of the fact that in accessing technology, a citizen willy-nillly shares a lot of his data. This applies to mobile phones, smart phones 134 S Ct 2473 (2014), tablets, smart TVs, taking a ride with app-based cabs, giving information through government mandate to banks, for public distribution networks, etc.
9. The concept of privacy therefore has to be viewed in light of two qualitative relationships: one between the citizen and the State; the other between citizens and non-State actors 132 S Ct 945 (2012), 99 S Ct 2577, 442 US 735 (1979), 409 US 322 (1973), 96 S Ct 1619, 425 US 435 (1976)]. Issues of privacy in respect of both have to be dealt with separately. The first has constitutional implications and the second relates to confidentiality. Thus, the right to privacy has both horizontal and vertical attributes.
10. The State may at times, require access to personal information for public good. In this context, the citizen may be obliged to give to such information for enhancing citizens' entitlements, access to services, prevention or detection of crime, national investigation and prosecution of criminal offences.
11. In respect of data shared with the State on account of a legal mandate or otherwise, the issue of privacy is directly linked with fundamental rights enshrined in the Constitution. If for example, an individual's movements throughout the country are tracked, even though he has a fundamental right to move freely throughout the territory of India, State interference by any means whatsoever including through technology would directly impact the citizen's right to privacy pp. 393-394 (3d edn. 1996), 1979 S Ct Rev 173, 525 US 83 at 97 (1998), n. 12 (1978), 365 US 505 at p. 512 (1961), 104 S Ct 1735. This is also true if the State through technology accesses conversations of individuals sitting in their homes, in respect of which every individual has a legitimate expectation of privacy. Consequently, the right to privacy is inherent in the right to life and personal liberty enshrined in Article 21 of the Constitution.
12. The second aspect relating to the right to privacy in the context of State action relates to data, which is shared either by law or otherwise with the State. Such data is shared for specific purposes. For instance, the data shared for getting a passport is for the specific purpose of exercising the fundamental right of citizens to travel. If any other organ of the State accesses that data and breaches confidentiality between citizens and such authority, that per se would be an invasion of the right to privacy. It is also true of data relating to a person's physical attributes shared with a government hospital. Access to such data by another government agency, to which the citizen has not consented, would also infringe the citizen's right to privacy.
13. It is submitted that though the right to privacy is a fundamental right, the same is not absolute. However, the ability of the State to assume or exercise any power that would impinge upon the right to privacy is limited. Where the State infringes the right to privacy, it should atleast meet the following tests, which limit the discretion of the State 2008 ECHR 1581, No. 24876/94:
(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.
14. These are some of the safeguards to protect the privacy of citizens. Whether a person's right to privacy has been infringed by the State will have to be determined in light of limitations on the discretionary exercise of power by the State, as enunciated above. That determination will ultimately depend on the issues that arise in the facts and circumstances of each case.
15. The relationship between citizens and non-State actors qua which data is willingly provided by the citizen for enhancing the citizen's own experience is subject to confidentiality to the extent confidentiality can be maintained. There may be platforms where such confidentiality cannot be maintained. In such cases, where there is a dilution of the right to confidentiality, the citizen should be made aware that when sharing such data, there may be a possibility of it being further shared. Knowledge of such possibility would enable an informed exercise of the right to confidentiality by citizens.
16. The right to privacy also enjoins the State to put in place a robust data protection law, that obligates non-State actors to ensure that data shared by citizens is secure and that the breach of any confidentiality would be visited with legal consequences. The principles underlying such data protection law should cover the following amongst others:
(i) That the entity or individual housing confidential information will need to put in place an open and transparent system for management of personal information including putting in place a privacy policy;
(ii) Collection of solicited personal information and receipt of unsolicited personal information including giving notice about the collection of information.
(iii) How personal information can be used and disclosed (including overseas).
(iv) Maintaining the quality of personal information secured.
(v) The right of individuals to access and correct their personal information.
17. Instances of statutes that protect privacy in the context of data shared by citizens with non-State actors can be found in different jurisdictions.
Part II
Case law analysis of the right to privacy as fundamental right under Article 21
18. It is respectfully submitted that right to privacy is a quintessential right flowing out of the bouquet of rights under enshrined under Article 21.
19. The judgments in M.P. Sharma v. Satish Chandra 1954 SCR 1077, AIR 1954 SC 300, 1954 Cri LJ 865, (8 Hon'ble Judges) and Kharak Singh v. State of U.P. (1964) 1 SCR 332, AIR 1963 SC 1295, (1963) 2 Cri LJ 329, (6 Hon'ble Judges) which had made certain observations that right to privacy was not a “guaranteed right” under Part III were premised on an understanding of Part III as per the law laid down in A.K. Gopalan 1950 SCR 88, AIR 1950 SC 27, (1950) 1 Cri LJ 1383.
20. A.K. Gopalan 1950 SCR 88, AIR 1950 SC 27, (1950) 1 Cri LJ 1383 was specifically overruled in Rustom Cavasjee Cooper v. Union Of India . (1970) 1 SCC 248 (11 Hon'ble Judges) and thereafter further clarified to be so in Maneka Gandhi v. Union of India (1978) 1 SCC 248 (7 Hon'ble Judges).
21. Thereafter, consistently for almost four and half decades, this Hon'ble Court has in a catena of judgments held that A.K Gopalan 1950 SCR 88, AIR 1950 SC 27, (1950) 1 Cri LJ 1383 is bad law (2007) 2 SCC 1, (2006) 8 SCC 212, (2010) 7 SCC 263, (2014) 9 SCC 737. It is too late in the day to urge that the distinctive rights test of Gopalan ought to be applied.
22. More importantly, once Gopalan 1950 SCR 88, AIR 1950 SC 27, (1950) 1 Cri LJ 1383 was held to be bad law by an eleven-Judge Bench in Rustom Cavasjee Cooper (1970) 1 SCC 248, smaller Benches of this Hon'ble Court have consistently and rightly that the observations in M.P. Sharma 1954 SCR 1077, AIR 1954 SC 300, 1954 Cri LJ 865 and the majority judgment in Kharak Singh (1964) 1 SCR 332, AIR 1963 SC 1295, (1963) 2 Cri LJ 329 on the right to privacy were not good law.
23. This Court has applied the doctrine of implied overruling in a catena of decisions and has held once the decision of the smaller Bench has been overruled by a larger Bench; the decisions following the decision of the smaller Bench will not be considered the good law. (1998) 8 SCC 275, (2014) 9 SCC 457
24. In any event, it is submitted that the reliance on the observations in M.P. Sharma 1954 SCR 1077, AIR 1954 SC 300, 1954 Cri LJ 865 to hold that the there is no fundamental right to privacy is completely misconceived as the observations of this Court on privacy were made in the context of Article 20(3) and the power of search and seizure. This Court did not examine the extent and cantours of Article 21. Further, the said decision was rendered when A.K. Gopalan 1950 SCR 88, AIR 1950 SC 27, (1950) 1 Cri LJ 1383 was the law of land which was premised on the basis of distinctiveness of each of fundamental rights.
25. The judgment in Kharak Singh (1964) 1 SCR 332, AIR 1963 SC 1295, (1963) 2 Cri LJ 329 (per the majority of four Judges) relied upon Gopalan 1950 SCR 88, AIR 1950 SC 27, (1950) 1 Cri LJ 1383 (p. 345). The majority struck down domiciliary visits under clause (b) of Regulation 236 as violative of Article 21. However, clauses (c), (d), and (e) which dealt with periodic enquiries by officers not below the rank of a Sub-Inspector, reporting by constables and chowkidars of movement and verification of movement and absences was held to be not covered under Part III. In that context, it was observed that the right to privacy is not a “guaranteed” right under the Constitution.
26. However, the minority view of Subba Rao, J. relying upon judgment in Wolf v. Colorado 1949 SCC OnLine US SC 102, 93 L Ed 1782, 338 US 25 (1949), rightly observed that:
“… Further, the right to personal liberty takes only a right to be free from restrictions placed on 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 rampart against encroachment on his personal liberty. The pregnant words of that famous Judge, Frankfurter J., in Wolf v. Colorado 1949 SCC OnLine US SC 102, 93 L Ed 1782, 338 US 25 (1949), 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 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, 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 Regulation 236 infringe the fundamental right of the petitioner under Article 21 of the Constitution” (page 359)
27. In Gobind v. State of M.P. (1975) 2 SCC 148 (three Judges), Mathew, J. in unequivocal terms after noticing Kharak Singh (1964) 1 SCR 332, AIR 1963 SC 1295, (1963) 2 Cri LJ 329, holds that the right to privacy is implicit in the concept of individual autonomy and liberty. However, the Court categorically states that it is not an absolute right and can be subjected to restrictions based on compelling public interest. (see paras 19 to 31). The Court observed that the contours of the right will have to go through a process of case-by-case developments. this context para 28 is relevant and reads as follows:
“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 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 which one can characterize as a fundamental right, we do not think that the right is absolute.”
28. It is relevant to note that Gobind (1975) 2 SCC 148 was post Rustom Cavasjee Cooper (1970) 1 SCC 248 and therefore the Court rightly departed from the view in M.P. Sharma 1954 SCR 1077, AIR 1954 SC 300, 1954 Cri LJ 865 and Kharak Singh (1964) 1 SCR 332, AIR 1963 SC 1295, (1963) 2 Cri LJ 329 which impliedly stood overruled as far as the observations made on the to privacy are concerned.
29. This Hon'ble Court in Maneka Gandhi v. Union of India (1978) 1 SCC 248, clearly and in unequivocal terms held that Gopalan 1950 SCR 88, AIR 1950 SC 27, (1950) 1 Cri LJ 1383 stood overruled by Rustom Cavasjee Cooper (1970) 1 SCC 248. The minority view in Kharak Singh (1964) 1 SCR 332, AIR 1963 SC 1295, (1963) 2 Cri LJ 329 was held to be the correct view. The Court in this regard held there can be no doubt that in view of the decision of this Hon'ble Court in Rustom Cavasjee Cooper (1970) 1 SCC 248, the minority view must be regarded as correct and the majority view must be held to have been overruled (see para 5 of the judgment).
30. Accordingly, the approval of minority view of Subba Rao, J. in Kharak Singh (1964) 1 SCR 332, AIR 1963 SC 1295, (1963) 2 Cri LJ 329 by Maneka Gandhi (1978) 1 SCC 248 set the matter at rest on the status of the right to privacy as a fundamental right. It is therefore incorrect to contend that the issue as to the status of the right to privacy is res integra.
31. This Hon'ble Court has thereafter in almost 24 judgments (two Judges and three Judges as well as five Judges) has consistently held that right to privacy was a facet of personal liberty. In this regard, following may be seen:
31.1. In State of Maharashtra v. Madhukar Narayan Mardikar (1991) 1 SCC 57, the Division Bench held as follows:
“Even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes.” (see para 9)
31.2. In R. Rajagopal v. State of T.N. (1994) 6 SCC 632, the Division Bench held as follows:
“The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. (see para 26 (1))
31.3. In People's Union for Civil Liberties (PUCL) v. Union of India (1997) 1 SCC 301, the Division Bench held as follows:
“It is no doubt correct that every Government, howsoever democratic, exercises some degree of sub rosa operation as a part of its intelligence outfit but at the same time citizen's right to privacy has to be protected from being abused by the authorities of the day”. (see para 1)
“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.” (see para 17)
31.4. In Mr X v. Hospital Z’ (1998) 8 SCC 296, the Division Bench held as follows:
“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.” (see para 28)
31.5. In Sharda v. Dharmpal . (2003) 4 SCC 493, a Bench of 3 Hon'ble Judges held as follows:
“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. (see para 56)
“But the right to privacy in terms of Article 21 of the Constitution is not an absolute right.” (see para 57)
31.6. In District Registrar and Collector v. Canara Bank (2005) 1 SCC 496, Division Bench held as follows:
“We have referred in detail to the reasons given by Mathew, J. in Gobind (1975) 2 SCC 148 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.” (see para 39)
“A two-Judge Bench in R. Rajagopal v. State of T.N. (1994) 6 SCC 632 held the right of privacy to be implicit in the right to life and liberty guaranteed to the citizens of India by Article 21. “It is the right to be let alone.” Every citizen has a right to safeguard the privacy of his own. However, in the case of a matter being part of public records, including court records, the right of privacy cannot be claimed. The right to privacy has since been widely accepted as implied in our Constitution, in other cases, namely, People's Union for Civil Liberties v. Union of India (1997) 1 SCC 301, Mr X v. Hospital Z’ (1998) 8 SCC 296, People's Union for Civil Liberties v. Union of India (2003) 4 SCC 399 and Sharda v. Dharmpal . (2003) 4 SCC 493.” (see para 40)
31.7. In Directorate of Revenue v. Mohd. Nisar Holia (2008) 2 SCC 370, the Division Bench held as follows:
“An authority cannot be given an untrammelled power to infringe the right of privacy of any person.” (see para 14)
“A person, if he does not break a law would be entitled to enjoy his life and liberty which would include the right to not to be disturbed. A right to be let alone is recognised to be a right which would fall under Article 21 of the Constitution of India.” (see para 15)
31.8. In Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat (2008) 5 SCC 33, the Division Bench held as follows:
“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 (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”. (see para 27)
31.9. In State of Maharashtra v. Bharat Shanti Lal Shah (2008) 13 SCC 5, the Division Bench held as follows:
“The right to privacy has been developed by the Supreme Court over a period of time and with the expansive interpretation of the phrase “personal liberty”, this right has been read into Article 21. It was stated in Gobind v. State of M.P. (1975) 2 SCC 148 that right to privacy is a “right to be let alone” and a citizen has a right “to safeguard privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters”. The term privacy has not been defined and it was in People's Union for Civil Liberties (PUCL) v. Union of India (1997) 1 SCC 301, that as a concept it may be too broad and moralistic to define it judicially and whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case.” (see para 57)
31.10. In Bhavesh Jayanti Lakhani v. State of Maharashtra (2009) 9 SCC 551, the Division Bench held as follows:
“Surveillance per se under the provisions of the Act may not violate individual or private rights including the right to privacy. Right to privacy is not enumerated as a fundamental right either in terms of Article 21 of Constitution of India or otherwise. It, however, by reason of an elaborate interpretation by Court in Kharak Singh v. State of U.P. (1964) 1 SCR 332, AIR 1963 SC 1295, (1963) 2 Cri LJ 329 was held to be an essential ingredient of “personal liberty”.” (see para 102)
31.11. In Bhabani Prasad Jena v. Orissa State Commission for Women (2010) 8 SCC 633053, the Division Bench held as follows:
“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.” (see para 21)
31.12. In Selvi v. State of Karnataka (2010) 7 SCC 263, a Bench of 3 Hon'ble Judges noticed that the judgment in Kharak Singh (1964) 1 SCR 332, AIR 1963 SC 1295, (1963) 2 Cri LJ 329 was endorsed by Maneka Gandhi (1978) 1 SCC 248 and subsequently followed in Gobind (1975) 2 SCC 148. In para 209 it was held as below:
“209. Following the judicial expansion of the idea of “personal liberty”, the status of the “right to privacy” as a component of Article 21 has been recognised and reinforced.” held as follows:
31.13. In Amar Singh v. Union of India (2011) 7 SCC 69, the Division Bench held as follows:
“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.” (see para 39)
31.14. In Ram Jethmalani v. Union of India (2011) 8 SCC 1, the Division Bench held as follows:
“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 monies is 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 creation of another zone of abrogation of constitutional values.” (see para 83)
31.15. In Hindustan Times v. High Court of Allahabad (2011) 13 SCC 155, this Hon'ble Court held that the power of the media to provide the readers and the public in general with information should reconcile with the persons fundamental right to privacy. The Division Bench held as follows:
“The unbridled power of the media can become dangerous if checks and balances are not inherent 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. Any wrong or biased information that is put forth can potentially damage the otherwise clean and good reputation of the person or institution against whom something adverse is reported. Prejudging the issues and rushing to conclusions must be avoided.” (see para 6)
31.16. In Ramlila Maidan Incident, In re (2012) 5 SCC 1, the Division Bench held as follows:
“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 absolute and in exceptional circumstance particularly surveillance in consonance with the statutory provisions may not violate such a right. [Vide Malak Singh v. State of P&H (1981) 1 SCC 420, State of Maharashtra v. Madhukar Narayan Mardikar (1991) 1 SCC 57, 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, Mr X v. Hospital Z’ (1998) 8 SCC 296, Sharda v. Dharmpal . (2003) 4 SCC 493, People's Union for Civil Liberties v. Union of India (2003) 4 SCC 399, District Registrar and Collector v. Canara Bank (2005) 1 SCC 496, Bhavesh Jayanti Lakhani v. State of Maharashtra (2009) 9 SCC 551 and Selvi v. State of Karnataka (2010) 7 SCC 263.]” (see para 312)
31.17. In Sahara India Real Estate Corpn. Ltd. v. SEBI (2012) 10 SCC 603, the Constitution Bench of this Hon'ble Court approved the minority judgment of Subba Rao, J. in para 24 and relying upon Blackstone's Commentaries on the Laws of England observed in para 26 as follows:
“Personal liberty” includes “the power to locomotion of changing situation, or removing one's person to whatsoever place one's inclination may direct, without imprisonment or restraint, unless by due course of law.” In A.K. Gopalan case 1950 SCR 88, AIR 1950 SC 27, (1950) 1 Cri LJ 1383, it is described to mean liberty relating to or concerning the person or body of the individual; and personal liberty in this sense is the antithesis of physical restraint or coercion. The expression is wide enough to take in a night to be free from restrictions placed on his movements. The expression “coercion” in the modern age cannot be construed in a narrow sense. In an uncivilised society where there are no inhibitions, only physical restraints may detract from personal liberty, but as civilisation 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 groves. So also the creation of conditions which necessarily engender inhibitions and fear complexes can be described as physical restraints. Further, right to personal liberty takes in not only a right 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.
… 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 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.
… namely, whether the petitioner's fundamental right under Article 19(1)(d) is also infringed. What is the content of the said fundamental right? It is argued for the State that it means only that a person can move physically from one point to another without any restraint.' This argument ignores the adverb “freely” in clause (d). If that adverb is not in the clause, there may be some justification for this contention; but the adverb “freely” gives a larger content to the freedom mere movement unobstructed by physical restrictions cannot itself be the object of a person's travel. A person travels ordinarily in quest of some objective. He goes to a place to enjoy, to do business, to meet friends, to have secret and intimate consultations with others and to do many other such things. If a man is shadowed, his movements are obviously constricted. He can move physically, but it can only be a movement of an automation. How could a movement under the scrutinising gaze of the policemen be described as a free movement? The whole country is his jail. The freedom of movement in clause (d) therefore must be a movement in a free country i.e. in a country where he can do whatever he likes, speak to whomsoever he wants, meet people of his own choice without any apprehension, subject of course to the law of social control. The petitioner under the shadow of surveillance is certainly deprived of this freedom. He can move physically, but he cannot do so freely, for all his activities are watched and noted. The shroud of surveillance cast upon him perforce engender inhibitions in him and cannot act freely as he would like to do.” (see para 26)
31.18. In Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi (2012) 13 SCC 61, the Division Bench held as follows:
“Another right of a citizen protected under the Constitution is the right to privacy. This right is enshrined within the spirit of Article 21 of the Constitution. Thus, the right to information has to be balanced with the right to privacy within the framework of law.” (see para 10)
“The information may come to knowledge of the authority as a result of disclosure by others who give that information in confidence and with complete faith, integrity and fidelity. Secrecy of such information shall be maintained, thus, bringing it within the ambit of fiduciary capacity. Similarly, there may be cases where the disclosure has no relationship to any public activity or interest or it may even cause unwarranted invasion of privacy of the individual. All these protections have to be given their due implementation as they spring from statutory exemptions. It is not a decision simpliciter between private interest and public interest. It is a matter where a constitutional protection is available to a person with regard to the right to privacy. Thus, the public interest has to be construed while keeping in mind the balance factor between right to privacy and right to information with the purpose sought to be achieved and the purpose that would be served in the larger public interest, particularly when both these rights emerge from the constitutional values under the Constitution of India.” (see para 23)
31.19. In Thalappalam Service Coop. Bank Ltd. v. State of Kerala (2013) 16 SCC 82, a Division Bench of this Hon'ble Court held that the right to privacy was not an absolute right and can be regulated, restricted and curtailed in larger public interest. In this regard it was held as follows:
“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. (1964) 1 SCR 332, 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.” (see para 57)
“The right to information and right to privacy are, therefore, not absolute rights, both the rights, one of which falls under Article 19(1)(a) and the other under Article 21 of the Constitution of India, can obviously be regulated, restricted and curtailed in the larger public interest. Absolute or uncontrolled individual rights do not and cannot exist in any modern State. Citizens' right to get information is statutorily recognised by the RTI Act, but at the same time limitations are also provided in the Act itself, which is discernible from the Preamble and other provisions of the Act. First of all, the scope and ambit of the expression “public authority” has been restricted by a statutory definition under Section 2(h) limiting it to the categories mentioned therein which exhaust itself, unless the context otherwise requires. Citizens, as already indicated by us, have a right to get information, but can have access only to the information “held” and under the “control of public authorities”, with limitations. If the information is not statutorily accessible by a public authority, as defined in Section 2(h) of the Act, evidently, those information will not be under the “control of the public authority”. Resultantly, it will not be possible for the citizens to secure access to those information which are not under the control of the public authority. The citizens, in that event, can always claim a right to privacy, the right of a citizen to access information should be respected, so also a citizen's right to privacy.” (see para 61)
31.20. In National Legal Services Authority v. Union of India (2014) 5 SCC 438, a Division Bench of this Hon'ble Court while upholding the fundamental rights of the transgender community held as follows:
“Gender identity, therefore, lies at the core of one's personal identity, gender expression and presentation and, therefore, it will have to be protected under Article 19(1)(a) of the Constitution of India. A transgender's personality could be expressed by the transgender's behaviour and presentation. State cannot prohibit, restrict or interfere with a transgender's expression of such personality, which reflects that inherent personality. Often the State and its authorities either due to ignorance or otherwise fail to digest the innate character and identity of such persons. We, therefore, hold that values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community under Article 19(1)(a) of the Constitution of India and the State is bound to protect and recognise those rights.” (see para 72)
31.21. In Manoj Narula v. Union Of India . (2014) 9 SCC 1, a Constitution Bench in para 69 held that Article 21 has many facets and relying upon R. Rajagopal (1994) 6 SCC 632 it was held that the right to privacy is inferred from Article 21. In this regard it was observed that:
“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, 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.” (See para 69)
31.22. In Abc v. State (Nct Of Delhi) . (2015) 10 SCC 1, the Division Bench held as follows:
“It is imperative that the rights of the mother must also be given due consideration. As Ms Malhotra, learned Senior Counsel for the appellant, has eloquently argued, the appellant's fundamental right of privacy would be violated if she is forced to disclose the name and particulars of the father of her child.” (see para 20)
31.23. This Hon'ble Court in Supreme Court Advocates-on-Record Assn. v. Union of India (2016) 5 SCC 1, (Lokur, J.), held that the 99th Constitution Amendment Act and the NJAC Act have not taken note of the privacy concerns of an individual. In this regard, the Constitution Bench held as follows:
“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 anyone can have access to information that is available with NJAC. This is a rather sweeping generalisation 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, but the 99th Constitution Amendment Act and the NJAC Act do not even attempt to consider, let alone achieve that balance.” (see para 953)
31.24. Asha Ranjan v. State of Bihar (2017) 4 SCC 397, the Division Bench held as follows:
“In this context, it is also appropriate to refer to certain other decisions where the Court has dealt with the concept of competing rights. We are disposed to think that dictum laid therein has to be appositely appreciated. In Mr X v. Hospital Z’ (1998) 8 SCC 296, the issue arose with regard to right to privacy as implicit in the right to life and liberty as guaranteed to the citizens under Article 21 of the Constitution and the right of another to lead a healthy life. Dealing with the said controversy, the Court held that as a human being, Ms ‘Y’ must also enjoy, as she obviously is entitled to all the human rights available to any other human being. This is apart from, and in addition to, the fundamental right available to her under Article 21, which guarantees “right to life” to every citizen of this country. The Court further held that where there is a clash of two fundamental rights, namely, the appellant's right to privacy as part of right to life and Ms Y's right to lead a healthy life which is her fundamental right under Article 21, the right which would advance the public morality or public interest, would alone be enforced through the process of court, for the reason that moral considerations cannot be kept at bay and the Judges are not expected to sit as mute structures of clay in the hall known as the courtroom, but have to be sensitive.” (see para 56)
32. Thus, the status of the right to privacy as a fundamental right has been settled by a catena of judgments, not only of two and three judges, but also by Constitution Benches as well. Thus, A.K. Gopalan 1950 SCR 88, AIR 1950 SC 27, (1950) 1 Cri LJ 1383 being held as bad law by an eleven-Judge Bench in Rustom Cavasjee Cooper (1970) 1 SCC 248 the foundation and the basis of M.P. Sharma 1954 SCR 1077, AIR 1954 SC 300, 1954 Cri LJ 865 and Kharak Singh (1964) 1 SCR 332, AIR 1963 SC 1295, (1963) 2 Cri LJ 329, which were premised on Gopalan 1950 SCR 88, AIR 1950 SC 27, (1950) 1 Cri LJ 1383, by necessary implication could not be good law and therefore the subsequent Benches have rightly disregarded the same and held that the right to privacy is a fundamental right emanating from Article 21.
33. In view of the above, it is submitted that these judgments which have rightly held the field should not be unsettled as Lord Coke aptly described that “those things which have been so often adjudged ought to rest in peace” (2011) 2 SCC 132.
34. Even otherwise, as pointed out hereinabove, the right to privacy has to be delineated and understood in the context of the current advances made by society in the field of technology and communications and not merely from the paradigm of issues of search and seizure arising in M.P. Sharma 1954 SCR 1077, AIR 1954 SC 300, 1954 Cri LJ 865 or personal surveillance issues in Kharak Singh (1964) 1 SCR 332, AIR 1963 SC 1295, (1963) 2 Cri LJ 329.
II. Mr Gopal Subramanium, Senior Advocate, for the petitioners
1. It is submitted that the decisions in M.P. Sharma v. Satish Chandra AIR 1954 SC 300, 1954 Cri LJ 865, 1954 SCR 1077 and Kharak Singh v. State of U.P. AIR 1963 SC 1295, (1963) 2 Cri LJ 329, (1964) 1 SCR 332 to the extent they interpret fundamental rights on a distinctive basis (as recognised in A.K Gopalan v. State Of Madras . AIR 1950 SC 27, (1950) 51 Cri LJ 1383, 1950 SCR 88) are no longer good law. In view of the fact that A.K. Gopalan case AIR 1950 SC 27, (1950) 51 Cri LJ 1383, 1950 SCR 88 stands overruled in Rustom Cavasjee Cooper v. Union Of India . (1970) 1 SCC 248 it follows a fortiori that neither of the above decisions are effective.
2. It is submitted that the ratio of the judgment in M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865, 1954 SCR 1077 merely observed that there is no right to privacy located in Article 20(3) of the Constitution; it did not extinguish a general right to privacy. This arose in the context of searches in a criminal investigation and whether the same amounted to a violation of the right in Article 20(3). Thus, it cannot be said that the decision in M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865, 1954 SCR 1077 is an authority for the proposition that there is no fundamental right to privacy in the Constitution. The observations in M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865, 1954 SCR 1077 being relied upon by the respondents must be read in the context in which they were made:
“17. … A power of search and seizure is in any system of Jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy analogous to the Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction. Nor is it legitimate to assume that the constitutional protection under Article 20(3) would be defeated by the statutory provisions for searches. It is to be remembered that searches of the kind we are concerned with are under the authority of a Magistrate (excepting in the limited class of cases falling under Section 165 of the Criminal Procedure Code). Therefore, issue of a search warrant is normally the judicial function of the Magistrate. When such judicial function is interposed between the individual and the officer's authority for search, no circumvention thereby of the fundamental right is to be assumed. We are not unaware that in the present set up of the Magistracy in this country, it is not infrequently that the exercise of this judicial function is liable to serious error, as is alleged in the present case. But the existence of scope for such occasional error is no ground to assume circumvention of the constitutional guarantee.”
3. The dissenting judgment of Subba Rao, J. in Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329, (1964) 1 SCR 332 states clearly that:
3.1. The question was, in the absence of any law, what was the fundamental right of the petitioner that was infringed?
3.2. Clauses (a) to (f) of Regulation 236 contained in Chapter 22 of the U.P. Police Regulations were measures adopted for the purpose of supervision or close observation of his movements and therefore parts of surveillance. The question was whether such a surveillance infringed any of the petitioner's fundamental rights.
3.3. Even though fundamental rights may be distinct, they could yet be overlapping. The fundamental right of life and personal liberties have many attributes and some of them are part of Article 19.
3.4. If an action violated Article 19(1) of the Constitution, it could be argued that there was a law to sustain that action “but that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(B) so far as the attributes covered by Article 19(1) are concerned”.
3.5. The expression “life” in Article 21 meant more than mere “animal existence”. The expression “liberty” is given a very wide meaning in the USA. It takes in all the freedoms.
3.6. In A.K. Gopalan AIR 1950 SC 27, (1950) 51 Cri LJ 1383, 1950 SCR 88, liberty was described to mean liberty concerning the person or body of the individual. Subba Rao, J. observed that the right to personal liberty takes in not only a right to be free from restrictions placed on his movement but also free from encroachments on his private life. He further continues to say that while it is true that our Constitution does not expressly declare 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/her 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”. He observed:
“28. … 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. It so understood, all the acts of surveillance under Regulation 236 infringe the fundamental right of the petitioner under Article 21 of the Constitution.”
4. In fact, in some sense Subba Rao, J. also noticed that privacy was a facet of Article 19(1)(d):
“29. … The freedom of movement in clause (d) therefore must be a movement in a free country i.e. in a country where he can do whatever he likes, speak to whomsoever he wants, meet people of his own choice without any apprehension, subject of course to the law of social control. The petitioner under the shadow of surveillance is certainly deprived of this freedom. He can move physically, but he cannot do so freely, for all his activities are watched and noted. The shroud of surveillance cast upon him perforce engender inhibitions in him and he cannot act freely as he would like to do. We would, therefore, hold that the entire Regulation 236 offends also Article 19(1)(d) of the Constitution”
5. A.K. Gopalan AIR 1950 SC 27, (1950) 51 Cri LJ 1383, 1950 SCR 88 proceeded both on the distinctiveness of each of the fundamental rights; that “procedure established by law” under Article 21 was not used approximately to mean “due process of law” as interpreted by the Supreme Court of the United States. In A.K. Gopalan AIR 1950 SC 27, (1950) 51 Cri LJ 1383, 1950 SCR 88, it was held that:
“17. In my opinion, this line of approach is not proper and indeed is misleading. As regards the American Constitution its general structure is noticed in these words in The Government of the United States by Munro (5th Edn.) at p. 53: “The architects of 1787 built only the basement. Their descendants have kept adding walls and windows, wings and gables, pillars and porches to make a rambling structure which is not yet finished. Or, to change the metaphor, it has a fabric which, to use the words of James Russell Lowell, is still being ‘woven on the roaring loom of time’. That is what the framers of the original Constitution intended it to be. Never was it in their mind to work out a final scheme for the Government of the country and stereotype it for all time. They sought merely to provide a starting point”. The same aspect is emphasized in Professor Willis's book on Constitutional Law and Cooley's Constitutional Limitations. In contrast to the American Constitution, the Indian Constitution is a very detailed one. The Constitution itself provides in minute details the legislative powers of Parliament and the State Legislatures. The same feature is noticeable in the case of the judiciary, finance, trade, commerce and services. It is thus quite detailed and the whole of it has to be read with the same sanctity, without giving undue weight to Part III or Article 246, except to the extent one is legitimately and clearly limited by the other.”
6. The Court held that Article 19(1)(d) was distinct of personal liberty under Article 21 and the freedom to move freely in Article 19(1)(d) was not a facet of Article 21 and since a detention was duly authorised under the impugned law, the requirement of reasonableness for examining such action under Article 19(1)(d) did not arise. Further, the contention to correlate Articles 19 and SI was rejected.
7. It may be noted in fairness that in A.K. Gopalan AIR 1950 SC 27, (1950) 51 Cri LJ 1383, 1950 SCR 88 the following words occur in para 122, which contain footprints of future evolution:
“122. 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. Madison (who played a prominent part in framing the First Amendment of the American Constitution) pointing out the distinction, due to historical reasons, between the American and the British ways of securing “the great and essential rights of the people”, observed “Here they are secured not by laws paramount to prerogative but by Constitutions paramount to laws:” Report on the Virginia Resolutions, quoted in Near v. Minnesota 1931 SCC OnLine US 151, 75 L Ed 1357, 283 US 697 (1931). This has been translated into positive law in Part III of the Indian Constitution, and I agree that in construing these provisions the high purpose and spirit of the preamble as well as the constitutional significance of a declaration of fundamental rights should be borne in mind. This, however, is not to say that the language of the provisions should be stretched to square with this or that constitutional theory in disregard of the cardinal rule of interpretation of any enactment, constitutional or other, that its spirit, no less than its intendment should be collected primarily from the natural meaning of the words used.”
(emphasis supplied)
8. It is submitted however that although the learned Judges in A.K. Gopalan AIR 1950 SC 27, (1950) 51 Cri LJ 1383, 1950 SCR 88 understood the values of the Preamble of the Constitution to be relevant, yet they were constrained to hold that the fundamental rights were distinctive in character. The interpretation was informed by formalism.
9. In R.C. Cooper (1970) 1 SCC 248, it is respectfully submitted that the issues relating to interrelation between the diverse provisions affording the guarantee of fundamental rights in Part III fell to be determined. A reference was made to the decision in A.K. Gopalan AIR 1950 SC 27, (1950) 51 Cri LJ 1383, 1950 SCR 88. This Hon'ble Court held in para 45 as under:
“45. Early in the history of this Court the question of inter-relation between the diverse provisions affording the guarantee of fundamental rights in Part III fell to be determined. In A.K Gopalan v. State Of Madras . AIR 1950 SC 27, (1950) 51 Cri LJ 1383, 1950 SCR 88, a person detained pursuant to an order made in exercise of the power conferred by the Preventive Detention Act, 4 of 1950 applied to this Court for a writ of habeas corpus claiming that the Act contravened the guarantee under Articles 19, 21 and 22 of the Constitution. The majority of the Court (Kania, C.J., and Patanjali Sastri, Mahajan, Mukherjea and Das, JJ.), held that Article 22 being a complete code relating to preventive detention, the validity of an order of detention must be determined strictly according to the terms and “within the four corners of that Article”. They held that a person detained may not claim that the freedom guaranteed under Article 19(1)(d) was infringed by his detention, and that validity of the law providing for making orders of detention will not be tested in the light of the reasonableness of the restrictions imposed thereby on the freedom of movement, nor on the ground that his right to personal liberty is infringed otherwise than acceding to the procedure established by law. Fazl Ali, J., expressed a contrary view. This case has formed the nucleus of the theory that the protection of the guarantee of a fundamental freedom must be adjudged in the light of the object of State action in relation to the individual's right and not upon its influence upon the guarantee of the fundamental freedom, and as a corollary thereto, that the freedoms under Articles 19, 21, 22 and 31 are exclusive — each article enacting a code relating to protection of distinct rights.”
10. In particular, Shah J. analysed how each one of the learned Judges referred to an examination of legislation to be directly in respect of one of the rights mentioned in the sub-clauses. In fact the observation of Sastri, J. that the fundamental or personal freedoms rested only in Article 19 while Articles 20 to 22 secure constitutional guarantees was also noticed. The view of Mahajan, J. that Article 22 was self-contained in respect of the laws on the subject of preventive detention was noticed. Similarly, the observation of Mukherjea, J. that there was no conflict between Article 19(1)(d) and Article 22 because the former did not contemplate freedom from detention either punitive or preventive but speaks of a different aspect of civil liberties. In the view of Mukherjea, J., Articles 20 to 22 provided for the entire protection both in relation to deprivation of life and personal liberty with regard to substantive as well as procedural law. (See para 46, R.C. Cooper (1970) 1 SCC 248).
11. It is respectfully submitted that Shah, J. enunciated the theory of “direct effect upon individual freedom”. It was held:
“49. We have carefully considered the weighty pronouncements of the eminent Judges who gave shape to the concept that the extent of protection of important guarantees, such as the liberty of person, and right to property depends upon the form and object of the State action, and not upon its direct operation upon the individual's freedom. But it is not the object of the authority making the law impairing the right of a citizen, nor the form of action taken that determines the protection he can claim: it is the effect of the law and of the action upon the right which attracts the jurisdiction of the Court to grant relief. If this be the true view and we think it is, in determining the impact of State action upon constitutional guarantees which are fundamental, it follows that the extent of protection against impairment of a fundamental right is determined not by the object of the Legislature nor by the form of the action, but by its direct operation upon the individual's rights.
50. We are of the view that the theory that the object and form of the State action determine the extent of protection which the aggrieved party may claim is not consistent with the constitutional scheme. Each freedom has different dimensions or facets. ….”
(emphasis supplied)
12. Thus, A.K. Gopalan AIR 1950 SC 27, (1950) 51 Cri LJ 1383, 1950 SCR 88 was overruled by R.C. Cooper (1970) 1 SCC 248 in the following words:
“55. … In our judgment, the assumption in A.K. Gopalan case AIR 1950 SC 27, (1950) 51 Cri LJ 1383, 1950 SCR 88 that certain articles in the Constitution exclusively deal with specific matters and in determining whether there is infringement of the individual's guaranteed rights, the object and the form of the State action alone need be considered, and effect of the laws on fundamental rights of the individuals in general will be ignored cannot be accepted as correct.”
13. It is respectfully submitted in the light of the above, the majority opinion in Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329, (1964) 1 SCR 332 delivered by Rajagopala Ayyangar, J. has proceeded upon the basis that express constitutional guarantee like the Fourth Amendment being absent. Hence, it was not possible to read in Article 19(1)(d) any such right of privacy since the right to privacy in the US was derived from the Fourth Amendment (set out below):
“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.”
14. Hence, Rajagopala Ayyangar, J. fell back on the theory of common law to hold that the common law embodied in a binding principle transcends mere protection of property rights and expounds a concept of personal liberty. It may also be noted that to the extent Rajagopala Ayyangar, J. (i.e. majority) held that:
“We feel unable to hold that the term [personal liberty] was intended to bear only this narrow interpretation but on the other hand consider 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 deal with in the several clauses of Article 19(1).”
15. Hence, the majority held that Article 21 could not in any event influence Article 19(1)(d). The majority further held that:
“The right of privacy is not a guaranteed right under our Constitution, and therefore the attempt to ascertain the movements of an individual is merely a manner in which privacy is invaded and is not an infringement of a fundamental right guaranteed in Part III…”
(emphasis supplied)
16. According to the judgment of Subba Rao, J. the following consequences will emerge:
(a) The expression liberty is not a residuary expression.
(b) It is a substantive expression;
(c) It contemplates right to privacy;
(d) If it is to be read as informed by Preambular values of dignity, liberty and freedom — which expressions are contained in the Preamble. There can be no manner of doubt that right to privacy is an established fundamental right under the Constitution.
17. It is respectfully submitted that in Gobind v. State of M.P. (1975) 2 SCC 148, SCC at p. 154, the Court noticed the decision of Griswold v. Connecticut 1965 SCC OnLine US SC 124, 381 US 479 (1965), US at p. 510 and noted that:
“In an opinion by Douglas, J., expressing view of five members of the Court, it was held that the statute was invalid as an unconstitutional invasion of the right of privacy of married persons. He said that the right of freedom of speech press includes not only the right to utter or to print but also the right to distribute, the right to receive, the right to read and that without those peripheral rights the specific right would be less secure and that likewise, the other specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance, that the various guarantees create zones of privacy, and that protection against all governmental invasion “of the sanctity of a man's home and the privacies of life” was fundamental. He further said that the inquiry is whether a right involved “is of such a character that it cannot be denied without violating those ‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions’ and that ‘privacy is a fundamental personal right, emanating from the totality of the Constitutional scheme under which we (Americans) live’””.
(emphasis supplied)
18. This Hon'ble Court also noticed the decision of Roe v. Wade 1973 SCC OnLine US SC 20, 410 US 113 (1973), where the litigant wanted to exercise the right to abortion and the Court recognised “that a right of personal privacy or a guarantee of certain areas or zones of privacy, does exist under the Constitution”.
19. The judgment in Gobind (1975) 2 SCC 148 clearly noticed that right to privacy contained multiple aspects, such as: (See paras 21 to 25, Gobind (1975) 2 SCC 148)
a. Spatial privacy;
b. Informational privacy;
c. Decisional autonomy; and,
d. Full development of personality;
20. It may be said that in Gobind (1975) 2 SCC 148 Mathew, J. realised that the law relating to privacy was still in a state of evolution which is why he clearly noted that:
“…28. The right to privacy in any event will necessarily have to go through a process of case-by-case development.”
21. Mathew, J. referred to Arts. 8(1) and (2) of the Convention for the Protection of Human Rights and Fundamental Freedoms. Hence, the regulations authorising surveillance were necessarily read down.
22. It is submitted that in Maneka Gandhi v. Union of India (1978) 1 SCC 248, the issue was fully settled. It was clearly held that:
(a) A.K. Gopalan AIR 1950 SC 27, (1950) 51 Cri LJ 1383, 1950 SCR 88 stands overruled by R.C. Cooper (1970) 1 SCC 248.
(b) Therefore, there is an indivisible connection between all the fundamental rights, and any law creating restrictions on rights must be in conformity with Articles 14, 19 and 21 of the Constitution.
(c) The law must satisfy the test of substantive as well as procedural due process.
(d) In particular, Bhagwati, J. affirmed the minority view expressed by Subba Rao, J. in Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329, (1964) 1 SCR 332:
“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) 51 Cri LJ 1383, 1950 SCR 88, and the observations made by Patanjali Sastri, J., Mukherjea, J., and S.R. Das, J., seemed to place a narrow interpretation on the words “personal liberty” so as to confine the protection of Article 21 to freedom of the person against unlawful detention. But there was no definite pronouncement made on this point since the question before the Court was not so much the interpretation of the words “personal liberty” as the inter-relation between Articles 19 and 21. It was in Kharak Singh v. State of U.P. AIR 1963 SC 1295, (1963) 2 Cri LJ 329, (1964) 1 SCR 332 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 Rustom Cowasjee Cooper v. Union Of India . (1970) 2 SCC 298 the minority view must be regarded as correct and the majority view must be held to have been overruled.
(emphasis supplied)
23. Further, in para 96, Krishna Iyer, J., in his inimitable style stated as under:
“96. A thorny problem debated recurrently at the bar, turning on Article 19, demands some juristic response although avoidance of overlap persuades me to drop all other questions canvassed before us. The Gopalan verdict, with the cocooning of Article 22 into a self-contained code, has suffered suppression at the hands of R.C. Cooper (1970) 1 SCC 248. By way of aside, the fluctuating fortunes of fundamental rights, when the proletarist and the proprietarist have asserted them in Court, partially provoke sociological research and hesitantly project the Cardozo thesis of subconscious forces in judicial noesis when the cycloramic review starts from Gopalan, moves on to Kerala Education Bill, 1957, In re AIR 1958 SC 956 and then on to All-India Bank Employees' Assn. AIR 1962 SC 171, (1962) 3 SCR 269, next to Sakal Papers AIR 1962 SC 305, (1962) 3 SCR 842, crowning in Cooper (1970) 1 SCC 248 and followed by Bennett Coleman (1972) 2 SCC 788 and Sambhu Nath Sarkar (1973) 1 SCC 856. Be that as it may, the law is now settled, as I apprehend it, that no article in Part HI is an island but part of a continent, and the conspectus of the whole part gives the direction and correction needed for interpretation of these basic provisions. Man is not dissectible into separate limbs and, likewise, cardinal rights in an organic constitution, which make man human have a synthesis. The proposition is indubitable that Article 21 does not, in a given situation, exclude Article 19 if both rights are breached.”
24. In Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225, Sikri, C.J. noticed:
(a) The Preamble is a part of the Indian Constitution.
(b) The Preamble constitutes India into a sovereign democratic republic and to secure to all its citizens and guarantees
“… 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….”
(c) “The Preamble of our Constitution, is of extreme importance and the Constitution should be read and interpreted in the light of the grand and noble vision expressed in the Preamble….”'.
(d) The Universal Declaration of Human Rights, 1948 was considered and it was held as follows:
“148-49. I may here mention that while our fundamental rights and directive principles were being fashioned and approved of by the Constituent Assembly on 10-12-1948, the General Assembly of the United Nations adopted a Universal Declaration of Human Rights. The Declaration may not be a legally binding instrument but it shows how India understood the nature of human rights.”
(e) Regard may be had to the following recital in the Universal Declaration of Human Rights, 1948 “Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom”.
(f) Further, that certain inalienable right ought to be guaranteed, and held:
“150. In the Preamble to the International Covenant on Economic and Social and Cultural Bights, 1966, inalienability of rights is indicated in the first para as follows:
“Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” ”
25. The fundamental proposition that was held in Kesavananda (1973) 4 SCC 225 was that certain rights are basic and inalienable.
26. While describing the Basic Structure, Sikri, C.J. remarked:
“292. 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 maybe 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.
293. The above structure is built on the basic foundation i.e. the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed.”
(emphasis supplied)
27. Sikri, C.J. held that some rights were natural and inalienable and he cited a large number of decisions to describe what could be natural and inalienable rights. The liberty of the person and his essential freedoms for whom the Constitution is intended and from which the State is injuncted from interfering, and must be viewed as a part of the Basic Structure. In this respect Sikri, C.J. held as under:
“299. I am unable to hold that these provisions show that some rights are not natural or inalienable rights. As a matter of fact, India was a party to the Universal Declaration of Rights which I have already referred to and that Declaration describes some fundamental rights as inalienable.”
28. It is submitted that the right to privacy invariably means the inviolability of the person. The expression “person” includes the body as well as the inviolate personality. It is submitted that privacy really is intended to indicate the realm of inviolable sanctuary that most of us sense in our beings. It refers to spatial sanctity, freedom in decisional autonomy, informational privacy as well as the ability to freely develop one's personality and exercise discretion and judgment. It may be noted that both in Abington School District v. Schempp 1963 SCC OnLine US SC 154, 374 US 203 (1963), US and Fisher v. United States 1976 SCC OnLine US SC 69, 425 US 391 (1976), US at pp. 416, the expression on inviolability uses spatial imagery of the castle or the sanctuary to convey the appropriate inaccessibility of the person, the inviolable citadel of a person's heart and mind, or the inner sanctum of individual feeling and thought. The usage of the term “personhood” in privacy jurisprudence is attributed to Professor Freund, who in 1975 made the following observations:
“The theme of personhood is… emerging. It has been groping, I think, for a rubric. Sometimes it is called privacy, inaptly it would seem to me; autonomy perhaps, though that seems too dangerously broad. But the idea is that of personhood in the sense of those attributes of an individual which are irreducible in his selfhood.”
29. In the context of the Indian Constitution, three articles i.e. Articles 14, 19 and 21—form its sanctum sanctorum. Identifying the special status of these three articles, the Hon'ble Supreme Court in Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625 observed:
“74. Three Articles of our Constitution, and only three, stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power. They are Articles 14, 19 and 81. Article 31-C has removed two sides of that golden triangle which affords to the people of this country an assurance that the promise held forth by the preamble will be performed by ushering an egalitarian era through the discipline of fundamental rights, that is, without emasculation of the rights to liberty and equality which alone can help preserve the dignity of the individual.”
(emphasis supplied)
30. Laurence Tribe, in order to show the underlying purpose of the right to privacy and why it is one of the foundational elements of a democratic nation, wrote in his book as under:
“Finally, the right to privacy is a requirement of democracy. When none of us can be certain what the state knows about us or how it might use that information, the relationship between the governed and the Government is fundamentally altered. The State's unlimited access to whatever information it wishes to obtain about each citizen can create a profound power imbalance and feeling of vulnerability. As Justice Robert Jackson once wrote of searches and seizures, “Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart.” This is especially true when the State develops the ability to combine many small pieces of data into a full picture of our lives. Even if we trust the State not to abuse the information and search only for true threats, the risk that our vast intelligence bureaucracy will make an egregious error is unavoidable. Entirely innocent personal information can be abused, leaked, distorted, and put to mischievous use in unpredictable ways. Without protection of privacy, democratic life could suffer a dangerous chill.”
31. Roscoe Pound, while expounding on natural rights, observed that “the law does not create them, it only recognises them.” February 1915 He farther observed:
“Individual interests which it is conceived the law ought to secure are usually called “natural rights” because they are not the creatures of the State and it is held that the pressure of these interests has brought about the State. In the stage of equity or natural law, when what ought to be law is made the test of what is, it is natural to confuse the interests which the law does secure, the interests it ought to secure, and the means of securing them under the one name of “rights”. Those which are secured and the means; whereby they are secured are called legal rights; those which ought to be secured are called natural rights.”
32. Privacy is a part of personhood and is therefore a natural right. This is why the natural right is not conferred but only recognised by the Constitution.
33. In I.R. I.R Coelho (Dead) By Lrs. v. State Of T.N .. (2007) 2 SCC 1 the Court observed:
“56. The fundamentalness of fundamental rights has thus to he examined having regard to the enlightened point of view as a result of development of fundamental rights over the years. It is, therefore, imperative to understand the nature of guarantees under fundamental rights as understood in the years that immediately followed after the Constitution was enforced when fundamental rights were viewed by this Court as distinct and separate rights. In early years, the scope of the guarantee provided by these rights was considered to be very narrow. Individuals could only claim limited protection against the State. This position has changed since long. Over the years, the jurisprudence and development around fundamental rights has made it clear that they are not limited, narrow rights but provide a broad check against the violations or excesses by the State authorities. The fundamental rights have in fact proved to be the most significant constitutional control on the Government, particularly legislative power. This transition from a set of independent, narrow rights to broad checks on State power is demonstrated by a series of cases that have been decided by this Court. In State of Bombay v. Bhanji Munji AIR 1955 SC 41, (1955) 1 SCR 777, relying on the ratio of Gopalan AIR 1950 SC 27, (1950) 51 Cri LJ 1383, 1950 SCR 88, it was held that Article 31 was independent of Article 19(1)(f). However, it was in Rustom Cavasjee Cooper v. Union Of India . (1970) 1 SCC 248 (popularly known as Bank Nationalisation case) that the viewpoint of Gopalan AIR 1950 SC 27, (1950) 51 Cri LJ 1383, 1950 SCR 88 was seriously disapproved… While examining this question the Court stated that the actual effect of the law on the right guaranteed must be taken into account. This ratio was applied in Bank Nationalisation case (1970) 1 SCC 248. The Court examined the relation between Article 19(1)(f) and Article 13 and held that they were not mutually exclusive. The ratio of Gopalan AIR 1950 SC 27, (1950) 51 Cri LJ 1383, 1950 SCR 88 was not approved.
60. It is evident that it can no longer be contended that protection provided by fundamental rights comes in isolated pools. On the contrary, these rights together provide a comprehensive guarantee against excesses by State authorities. Thus post-Maneka Gandhi case (1978) 1 SCC 248 it is clear that the development of fundamental rights has been such that it no longer involves the interpretation of rights as isolated protections which directly arise but they collectively form a comprehensive test against the arbitrary exercise of State power in any area that occurs as an inevitable consequence. The protection of fundamental rights has, therefore, been considerably widened.
61. The approach in the interpretation of fundamental rights has been evidenced in a 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… 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) 51 Cri LJ 1383, 1950 SCR 88. Article 21 of the Constitution provides that no person shall be deprived of Ms 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 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 AIR 1950 SC 27, (1950) 51 Cri LJ 1383, 1950 SCR 88 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.” ”
(emphasis supplied)
34. In Selvi v. State of Karnataka (2010) 7 SCC 263, the Court reaffirmed the position laid down in Maneka (1978) 1 SCC 248 case and clarified that the decision of Bhagwati, J. in Maneka (1978) 1 SCC 248 had effectively made it clear that the minority opinion of Subba Rao, J. was the correct exposition of law. In fact, it may not be out of place to suggest that the understanding of M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865, 1954 SCR 1077 and Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329, (1964) 1 SCR 332 being urged by the Attorney General is no longer tenable in view of the decision in Selvi (2010) 7 SCC 263 having firmly closed the door on such an argument and having held that there is a fundamental right to privacy notwithstanding the decisions in M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865, 1954 SCR 1077 and Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329, (1964) 1 SCR 332. The Court made the following observations:
“205. In M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865, 1954 SCR 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.
206. Similar issues were discussed in Kharak Singh v. State of U.P. AIR 1963 SC 1295, (1963) 2 Cri LJ 329, (1964) 1 SCR 332, where the Court considered the validity of the Police Regulations that authorised police personnel to maintain lists of “history-sheeters” in addition to conducting surveillance activities, domiciliary visits and periodic inquiries about such persons. The intention was to monitor persons suspected or charged with offences in the past, with the aim of preventing criminal acts in the future. At the time, there was no statutory basis for these Regulations and they had been framed in the exercise of administrative functions. The majority opinion (Ayyangar, J.) held that these Regulations did not violate “personal liberty”, except for those which permitted domiciliary visits. The other restraints such as surveillance activities and periodic inquiries about “history-sheeters” were justified by observing: (AIR p. 1303, para 20)
“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 fundamental right guaranteed by Part III.”
207. Ayyangar, J. distinguished between surveillance activities conducted in the routine exercise of police powers and the specific act of unauthorised intrusion into a person's home which violated “personal liberty”. However, the minority opinion (Subba Rao, J.) in Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329, (1964) 1 SCR 332 took a different approach by recognising the interrelationship between Articles 21 and 19, thereby requiring the State to demonstrate the “reasonableness” of placing such restrictions on “personal liberty”. (This approach was later endorsed by Bhagwati, J. in Maneka Gandhi v. Union of India (1978) 1 SCC 248, see AIR p. 622.) Subba Rao, J. held that the right to privacy “is an essential ingredient of personal liberty” and that the right to “personal liberty” is “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”. (AIR at p. 1306, para 31)…
209. Following the judicial expansion of the idea of “personal liberty”, the status of the “right to privacy” as a component of Article 21 has been recognised and reinforced…”
35. Rohinton Nariman, J. in Mohd. Arif v. Supreme Court of India (2014) 9 SCC 737, in a concise and lucid summary identified the change from the Gopalan AIR 1950 SC 27, (1950) 51 Cri LJ 1383, 1950 SCR 88 era to the Maneka Gandhi (1978) 1 SCC 248 era in the following passages:
“25. In Kharak Singh v. State of U.P. AIR 1963 SC 1295, (1963) 2 Cri LJ 329, (1964) 1 SCR 332, Gopalan AIR 1950 SC 27, (1950) 51 Cri LJ 1383, 1950 SCR 88's reading of fundamental rights in watertight compartments was reiterated by the majority. However, they went one step further to say that “personal liberty” in Article 21 takes in and comprises the residue after all the rights granted by Article 19.
Justices Subba Rao and Shah disagreed. They held:
“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.” (at pages 356-357)
26. The minority judgment of Subba Rao and Shah, JJ. eventually became law in Rustom Cavasjee Cooper (1970) 1 SCC 248, where the 11-Judge Bench finally discarded Gopalan AIR 1950 SC 27, (1950) 51 Cri LJ 1383, 1950 SCR 88 view and held that various fundamental rights contained in different articles are not mutually exclusive:
“53. We are therefore unable to hold that the challenge to the validity of the provision for 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(B) are mutually exclusive.”
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 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. 646-48: per Beg, C.J., at SCR pp. 669, 671-74, 687: & 296-97, paras 5-7 & 18 per Bhagwati, J. and at SCR pp. 720-23 : per Krishna Iyer, J.]
36. In view of the above submissions, it is respectfully submitted that the right to privacy is recognised as a fundamental right under Article 21 of the Constitution. It is also submitted that this has been the settled position of law since the overturning of the decision in A.K. Gopalan AIR 1950 SC 27, (1950) 51 Cri LJ 1383, 1950 SCR 88 by way of judgments in R.C. Cooper (1970) 1 SCC 248 and Maneka Gandhi (1978) 1 SCC 248. The concept of privacy is embedded in liberty as well as honour of a person. (2003) 113 Yale LJ 1151
III. Mr Shyam Divan, Senior Advocate, for the petitioners
1. These submissions are filed on behalf of the writ petitioners in the following petitions:
1.1. Writ Petition (Civil) No. 829 of 2013 — ‘SG Vombatkere v. Union of India’ — challenging the Aadhaar programme initiated under a Notification dated 28-1-2009.
1.2. Writ Petition (Civil) No. 797 of 2016 — ‘SG Vombatkere v. Union of India’ — challenging the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (“the Aadhaar Act”).
1.3. Writ Petition (Civil) No. 342 of 2017 — ‘Shantha Sinha v. Union of India’ — challenging the Aadhaar Act and the notifications issued under Section 7 of the Aadhaar Act.
2. By an order dated 11-8-2015 (2015) 8 SCC 735, a three-Judge Bench of this Hon'ble Court referred the petitions challenging the Aadhaar programme (including WP (Civil) No. 829 of 2013) to a Bench of appropriate strength, inter alia, to scrutinise the ratio decidendi in M.P. Sharma v. Satish Chandra 1954 SCR 1077, AIR 1954 SC 300 (eight-Judge) and Kharak Singh v. State of U.P. (1964) 1 SCR 332, AIR 1963 SC 1295, (1963) 2 Cri LJ 329 (six-Judge) and the jurisprudential correctness of the subsequent decisions of the Supreme Court where the right to privacy is asserted or referred.
3. The Aadhaar Act, 2016 was enacted on 26-3-2016. Writ Petition (Civil) No. 797 of 2016 and Writ Petition (Civil) No. 342 of 2017 challenge the Aadhaar Act.
4. Rule nisi was issued in these two writ petitions on 28-10-2016 (2017) 7 SCC 59 and 9-5-2017 WP (C) No. 342 of 2017 respectively. By the same orders, these writ petitions were tagged with the batch of matters referred to a larger Bench.
I. Scope of hearing
5. The matter is placed before this five-Judge Bench to consider whether Part III of the Constitution of India protects the right to privacy as contended by the petitioners on the strength of over 30 judgments of this Court or whether this issue needs to be authoritatively determined by a Bench comprising more than 5 Judges.
6. The petitioners submit that the present Bench of 5 Judges can authoritatively affirm that the right to privacy is guaranteed under Part III of the Constitution and there is no necessity to refer the case to a larger Bench.
II. Global perspective on the right to privacy
7. The right to privacy is an internationally recognised human right and is protected in almost all liberal democracies either constitutionally or statutorily. The United Nations has emphasised that States must respect international human rights obligations regarding the right to privacy.
8. A human right is enjoyed by every human being by virtue of his or her existence. It depends on no instrument or charter. A human right is enjoyed by a person by being alive. The human right to privacy in India is protective under Articles 14, 19 and 21 of the Constitution of India whether the right to privacy is violated in a particular case, depends on the fact of that case.
9. The Report of the United Nations Special Rapporteur (Joseph A. Cannataci) on the Right to Privacy dated 8-3-2016 states that Article 12 of the Universal Declaration of Human Rights, 1948 (“the UDHR”) and Article 17 of the International Covenant on Civil and Political Rights, 1966 (“the Iccpr”) constitute the basis of the right to privacy in international human rights law. Taken together with a number of other international and national legal instruments including constitutions and legislation, there exists worldwide, a considerable legal framework for the protection and promotion of privacy.
III. The existence of a ‘Right to Privacy’ is not disputed
10. The existence of a “right to privacy” particularly in the context of the Aadhaar programme and the Aadhaar Act, is not a disputed issue between the parties. The Aadhaar Act itself acknowledges the existence of this right as is evident from the following:
10.1. Chapter VI of the Aadhaar Act purports to provide a mechanism for the protection of identity information and authentication records collected under the Aadhaar Act and restrictions on the sharing of such information.
10.2. Section 30 of the Aadhaar Act provides that biometric information (photographs, fingerprints and iris scans) collected and stored under the Aadhaar Act will be deemed to be “sensitive personal information”.
10.3. Sections 37 to 40 of the Aadhaar Act provide penalties for unauthorised disclosure and use of identity information.
10.4. The Statement of Objects and Reasons in respect of the Aadhaar Bill, inter alia, provides:
“The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016 inter alia, provides for establishment of Unique Identification Authority of India, issuance of Aadhaar number to individuals, maintenance and updating of information in the Central Identities Data Repository, issues pertaining to security, privacy and confidentiality of information as well as offences and penalties for contravention of relevant statutory provisions.”
(emphasis supplied)
11. Further, as recorded in para 50 of the judgment of the Supreme Court dated 9-6-2017 in Binoy Viswam v. Union of India (2017) 7 SCC 59 relating to the linking of PAN cards and Aadhaar numbers, the Union's contention was that the right to privacy is not absolute.
12. In view of the aforesaid, there is no controversy between the parties that a right to privacy exists, but only whether it is protected under Part III of the Constitution of India.
IV. Recognition of the Right to Privacy under Part III
13. While numerous Supreme Court judgments recognise diverse facets of what broadly falls under the right to privacy, since 1975 there is an unbroken line of decisions that expressly recognises the existence of a right to privacy as being protected under Part III of the Constitution, more specifically Article 21.
14. In Gobind v. State of M.P. (1975) 2 SCC 148 [3 Judge] the Court held:
“14. Subba Rao, J. writing for the minority [in Kharak Singh (1964) 1 SCR 332, AIR 1963 SC 1295, (1963) 2 Cri LJ 329], was of the opinion that the word “liberty” in Article 21 was comprehensive enough to include privacy also. He said that although it is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the right is an essential ingredient of personal liberty, that in the last resort, a person's house, where he lives with his family, is his “castle”, that nothing is more deleterious to a man's physical happiness and health than a calculated interference with his privacy and that all the acts of surveillance under Regulation 236 infringe the fundamental right of the petitioner under Article 21 of the Constitution….”
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 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.”
(emphasis supplied)
15. In R. Rajagopal v. State of T.N. (1994) 6 SCC 632 [2 Judge] the Court explained the contours of the right to privacy:
“9. The right to privacy as an independent and distinctive concept originated in the field of Tort law, under which a new cause of action for damages resulting from unlawful invasion of privacy was recognised. This right has two aspects which are but two faces of the same coin — (1) the general law of privacy which affords a tort action for damages resulting from an unlawful invasion of privacy, and (2) the constitutional recognition given to the right to privacy which protects personal privacy against unlawful governmental invasion. The first aspect of this right must be said to have been violated where, for example, a person's name or likeness is used, without his consent, for advertising—or non-advertising—purposes or for that matter, his life story is written—whether laudatory or otherwise—and published without his consent as explained hereinafter. In recent times, however, this right has acquired a constitutional status. We shall proceed to explain how. Right to privacy is not enumerated as a fundamental right in our Constitution but has been inferred from Article 21.
***
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….”
(emphasis supplied)
16. In PUCL v. Union of India (1997) 1 SCC 301 [2 Judge] the Court held:
“14. 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, (1963) 2 Cri LJ 329 (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.
***
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 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.”
(emphasis supplied)
17. In Mr X v. Hospital Z’ (1998) 8 SCC 296 [2 Judge] the Supreme Court discussed the right to privacy:
“21. 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. (1964) 1 SCR 332, AIR 1963 SC 1295, (1963) 2 Cri LJ 329 that police surveillance of a person by domiciliary visits would be violative of 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 in which the origin of “right to privacy” was traced and a number of American decisions, including Munn v. Illinois 1876 SCC OnLine US SC 4, 94 US 113 (1877), Wolf v. Colorado 1949 SCC OnLine US SC 102, 93 L Ed 1782, 338 US 25 (1949) and various articles were considered and it was laid down ultimately, as under:
***
26. As one of the basic human rights, the right of privacy is not treated as absolute and is subject to such action as may be lawfully taken for the prevention of crime or disorder or protection of health or morals or protection of rights and freedoms of others.
***
28. 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.”
(emphasis supplied)
18. Ram Jethmalani v. Union of India (2011) 8 SCC 1 [2 Judge] the Court held:
“83. 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 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.
84. 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.”
(emphasis supplied)
19. There are several subsequent judgments of the Supreme Court that have explained various facets of the right to privacy including autonomy, dignity, informational privacy, privacy and the right to know and privacy and confidentiality. A list of these judgments is set out in a table at p. 66/Vol. I/Petitioners' Compilation.
V. Milestones in the evolution of Part III
20. The evolution and the expansion of the rights guaranteed under Part III of the Constitution can be traced through the following judgments:
(i) A.K Gopalan v. State Of Madras . 1950 SCR 88, AIR 1950 SC 27, (1950) 51 Cri LJ 1383 (6 Judge) — decided on 19-5-1950 (p. 53/Vol. I/Petitioners' Compilation)
(ii) M.P. Sharma v. Satish Chandra 1954 SCR 1077, AIR 1954 SC 300 (8 Judge) — decided on 15-3-1954 (p. 72/Vol. I/Petitioners' Compilation)
(iii) Kharak Singh v. State of U.P. (1964) 1 SCR 332, AIR 1963 SC 1295, (1963) 2 Cri LJ 329 (6 Judge) — decided on 18-12-1962 (p. 93/Vol. I/Petitioners' Compilation)
(iv) Rustom Cavasjee Cooper v. Union Of India . (1970) 1 SCC 248 (11 Judge) — decided on 10-2-1970 (p. 55/Vol. I/Petitioners' Compilation)
(v) Maneka Gandhi v. Union of India (1978) 1 SCC 248 (7 Judge) — decided on 25-1-1978 (p. 57/Vol. I/Petitioners' Compilation)
(vi) I.R. I.R Coelho (Dead) By Lrs. v. State Of T.N .. (2007) 2 SCC 1 (9 Judge) — decided on 11-1-2007 (p. 62/Vol. I/Petitioners' Compilation)
(vii) Mohd. Arif v. Supreme Court of India (2014) 9 SCC 737 (5 Judge) — decided on 2-9-2014 (p. 63/Vol. I/Petitioners' Compilation)
VI. No conflict between M.P. Sharma2, Kharak Singh3 and the subsequent Supreme Court decisions
A. M.P. Sharma 1954 SCR 1077, AIR 1954 SC 300
21. The discussion on the fundamental right to privacy in M.P. Sharma 1954 SCR 1077, AIR 1954 SC 300 was restricted in context inasmuch as it related to the State's power to conduct search and seizure vis-à-vis Article 20(3) and Article 19(1)(f) of the Constitution of India.
22. The eight-Judge Bench did not consider or rule upon the existence of the right to privacy under Article 21 and Article 19(1)(a) of the Constitution of India. Examining the American Fourth Amendment, the Supreme Court merely observed that there was no fundamental right to privacy “analogous to the American Fourth Amendment”.
B. Kharak Singh (1964) 1 SCR 332, AIR 1963 SC 1295, (1963) 2 Cri LJ 329
23. The majority judgment of Ayyanagar, J. in Kharak Singh (1964) 1 SCR 332, AIR 1963 SC 1295, (1963) 2 Cri LJ 329 struck down Regulation 236(b) of the U.P. Police Regulations concerning domiciliary visits at night as violating Article 21, expressly recognising the notion of privacy in the context of
“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 any theory of freedom which has ceased to be of value.” (p. 349).
24. The ratio of the majority judgment in Kharak Singh (1964) 1 SCR 332, AIR 1963 SC 1295, (1963) 2 Cri LJ 329 is explained by a five-Judge Bench of the Supreme Court in State of W.B. v. Committee for Protection of Democratic Rights (2010) 3 SCC 571 (SCC at para 60):
“It is trite that the words “life” and “personal liberty” are used in the article as compendious terms to include within themselves all the varieties of life which go to make up the personal liberties of a man and not merely the right to the continuance of a person's animal existence. (See Kharak Singh v. State of U.P. (1964) 1 SCR 332, AIR 1963 SC 1295, (1963) 2 Cri LJ 329)”
25. Further, the minority judgment of Subba Rao and Shah, JJ. in Kharak Singh (1964) 1 SCR 332, AIR 1963 SC 1295, (1963) 2 Cri LJ 329 held:
“Indeed, nothing is more deleterious to 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.”
26. The following subsequent decisions of the Supreme Court have expressly held that the minority view in Kharak Singh (1964) 1 SCR 332, AIR 1963 SC 1295, (1963) 2 Cri LJ 329 must be regarded as correct:
(i) Rustom Cavasjee Cooper v. Union Of India . (1970) 1 SCC 248, 11 Judge (p. 55/Vol. I/Petitioners' Compilation)
(ii) Maneka Gandhi v. Union of India (1978) 1 SCC 248, 7 Judge (p. 57/Vol.I/Petitioners' Compilation)
“5. … There can be no doubt that in view of the decision of this Court in R.C. Cooper v. Union of India (1970) 2 SCC 298 the minority view must be regarded as correct and the majority view must be held to have been overruled.”
(iii) Mohd. Arif v. Supreme Court of India (2014) 9 SCC 737, 5 Judge (p. 63/Vol. I/Petitioners' Compilation)
“26. … The minority judgment of Subba Rao and Shah, J]. eventually became law in Rustom Cavasjee Cooper v. Union Of India . (1970) 1 SCC 248, where the eleven Judge Bench finally discarded Gopalan 1950 SCR 88, AIR 1950 SC 27, (1950) 51 Cri LJ 1383 view and held that various fundamental rights contained in different Articles are not mutually exclusive…”
***
“28. … The wheel has turned full circle. Substantive due process is now to be applied to the fundamental right to life and liberty.”
27. In view of the decisions in R.C. Cooper (1970) 1 SCC 248 and Maneka Gandhi (1978) 1 SCC 248, delivered by Benches larger than Kharak Singh (1964) 1 SCR 332, AIR 1963 SC 1295, (1963) 2 Cri LJ 329, the majority view in Kharak Singh (1964) 1 SCR 332, AIR 1963 SC 1295, (1963) 2 Cri LJ 329 is expressly overruled.
28. Further, the decisions in M.P. Sharma 1954 SCR 1077, AIR 1954 SC 300 and Kharak Singh (1964) 1 SCR 332, AIR 1963 SC 1295, (1963) 2 Cri LJ 329 were rendered on principles of constitutional interpretation set out in A.K Gopalan v. State Of Madras . 1950 SCR 88, AIR 1950 SC 27, (1950) 51 Cri LJ 1383. An eleven Judge Bench of the Supreme Court in R.C. Cooper (1970) 1 SCC 248 has expressly overruled the A.K. Gopalan 1950 SCR 88, AIR 1950 SC 27, (1950) 51 Cri LJ 1383 judgment (as affirmed by a seven-Judge Bench in Maneka Gandhi (1978) 1 SCC 248).
VII. Expansion of Part III Rights
29. The eleven Judge Bench in R.C. Cooper (1970) 1 SCC 248 upheld a wider and more expansive interpretation of Part III rights. The Court (per J.C. Shah, J. for the majority), inter alia, held:
“52. … 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.”
***
“55. We have found it necessary to examine the rationale of the two lines of authority and determine whether there is anything in the Constitution which justifies this apparently inconsistent development of the law. In our judgment, the assumption in A.K. Gopalan case 1950 SCR 88, AIR 1950 SC 27, (1950) 51 Cri LJ 1383 that certain articles in the Constitution exclusively deal with specific matters and in determining whether there is infringement of the individual's guaranteed rights, the object and the form of the State action alone need be considered, and effect of the laws on fundamental rights of the individuals in general will be ignored cannot be accepted as correct.”
30. In Maneka Gandhi (1978) 1 SCC 248, the Supreme Court held:
“5. … It is indeed difficult to see on what principle we can refuse to give its plain natural meaning to the expression “personal liberty” as used in Article 21 and read it in a narrow and restricted sense so as to exclude those attributes of personal liberty which are specifically dealt with in Article 19. We do not think that this would be a correct way of interpreting the provisions of the Constitution conferring fundamental rights. 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 a process of judicial construction. The wavelength for comprehending the scope and ambit of the fundamental rights has been set by this Court in R.C. Cooper case (1970) 2 SCC 298 and our approach in the interpretation of the fundamental rights must now be in tune with this wavelength. We may point out even at the cost of repetition that this Court has said in so many terms in R.C. Cooper case (1970) 2 SCC 298 that each freedom has different dimensions and there may be overlapping between different fundamental rights and therefore it is not a valid argument to say that the expression “personal liberty” in Article 21 must be so interpreted as to avoid overlapping between that article and Article 19(1). 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.…”
31. Further, a nine Judge Bench of the Supreme Court in I.R. I.R Coelho (Dead) By Lrs. v. State Of T.N .. (2007) 2 SCC 1 has held that the Constitution of India is a living document and its interpretation should be dynamic and evolve with time. The Supreme Court has also held:
“140. … Article 21 is the heart of the Constitution. It confers right to life as well as right to choose. When this triangle of Article 21 read with Article 14 and Article 19 is sought to be eliminated not only the “essence of right” test but also the “rights test” has to apply, particularly when Kesavananda Bharati (1973) 4 SCC 225 and Indira Gandhi 1975 Supp SCC 1 cases have expanded the scope of basic structure to cover even some of the fundamental rights.”
VIII. Right to Privacy in the post-R.C. Cooper era
32. In the aforesaid background regarding the interpretation of Part III rights and particularly Article 21, the decision of the Supreme Court in Selvi v. State of Karnataka (2010) 7 SCC 263 [3 Judge] and its express assertion of a fundamental right to privacy is extremely important.
33. In Selvi (2010) 7 SCC 263, the Court considered the right to privacy exhaustively in paras 204-226 (pp. 363-70) of the judgment. The decision dealt with M.P. Sharma 1954 SCR 1077, AIR 1954 SC 300, Kharak Singh (1964) 1 SCR 332, AIR 1963 SC 1295, (1963) 2 Cri LJ 329 and Maneka Gandhi (1978) 1 SCC 248 and held:
“209. … Following the judicial expansion of the idea of ‘personal liberty’, the status of the ‘right to privacy’ as a component of the Article 21 has been recognised and reinforced.’
***
“225. So far, the judicial understanding of privacy in our country has mostly stressed on the protection of the body and physical spaces from intrusive actions by the State. While the scheme of criminal procedure as well as evidence law mandates interference with physical privacy through statutory provisions that enable arrest, detention, search and seizure among others, the same cannot be the basis for compelling a person “to impart personal knowledge about a relevant fact”. The theory of interrelationship of rights mandates that the right against self-incrimination should also be read as a component of “personal liberty” under Article 21. Hence, our understanding of the “right to privacy” should account for its intersection with Article 20(3) … 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.
226. 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”. However, this determination does not account for circumstances where a person could be subjected to any of the impugned tests but not exposed to criminal charges and the possibility of conviction. In such cases, he/she could still face adverse consequences such as custodial abuse, surveillance, undue harassment and social stigma among others. In order to address such circumstances, it is important to examine some other dimensions of Article 21.”
(emphasis supplied)
34. Even prior to Selvi (2010) 7 SCC 263, in District Registrar and Collector v. Canara Bank (2005) 1 SCC 496, a two Judge Bench of the Supreme Court (after considering the judgments in M.P. Sharma 1954 SCR 1077, AIR 1954 SC 300 and Kharak Singh (1964) 1 SCR 332, AIR 1963 SC 1295, (1963) 2 Cri LJ 329) held:
“39…. the right to privacy has been implied in Articles 19(1) (a) and (d) and Article 21 …
“40. A two Judge Bench in R. Rajagopal v. State of T.N. (1994) 6 SCC 632 held the right of privacy to be implicit in the right to life and liberty guaranteed to the citizens of India by Article 21, “It is the right to be let alone.” Every citizen has a right to safeguard the privacy of his own. However, in the case of a matter being part of public records, including court records, the right of privacy cannot be claimed. The right to privacy has since been widely accepted as implied in our Constitution, in other cases, namely, People's Union for Civil Liberties v. Union of India (1997) 1 SCC 301, Mr X v. Hospital Z’ (1998) 8 SCC 296, People's Union for Civil Liberties v. Union of India (2003) 4 SCC 399 and Sharda v. Dharmpal . (2003) 4 SCC 493.”
(emphasis supplied)
35. These decisions, subsequent to M.P. Sharma 1954 SCR 1077, AIR 1954 SC 300 and Kharak Singh (1964) 1 SCR 332, AIR 1963 SC 1295, (1963) 2 Cri LJ 329, reinforced the right to privacy after due consideration of the existing case law. The Supreme Court over the last four decades has consistently recognised the right to privacy.
36. The ratio decidendi of previous decisions must be determined in the context of the understanding of subsequent Benches. Salmond on Jurisprudence, (P.J. Fitzgerald, 12th Edn.) at pp. 178-79 states:
“But while the freedom to distinguish previous decision makes the operation of precedent more flexible, it has given rise to the view that the ratio decidendi of a case is in fact what later cases consider it to be … Cases cannot be looked at in isolation but must be interpreted in the light of later authority which may have widened, restricted, distinguished or explained them.…”
(emphasis supplied)
IX. International norms on the Right to Privacy
A. International instruments
37. The right to privacy is internationally recognised as a fundamental human right and has been incorporated as such in the following:
37.1. Article 12 of the Universal Declaration of Human Rights, 1948 (“UDHR”) provides:
“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.” (p. 378/Vol. II/Petitioners' Compilation)
37.2. Article 17 of the International Covenant on Civil and Political Rights, 1966 (‘Iccpr’) provides:
“17. 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.” (p. 3.72/Vol. II/Petitioners' Compilation)
India signed and ratified the Iccpr on 10-4-1979 without any reservation with respect to Article 17.
37.3. UN General Assembly Resolution No. 28/16 dated 1-4-2015, appointing the Special Rapporteur on the Right to Privacy along with his Report on the Right to Privacy dated 8-3-2016.
37.4. Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Union), 1950— European Convention on Human Rights provides:
“8. 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.” (p. 385/Vol. II/Petitioners' Compilation)
37.5. Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, 2012 provide:
“7. Respect for private and family life.— Everyone has the right to respect for his or her private and family life, home and communications.
8. Protection of personal data.— Everyone has the right to the protection of personal data concerning him or her.
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.” (Page 391/Vol. II/Petitioners' Compilation)
37.6. Article 8 of Schedule I of the UK Human Rights Act, 1998 provides:
“8. 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.” (Page 395/Vol. II/Petitioners' Compilation)
38. In the absence of any domestic law to the contrary, India's international obligations must be enforced. In this regard, reliance is placed on the following judgments:
(i) Vishaka v. State of Rajasthan (1997) 6 SCC 241, [3 Judge] at para 7.
(ii) Pratap Singh v. State of Jharkhand (2005) 3 SCC 551, [5 Judges], (per S.B. Sinha, J. in his part concurring opinion) at para 64.
B. Relevant literature and case Jaw
39. Relevant literature on the subject emphasises that privacy has a core Anglo-Commonwealth meaning which includes both informational and physical privacy. If privacy is to be protected comprehensively, both these aspects need to be protected (p. 398 at 400, 403, 412/Vol. II/Petitioners' Compilation).
40. Privacy rights, in their most elementary sense, are about restricting access to oneself or one's “private space” in which the individual is free to be him/herself. Infringement of privacy is an affront to an individual's personality and dignity and is damaged both by the violation and by the demonstration that the personal space is not inviolate. This idea of privacy as the protection of an “inviolate personality” was articulated by Samuel Warren and Louis Brandeis in 1890 and they defined privacy as “the right to be let alone” (p. 463 at 463, 465, 475, 481/Vol. II/Petitioners' Compilation).
41. Over the next century, the right of privacy evolved from a tortious remedy to a statutory and constitutional right providing protection against and control over unwanted access to the physical self as well as personal information. Alan Westin's oft-cited definition describes privacy as “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others.” (p. 398 at 405/Vol. II/Petitioners' Compilation).
42. The modern conception of privacy law is formulated in response to new technologies and practices by businesses and governments that enhance their power by giving rise to enormous data gathering and data analysis, without means of oversight or accountability (p. 435 at 461/Vol. II/Petitioners' Compilation).
43. In view of this, privacy rights against the government demand that State power is limited and unobtrusive in a manner that liberal democracy requires. As Gary Marx argues,
“… a thread running through all totalitarian systems from the prison to the authoritarian State is lack of respect for the individual's right to control information about the self. It has been said that the mark of a civilisation can be seen in how it treats its prisoners; it might also be seen in how it treats personal privacy.”
Thus, privacy rights protect against totalitarian governments (p. 435 at 437, 438, 457/Vol. II/Petitioners' Compilation).
44. Scholars have endorsed a presumption in favour of liberty which places the burden of proof on the State to justify any interference. Accordingly,
“… the question of justice is not, why privacy, but rather why not? … Coercion, not privacy or private choice, needs legitimising.” (p. 435 at 444-445/Vol. I1/Petitioners' Compilation).
45. Further, the highest courts across jurisdictions have recognised the individual's right to privacy against the State as well as private bodies. The most recent international judgments in this regard are:
(i) Court of Justice of European Union — Tele2 Sverige AB v. Post-och telestyrelsen (2017) 2 WLR 1289
(ii) US Supreme Court — Obergefell v. Hodges 135 S Ct 2584, 576 US __ (2015)
(iii) UK Supreme Court — R. v. Commr. of Police of the Metropolis 2011 UKSC 21, (2011) 1 WLR 1230
(iv) Canadian Supreme Court — R. v. Spencer 2014 SCC OnLine Can SC 34, 2014 SCC 43
46. These submissions supplement the written submissions dated 15-7-2017 filed by the petitioners.
47. At the outset, it is submitted that, as recognised by an unbroken line of decisions of this Court since 1975 the “right to privacy” is protected under Part III of the Constitution of India. It is submitted that this Court has recognised several unenumerated rights as facets of Article 21. Similarly, the right to privacy has also been recognised as flowing from Article 21.
48. The “right to privacy” itself cannot be defined with any specificity. However, it extends to several aspects, including—
(a) Bodily integrity
(b) Personal autonomy
(c) Right to be let alone
(d) Informational self-determination
(e) Protection from State surveillance
(f) Dignity
(g) Confidentiality
(h) Compelled speech
(i) Freedom to dissent
(j) Freedom of movement
(k) Freedom to think
49. There can be no exhaustive enumeration of aspects of the “right to privacy”, and it must be determined on a case-to-case basis (1997) 1 SCC 301 at para 18.
50. It is submitted that in a technologically dynamic society it is imperative to keep dimensions of “tight to privacy” flexible to adapt and adjust with the new scenarios. A nine-Judge Bench of this Court in I.R. I.R Coelho (Dead) By Lrs. v. State Of T.N .. (2007) 2 SCC 1 has held that the “… Constitution is a living document, its interpretation may change as the time and circumstances change to keep pace with it”.
51. In Supreme Court Advocates-on-Record Assn. v. Union of India (1993) 4 SCC 441, Pandian, J. in his concurring view opined,
“15. The exploration of the new principles are essential in those areas not before explored; more so when the old principles are found to be not responding to the unresolved and unforeseen modern challenges or to have become inapplicable to the new situations or found to be unsound….
16. The proposition that the provisions of the Constitution must be confined only to the interpretation which the Framers, with the conditions and outlook of their time would have placed upon them is not acceptable and is liable to be rejected for more than one reason — firstly, some of the current issues could not have been foreseen; secondly, others would not have been discussed and thirdly, still others may be left over as controversial issues, i.e. termed as deferred issues with conflicting intentions. Beyond these reasons, it is not easy or possible to decipher as to what were the factors that influenced the mind of the Framers at the time of framing the Constitution when it is juxtaposed to the present time. The inevitable truth is that law is not static and immutable but ever increasingly dynamic and grows with the ongoing passage of time.”
52. It is submitted that the right to privacy emanates from a conjoint reading of the golden triangle of Articles 14, 19 and 21 of the Constitution. It is submitted, that many of the fundamental rights guaranteed under Part III of the Constitution cannot be enjoyed to the fullest, in the absence of a fundamental right to privacy.
53. It is submitted that recognition of the fundamental right to privacy is consistent with international norms and India's international obligations under different conventions and treaties. It is an accepted proposition of law that the rules of customary international law which are not contrary to the municipal law shall be deemed to be incorporated in the domestic law. Article 51 of the Constitution directs that the State shall endeavour to inter alia, foster respect for international law and treaty obligations. Article 17 of the International Covenant on Civil and Political Rights (Iccpr) is not contrary to any municipal law. In this backdrop, Part III, more particularly Article 21, must be interpreted in conformity with international law.
54. It is submitted that in view of the decisions in Rustom Cavasjee Cooper v. Union Of India . (1970) 1 SCC 248 (11-Judge) and Maneka Gandhi v. Union of India (1978) 1 SCC 248 (7-Judge), the law laid down in M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865 and Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329, is no longer good law.
IV. Ms Meenakshi Arora, Senior Advocate, for the petitioners
Part A: Privacy generally
1. Privacy did not emerge one fine day fully formed and structured from the theoretical penumbras of various constitutional articles. Rather it is an amorphous and a protean concept that emerges from values and principles that have evolved from case law over hundreds of years.
2. One workable definition of the right to privacy, one recognised by Brandeis in his seminal article “The right to privacy” is the right to be left alone. The right to be left alone can be described merely as an expression at a higher level of abstraction of several rights that flow directly from the principles of life and liberty that were enshrined in Clause 39 of the Magna Carta (2014) 9 SCC 737 (1215).
3. In England, eavesdropping was criminalised under the Justices of Peace Act, 1361. In his seminal “Commentaries on the Laws of England” (8th Edn., 1778, Vol. IV, p. 167,168), Blackstone writes of common nuisances which he states are such inconvenient or troublesome offences, as annoy the whole community in general, and not merely some particular person; and are indictable only… In this category he includes,
“6. Eavesdroppers, or such as listen under walls or windows, or the eaves of a house, to hearken after recourse, and thereupon to frame slanderous and mischievous tales, are a common nuisance and presentable at the court-leet; or are indictable at the sessions, and punishable by fine and finding sureties for their good behavior.”
4. Nowadays privacy rights are explicitly recognised or are recognised by implication under the Universal Declaration of Human Rights (1948) (arguably part of customary international law and therefore part of the law of India (1996) 5 SCC 647), the International Covenant of Civil and Political Rights (ratified by India and so to be read into the Constitution (1980) 2 SCC 360, (1997) 6 SCC 241), the European Convention of Human Rights, the Constitutions of the United States, the United Kingdom and virtually every other democratic or liberal Constitution. Constitutional courts in India have explicitly recognised a right to privacy for over 40 years. Our statutes recognise privacy interests as well. In particular the Protection of Human Rights Act, 1993 is relevant.
5. Privacy or the right to be left alone has the following, amongst other important components:
A. Privacy of one's home and residence. This flows directly from Semayne case (1604) 5 Co Rep 91a, which famously held that “every man's home is his castle” and has been applied to India by the Privy Council in Aga Kurboolie Mohamed v. R. 1843 SCC OnLine PC 3 It was also specifically endorsed in the majority by Justice Ayyangar in Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329, (1964) 1 SCR 332 judgment.
B. Privacy of personal belongings and freedom from arbitrary searches and seizures. This flows from the landmark judgments of Lord Camden in Huckle v. Money (1763) 2 Wils KB 205 (cited in Common Cause v. Union of India (1999) 6 SCC 667 on damages for tort) and Entick v. Carrington (1765) 2 Wils KB 275 (cited in M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865, District Registrar & Collector v. Canara Bank (2005) 1 SCC 496 and many other cases) and also includes the law of protection of confidential information in cases like Albert v. Strange (1849) 1 Mac & G 25, 41 ER 1171. This forms the basis of the Fourth Amendment and Fifth Amendment in the United States. In India as well there is a long line of judgments by which arbitrary searches and seizures have been quashed and stringent guidelines have been laid down in cases like DGIT v. Spacewood Furnishing (P) Ltd. (2015) 12 SCC 179 and ITO v. Seth Bros. (1969) 2 SCC 324 each dealing with powers under Section 134 of the IT Act or the Constitution Bench decision in Karnail Singh v. State Of Haryana . (2009) 8 SCC 539 dealing with powers under Section 50 of the NDPS Act.
C. Privacy of personal data, and freedom from surveillance. This flows from the cases such as the phone tapping case, PUCL v. Union of India (1997) 1 SCC 301 as well as the duty of State Authorities to protect confidential information in Marcel v. Commr. of Police 1992 Ch 225, (1991) 2 WLR 1118 (CA) and S and Marper v. United Kingdom 2008 ECHR 1581. Also relevant is the decision of the German Federal Court in the Census case (1983). An important Indian case is Selvi v. State of Karnataka (2010) 7 SCC 263.
D. Privacy of personal choice. This includes judgments the landmark decision of Lord Mansfield in Da Costa v. Jones (1778) 2 Cowp 729, 98 ER 1331 wherein his Lordship was pleased to hold unenforceable a wager between 2 persons over the biological sex of a third person, as well as landmarks such as Griswold v. Connecticut 1965 SCC OnLine US SC 124, 381 US 479 (1965) (contraceptives for married couples), Eisenstadt v. Baird (1972) SCC OnLine US SC 62, 405 US 438 (1972) (contraceptives for unmarried couples), Roe v. Wade 1973 SCC OnLine US SC 20, 410 US 113 (1973) (abortion), Planned Parenthood v. Casey 1992 SCC OnLine US SC 102, 505 US 833 (1992) (abortion), Lawrence v. Texas 2003 SCC OnLine US SC 73, 539 US 558 (2003) (gay rights), Obergefell v. Hodges 576 US _____ (2015) (gay marriage) et al. In fact a curative petition is pending in this Hon'ble Court on the gay rights in the Naz Foundation case (2014) 1 SCC 1.
6. Each of these liberties forms an important core or at the very least a penumbra of fundamental rights guarantees in Part III of the Constitution, whether considered historically or even in terms of jurisprudence.
A and B: Articles 21 (right to personal liberty), 300-A (right to property)
C: Articles 20(3), 21, 19(1)(c), 19(1)(a)
D: Articles 14, 19, 21 (right to life)
7. The correctness and validity of M.P. Sharma v. Satish Chandra AIR 1954 SC 300, 1954 Cri LJ 865 (“M.P. Sharma”) and Kharak Singh v. State of U.P. AIR 1963 SC 1295, (1963) 2 Cri LJ 329, (1964) 1 SCR 332 (“Kharak Singh”) need to be evaluated in this background.
Part B: M.P. Sharma11 and Kharak Singh7
8. The stray observations in the judgment in M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865 about the lack of a right of privacy were inaccurate as being somewhat overbroad in 1954 and are clearly erroneous today. As such, this Hon'ble Court may clarify the same and limit the ratio of the judgments to the facts of that case.
8.1. It is axiomatic that judgments are not be interpreted as Euclid's theorems but are authorities to what was argued and what was decided. In M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865 the petitioners argued that the provisions of search and seizure contained in the Criminal Procedure Code were bad in view of the provisions of Article 20(3) on the basis of Boyd v. United States 1886 SCC OnLine US SC 58, 116 US 616 (1886) States which in turn was based on the 4th and 5th Amendments to the US Constitution and on Entick v. Carrington (1765) 2 Wils KB 275. The Court rejected this argument stating that there was no 4th Amendment in the Indian Constitution. In doing so, the Court wrongly conflated the 4th Amendment with the right to privacy. The 4th Amendment is an important part of privacy (point 5B above) but not the only component. Other components were not required to be considered, were not argued and were thus not considered. Thus the stray observation in M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865 needs to be clarified as obiter and not a proposition against the right to privacy.
8.2. The provisions in the Criminal Procedure Code and other statutes such as the NDPS, the IT Act, etc. dealing with search and seizure may be struck down or read down on a case-to-case basis if they confer arbitrary or uncanalised powers or if they are draconian and thus bad under Article 21 or even under Article 20(3). However, there is no general prohibition on search and seizure provisions imposed by Articles 21 and 20(3). This merits some clarification by this Hon'ble Court.
9. The observations and findings contained in the majority judgment of Kharak Singh that limit the right to privacy and deny the right against surveillance cannot be sustained in the light of the judgment in R.C. Cooper v. Union of India (1970) 1 SCC 248 (11 Judges), and Maneka Gandhi v. Union of India (1978) 1 SCC 248 (7 Judges), and in particular the finding in paragraph 5 of the judgment in Maneka Gandhi (1978) 1 SCC 248 by which the minority view of then Justice Subba Rao is deemed as correct and the majority view overruled merits reaffirmation and clarification.
9.1. The majority in Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329, (1964) 1 SCR 332 relies upon the reasoning in A.K Gopalan v. State Of Madras . AIR 1950 SC 27, (1950) 51 Cri LJ 1383 dealing with the exclusivity of fundamental rights, a view set aside by R.C. Cooper (1970) 1 SCC 248 (11 Judges) and clarified by Maneka Gandhi (1978) 1 SCC 248 (7 Judges)
9.2. The majority in Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329, (1964) 1 SCR 332 fails to correctly interpret the word “freely” in Article 19(1)(c) and errs in confining it to physical restraints alone. It also ignores the impact a lack of privacy has on free speech under Article 19(1)(a). This is both historical and problematic in terms of jurisprudence and theory.
9.2.1. Blackstone (8th Edn., 1778) Vol. I, page 134-1337) states that
“personal liberty consists in the power of locomotion, of changing situation, or removing one's person to whatsoever place one's inclination may direct, without imprisonment or restraints, unless by due course of law… the confinement of the person in any wise, is an imprisonment…And the law so much discourages unlawful confinement, that if a man is under duress of imprisonment, which we before explained to mean a compulsion by an illegal restraint of liberty, until he seals a bond or the like; he may allege this duress, and avoid the extorted bond.”
9.2.2. Bentham, the father of legal positivism, (and who dismissed Blackstone's Natural Law predilections as nonsense upon stilts!!) conceptualised the idea of an ideal or model security institution, known as the Panopticon. The Panopticon is an architectural creation, within which constant and round-the-clock watch can be kept on the inmates, workers or patients. The characteristic feature of this arrangement is that there is a complete asymmetry of knowledge, and hence power: the guards in the central tower can see into any of the cells at any given time, but due to special blinds the inmates cannot see the guards, or if they are being watched at any specific moment. In his own words,
“I think, without exception, to all establishments whatsoever, in which, within a space not too large to be covered or commanded by buildings, a number of persons are meant to be kept under inspection. No matter how different, or even opposite the purpose: whether it be that of punishing the incorrigible, guarding the insane, reforming the vicious, confining the suspected, employing the idle, maintaining the helpless, curing the sick, instructing the willing in any branch of industry, or training the rising race in the path of education: in a word, whether it be applied to the purposes of perpetual prisons in the room of death, or prisons for confinement before trial, or penitentiary-houses, or houses of correction, or work-houses, or manufactories, or mad-houses, or hospitals, or schools. It is obvious that, in all these instances, the more constantly the persons to be inspected are under the eyes of the persons who should inspect them, the more perfectly will the purpose X of the establishment have been attained. Ideal perfection, if that were the object, would require that each person should actually be in that predicament, during every instant of time. This being impossible, the next thing to be wished for is, that, at every instant, seeing reason to believe as much, and not being able to satisfy himself to the contrary, he should conceive himself to be so.”
Bentham's ideas for a prison form a philosophical base for a surveillance state with the State as a Panopticon all seeing and all knowing. Michael Foucault contended that the nature of the oneway surveillance in the Panopticon — what he referred to as the gaze — resulted in an asymmetry of knowledge, and hence power. Ultimately, Foucault argued, the omniscient surveillance created conditions whereby the observed themselves became instruments of their own suppression. So whereas Bentham viewed his Panopticon as a technology for reforming men, Foucault saw a method for creating “docile bodies.”
9.2.3. Twentieth Century totalitarian dictatorships such as Nazi Germany or the Stalinist Soviet Union or even Communist East Germany point to the impact of perpetual surveillance on human conduct and human morals. The same is also reflected in George Orwell's 1984, or the recent award winning movie “The Lives of Others”.
9.2.4. Justice Subba Rao's dissenting opinion in Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329, (1964) 1 SCR 332 merits reaffirmation, particularly where he states,
“If a man is shadowed, his movements are obviously constricted. He can move physically, but it can be a movement of an automaton. How could a movement under the scrutinizing gaze of the policeman be described as a free movement? The whole country is his jail. The freedom of movement in clause (d) [of Article 19] therefore must be a movement in a free country i.e. in a country where he can do whatever he likes, speak to whomsoever he wants, meet people of his own choice without any apprehension, subject of course to the law of social control. The petitioner under the shadow of surveillance is certainly deprived of this freedom.”
9.2.5. In Fali Nariman's book, Before Memory Fades at pp. 189-190, he writes about the impact of the emergency upon lawyers:
“CK Daphtary (CK) and ST Desai (ST) were distinguished contemporaries, very senior and both Gujarati speaking. They always came in early to the Bar library, sat opposite each other, occasionally exchanging pleasantries. One morning in August 1975, I was the sole witness to the following conversation:
ST Desai: (holding a cigarette between his third and fourth fingers, with loosely clenched fists, as was his habit, and occasionally inhaling) Chandubhai-bolo (Chandubhai — speak)
CK Daphtary: (puffing away at his pipe; his eyes sparkling with mischief) Sunderlal-tame pehle bolo (Sunderlal-you speak first).
In those dark days of emergency when informers were around, you only spoke, within the hearing of others, when you had to. Unwittingly these stalwarts of the Bar had encapsulated, in an innocent, spontaneous one-act play, the entire climate of the times!”
9.2.6. The judgment in the phone tapping case clearly points out the detrimental impact on free speech that unauthorised tapping can have. The decision of the US Supreme Court in Katz v. United States 1967 SCC OnLine US SC 248, 389 US 347 (1967) as well as the dissent in Olmstead v. United States 1928 SCC OnLine US SC 131, 277 US 438 (1928) are also illustrative.
9.2.7. The importance of privacy for the right to association can also be gleaned by the US Supreme Court decision in NAACP v. Alabama 1958 SCC OnLine US SC 146, 2 L Ed 2d 1488, 357 US 449 (1958) wherein the Court was faced with the legality of the demand of the State of Alabama of the member list of the National Association for the Advancement of Colored People. In those days because of widely prevalent attitudes of pro segregation in Alabama, disclosure of such membership lists would have had a detrimental impact on the people. The Supreme Court in a unanimous decision struck down the law holding per Justice Harlan:
“It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as the forms of governmental action in the cases above were thought likely to produce upon the particular constitutional rights there involved. This Court has recognized the vital relationship between freedom to associate and privacy in one's associations. When referring to the varied forms of governmental action which might interfere with freedom of assembly, it said in American Communications Assn. v. Douds 1950 SCC OnLine US SC 46, 339 US 382 at p. 402 (1950): ‘A requirement that adherents of particular religious faiths or political parties wear identifying arm-bands, for example, is obviously of this nature.’ Compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same order. Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs…We think that the production order, in the respects here drawn in question, must be regarded as entailing the likelihood of a substantial restraint upon the exercise by petitioner's members of their right to freedom of association. Petitioner has made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility. Under these circumstances, we think it apparent that compelled disclosure of petitioner's Alabama membership is likely to affect adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate, in that it may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure…. We hold that the immunity from state scrutiny of membership lists which the Association claims on behalf of its members is here so related to the right of the members to pursue their lawful private interests privately and to associate freely with others in so doing as to come within the protection of the Fourteenth Amendment.
9.3. Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329, (1964) 1 SCR 332, while quoting with approval the famous “limb and faculty test” of Munn v. Illinois 1876 SCC OnLine US SC 4, 94 US 113 (1877) per Field, J., proceeds to completely ignore that privacy is a vital “limb and faculty” without which we are indeed reduced to animal existence. Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329, (1964) 1 SCR 332 espouses a cribbed, cabined and confined view of privacy — the right to be secure in one's home [Semayne case (1604) 5 Co Rep 91a], and the right to be free from arbitrary search and seizure [Wolf v. Colorado 1949 SCC OnLine US SC 102, 93 L Ed 1782, 338 US 25 (1949)] are upheld but the right to be free of surveillance or the valuable aspect of “life” in terms of personal choices are ignored (See 5A-D above). In this regard, it is pertinent to consider the dissenting view of Justice Harlan in Poe v. Ullman 1961 SCC OnLine US SC 133, 367 US 497 (1961), which echoes our own Maneka Gandhi (1978) 1 SCC 248, interpreting the term “liberty” in terms of the 5th and 14th Amendments to the US Constitution to mean “a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.”
10. The line of judgments from Gobind v. State of M.P. (1975) 2 SCC 148, R. Rajagopal v. State of T.N. (1994) 6 SCC 632, PUCL v. Union of India (1997) 1 SCC 301, Sharda v. Dharampal (2003) 4 SCC 493; District Registrar & Collector v. Canara Bank (2005) 1 SCC 496; Selvi v. State of Karnataka (2010) 7 SCC 263 etc. are not per incuriam but instead correctly lay down the law and need to be reaffirmed.
10.1. This Hon'ble Court has correctly interpreted the provisions of Part III to uphold the rights contained in Para 5A-D. For 40 years they have formed a vibrant and important part of our law and our national culture. An invitation to hold them per incuriam is an invitation to government led lawlessness and to medieval despotism and tyranny. In the words of Lord Camden in Huckle v. Money (1763) 2 Wils KB 205 or Entick v. Carrington (1765) 2 Wils KB 275 eg. “worse than the Spanish inquisition”. To paraphrase Senator Kennedy's famous speech about Judge Robert Bork, an India without the right to privacy is a land in which women would be forced into back alley abortions, and where rogue police could break down citizens doors in midnight raids.
10.2. A table encapsulating only some of the law laid down by this Hon'ble Court based on the right to privacy is as under:
Case title Issue(s) Involved Guidelines developed Gobind v. State of M.P.44 Surveillance of an individual, including domiciliary visits and picketing of residences Regulations permitting surveillance of an individual were upheld, if sufficient evidence is present indicating that the person under surveillance could lead a life of crime or cause social unrest in the future. “Compelling State Interest” test evolved. Para 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.” Para 33- “Mere convictions in criminal cases where nothing gravely imperilling safety of society cannot be regarded as warranting sur-veillance under this regulation. Similarly, domiciliary visits and picketing by the police should be reduced to the clearest cases of danger to community security and not routine follow-up at the end of a conviction or release from prison or at the whim of a police officer.” PUCL v. Union of India17 (a) Interception of phone messages (b) Challenge to the constitutional validity of S. 5(2) of the Telegraph Act The Hon'ble Supreme Court created guidelines, in respect of interception of telephonic messages, which mandatorily have to be observed, in addition to the requirements contained in S. 5(2) of the Telegraph Act. Para 30- “The above analysis of Section 5(2) of the Act shows that so far the power to intercept messages/conversations is concerned the section clearly lays down the situations/conditions under which it can be exercised. But the
substantive law as laid down in Section 5(2) of the Act must have procedural backing so that the exercise of power is fair and reasonable. The said procedure itself must be just, fair and reasonable.” District Registrar & Collector v. Canara Bank12 Challenge to the constitutionality of S. 73 of the Indian Stamp Act, 1989, as amended by the State of Andhra Pradesh, empowering (a) the Collector to carry out inspection of documents in private custody and (b) the Collector to allow “any person” to inspect, make notes from papers in public offices The Hon'ble Supreme Court declared S. 73 of the Indian Stamp Act to be ultra vires the Constitution of India. Para 58- “Under the garb of the power conferred by Section 73 the person authorised may go on a rampage searching house after house i.e. residences of the persons or the places used for the custody of documents. The possibility of any wild exercise of such power may be remote, but then on the framing of Section 73, the provision impugned herein, the possibility cannot be ruled out.” State of Maharashtra v. Bharat Shanti Lal Shah47 Challenge to the constitutional validity of the MCOCA The Hon'ble Supreme Court held that the MCOCA does not contravene Constitutional provisions. Para 61- “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….Thus as the Act under challenge contains sufficient safeguards and also satisfies the aforementioned mandate the contention of the respondents that provisions of Sections 13 to 16 are violative of the Article 21 of the Constitution cannot also be accepted.” Selvi v. State of Karnataka20 Use of narco-analysis, polygraph tests and Brain Electrical Activation Profile, against the will of the accused Guidelines were published by the National Human Rights Commission in 2000, suggesting the procedure to be followed while administering a polygraph test and the same were adopted by the Hon'ble Supreme Court. Para 226- “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”.” Bhabani Prasad Jena v. Orissa State Commission for Women48 Whether the High Court possesses the power to order the administration of a DNA test of a child Para 22- “In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the
court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed.” Girish Ramchandra Deshpande v. Central Information Commr.49 Whether the CIC correctly classified the information sought as “personal information” The Hon'ble Supreme Court held that the Petitioner did not exhibit bonafide public interest in seeking information. Para 12- “The performance of an employee/officer in an organisation is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression “personal information”, the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which could cause unwarranted invasion of privacy of that individual.”
10.3. These judgments insofar as they incorporate customary international law and various international conventions to which India is a party are a part of the law of India.
10.4. The judgments in M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865 and Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329, (1964) 1 SCR 332, to the extent that they contradict these judgments require clarification and/or setting aside.
V. Mr Sajan Poovayya, Senior Advocate, for the intervenors
1. The following written submissions are placed for the kind consideration and perusal of this Hon'ble Court in furtherance and addition to the arguments already canvassed on behalf of the petitioners:
A. A liberal interpretation of the Constitution should be preferred
2. A narrow and stilted interpretation of the Constitution should be discarded in favour of an interpretation which is broad-based and liberal. The latter would bring out in full measure the purpose which the framers of the Constitution had in mind viz. to confer the fullest degree of personal liberty to its subjects as gathered from the language they used and the spirit their words convey. 1951 SCR 451, AIR 1951 SC 270, (2007) 2 SCC 1, (1978) 1 SCC 248
3. In any event, where “even in the absence of Article 21 in the Constitution the State has no power to deprive a person of his life or liberty without the authority of law” (1976) 2 SCC 521, the mere fact that the fundamental right to privacy is absent in letter is wholly irrelevant for determining its existence. Even the language deployed by the Constitution reiterates the understanding that an inalienable natural right inherent in every human being is “recognised” under Article 21 as opposed to such article being the fountainhead of the right to life and personal liberty.
4. A cardinal reason for the Constitution to be considered, and rightly so, as a “living document” (2007) 2 SCC 1 and the “usufruct of the living and not the property of the dead”, is because its framers could not have known all the components of liberty and its manifold possibilities. 2003 SCC OnLine US SC 73 Further, by legitimising the process of constitutional amendments, its framers intentionally discarded any presumption of having an insight into all components of constitutional governance particularly, personal liberty. Therefore, it becomes imperative to construe the provisions of the Constitution in the light of prevailing circumstances, which have considerably changed since the early years of its working in the 1950s to 1960s. The most prominent example being the advent of information technology and the ushering in of a digital economy. Indeed, times can blind us to certain truths and later generations can see that laws once thought of as necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
5. The framers of the Constitution perhaps viewed fundamental rights as “isolated islands of individual articles in Part III”, in a manner similar to their Lordships in A.K Gopalan v. State Of Madras . AIR 1950 SC 27, (1950) 51 Cri LJ 1383. This is evidenced by the Drafting Committee's approach of qualifying the term “liberty” with the word “personal” so as to prevent any overlapping of rights between Articles 19 and 21. However, the evolution of constitutional interpretation from the aforesaid approach to a “syncretic and holistic understanding of fundamental rights” removes the requirement of identifying privacy in a watertight compartment of a singular article in the Constitution. (1970) 1 SCC 248, (1978) 1 SCC 248 Therefore, what ought to be accomplished through the present reference is the identification of this basic human right of privacy across the length and breadth of the Constitution.
B. The march of law
6. The decisions of the 1970s of the Constitution Bench of this Hon'ble Court, which favoured a liberal interpretation of the Part III rights, rendered the dissenting opinion of Subba Rao, J. in Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329 to be sound law. Furthermore, this set the stage for an evolution of the judicial understanding of privacy which posited that the “right to privacy”: (i) is a fundamental right; and, (ii) that it deals with “persons” and not merely “places.” (2005) 1 SCC 496
7. In the year 1975, this Hon'ble Court, while examining the existence of a fundamental right to privacy in Gobind v. State of M.P. (1975) 2 SCC 148 observed thus:
“20. There can be no doubt that the makers of our Constitution wanted to ensure conditions favorable to the pursuit of happiness. They certainly realized as Brandeis, J. said in his dissent in Olmstead v. United States 1928 SCC OnLine US SC 131, 277 US 438 at p. 471 (1928) [277 US 438, 471] 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.”
8. More specifically, this Hon'ble Court in District Registrar and Collector v. Canara Bank (2005) 1 SCC 496 expounded on the importance of the fundamental right to privacy as a facet, inter alia, of life and personal liberty under Part III of the Constitution of India. This was done on the strength of: (i) its earlier decisions including Gobind v. State of M.P. (1975) 2 SCC 148; and (ii) decisions of the Supreme Court of the United States which were in tune with Rustom Cavasjee Cooper v. Union Of India . (1970) 1 SCC 248.
9. Furthermore, the authoritative pronouncement of a Bench consisting of eleven Judges of this Hon'ble Court in Rustom Cavasjee Cooper v. Union Of India . (1970) 1 SCC 248, leaves no manner of doubt that the premise upon which the twin decisions of M.P. Sharma v. Satish Chandra AIR 1954 SC 300, 1954 Cri LJ 865 and Kharak Singh v. State of U.P. AIR 1963 SC 1295, (1963) 2 Cri LJ 329 were predicated, stands altered. Ergo, where the main pillars have been demolished, the edifice of these twin judgments cannot be allowed to remain. Therefore, a Constitution Bench of this Hon'ble Court in Mohd. Arif v. Supreme Court of India (2014) 9 SCC 737, (1978) 1 SCC 248, AIR 1963 SC 1295, (1970) 2 SCC 298 has observed that the wheel has turned full circle and that the minority opinion in Kharak Singh v. State of U.P. AIR 1963 SC 1295, (1963) 2 Cri LJ 329 has come to hold the field.
10. This Hon'ble Court in District Registrar and Collector v. Canara Bank (2005) 1 SCC 496 has thus observed a forward march of law:
“40. […] The right to privacy has since been widely accepted as implied in our Constitution, in other cases, namely, People's Union for Civil Liberties v. Union of India (1997) 1 SCC 301, Mr X v. Hospital Z’ (1998) 8 SCC 296, People's Union for Civil Liberties v. Union of India (2003) 4 SCC 399 and Sharda v. Dharmpal . (2003) 4 SCC 493.”
“53. Once we have accepted in Gobind (1975) 2 SCC 148 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.”
11. Therefore, it is most respectfully submitted that a case-by-case development of the right to privacy, which is a requirement necessitated by this Hon'ble Court's decision in Gobind v. State of M.P. (1975) 2 SCC 148 has taken place vide a series of decisions of this Hon'ble Court (1994) 6 SCC 632, (2008) 13 SCC 5, (2010) 7 SCC 263, (2011) 8 SCC 1, (2012) 5 SCC 1, (2013) 16 SCC 82, (2017) 1 SCC 653, and has also been recognised as such. (2005) 1 SCC 496
12. Inasmuch as this Hon'ble Court has relied upon the understanding of Part III as rendered in Rustom Cavasjee Cooper v. Union Of India . (1970) 1 SCC 248 and Maneka Gandhi v. Union of India (1978) 1 SCC 248, (i.e. fundamental rights are of the widest amplitude encompassing a variety of rights), it stands well settled that every person has the fundamental right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other aspects. (1994) 6 SCC 632
C. Identification of the “right to privacy” as a “fundamental right”
13. The fundamental right to privacy inheres in Article 21 with its facets being placed across the length and breadth of Part III of the Constitution.
14. Homo sapiens is first and foremost a social animal; yet, “the concept of privacy embodies the moral fact that a person belongs to himself and not to others nor to society as a whole”. p. 1302 (2nd Edn. The Constitution is not, and cannot be, a totalitarian design depending for its success upon the homogenisation or depersonalisation of humanity. It is for this reason that this Hon'ble Court has reached into the Constitution's spirit and, through a contextual and meaningful interpretation thereof, has elaborated upon the idea of a “human” and its conception as a “being”, not as a mere formal contemplation but as an essential constitutional requirement. p. 1308 (2nd Edn.
15. Privacy does not stand on the pedestal of secrecy. Rather, it stands on the pedestal of “dignity” and “personal liberty”. While “liberty” presumes an autonomy of self which includes freedom of thought, belief, expression and intimate conduct amongst other things, personal liberty entails a positive constitutional promise of the existence of a realm for all individuals, where it would not be permissible for the State to enter. This realm of protection is essential to secure, protect and ensure a right to live with human dignity; human life has its charm and there is no reason why life should not be enjoyed with all permissible pleasures. (2005) 5 SCC 733
16. John Stuart Mill, in his essay on liberty, commented that the people's “choice of pleasures, and their mode of expending their income, after satisfying their legal and moral obligations to the State and to individuals, are their own concern, and must rest with their own judgment.” On Liberty 1859 Without the identification of this sphere as being a person's right to privacy, and without a concomitant identification of an injunction on the State through Part III of the Constitution, the right to life itself may be rendered otiose in many of its vibrant and necessary facets.
17. In this regard, guidance may also be sought from the evolution of the “right to privacy” jurisprudence of the European Court of Human Rights (ECtHR), which has examined multifarious facets of privacy in its decisions. In S & Marper v. United Kingdom 2008 ECHR 1581, the ECtHR made an attempt to summarise these facets of privacy emanating from Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms and observed as follows: 2008 ECHR 1581
“66. The Court recalls that the concept of “private life” is a broad term not susceptible to exhaustive definition. It 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 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. Article 8 protects in addition a right to personal development, and the right to establish and develop relationships with other human beings and the outside world. The concept of private life moreover includes elements relating to a person's right to their image.
67. The mere storing of data relating to the private life of an individual amounts to an interference within the meaning of Article 8. The subsequent use of the stored information has no bearing on that finding.” (References removed; emphasis supplied)
18. Therefore, to ensure that the State recognises its constitutional obligation to protect and safeguard this right, it has become imperative to seek a judicial and a constitutional recognition of the fundamental “right to privacy”. Any measure adopted by the State for it to be a constitutionally valid restriction: (i) must be in consonance with a legal architecture premised upon the protection of one's fundamental “right to privacy”; (ii) must not erode the efficacy of the fundamental “right to privacy”; and (iii) must not lead to wielding of an unqualified exercise of power by the State which may cause chilling of fundamental rights.
D. The role of the Judiciary
19. As our Constitution's “sentinel on the qui vive” 1952 SCR 597, AIR 1952 SC 196, this Hon'ble Court must (i) curb arbitrary exercises of power; and (ii) prevent permeation of unconstitutional surveillances and transgressions into one's fundamental right to privacy. This is particularly when the seriousness of the ramifications on privacy multiply in this digital age in comparison to “papers” and “physical property”. The State cannot be allowed to use technology with an unfettered discretion such that it may alter the relationship between a citizen and the Government in a way that is inimical to a democratic society.
20. Modern cellphones have evolved from being mere “tools of convenience” to “extensions of the users” themselves and therefore, may hold and reveal the respective “privacies of life”. 134 S Ct 2473 However, the mere fact that such personal and sensitive data/information can be physically carried around would not disentitle a person of his privacy. Therefore, when the State ignores this aspect to act in a manner which is detrimental to the people's right to privacy, particularly in today's age of digitization, it becomes incumbent upon this Hon'ble Court to perform its esteemed duty and determine the constitutionality of such measure to protect one's fundamental rights.
21. The authoritative identification of a fundamental right to privacy would amount to explicitly subjecting a state action to the rigours of Article 13(2) of the Constitution as a result of which, a State action would have to be justified by the State on the anvil of a “reasonable restriction” or a “procedure established by law”, or otherwise. Identification of such a right to privacy in the context of the present times has also found mention in a decision of this Hon'ble Court in State of Maharashtra v. Bharat Shanti Lal Shah (2008) 13 SCC 5, wherein their Lordships observed as follows:
“60. The interception of conversation though constitutes an invasion of an individual right to privacy but the said right can be curtailed in accordance with procedure validly established by law. Thus, what the court is required to see is that the procedure itself must be fair, just and reasonable and non-arbitrary, fanciful or oppressive.”
E. Necessity of identifying the fundamental right to privacy in a “digital” age
22. The premise that a voluntary disclosure of information to third parties would nullify the expectation of privacy of the person disclosing such information is ill suited, particularly to the digital age, which is characterised by people revealing a great deal of private information to third parties while carrying out mundane tasks of life:
“People disclose the phone numbers they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to the Internet service providers; and the books, groceries, and medications they purchase to online retailers. Though some may find such a trade-off of privacy convenient and worthwhile, or have come to accept without complaint the warrantless disclosure to the State of every website they had visited in the last week, or month, or year, all voluntary disclosure of information cannot disentitle the protection of one's right to privacy.”
23. Further, before the advent of cellphones, a search of a person was limited by physical realities and tended, as a general matter, to constitute only a narrow intrusion on privacy of the body. However, with the introduction of cellphones with immense storage capacity, even a basic search of the person (who walks around with his cellphone) could yield and expose sensitive personal information and data which was otherwise protected in great measures. 134 S Ct 2473
24. Dehors a recognition of the fundamental right to privacy, the State would be empowered to conduct a search of a person possessing a mobile phone and access personal data/information stored thereon, upon standards devised in a different time and for a different purpose. Recognising the incongruence between applying “pre-cellphone” era tests to a “post-cellphone” era and the need to protect one's right to privacy, the Supreme Court of the United States in Riley v. California 134 S Ct 2473 held that while examination of a wallet belonging to a person may be permissible without a warrant, an examination of a person's cellphone without a warrant is wholly impermissible. 134 S Ct 2473 In this context, the Court observed: 134 S Ct 2473
“First, a cellphone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record. Second, a cellphone's capacity allows even just one type of information to convey far more than previously possible. The sum of an individual's private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his pocket a slip of paper reminding him to call Mr Jones; he would not carry a record of all his communications with Mr Jones for the past several months, as would routinely be kept on a phone.”
“Finally, there is an element of pervasiveness that characterizes cellphones but not physical records. Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cellphone, with all that it contains, who is the exception.”
25. Digital society has not only emerged, but has gained critical appeal in India. In this context, it would be relevant to mention certain figures so as to provide a perspective of the ramifications of not identifying or not protecting the fundamental right to privacy:
Comparison of connectivity and mobility between India and the United States. Sl. Particulars India USA 1. Mobile Phones 118 Cr. (89%) 32 Cr. (103%) 2. Internet Connections 35 Cr. 22 Cr. 3. Cars 4 Cr. 25 Cr. 4. Population 132 Cr. 31 Cr.
26. The qualitative distinctiveness of the present times in which constitutional principles are to be evolved and applied has been captured by the Supreme Court of the United States in Riley v. California in the following words: 134 S Ct 2473
“An Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual's private interests or concerns—perhaps a search for certain symptoms of disease […] Data on a cellphone 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.”
27. As submitted supra, privacy is not predicated upon secrecy. Inasmuch as privacy is not a discrete commodity, possessed absolutely or not at all, those who disclose certain facts to a bank or a phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes. Therefore, what a person seeks to preserve as private, even in an area accessible to the public, has to remain constitutionally protected.
28. In fact, contemporary approaches to the right to privacy allow for placing informational privacy even in this digital age in a sacrosanct bracket. Retention of an individual's information is violative of such individual's privacy irrespective of its real effect on the individual. In Digital Rights Ireland Ltd. v. Minister of Communications, the Court of Justice of the European Union held as follows:
“33. 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.”
29. In S & Marper v. United Kingdom No. 30562/2004, ECHR-2008, the ECtHR held that even the mere storing of data relating to one's private life is a violation of one's right to privacy:
“67. The mere storing of data relating to the private life of an individual amounts to an interference within the meaning of Article 8 (see Leander v. Sweden (1987) 9 EHRR 433). The subsequent use of the stored information has no bearing on that finding (Amann v. Switzerland (2000) 30 EHRR 843).”
30. It is most respectfully submitted that the obligation of the State to respect, not interfere and protect one's realm of personal liberty and privacy is only heightened in the context of the digital age, inasmuch as it has now become possible for even the State to use electronic means to commit unconstitutional invasions on privacy.
F. Parliamentary recognition of the fundamental right to privacy
31. The postulated issue of recognition of the right to privacy as a fundamental right is not merely to be looked at from the viewpoint of judicial dicta but also from how Parliament has manifested its understanding of the said right. On an analysis of the various legislations which recognise and enforce the right to privacy as a fundamental right, it would be clear that its place in the Constitution is firmly cemented.
32. An analysis of existing legislations, apart from leading to the unfolding of a legislative understanding of the right to privacy, would also be consonant with the judicial practice of looking at the extant statutory architecture, which includes a macro exercise of comparatively examining statutes to arrive at a judicial finding. (2013) 9 SCC 725 It is most humbly submitted that an analysis of the existing statutes would reveal that Parliament has recognised the right to privacy as a fundamental right under the Constitution.
33. In this context, it would be relevant to examine and juxtapose pre-constitutional as well as post-constitutional statutes. When interpreting pre-constitutional statutes, regard must be had to: (i) the historical background leading to the legislation; (ii) the amendments effected therein; and (iii) the various aspects covered by it. (2001) 8 SCC 61
34. Analysing the various Central legislations leads to the conclusion that Parliament has, time and again, given recognition to the right to privacy by either reiterating its principles in the statutory provisions or by introducing fetters to the exercise of the right to privacy by attempting to make laws which satisfy the requirement of a “reasonable restriction” imposed by way of a “procedure established by law”. Furthermore, even in pre-constitutional legislations, the sacrosanct position of the right to privacy had been legislatively recognised inasmuch as special procedures had been established in such laws while introducing limitations on any aspect of the right to privacy.
G. Table of statutes recognising and dealing with the right to privacy
Sl. No. Statute Section/Regulation 1. The Right to Information Act, 2005 Section 8(1)(j): Unwarranted invasion of the privacy of the individual.49 2. The Juvenile Justice (Care and Protection of Children) Act, 2015 Section 3(xi): Principle of right to privacy and confidentiality.50 3. Information Technology Act, 2000 Section 66-E: Punishment for violation of privacy.
4. Protection of Human Rights Act, 1993 Section 2(1)(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.51 5. Census Act, 1948 Section 15: Records not open to inspection nor admissible. 6. The Collection of Statistics Act, 2008 Sections 9-14: Security of information; only to be used for statistical purposes. 7. The Protection of Children from Sexual Offences Act, 2012 Section 23: Lowering his reputation or infringing upon his privacy. 8. Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 Reg. 7.14: Shall not disclose the secrets of a patient.52 9. Credit Information Companies (Regulation) Act, 2005 Section 20: Privacy principles.53
10. Bankers' Books Evidence Act, 1891 Section 5: Cannot be compelled to produce books in certain cases. 11. The Representation of Peoples Act, 1951 Section 128: Maintenance of secrecy of voting.54 12. Indian Evidence Act, 1872 Sections 122, 126, 129: Protected communications.55 13. Penal Code, 1860 Section 228-A: Disclosure of identity of the victim of certain offences.56 14. Code of Criminal Procedure, 1973 Section 46: Shall not touch the person of the woman and no arrest after sunset and before sunrise.57
15. Indian Telegraph Act, 1885 Section 5: Possession and interception.58 Section 5(2) (pre-amendment): Certificate shall be conclusive proof of public emergency. Section 5(2) (post-amendment): 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. 16. Indian Post Office Act, 1898 Section 26: Power to intercept for public good; occurrence of any public emergency, or in the interest of the public safety or tranquillity.
35. This Hon'ble Court in Thalappalam Service Coop. Bank Ltd. v. State of Kerala (2013) 16 SCC 82, AIR 1963 SC 1295, (1963) 2 Cri LJ 329, (1994) 6 SCC 632, observed that the right to privacy is not only recognised as a basic human right under Article 12 of the Universal Declaration of Human Rights, but, more importantly, that Parliament has recognised the right to privacy as a sacrosanct facet of Article 21. The aforesaid was observed with specific reference to Section 8(1)(j) of the Right to Information Act, 2005, wherein this Hon'ble Court was called upon to adjudicate the scope and ambit of an exception to a general right to information. The same goes to inform the contemporanea expositio that has been granted to the right to privacy under our constitutional framework.
36. Additionally, this Hon'ble Court, in Directorate of Revenue v. Mohd. Nisar Holia (2008) 2 SCC 370, in the context of the Narcotic Drugs and Psychotropic Substances Act, 1985, recognised a fundamental right to privacy. In this context, it was observed thus:
“14. […] the Act contemplated different measures to be taken in respect of search to be conducted between sunrise and sunset, between sunset and sunrise as also the private place and public place is of some significance. An authority cannot be given an untrammeled power to infringe the right of privacy of any person. Even if a statute confers such power upon an authority to make search and seizure of a person at all hours and at all places, the same may be held to be ultra vires unless the restrictions imposed are reasonable ones. […] Although a statutory power to make a search and seizure by itself may not offend the right of privacy but in a case of this nature, the least that a court can do is to see that such a right is not unnecessarily infringed. Right to privacy deals with persons and not places.”
37. Therefore, even dehors the line of judicial precedents after M.P. Sharma v. Satish Chandra AIR 1954 SC 300, 1954 Cri LJ 865, and Kharak Singh v. State of U.P. AIR 1963 SC 1295, (1963) 2 Cri LJ 329, it is no longer res integra that the said right to privacy is a fundamental right guaranteed under Part III of the Constitution which presupposes a specific and special procedure established by law to be derogated from. it is no longer res integra that the said right to privacy is a fundamental right guaranteed under Part III of the Constitution which presupposes a specific and special procedure established by law to be derogated from. It is in this light that this Hon'ble Court has also interpreted the said right to privacy as a “sacrosanct facet of Article 21” (2013) 16 SCC 82, upon undertaking a judicial examination of the pertinent statutes.
H. Domestic application of the transnational perspective on the right to privacy
38. The right to privacy has been recognised in International Covenants, particularly those which: (i) have been judicially recognised and applied in the context of Part III of the Constitution; or (ii) have found place in opinio juris i.e. India's State-practice under international law, which has manifested in the form of parliamentary enactments and executive incorporations. Reliance on such international covenants in the context of interpreting the provisions of Part III of the Constitution, would not only “foster respect for international law” in accordance with Article 51(c), but also help in recognising the universally accepted rights of all human beings.
39. This Hon'ble Court, in a series of its decisions, including decisions considering the “right to privacy”, has relied upon international instruments to interpret fundamental rights:
(i) This Hon'ble Court in Vishaka v. State of Rajasthan (1997) 6 SCC 241, has held that it is now an acceptable rule of judicial construction that regard must be had to international conventions and norms for domestic law when there is no inconsistency between them and there is a purported void in domestic law.
(ii) This Hon'ble Court in District Registrar and Collector v. Canara Bank (2005) 1 SCC 496, relied upon the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, and the European Convention on Human Rights, to discuss the scope of the right to privacy.
(iii) This Hon'ble Court in Thalappalam Service Coop. Bank Ltd. v. State of Kerala (2013) 16 SCC 82, observed that the right to privacy: (i) is recognised as a basic human right under Article 12 of the Universal Declaration of Human Rights; and (ii) that Parliament has recognised the right to privacy as a sacrosanct facet of Article 21.
(iv) This Hon'ble Court in Selvi v. State of Karnataka (2010) 7 SCC 263, referred to the European Convention for the Protection of Human Rights and Fundamental Freedoms, to construe the scope of Article 20(3) and Article 21 of the Constitution.
(v) This Hon'ble Court in Nilabati Behera v. State of Orissa (1993) 2 SCC 746, relied upon the International Covenant on Civil and Political Rights to assert an enforceable right to compensation under Part III of the Constitution.
(vi) This Hon'ble Court in PUCL v. Union of India (1997) 1 SCC 301, relied upon the International Covenant on Civil and Political Rights to interpret Article 21 in a manner which would be in conformity with international law.
40. Some of the International Instruments which directly ensure the “right to privacy”, are as follows:
(i) The Universal Declaration of Human Rights, in Article 12, states that, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.”
(ii) The International Covenant on Civil and Political Rights, in Article 17(1), states that, “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation”, and, in Article 17(2), “Everyone has the right to the protection of the law against such interference or attacks.”
(iii) The European Convention on Human Rights, in Article 8(1), states that, “Everyone has the right to respect for his private and family life, his home and his correspondence.”
41. Thus, the right to privacy is a natural corollary of basic human rights inherent in every individual and recognised internationally.
I. It is the rights that are fundamental, not the limitations
42. At the outset, it is most respectfully submitted that, “however helpful taxonomies might be, they usually leave essentially unspecified the substance of what is being protected, telling us neither the character of the choices or the information we are to classify as special, nor the contexts of decision in which such classification is to be employed.” p. 1303 (2nd Edn. This must also hold true in the context of the kinds of tests which may be employed to restrict a fundamental right, with the additional and mandatory requirement that any restriction on a fundamental right must be narrowly tailored.
43. In every case involving the imposition of limitations and restrictions on fundamental rights, it is the rights which are fundamental, not its limitations. Therefore, it becomes the duty and responsibility of this Hon'ble Court to guard and defend these rights zealously. (2015) 5 SCC 1, 1950 SCR 759, AIR 1951 SC 118, 1952 SCR 597, AIR 1952 SC 196, 1952 Cri LJ 966, (1969) 1 SCC 853
44. Such a duty entails that: (i) rights which were intended to be fundamental are kept fundamental; and (ii) that neither Parliament nor the executive exceed the bounds within which they are confined by the {Start Page 164} Constitution when given the power to impose fetters on freedoms guaranteed under Part III of the Constitution. Additionally, in the specific case of the executive, the duty is to see further that it does not travel beyond the powers conferred by Parliament 1951 SCR 451, AIR 1951 SC 270, (1951) 52 Cri LJ 904 (Bose, given that Parliament itself has recognised a fundamental right to privacy. (2013) 16 SCC 82
45. This duty is not limited to the rendition of fundamental rights guaranteed at the inception. It also extends to those rights, which the people of India “have learned through the years to cherish, to the very fullest extent of the guarantee, and to ensure that they are not whittled away or brought to nought either by parliamentary legislation or by executive action”. 1951 SCR 451, AIR 1951 SC 270 (Bose, (1970) 1 SCC 248, (1978) 1 SCC 248
46. An exercise of State power entails trust. Therefore, those who wield it, must be accountable for it; “[a]ll power is a trust and its exercise by Governments must be subject to social audit and Judas exposure.” (1978) 3 SCC 558 This accountability stems in the requirement of strict adherence to the constitutional ethos, particularly of the stringent tests for restricting fundamental rights.
47. Additionally, just as a responsible municipal council constituted for the precise purpose of preserving public health and providing better finances cannot abdicate its principal duty by pleading financial inability, the State cannot use personal information without providing for adequate safeguards for the protection of personal information, and consequently, the protection of the right to privacy. (1980) 4 SCC 162
48. Lastly, this Hon'ble Court must be cautious while considering appeals to emotions, generally, in the context of constitutional interpretation, and particularly, when placed as justifications for curtailing and/or restricting a fundamental right. Emotional arguments are completely irrelevant in the interpretation and application of law. AIR 1967 SC 1643, (1975) 3 SCC 185, (2007) 2 SCC 759, 1994 Supp (1) SCC 191 Additionally, an argument that “a particular interpretation would open a floodgate of litigation” must also be rejected. (2007) 9 SCC 625, (2009) 7 SCC 1
J. Conclusion
49. It is therefore discernible that an arbitrary curb on the exercise of the right to privacy causes a concomitant chilling effect on the exercise of other rights under Part III of the Constitution of India. In that light, the minority opinion in Kharak Singh v. State of U.P. AIR 1963 SC 1295, (1963) 2 Cri LJ 329, is instructive to determine the necessity and propriety of recognising a right which is already inherent in our constitutional ethos: AIR 1963 SC 1295 at pp. 1305-06
“31 […] 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 channeling one's actions through anticipated and expected grooves. So also 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 the right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty.”
(emphasis supplied)
50. This is further buttressed by the observations in the decision of the Supreme Court of the United States in United States v. Jones:
“Awareness that the Government may be watching chills associational and expressive freedoms. And the Government's unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse.”
VI. Attorney General for India, Mr K.K. Venugopal, for the respondents
Preface
1. This matter has been placed before a Constitution Bench of 5 Judges of this Hon'ble Court pursuant to the reference, by 3 Judges of this Hon'ble Court, in K.S. Puttaswamy v. Union of India (2015) 8 SCC 735. The three-Judge Bench in its reference order stated:
“12. We are of the opinion that the cases on hand raise far-reaching questions of importance involving interpretation of the Constitution. What is at stake is the amplitude of the fundamental rights including that precious and inalienable right under Article 21. If the observations made in M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865 and Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329 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 AIR 1954 SC 300, 1954 Cri LJ 865 and Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329 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.
14. We, therefore, direct the Registry to place these matters before the Hon'ble the Chief Justice of India for appropriate orders.”
(emphasis supplied)
2. The “apparent unresolved contradiction in the law declared by this Court” referred to in the aforementioned order, in the submission of the Union of India, relates to a contradiction between M.P. Sharma v. Satish Chandra AIR 1954 SC 300, 1954 Cri LJ 865 (“M.P. Sharma”) (8 Judges) and Kharak Singh v. State of U.P. AIR 1963 SC 1295, (1963) 2 Cri LJ 329 (“Kharak Singh”) (6 Judges) on the one hand, and Gobind v. State of M.P. (1975) 2 SCC 148 (“Gobind”) (3 Judges), R. Rajagopal v. State of T.N. (1994) 6 SCC 632 (“Rajagopal”) (2 Judges), People's Union for Civil Liberties v. Union of India (1997) 1 SCC 301 (“PUCL”) (2 Judges) on the other.
3. The Union of India further submits the following:
3.1. M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865 (8 Judges) and Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329 (6 Judges) hold that there is no fundamental right to privacy in the Constitution.
3.2. There appears to be inconsistency between M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865 (8 Judges) and Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329 (6 Judges) taken together on the one hand, and Gobind (1975) 2 SCC 148 (3 Judges), Rajagopal (1994) 6 SCC 632 (2 Judges), and PUCL (1997) 1 SCC 301 (2 Judges) taken together on the other;
3.3. Given that the earlier decisions in M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865 and Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329 are by larger Benches, those decisions would bind, and would be treated as having finally declared position regarding the absence of a fundamental right to privacy under our Constitution.
These propositions will now be elaborated in turn.
A. M.P. Sharma2 and Kharak Singh3 hold that there is no fundamental right to privacy in the Constitution
4. In M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865, the central issue relevant for the purposes of this note, before an 8-Judge Bench of this Hon'ble Court was whether search warrants and seizure of documents on such searches under Sections 94 and 96 of the Code of Criminal Procedure, 1898 for searching premises of certain companies alleged to have been part of commission of criminal offences ought to be quashed on the ground that such searches (and documents seized consequent thereto) violate the fundamental right against self-incrimination in Article 20(3) of the Constitution. Article 20(3) reads,
“No person accused of any offence shall be compelled to be a witness against himself.”
It was held that a search warrant is under a communication from a Magistrate to a police officer under law (in this case the Code of Criminal Procedure) and, consequently, there is no testimonial act of the accused involved in this process. Similarly, a seizure consequent to such search warrant is also not a testimonial act. Per Jagannadhadas, J.:
“17. … 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 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. Even in the American decisions there is a strong current of judicial opinion in support of this distinction.”
(emphasis supplied)
5. In the context of the right to privacy, it was held (per Jagannadhadas, J.):
“17. … A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction. Nor is it legitimate to assume that the constitutional protection under Article 20(3) would be defeated by the statutory provisions for searches.”
(emphasis supplied)
6. As a result of this analysis, the Court held:
“18. We are, therefore, clearly of the opinion that the searches with which we are concerned in the present cases cannot be challenged as illegal on the ground of violation of any fundamental rights and that these applications are liable to be dismissed.”
7. It is thus clear that M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865 holds (in para 17 extracted above) that since the Constitution-makers have not thought it fit to subject searches and seizures to any fundamental right to privacy in Article 21 (like in the 4th Amendment to the Constitution of the United States of America), there is no question of incorporating such a right into Article 20(3). Thus it is testament for the following propositions:
a. Searches authorised by law do not violate Article 20(3);
b. No fundamental right to privacy exists in Article 21 and conse-quently no such right can be brought into Article 20(3) by a strained construction.
8. In Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329, the central issue relevant for the purposes of this note, before a 6-Judge Bench of this Hon'ble Court was whether Chapter XX of the Uttar Pradesh Police Regulations violated the fundamental rights guaranteed under Article 21 of the Constitution. The relevant regulations (which were admitted by the U.P. Government as being non-statutory in nature) permitted the police to engage in secret picketing, domiciliary visits, periodical enquiries, reporting of movements and collection of records of “history-sheeters” i.e. persons who are, or are likely to become habitual criminals and therefore require surveillance. Regulation 236, which according to the Court “for all practical purposes, defines ‘surveillance’ ” provided:
“236. 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 absence 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.”
9. It was held by the majority that the regulation which deals with secret picketing [clause (a) of Regulation 236] does not violate personal liberty. The majority of the Court said (per Ayyangar, J.)
“10. We shall now consider each of these clauses of Regulation 236 in relation to the “freedoms” which it is said they violate:
(a) Secret picketing of the houses of suspects.—
It is obvious that the secrecy here referred to is secrecy from the suspect; in other words its purpose is to ascertain the identity of the person or persons who visit the house of the suspect, so that the police might have a record of the nature of the activities in which the suspect is engaged. This, of course, cannot in any material or palpable form affect either the right on the part of the suspect to “move freely” nor can it be held to deprive him of his “personal liberty” within Article 21. It was submitted that if the suspect does come to know that his house is being subjected to picketing, that might affect his inclination to move about or that in any event it would prejudice his “personal liberty”. We consider that there is no substance in this argument. In dealing with a fundamental right such as the right to free movement or personal liberty, that only can constitute an infringement which is both direct as well as tangible and it could not be that under these freedoms the Constitution-makers intended to protect or protected mere personal sensitiveness.”
(emphasis supplied)
10. This clearly envisages that intimacy in a household or exercise of personal autonomy within a household free from surveillance was not considered by the Court to be protected by Article 21. It is instructive to note that such right to conceal information about oneself, particularly intimate information inside one's own household, could be seen as a component of the right to privacy.
11. However, with regard to the regulation pertaining to domiciliary visits at night [Regulation 236(b)], the Court held (per Ayyangar, J.):
“10. … The question that has next to be considered is whether the intrusion into the residence of a citizen and the knocking at his door with the disturbance to his sleep and ordinary comfort which such action must necessarily involve, constitute a violation of the freedom guaranteed by Article 19(1)(d) or “a deprivation” of the “personal liberty” guaranteed by Article 21.
13. … Frankfurter, J. observed in Wolf v. Colorado 1949 SCC OnLine US SC 102, 93 L Ed 1782, 338 US 25 (1949).
“The security of one's privacy against arbitrary intrusion by the police … is basic to a free society. It is therefore implicit in ‘the concept of ordered liberty’ and as such enforceable against the States through the Due Process Clause. The knock at the door, whether by day or by night, as a prelude to a search, without authority of law but solely on the authority of the police, did not need the commentary of recent history to be condemned as inconsistent with the conception of human rights enshrined in the history and the basic constitutional documents of English-speaking peoples … 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.”
14. Murphy, J. considered that such invasion was against “the very essence of a scheme of ordered liberty.
15. It is true that in the decision of the U.S. Supreme Court from which we have made these extracts, the Court had to consider also the impact of a violation of the Fourth Amendment which reads:
“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.”
and that our Constitution does not in terms confer any like constitutional guarantee. 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 concept of civilisation. An English Common Law maxim asserts that “every man's house is his castle” and in Semayne case (1604) 5 Co Rep 91a 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 Co Rep 91a 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. In our view clause (b) of Regulation 236 is plainly violative of Article 21 and as there is no “Law” on which the same could be justified it must be struck down as unconstitutional.”
(emphasis supplied)
12. It is clear that the impugned regulation which allowed an unauthorised intrusion into a person's home was found unconstitutional since it was antithetical to “ordered liberty, if not of the very concept of civilisation”. This was seen as a common law right which was enshrined in Article 21. It is instructive to note however that such a right was not seen as a facet of a right to privacy but a standalone protection that flowed directly from the Court's conception of “ordered liberty” and the sanctity of a person's home.
13. With regard to the regulations pertaining to shadowing of history-sheeters for the purpose of recording their movements and activities and obtaining of information relating to persons with whom they associate, [Regulations 236(c), (d) and (e)] the majority of the Court held (per Ayyangar, J.):
“17. … Having given the matter our best consideration we are clearly of the opinion that the freedom guaranteed by Article 19(1)(d) is not infringed by a watch being kept over the movements of the suspect. Nor do we consider that Article 21 has any relevance in the context as was sought to be suggested by learned Counsel for the petitioner. As already pointed out, the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III.”
(emphasis supplied)
14. Thus it is clear that the Court provided limited protection to unauthorised intrusions into a person's home as contrary to ordered liberty under Article 21. It is critical to note that such a right was viewed by the Court in contradistinction to the right of privacy, particularly regarding movements of an individual or his need for intimacy and safeguards against surveillance, which, according to the Court, were not guaranteed.
15. The judgment by Subba Rao, J. held not only the regulation pertaining to domiciliary visits, but also the other impugned regulations pertaining to secret picketing, periodical enquiries, reporting of movements and collection of records of history-sheeters as unconstitutional since they impeded free movement protected by Article 19(1)(d) and personal liberty protected by Article 21. It held (per Subba Rao, J.):
“27. … 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.”
16. On a combined reading of the two judgments it is clear that they hold that there is no fundamental right to privacy in the Constitution. It is only unauthorised intrusions (without law) into one's home that is protected under Article 21 of the Constitution as a component of ordered liberty. Thus, in view of the aforementioned judgments, no Article 32 petition lies in this Hon'ble Court on the ground of violation of privacy.
17. It may be noted that there continues to be a common law right to privacy, but the existence of such a common law right would not, in any manner, dilute the position regarding the non-maintainability of an Article 32 petition before this Hon'ble Court on the ground of the (alleged) violation of privacy.
B. There appears to be a contradiction between M.P. Sharma2 and Kharak Singh3 on the one hand and Gobind4, Rajagopal5, PUCL6 on the other debut
18. It is respectfully submitted that there appears to be a contradiction between M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865 and Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329 taken together on the one hand, and Gobind (1975) 2 SCC 148, Rajagopal (1994) 6 SCC 632 and PUCL (1997) 1 SCC 301 on the other. In Gobind (1975) 2 SCC 148, the validity of Regulations 855 and 856 of the Madhya Pradesh Police Regulations were challenged. These Regulations were in pari materia with Regulation 236 of the U.P. Police Regulations in Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329, except for the fact that these were made by the Government of Madhya Pradesh under Section 46(2)(c) of the Police Act, 1961. Thus, these Regulations had the force of law for the purpose of Article 21. The contradiction between Gobind (1975) 2 SCC 148 (and the subsequent cases) and M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865 and Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329 can be identified based on the conclusions they reached with regard to the right to privacy. As mentioned above, M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865 did not read the right to privacy in Article 20(3) of the Constitution. Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329 held that an unauthorised intrusion into one's home is a violation of ordered liberty under Article 21. Privacy was held to not be part of the same right.
19. The judgment in Gobind (1975) 2 SCC 148 considered privacy as flowing from notions of autonomy, dignity, liberty and intimacy. This is evident from the following extracts from Gobind (1975) 2 SCC 148 (per Mathew, J.):
“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 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 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.
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 the distinctive characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as unifying principle underlying the concept has been the assertion that a claimed right must be a fundamental right implicit in the concept of ordered liberty.
25. Rights and freedoms of citizens are set forth in the Constitution in order to guarantee that the individual, his personality, and those things stamped with his personality shall be free from official interference except where a reasonable basis for intrusion exists. “Liberty against Government” a phrase coined by Professor Corwin expresses this idea forcefully. In this sense, many of the fundamental rights of citizens can be described as contributing to the right to privacy.”
(emphasis supplied)
20. Gobind (1975) 2 SCC 148 accepted a penumbral theory of interpretation that there could be rights emanating from other rights and privacy could be one of them. The Court said:
“30. Having reached this conclusion, we are satisfied that drastic inroads directly into the privacy and indirectly into the fundamental rights, of a citizen will be made if Regulations 855 and 856 were to be read widely. To interpret the rule in harmony with the Constitution is therefore necessary and canalisation of the powers vested in the police by the two regulations earlier read becomes necessary, if they are to be saved at all. Our founding fathers were thoroughly opposed to a Police Raj even as our history of the struggle for freedom has borne eloquent testimony to it. The relevant articles of the Constitution we have adverted to earlier, behove us therefore to narrow down the scope for play of the two regulations. We proceed to give direction and restriction to the application of the said regulations with the caveat that if any action were taken beyond the boundaries so set, the citizen will be entitled to attack such action as unconstitutional and void.
31. Depending on the character and antecedents of the person subjected to surveillance as also the objects and the limitation under which surveillance is made, it cannot be said surveillance by domiciliary visits would always be unreasonable restriction upon the right of privacy. 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.
21. Ultimately, the Court in Gobind (1975) 2 SCC 148 upheld the impugned Regulations since they had the force of law with compelling State interest for the purpose of Article 21 (unlike the impugned Regulation 236(b) in Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329):
“31. … 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 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. Even if we hold that Article 19(1)(d) guarantees to a citizen a right to a privacy in his movement as an emanation from that Article and is itself a fundamental right, the question will arise whether Regulation 856 is a law imposing reasonable restriction in public interest on the freedom of movement falling within Article 19(5); or, even if it be assumed that Article 19(5) does not apply in terms, as the right to privacy of movement cannot be absolute, a law imposing reasonable restriction upon it for compelling interest of State must be upheld as valid.”
22. Thus, there is an apparent contradiction between Gobind (1975) 2 SCC 148 on the one hand, and M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865 and Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329 on the other. While M.P Sharma AIR 1954 SC 300, 1954 Cri LJ 865 and Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329 never recognised the right to privacy, Gobind (1975) 2 SCC 148 does recognise such a right under the Constitution. Further, while Gobind (1975) 2 SCC 148, like Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329, considers unauthorised intrusions into the home of an individual as a violation of Article 21, it does so after reading in privacy as a fundamental right under Article 21, whereas Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329 clearly finds no such right to exist. As a result of this finding, it also considers individual autonomy and personal intimacies to be enjoyed free from observation as protected under the right to privacy, directly contrary to Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329. Curiously though, Gobind (1975) 2 SCC 148, despite such recognition, upholds the impugned regulations in totality on the ground that they had the force of law and were consequently not an unauthorised intrusion. Thus, Gobind (1975) 2 SCC 148, a bench of 3 Hon'ble Judges reads in a general right to privacy into Article 21, contrary to M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865 and particularly Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329, both larger Benches.
23. It is humbly submitted that Gobind (1975) 2 SCC 148's understanding of privacy has been eventually followed in Rajagopal (1994) 6 SCC 632 as well as PUCL (1997) 1 SCC 301. In Rajagopal (1994) 6 SCC 632, the Supreme Court held (per Jeevan Reddy, J):
“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.”
The position of law laid down in Rajagopal (1994) 6 SCC 632 is identical to Gobind (1975) 2 SCC 148, insofar as it recognises an implicit right to privacy in Article 21.
24. Further, PUCL (1997) 1 SCC 301 crystallised the position that the right to privacy must be read under Article 21 of the Constitution. The Court in PUCL (1997) 1 SCC 301 observed that Gobind (1975) 2 SCC 148 and Rajagopal (1994) 6 SCC 632 have read the right to privacy under Article 21. The Court held (per Kuldip Singh, J.):
“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”.”
25. As mentioned above, Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329 and Gobind (1975) 2 SCC 148 dealt with similar fact situations. Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329 recognised a penumbral right to “ordered liberty” in Article 21, which was the right of a person against unauthorised intrusion into their homes. However, Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329 did not recognise the right to privacy per se under Article 21 in any form, penumbral or otherwise. On the contrary, it expressly rejected such a reading (para 17 of Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329). In Gobind (1975) 2 SCC 148, contrary to Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329, a kernel of a general right to privacy was recognised in Article 21, which included rights to intimacy and secrecy, free from observation. This line of reasoning which was followed in Rajagopal (1994) 6 SCC 632 and PUCL (1997) 1 SCC 301 is contrary to the express recognition of there being no such right to privacy delivered by larger Benches of this Court in M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865 and Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329.
26. In light of the above, it is humbly submitted that there is inconsistency between Gobind (1975) 2 SCC 148 (and Rajagopal (1994) 6 SCC 632 and PUCL (1997) 1 SCC 301) on the one hand, and Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329 and M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865 on the other. M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865 did not recognise a right to privacy in the Constitution and consequently refused to read it into Article 20(3). Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329 recognised the right not to be subject to unauthorised intrusion into one's home as part of ordered liberty under Article 21 but in the same token, rejected a guaranteed general right to privacy. Gobind (1975) 2 SCC 148, on the other hand, explicated the ordered liberty principle as containing a general right to privacy, followed in subsequent judgments. In this respect, the three-Judge Bench decision in Gobind (1975) 2 SCC 148, and the subsequent decisions which adopt a similar line, are inconsistent with M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865 and Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329.
27. It is a fundamental principle with regard to Bench strength that smaller Benches are expected to follow and apply decisions of larger Benches. This was held by the Supreme Court in State of U.P. v. Ajay Kumar Sharma (2016) 15 SCC 289:
“13. Time and again this Court has emphatically restated the essentials and principles of “precedent” and of stare decisis which are a cardinal feature of the hierarchical character of all common law judicial systems. The doctrine of precedent mandates that an exposition of law must be followed and applied even by coordinate or coequal Benches and certainly by all smaller Benches and subordinate courts. That is to say that a smaller and a later Bench has no freedom other than to apply the law laid down by the earlier and larger Bench; that is the law which is said to hold the field. Apart from Article 141, it is a policy of the courts to stand by precedent and not to disturb a settled point. The purpose of precedents is to bestow predictability on judicial decisions and it is beyond cavil that certainty in law is an essential ingredient of rule of law. A departure may only be made when a coordinate or coequal Bench finds the previous decision to be of doubtful logic or efficacy and consequentially, its judicial conscience is so perturbed and aroused that it finds it impossible to follow the existing ratio. The Bench must then comply with the discipline of requesting the Hon'ble Chief Justice to constitute a larger Bench.”
(emphasis supplied)
28. The position of law regarding what a Bench can do when decisions of two or more coordinate or larger Benches stand before it was decided in Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005) 2 SCC 673, (Lahoti, CJ):
“12. Having carefully considered the submissions made by the learned Senior Counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms:
(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.
(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.
(3) The above rules are subject to two exceptions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh (1989) 2 SCC 754 and Hansoli Devi (2002) 7 SCC 273.”
29. Further, in P.A. Inamdar v. State of Maharashtra (2005) 6 SCC 537, a seven-Judge Bench of the Supreme Court made an important observation when it was faced with a decision of an eleven-Judge Bench (Lahoti, C.J.):
“20. Before we embark upon dealing with the issues posed before us for resolution, we would like to make a few preliminary observations as a preface to our judgment inasmuch as that would outline the scope of the controversy with which we are actually dealing here. At the very outset, we may state that our task is not to pronounce our own independent opinion on the several issues which arose for consideration in Pai Foundation (2002) 8 SCC 481. Even if we are inclined to disagree with any of the findings amounting to declaration of law by the majority in Pai Foundation (2002) 8 SCC 481 we cannot; that being a pronouncement by an eleven-Judge Bench, we are bound by it. We cannot express dissent or disagreement howsoever we may be inclined to do so on any of the issues. The real task before us is to cull out the ratio decidendi of Pai Foundation (2002) 8 SCC 481 and to examine if the explanation or clarification given in Islamic Academy (2003) 6 SCC 697 runs counter to Pai Foundation (2002) 8 SCC 481 and if so, to what extent. If we find anything said or held in Islamic Academy (2003) 6 SCC 697 in conflict with Pai Foundation (2002) 8 SCC 481 we shall say so as being a departure from the law laid down by Pai Foundation (2002) 8 SCC 481 and on the principle of binding efficacy of precedents, overrule to that extent the opinion of the Constitution Bench in Islamic Academy (2003) 6 SCC 697.
30. It appears to be the stand of the petitioners that the subsequent decisions by smaller Benches of this Hon'ble Court decide contentions not raised or decided in M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865 and Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329, and should, therefore, notwithstanding their inconsistency with M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865 and Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329, be treated as having correctly read the fundamental right of privacy into Article 21. This, it is submitted, is wholly untenable, in the light of the decision of this Hon'ble Court in T. Govindaraja Mudaliar v. State of T.N. (1973) 1 SCC 336, wherein it was held:
“10. The argument of the appellants is that prior to the decision in Rustom Cavasjee Cooper case (1970) 1 SCC 248, it was not possible to challenge Chapter IV-A of the Act as violation of Article 19(1)(f) owing to the decision of this Court that Article 19(1)(f) could not be invoked when a case fell within Article 31 and that was the reason why this Court in all the previous decisions relating to the validity of Chapter IV-A proceeded on an examination of the argument whether there was infringement of Article 19(1)(g), and clause (f) of that article could not possibly be invoked. We are unable to hold that there is much substance in this argument. Bhanji Munji case AIR 1955 SC 41, and other decisions which followed it were based mainly on an examination of the inter-relationship between Article 19(1)(f) and Article 31(2). There is no question of any acquisition or requisition in Chapter IV-A of the Act. The relevant decision for the purpose of these cases was only the one given in Kochuni case AIR 1960 SC 1080, after which no doubt was left that the authority of law seeking to deprive a person of his property otherwise than by way of acquisition or requisition was open to challenge on the ground that it constituted infringement of the fundamental rights guaranteed by Article 19(1)(f). It was, therefore, open to those effected by the provisions of Chapter IV-A to have agitated before this Court the question which is being raised now based on the guarantee embodied in Article 19(1)(f) which was never done. It is apparently too late in the day now to pursue this line of argument. In this connection we may refer to the observations of this Court in Mohd. Ayub Khan v. Commr. of Police AIR 1965 SC 1623, (1965) 2 SCR 884, (1965) 2 SCJ 706 according to which even if certain aspects of a question were not brought to the notice of the court it would decline to enter upon re-examination of the question since the decision had been followed in other cases. In Somawanti v. State of Punjab AIR 1963 SC 151, (1963) 2 SCR 774, (1963) 2 SCJ 35 a contention was raised that in none of the decisions the argument advanced in that case that a law may be protected from an attack under Article 31(2) but it would be still open to challenge under Article 19(1)(f), had been examined or considered. Therefore, the decision of the Court was invited in the light of that argument This contention, however, was repelled by the following observations at p. 794.
“The binding effect of a decision does not depend upon whether a particular argument was considered therein or not, provided that the point with reference to which an argument was subsequently advanced was actually decided.”
11. It is common ground in the present cases that the validity of Chapter IV-A of the Act has been upheld on all previous occasions. Merely because the aspect now presented based on the guarantee contained in Article 19(1)(f) was not expressly considered or a decision given thereon will not take away the binding effect of those decisions on us.”
(emphasis supplied)
31. This view was reaffirmed in Anil Kumar Neotia v. Union of India (1988) 2 SCC 587, herein, the Court has held:
18. In that view of the matter this question is no longer open for agitation by the petitioners. It is also no longer open to the petitioners to contend that certain points had not been urged and the effect of the judgment cannot be collaterally challenged. See in this connection the observations of this Court in T. Govindaraja Mudaliar v. State of T.N. (1973) 1 SCC 336, where this Court at pp. 229 and 230 of the report observed as follows:….”
(emphasis supplied)
32. A few facts with regard to the Aadhaar scheme, which is under challenge in these cases, are also noteworthy. Around 115 crore residents of India are now enrolled with Aadhaar with an adult coverage of over 99%. The uniqueness of Aadhaar helps in elimination of duplicates and fakes from any beneficiary database, ensuring that the teeming millions of poor people of this country are now receiving the subsidies and benefits directly into their bank accounts, which they were hitherto deprived of. This has also lead to immense savings through reduction of leakages and wastages and therefore, it subserves vital public interest, which ought not to be interfered with on account of the apprehensions raised in these petitions. There is also tremendous convenience to the old, infirm and the weaker sections of people who receive benefits like pensions, etc. at their doorstep on account of Aadhaar based E-KYC.
33. It is also pertinent to note that it is incorrectly claimed by the petitioners that as per the Notifications under Section 7 of the Aadhaar Act, 2016, people will be denied benefits if they do not enroll for Aadhaar by 30-6-2017 (now extended to 30-9-2017) and therefore people will suffer hardships. It may be noted that while the notifications require people to enroll for Aadhaar by 30-6-2017(now extended to 30-9-2017), it is provided in the notifications themselves that if people are not able to enroll for Aadhaar before the time prescribed due to lack of enrolment facilities in the nearby areas, then they can register their request for Aadhaar enrolment before the appropriate authorities giving their contact details, so that as and when enrolment facilities are set up in the area, such persons can be enrolled for Aadhaar and for such people, benefits will continue to be given even if they have not enrolled for Aadhaar before 30-9-2017. Moreover, there is also no question of any exclusion of any genuine beneficiaries, since Section 7 of the Aadhaar Act itself requires either Aadhaar authentication or furnishing proof of possession of Aadhaar number on the basis of which subsidies, benefits, etc can be availed by the beneficiaries concerned. Therefore, the averment of the Petitioner that there is large scale exclusion on account of authentication failure, etc is misplaced and untenable in law.
Conclusion
34. For the foregoing reasons, it is submitted that in view of the binding decisions by larger Benches of this Hon'ble Court in M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865 and Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329, the present petitions under Article 32 of the Constitution do not lie, and are liable to be dismissed by this Hon'ble Court.
VII. Additional Solicitor General of India, Mr Tushar Mehta, for the respondents
1. The right to privacy is, though an inherent right, is only a common law right. Whenever and wherever the competent legislature has found it necessary expedient or desirable to protect a person's privacy, it has done so by enacting a statute and thus, making a statutory right of privacy. Such common law right which can be protected based upon specific subjects may not be declared as fundamental right on the following grounds and also on the ground that there are no “judicially discernable and manageable standards” to ascertain and define privacy. Any view on the ground of privacy, if taken, by smaller Benches, are per in curiam and, therefore, not a good law.
2. Privacy has always been recognised as a “right”. It is a very important and enforceable right but not a fundamental right:
2.1. That the ratio of Kharak Singh v. State of U.P. AIR 1963 SC 1295, (1963) 2 Cri LJ 329, (1964) 1 SCR 332 that “privacy” is not a fundamental right has not been expressly or impliedly overruled by subsequent judgments rendered by this Hon'ble Court. The subsequent judgments which elevates the “right to privacy” as a fundamental right are per incuriam.
2.2. That in view of the law which exists as on date there is no fundamental right to privacy guaranteed under Part III of the Constitution of India including under Article 21. If this Hon'ble Court would “read” privacy in Part III, it will amount to amending the Constitution though the omission to mention privacy in Part III is conscious.
2.3. Neither the Constituent Assembly nor the competent legislature exercising power of amendment of the Constitution have embodied right of privacy under Part III of the Constitution and the omission clearly appears to be conscious. Even by employing “external aid” for interpreting i.e. Constitution Assembly Debates, the interpretation canvassed by the petitioners, etc. that privacy is a fundamental right cannot be sustained, inasmuch as, the framers of the Constitution expressly did not deem it fit expedient or appropriate to incorporate a right to privacy in Part III of the Constitution in their wisdom.
2.4. The courts have always refrained from creating a new right adopting the process of interpretation since creating a “right” is not the prerogative of the courts, but that of the competent legislature. Even in other jurisdiction, the courts have refrained from “creating” a right by way of judicial law-making.
2.5. Wherever, the legislature of other sovereign countries of the world deemed it fit to confer “privacy” with constitutional status, they incorporated the same either by way of amendment to the Constitution or by way of adoption of the same through parliamentary process. In absence thereof the right to privacy is, at best, a “common law right” and the same can only be conferred/protected by way of a statute made by the competent legislature.
3. Uidai respectfully adopts the aforesaid submission made by the Union of India. However, in addition to the submissions made by the Union of India, Uidai submits as under.
I. “Privacy” is inherently a vague and subjective concept—A vague concept which is incapable of any precise definition/contours cannot be conferred with a status of constitutional fundamental right
4. It is respectfully submitted that the term “privacy” is inherently vague and subjective notion having different meaning for different individuals. Such a notion is incapable of being precisely defined and has rambling application to various aspect of human life depending upon the preconceived notions of each individual. It is submitted that such a vague concept whose contours cannot be precisely defined cannot be elevated to and/or conferred status of a constitutional fundamental right as there would be no judicially discernable and manageable standards to control and enforce the said right.
5. It is submitted that world over, all the legal as well as social scholars and luminaries are ad idem that privacy, as a concept, is elusively difficult to define. The definitional framework which may be required to ascertain the extent and origins of privacy within the Indian Constitutional law set-up may further be difficult to ascertain. This concept of privacy has over the years remained with little or almost no authoritative explanation.
6. In this context it would be relevant to refer to the view expresed by some scholars who have tried to define privacy:
6.1. Mr Richard B. Parker in his article “A Definition of Privacy,” has stated as under:
“… privacy is control over when and by whom the various parts of us can be sensed by others. By “sensed,” is meant simply seen, heard, touched, smelled, or tasted. By “parts of us,” is meant the part of our bodies, our voices, and the products of our bodies. “Parts of us” also includes objects very closely associated with us. By “closely associated” is meant primarily what is spatially associated. The objects which are “parts of us” are objects we usually keep with us or locked up in a place accessible only to us.”
(Richard B. Parker, “A Definition of Privacy,” Rutgers Law Review 27 (1974) : 281)
6.2. Rachel L. Finn, David Wright and Michael Friedewald of Fraunhofer Institute for Systems and Innovation Research, in their paper titled as “Seven Types of Privacy” stated as under:
“Privacy” is a key lens though which many new technologies, and most especially new surveillance technologies, are critiqued. However, “privacy” has proved notoriously difficult to define. Serge Gutwirth says ‘The notion of privacy remains out of the grasp of every academic chasing it. Even when it is cornered by such additional modifiers as “our” privacy, it still finds a way to remain elusive.’ Colin Bennett notes that ‘attempts to define the concept of ‘privacy’ have generally not met with any success'. Legal scholars James Whitman and Daniel Solove have respectively described privacy as ‘an unusually slippery concept’ (2004) 113 Yale Law Journal 1153-54, and ‘a concept in disarray. Nobody can articulate what it means’. Furthermore, Debbie Kaspar notes that ‘scholars have a famously difficult time pinning down the meaning of such a widely used term [and] … most introduce their work by citing this difficulty’. Helen Nissenbaum has argued that privacy is best understood though a notion of “contextual integrity”, where it is not the sharing of information that is a problem, rather it is the sharing of information outside of socially agreed contextual boundaries.
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Although a widely accepted definition of privacy remains elusive, there has been more consensus on a recognition that privacy comprises multiple dimensions, and some privacy theorists have attempted to create taxonomies of privacy problems, intrusions or categories.
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However, these scholars' focus on the ways in which privacy can be infringed and the legal problem which must be solved is largely reactive. They focus on specific harms which are already occurring and which must be stopped, rather than over-arching protections that should be instituted to prevent harms.
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We also suggest that the fluidity of privacy as a concept may be an important aspect of its utility, since technological developments may introduce new types of privacy. As technologies develop and proliferate, various types of privacy which had not previously been considered or identified as under threat may become compromised.
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… we propose that fluidity and flexibility are necessary to enable “privacy” to respond to technological changes. More precise conceptualisations, taxonomies and boundaries surrounding privacy, particularly in the legal field, may disrupt the use of privacy to protect individuals and groups from intrusions that impact upon their freedoms, fundamental rights and access to goods and services.”
(emphasis supplied)
(Seven Types of Privacy—Rachel L. Finn David Wright Michael Friedewald, Fraunhofer Institute for Systems and Innovation Research)
6.3. The academic Helen Nissenbaum, in the book Privacy in Context—Technology, Policy, and the Integrity of Social Life', has enunciated key concepts on the definitional exercise as:
“Almost as many who have taken up the subject of privacy in relation to information technology have declared it deeply problematic, referring not only to questions and disagreements about its value, benefits, and harms but to its conceptual morass. Attempts to define it have been notoriously controversial and have been accused of vagueness and internal inconsistency-of being overly inclusive, excessively narrow, or insufficiently distinct from other value concepts. Believing conceptual murkiness to be a key obstacle to resolving problems, many have embarked on the treacherous path of defining privacy. As a prelude to addressing crucial substantive questions, they have sought to establish whether privacy is a claim, a right, an interest, a value, a preference, or merely a state of existence. They have defended accounts of privacy as a descriptive concept, a normative concept, a legal concept, or all three. They have taken positions on whether privacy applies only to information, to actions and decisions (the so called Constitutional rights to privacy), to special seclusion, or to all three. They have declared privacy relevant to all information, or only to a rarefied subset of personal, sensitive, or intimate information, and they have disagreed over whether it is a right to control and limit access or merely a measure of the degree of access others have to us and to information about us. They have posited links between privacy and anonymity, privacy and secrecy, privacy and confidentiality, and privacy and solitude.
Believing that one must define or provide an account of privacy before one can systematically address critical challenges can thwart further progress….
… Maintaining all these meanings while delineating a concept to support policy, moral judgment, and technical design seems a hopeless ambition.
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Those who recognise the perils of inclusiveness attempt to purify the concept by trimming away some of the inconsistency and ambiguity, declaring certain uses wrong or confused. This has meant disputing the proper application of privacy so called Constitutional case, or it has meant rejecting control over information as part of the meaning of privacy in favour of degree of access or visa-versa.”
(Helen Nissenbaum, Privacy in Context, Technology, Policy, and the Integrity of Social Life, Stanford University Press)
6.4. Scholar Julie E. Cohen in an article in Harvard Law Review titled “What Privacy Is For” has stated as under:
“Most privacy theorists have tended to think that the key to defining privacy lies in locating privacy's essence in one or another overarching principle (such as liberty, inaccessibility, or control) and then offering finely parsed resolutions of the resulting conflicts between the principles and ordinary, everyday practices and expectations. Definitions of privacy grounded in core principles, however, inevitably prove both over and under inclusive when measured against the types of privacy expectations that real people have. For example, such definitions can't explain the widespread belief that sharing personal details with one's friends or one's airplane seatmate does not automatically equal sharing them with one's employer. In the real world, privacy expectations and behaviors are unruly and heterogeneous, persistently defying efforts to reduce them to neat conceptual schema.
……
The self has no autonomous, pre-cultural core, nor could it, because we are born and remain situated within social and cultural contexts. And privacy is not a fixed condition, nor could it be, because the individual's relationship to social and cultural contexts is dynamic. These realities do not weaken the case for privacy; they strengthen it.
…
Subjectivity is a function of the interplay between emergent selfhood and social shaping; privacy, which inheres in the interstices of social shaping, is what permits that interplay to occur. Privacy is not a fixed condition that can be distilled to an essential core, but rather “an interest in breathing room to engage in socially situated processes of boundary management.” It enables situated subjects to navigate within preexisting cultural and social matrices, creating spaces for the play and the work of self-making.”
6.5. Scholar Adam Moore, in a Journal Of Social Philosophy, wrote an article titled as “Defining Privacy” wherein it was argued that if privacy exists in various fields, requiring varying degrees of protection, it would be incongruent to define it within the Constitutional framework as one overarching. In the said article following was argued by Adam Moore:
“Privacy has been defined in many ways over the last few hundred years. Warren and Brandeis, following Judge Thomas Cooley, called it “the right to be let alone,” Pound and Freund have defined privacy in terms of an extension personality or personhood. Legal scholar William Prosser separated privacy cases into four distinct but related torts. “Intrusion: Intruding (physically or otherwise) upon the solitude of another in a highly offensive manner. Private facts: Publicizing highly offensive private information about someone which is not of legitimate concern to the public. False light: Publicizing a highly offensive and false impression of another. Appropriation: Using another's name or likeness for some advantage without the other's consent.”
Alan Westin and others have described privacy in terms of information control. Still others have insisted that privacy consists of a form of autonomy over personal matters. William Parent argued that “[p]rivacy is the condition of not having undocumented personal knowledge about one possessed by others”, while Julie Inness defined privacy as “the state of possessing control over a realm of intimate decisions, which include decisions about intimate intimate information, and intimate actions.”
More recently, Judith Wagner DeCew has proposed that the “realm of the private to be whatever types of information and activities are not, according to a reasonable person in normal circumstances, the legitimate concern of others.”
…..
“I have maintained that privacy should be defined as a right to control access to places, locations, and personal information along with use and control rights to these goods. Nevertheless, it is likely the case that any definition of a right to privacy will not satisfy everyone. It is equally true that how the right is justified will play an important role in providing the dimensions of the definition at issue—thus, any attempt to define privacy rights independent of a justifying theory will likely be incomplete.”
(Adam Moore, “Defining Privacy”, Journal of Social Philosophy, Vol. 39 No. 3, Fall 2008, 411-428)
6.6. Thus it is respectfully submitted that while it may at the outset seem inherently harmless and innocuous to lay down the parameters of privacy, it may result in limiting the role of citizen or the role of State in one way or the other if the privacy is to be held to be fundamental right. As stated above, it is seen that for the better part of the century, foremost legal scholars have not been able to define the contours of privacy. It has been an almost unanimous view that any exercise to include such a concept within the fundamental rights framework may do violence to the delicate balance of State machinery and individual citizenry. The criticism of the American approach, highly relied upon by the petitioner is perfectly conceptualised in an essay on the seminal work of Warren and Brandeis in the Harvard Law Review article in 1890.
6.7. Professor, Dorothy J. Glancy, in her article “The Invention of The Right to Privacy”, in Arizona Law Review, states that:
“Fewer than ninety years later it is surprising to find that this relatively new chapter in our law appears to have fallen into such disarray that one United States Supreme Court Justice has characterized the right to privacy cases decided by his Court as “defying categorical description”.
…
All that Warren and Brandeis ever claimed to have invented was a legal theory which brought into focus a common “right to privacy” denominator already present in a wide variety of legal concepts and precedents from many different areas of the common law. It is for that reason that their article reads as if the authors had literally ransacked every traditional area of the common law they could find-such as contracts, property, trusts, copyright, protection of trade secrets, and torts-in order to pluck out the already existing legal principle underlying all of these various parts of the common law. This underlying legal principle was the right to privacy.”
(Dorothy J. Glancy, The Invention of The Right to Privacy, Arizona Law Review, Volume 21 1979 Number 1)
7. Thus it is clear from the above that not only “privacy” as a concept is incapable of being precisely defined but also its application on various facets of human behaviour and activities are essentially individual specific, therefore, incapable of any “judicially discernable and manageable standard” according to which it can be enforced. As such in absence of any precise guidance as to what conduct of human life is covered under the concept of “privacy” it cannot be conferred with a constitutional status of a “protected fundamental right”.
II. The codified statutory law in India already confers protection to individuals' “Right to Privacy”.
8. It is respectfully submitted that as stated above, ascertaining the contours of the proposed right to privacy within the constitutional set-up could be a daunting task. Further, such right would have to stand the test of fast changing time wherein new avenues, technological advancements and fields are emerging rapidly. In this changing scenario privacy can be best protected through statutory legislations which would be dealing with subject specific legislations which can precisely define the conduct and/or activity of humans requiring protection and also provide for breach thereof in absence of which only, a constitutional remedy under Article 226 can be resorted to. It is submitted that when a statute is subject specific, it will not be difficult for the competent legislature to either define “privacy” or provide for its protections in the context of such a specific subject.
9. In this context, it is extremely crucial to note here that it is completely incorrect to suggest that the mandate of Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant of Civil and Political Rights which provides for protection against arbitrary or unlawful interference with individual's privacy, family, home and correspondence, and which seeks to protect unlawful attacks on his honour and reputation has not been embodied in Indian law as submitted by some of the petitioners.
10. It is respectfully submitted that wherever, competent legislature has deemed it fit, expedient, desirable or necessary to protect privacy in any aspect of human life, the legislature has protected the same under a specific statute. It is submitted that by enacting respective statutes dealing with specific subjects as detailed hereinafter, not only the legislature has protected individual's privacy in family, home, correspondence, and unlawful attacks on his honour and reputation but the legislature, in its wisdom, has also protected privacy in other facets of human life.
11. The question of protecting “privacy” as a “right” can be broadly classified as under:
privacy Physical privacy (Re body) Mental privacy (Re mind) Dissemination of information of personal naure Personal choices
12. The following are the broad facets of privacy. The list is obviously illustrative and not exhaustive:
(i) Physical privacy
(ii) Privacy in one's home
(iii) Privacy in communication
(iv) Privacy in financial affairs
(v) Privacy of health
(vi) Privacy of individual information
(vii) Online privacy
(viii) Privacy of thought
13. It is respectfully submitted that wherever legislature deemed it fit and expedient, the above facets of “common law right of privacy” have been statutorily recognised, codified, defined and protected under the respective statutes, with a safeguard that the same cannot be abridged in any manner other than as provided under those specific statutes.
14. The same is evident from the following illustrative chart, which provides for laws which protect privacy of individuals in specific fields:
The Right to Information Act, 2005 Section 8 (i) of the Act forbids disclosure of 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 The test for disclosure of the said information under the Act is that the authority created under the has to be satisfied that the larger public interest justifies the disclosure of such information. The Easements Act, 1882 Section 18 of the Act provides for Customary easement and provides that by the custom of a certain town no owner or occupier of a house can open a new window therein so as substantially to invade his neighbour's privacy. Penal Code, 1860 Penal Code, 1860 comprehensively covers almost all the aspect of human privacy including but not limiting to individual's privacy, family privacy, home and correspondence privacy, and protection against unlawful attacks on individuals honour and reputation. Privacy of property — 268. — Public nuisance “A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which
must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.” — Section 441—Criminal trespass “Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit “criminal trespass”.” — Section 442—House trespass “Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling. or any building used as a place for worship, or as a place for the custody of property, is said to commit “House-trespass”.” — Section 443—Lurking house-trespass “Whoever commits house-trespass having taken precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the trespass, is said to commit “lurking house-trespass”.” — Section 444—Lurking house-trespass by night “Whoever commits lurking house-trespass after sunset and before sunrise, is said to commit “lurking house-trespass by night”.” — Section 445—House-breaking “A person is said to commit “house-breaking” who commits house-trespass if he effects his entrance into the house or any part of it in any of the six ways here in after described; or if, being in the house or
any part of it for the purpose of committing an offence, or, having committed an offence therein, he quits the house or any part of it in any of such six ways, that is to say: First—If he enters or quits through a passage by himself, or by any abettor of the house-trespass, in order to the committing of the house-trespass. Secondly—If he enters or quits through any passage not intended by any person, other than himself or an abettor of the offence, for human entrance; or through any passage to which he has obtained access by scaling or climbing over any wall or building. Thirdly—If lie enters or quits through any passage which he or any abettor of the house-trespass has opened, in order to the committing of the house-trespass by any means by which that passage was not intended by the occupier of the house to be opened. Fourthly—If he enters or quits by opening any lock in order to the committing of the house-trespass, or in order to the quitting of the house after a house-trespass. Fifthly—If he effects his entrance or departure by using criminal force or committing an assault or by threatening any person with assault. Sixthly—If he enters or quits by any passage which he knows to have been fastened against such entrance or departure, and to have been unfastened by himself or by an abettor of the house-trespass.” — Section 446—House-breaking by night “Whoever commits house-breaking, after sunset and before sunrise, is said to commit “house-breaking by night”.” — Section 449—House-trespass in order
to commit offence punishable with death “Whoever commits house-trespass in order to the committing of any offence punishable with death, shall be punishable with 152[imprisonment for life], or with rigorous imprisonment for a term not exceeding ten years, and shall also be liable to fine.” — Section 450—House-trespass in order to commit offence punishable with imprisonment for life “Whoever commits house-trespass in order to the committing of any offence punishable with [imprisonment for life], shall be punished with imprisonment of either description for a term not exceeding, ten years, and shall also be liable to fine.” — Section 451—House-trespass in order to commit offence punishable with imprisonment “Whoever commits house-trespass in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to seven years.” — Section 452—House-trespass after preparation for hurt, assault or wrongful restraint “Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to
fine.” — Section 458—Lurking house-trespass or house-breaking by night after preparation for hurt, assault, or wrongful restraint — Section 459—Grievous hurt caused whilst committing lurking house trespass or house-breaking — Section 461—Dishonestly breaking open receptacle containing property — Section 462—Punishment for same offence when committed by person entrusted with custody Evidence Act — Section 122. Communications during marriage. “No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other. — Section 124. Official communications “No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure. — Section 125. Information as to commission of offences No Magistrate or Police officer shall be compelled to say whence he got any information as to the commission of any offence, and no Revenue officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue.1[125. Information as to commission of
offences.—No Magistrate or Police officer shall be compelled to say whence he got any information as to the commission of any offence, and no Revenue officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue.” Explanation.—“Revenue officer” in this section means an officer employed in or about the business of any branch of the public revenue.] — Section 126 Professional communications No barrister, attorney, pleader or vakil shall at an time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment: Provided that nothing in this section shall protect from disclosure— (1) Any such communication made in furtherance of any [illegal] purpose; [illegal] purpose;” (2) Any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment. It is immaterial whether the attention of such barrister, [pleader], attorney or vakil was or was not directed to such fact by or on behalf of his client. Explanation.—The obligation stated in this section continues after the employment has ceased.
Illustrations (a) A, a client, says to B, an attorney—“I have committed forgery, and I wish you to defend me”. As the defence of a man known to be guilty is not a criminal purpose, this communication is protected from disclosure. (b) A, a client, says to B, an attorney—“I wish to obtain possession of property by the use of a forged deed on which I request you to sue”. This communication, being made in furtherance of a criminal purpose, is not protected from disclosure. (c) A, being charged with embezzlement, retains B, an attorney, to defend him. In the course of the proceedings, B observes that an entry has been made in A's account-book, charging A with the sum said to have been embezzled, which entry was not in the book at the commencement of his employment. This being a fact observed by B in the course of his employment, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure. — Section 127—Section 126 to apply to interpreters, etc The provisions of Section 126 shall apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys, and vakils. — Section 128—Privilege not waived by volunteering evidence If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in Section 126; and if any party. to a suit or proceeding calls any such barrister, 1 [pleader], attorney or vakil as a witness, he shall be deemed to have consented to such disclosure only if he questions such barrister, attorney or vakil on matters
which, but for such question, he would not be at liberty to disclose.—If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in Section 126; and if any party to a suitor proceeding calls any such barrister, 1 [pleader], attorney or vakil as a witness, he shall be deemed to have consented to such disclosure only if he questions such barrister, attorney or vakil on matters which, but for such question, he would not be at liberty to disclose.” —Section 129. Confidential communications with legal advisers No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser, unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the Court necessary to be known in order to explain any evidence which he has given; but no others. — Section 130—Production of title-deeds of witness not a party No witness who is not a party to a suit shall be compelled to produce his title-deeds to any property, or any document in virtue of which he holds any property as pledgee or mortgagee, or any document the production of which might tend to criminate him, unless he has agreed in writing to produce them with the person seeking the production of such deeds or some person through whom he claims. — Section 131—Production of documents or electronic records which another person. having possession could refuse to produce No one shall be compelled to produce documents in his possession or electronic
records under his control, which any other person would be entitled to refuse to produce if they were in his possession, or control, unless such last-mentioned person consents to their production. 12 [131. Production of documents or electronic records which another person, having possession, could refuse to produce.—No one shall be compelled to produce documents in his possession or electronic records under his control, which any other person would be entitled to refuse to produce if they were in his possession, or control, unless such last-mentioned person consents to their production.]”
(emphasis supplied)
Indian Telegraph Act, 1885 The Act contains several provisions which regulate and prohibit the unauthorised interception or tampering with messages sent over “telegraphs”. Section 5 of the Act empowers the Government to take possession of licensed telegraphs and to order interception of messages in cases of ‘public emergency’ or ‘in the interest of the public safety’. Interception may only be carried out pursuant to a written order by an officer specifically empowered for this purpose by the State/Central Government. The officer must be 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” Section 24 makes it a criminal offence for a person to enter a telegraph office “with the intent of unlawfully learning the contents of any message”. Such a person may be punished with imprisonment for a term of up to a year. Section 25 further imposes a criminal penalty on anyone who damages or tampers with any
telegraph with the intent to prevent the transmission of messages or to acquaint himself with the contents of any message or to commit mischief. Punishment in this case could extend to 3 years imprisonment or a fine or both. Section 26 makes it an offence for a Telegraph Officer to alter, unlawfully disclose or acquaint himself with the content of any message. This is also punishable with up to 3 years imprisonment or a fine or both. Section 30 criminalises the fraudulent retention or willful detention of a message which is intended for someone else. Punishment extends to 2 years imprisonment or fine or both. License Agreements granted under the Telegraph Act Although the statute itself governs the actions of telecom operators in a general way, more detailed guidelines protecting individual privacy regulating their behaviour are contained in the terms of the licenses issued to the telecoms which permit them to conduct businesses. Frequently, these licenses contain clauses requiring telecom operators to safeguard the privacy of their consumers. A few examples include: Clause 21 of the National Long Distance License comprehensively covers various aspects of privacy including— (a) Licensees to be responsible for the protection of privacy of communication, and to ensure that unauthorised interception of message does not take place. (b) Licensees to take all necessary steps to safeguard the privacy and confidentiality of any information about a third party and their business to whom they provide service and from whom they have acguired such information by virtue of those service and shall use their best endeavours to secure that: (i) No person acting on behalf of the licensees or the licensees themselves divulge
or uses any such information except as may be necessary in the course of providing such service to the third party; and (ii) No such person seeks such information other than is necessary for the purpose of providing service to the third party. (c) The above safeguard however does not apply where (i) The information relates to a specific party and that party has consented in writing to such information being divulged or used, and such information is divulged or used in accordance with the terms of that consent; or (ii) The information is already open to the public and otherwise known. (d) The licensees shall take necessary steps to ensure that they and any person(s) acting on their behalf observe confidentiality of customer information. 2) Clause 39.2 of the Unified Access Service Licence and Clause 42.2 of the Cellular Mobile Telephone Service licence enjoin the licensee to take all necessary steps to safeguard the privacy and confidentiality of any information about a third party, and its business to whom it provides the service. The licensee is required to use its best endeavours to secure that no person acting on behalf of the licensee or the licensee divulges or uses any such information—except as may be necessary in the course of providing such service to the third party. 3) The Internet Services Licence Agreement (which authorises ISPs to function in India) similarly contains provisions touching on privacy: (a) Part VI of the Licence Agreement gives the Government the right to inspect/monitor the TSPs systems. The TSP is responsible for making facilities available for such interception. (b) Clause 32 under Part VI contains
provisions mandating the confidentiality of information. These provisions are identical to those described in Clause 21 of the NLD License agreement (see above). (c) Clause 33.4 makes it the responsibility of the TSP to trace nuisance, obnoxious or malicious calls, messages or communications transported through its equipment. (d) Clause 34.8 requires ISPs to maintain a log of all users connected and the service they are using (mail, telnet, http, etc.). The ISPs must also log every outward login or telnet through their computers. These logs, as well as copies of all the packets originating from the customer premises equipment (CPE) of the ISP, must be available in real time to Telecom Authority. The clause forbids logins where the identity of the logged-in user is not known. (e) Clauses 34.12 and 34.13 requires the licensee to make available a list of all subscribers to its services on a password protected website for easy access by Government authorities. (f) Clause 34.16 requires the licensee to activate services only after verifying the bona fides of the subscribers and collecting supporting documentation. There is no regulation governing how long this information is to be retained. (g) Clause 34.22 makes it mandatory for the Licensee to make available “details of the subscribers using the service” to the Government or its representatives “at any prescribed instant”. (h) Clause 34.23 mandates that the licensee maintain “all commercial records with regard to the communications exchanged on the network” for a period of “at least one year for scrutiny by the licensor for security reasons and may be destroyed thereafter unless directed otherwise by the licensor”. (i) Clause 34.28(viii) forbids the licensee from, transferring the following information to any person/place outside India: (j) Any accounting information relating to subscriber (except for international roaming/billing) (Note: it does not restrict a statutorily required disclosure of financial nature); and (k) User information (except pertaining to foreign subscribers using Indian operator's network while roaming). (l) Clauses 34.28(ix) and (x) require the TSP to provide traceable identity of their subscribers and on request by the Government must be able to provide the geographical location of any subscriber at any given time. (m) Clause 34.28(xix) stipulates that “in order to maintain the privacy of voice and data, monitoring shall only be upon authorisation by the Union Home Secretary or Home Secretaries of the States/Union Territories”. (It is unclear whether this is to operate as an overriding provision governing all other clauses as well) Privacy and Confiden-tiality Direction by TRAI Vide its 2010 directions TRAI has sought to implement the privacy and confidentiality related clauses in the service providers' licences. Accordingly by this direction, the TRAI ordered all service providers to “put in place an appropriate mechanisms, so as to prevent the breach of confidentiality on information belonging to the subscribers and privacy of communication”. All service providers were required by this regulation to submit a report to the TRAI giving details of measures so adopted.
(emphasis supplied)
The Bankers Book Evidence Act, 1891 Acts confers statutory protections against inspection and dissemination of bankers books of accounts.
Section 2A. Conditions in the printout. A printout of entry or a copy of printout referred to in sub-section (8) of Section 2 shall be accompanied by the following, namely: (a) a certificate to the effect that it is a printout of such entry or a copy of such printout by the principal accountant or branch manager; and (b) a certificate by a person in-charge of computer system containing a brief description of the computer system and the particulars of (A) the safeguards adopted by the system to ensure that data is entered or other operation performed only by authorised persons; (B) the safeguards adopted to prevent and detect unauthorised change of data; (C) the safeguards available to retrieve data that is lost due to systemic failure or any other reasons; (D) the manner in which data is transferred from the system to removable media like floppies, discs, tapes or other electro-magnetic data storage devices; (E) the mode of verification in order to ensure that data has been accurately transferred to such removable media; (F) the mode of identification of such data storage devices; (G) the arrangements for the storage and custody of such storage devices; (H) the safeguards to prevent and detect any tampering with the system; and (I) any other factor which will vouch for the integrity and accuracy of the system. (c) a further certificate from the person in charge of the computer system to the effect that to the best of his knowledge and belief, such computer system operated properly at the material time, he was provided with all the relevant data and the printout in question represents correctly, or is appropriately derived from, the relevant data.
Section 5. Case in which officer of bank not compellable to produce books No officer of a bank shall in any legal proceeding to which the bank is not a party be compellable to produce any bankers book the contents of which can be proved under this Act, or to appear as a witness to prove the matters, transactions and accounts therein recorded, unless by order of the Court or a Judge made for special cause. Section 6. Inspection of books by order of Court or Judge (1) On the application of any party to a legal proceeding the Court or a Judge may order that such party be at liberty to inspect and take copies of any entries in a bankers book for any of the purposes of such proceeding, or may order the bank to prepare and produce, within a time to be specified in the order, certified copies of all such entries accompanied by a further certificate that no other entries are to be found in the books of the bank relevant to the matters in issue in such proceeding, and such further certificate shall be dated and subscribed in manner hereinbefore directed in reference to certified copies. (2) An order under this or the preceding section may be made either with or without summoning the bank, and shall be served on the bank three clear days (exclusive of bank holidays) before the same is to be obeyed, unless the Court or Judge shall otherwise direct. (3) The bank may at any time before the time limited for obedience to any such order as aforesaid either offer to produce their books at the trial or give notice of their intention to show cause against such order, and thereupon the same/shall not be enforced without further order.
Credit Information Companies (Regulation) Act, 2005 Chapter VI of the Act embodies information privacy principles with respect to credit information Section 2—Definitions.— (e) “credit information company” means a company formed and registered under the Companies Act, 1956 and which has been granted a certificate of registration under sub-section (2) of Section 5; (f) “credit institution” means a banking company and includes— (i) a corresponding new bank, the State Bank of India, a subsidiary bank, a co-operative bank, the National Bank and regional rural bank; (ii) a non-banking financial company as defined under clause (f) of Section 45-I of the Reserve Bank of India Act, 1934; 1. “specified user” means any credit institution, credit information company being a member under sub-section (3) of Section 15, and includes such other person or institution as may be specified by regulations made, from time to time, by the Reserve Bank for the purpose of obtaining credit information from a credit information company; Section 19—Accuracy and security of credit information.—A credit information company or credit institution or specified user, as the case may be, in possession or control of credit information, shall take such steps (including security safeguards) as may be prescribed, to ensure that the data relating to the credit information maintained by them is accurate, complete, duly protected against any loss or unauthorised access or use or unauthorised disclosure thereof. Section 20. Privacy principles.— Every credit information company, credit institution and specified user, shall adopt the following privacy principles in relation to collection, processing, collating, recording,
preservation, secrecy, sharing and usage of credit information, namely: a. the principles— i. which may be followed by every credit institution for collection of information from its borrowers and clients and by every credit information company, for collection of information from its member credit institutions or credit information companies, for processing, recording, protecting the data relating to credit information furnished by, or obtained from, their member credit institutions or credit information companies, as the case may be, and sharing of such data with specified users; ii. which may be adopted by every specified user for processing, recording, preserving and protecting the data relating to credit information furnished, or received, as the case may be, by it; iii. which may be adopted by every credit information company for allowing access to records containing credit information of borrowers and clients and alteration of such records in case of need to do so; b. the purpose for which the credit information may be used, restriction on such use and disclosure thereof; c. the extent of obligation to check accuracy of credit information before furnishing of such information to credit information companies or credit institutions or specified users, as the case may be; d. preservation of credit information maintained by every credit information company, credit institution, and specified user as the case may be (including the period for which such information may be maintained, manner of deletion of such information and maintenance of records of credit information);
e. networking of credit information companies, credit institutions and specified users through electronic mode; f. any other principles and procedures relating to credit information which the Reserve Bank may consider necessary and appropriate and may be specified by regulations. Section 22. Unauthorised access to credit information.— 1. No person shall have access to credit information in the possession or control of a credit information company or a credit institution or a specified user unless the access is authorised by this Act or any other law for the time being in force or directed to do so by any court or tribunal and any such access to credit information without such authorisation or direction shall be considered as an unauthorised, access to credit information. 2. Any person who obtains unauthorised access to credit information as referred to in sub-section (1) shall be punishable with fine which may extend to one lakh rupees in respect of each offence and if he continues to have such unauthorised access, with further fine which may extend to ten thousand rupees for every day on which the default continues and such unauthorised credit information shall not be taken into account for any purpose. [The said Act also provides for penal provision for violation of privacy] Public Financial Institutions (Obligation as to Fidelity and Secrecy) Act, 1983 The Act imposes a bar on public financial institutions to disclose information relating to affairs of its constituents Section 2. Definitions.— (1) In this Act, “public financial institution” means— (a) the Industrial Credit and Investment Corporation of India Limited, a company formed and registered under the Indian Companies Act, 1913 (7 of 1913);
(b) the Industrial Reconstruction Corporation of India Limited, a company formed and registered under the Companies Act, 1956 (1 of 1956); or (c) any other institution, being a company as defined in Section 617 of the Companies Act, 1956 (1 of 1956) or a company to which the provisions of Section 619 of that Act apply, which the Central Government may, having regard to the nature of the business carried on by such institution, by notification in the Official Gazette, specify to be a public financial institution for the purposes of this Act. (2) Every notification issued under clause (c) of sub-section (1) shall, as soon as may be, after it is issued, be laid before each House of Parliament. Section 3. Obligation as to fidelity and secrecy.— 1) A public financial institution shall not, except as otherwise provided in sub-section (2) or in any other law for the time being in force, divulge any information relating to, or to the affairs of, its constituents except in circumstances in which it is, in accordance with the law or practice and usage, customary among bankers, necessary or appropriate for the public financial institution to divulge such information. (2) A public financial institution may, for the purpose of efficient discharge of its functions, collect from, or furnish to,— (a) the Central Government; or (b) the State Bank of India constituted under Section 3 of the State Bank of India Act, 1955 (23 of 1955), any subsidiary bank within the meaning of the State Bank of India (Subsidiary Banks) Act, 1959 (38 of 1959). any corresponding new bank constituted under Section 3 of the Banking Companies (Acquisition and Transfer of Undertakings)
Act, 1970 (5 of 1970) or under Section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 (40 of 1980), any other scheduled bank within the meaning of the Reserve Bank of India Act, 1934 (2 of 1934); or (c) any other public financial institution, such credit information or other information as it may consider useful for the purpose, in such manner and at such time as it may think fit. Explanation.—For the purposes of this sub-section, the expression “credit information” shall have the same meaning as in clause (c) of Section 45A of the Reserve Bank of India Act, 1934 (2 of 1934) subject to the modification that the banking company referred to therein shall mean a bank referred to in clause (b) of this sub-section or a public financial institution. 1 [(3) Nothing contained in this section shall apply to the credit information disclosed under the Credit Information Companies (Regulation) Act, 2005.] Payment and Settlement Systems Act, 2007 Section 15 of the Act grants confidentiality to the document or information obtained by the Reserve Bank from the system provider which provides payment system for credit card. debit card related transactions [eg VISA] Section 15. Information. etc., to be confidential.—1. Subject to the provisions of sub-section (2), any document or information obtained by the Reserve Bank under Sections 12 to 14 (both inclusive) shall be kept confidential. 2. Notwithstanding anything contained in sub-section (1), the Reserve Bank may disclose any document or information obtained by it under Sections 12 to 14 (both inclusive) to any person to whom the disclosure of such document or information is considered necessary for protecting the integrity, effectiveness or security of the payment system, or in the interest of banking or monetary policy or the operation of the payment systems generally or in the public interest.
Indian Income Tax Act, 1961 Act provides for confidentiality of income and tax information of the Assessee; Fair Practice Code for Credit Card Operations, 2010 Under these guidelines banks/NBFCs are directed to ensure confidentiality of the customer's records and maintain fair practices in debt collection. The said guidelines also lays down that no bank or its agents would resort to invasion of privacy viz., persistently bothering the card holders/their family members at odd hours, either for offering of credit card or for the purpose of recovery of the balance amount. It also provides for violation of “do not call” code etc. The Right To Information Act, 2005 Section 8(d) of the said provides exemption from disclosure of information if the said information contains commercial confidence, trade secrets or intellectual property and disclosure of which would harm the competitive position of a third party. The said information is disclosed only if competent authority is satisfied that larger public interest warrants the disclosure of such information;
The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 Chapter VI Protection of Information 28. Security and confidentiality of information. The Authority shall ensure the security of identity information and authentication records of individuals. Subject to the provisions of this Act, the Authority shall ensure confidentiality of identity information and authentication records of individuals. The Authority shall take all necessary measures to ensure that the information in the possession or control of the Authority, including information stored in the Central Identities Data Repository, is secured and protected against access, use or disclosure not permitted under this Act or regulations made thereunder, and against accidental or intentional destruction, loss or damage.
Without prejudice to sub-sections (1) and (2), the Authority shall adopt and implement appropriate technical and organisational security measures; ensure that the agencies, consultants, advisors or other persons appointed or engaged for performing any function of the Authority under this Act, have in place appropriate technical and organisational security measures for the information; and ensure that the agreements or arrangements entered into with such agencies, consultants, advisors or other persons, impose obligations equivalent to those imposed on the Authority under this Act, and require such agencies, consultants, advisors and other persons to act only on instructions from the Authority. Notwithstanding anything contained in any other law for the time being in force, and save as otherwise provided in this Act, the Authority or any of its officers or other employees or any agency that maintains the Central Identities Data Repository shall not, whether during his service or thereafter, reveal any information stored in the Central Identities Data Repository or authentication record to anyone: 29. Restriction on sharing information. No core biometric information, collected or created under this Act, shall be— shared with anyone for any reason whatsoever; or used for any purpose other than generation of Aadhaar numbers and authentication under this Act. The identity information, other than core biometric information, collected or created under this Act may be shared only in accordance with the provisions of this Act and in such manner as may be specified by regulations.
No identity information available with a requesting entity shall be— used for any purpose, other than that specified to the individual at the time of submitting any identity information for authentication; or disclosed further, except with the prior consent of the individual to whom such information relates. No Aadhaar number or core biometric information collected or created under this Act in respect of an Aadhaar number holder shall be published, displayed or posted publicly, except for the purposes as may be specified by regulations. 30. Biometric information deemed to be sensitive personal information. The biometric information collected and stored in electronic form, in accordance with this Act and regulations made thereunder, shall be deemed to be “electronic record” and “sensitive personal data or information”, and the provisions contained in the Information Technology Act, 2000 and the rules made thereunder shall apply to such information, in addition to, and to the extent not in derogation of the provisions of this Act. Explanation.—For the purposes of this section, the expressions— “electronic form” shall have the same meaning as assigned to it in clause (r) of sub-section (1) of Section 2 of the Information Technology Act, 2000; “electronic record” shall have the same meaning as assigned to it in clause (t) of sub-section (1) of Section 2 of the Information Technology Act, 2000; “sensitive personal data or information” shall have the same meaning as assigned to it in clause (iii) of the Explanation to Section 43A of the Information Technology Act, 2000.
31. Alteration of demographic information or biometric information. 1. In case any demographic information of an Aadhaar number holder is found incorrect or changes subsequently, the Aadhaar number holder shall request the Authority to alter such demographic information in his record in the Central Identities Data Repository in such manner as may be specified by regulations. 2. In case any biometric information of Aadhaar number holder is lost or changes subsequently for any reason, the Aadhaar number holder shall request the Authority to make necessary alteration in his record in the Central Identities Data Repository in such manner as may be specified by regulations. 3. On receipt of any request under sub-section (I) or sub-section (2), the Authority may, if it is satisfied, make such alteration as may be required in the record relating to such Aadhaar number holder and intimate such alteration to the concerned Aadhaar number holder. 4. No identity information in the Central Identities Data Repository shall be altered except in the manner provided in this Act or regulations made in this behalf. 32. Access to own information and records of requests for authentication. The Authority shall maintain authentication records in such manner and for such period as may be specified by regulations. Every Aadhaar number holder shall be entitled to obtain his authentication record in such manner as may be specified by regulations. The Authority shall not, either by itself or through any entity under its control, collect, keep or maintain any information about the purpose of authentication. 33. Disclosure of information in certain cases. 1. Nothing contained in sub-section (2) or sub-section (5) of Section 28 or sub-section (2) of Section 29 shall apply in respect of any disclosure of information, including identity
information or authentication records, made pursuant to an order of a court not inferior to that of a District Judge: Provided that no order by the court under this sub-section shall be made without giving an opportunity of hearing to the Authority. 2. Nothing contained in sub-section (2) or sub-section (5) of Section 28 and clause (b) of sub-section (1), sub-section (2) or sub-section (3) of Section 29 shall apply in respect of any disclosure of information, including identity information or authentication records, made in the interest of national security in pursuance of a direction of an officer not below the rank of Joint Secretary to the Government of India specially authorised in this behalf by an order of the Central Government: Provided that every direction issued under this sub-section, shall be reviewed by an Oversight Committee consisting of the Cabinet Secretary and the Secretaries to the Government of India in the Department of Legal Affairs and the Department of Electronics and Information Technology, before it takes effect: Provided further that any direction issued under this sub-section shall be valid for a period of three months from the date of its issue, which may be extended for a further period of three months after the review by the Oversight Committee. The Census Act, 1948 Protection from unauthorised disclosure of information gathered by the officers of State during the survey for census. The Collection of Statistics Act, 2008 Protection from unauthorised disclosure of information furnished to the statistics officer or to any person or agencies authorised under the Act. Provision for keeping the identity of the informant confidential. [Chapter III — Section 9-14] Juvenile Justice (Care and Protection of Children)
Act, 2000 Under Section 3 of the Act the Central Government, the State Governments, the Board, and other agencies, as the case may be, while implementing the provisions of this Act are to be guided by principles of Principle of right to privacy and confidentiality. Section 74 of the said Act prohibits disclosure of identity of children in any newspaper magazine, news-sheet or audio-visual media or other forms of communication which may lead to the identification of a child in conflict with law or a child in need of care and protection or a child victim or witness of a crime. As per Section 51 of the Act the report of the probation officer or social worker on a juvenile having been charged with the offence is be kept confidential; The Protection of Children from Sexual Offences Act, 2012 Provides for protecting children's rights of privacy and confidentiality who are victim of offences of sexual assault, sexual harassment and pornography,
The Information Technology Act, 2000 Section 30 Certifying Authority to follow certain procedures Every Certifying Authority shall,- (a) make use of hardware, software, and procedures that the secure from intrusion and misuse; (b) provide a reasonable level of reliability in its services which are reasonably suited to the performance of intended functions; (c) adhere to security procedures to ensure that the secrecy and privacy of the digital signatures are assured; and (d) observe such other standards as may be specified by regulations. Section 65 of the Act provides protection against tampering with individual's computer/source documents. Section 66 Hacking with Computer System.— (1) Whoever with the intent of cause or knowing that is likely to cause wrongful loss or damage to the public or any person
destroys or deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means, commits hacking. (2) Whoever commits hacking shall be punished with imprisonment up to three years, or with fine which may extend up to two lakh rupees, or with both. Section 66E of the Act provides for punishment for violation of privacy. Section 72 Breach of confidentiality and privacy.— Save as otherwise provided in this Act or any other law for the time being in force, if any person who, in pursuance of any of the powers conferred under this Act, rules or regulations made thereunder, has secured access to any electronic record, book, register, correspondence, information, document or other material without the consent of the person concerned discloses such electronic record, book, register, correspondence, information, document or other material to any other person shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both. Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 India's most comprehensive data protection standards are found in the ITA and are known as the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011. The Rules seek to provide rights to the individual with regards to their information and obligate body corporate to take steps towards protecting the privacy of consumer's information. Among other things, the Rules define “sensitive personal information' and require that any corporate body must publish an online privacy' policy, provide individuals with the right to access and correct their information, obtain consent before disclosing
sensitive personal information ‘except in the case’ of law enforcement, provide individuals the ability to withdraw consent, establish a grievance officer, require companies to ensure equivalent levels of protection when transferring information, and put in place reasonable security practices.
15. Thus, from the aforesaid illustrative statutory provisions it is clear that both pre-and post-independence, the legislature has been granting protection to the various facets and aspects of this “common law right to privacy” through statutes enacted by the competent legislatures. As such, in view thereof there is no justification to confer it a separate constitutional protection under Part III of the Constitution by way of the process of judicial interpretation when it is impossible to lay down any definitive contours of the term “privacy”.
III In other jurisdictions also “privacy” is protected by statute
16. It is submitted that not only in India but in other jurisdictions also there are instances where privacy is not conferred with a status of constitutional right but the same has been protected under statutes governing various fields of human activity. This fact necessarily depends upon country specific parameters. The same is evident from the analysis of laws of the following countries which have codified the law relating to “individual privacy” which primarily defined as personal data and has granted in statutory safeguards from any state or private action:
New Zealand The Privacy Act, 1993 (Act) governs how agencies collect, use, disclose, store, retain and give access to personal information. The Act gives the Privacy Commissioner the power to issue, codes of practice that modify the operation of the Act in relation to specific industries, agencies, activities or types of personal information. Codes currently in place are: Ø Credit Reporting Privacy Code Ø Health Information Privacy Code Ø Justice Sector Unique Identifier Code Ø Superannuation Schemes Unique Identifier Code Ø Telecommunications Information Privacy Code Ø Civil Defence National Emergencies (Information Sharing) Code. Enforcement is through the Privacy Commissioner.
Australia Data privacy/protection in Australia is currently made up of a mix of Federal and State/Territory legislation. The Federal Privacy Act, 1988 (Cth) (Privacy Act) and its Australian Privacy Principles (APPs) apply to private sector entities with an annual turnover of at least A$3 million and all Commonwealth Government and Australian Capital Territory Government agencies. The Privacy Act was last amended by the Privacy Amendment (Enhancing Privacy Protection) Act, 2012, which came into force on 12-3-2014. The amendments significantly strengthened the powers of the Privacy Commissioner to conduct investigations. (including own motion investigations), ensure compliance with the amended Privacy Act and, for the first time, introduced civil penalties for a serious/egregious breach or for repeated breaches of the APPs where remediation has not been implemented. Israel The laws that govern the right to privacy in Israel are the Basic Law: Human Dignity and Liberty, 5752 - 1992; the Protection of Privacy Law, 5741-1981 and the regulations promulgated thereunder (the PPL) and the guidelines of ILITA (as defined below). The Israeli Law, Information and Technology Authority (Ilita), established in September 2006, as determined by Israel's Government Decision No. 4660, dated 19-1-2006. Japan The Act on the Protection of Personal Information (APPI) requires business operators who utilise for their business in Japan a personal information database which consists of more than 5000 individuals in total identified by personal information on any day in the past six months to protect personal information. Amendments to the APPI, which were passed in 2015 and go into effect no later than September 2017[1] (the Amendments), apply the APPI to all businesses in Japan, regardless of whether the business operator maintains a database of more than 5000 individuals. Further, the Amendments clarify the definition of personal information, add two new classes of information, and introduce new requirements for “opt out” choice for business operators to disclosure of personal information to third parties. Finally, as of 1-1-2016, the Amendments created a Privacy Protection Commission (the Commission), a central agency which will Act as a supervisory governmental organisation on
issues of privacy protection. The Amendments created the Privacy Protection Commission (the Commission), which will Act as a supervisory governmental organisation on issues of privacy protection. China Currently, there is not a comprehensive data protection law in the People's Republic of China (PRC). Instead, rules relating to personal data protection are found across various laws and regulations. Generally speaking, provisions found in laws such as the General Principles of Civil Law and the Tort Liability Law may be used to interpret data protection rights as a right of reputation or right of privacy. However, such interpretation is not explicit. A draft Personal Data Protection Law has been under review by the PRC Government for many years, but there is still no indication as to if and when such law will be passed. Brazil Currently, Brazil does not have a single statute establishing data protection framework. There are two bills of laws, namely, No. 330/2013 and No. 5.276/2016, under analysis before Congress that, when enacted, will specifically and broadly regulate such, subject-matter locally. According to the developments of both future regulations, Bill of Law No. 5.2726/16 (Bill of Law), dated of 13-5-2016, is likely to be enacted in the near future, since the Presidency declared it with a status of urgency under the terms of Section 64 of Brazilian Federal Constitution, thus, Bill of Law No. 330/13 should be disregarded. In the absence of specific law, Federal Law No. 12.965/2014 (Brazilian Internet Act), and its recently enacted regulating Decree No. 8.771/16 (Decree), dated of 11-5-2016, has brought some provisions on security and processing of personal data. Saudi Arabia Shari'a principles (that is, Islamic principles derived from the Holy Quran and the Sunnah, the latter being the witnesses' sayings of the Prophet Mohammed), which although not codified, are the primary source of law in the KSA. In addition to Shari'a principles, the law in the KSA consists of secular regulations passed by the government, which is secondary if it conflicts with Shari'a principles. At this time, there is no specific data protection legislation in place in the KSA (although we understand that a new freedom of information and protection of private data law is under review by the
Shura Council). Shari'a principles generally protect the privacy and personal data of individuals. Qatar On 3-11-2016 the Qatari Government passed a data protection law, Law No. 13 of 2016 concerning Personal Data Protection (Data Protection Law). The Data Protection Law will come into effect within six months of the date of issue, that is, 3-5-2017 (unless this period is extended). Qatar is the first GCC member state to issue a generally applicable data protection law. The Data Protection Law envisages further regulations being issued to assist its implementation. The Data Protection Law will apply to personal data when this data is processed electronically, or obtained, collected or extracted in any other way in preparation for the electronic processing thereof, or that is processed by combining electronic processing and traditional processing. Singapore Singapore enacted the Personal Data Protection Act, 2012 (26 of 2012) (Act) on 15-10-2012. The Act took effect in 3 phases: (i) Provisions relating to the formation of the Personal Data Protection Commission (the ‘Commission’) took effect on 2-1-2013. (ii) Provisions relating to the National Do-Not-Call Registry (DNC Registry) took effect on 2-1-2014. (iii) The main data protection provisions took effect on 2-7-2014. The Act has extraterritorial effect, and so applies to organisations collecting personal data from individuals in Singapore whether or not the organisation itself has a presence in Singapore. The data protection obligations under the Act do not apply to the public sector, to whom separate rules apply. Taiwan The former Computer Processed Personal Data Protection Law (CPPL) was renamed as the Personal Data Protection Law (PDPL) and amended on 26-5-2010. The PDPL became effective on 1-10-2012, except that the provisions relating to sensitive personal data and the notification obligation for personal data indirectly collected before the effectiveness of the PDPL remained ineffective. The Government later proposed further amendment to these and other provisions, which passed
legislative procedure and became effective on 15-3-2016. In Taiwan, there is no single national data protection authority. The various ministries and city/County Governments serve as the competent authorities. There is no requirement in Taiwan for the Data Controller to appoint a Data Protection Officer. However, if the Data Controller is a government agency, a specific person should be appointed to be in charge of the security maintenance measures. Malaysia Malaysia's first comprehensive personal data protection legislation, the Personal Data Protection Act, 2010 (PDPA), was passed by the Malaysian Parliament on 2-6-2010 and came into force on 15-11-2013. Pursuant to the PDPA, a Personal Data Protection Commissioner (Commissioner) has been appointed to implement the PDPA's provisions. Decisions of the Commissioner can be appealed against through the Personal Data Protection Appeal Tribunal. Mexico The Federal Law on the Protection of Personal Data held by Private Parties (Ley Federal de Protección de DatosPersonalesenPosesión de losParticulares) (the Law) was enacted on 5-7-2010 and entered into force on 6-7-2010. The Executive Branch has also issued: (i) the Regulations to the Federal Law on the Protection of Personal Data held by Private Parties (Reglamento de la Ley Federal de Protección de Datos PersonaiesenPosesión de losParticulares) on 21-12-2011 (the ‘Regulations’), same which entered into force on 22-12-2011. (ii) the Privacy Notice Guidelines on 17-1-2013 (the Guidelines) which entered into force on 18-4-2013. (iii) the Parameters for Self Regulation regarding personal data on 29-5-2014 (the Parameters), which entered into force on 30-5-2014. Nigeria Nigeria does not have a comprehensive legislative framework on the protection of personal data. However, there are a few industry-specific and targeted laws and regulations that provide some privacy-related protections, which include: (i) The Constitution of the Federal Republic of Nigeria, 1999 (As Amended) (the Constitution) which provides for the fundamental rights of its citizens and
upholds the right of privacy as sacrosanct. Section 37 thereof provides for the guarantee and protection of the privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications. (ii) The Freedom of Information Act, 2011 (FOI Act) which seeks to protect personal privacy. Section 14 of the FOI Act provides that a public institution is obliged to deny an application for information that contains personal information unless the individual involved consents to the disclosure, or where such information is publicly available. Also, Section 16 of the FOI. Act provides that a public institution may deny an application for disclosure of information that is subject to various forms of professional privilege conferred by law (such as lawyer-client privilege, health workers-client privilege, etc). (iii) The Child Rights Act 26 of 2003 (the Child Rights Act) regulates the protection of children (persons under the age of 18 years). This Act limits access to information relating to children in certain circumstances. (iv) The Consumer Code of Practice Regulations, 2007 (the NCC Regulations) issued by the regulator of the telecommunications industry in Nigeria, the Nigerian Communications Commission (NCC). The NCC Regulations provide that all licensees must take reasonable steps to protect customer information against improper or accidental disclosure, and must ensure that such information is securely stored and not kept longer than necessary. It also provides that customer information must not be transferred to any party except to the extent agreed with the Customer, as permitted or required by the NCC or other applicable laws or regulations. (v) In 2011, the NCC issued the Nigerian Communications Commission (Registration of Telephone Subscribers) Regulations, 2011. Section 9 of the Regulation provides that subscribers information contained in the Central Database shall be held in strict confidentiality basis and no person or entity shall be allowed access to any subscriber's information that is on the Central Database except as prescribed by the Regulation. “Central Database” is defined in the Regulation to mean subscriber information database, containing the biometric and other registration
information of all subscribers. Section 21 of the Regulation provides penal sanctions for violators. (vi) The National Information Technology Development Agency (Nitda) which is the national authority responsible for planning, developing and promoting the use of information technology in Nigeria, and which issues the Guidelines on Data Protection (Nitda Guidelines) pursuant to the Nitda Act, 2007. The Nitda Guidelines prescribe guidelines for organisations that obtain and process personal data of Nigeria residents and citizens within and outside Nigeria for protecting such personal data. The Nitda Guidelines apply to federal, State and local Government agencies and institutions as well as private sector organisations that own, use or deploy information systems within the Federal Republic of Nigeria. Peru Personal data protection is governed in Peru by: (i) the Personal Data Protection Law 29733 (PDPL) published on 3-7-2011 (ii) its regulations enacted by Supreme Decree 003-2013-JUS and published on 22-3-2013 (the Regulations), and (iii) the Security Policy on Information Managed by Databanks of Personal Data enacted by Directorial Resolution N° 019-2013-JUS/DGPDP on 11-10-2013. Although several provisions of the PDPL have been in force since 4-7-2011, most of the provisions of the PDPL only came into force on 8-5-2013 (30 business days after the issuance of the Regulations). South Korea In the past, South Korea did not have a comprehensive law governing data privacy. However, a law relating to protection of personal information (Personal Information Protection Act, “PIPA”) was enacted and became effective as of 30-9-2011. Moreover, there is sector specific legislation such as: (i) the Act on Promotion of Information and Communication Network Utilisation and Information Protection (IT Network Act) which regulates the collection and use of personal information by IT Service Providers, defined as telecommunications business operators under Article 2.8 of the Telecommunications
Business Act; and other persons who provide information or intermediate the provision of information for profit by utilising services rendered by a telecommunications business operator (ii) the Use and Protection of Credit Information Act (Upcia) which regulates the use and disclosure of Personal Credit Information, defined as credit information which is necessary to determine the credit rating, credit transaction capacity, etc. of an individual person. The Upcia primarily applies to Credit Information Providers/Users, defined under Article 2.7 of the Upcia as a person (entity) prescribed by Presidential Decree thereof who provides any third party with credit information obtained or produced in relation to his/her own business for purposes of commercial transactions, such as financial transactions with customers, or who has been continuously supplied with credit information from any third party to use such information for his/her own business, and (iii) the Act on Real Name Financial Transactions and Guarantee of Secrecy (Arnftgs) which applies to information obtained by financial or financial services institutions. Under PIPA, except as otherwise provided for in any other Act, the protection of personal information shall be governed by the provisions of PIPA. Trinidad and Tobago In Trinidad and Tobago the Data Protection Act, 2011 provides for the protection of personal privacy and information (DPA) processed and collected by public bodies and private organisations. The DPA was partially proclaimed on 6-1-2012 by Legal Notice 2 of 2012 and only Part I and Sections 7 to 18, 22, 23, 25(1), 26 and 28 of Part II have come into operation. No time table has been set for the proclamation of the remainder of the DPA and it is possible that there may be changes to the remainder of the legislation before it is proclaimed. Ukraine The Law of Ukraine 2297 VI ‘On Personal Data Protection’ as of 1-6-2010 (Data Protection Law) is the main legislative Act regulating relations in the sphere of personal data protection in Ukraine. At 20-12-2012 Data Protection Law has been substantially amended by the Law of Ukraine ‘On introducing amendments to the Law of Ukraine On personal data protection’ dated 20-11-
2012 No. 5491-VI. Additional significant changes to Data Protection Law were envisaged by the Law of Ukraine ‘On Amendments to Certain Laws of Ukraine regarding Improvement of Personal Data Protection System’ dated 3-7-2013 No. 383-VII which came into force on 1-1-2014. In addition to the Data Protection Law, certain data protection issues are regulated by subordinate legislation specifically developed to implement the Data Protection Law.
17. Thus, from the aforesaid analysis, it is clear that there are other jurisdiction in the world where no constitutional protection is conferred to “right of privacy” nonetheless the same has been conferred statutory protection under respective statutes.
IV. Position under English Law post their joining European Union
18. So far as right to privacy in England is concerned, it is treated merely as a common law right. In examining the nature of the English cause of action for tort, it is necessary first of all to outline the distinctive nature of Article 8 ECHR rights. 2014) ch 12 The Article 8 right to a private life is a qualified right. Para 2 provides that:
“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.”
19. By its very nature, therefore, Article 8 envisages a balancing of competing rights, none of which is predominant, in determining whether the interference with Article 8 is lawful and a necessary or proportionate response. It has also been found to create negative and positive obligations on the State, to abstain from arbitrary interference in private or family life, but also to adopt measures designed to secure respect for private life even in private disputes. (8978/80), (1986) 8 EHRR 235 at para 23 While the State has a margin of appreciation in choosing the means by which to secure compliance with Article 8 (1979-80) 1 EHRR 737, the nature of the State's obligation will depend on the particular aspect of private life that is at issue. (5786/08), (8978/80), (1986) 8 EHRR 235 at para 24, (40660/08), (2012) 55 EHRR 15 at para 104 A wide margin of appreciation will exist in cases where the State is required to strike a balance between competing private and public interests or rights set out in the Convention for the Protection of Human Rights and Fundamental Freedoms 1953 UKTS No. 71) (4-11-1950, (6339/05), (2008) 46 EHRR 34), although the court has indicated that where the interference involves a most intimate aspect of private life, the margin allowed to the State will be narrowed (5786/08), (2014) 58 EHRR 36 at para 79. This position does signify, however, that there remains a lack of clarity as to the nature and extent of the positive obligations imposed by Article 8. 2014) at p. 533
20. This becomes clear from the following analysis of the decision rendered by House of Lords in Wainwright v. Home Office (2004) 2 AC 406, (2003) 3 WLR 1137 (HL), which makes out following two points:
(a) That even the Apex Court in England has refused to do is to formulate a general principle of “invasion of privacy” on constitutional touchstone;
(b) The concept of privacy is so inherently vague that even judicially trained minds can come to diametrically opposite conclusions on the same set of facts;
21. In this context it would be relevant to first analyse the said judgment from Point (b) above.
(a) In this case the court of first instance ie Leeds County Court held that the searches were wrongful (and hence not protected by authority of law) because of the battery and invasion of the Wainwrights' “right to privacy”, which he conceived to be a trespass to the person. The court of first instance awarded Alan Wainwright £3,500 basic and £1,000 aggravated damages, and Mrs Wainwright £1,600 basic and £1,000 aggravated damages.
(b) The Court of Appeal did not agree with the above judgment.
(c) The plaintiffs appealed to the House of Lords. Lord Hoffmann held that there was no tort for invasion of privacy, because (based on experience in the United States) it was too uncertain. Moreover, a claim under Article 8 of the European Convention on Human Rights (ECHR), (right to privacy and family life), did not help because the ECHR was merely a standard which applied to whatever was currently present in the common law. Common law protection was sufficient privacy protection for the ECHR's purpose.
Thus from the above it is clear that on the same set of facts, even judicially trained minds have also come to diametrically opposite conclusions, while dealing with the case of personal privacy that it makes it obvious that expressions “privacy is so vague that there is no manageable standard by which a person can be said to have committed breach or not to have committed a breach of the said vague concept.
22. Furthermore it is also clear that the Apex Court in England in the said case of Wainwright (supra) refused to confer general principle of “invasion of privacy” a constitutional status. The same is clear from the following extract of the case which is reproduced hereinbelow for ready reference:
“15. My Lords, let us first consider the proposed tort of invasion of privacy. Since the famous article by Warren and Brandeis (“The Right to Privacy” (1890) 4 Harv L Rev 193 the question of whether such a tort exists, or should exist, has been much debated in common law jurisdictions. Warren and Brandeis suggested that one could generalise certain cases on defamation, breach of copyright in unpublished letters, trade secrets and breach of confidence as all based upon the protection of a common value which they called privacy or, following Judge Cooley. (Cooley on Torts, 2nd ed (1888), p 29) “the right to be let alone”. They said that identifying this common element should enable the courts to declare the existence of a general principle which protected a person's appearance, sayings, acts and personal relations from being exposed in public.
16. Courts in the United States were receptive to this proposal and a jurisprudence of privacy began to develop. It became apparent, however, that the developments could not be contained within a single principle; not, at any rate, one with greater explanatory power than the proposition that it was based upon the protection of a value which could be described as privacy. Dean Prosser, in his work on The Law of Torts, 4th ed (1971), p. 804, said that:
“What has emerged is no very simple matter … it is not one tort, but a complex of four. To date the law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff ‘to be let alone’.”
17. Dean Prosser's taxonomy divided the subject into (1) intrusion upon the plaintiffs physical solitude or seclusion (including unlawful searches, telephone tapping, long-distance photography and telephone harassment) (2) public disclosure of private facts and (3) publicity putting the plaintiff in a false light and (4) appropriation, for the defendant's advantage, of the plaintiffs name or likeness. These, he said, at p 814, had different elements and were subject to different defences.
18. The need in the United States to break down the concept of “invasion of privacy” into a number of loosely-linked torts must cast doubt upon the value of any high-level generalisation which can perform a useful function in enabling one to deduce the rule to be applied in a concrete case. English law has so far been unwilling, perhaps unable, to formulate any such high-level principle. There are a number of common law and statutory remedies of which it may be said that one at least of the underlying values they protect is a right of privacy. Sir Brian Neill's well known article “Privacy: a challenge for the next century” in Protecting Privacy (ed B Markesinis, 1999) contains a survey. Common law torts include trespass, nuisance, defamation and malicious. falsehood; there is the equitable action for breach of confidence and statutory remedies under the Protection from Harassment Act, 1997 and the Data Protection Act, 1998. There are also extra-legal remedies under Codes of Practice applicable to broadcasters and newspapers. But there are gaps; cases in which the courts have considered that an invasion of privacy deserves a remedy which the existing law does not offer. Sometimes the perceived gap can be filled by judicious development of an existing principle. The law of breach of confidence has in recent years undergone such a process: see in particular the judgment of Lord Phillips of Worth Matravers MR in Campbell v. MGN Ltd. 2003 QB 633, (2003) 2 WLR 80, 2004 UKHL 22 (CA) On the other hand, an attempt to create a tort of telephone harassment by a radical change in the basis of the action for private nuisance in Khorasandjian v. Bush 1993 QB 727, (1993) 3 WLR 476 (CA) was held by, the House of Lords in Hunter v. Canary Wharf Ltd. 1997 AC 655, (1996) 2 WLR 348 (HL) to be a step too far. The gap was filled by the 1997 Act.
19. What the courts have so far refused to do is to formulate a general principle of “invasion of privacy” (J use the quotation marks to signify doubt about what in such a context the expression would mean) from which the conditions of liability in the particular case can be deduced. The reasons were discussed by Sir Robert Megarry V-C in Malone v. Metropolitan Police Commr. 1979 Ch 344 at pp. 372-381, (1979) 2 WLR 700 I shall be sparing in citation but the whole of Sir Robert's treatment of the subject deserves careful reading. The question was whether the plaintiff had a cause of action for having his telephone tapped by the police without any trespass upon his land. This was (as the European Court of Justice subsequently held in Malone v. United Kingdom (1984) 7 EHRR 14 an infringement by a public authority of his right to privacy under article 8 of the Convention, but because there had been no trespass, it gave rise to no identifiable cause of action in English law. Sir Robert was invited to declare that invasion of privacy, at any rate in respect of telephone conversations, was in itself a cause of action. He said, at p 372:
“I am not unduly troubled by the absence of English authority: there has to be a first time for everything, and if the principles of English law, and not least analogies from the existing rules, together with the requirements of justice and common sense, pointed firmly to such a right existing, then I think the court should not be deterred from recognising the right. On the other hand it is no function of the courts to legislate in a new field. The extension of the existing laws and principles is one thing, the creation of an altogether new right is another.”
22. Once again. Parliament provided a remedy, subject to a detailed code of exceptions, in the Interception of Communications Act, 1985. A similar problem arose in R. v. Khan (Sultan) 1997 AC 558, (1996) 3 WLR 162 (HL), in which the defendant in criminal proceedings complained that the police had invaded his privacy by using a listening device fixed to the outside of a house. There was some discussion of whether the law should recognise a right to privacy which had been prima facie infringed. but no concluded view was expressed because all their Lordships thought that any such right must be subject to exceptions, particularly in connection with the detection of crime and that the accused's privacy had been sufficiently taken into account by the judge when he exercised his discretion under Section 78 of the Police and Criminal Evidence Act, 1984 to admit the evidence obtained by the device at the criminal trial. The European Court of Human Rights subsequently held (Khan v. United Kingdom) that the invasion of privacy could not be justified under Article 8 because, in the absence of any statutory regulation, the actions of the police had not been “in accordance with law”. By that time, however Parliament had intervened in the Police Act, 1997 to put the use of surveillance devices on a statutory basis.
26. All three, judgments are flat against a judicial power to declare the existence of a high-level right to privacy and I do not think that they suggest that the courts should do so. The members of the Court of Appeal certainly thought that it would be desirable if there was legislation to confer a right to protect the privacy of a person in the position of Mr Kaue against the kind of intrusion which he suffered, but they did not advocate any wider principle. And when the Calcutt Committee reported in June 1990, they did indeed recommend that “entering private property, without the consent of the lawful occupant, with intent to obtain personal information with a view to its publication” should be made a criminal offence: see the Report of the Committee on Privacy and Related Matters (1990) (Cm 1102), para 6.33. The Committee also recommended that certain other forms of intrusion, like the use of surveillance devices on private property and long-distance photography and sound recording, should be made offences.
27. But the Calcutt Committee did not recommend, even within their terms of reference (which were confined to press intrusion) the creation of a generalised tort of infringement of privacy: paragraph 12.5. This was not because they thought that the definitional problems were insuperable. They said that if one confined the tort to “publication of personal information to the world at large” (paragraph 12.12) it should be possible to produce an adequate definition and they made some suggestions about how such a statutory tort might be defined and what the defences should be. But they considered that the problem could be tackled more effectively by a combination of the more sharply-focused remedies which they recommended: paragraph 12.32. As for a “general wrong of infringement of privacy”, they accepted, at paragraph 12.12, that it would, even in statutory form, give rise to “an unacceptable degree of uncertainty”. There is nothing in the opinions of the judges in Kaye v. Robertson 1991 FSR 62, 1990 EWCA Civ 21 which suggests that the members of the court would have held any view, one way or the other, about a general tort of privacy.
31. 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 the notion of underlying values-principles only in the broadest sense-which direct its development. A famous example is Derbyshire County Council v. Times Newspapers Ltd. 1993 AC 534, (1993) 2 WLR 449 (HL), in which freedom of speech was the underlying value which supported the decision to lay down the specific rule that a local authority could not sue for libel. But no one has suggested that freedom of speech is in itself a legal principle which is capable of sufficient definition to enable one to deduce specific rules to be applied in concrete cases. That is not the way the common law works.
32. 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). So in Earl Spencer v. United Kingdom (1998) 25 EHRR CD 105 it was satisfied that the action for breach of confidence provided an adequate remedy for the Spencers' complaint and looked no further into the rest of the armoury of remedies available to the victims of other invasions of privacy. Likewise, in Peck v. United Kingdom (2003) 36 EHRR 719 the court expressed some impatience, at paragraph 103, at being given a tour d'horizon of the remedies provided and to be provided by English law to deal with every imaginable kind of invasion of privacy. It was concerned with whether Mr Peck (who had been filmed in embarrassing circumstances by a CCTV camera) had an adequate remedy when the film was widely published by the media. It came to the conclusion that he did not.
34. Furthermore, the coming into force of the Human Rights Act, 1998 weakens the argument for saying that a general tort of invasion of privacy is needed to fill gaps in the existing remedies. Sections 6 and 7 of the Act are in themselves substantial gap fillers; if it is indeed the case that a person's rights under Article 8 have been infringed by a public, authority, he will have a statutory remedy. The creation of a general tort will, as Buxton LJ pointed out in the Court of Appeal Wainwright v. Home Office 2002 QB 1334 at p. 1360, (2002) 3 WLR 405 (CA), pre-empt the controversial question of the extent, if any, to which the Convention requires the state to provide remedies for invasions of privacy by persons who are not public authorities.
35. For these reasons I would reject the invitation to declare that since at the latest 1950 there has been a previously unknown tort of invasion of privacy.”
23. Thus from the aforesaid it is clear that this concept of “privacy” is so vague that it cannot be, in the present form, be declared a fundamental right as there are no judicially manageable standard to constitutionally enforce the same. The said right of privacy is sufficiently protected by appropriate statutes (as explained hereunder) depending upon the subject-specific precise and definable need for protection of privacy.
24. Further, following Wainwright v. Home Office (2004) 2 AC 406, (2003) 3 WLR 1137 (HL), in Campbell v. MGN Ltd. 2003 QB 633, (2003) 2 WLR 80, 2004 UKHL 22 (CA), the Court held:
11. In this country, unlike the United States of America there is no over-arching, all-embracing cause of action for ‘invasion of privacy’: see Wainwright v. Home Office (2004) 2 AC 406, (2003) 3 WLR 1137 (HL). But protection of various aspects of privacy is a fast developing area of the law, here and in some other common law jurisdictions. The recent decision of the Court of Appeal of New Zealand in Hosking v. Runting 2004 NZCA 34 (25-3-2004) is an example of this. In this country development of the law has been spurred by enactment of the Human Rights Act, 1998.
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 at p. 426 (Can SC).
13. The common law or, more precisely, courts of equity have long afforded protection to the wrongful use of private information by means of the cause of action which became known as breach of confidence. A breach of confidence was restrained as a form of unconscionable conduct, akin to a breach of trust. Today this nomenclature is misleading. The breach of confidence label harks back to the time when the cause of action was based on improper use of information disclosed by one person to another in confidence. To attract protection the information had to be of a confidential nature. But the gist of the cause of action was that information of this character had been disclosed by one person to another in circumstances ‘importing an obligation of confidence’ even though no contract of non-disclosure existed: see the classic exposition by Megarry J. in Coco v. A.N. Clark (Engineers) Ltd. 1969 RPC 41 at pp. 47-48 The confidence referred to in the phrase ‘breach of confidence’ was the confidence arising out of a confidential relationship.
14. This cause of action has now firmly shaken off the limiting constraint of the need for an initial confidential relationship. In doing so it has changed its nature. In this country this development was recognised clearly in the judgment of Lord Goff of Chieveley in Attorney General v. Guardian Newspapers Ltd. (No. 2) (1990) 1 AC 109, (1988) 3 WLR 776 (HL). Now the law imposes a ‘duty of confidence’ whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential. Even this formulation is awkward. The continuing use of the phrase ‘duty of confidence’ and the description of the information as ‘confidential’ is not altogether comfortable. Information about an individual's private life would not, in ordinary usage, be called ‘confidential’. The more natural description today is that such information is private. The essence of the tort is better encapsulated now as misuse of private information.
15. In the case of individuals this tort, however labelled, affords respect for one aspect of an individual's privacy. That is the value underlying this cause of action. An individual's privacy can be invaded in ways not involving publication of information. Strip-searches are an example. The extent to which the common law as developed thus far in this country protects other forms of invasion of privacy is not a matter arising in the present case. It does not arise because, although pleaded more widely, Miss Campbell's common law claim was throughout presented in court exclusively on the basis of breach of confidence, that is, the wrongful publication by the ‘Mirror’ of private information.
16. The European Convention on Human Rights, and the Strasbourg jurisprudence, have undoubtedly had a significant influence in this area of the common law for some years. The provisions of Article 8, concerning respect for private and family life, and Article 10, concerning freedom of expression, and the interaction of these two articles, have prompted the courts of this country to identify more clearly the different factors involved in cases where one or other of these two interests is present. Where both are present the courts are increasingly explicit in evaluating the competing considerations involved. When identifying and evaluating these factors the courts, including your Lordships' House. have tested the common law against the values encapsulated in these two articles. The development of the common law has been in harmony with these articles of the Convention: see, for instance, Reynolds v. Times Newspapers Ltd. (2001) 2 AC 127 at pp. 203-204, (1999) 3 WLR 1010 (HL)
22. Different forms of words, usually to much the same effect, have been suggested from time to time. The second Restatement of Torts in the United States (1977), Article 652-D, p. 394, uses the formulation of disclosure of matter which ‘would be highly offensive to a reasonable person’. In Australian Broadcasting Corpn. v. Lenah Game Meats Pty Ltd. (2001) 185 ALR 1 at p. 13, Gleeson CJ used words, widely quoted, having a similar meaning. This particular formulation should be used with care, for two reasons. First, the ‘highly offensive’ phrase is suggestive of a stricter test of private information than a reasonable expectation of privacy. Second. the ‘highly offensive’ formulation can all too easily bring into account, when deciding whether the disclosed information was private, considerations which go more properly to issues of proportionality; for instance, the degree of intrusion into private life, and the extent to which publication was a matter of proper public concern. This could be a recipe for confusion.
V. Recent trends under American Law
25. The American constitutional standard of privacy right is wholly inapplicable to the fundamental rights jurisprudence in India. The US Supreme Court has held that people cannot reasonably expect privacy in information they willingly disclose to third parties and, thus, that government intrusions on such information are not Fourth Amendment searches, commonly known as the Third Party Doctrine. 1979 SCC OnLine US SC 128, 442 US 735 at pp. 743-44 (1979)
26. In its 1979 decision in Smith v. Maryland 1979 SCC OnLine US SC 128, 442 US 735 at pp. 743-44 (1979), the Supreme Court ruled in favour of the Government, observing that “this Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties”. The Smith ruling also made reference to another Fourth Amendment case decided three years earlier, United States v. Miller 1976 SCC OnLine US SC 70, 425 US 435 (1976), that involved warrantless Government access of a suspect's bank records. In Miller supra, the US Supreme Court had also found in favour of the Government, holding that:
“The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.”
27. The Miller and Smith decisions (supra) manifests what has since become known as the third-party doctrine. Under that doctrine, if you voluntarily provide information to a third party, the Fourth Amendment does not preclude the Government from accessing it without a warrant. More succinctly, as the Court held in Smith 1979 SCC OnLine US SC 128, 442 US 735 at pp. 743-44 (1979), you have “no legitimate expectation of privacy” from warrantless government access to that information.
28. In United States v. Jones 132 S Ct 945 at p. 949 (2012), the question involved was GPS tracking performed directly by the Government, without a third party intermediary. The Government's physical intrusion onto private property, without a valid warrant, to attach a GPS tracker to a suspect's car was in question. The US Supreme Court justices voted unanimously that this was a “search” under the Fourth Amendment, although they were split 5-4 as to the fundamental reasons behind that conclusion. The majority held that by physically installing the GPS device on the defendant's car, the police had committed a trespass against Jones' “personal effects” — this trespass, in an attempt to obtain information, constituted a search per se.
29. As per recent American trends, the American lower courts have held that historical cell-site location information (CSLI) — a carrier's records of the cell tower used to route a user's calls and messages (typically the tower closest to the user) — is such information willingly disclosed to third parties. Recently, in United States v. Graham 824 F 3d 421 (4th Cir 2016). The Fourth Circuit upheld that rule, finding that two defendants could not reasonably expect privacy in CSLI that police used to place them at the crime scene.
30. To further understand the verdict in United States v. Graham 824 F 3d 421 (4th Cir 2016) it is necessary to understand the factual background that led to the verdict:
(a) Aaron Graham and Eric Jordan were prosecuted for six armed robberies in Baltimore that occurred over the course of several weeks in early 2011;
(b) The fifth and sixth robberies took place on the same afternoon. Based on eyewitness testimony, the police arrested Graham and Jordan; they then acquired physical evidence connecting the defendants to two of the earlier robberies.
(c) While investigating those robberies, an officer seized (under warrant) two phones from Graham's car, linking them to the phone numbers Graham and Jordan gave at arrest.
(d) The police sought court orders through the Stored Communications Act (SCA), under which the Government may compel disclosure of certain records under a standard lower than probable cause.
(e) They demanded that Sprint/Nextel (the defendants' phone carrier) provide the historical CSLI associated with the defendants' phones for a total of 221 days over seven months, collecting over 28,000 CSLI data points for each defendant.
(f) Prosecutors used CSLI to place the defendants at most of the crime scenes.
31. Subsequently, Graham and Jordan brought a motion to suppress the CSLI as the fruit of an unconstitutional search. The District Court concluded that the defendants could not legitimately expect privacy in their historical CSLI records as they voluntarily conveyed that information to Sprint/Nextel; the third-party doctrine thus applied. Accordingly, the court rejected the motion, and the defendants were then convicted following a jury trial. They appealed, arguing that the Government, by obtaining the CSLI, had violated their Fourth Amendment rights. A panel of the Fourth Circuit agreed.
32. On appeal, the Fourth Circuit, sitting en banc (Full Bench), reversed the panel's Fourth Amendment holding. Previously in minority, but now in the majority, Motz, J. first wrote that the third-party doctrine applies even to information conveyed for limited purposes. The Hon'ble Court held:
“Defendants maintain that cell phone users do not convey CSLI to phone providers, voluntarily or otherwise. We reject that contention. With respect to the nature of CSLI, there can be little question that cell phone users “convey” CSLI to their service providers. After all, if they do not, then who does?
…
… user therefore “conveys” the location of the cell towers his phone connects with to his provider whenever he uses the provider's network.
…
There is similarly little question that cell phone users convey CSLI to their service providers “voluntarily.”
…
When an individual purchases a cell phone and chooses a service provider, he expects the provider will, at a minimum, route outgoing and incoming calls and text messages. As most cell phone users know all too well, proximity to a cell tower is necessary to complete these tasks. Anyone who has stepped outside to “get a signal,” or has warned a caller of a potential loss of service before entering an elevator, understands, on some level, that location matters.
…
If it were otherwise, courts would frequently need to parse business records for indicia of what an individual knew he conveyed to a third party. For example, when a person hands his credit card to the cashier at a grocery store, he may not pause to consider that he is also “conveying” to his credit card company the date and time of his purchase or the store's street address. But he would hardly be able to use that as an excuse to claim an expectation of privacy if those pieces of information appear in the credit card company's resulting records of the transaction. Cf. United States v. Phibbs (Defendant “did not have both an actual and a justifiable privacy interest in … his credit card statements.”).
…
In their efforts to avoid the third-party doctrine, Defendants attempt to redefine it. They maintain that the third-party doctrine does not apply to historical CSLI because a cell phone user does not “actively choose[] to share” his location information. Defendants' Br. at 30. Such a rule is nowhere to be found in either Miller 1976 SCC OnLine US SC 70, 425 US 435 (1976) or Smith 1979 SCC OnLine US SC 128, 442 US 735 at pp. 743-44 (1979). Moreover, this purported requirement cannot be squared with the myriad of federal cases that permit the government to acquire third-party records, even when individuals do not “actively choose to share” the information contained in those records.
…
Thus, the redefinition of the third-party doctrine that Defendants advocate not only conflicts with Supreme Court doctrine and all the CSLI cases from our sister circuits, but is also at odds with other established circuit precedent.
C.
In another attempt to avoid the third-party doctrine, Defendants rely on a factual argument long rejected by the Supreme Court and a series of cases involving the content of communications to support their assertion that historical CSLI is protected by the Fourth Amendment.
First, Defendants emphasize that cellphone use is so ubiquitous in our society today that individuals must risk producing CSLI or “opt out of modern society.” Defendants' En Banc Br. at 11. Defendants contend that such widespread use shields CSLI from the consequences of the third-party doctrine and renders any conveyance of CSLI “not voluntary,” for [l]iving off the grid … is not a prerequisite to enjoying the protection of the Fourth Amendment.” Id.
But the dissenting justices in Miller 1976 SCC OnLine US SC 70, 425 US 435 (1976) and Smith 1979 SCC OnLine US SC 128, 442 US 735 at pp. 743-44 (1979) unsuccessfully advanced nearly identical concerns.
…
The Supreme Court has thus twice rejected Defendants' theory. Until the Court says otherwise, these holdings bind us.
Second, Defendants rely on cases that afford Fourth Amendment protection to the content of communications to suggest that CSLI warrants the same protection.
…
The Supreme Court has thus forged a clear distinction between the contents of communications and the non-content information that enables communications providers to transmit the content. CSLI, which identifies the equipment used to route calls and texts, undeniably belongs in the non-content category. As the Sixth Circuit recently recognized, CSLI is non-content information because “cell-site data — like mailing addresses, phone numbers, and IP addresses — are information that facilitate personal communications, rather than part of the content of those communications themselves.” Carpenter 2016 WL 1445183, at *4 (6th Cir 13-4-2016).
…
Outrage at the amount of information the Government obtained, rather than concern for any legal principle, seems to be at the heart of Defendants' arguments.
…
Defendants' answer appears to rest on a misunderstanding of the analysis embraced in the two concurring opinions in Jones. There, the concurring justices recognized a line between “short-term monitoring of a person's movements on public streets,” which would not infringe a reasonable expectation of privacy, and “longer term GPS monitoring,” which would. Jones 132 S Ct 945 at p. 949 (2012), S Ct at 964 (Alito, J., concurring in the judgment); see also id. at 955 (Sotomayor, J., concurring). But Jones involved government surveillance of an individual, not an individual's voluntary disclosure of information to a third party. And determining when government surveillance infringes on an individual's reasonable expectation of privacy requires a very different analysis.
In considering the legality of the government surveillance at issue in Jones 132 S Ct 945 at p. 949 (2012). Justice Alito looked to what a hypothetical law enforcement officer, engaged in visual surveillance. could reasonably have learned about the defendant. He concluded that four weeks of GPS monitoring by the government constituted a Fourth Amendment “search” because “society's expectation” had always been “that law enforcement agents and others would not — and indeed, in the main, simply could not — secretly monitor and catalogue” an individual's movements in public for very long. Id. at 964 (Alito, J., concurring in the judgment) (emphasis added). In other words, direct surveillance by the government using technological means may, at some point, be limited by the government's capacity to accomplish such surveillance by physical means. 750 F Supp 2d 384 at p. 392 (D Mass 2010) However, society has no analogous expectations about the capacity of third parties to maintain business records. Indeed, we expect that our banks, doctors, credit card companies, and countless other third parties will record and keep information about our relationships with them, and will do so for the entirety of those relationships — be it several weeks or many years. Third parties can even retain their records about us after our relationships with them end; it is their prerogative, and many business-related reasons exist for doing so. This is true even when, in the aggregate, these records reveal sensitive information similar to what could be revealed by direct surveillance. For this reason, Justice Alito's concern in Jones 132 S Ct 945 at p. 949 (2012) is simply inapposite to the third-party doctrine and to the instant case. Here, Defendants voluntarily disclosed all the CSLI at issue to Sprint/Nextel.
…
Intrinsic to the doctrine is an assumption that the quantity of information an individual shares with a third party does not affect whether that individual has a reasonable expectation of privacy.
…
Of course, in the face of rapidly advancing technology, courts must “assure[] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo 2001 SCC OnLine US SC 61, 533 US 27 at p. 34 (2001). The Supreme Court has long concluded that the third-party doctrine does this. Thus the Court has never held that routing information, like CSLI, shared with third parties to allow them to deliver a message or provide a service is protected under the Fourth Amendment. Perhaps this is implicit acknowledgment that the privacy-erosion argument has a flip-side: technological advances also do not give individuals a Fourth Amendment right to conceal information that otherwise would not have been private.
Moreover, application of the third-party doctrine does not render privacy an unavoidable casualty of technological progress — Congress remains free to require greater privacy protection if it believes that desirable. The legislative branch is far better positioned to respond to changes in technology than are the courts. See Jones 132 S Ct 945 at p. 949 (2012) (Alito, J., concurring in the judgment) (“A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.”); see also Application (Fifth Circuit), In re (explaining that the proper “recourse” for those seeking increased privacy is often “in the market or the political process”). The very statute at issue here, the Stored Communications Act (SCA), demonstrates that Congress can — and does — make these judgments. The SCA requires the government to meet a higher burden when acquiring “the contents of a wire or electronic communication” from “a provider of electronic communication service” than when obtaining “a record … pertaining to a subscriber … or customer” from the provider. 18 U.S.C. § 2703(a), (c) (emphasis added). It requires the executive to obtain judicial approval, as the Government did here, before acquiring even non-content information. Id. § 2703(c), (d). And the SCA is part of a broader statute, the Electronic Communications Privacy Act of 1986 (ECPA), which Congress enacted in the wake of Smith 1979 SCC OnLine US SC 128, 442 US 735 at pp. 743-44 (1979). See Pub. L. No. 99-508, 100 Stat. 1848.”
33. Wilkinson, J. concurred, writing that decisions regarding the Fourth Amendment's privacy protections should be left to Congress. He held as follows:
“Finally, Congress imparts the considerable power or democratic legitimacy to a high stakes and highly controversial area. The emergence of advanced communication technologies has set off a race between criminal enterprises on the one hand and law enforcement efforts on the other. Modern communication devices — even as they abet the government's indigenous tendencies to intrude upon our privacy — also assist criminal syndicates and terrorist cells in inflicting large-scale damage upon civilian populations. Appellants' strict standard of probable cause and a warrant even for non-content information held by third parties thus risks an imbalance of the most dangerous sort, for it allows criminals to utilize the latest in technological development to commit crime and hamstrings the ability of law enforcement to capitalize upon those same developments to prevent crime. The fact that the appellants in this case were convicted of Hobbs Act violations and brandishing offenses cannot obscure the implications of their proposed standards for much more serious threats down the road.
…
It is human nature, I recognize, to want it all. But a world of total privacy and perfect security no longer exists, if indeed it ever did. We face a future of hard tradeoffs and compromises. as life and privacy come simultaneously under siege. How sad, near the very inception of this journey, for appellants to adopt the most stringent of Fourth Amendment standards, to discard the great values of democratic compromise, and to displace altogether the legislative role.”
However, Wynn, J. declined to apply the third-party doctrine dissenting with the majority view. These cases show the feasibility of a contextual approach to privacy expectations.
VI. Privacy rights under Singapore Constitution
34. Similarly, in a recent decision rendered by the Apex Court in Singapore “privacy” has not been elevated to a constitutionally protected fundamental right. This case considered the same issues which were considered by this Hon'ble Court in Naz Foundation case (2014) 1 SCC 1. The same is clear from the following extract of the Singapore Apex Court decision rendered in Lim Meng Suang v. Attorney General 2014 SGCA 53, which reads as under:
43. The arguments raised by Mr Ravi and by Ms Barker on Article 9 in the present appeals are different. Ms Barker argues that the right to life and personal liberty under Article 9(1) should include a limited right to privacy and personal autonomy allowing a person to enjoy and express affection and love towards another human being. Mr Ravi, on the other hand, contends that Section 377A is vague, arbitrary and absurd.
44. In so far as Ms Barker's arguments are concerned, our view is that the right to privacy and personal autonomy which she canvassed should not be read into the phrase “life or personal liberty” in Article 9(1) for three reasons.
48. In a related vein, foreign cases that have conferred an expansive Constitutional right to life and liberty should be approached with circumspection because they were decided in the context of their unique social, political and legal circumstances. For example, the Supreme Court of India has taken an expansive view of the right to life to include an individual's right to health and medical care. This approach must be understood in the context of India's social and economic conditions (see Yong Vui Kong at [83]—[84]). A similarly broad approach has been adopted in the US because of the due process clauses in the Fifth and Fourteenth Amendments to the US Constitution, which are materially different from our Article 9(1).
49. Indeed, it is significant that Ms Barker herself conceded that the private law relating to privacy was a developing one. It is clear that Lim and Chee (and likewise, Tan in CA 125/2013) cannot obtain by the (constitutional) backdoor what they cannot obtain by the (private law) front door. Indeed, that would be a wholly inappropriate utilisation of the existing body of Constitutional law (which serves a quite different function). More importantly, as we have already noted above (at [30]), Lim and Chee base their Article 9(1) rights on a narrow conception of the right to privacy, viz, that the right to life and personal liberty under Article 9(1) should include a limited right to privacy and personal autonomy allowing a person to enjoy and express affection and love towards another human being. Once again, such a right ought, in our view, to be developed by way of the private law on privacy instead. Indeed, we also observe that the right claimed by Lim and Chee, although of an apparently limited nature, is, in point of fact, not only vague and general, but also contains within itself (contradictorily) the seeds of an unlimited right. Put simply, such a right could be interpreted to encompass as well as legalise all manner of subjective expressions of love and affection, which could (in turn) embody content that may be wholly unacceptable from the perspective of broader societal policy. At this juncture, we are, of course, back to “square one”, so to speak, for this brings us back (in substance at least) to the issue of whether or not Section 377A ought to enforce broader societal morality.”
VII. Protection of privacy laws by the countries Joining European Union
35. Apart from above in the following countries which joined European Union and have adopted EU Data Protection Directive No. 95/46/EC, have the following framework of law for granting privacy to its citizen:
36. It deserves to be pointed out that in the context of EU directive for Data protection, the term “Data” is not restricted to electronic/computer data but the said term is used as an overarching term including privacy of an individual in general. The term “personal data” is defined as under:
“personal data” shall mean any information relating to an identified or identifiable natural persons (data subject) an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity:
Country Legal position Germany The main legal source of data protection in Germany is the Federal Data Protection Act (Bundesdatenschutzgesetz in German) (BDSG) which implements the European Union Data Protection Directive No. 95/46/EC. Additionally, each German State has a data protection law of its own. In principle, the data protection acts of the individual states intend to protect personal data from processing and use by public authorities of the States whereas the BDSG intends to protect personal data from processing and use by federal public authorities and private bodies. Enforcement is through the data protection authorities of the German States. The competence of the respective State authority depends on the place of business of the Data Controller. United Kingdom As a member of the European Union, the United. Kingdom. implemented the EU Data Protection Directive No. 95/46/EC in March 2000 through the Data Protection Act, 1998 (Act). Enforcement is through the Information Commissioner's Office (ICO). In common with the rest of the European Union, the United Kingdom will adopt the General Data Protection Regulation (GDPR) from May 2018. When the United Kingdom leaves the European Union it will, in theory, be free to adopt its own data protection laws. Whilst it is widely expected that the
United Kingdom will remain close to the standard set by the GDPR, it is currently too early to predict with any degree of certainty the extent to which future UK data protection laws will diverge from those of the European Union. France Law No. 78 17 of 6-1-1978 on “Information Technology. Data Files and Civil Liberty” (‘Law’) is the principal law regulating data protection in France. The EU Data Protection Directive No. 95/46/EC was implemented via Law No. 2004-801 of 6-8-2004 which amended the Law. Enforcement of the Law is principally through the “Commission Nationale de l'Informatique et des Libertes” (CNIL). The CNIL is responsible for ensuring that information technology remains at the service of citizens, and does not jeopardise human identity or breach human rights, privacy or individual or public liberties. Switzerland The processing of personal data is mainly regulated by the Federal Act on Data Protection of 19-6-1992 (DPA) and its ordinances, i.e. the Ordinance to the Federal Act on Data Protection (DP0) and the Ordinance on Data Protection Certification (ODPC). In addition, the processing of personal data is further restricted by provisions in other laws, mainly with regard to the public sector and regulated markets. It should be noted that a substantial revision of the DPA has just been initiated, the implementation of which is however, not to be expected before 2018. The revision of the DPA aims to strengthen data protection in general and to align the Swiss DPA with the requirements of the EU General Data Protection Regulation (GDPR), in order to facilitate compliance with Swiss companies with those aspects of the GDPR that are applicable to controllers or processors outside of the EU. Italy The Italian law applicable on privacy issues is the Legislative Decree No. 196 of 30-6-2003 (Codice in materia di protezionedeidatipersonali, the “Privacy Code”). The Privacy Code implements Directives No. 95/46/EC, 2002/58/EC and 2009/12/EC. As a general rule, processing of personal (non-sensitive) data by private entities or profit seeking public bodies is only allowed if the data subject gives his/her express consent (Section 23 of the Privacy Code). Spain As a member of the European Union, Spain formally implemented the EU Data Protection Directive No. 95/46/EC in November 1999 with the Special Data Protection Act, 1999 (the Act, also known as the “LOPD”
in Spain). Nevertheless, from 1992, Spain already had a Data Protection Act (“Lortad”) that was fully consistent with most of the contents of the EU Data Protection Directive No. 95/46/EC. The Act, simply represents an up-to-date version of Lortad, rather than being a major change in the legal framework. Enforcement is through the Spanish Data Protection Commissioner's Office (AEPD). Its last amendment took place in March 2011. Iceland The governing legislation on data protection is Act 77 of 2000 on the Protection and Processing of Personal Data (Data Protection Act), which implemented EU Data Protection Directive No. 95/46/EC. All electronic processing of personal data, which falls under the Data Protection Act, must be notified to the Icelandic Data Protection Authority, by the controller of the data, unless an exemption applies. Turkey The Turkish Data Protection Law No. 6698 (DP Law), which is based on EU Directive No. 95/46/EC, came into force on 7-4-2016. In the DP Law, personal data was described as “Any information relating to an identified or identifiable natural person”. The new DP Law introduces two bodies to watch over and regulate data processing and transfer activities. These are the Data Protection Board and the Data Protection Authority. The Data Protection Board is an independent decision-making body. Netherlands The Netherlands implemented the EU Data Protection Directive No. 95/46/EC on 1-9-2001 with the Dutch Personal Data Protection Act (Wbp). Enforcement is through the Dutch Data Protection Authority (AutoriteitPersoonsgegevens). Unless an exemption applies, Data Controllers who process personal data by automatic means must notify the AutoriteitPersoonsgegevens so that their processing of personal data may be registered and made public. Changes to the processing of personal data will require the notification to be amended. Bulgaria Bulgaria implemented the EU Data Protection Directive No. 95/46/EC with the Personal Data Protection Act (In Bulgarian:), promulgated in State Gazette No. 1 of 4-1-2002, as amended periodically (Act). The Act came into force on l-1-2002. The Act was last amended by the State Gazette, Issue No. 15 of 15-2-2013. Currently, a new Bulgarian data protection law is in process of discussion and is being prepared by a group of experts, including
experts from the Bulgarian Data Protection Authority. The new law is expected to be adopted by May 2018 and to create a new framework in connection to Regulation (EU) No. 2016/679. The Bulgarian data protection authority (DPA) is the Personal Data Protection Commission. Unless an exemption applies, prior to initiating any personal data processing data controllers must apply for registration with the DPA. The registration covers the Data Controller and the personal data registers controlled by it. Finland Finland is a member of the European Union and has implemented the EU Data Protection Directive No. 95/46/EC with the Personal Data Act 523 of 1999 (Act) (HenkilÖtietolaki) in June 1999. Other important Finnish laws concerning data privacy and protection are the Code for Information Society and Communications Services 917/2014 (Information Society Code) (Tietoyhteiskuntakaari) of 1-1-2015, which aims to inter alia ensure the confidentiality of electronic communication and the protection of privacy, and the Act on the Protection of Privacy in Working Life 759/2004 (Working Life Act) (Lakiyksityisyydensuojastatyöelämässä), which aims to promote the protection of privacy and other rights safeguarding the privacy in working life. Information Society Code is an ambitious effort to collect the relevant laws relating to information society under a single statute. The Information Society Code contains mostly the same provisions as the preceding laws, but it combines a large quantity of different provisions under a single law and covers a large area of legislation. The Working Life Act includes some specific provisions on privacy issues relating to employment and work environments such as right to monitor employees' email communication. Ireland The core Irish data protection law is comprised in the Data Protection Act, 1988 (1988 Act) as amended by the Data Protection (Amendment) Act, 2003 (2003 Act) [together the Data Protection Acts (DPA)]. The 2003 Act implemented the EU Data Protection Directive No. 95/46/EC (Data Protection Directive). In addition to the DPA, the European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations, 2011 (‘ePrivacy Regulations’) set out data protection rules in relation to direct marketing and electronic networks and services, including location data and cookies.
VIII. Analysis of laws pertaining to privacy in countries where right to privacy has been established under their respective Constitution
Country Legal position Russia Fundamental provisions of data protection law in Russia can be found in the Russian Constitution, international treaties and specific laws. Russia is a member of the Strasbourg Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (Convention) (ratified by Russia in 2006) and the Russian Constitution establishes the right to privacy of each individual (Articles 23 and 24). Most rules are found in specific legislation, particularly the Data Protection Act 152 FZ dated 27-7-2006 (DPA) and various regulatory acts adopted to implement the DPA as well as other laws, including the Information, Information Technologies and Information Protection Act 149 FZ dated 27-7-2006 establishing basic rules as to the information in general and its protection. In addition, the Russian Labour Code contains provisions on the protection of employees' personal data (Part XIV). Other laws may also contain data protection provisions which implement the provisions of DPA in relation to specific areas of State services or industries. On 22-7-2014 notable amendments to the DPA were adopted and came into force on 1-9-2015. The amendments require all personal data operators to store and process any personal data of Russian individuals within databases located in Russia (subject to few exceptions). The penalty for violation of this requirement is ultimately the blocking of websites involving unlawful handling of Russian personal data. A Register of Infringers of Rights of Personal Data Subjects shall be established by the Roscomnadzor and from there and the Roscomnadzor may move to block websites. Chile Personal Data Protection is addressed in several specific laws, as well as scattered provisions in related or complementary laws and other legal authority: (i) Constitution of the Republic of Chile, Article 19 N°, 4: establishes the ‘respect and protection of the public and private life, and the honour of the person and its family’. Any person who by arbitrary or illegal
Act or omission suffers a deprivation, perturbation or threat to this right may file a Constitutional Protection Action. (ii) Law 19,628 “On the protection of private life”, commonly referred as “Personal Data Protection Law” (PDPL): mainly defines and refers to the treatment of personal information in public and private databases. Last modified: 17-2-2012. (iii) Law 20,285, “On the Access to Public Information”: sets forth the Public Function Transparency Principle, the individual right to access the information of Public Administration bodies, and the procedures and exceptions thereof. (iv) Law 20,575: “Establishes the Destination Principle' on the Treatment of personal data”: incorporates additional rules when treating economic and debt-related personal data. (v) General Law on Banks, Article 154, establishes the Banking Secrecy: holds that, subject to certain specific exemptions, all deposits are secret, and related information can be given only to the account's owner or designated representative. (vi) Law 19,223, “Criminal Conducts related to Informatics”: establishes sanctions for those who breach and unlawfully access and/or use the information available in electronic databases. Argentina Section 43 of the Federal Constitution grants citizens expeditious judicial action to gain access to information about them contained in public and private databases and to demand its amendment, updating, confidentiality, or suppression if it is incorrect. Personal Data Protection Law Number 25,326 (the PDPL), enacted in October 2000, provides much broader protection of personal data closely following Spain's data protection law. On 30-6-2003, the European Commission recognised that Argentina provides an “adequate” level of protection of personal data, in line with the Data Protection Directive No. 95/46/EC. Thailand At present, Thailand does not have any general statutory law governing data protection or privacy.
However, the Constitution of the Kingdom of Thailand does recognise the protection of privacy rights. In addition, statutory laws in some specific areas (such as telecommunications, banking and financial businesses (Specific Businesses) as well as other non-business related laws, such as certain provisions under Thai Penal Code and the Child Protection Act B.E. 2543 (2003), do provide a certain level of protection against any unauthorised collection, processing, disclosure and transfer of personal data. Recently, the draft Personal Information Protection Act (Draft), which has been reviewed by the Council of State, was given to the Committee for House of Representative Coordination to review and analyse if there are any practical issues on applying the law and how the Data Protection Committee should be formed. The Draft is being reviewed by the Office of the Public Sector Development Commission and will be submitted to the Cabinet for approval later. The current Draft provides protection of personal data by restricting the gathering, using, disclosing and altering of any personal data without the consent of the data owner. The Draft also imposes both criminal penalties and civil liability for any violation of the Draft and calls for the establishment of a Protection of Personal Data Commission to regulate compliance with the Draft. Colombia Article 15 of the Colombian Constitution sets forth fundamental rights to intimacy, good name or reputation and data protection. Law 1266/08 (Law 1266), reviewed by the Colombian Constitutional Court in Decision C 1011/08, regulates the collection, use and transfer of personal information regarding monetary obligations related to credit, financial and banking services. Law 1581 of 2012 (Law 1581), reviewed by the Colombian Constitutional Court in Decision C-748/11, contains comprehensive personal data protection regulations. This law is intended to implement the Constitutional right to know, update and rectify information gathered about them in databases or files, enshrined in Article 20 of the Constitution, as well as other rights, liberties and Constitutional guarantees referred to in Article 15 of the Constitution.
IX. Vague concept cannot be elevated to a fundamental right status
37. It is submitted that before elevation of any concept/statutory right to the status of a “protected and enforceable constitutional fundamental right”, it is essential to lay down its contours, so as to enable the State, as well as individuals, to precisely measure as to what aspect/action the said fundamental right seeks to protect. If the said right would not be able to clearly spell out as to what action/aspect it seeks to protect, protection of the same by the State would become impossible and importantly there would be no “judicially discernible and manageable standard” to protect and enforce the said right.
38. If right to privacy (statutorily protected under various statutes with specificities) is conferred a status of constitutionally enforceable and protected and undefined fundamental right, then it would have both private law as well as public law implications. In such a scenario the State will have to protect such undefined and subjective individual specific right of each individual from other private individuals also. The authorities which are “State” within the meaning of Article 12 including private entities discharging “public functions” will be amenable to and answerable for an alleged violation of a right which an individual — in his own subjective manner — treats to be his right of “Privacy”.
39. Protection of the said right of an individual from another individual will become impossible, as, such another individual will not be able to know with reasonable certainty as to what, in this regard, are the limits of his lawful conduct which he must not transgress. Similar would be the position of State inasmuch as in such a situation, State would also not know to as what aspect of human conduct would be constitutionally protected and what aspect can be legitimately regulated by the State. In such an ambiguous state possibility of the State inadvertently violating either privacy of such other individual or perceived subjective privacy of such individuals cannot be ruled out.
40. If this ambiguous, vague and uncertain subjective concept of “privacy” is conferred constitutional status of protected fundamental right then the State will be mandated to enforce it. It is most important to note that if the said right is declared to be a fundamental right, the State may have to provide for penal consequences for breach thereof. Also for breach thereof, the State will have to provide for penal provision.
41. In this context, it has been well settled by a series of judicial decision rendered by this Hon'ble Court that a vague and uncertain law cannot remain in the statute book. Reliance in this regard is placed on the judgment of this Hon'ble Court rendered in A.K. Roy v. Union of India (1982) 1 SCC 271 wherein this Hon'ble Court held as under:
61. In making these submissions counsel seem to us to have overstated their case by adopting an unrealistic attitude. It is the that the vagueness and the consequent uncertainty of a law of preventive detention bears upon the unreasonableness of that law as much as the uncertainty of a punitive law like the Penal Code does. A person cannot be deprived of his liberty by a law which is nebulous and uncertain in its definition and application. But in considering the question whether the expressions aforesaid which are used in Section 3 of the Act are of that character, we must have regard to the consideration whether the concepts embodied in those expressions are at all capable of a precise definition. The fact that some definition or the other can be formulated of an expression does not mean that the definition can necessarily give certainty to that expression. The British Parliament has defined the term ‘terrorism’ in Section 28 of the Act of 1973 to mean “the use of violence for political ends”, which, by definition includes “any use of violence for the purpose of putting the public or any section of the public in fear”. The phrase ‘political ends’ is itself of an uncertain character and comprehends within its scope a variety of nebulous situations. Similarly, the definitions contained in Section 8(3) of the Jammu & Kashmir Act of 1978 themselves depend upon the meaning of concepts like “overawe the government”. The formulation of definitions cannot be a panacea to the evil of vagueness and uncertainty. We do not, of course, suggest that the legislature should not attempt to define or at least to indicate the contours of expressions, by the use of which people are sought to be deprived of their liberty. The impossibility of framing a definition with mathematical precision cannot either justify the use of vague expressions or the total failure to frame any definition at all which can furnish, by its inclusiveness at least, a safe guideline for understanding the meaning of the expressions used by the legislature. But the point to note is that there are expressions which inherently comprehend such an infinite variety of situations that definitions, instead of lending to them a definite meaning, can only succeed either in robbing them of their intended amplitude or in making it necessary to frame further definitions of the terms defined. Acts prejudicial to the ‘defence of India’, ‘security of India’, ‘security of the State’, and ‘relations of India with foreign powers’ are concepts of that nature which are difficult to encase within the straitjacket of a definition. If it is permissible to the legislature to enact laws of preventive detention, a certain amount of minimal latitude has to be conceded to it in order to make those laws effective. That we consider to be a realistic approach to the situation. An administrator acting bona fide, or a court faced with the question as to whether certain acts fall within the mischief of the aforesaid expressions used in Section 3, will be able to find an acceptable answer either way. In other words, though an expression may appear in cold print to be vague and uncertain, it may not be difficult to apply it to life's practical realities. This process undoubtedly involves the possibility of error but then, there is hardly any area of adjudicative process which does not involve that possibility.
62. The requirement that crimes must be defined with appropriate definiteness is regarded as a fundamental concept in criminal law and must now be regarded as a pervading theme of our Constitution since the decision in Maneka Gandhi (1978) 1 SCC 248. The underlying principle is that every person is entitled to be informed as to what the State commands or forbids and that the life and liberty of a person cannot be put in peril on an ambiguity. However, even in the domain of criminal law, the processes of which can result in the taking away of life itself, no more than a reasonable degree of certainty has to be accepted as a fact. Neither the criminal law nor the Constitution requires the application of impossible standards and therefore, what is expected is that the language of the law must contain an adequate warning of the conduct which may fall within the proscribed area, when measured by common understanding. In criminal law, the legislature frequently uses vague expressions like ‘bring into hatred or contempt’, or ‘maintenance of harmony between different religious groups’, or likely to cause disharmony or … hatred or ill will', or ‘annoyance to the public’ [see Sections 124-A, 153-A(1)(b), 153-B(1)(c), and 268 of the Penal Code]. These expressions, though they are difficult to define, do not elude a just application to practical situations. The use of language carries with it the inconvenience of the imperfections of language.
(emphasis supplied)
42. Similarly this Hon'ble Court in Shreya Singhal v. Union Of India. (2015) 5 SCC 1 held as under:
“55. The US Supreme Court has repeatedly held in a series of judgments that where no reasonable standards are laid down to define guilt in a section which creates an offence, and where no clear guidance is given to either law abiding citizens or to authorities and courts, a section which creates an offence and which is vague must be struck down as being arbitrary and unreasonable. Thus, in Musser v. Utah 1948 SCC OnLine US SC 20, 333 US 95 (1948), a Utah statute which outlawed conspiracy to commit acts injurious to public morals was struck down.
85. These two cases illustrate how judicially trained minds would find a person guilty or not guilty depending upon the Judge's notion of what is “grossly offensive” or “menacing”. In Collins case, both the Leicestershire Justices and two Judges of the Queen's Bench would have acquitted Collins whereas the House of Lords convicted him. Similarly, in the Chambers case, the Crown Court would have convicted Chambers whereas the Queen's Bench acquitted him. If judicially trained minds can come to diametrically opposite conclusions on the same set of facts it is obvious that expressions such as “grossly offensive” or “menacing” are so vague that there is no manageable standard by which a person can be said to have committed an offence or not to have committed an offence. Quite obviously, a prospective offender of Section 66-A and the authorities who are to enforce Section 66-A have absolutely no manageable standard by which to book a person for an offence under Section 66-A. This being the case, having regard also to the two English precedents cited by the learned Additional Solicitor General, it is clear that Section 66-A is unconstitutionally vague.
(emphasis supplied)
43. The concept of privacy is so inherently vague, uncertain, elastic and subjective that in no circumstance it can convey an adequate warning of the conduct which may fall within the proscribed area, when measured by common understanding. Furthermore, it is also clear that even judicially trained minds have also come to diametrically opposite conclusions on the same set of facts, while dealing with the cases of personal privacy that it makes it obvious that expressions “privacy is so vague that there is no manageable standard by which a person can be said to have committed an breach or not to have committed a breach of the said concept.”
X. Privacy is not a fundamental right but only a legitimate claim/interest covered by the Constitutional ethos having sanction of Common Law — Every such claim or interest of the society/individual cannot be elevated to the status of fundamental right
44. Conceptually, every human desire, if interpreted liberally can be traced to the language used in Article 21 of the Indian Constitution. However, not every human desire can be guaranteed and or protected under the said article. The concept of privacy, both in private law field as well in public law field is at the best a legitimate “claim” or an “interest” having sanction of Common Law. It is respectfully submitted that any such “claim” or “interest” which have sanction of common law and are relatable to any of the guaranteed fundamental rights under our Constitution cannot, by way of judicial interpretation, be elevated to the status of an independent fundamental right enforceable directly by the Constitutional Courts including this Hon'ble Court under Article 32 of the Constitution.
45. That is so, because these common law “interest” or “claims” have both positive, as well as, negative obligation and implication in private as well as public law spheres. That is to say that these common law “interest” or “claims”, on occasion can have positive impact on State and society which promotes constructive/positive development of State laws, individuals and society. Whereas, at the same time it can have negative impact/implication on State and society, which thus impairs constructive and positive development of State laws, individuals and society.
46. It is respectfully submitted that wherever and whenever such “claim” or “interests” have a negative obligation/implication on constructive development of society/individual, it cannot be conferred with the status of protected fundamental right, as it is deemed that guaranteed fundamental rights only have positive obligations qua individuals and State and have no negative impact/implication on constructive development of society/individual.
47. In such circumstances, it becomes a policy decision to ascertain as to which part of the activity has a positive obligation towards State and fellow individuals and thus requires protection and which part of the activity has a negative implication on betterment and constructive development of the State and its citizens and thus requires to be declared as outlawed.
48. Thus ascertainment and delineation of this positive obligation viz. negative implication on State and its citizens, being essentially a policy decision, should be best left to legislature to be protected and or regulated through statutory framework. It is submitted that if such common law claims and interests are conferred the status of an overarching protected fundamental right, by way of judicial interpretation then it would amount to this Hon'ble Court venturing into a policy-making decision, which is impermissible in law. It is submitted that by application of “doctrine of constitutional implication/limitation” this Hon'ble Court has in past also refrained from declaring any new specie of fundamental right which though was directly relatable to the existing fundamental rights guaranteed under ‘Part III of Indian Constitution. Illustratively the said examples are as under:
48.1. Article 21 expressly provides for positive obligation of “right to life” but the said the guaranteed “right to life” does not include within its gamut “right to die” as it had a negative implication/impact on society and State. It is stated that though this claim of “right to die” can be easily read into or can be said to be inextricably relatable to right to life protected under Article 21) since this “right to die” was considered to be having a negative impact/implication on the society, this Hon'ble Court (though the Constitution Bench of this Hon'ble Court is seized of the said matter) has left it to the competent legislature to come up with the suitable legislation either expressly accepting such claim and protecting the same through statutory provisions or rejecting the said claim.
48.2. Similarly, the claim of “right to know” has been traced to Article 19(1)(a) of the Constitution, however, since this claim of “right to know” also had a negative application/implication of not to know about the personal information of fellow citizens, therefore, it was left by this Hon'ble Court for competent legislature come up with a statutory framework to statutorily regulate the said right to know. The said “right to know” which can be traced to Article 19(1)(a) of the Constitution is therefore now regulated through provisions of the Right to Information Act.
48.3. Likewise, right to education was read by this Hon'ble Court as a fundamental right guaranteed under Article 21 of the Constitution in Unni Krishnan, J.P. v. State of A.P. (1993) 1 SCC 645 However, in the year 2002 when legislature deemed it fit and proper, it was specifically declared by the legislature as guaranteed fundamental right by way of a constitutional amendment. Furthermore, the said right was conferred subject to condition that the right to free and compulsory education would be extended not to every individual but only to children of age between 6 years to 14 years in such manner as determined by the State through appropriate law.
XI. Dangers of expanding the meaning of rights conferred under Part III of our Constitution
49. It is submitted that there are inherent dangers in conferring an expansive meaning to rights guaranteed under Part III of the Constitution which can be illustratively brought out through following examples.
50. It is submitted that right to life guaranteed under Article 21 also includes “right to defend” one's own body. “Right to defend one's own body” is also a very valuable and natural right. Further, this right has been and established common law right. Thus in this context juxtaposed with the scheme of our Indian constitution, can somebody be permitted to argue that “right to defend” is an inextricably linked facet to right to life guaranteed under Article 21 of the Indian Constitution and to secure his life he has a “right to keep a firearm and/or maintain a militia” on the pretext that the same is a natural right and also a common law right. Thus on this pretext can any person seek creation of a new fundamental right to keep arms and ammunition through judicial interpretation by arguing that the same is a facet of right to life guaranteed under Article 21 and this right is already a recognised common law right and has been specifically guaranteed under other jurisdiction of the worlds e.g. US Constitution by way of Second amendment.
51. Similarly, forensic analysis of genetic material is an accepted mode of criminal investigation. For example, fingerprints analysis of a suspect, semen analysis to identify rape accused are effective procedures which are employed by investigating ‘agencies to bring a criminal to book. It is submitted that giving expansive meaning to the rights conferred under Part III, it is possible for a criminal to argue that their biometric and genetic material is private to them and using the same in criminal investigation against them would amount to violation of right against self-incrimination.
52. Thus it is respectfully submitted that any “claim” or “interest” which has a negative implication on the society and which though may appear to be necessary concomitant for exercise of already declared fundamental rights under Part III of our Constitution or are concepts which appears to be relatable to fundamental rights already guaranteed under Part III of our Constitution, cannot be conferred with the status of an independent fundamental right enforceable through Article 32 of the Constitution of India.
53. It is submitted that in such scenario it should be best left with the competent legislature to come up with suitable regulatory mechanism for first delineating such legitimate claims or interest which are necessary for constructive development of our constitutional ethos.
54. It is submitted that in this context the doctrine of constitutional implication would squarely apply. Reliance in this regard is placed on judgment of this Hon'ble Court rendered in Manoj Narula v. Union Of India . (2014) 9 SCC 1, wherein this Hon'ble Court held as under:
Doctrine of constitutional implications
75. The principle of Constitutional morality basically means to bow down to the norms of the Constitution and not to act in a manner which would become violative of the rule of law or reflectible of action in an arbitrary manner. It actually works at the fulcrum and guides as a laser beam in institution building. The traditions and conventions have to grow to sustain the value of such amorality. The democratic values survive and become successful where the people at large and the persons in charge of the institution are strictly guided by the Constitutional parameters without paving the path of deviancy and reflecting in action the primary concern to maintain institutional integrity and the requisite Constitutional restraints. Commitment to the Constitution is a facet of Constitutional morality. In this context, the following passage would be apt to be reproduced:
“If men were angels, no Government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed: and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government,’ but experience has taught mankind the necessity of auxiliary precautions. [James Madison as Publius, Federalist 51]”
(emphasis supplied)
XII. The technological advancement should be used for “good governance” and the privacy issues need to be taken care of by statutes
55. The rapidly increasing technological advancement globally and more particularly in electronic and communications field has opened several new vistas. At the hands of handful of individuals, no attempt be permitted which defeats positive and constructive efforts for “good governance” in a developing country like India on an ostensible ground of “privacy” which can be adequately taken care of by statutory provisions.
56. India is a country where substantial number of population either lives below the poverty line or just above the poverty line. Even basic necessities like food, drinking water, seeds, fertilizers, agricultural equipments and banking has not reached them.
57. Though, this Hon'ble Court is not examining validity of Aadhaar, the following facts need to be examined to satisfy the judicial conscience of this Hon'ble Court that if privacy is declared to be a fundamental right (which can always be secured by statutory provisions) all our attempts will be made to stop “good governance” and majority of the deprived population of the country would suffer.
58. Aadhaar card/number is the most widely held form of identity document with the widest coverage amongst the residents/citizens of India. This is evident from the following chart:
Identity Document Coverage Passport 6.9 Crores. Pan Card 29 Crores (approx.) EPIC Card 60 Crores (approx.) Ration Card 15.17 Crores (approx.) Driving Licence 17.37 Crores (approx.) Aadhaar 115.15 Crores
59. The use of Aadhaar is one of the classic case of good governance which can be demonstrated by one illustration. By using Aadhaar Card, the total recorded savings of the Government of India from just one scheme viz. the Direct Benefit Transfer Scheme (based upon Aadhaar) has been Rs 49,560 crores in just two years i.e. 2014-2015 and 2015-2016.
60. This not only serves public interest but the intended benefits, subsidies and services offered by the Government as a welfare State (which is its constitutional duty) reaches to correct beneficiaries weeding out fake and duplicate beneficiaries saving thousand and crores of rupees.
61. This Hon'ble Court in PUCL v. Union of India (2011) 14 SCC 331 has approved the recommendations of the High-Powered Committee headed by Justice D.P. Wadhwa, which recommended linking of Aadhaar with PDS and has encouraged State Governments to adopt the same.
62. This Hon'ble Court in State of Kerala v. Parent Teachers Assn. SNVUP School (2013) 2 SCC 705 has directed use of Aadhaar for checking bogus admissions in schools with the following observations:
“18. We are, however, inclined to give a direction to the Education Department, State of Kerala to forth with give effect to a circular dated 12-10-2011 to issue UID Card to all the school children and follow the guidelines and directions contained in their circular. Needless to say, the Government can always adopt, in future, better scientific methods to curb such types of bogus admissions in various aided schools.”
63. This Hon'ble Court, while monitoring the PILs relating to night shelters for the homeless and right to food through the public distribution system, has lauded and complimented the effort of State Governments for, inter alia, carrying out biometric identification of the head of family of each household to eliminate fictitious, bogus and ineligible BPL/AAY household cards. This is evident from the following extracts in PUCL v. Union of India (2010) 13 SCC 45.
48. In the affidavit, it is mentioned that NGO, Samya had conducted survey and identified 15,000 homeless beneficiaries of which 14,850 which have been approved for giving “homeless cards”. These cards are being prepared zonewise and the list is displayed at the office of the Assistant Commissioners/Circle Office for distribution of the special homeless cards to the beneficiaries after obtaining their biometric impressions. The NGO, Samya has also been informed to facilitate delivery of these cards to the beneficiaries and enable them to lift the specified food articles and kerosene oil allocated from the linked fair price shop/kerosene oil depot. The details have been mentioned in the AAY programme.
49. It is mentioned in the affidavit that under the Central Scheme of Food and Supplies Department, Government of NCT of Delhi is carrying out review of BPL/AAY household cards which were issued before 15-1-2009. It is simultaneously carrying out biometric identification of head of family of each household to eliminate fictitious, bogus and ineligible cards and those who have left Delhi.
53. The Delhi Government has very minutely and carefully analysed the problems of homeless people living in these shelters and is trying to provide a comprehensive programme for the homeless. We must compliment the Government of NCT of Delhi for this effort. We would like the Government of NCT of Delhi to file a further affidavit indicating what progress has been made on different fronts.
64. Similarly, this Hon'ble Court in PUCL (PDS matters) v. Union of India (2013) 14 SCC 368 had held that computerisation is going to help the public distribution system in the country in a big way and encouraged and endorsed the digitisation of database including biometric identification of the beneficiaries. In fact this Hon'ble Court had requested Mr Nandan Nilekani, the then Chairman, Uidai to suggest ways in which the computerisation process of PDS can be expedited. The following extracts from the abovementioned order is relied upon:
2. There seems to be a general consensus that computerisation is going to help the public distribution system in the country in a big way. In the affidavit it is stated that the Department of Food and Public Distribution has been pursuing the States to undertake special drive to eliminate bogus/duplicate ration cards and as a result, 209.55 lakh ration cards have been eliminated since 2006 and the annual saving of foodgrain subsidy has worked out to about Rs 8200 crores per annum. It is further mentioned in the affidavit that end-to-end computerisation of public distribution system comprises creation and management of digitised beneficiary database including biometric identification of the beneficiaries, supply chain management of TPDS commodities till fair price shops.
3. It is further stated in the affidavit that in the State of Gujarat, the process of computerisation is at an advanced stage where issue of bar coded ration cards has led to a reduction of 16 lakh ration cards. It is expected that once the biometric details are collected, this number would increase further. For the present, a reduction of 16 lakh ration cards would translate into an annual saving of over Rs 600 crores. This is just to illustrate that computerisation would go in a big way to help the targeted population of the public distribution system in the country.
4. In the affidavit it is further mentioned that the Government of India has set up a task force under the Chairmanship of Mr Nandan Nilekani, Chairman, Uidai, to recommend, amongst others, an IT strategy for the public distribution system. We request Mr Nandan Nilekani to suggest us ways and means by which computerisation process of the public distribution system can be expedited. Let a brief report/affidavit be filed by Mr Nandan Nilekani within four weeks from today.
65. This Hon'ble Court in PUCL v. Union of India (2010) 5 SCC 318 has also endorsed biometric identification of homeless persons so that the benefits like supply of food and kerosene oil available to persons who are below poverty line can be extended to the correct beneficiaries.
66. Recently, this Hon'ble Court in Lokniti Foundation v. Union of India (2017) 7 SCC 155 has approved Aadhaar based verification of existing and new mobile phone number subscribers. This is a great leap towards anonymous pre-paid sim cards which are being used either for terrorist activities or for such other similar illegal activities.
67. The fact that food security is one of the most prime concern of the Central Government which is under a mandate of National Food Security Act, 2013 also statutorily incorporates Aadhaar, would show that not only public interest is involved (as against a perceived and subjective privacy interest of few individuals) but declaration of privacy as fundamental right would open several other statutes to the vulnerability of challenge. Section 12 of the National Food Security Act, 2013 reads as under:
“REFORMS IN TARGETED PUBLIC DISTRIBUTION SYSTEM
12. (1) The Central and State Governments shall endeavour to progressively undertake necessary reforms in the Targeted Public Distribution System in consonance with the role envisaged for them in this Act.
(2) The reforms shall, inter alia, include—
(a) doorstep delivery of foodgrains to the Targeted Public Distribution System outlets;
(b) application of information and communication technology tools including end-to-end computerisation in order to ensure transparent recording of transactions at all levels, and to prevent diversion;
(c) leveraging “aadhaar” for unique identification, with biometric information of entitled beneficiaries for proper targeting of benefits under this Act;”
68. Therefore, it is humbly submitted that when Aadhaar has been adopted by several statutes and authorities across the country both pursuant to directions by this Hon'ble Court as well as legislative amendments passed by Parliament of India, this Hon'ble Court may not elevate a statutory right to the level of fundamental right which will open doors for challenge to various public interest enactments.
69. The amended Section 139-AA of the Income Tax Act which intends to expose all shell companies and curb the menace of black money, money laundering and tax evasion is already held to be constitutional by this Hon'ble Court on the challenge of Articles 14 and 19 of the Constitution in Binoy Viswam v. Union of India (2017) 7 SCC 59.
70. The object and purpose of the said amendment is also approved by this Hon'ble Court in the aforesaid judgment. Such a salutary provisions eradicating shell companies, black money and money laundering would also come under the vulnerability of being declared ultra vires. Right to privacy is declared to be a fundamental right. This is more particularly so when otherwise the Income Tax Act provides for sufficient statutory safeguards for protection of privacy.
71. When the technological advancement are taking place globally and virtually on daily basis, the Government(s) as welfare State functioning under the Constitution may come up with several regulations/programmes/schemes in the direction of good governance. Just to give an illustration, it may be pointed out that in large number of rural schools, it is found that qualified teachers appointed never come for teaching. Their fake presence is marked and a local unqualified person staying in the village teaches the students. If, in future, the presence of the qualified teachers is linked with either Aadhaar or such similar identification, it would be a great leap in the direction of imparting education in rural areas.
72. There can be several such areas where the technology can be used for larger public good and in furtherance of “good governance” while protecting the individual privacy based upon each subject being dealt with by way of a statute.
XIII. Reliance placed by the petitioners on the case law existing in other jurisdictions to interpret the Indian Constitution merits rejection
73. It is further submitted that reliance placed by the petitioners on the case law existing in other jurisdictions to interpret the Indian Constitution is liable to be rejected. It is respectfully submitted that in view of the prevailing situation, it will not be in the interest of social fabric of the country and also in the interest of justice that Indian Constitution is interpreted in the light of constitutional law prevailing in USA or any other foreign country, which has expressly provided in its Constitution a right of privacy.
74. It is submitted that in absence of Parliament in its wisdom, creating fundamental right of privacy the said right cannot be read into the Constitution even by application of doctrine of “sub silentio” or “constitutional silence”. A fortiori creating a right of privacy by interpreting the Indian Constitution in the light of the case law existing in American or any other foreign jurisdiction, will amount to doing violence with the conscious language of the Constitution.
75. It is submitted that that the thought process of Indian citizens, their societal behaviour, their socio-economic problems, etc. are different from the problems of citizens living in western countries. Their concept of privacy is strikingly different from the privacy standards prevailing in western countries. As such the standards of privacy existing in western countries ought not be embodied in Indian Constitution as the Indian Constitution shall have to be interpreted strictly in Indian context and keeping the citizens of India in mind.
76. The aforesaid principle has been duly recognised in a catena of judgements rendered by this Hon'ble Court, relevant portions of which reads as under:
76.1. In Joseph Kuruvilla Vellukunnel v. RBI 1962 Supp (3) SCR 632, AIR 1962 SC 1371, this Hon'ble Court held as under:
50. Mr Nambiar, however, joined issue on the use of the American precedents on the ground that banking in America is by grace of legislature, and is either a franchise or a privilege, which has no place in our Constitution. He added that the carrying on of business is not one of the provisions of the American Bill of Rights, nor a fundamental right, as we understand it, though by judicial construction the individual right has been brought within the Fourteenth Amendment. He, therefore, contended that American cases and American laws should not be used. In our opinion, no useful purpose will be served by trying to establish the similarities or discrepancies between the American Constitution and banking laws, on the one hand, and our Constitution and our banking laws, on the other, and we do not wish to rest our decision on the American and Japanese analogies.
75. The aid of American concepts, laws and precedents in the interpretation of our laws is not always without its dangers and they have therefore to be relied upon with some caution if not with hesitation because of the difference in the nature of those laws and of the institutions to which they apply. Mr Nambiyar relied upon these different concepts and submitted that in USA the right to carry on business is not a fundamental right but is a “franchise”, though, it has by legal interpretation, been brought within the fourteenth amendment and the doctrine of “franchise” has no place in the Indian Constitution: C.S.S. Motor Service v. State Of Madras 142, ILR 1953 Mad 304 approved in Saghir Ahmad v. State of U.P. (1955) 1 SCR 707 at p. 718, AIR 1954 SC 728 Similarly the right to form a corporation is in USA a “franchise” or a “privilege” which can be withdrawn. To apply the analogy of Banks in USA to those in India or the mode of exercise by and extent of the powers of a Controller of Currency or some similar authority will more likely than not lead to erroneous conclusions.
76.2. In M.C. Mehta v. Union of India (1987) 1 SCC 395 (Shriram - Oleum Gas), this Hon'ble Court held as under:
29. We were, during the course of arguments, addressed at great length by counsel on both sides on the American doctrine of State action. The learned counsel elaborately traced the evolution of this doctrine in its parent country. We are aware that in America since the Fourteenth Amendment is available only against the State, the courts in order to thwart racial discrimination by private parties, devised the theory of State action under which it was held that wherever private activity was aided, facilitated or supported by the State in a significant measure, such activity took the colour of State action and was subject to the Constitutional limitations of the Fourteenth Amendment. This historical context in which the doctrine of State action evolved in the United States is irrelevant for our purpose especially since we have Article 15(2) in our Constitution. But it is the principle behind the doctrine of State aid, control and regulation so impregnating a private activity as to give it the colour of State action that is of interest to us and that also to the limited extent to which it can be Indianized and harmoniously blended with our Constitutional Jurisprudence. That we in no way consider ourselves bound by American exposition of Constitutional law is well demonstrated by the fact that in Ramana Dayaram Shetty (1979) 3 SCC 489 this Court preferred the minority opinion of Douglas, J. in Jackson v. Metropolitan Edison Co. 1974 SCC OnLine US SC 224, 419 US 345 (1974) as against the majority opinion of Rehnquist, J. And again in Air India v. Nergesh Meerza (1981) 4 SCC 335 this Court whilst preferring the minority view in General Electric Co. v. Martha V. Gilbert 1976 SCC OnLine US SC 207, 429 US 125 (1976) said that the provisions of the American Constitution cannot always be applied to Indian conditions or to the provisions of our Constitution and whilst some of the principles adumbrated by the American decisions may provide a useful guide. close adherence to those principles while applying them to the provisions of our Constitution is not to be favoured, because the social conditions in our country are different.
76.3. In Automobile (Rajasthan) Transport Ltd. v. State of Rajasthan (1963) 1 SCR 491, AIR 1962 SC 1406, this Hon'ble Court held as under:
8. So far we have set out the factual and legal background against which the problem before us has to be solved. We must now say a few words regarding the historical background. It is necessary to do this. because extensive references have been made to Australian and American decisions. Australian decisions with regard to the interpretation of Section 92 of the Australian Constitution and American decisions with regard to the Commerce clause of the American Constitution. This Court pointed out in the Atiabari Tea Co. case (1961) 1 SCR 809, AIR 1961 SC 232 that it would not be always safe to rely upon the American or Australian decisions in interpreting the provisions of our Constitution. Valuable as those decisions might be in showing how the problem of freedom of trade, commerce and intercourse was dealt with in other federal constitutions, the provisions of our Constitution must be interpreted against the historical background in which our Constitution was made; the background of problems which the Constitution-makers tried to solve according to the genius of the Indian people whom the Constitution-makers represented in the Constituent Assembly. The first thing to be noticed in this connection is that the Constitution-makers were not writing on a clean slate. They had the Government of India Act. 1935 and they also had the administrative set-up which that Act envisaged. India then consisted of various administrative units known as Provinces. each with its own administrative set-up. There were differences of language, religion etc. Some of the Provinces were economically more developed than the others. Even inside the same. Province, there were under developed, developed and highly developed areas from the point of view of industries. communications etc. The problem of economic integration with which the Constitution-makers were faced was a problem with many facets.
76.4. In State Of Bihar v. Union Of India (1970) 1 SCC 67 this Hon'ble Court held as under:
13. Our attention was drawn to some provisions of the American Constitution and of the Constitution Act of Australia and several decisions bearing on the interpretation of provisions which are some what similar to Article 131. But as the similarity is only limited, we do not propose to examine either the provisions referred to or the decisions to which our attention was drawn. In interpreting our Constitution we must not be guided by decisions which do not bear upon provisions identical with those in our Constitution.
76.5. In Ashoka Kumar Thakur v. Union of India (2008) 6 SCC 1, this Hon'ble Court held as under:
188. At the outset it must be stated that the decisions of the United States Supreme Court were not applied in the Indian context as it was felt that the structure of the provisions under the two Constitutions and the social conditions as well as other factors are widely different in both the countries. Reference may be made to Bhikaji Narain Dhakras v. State of M.P. AIR 1955 SC 781, (1955) 2 SCR 589 and A.S. Krishna v. State of Madras AIR 1957 SC 297, 1957 Cri LJ 409, 1957 SCR 399 wherein this Court specifically held that the due process clause in the Constitution of the United States of America is not applicable to India. While considering the scope and applicability of Article 19(1)(g) in Kameshwar Prasad v. State of Bihar AIR 1962 SC 1166, 1962 Supp (3) SCR 369 it was observed: (AIR p. 1169, para 8)
“8. As regards these decisions of the American courts, it should be borne in mind that though the First Amendment to the Constitution of the United States reading ‘Congress shall make no law … abridging the freedom of speech …’ appears to confer no power on the Congress to impose any restriction on the exercise of the guaranteed right, still it has always been understood that the freedom guaranteed is subject to the police power—the scope of which however has not been defined with precision or uniformly.”
189. In Kesavananda Bharati case (1973) 4 SCC 225 also, while considering the extent and scope of the power of amendment under Article 368 of the Constitution of India, the Constitution of the United States of America was extensively referred to and Ray, J., held:
“1108. The American decisions which have been copiously cited before us, were rendered in the context of the history of the struggle against colonialism of the American people, sovereignty of several States which came together to form a Confederation, the strains and pressures which induced. them to frame a Constitution for a Federal Government and the underlying concepts of law and judicial approach over a period of nearly 200 years, cannot be used to persuade this Court to apply their approach in determining the cases arising under our Constitution.”
190. It may also be noticed that there are structural differences in the Constitution of India and the Constitution of the United States of America. Reference may be made to the Fourteenth Amendment to the US Constitution. Some of the relevant portions thereof are as follows:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law nor deny to any person within its jurisdiction the equal protection of the laws.”
Whereas in India, Articles 14 and 18 are differently structured and contain express provisions for special provision for the advancement of SEBCs, STs and SCs. Moreover, in our Constitution there is a specific provision under the directive principles of State policy in Part IV of the Constitution requiring the State to strive for justice social, economic and political—and to minimise the inequalities of income and endeavour to eliminate inequalities in status, facilities and opportunities (Article 38). Earlier, there was a view that Articles 16(4) and 15(5) are exceptions to Articles 16(1) and 15(1) respectively. This view was held in Southern Railway v. Rangachari AIR 1962 SC 36, (1962) 2 SCR 586 and M.R. Balaji v. State of Mysore AIR 1963 SC 649, 1963 Supp (1) SCR 439.
209. The aforesaid principles applied by the Supreme Court of the United States of America cannot be applied directly to India as the gamut of affirmative action in India is fully supported by Constitutional provisions and we have not applied the principles of “suspect legislation” and we have been following the doctrine that every legislation passed by Parliament is presumed to be constitutionally valid unless otherwise proved. We have repeatedly held that the American decisions are not strictly applicable to us and the very same principles of strict scrutiny and suspect legislation were, sought to be applied and this Court rejected the same in Saurabh Chaudri v. Union of India (2003) 11 SCC 146. Speaking for the Bench, V.N. Khare, C.J., said:
“36. The strict scrutiny test or the intermediate scrutiny test applicable in the United States of America as argued by Shri Salve cannot be applied in this case. Such a test is not applied in Indian courts. In any event, such a test may be applied in a case where a legislation ex facie is found to be unreasonable. Such a test may also be applied in a case where by reason of a statute the life and liberty of a citizen is put in jeopardy. This Court since its inception apart from a few cases where the legislation was found to be ex facie wholly unreasonable proceeded on the doctrine that constitutionality of a statute is to be presumed and the burden to prove contra is on him who asserts the same.”
76.6. In Pathumma v. State of Kerala (1978) 2 SCC 1 this Hon'ble Court held as under:
23. We have deliberately not referred to the American cases because the conditions in our country are quite different and this Court need not rely on the American Constitution for the purpose of examining the seven freedoms contained in Article 19 because the social conditions and the habits of our people are different. In this connection, in Jagmohan Singh v. State Of U.P . (1973) 1 SCC 20 at p. 27 this Court observed as follows:
“So far as we are concerned in this country, we do not have, in our Constitution any provision like the Eighth Amendment nor are we at liberty to apply the test of reasonableness with the freedom with which the Judges of the Supreme Court of America are accustomed to apply ‘the due process’ clause.”
XIV. Remedy for breach of common law right of privacy
77. It is respectfully submitted that the common law right of privacy has been duly protected by various statutes, subject to reasonable restrictions, as detailed above. In future, in case the Hon'ble Constitutional Courts of the country, finds out that on specific fact situation, privacy of individual is not adequately protected, then the constitutional court can, on case-to-case basis, issue relevant guidelines till the competent legislature steps in as done in Destruction Of Public & Private Properties v. State Of A.P. (2009) 5 SCC 212 relevant portion of which reads as under:
“17. The power of this Court also extends to laying down guidelines. In Union of India v. Assn. for Democratic Reforms (2002) 5 SCC 294 this Court observed:
“19. … it is not possible for this Court to give any directions for amending the Act or the statutory Rules. It is for Parliament to amend the Act and the Rules. It is also established law that no direction can be given, which would be contrary to the Act and the Rules.
20. However, it is equally settled that in case when the Act or Rules are silent on a particular subject and the authority implementing the same has Constitutional or statutory power to implement it, the Court can necessarily issue directions or orders on the said subject to fill the vacuum or void till the suitable law is enacted.”
18. This Court has issued directions in a large number of cases to meet urgent situations e.g.
(i) Lakshmi Kant Pandey v. Union of India (1984) 2 SCC 244
(ii) Vishaka v. State of Rajasthan (1997) 6 SCC 241
(iii) Vineet Narain v. Union of India (1998) 1 SCC 226
(iv) State of W.B. v. Sampat Lal (1985) 1 SCC 317
(v) K. Veeraswami v. Union of India (1991) 3 SCC 655
(vi) Union Carbide Corpn. v. Union of India (1991) 4 SCC 584
(vii) Delhi Judicial Service Assn. v. State of Gujarat (1991) 4 SCC 406
(viii) DDA v. Skipper Construction Co. (P) Ltd. (1996) 4 SCC 622
(ix) Dinesh Trivedi v. Union of India (1997) 4 SCC 306, Common Cause v. Union of India (1996) 1 SCC 753
(x) Supreme Court Advocates-on-Record Assn. v. Union of India (1993) 4 SCC 441”
78. It is respectfully submitted that while ascertaining the individual's right of privacy against the State action or against an individual/corporate action the Hon'ble courts would be guided by the test of arbitrariness, test of “reasonable nexus to the purpose sought to be achieved” and the “test of proportionality”. It is submitted that the test embodied under Section 8(j) RTI Act can also be applied for testing as to whether in a given fact situation, an act/conduct or any other aspect of human life is protected by privacy. As per the said test, a person would have right of privacy if there is no overwhelming public interest in disclosure of the said act/conduct or any other aspect of human life and also the said act has no relationship with any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual. As against this if it is in the larger interest of the nation or in overwhelming public interest not to keep specific kind of information private, its disclosure can be permitted in accordance with the law made by the competent legislature.
79. In nutshell, though each of the citizens of India has an inherent right of privacy, its recognition, definition and protection can be done by statutes and not as fundamental rights.
VIII. Mr Rakesh Dwivedi, Senior Advocate, for the respondents
1. This larger Bench of the Supreme Court of India has assembled to decide the issue of existence of fundamental right of privacy in Article 21 or Part III as a whole and its contours (as far as possible) in the context of an apparent conflict between previous judgments and the matrix of the Aadhar Act. The Aadhar Act requires a limited identity data disclosure for maintaining a database, only and solely, for identification purposes with an express stipulation of non-transferability. Protection and safeguards include punitive measures. In short, limited use for identification and non-transferability with punitive safeguards is the hallmark of the Aadhar Act. It does not seek to profile any person. The question therefore is “Is there a right to privacy in public domain?”, “What is the extent?”, “Whether data for mere identification would involve a privacy right?”, “What are the limitations of the State?”.
Two Caveats
2. The majority view in Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 is that the fundamental rights are not natural rights or inalienable rights. (extracts are enclosed as Annexure-A) [Compilation RD Vol. III Tab R). Even if one goes by the doctrine of basic structure they are certainly important but they can be abridged though they cannot be destroyed or emasculated. I.R. I.R Coelho (Dead) By Lrs. v. State Of T.N .. (2007) 2 SCC 1
3. Reference to “minimal governance” concept should be eschewed. It should be sufficient and appropriate to say governance as per the Constitution. That ensures respect for fundamental rights. Plea for “horizontal protection” and “minimal governance” is somewhat contradictory. Binoy Viswam v. Union of India (2017) 7 SCC 59 [Compilation RD Vol. III Tab UVW)“96
. Having said so, when it comes to exercising the power of judicial review of a legislation, the scope of such a power has to be kept in mind and the power is to be exercised within the limited sphere assigned to the judiciary to undertake the judicial review. This has already been mentioned above. Therefore, unless the petitioner demonstrates that the Parliament, in enacting the impugned provision, has exceeded its power prescribed in the Constitution or this provision violates any of the provision, the argument predicated on ‘limited governance’ will not succeed. One of the aforesaid ingredients needs to be established by the petitioners in order to succeed.”
I. Dynamics of privacy
4. Article 21 talks of life and personal liberty in conjunction. Our Court has construed “Life” as not limited to body and limbs. In fact post-birth the most important aspect of life is its protection, growth and development until demise. Therefore the dynamics and dialectics, of “Life” is important. And if “Privacy” is read into Article 21, as it should be to an extent, then the same would be true of “Privacy”.
5. Life and Privacy in “Tribal Society”, “Feudal Society”, “Industrial Society”, and “Techno-Industrial Society” would have different dimensions. So also it would vary from a Colonial State to a modern Democratic Welfare State. This is more so in the context of claims of anonymity, autonomy and identity.
6. Primeval societies existed disconnectedly, isolatedly and in small group existence. There was little need for building wide complex relations. But, leaving the tracing of intermediary growth of societies, the modern technological societies afford an opportunity to build wide network of relations which are social, political and economical. Individuals have to relate with the State too. Our growth and development depends on such relations. Today's society is therefore founded on interconnectivity and seeking of opportunities. And today's State also has grown more complex with its welfare activities dimension, need for taxation, and growing use of banks in commerce, as also growing crime and terrorism.
7. In today's society if someone wants to be completely anonymous and autonomous and does not want to disclose his identity at all then he has to turn a recluse. In the modern society the normal proclivity of an individual is to widen his network and enter into a variety of relations and seek the benefits and services both from private service providers and the Government and public bodies. Therein lies his growth and development sanctified by Article 21 of the Constitution. The necessary fallout of the man setting out of his home for the aforesaid purpose is that he has to disclose certain minimum information about his identity. Non-disclosure of identity or complete anonymity in these circumstances is not possible. To illustrate:
(i) If someone wishes to marry he/she would have to disclose who they are and what they do. May be they would have to at least state that they are not suffering from communicable or serious diseases.
(ii) If someone seeks an employment in the private/public or government sector, he would, per necessity have to disclose his identity and may be antecedents too. He may also have to agree to biometric attendance.
(iii) Every professional working in an institution would have to disclose his minimum identity data with photograph for his recognition/identification, and also blood group which would enable the institution to help save his life in the event he needs blood.
(iv) Every individual who wants to operate a smart phone or internet and wishes to download/operate applications and engage in e-commerce or e-banking, would have to disclose his minimum identity in the form of name, date of birth, telephone number, email address and the residential address.
(v) Every voter has to identify himself before casting his vote by means of showing his voter identity card, which would have certain details of identity of person including his photograph.
(vi) Similarly, a candidate seeking to contest has to disclose his personal details such as income, assets and liabilities of himself and that of his spouse, criminal antecedents, etc.
PUCL v. Union of India (2003) 4 SCC 399 [Compilation RD Vol. III Tab XYZ)
8. The aforesaid are merely some instances to show that the building of social, economic and political relations, engaging in commerce/e-commerce and engaging with government/public institutions would require minimum identity data for recognition and identification. Disclosure of thumb impressions and photographs has also become indispensable. In short, there can be no reasonable expectation of privacy in the disclosure of such and other similar data for identification. In other words, in the modern society the very growth and development of the individual would not admit a privacy claim in disclosure of data for identification.
9. The people with whom an individual relates, also have an identical interest in right to life and personal liberty and Articles 14 & 19 which give them the right to know or right to information. When an individual deals with an individual, or deals with a collectivity of individuals under an institutional umbrella then Article 21 also would impose a requirement to disclose identity information.
II. Constitutional existence of the fundamental right to privacy
10. Claim to privacy cannot be considered to be a fundamental right under the Constitution of India in generality and abstraction. Every claim to privacy in a non-penumbral zone of a specified fundamental right, must in the first instance be established as a fundamental right under Article 21 of the Constitution. The establishment would require assessment of whether the subjective expectation of privacy of the claimant is one which the court would objectively consider to reasonably be legitimate. In this regard this Court will also consider the context and the spatial domain (private or public) in which the claim of privacy is seeking recognition as a fundamental right. This approach is being followed in USA, UK and by the European Court of Human Rights.
11. A reference was made to the Preamble and Part III rights to show that there is a right to privacy under the Constitution. But it is more important to ascertain from the substantive text what is that right outside the penumbra of the specified fundamental right [Articles 14, 19, 20(3), 25]. Where a claim of privacy is asserted to fall within the penumbra of a specified fundamental right enshrined in Part III, like Articles 14, 19, 20(3) and 25(1), the claim would merely be recognised as the specified fundamental right, and the same would have no dehors existence. Its infringement would be tested on the anvil of those fundamental rights alone. Of course, if the claim falls in penumbra of more than one fundamental right then the infringement would have to be tested with respect to limitations regarding both fundamental rights, as per R.C. Cooper (1970) 1 SCC 248 doctrine. The fact that a privacy claim falls in the penumbra of a specified fundamental right, does not necessarily imply that there is generally a fundamental right to privacy under Article 21 and the same is inalienable.
12. It is instructing to refer to what is held in Maneka Gandhi v. Union of India (1978) 1 SCC 248 in the context of freedom of speech and expression of the Constitution. This Court observed as below:
(pp. 306-307):
“29. It is not enough that a right claimed by the petitioner flows or emanates from a named fundamental right or that its existence is necessary in order to make the exercise of the named fundamental right meaningful and effective. Every activity which facilitates the exercise of a named fundamental right is not necessarily comprehended in that fundamental right nor can it be regarded as such merely because it may not be possible otherwise to effectively exercise that fundamental right. The contrary construction would lead to incongruous results and the entire scheme of Article 19(1) which confers different rights and sanctions different restrictions according to different standards depending upon the nature of the right will be upset. What is necessary to be seen is, and that is the test which must be applied, whether the right claimed by the petitioner is an integral part of a named fundamental right or partakes of the same basic nature and character as the named fundamental right so that the exercise of such right is in reality and substance nothing but an instance of the exercise of the named fundamental right. If this be the correct test, as we apprehend it is, the right to go abroad cannot in all circumstances be regarded as included in freedom of speech and expression”.
“33. We cannot, therefore, accept the theory that a peripheral or concomitant right which facilitates the exercise of a named fundamental right or gives it meaning and substance or makes its exercise effective, is itself a guaranteed right included within the named fundamental right”.
III. Reasonably legitimate expectation of privacy
13. It follows that there cannot be a broad and general definition of privacy and privacy interest must also be placed in the context of other rights and values. A privacy right claimed in a context must be a fundamental right implicit in the concept of life and personal liberty in Article 21. In Gobind v. State of M.P. (1975) 2 SCC 148, this Court relied on Griswold v. Connecticut 1965 SCC OnLine US SC 124, 381 US 479 (1965), where the US Supreme Court observed as follows:
“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.”
14. The US Supreme Court has consistently held that the court must first find that a claimed right is entitled to protection as a fundamental privacy right:
14.1. In United States v. Miller 1976 SCC OnLine US SC 70, 425 US 435 (1976) [Bank Documents] [Compilation RD Vol. I Tab A) the Court observed:
“We must examine the nature of the particular documents sought to be protected in order to determine whether there is a legitimate expectation of privacy concerning their contents” (pp. 78-79)
14.2. In Smith v. Maryland 1979 SCC OnLine US SC 128, 442 US 735 (1979) [Pen Register], [Compilation RD Vol. I Tab B) the Court observed “this inquiry as Mr Justice Harlan aptly noted in his Katz 1967 SCC OnLine US SC 248, 389 US 347 at p. 361 (1967) concurrence, normally embraces two discrete questions. The first is whether the individual, by his conduct, has “exhibited an actual (subjective) expectation of privacy,” whether, in the words of the Katz 389 US 347 at p. 351 (1967) majority, 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, in the words of the Katz 1967 SCC OnLine US SC 248, 389 US 347 at p. 361 (1967) majority, the individual's expectation, viewed objectively, is “justifiable” under the circumstances.” (Pg 226-227).
14.3. In California v. Greenwood 1988 SCC OnLine US SC 89, 486 US 35 (1988) [garbage] [Compilation RD Vol. I Tab C) it was observed “an expectation of privacy does not give rise to IVth Amendment protection, however, unless society is prepared to accept that expectation as objectively reasonable” (Pg 36)
14.4. In New York v. Class 1986 SCC OnLine US SC 28, 475 US 106 (1986) [car] [Compilation RD Vol. I Tab D) it was observed:
“Nonetheless, the State's intrusion into a particular area, whether in an automobile or elsewhere, cannot result in a Fourth. Amendment violation unless the area is one in which there is a “constitutionally protected reasonable Expectation of privacy”.
15. The doctrine of reasonable expectation of privacy has also been consistently applied in the UK (See R. (Wood) v. Commr. of Police of the Metropolis (2010) 1 WLR 123 (CA) [Compilation RD Vol. I Tab F); Kinloch v. HM Advocate (2013) 2 WLR 141 (SC) [Compilation RD Vol. I Tab G).
16. These cases have been recently followed by the UK Supreme Court in JR38, In re 2016 AC 1131 (SC) [Compilation RD Vol. I Tab H). The majority view supported by Lord Toulson, Lord Hodge and Lord Clark in the context of Article 8 of the European Convention on Human Rights and Fundamental Freedoms has observed as below:
“85. This passage highlights three matters: the width of the concept of private life; the purpose of Article 8, i.e. what it seeks to protect; and the need to examine the particular circumstances of the case in order to decide whether, consonant with that purpose, the applicant had a legitimate expectation of protection in relation to the subject matter of his complaint. If so, it is then up to the defendant to justify the interference with the defendant's privacy.
86. In an impressive analysis of the scope of Article 8, Laws LJ said in R. (Wood) v. Commr. of Police of the Metropolis (2010) 1 WLR 123 (CA):
“20. The phrase ‘physical and psychological integrity’ of a person (the Von Hannover case (2005) 40 EHRR 1; S. v. United Kingdom (2008) 48 EHRR 1169 is with respect helpful. So is the person's ‘physical and social identity’: see S. v. United Kingdom (2008) 48 EHRR 1169 and other references there given. These expressions reflect what seems to me to be the central value protected by the right. I would describe it as the personal autonomy of every individual …
“21. The notion of the personal autonomy of every individual marches with the presumption of liberty enjoyed in a free polity: a presumption which consists in the principle that every interference with the freedom of the individual stands in need of objective justification. Applied to the myriad instances recognised in the Article 8 jurisprudence, this presumption means that, subject to the qualifications I shall shortly describe, an individual's personal autonomy makes him—should make him—master of all those facts about his own identity, such as his name, health, sexuality, ethnicity, his own image, of which the cases speak; and also of the ‘zone of interaction’ (the Von Hannover case (2005) 40 EHRR 1) between himself and others …
“22. This cluster of values, summarised as the personal autonomy of every individual and taking concrete form as a presumption against interference with the individual's liberty, is a defining characteristic of a free society. We therefore need to preserve it even in little cases. At the same time it is important that this core right protected by Article 8, however protean, should not be read so widely that its claims become unreal and unreasonable. For this purpose I think that there are three safeguards, or qualifications. First, the alleged threat or assault to the individual's autonomy must (if Article 8 is to be engaged) attain ‘a certain level of seriousness’. Secondly, the touchstone for Article 8.1's engagement is whether the claimant enjoys on the facts a ‘reasonable expectation of privacy’ (in any of the senses of privacy accepted in the cases). Absent such an expectation, there is no relevant interference with personal autonomy. Thirdly, the breadth of Article 8.1 may in many instances be greatly curtailed by the scope of the justifications available to the state pursuant to Article 8.2. I shall say a little in turn about these three antidotes to the overblown use of Article 8.”
87. I have set out this passage at length because I agree with it and cannot improve on it. We are concerned in this case with the second of Laws LJ's qualifications—the “touchstone” of whether the claimant enjoyed on the facts a “reasonable expectation of privacy” or “legitimate expectation of protection”. (I take the expressions to be synonymous.) In support of that part of his analysis Laws LJ cited Hannover v. Germany (2005) 40 EHRR 1, at para 51 (set out above), Campbell v. MGN, Ltd. (2004) 2 AC 457, (2004) 2 WLR 1232 (HL) and Murray v. Express Newspapers plc. 2009 Ch 481, (2008) 3 WLR 1360 (CA)”
17. The case JR 38, In re 2016 AC 1131 (SC) involved publishing of photographic images obtained from CCTV footage in journals and leaflets to be distributed for the purpose of identifying the young persons participating in riotous activity. Upholding the State action the Court observed:
“98. I therefore do not agree with Lord Kerr JSC's suggestion (para 56) that the test of reasonable expectation of privacy (or legitimate expectation of protection), excludes from consideration such factors as the age of the person involved, the presence or absence of consent to publication, the context of the activity or the use to which the published material is to be put. 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 MR said in Murray case 2009 Ch 481, (2008) 3 WLR 1360 (CA)) 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. Nor am I persuaded by Lord Kerr JSC's reading of Hannover (2005) 40 EHRR 1 (in para 57 of his judgment) that the commission and the court treated dissemination to the general public as a self-standing test.”
IV. Public domain [information knowingly exposed to the public]
18. The US cases also make a distinction based upon the spatial domain in which right to privacy is claimed, and this is notwithstanding the observation in Katz v. United States 1967 SCC OnLine US SC 248, 389 US 347 at p. 361 (1967) (telephone booth) [Compilation RD Vol. I Tab E) that “the IVth Amendment protects, people and not simply areas, against unreasonable searches and seizures…”(Pg 583). In fact, in Katz 1967 SCC OnLine US SC 248, 389 US 347 at p. 361 (1967) itself the Court significantly stated “what a person knowingly exposes to the public even in his own home or office is not a subject of IVth Amendment protection” (p. 582). In Katz 1967 SCC OnLine US SC 248, 389 US 347 at p. 361 (1967), the petitioner was making calls from a telephone booth in public place and the officials had placed a device outside the booth for overhearing. This was held entitled to protection of privacy as the petitioner was speaking in privacy, though in a public place. The subsequent cases which grappled with information exposed to public are below:
18.1. In United States v. Miller 1976 SCC OnLine US SC 70, 425 US 435 (1976) [Bank records] [Compilation RD Vol. I Tab A), a case of defrauding the Government of whiskey tax, Miller sought to prevent his documents with the bank from being obtained by the Treasury Department. The Court held that these documents were not private papers and were business records of the bank. Rejecting the contention that the documents were given by him for a limited purpose (p. 78) the Court held that checks were not confidential communication but negotiable instruments and had been voluntarily conveyed to the banks and exposed in the ordinary course of business. In such cases, the depositor takes the risk of conveyance of his information to the Government. It was observed:
“(5) The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. United States v. White 1971 SCC OnLine US SC 70, 401 US 745 at pp. 751-52 (1971). This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed”.
18.2. In Securities and Exchange Commission v. Jerry T. O'Brien Inc. 1984 SCC OnLine US SC 146, 467 US 735 (1984) [Compilation RD Vol. II Tab L) the Court observed, it is established that, when a person communicates information to a third party even on the understanding that information is confidential, he cannot object if the third party conveys that information or record thereof to law enforcement authorities:
“5. Finally, respondents cannot invoke the Fourth Amendment in support of the Court of Appeals' decision. It is established that, when a person communicates information to a third party even on the understanding that the communication is confidential, he cannot object if the third party conveys that information or records thereof to law enforcement authorities. United States v. Miller 1976 SCC OnLine US SC 70, 425 US 435 (1976), US at p. 443. Relying on that principle, the Court has held that a customer of a bank cannot challenge on Fourth Amendment grounds the admission into evidence in a criminal prosecution of financial records obtained by the Government from his bank pursuant to allegedly defective subpoenas, despite the fact that he was given no notice of the subpoenas. Id, at p. 443 and n. 5. See also Donaldson v. United States 1971 SCC OnLine US SC 18, 400 US 517 at p. 522 (1971) (Internal Revenue summons directed to third party does not trench upon any interests protected by the Fourth Amendment). These rulings disable respondents from arguing that notice of subpoenas issued to third parties is necessary to allow a target to prevent an unconstitutional search or seizure of his papers.”
18.3. In Nixon v. Administrator of General Services 1977 SCC OnLine US SC 152, 433 US 425 (1977) [Compilation RD Vol. I Tab IJ) the Court held that a person cannot assert any privacy claim as to the documents and tape recordings that he has already disclosed to the public:
“[23] The overwhelming bulk of the 42 million pages of documents and the 880 tape recordings pertain, not to appellant's private communications, but to the official conduct of his Presidency. Most of the 42 million pages were prepared and seen by others and were widely circulated within the Government. Appellant concedes that he saw no more than 200,000 items, and we do not understand him to suggest that his privacy claim extends to items he never saw. See United States v. Miller 1976 SCC OnLine US SC 70, 425 US 435 (1976). Further, it is logical to assume that the tape recordings made in the Presidential offices primarily relate to the conduct and business of the Presidency. And, of course, appellant cannot assert any privacy claim as to the documents and tape recordings that he has already disclosed to the public. United States v. Dionisio 1973 SCC OnLine US SC 23, 410 US 1 (1973), US at p. 14; Katz v. United States 389 US 347 at p. 351 (1967). Therefore, appellant's privacy claim embracing, for example, ‘extremely private communications between him and, among others, his wife, his daughters, his physician, lawyer, and clergyman, and his close friends, as well as personal diary dictablets and his wife's personal files,’ relates only to a very small fraction of the massive volume of official materials with which they are presently commingled.”
18.4. In United States v. Dioniso 1973 SCC OnLine US SC 23, 410 US 1 (1973) [Compilation RD Vol. II Tab K) the Court held that no person can have a reasonable expectation of privacy over sound of his voice which is constantly exposed to the public: (pp. 79-80)
“[21, 22] “In Katz v. United States 389 US 347 at p. 351 (1967), we said that the Fourth Amendment provides no protection for what ‘a person knowingly exposes to the public, even in his own home or office….’. The physical characteristics of a person's voice, its tone and manner, as opposed to the content of a specific conversation, are constantly exposed to the public. Like a man's facial characteristics, or handwriting, his voice is repeatedly produced for others to hear. No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world. As the Court of Appeals for the Second Circuit stated:
“Except for the rare recluse who chooses to live his life in complete solitude, in our daily lives we constantly speak and write, and while the content of a communication is entitled to Fourth Amendment protection … the underlying identifying characteristics—the constant factor throughout both public and private communications—are open for all to see or hear. There is no basis for constructing a wall of privacy against the grand jury which does not exist in casual contacts with strangers. Hence no intrusion into an individual's privacy results from compelled execution of handwriting or voice exemplars; nothing is being exposed to the grand jury that has not previously been exposed to the public at large.' United States v. Doe (Schwartz) 457 F 2d 895 (2d Cir 1972), F 2d at pp. 898-99.
The required disclosure of a person's voice is thus immeasurably further removed from the Fourth Amendment protection than was the intrusion into the body effected by the blood extraction in Schmerber. “The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained.' Schmerber v. California 1966 SCC OnLine US SC 124, 384 US 757 (1966), US at pp. 769-70. Similarly, a seizure of voice exemplars does not involve the ‘severe, though brief, intrusion upon cherished personal security,’ effected by the ‘pat down’ in Terry—'surely … an annoying, frightening, and perhaps humiliating experience.' Terry v. Ohio 1968 SCC OnLine US SC 144, 392 US 1 (1968), US at pp. 24-25. Rather, this is like the fingerprinting in Davis, where, though the initial dragnet detentions were constitutionally impermissible, we noted that the fingerprinting itself ‘involves none of the probing into an individual's private life and thoughts that marks an interrogation or search.’ Davis v. Mississippi 1968 SCC OnLine US SC 95, 394 US 721 (1969), 394 US at p. 727; cf. Thom v. New York Stock Exchange 306 F Supp 1002 (SDNY 1969), F Supp at p. 1009.”
18.5. In Smith v. Maryland 1979 SCC OnLine US SC 128, 442 US 735 (1979) [Compilation RD Vol. I Tab B) a pen register was installed in the telephone company's office to record the numbers dialled from the telephone at the petitioner's home. This was done on police's request. The claim of privacy was rejected as the Court doubted that people in general entertained any actual expectations in the numbers they dial. All telephone users realise that they must convey phone numbers to the telephone company since it is through telephone company's switching equipment that their calls are completed and based on that monthly bills are prepared. The site of the call being home was held to be immaterial. The Court observed “this Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties” (pp. 229).
18.6. In California v. Greenwood 1988 SCC OnLine US SC 89, 486 US 35 (1988) [Compilation RD Vol. I Tab C) garbage had been placed outside the house for collection and the same was seized by the Narcotics Department on a suspicion of use of prohibited substance. The Court held that the garbage had been placed for conveying it to a third party and had been exposed to the public. Therefore, there could be no claim of privacy under the IVth Amendment (pp. 36-37).
18.7. In Florida v. Riley 1989 SCC OnLine US SC 13, 488 US 445 (1989) [Compilation RD Vol. I Tab M), Riley was growing marijuana in a greenhouse which was not enclosed on two sides. The IO discovered the growing of marijuana from a helicopter. Similar was the case in California v. Ciraolo 1986 SCC OnLine US SC 96, 476 US 207 (1986). The Court observed “what a person knowingly exposes to public even in his own home or office is not a subject of IVth Amendment protection” (pp. 841).
18.8. In Oliver v. United States 1984 SCC OnLine US SC 76, 466 US 170 (1984) [Compilation RD Vol. II Tab N) marijuana was grown in open field. The court held that there could be no legitimate expectation of privacy.
19. Dealing with adult theatres showing pornographic films, the US Supreme Court in Paris Adult Theatre v. Slaton 1973 SCC OnLine US SC 165, 413 US 49 (1973) [Compilation RD Vol. II Tab O) observed as below:
“(21). Our prior decisions recognizing a right to privacy guaranteed by the Fourteenth Amendment included ‘only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty.’ Palko v. Connecticut 1937 SCC OnLine US SC 173, 302 US 319 (1937), US at p. 325. Roe v. Wade 1973 SCC OnLine US SC 20, 410 US 113 (1973), US at p. 152. This privacy right encompasses and protects the personal intimacies of the home, the family, marriage, motherhood, procreation, and child rearing. Cf. Eisenstadt v. Baird 1972 SCC OnLine US SC 62, 405 US 438 (1972), 405 US at pp. 453—54; id at pp. 460, 463—465 (White, J., concurring); Stanley v. Georgia 1969 SCC OnLine US SC 78, 394 US 557 (1969), US at p. 568; Loving v. Virginia 1967 SCC OnLine US SC 152, 18 L Ed 2d 1010, 388 US 1 (1967), US at p. 12; Griswold v. Connecticut 1965 SCC OnLine US SC 124, 381 US 479 (1965), US at p. 486; Prince v. Massachusetts 1944 SCC OnLine US SC 27, 321 US 158 (1944); Skinner v. Oklahoma ex rel. Williamson 1942 SCC OnLine US SC 125, 86 L Ed 1655, 316 US 535 (1942), US at p. 541; Pierce v. Society of Sisters 1925 SCC OnLine US SC 168, 69 L Ed 1070, 268 US 510 (1925), US at p. 535; Meyer v. Nebraska 1923 SCC OnLine US SC 150, 67 L Ed 1042, 262 US 390 (1923), US at p. 399. 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”.
“(22-25)… the idea of “privacy” right and a place of public accommodation are, in this context mutually exclusive..”
20. The same view was taken in United States v. Orito 1973 SCC OnLine US SC 154, 413 US 139 (1973) [Compilation RD Vol. II Tab PQ) where obscene material was being transported by means of a common carrier. It was observed:
“But viewing obscene films in a commercial theatre open to the adult public, see Paris Adult Theatre 1973 SCC OnLine US SC 165, 413 US 49 (1973) IV Slaton, US at pp. 65-67, L Ed 2d pp. 461-62, or transporting such films in common carriers in interstate commerce, has no claim to such special consideration. It is hardly necessary to catalog the myriad activities that may be lawfully conducted within the privacy and confines of the home, but may be prohibited in public”.
21. Even our Court has held in Rajagopal (1994) 6 SCC 632, the case of Auto Shankar that once an information is in public record then there is no privacy right (para 29).
22. In Veronica School v. Acton 1995 SCC OnLine US SC 78, 515 US 646 (1995) [Compilation RD Vol. I Tab A) where children wishing to take part in athletics were subjected to random urinanalysis drug testing, the Court observed:
“The first factor to be considered is the nature of the privacy interest upon which the search here at issue intrudes. The Fourth Amendment does not protect all subjective expectations of privacy, but only those that society recognizes as “legitimate.” T.L.O. 1985 SCC OnLine US SC 25, 469 US 325 (1985), US at p. 338. What expectations are legitimate varies, of course, with context, id., at p. 337, depending, for example, upon whether the individual asserting the privacy interest is at home, at work, in a car, or in a public park. In addition, the legitimacy of certain privacy expectations vis-à-vis the State may depend upon the individual's legal relationship with the State”.
The Court held that the student athletes have a reduced expectation of privacy (p. 577).
23. In Whalen v. Roe 1977 SCC OnLine US SC 21, 429 US 589 (1977) [Compilation RD Vol. II Tab S) the State of New York was recording in a centralised computer file the names and addresses of all persons who obtained certain drugs under doctor's prescription. The Court held that “requiring such disclosure to representatives of the States having responsibility of the health of the community does not amount to an impermissible invasion of privacy.” In a concurring judgment, Stewart, J. observed that “there is no general constitutional right to privacy and that whatever the ratio decidendi of Griswold, it does not recognize a general interest in freedom from disclosure of private information” (pp. 78-79). With this, the State action was upheld.
V. Digital data
24. From the above judgments it is evident that there can be no claim for privacy with regard to personal data and information which has already been voluntarily transferred by a person on account of use of modern technologies comprising the laptops, smartphones, etc. So far, as photographs, thumb impressions and iris scans are concerned they are already substantially in the public domain and are available with the websites, service providers, application owners, aggregators, etc. These information are being transmitted on a daily basis to the above resources during the course of e-commerce. Much of the data and information is transmitted unconditionally. It is submitted that with respect to such data there could be no claim of privacy.
25. Where the transference of personal data is not merely to a third party for a limited purpose but to several parties on a regular basis the principle of “contextual integrity” (or limited purpose) which a few proponents of privacy in public domain are projecting [“Protecting Privacy in an Information Age: The Problem of Privacy in Public” by Helen Nissenbaum] would also not result in a valid claim of privacy.
VI. Identity data
26. Even otherwise, providing thumb impressions as identity information has been in vogue and have been used in India since long in execution of documents, particularly sale deeds and other similar transfer documents. Of late, it is compulsory to append photographs and to put thumb impressions while getting documents registered. Personal identity data is also required to be disclosed along with photograph (biometrics) in obtaining passport, driving licence, bank account, for checking-in hotels and obtaining identity passes for entering into public institutions. Consequently, there cannot be any claim of fundamental right to privacy in disclosing personal data for identification. There cannot be any claim of anonymity when citizens step out of their homes to enter into various kinds of social, economic and political relations, to obtain benefits and services, to enter into contracts or to discharge legal obligations such as tax. In fact, even to claim fundamental right under Article 19 a person would have to establish that he is a “citizen” and for this he will have to disclose personal data for identification. Rule 12(2)(i)(a) of the Supreme Court Rules, 2013 dealing with PIL provides that the petitioner shall disclose his full name, complete postal address, email address, phone number, proof regarding personal identification, occupation and annual income, PAN number and national unique identity card number, if any.
27. A survey of the US Supreme Court judgments would show that the Constitution of USA has been understood as protecting the right to privacy of people in their “persons, houses, papers and effects” as early as 1923, in Hester v. United States 1924 SCC OnLine US SC 102, 265 US 57 (1924) [Compilation RD Vol. II Tab T), Holmes, J. observed “the special protection accorded by the IVth Amendment to the people in their persons, houses, papers and effects is not extended to open field”. Even Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights only talk about arbitrary and unlawful interference with “his privacy, family, home or correspondence.” and about protection from “unlawful attacks on his honor and reputation”. These instruments therefore do not expand the right to privacy in generality or abstract nor do they extend the right to privacy beyond the domain which is private/private-like and confidential. They do not bring within their coverage that which has been voluntarily and unconditionally exposed to the public domain not to that which pertains to identity disclosure in the context of social, economic and political relations.
VII. Human Rights Conventions
28. Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, 1950—European Convention also provides only for respect for his private and family life, his home and his correspondence. Similar is the position with regard to Schedule I of the UK Human Rights Act, 1998. Clearly, these conventions do not extend in the public domain especially when the information has been transmitted to such domain willingly and unconditionally. In the context of Article 8 of the European Convention for the Protection of Fundamental Rights and Human Freedoms, the UK Supreme Court in Kinloch v. HM Advocate (2013) 2 WLR 141 (SC) [Compilation RD Vol. I Tab G) held as below:
19. There is a zone of interaction with others, even in a public context, which may fall within the scope of private life: PG v. United Kingdom (2001) 46 EHRR 1272, EHRR, para 56. But measures effected in a public place outside the person's home or private premises will not, without more, be regarded as interfering with his right to respect for his private life. Occasions when a person knowingly or intentionally involves himself in activities which may be recorded or reported in public, in circumstances where he does not have a reasonable expectation of privacy, will fall into that category: PG v. United Kingdom (2001) 46 EHRR 1272, para 57. A person who walks down a street has to expect that he will be visible to any member of the public who happens also to be present. So too if he crosses a pavement and gets into a motor car. He can also expect to be the subject of monitoring on closed circuit television in public areas where he may go, as it is a familiar feature in places that the public frequent”.
Having so observed, the Court held that the appellant was moving openly in the public view and there was nothing in the case to suggest that he could “reasonably have had any such expectation of privacy”. He took the risk of being seen and of his movements being noted down so there was infringement of Article 8.
VIII. Duality of personal information
29. As regards personal information of any kind, as long as the information is with the person himself and in his private domain there would be two distinct rights simultaneously embedded. One is his right to privacy which entitles him not to part with the information (barring identity information). The second is right to property in the said information. To illustrate, a person can pen down all his information in the autobiography which can then be transferred by sale to the public in the form of a book or biopic. But once the person has transmitted his personal information willingly in the public domain by exercising his right to speech and expression then he would definitely lose the first right to privacy. The only issue would be how far and how much right to property he would retain in his own information after transmission but those issues would be only issues of property and not privacy. The fears with regard to data mining and data colonisation as being creative of monopolies, injurious to competition and issues of ownership would all fall in the realm of property rights.
30. It is also to be noted that when a person transmits personal information to the public domain he is actually exercising his fundamental right to speech and expression under Article 19(1)(a). Therefore, it is for the person concerned to express himself clearly and ensure that he puts conditions for retaining whatever privacy rights or he should refrain from giving information. Largely, this would be in the realm of contract and it would depend upon mutual bargains as to whether the person would be in a position to put a condition. But where such an information is transmitted willingly and unconditionally in the public domain to third parties and on a regular basis, there would be no right to privacy.
IX. Clash with other fundamental rights
31. Yet again, a claim of privacy can get wiped out and overridden in a situation of clash with another person's fundamental right. It has been so ruled in the following cases:
31.1. ‘X’ v. Hospital ‘Z’ (1998) 8 SCC 296, SCC paras 21-29— In this case our Supreme Court held that right to privacy does exist outside the confines of home and it was not absolute. But this was in the context of a confidential relationship with the hospital and the information was sensitive. The exposure of which would have stigmatised. However, in the context of marriage, SC held that the right to privacy of a person suffering from AIDS would be overridden on account of the right to life of the person with whom marriage was to be solemnised. Both rights were within Article 21.
31.2. PUCL v. Union of India (2003) 4 SCC 399, SCC para 121— This case involved disclosure of assets and liabilities of the spouse by an election candidate. It was held that the claim of right to privacy would be overridden by the right to information of citizens.
32. When a minimal identity disclosure is legislatively required in the context of delivery of benefits and services by the Government or a public body then the seeker of benefit and service would not be entitled to any fundamental right to privacy with regard to identity disclosure. More so if the benefit and service is a targeted one, that is to say that it is intended to a defined class of persons. A welfare State is constitutionally obliged to undertake such exercise. The provision of benefits and services would actually enliven the fundamental right to life and personal liberty of the poorer and the weaker section of the society. It is not enough to protect Article 21 of the persons who have the means and the haves it is more important to ensure that the benefits and service those who are truly have-nots and deserving. This involves identification. In context of reservations this court has held evolved the concept of creamy layer in order that benefits of reservation may flow to those who are truly backward. The State has been obliged to undertake identification of the truly backward. Indra Sawhney v. Union of India 1992 Supp (3) SCC 212, SCC paras 792 & 793.
33. It is submitted that even assuming that there is some privacy right even in the minimal identity disclosure for identification. The same would be overridden by the fundamental right of those persons to whom the targeted benefits are meant to flow.
X. Contours
34. The plea that the court should refrain from specifying the contours of the fundamental right to privacy and it should be left to be developed on a case-to-case basis ought not to be expected. It is absolutely essential to delineate the right to privacy and the nature of limitations of the State. The modern Indian State faced with complex problems arising from illegal immigration, crime, terrorism, corruption, fraud, etc is also constitutionally charged with securing a social order in which justice, social, economic and political—informs all the institutions of national life, and that the material resources of the community are so distributed as best to subserve the common good (Articles 38 & 39). India is a Welfare State. Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 (Per Khanna, J.):
“1475. Apart from what has been stated above about the effect of preamble on the power of amendment, let us deal with the provisions of the preamble itself. After referring to the solemn resolution of the people of India to constitute India into a sovereign democratic republic, the preamble makes mention of the different objectives which were to be secured to all its citizens.
These objectives are:
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.
It would be seen from the above that the first of the objectives mentioned in the preamble is to secure to all citizens of India Justice, social, economic and political. Article 38 in Part IV relating to the Directive Principles of State Policy recites that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.
1476. Since the latter half of the eighteenth century when the idea of political equality of individuals gathered force and led to the formation of democratic Governments, there has been a great deal of extension of the idea of equality from political to economic and social fields. Wide disparaties in the standard of living of the upper strata and the lower strata as also huge concentration of wealth in the midst of abject poverty are an index of social mal-adjustment and if continued for long, they give rise to mass discontent and a desire on the part of those belonging to the lower strata to radically alter and, if necessary, blow up the social order. As those belonging to the lower strata constitute the bulk of the population, the disparities provide a fertile soil for violent upheavals. The prevention of such upheaval is not merely necessary for the peaceful evolution of society, it is also in the interest of those who belong to the upper strata to ensure that the potential causes for violent upheaval are eliminated. Various remedies have been suggested in this connection and the stress has been laid mainly upon having what is called a welfare state. The modern states have consequently to take steps with a view to ameliorate the conditions of the poor and to narrow the chasm which divides them from the affluent sections of the population. For this purpose the State has to deal with the problems of social security, economic planning and industrial and agrarian welfare. Quite often in the implementation of these policies, the State is faced with the problem of conflict between the individual rights and interests on the one side and rights and welfare of vast sections of the population on the other. The approach which is now generally advocated for the resolving of the above conflict is to look upon the rights of the individuals as conditioned by social responsibility. Harold Laski while dealing with this matter has observed in Encyclopaedia of the Social Sciences:
“The struggle for freedom is largely transferred from the plane of political to that of economic rights. Men become less interested in the abstract fragment of political power an individual can secure than in the use of massed pressure of the groups to which they belong to secure an increasing share of the social product … so long as there is inequality, it is argued, there cannot be liberty. The historic inevitability of this evolution was seen a century ago by de Tocqueville. It is interesting to compare this insistence that the democratization of political power mean equality and that its absence would be regarded by the masses as oppression with the argument of Lord Acton that liberty and equality are antitheses. To the latter liberty was essentially an autocratic ideal; democracy destroyed individuality, which was the very pith of liberty, by seeking identity of conditions. The modern emphasis is rather towards the principle that material equality is growing inescapable and that the affirmation of personality must be effective upon an immaterial plane.” (see Vol. IX, p. 445).
1477. I may also refer to another passage on p. 99 of Grammar of Politics by Harold Laski:
“The state, therefore, which seeks to survive must continually transform itself to the demands of men who have an equal claim upon that common welfare which is its ideal purpose to promote.
We are concerned here, not with the defence of anarchy, but with the conditions of its avoidance. Men must learn to subordinate their self-interest to the common welfare. The privileges of some must give way before the rights of all. Indeed, it may be urged that the interest of the few is in fact the attainment of those rights, since in no other environment is stability to be assured.”
1478. A modern State has to usher in and deal with large schemes having social and economic content. It has to undertake the challenging task of what has been called social engineering, the essential aim of which is the eradication of the poverty, uplift of the downtrodden, the raising of the standards of the vast mass of people and the narrowing of the gulf between the rich and the poor. As occasions arise quite often when the individual rights clash with the larger interests of the society, the State acquires the power to subordinate the individual rights to the larger interests of society as a step towards social justice. As observed by Roscoe Pound on p. 434 of Volume I of Jurisprudence under the heading “Limitations on the Use of Property”:
“Today the law is imposing social limitations — limitations regarded as involved in social life. It is endeavouring to delimit the individual interest better with respect to social interests and to confine the legal right or liberty or privilege to the bounds of the interest so delimited.”
To quote the words of Friedmann in Legal Theory:
“But modern democracy looks upon the right to property as one conditioned by social responsibility by the needs of society, by the ‘balancing of interests’ which looms so large in modern jurisprudence, and not as pre-ordained and untouchable private right.” (Fifth Edition, p. 406).
1479. With a view to bring about economic regeneration, the State devises various methods and puts into operation certain socio-economic measures. Some of the methods devised and measures put into operation may impinge upon the property rights of individuals. The courts may sometimes be sceptical about the wisdom behind those methods and measures, but that would be an altogether extraneous consideration in determining the validity of those methods and measures. We need not dilate further upon this aspect because we are only concerned with the impact of the preamble. In this respect I find that although it gives a prominent place to securing the objective of social, economic and political justice to the citizens, there is nothing in it which gives primacy to claims of individual right to property over the claims of social, economic and political justice. There is, as a matter of fact, no clause or indication in the preamble which stands in the way of abridgement of right to property for securing social, economic and political justice. Indeed, the dignity of the individual upon which also the preamble has laid stress, can only be assured by securing the objective of social, economic and political justice.”
35. Therefore, 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 extent of disclosure?
(v) Is disclosure for identification purpose or relates to personal and sensitive information of an identified person?
(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?
36. 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 the 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.
37. It ought not to be accepted that the right to privacy flows collectively from various fundamental rights, for then the legislation in every case has to satisfy the test in relation to all the fundamental rights. Our Constitution has specified fundamental rights in different articles and the limitations on the State with respect to them have different contours. Hence it is more appropriate to hold that if the claim of privacy is in the penumbra, the specified fundamental right then it must satisfy the test in relation to that specified fundamental right alone. Where a claim of privacy is not within the penumbra of a specified fundamental right then it should first establish itself as being embedded in Article 21 and the test would be whether the expectation of privacy could be considered to be reasonably legitimate, and further is not overridden by any competing fundamental right.
XI. Due process and compelling State interest
38. The test of compelling State interest derived from the US cases should not be adopted. In Gobind (1975) 2 SCC 148 this Court referred to Griswold 1965 SCC OnLine US SC 124, 381 US 479 (1965) and Roe v. Wade 1973 SCC OnLine US SC 20, 410 US 113 (1973) and adopted the compelling State interest test. Para 31 is as below:
“31. Depending on the character and antecedents of the person subjected to surveillance as also the objects and the limitation under which surveillance is made, it cannot be said surveillance by domiciliary visits would always be unreasonable restriction upon the right of privacy. 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 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. Even if we hold that Article 19(1)(d) guarantees to a citizen a right to a privacy in his movement as an emanation from that Article and is itself a fundamental right, the question will arise whether Regulation 856 is a law imposing reasonable restriction in public interest on the freedom of movement falling within Article 19(5); or, even if it be assumed that Article 19(5) does not apply in terms, as the right to privacy of movement cannot be absolute, a law imposing reasonable restriction upon it for compelling interest of State must be upheld as valid”.
39. It is submitted that the “compelling State interest” test is an evolution from the US Constitution, particularly the XIVth Amendment which injuncts deprivation of “any person of life, liberty or property without due process of law”. Based on this due process requirement the US Supreme Court has in the American historical context evolved the test of strict scrutiny of compelling State interest, and narrow tailoring or over breath or least drastic means. Our Constitution of India does not incorporate the due process provision. The same was specifically discarded by the Constituent Assembly (enclosed as Annexure C). In Mohd. Arif v. Supreme Court of India (2014) 9 SCC 737, Justice R.F. Nariman traced the history of Article 21, referred to the Constituent Assembly Debates and Maneka Gandhi case (1978) 1 SCC 248, and concluded that “substantive due process” is now to be applied to the fundamental right to life and liberty (paras 17-28). But it is notable that this Court has said that in the context of Maneka Gandhi (1978) 1 SCC 248 test of “reasonable, just and fair”. So ever after the judgment of Maneka Gandhi (1978) 1 SCC 248 the only requirement under Article 21 is that the law should be reasonable, just and fair.
40. In Maneka Gandhi case (1978) 1 SCC 248 the principle of reasonableness or non-arbitrariness was drawn into Article 21 from Article 14:
“7. … 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.”
41. In Bachan Singh v. State Of Punjab . (1980) 2 SCC 684, a Constitution Bench observed:
“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 (1978) 1 SCC 248, 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.”
Thus expanded and read for interpretative purposes, Article 21 clearly brings out the implication, that the founding fathers recognised the right of the State to deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law.”
42. In Sunil Batra v. Delhi Admn. (1978) 4 SCC 494 dealing with solitary confinement after conviction and award of death sentence, Desai, J., speaking for the majority observed in para 228 “the word “law” in the expression “procedure established by law” in Article 21 has been interpreted to mean in Maneka Gandhi case (1978) 1 SCC 248 that the law must be right, just and fair and not arbitrary, fanciful or oppressive.” Krishna Iyer, J., in a concurring judgment observed in para 52 “true, our Constitution has no due process clause or the VIIIth Amendment; but in this branch of law after Cooper (1970) 1 SCC 248 and Maneka Gandhi (1978) 1 SCC 248 the consequence is the same”.
43. The majority of the judges do not hold so. Subsequently, in Mithu v. State Of Punjab . (1983) 2 SCC 277 Chandrachud, CJ speaking for a Constitution Bench referred to both the views in Sunil Batra (1978) 4 SCC 494 and finally observed as below:
“6. 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.”
This Constitution Bench does not endorse the equation of Article 21 with due process clause as in the American Constitution.
44. In State of A.P. v. McDowell & Co. (1996) 3 SCC 709 this Court held that the doctrine of substantive due process is inapplicable to our Constitution:
“43. … As against this, the United States of America has a Federal Constitution where the power of the Congress and the State Legislatures to make laws is limited in two ways, viz., the division of legislative powers between the States and the Federal Government and the fundamental rights (Bill of Rights) incorporated in the Constitution. In India, the position is similar to the United States of America. The power of Parliament or for that matter, the State Legislatures is restricted in two ways. A law made by Parliament or the legislature can be struck down by courts on two grounds and two grounds alone, viz., (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision. There is no third ground. We do not wish to enter into a discussion of the concepts of procedural unreasonableness and substantive unreasonableness — concepts inspired by the decisions of United States Supreme Court. Even in U.S.A., these concepts and in particular the concept of substantive due process have proved to be of unending controversy, the latest thinking tending towards a severe curtailment of this ground (substantive due process). The main criticism against the ground of substantive due process being that it seeks to set up the courts as arbiters of the wisdom of the legislature in enacting the particular piece of legislation. It is enough for us to say that by whatever name it is characterised, the ground of invalidation must fall within the four corners of the two grounds mentioned above. In other words, say, if an enactment is challenged as violative of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by clauses (a) to (g) of Article 19(1), it can be struck down only if it is found not saved by any of the clauses (2) to (6) of Article 19 and so on. No enactment can be struck down by just saying that it is arbitrary — or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that court thinks it unjustified. Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The court cannot sit in judgment over their wisdom….”
45. Similar view was expressed in A.K. Roy v. Union of India (1982) 1 SCC 271:
35. 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”.
36. Insofar as our Constitution is concerned, an amendment was moved by Pandit Thakur Dass Bhargava to draft Article 15, which corresponds to Article 21 of the Constitution, for substituting the words “without due process of law” for the words “except according to procedure established by law”. Many members spoke on that amendment on 6-12-1948, amongst whom were Shri K.M. Munshi, who was in favour of the amendment, and Sir Alladi Krishnaswamy Ayyar who, while explaining the view of the Drafting Committee, said that he was “still open to conviction”. The discussion of the amendment was resumed by the Assembly on 13-12-1948 when Dr Ambedkar, who too had an open mind on the vexed question of ‘due process’, said:
“… I must confess that I am somewhat in a difficult position with regard to Article 15 and the amendment moved by my friend Pandit Bhargava for the deletion of the words ‘procedure according to law’ and the substitution of the words ‘due process’.
***
The question of ‘due process’ raises, in my judgment, the question of the relationship between the legislature and the judiciary. In a federal constitution, it is always open to the judiciary to decide whether any particular law passed by the legislature is ultra vires or intra vires in reference to the powers of legislation which are granted by the Constitution to the particular legislature…. The ‘due process’ clause, in my judgment, would give the judiciary the power to question the law made by the legislature on another ground. That ground would be whether that law is in keeping with certain fundamental principles relating to the rights of the individual. In other words, the judiciary would be endowed with the authority to question the law not merely on the ground whether it was in excess of the authority of the legislature, but also on the ground whether the law was good law, apart from the question of the powers of the legislature making the law…. The question now raised by the introduction of the phrase ‘due process’ is whether the judiciary should be given the additional power to question the laws made by the State on the ground that they violate certain fundamental principles.
… 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 therefore would not say anything. I would leave it to the House to decide in any way it likes. (See Constituent Assembly Debates, Vol. VII, pp. 999-1001)
The amendment was then put to vote and was negatived. In view of this background and in view of the fact that the Constitution, as originally conceived and enacted, recognizes preventive detention as a permissible means of abridging the liberties of the people, though subject to the limitations imposed by Part III, we must reject the contention that preventive detention is basically impermissible under the Indian Constitution.”
46. This view was also recently endorsed in Rajbala v. State of Haryana (2016) 2 SCC 445:
64. From the above extract from McDowell & Co. case (1996) 3 SCC 709 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 legislative choices unless the legislation is otherwise violative 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. Krishna v. State of Madras AIR 1957 SC 297, 1957 Cri LJ 409, 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.
47. Judgments delivered by this Court prior to Maneka Gandhi (1978) 1 SCC 248 rejecting the American due process are enclosed as Annexure B [Compilation RD Vol. III Tab T].
48. Our Court has in the context of Article 19 explained the test of reasonableness in State Of Madras v. V.G Row .. Row 1952 SCR 597, AIR 1952 SC 196, 1952 Cri LJ 966, Bishambhar Dayal Chandra Mohan v. State of U.P. (1982) 1 SCC 39, Bennet Coleman & Co. v. Union of India (1972) 2 SCC 788. All that is to be seen, therefore, in the context of Article 21 is as to whether (1) law is competently made, (2) it has proximate connection with public interest, (3) restriction is not excessive.
49. In V.G. Row case 1952 SCR 597, AIR 1952 SC 196, 1952 Cri LJ 966, Patanjali Sastri, C.J. observed as below:
“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 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.” (Pathumma v. State of Kerala (1978) 2 SCC 1)
50. Our courts have repeatedly cautioned against mechanical implantation of American jurisprudence into our Constitution:
(i) Bhikaji Narain Dhakras v. State of M.P. (1955) 2 SCR 589, AIR 1955 SC 781, SCR at p. 599
(ii) A.S. Krishna v. State of Madras AIR 1957 SC 297, 1957 Cri LJ 409, 1957 SCR 399, SCR at p. 412
(iii) Kameshwar Prasad v. State of Bihar 1962 Supp (3) SCR 369, AIR 1962 SC 1166, SCR at p. 378
(iv) Pathumma v. State of Kerala (1978) 2 SCC 1, para 23
(v) Ashoka Kumar Thakur v. Union of India (2008) 6 SCC 1, paras 188, 190, 252 & 253
51. That as regards the procedure contemplated by Article 21, this Court observed in Maneka Gandhi case (1978) 1 SCC 248 as follows (para 7):
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.”
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.”
Krishna Iyer, J.:
“82. 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.”
“85. To sum up, “procedure” in Article 21 means fair, not formal procedure. “Law” is reasonable law, not any enacted piece.”
52. In view of Maneka Gandhi case (1978) 1 SCC 248 the principle for testing the law infringing the right to privacy would only be “is the law reasonable, just and fair, and in the public interest”. There is no justification for importing compelling State interest and the other principles associated with it.
53. In Illinois State Board of Elections v. Socialist Workers Party 1979 SCC OnLine US SC 25, 440 US 173 (1979) [Compilation RD Vol. II Tab U), Blackmun, J. while concurring, expressed his deep unease with the test of compelling State interest “least drastic means”. He observed (p. 244):
“Although I join the Court's opinion and its strict-scrutiny approach for election cases, I add these comments to record purposefully, and perhaps somewhat belatedly, my unrelieved discomfort with what seems to be a continuing tendency in this Court to use as tests such easy phrases as “compelling [state] interest” and “least drastic [or restrictive] means.” See, ante, at 184, 185, and 186. I have never been able fully to appreciate just what a “compelling state interest” is. If it means “convincingly controlling,” or “incapable of being overcome” upon any balancing process, then, of course, the test merely announces an inevitable result, and the test is no test at all. And, for me, “least drastic means” is a slippery slope and also the signal of the result the Court has chosen to reach. A judge would be unimaginative indeed if he could not come up with something a little less “drastic” or a little less “restrictive” in almost any situation, and thereby enable himself to vote to strike legislation down. This is reminiscent of the Court's indulgence, a few decades ago, in substantive due process in the economic area as a means of nullification”.
Some other Judges concurring with majority only adopted the “rational connection with State interest” test.
54. In fact in Veronica School v. Acton 1995 SCC OnLine US SC 78, 515 US 646 (1995) [Compilation RD Vol. II Tab R), the petitioner's contention for a less intrusive means was not accepted and the Court observed:
“We have repeatedly refuse to declare that only the least intrusive search practicable can be reasonable under the IVth Amendment”.
55. In view of the aforesaid judgment the test of compelling State interest adopted in Gobind v. State of M.P. (1975) 2 SCC 148 needs to be discarded.
XII. Ordered Liberty
56. Liberty is not licence for anarchy, chaos and disorder. It assumes for its existence an ordered environment. In Gobind (1975) 2 SCC 148 our Court talked of “Ordered Liberty”.
57. To illustrate, issuance of passes or proximity cards for entry in institutions to enable orderly functioning actually enhances exercise of liberty.
Additional submissions
58. Three constitutional constructs are competing for acceptance:
A. Privacy as a general right is intrinsic or implicit part of Article 21. Hence, all infringements must be backed by law which is reasonable, just and fair [Maneka Gandhi v. Union of India (1978) 1 SCC 248, and that brings in substantive due process [Mohd. Arif v. Supreme Court of India (2014) 9 SCC 737].
B. There is no fundamental right to privacy under the Constitution of India.
C. (i) Every privacy concern with its context must first objectively establish itself as a reasonable legitimate expectation of society in the eyes of the court so as to be considered as implicit in Article 21.
(ii) It should not be overridden by another person's right under Article 21 or other fundamental right.
(iii) Once held as implicit in Article 21, the State must satisfy that infringement is (i) by law, (ii) law is for a legitimate public purpose, (iii) law is reasonable, just and fair. Due process does not apply.
“Personal liberty” expansively construed
59. In Satwant Singh Sawhney v. Passport Officer (1967) 3 SCR 525 at p. 540, AIR 1967 SC 1836, Subba Rao, CJ, referred to the exposition of personal liberty in Kharak Singh and held that it includes within itself “all the varieties of rights which go to make up the personal liberties of man” and observed that it “bears the same comprehensive meaning as is given to the expression “liberty” under the US Constitution”. Of course in view of A.K Gopalan v. State Of Madras . 1950 SCR 88, AIR 1950 SC 27, (1950) 51 Cri LJ 1383, the liberties enshrined in Article 19 were stated to be excluded. In Maneka Gandhi (1978) 1 SCC 248, Bhagwati, J. endorsed the aforesaid with a further expansion that “it is not a valid argument to say that the expression personal liberty in Article 21 must be so interpreted as to avoid overlapping between that Article and Article 19”. “Personal liberty” was said to be an expression of widest amplitude, and the procedure prescribed by law should be reasonable, just and fair (having regard to the impact of Article 14) (Pr 5 @ p. 280). With this, right to go abroad was held to be covered by Article 21, but not integral to Article 19(i)(a) in all situations. Thus, as regards Article 21 it has to be seen whether privacy in general as claimed by the petitioners, is an attribute of life and personal liberty guaranteed by Article 21.
Privacy is a contextually limited and variable concept with an inherent rading characterstic
60. Privacy exists in contrast to “public” or what is made public. As a person moves out of his castle and the more he opens the gates of his Castle and personhood, his privacy would fade and dissipate. As the person relates to others, singularly or in groups, his privacy would get diluted. So also when he relates with institutions of all kinds and also the State. This is where the “context” assumes great significance when adjudging whether a claim qualifies to be judicially recognised as a “Life and Personal Liberty” claim under Article 21. It is largely, if not entirely, a relative and variable concept, and hence amorphous. Therefore, it ought not to be recognised as a general concept to be implicit in Article 21.
61. It is submitted that the court should adopt a cautious approach in recognising a particular privacy claim as implicit in Article 21. The right to privacy is a jurisprudential realm where globally the courts are still groping amidst confusion to ascertain the extent of privacy concerns which should be recognised as a constitutional right. Many a times, the court has proceeded on an assumption that a claimed right is a fundamental right under the Constitution. It is noted in Gobind v. State of M.P. (1975) 2 SCC 148 [Mr Shyam Divan's Compilation Pg 123] that the US SC recognises that “a right of personal privacy, or a guarantee of certain areas or zones of privacy does exist under the Constitution”. (Pr 19). In para 20 they observed that the framers of our Constitution “must have deemed to have conferred upon an individual as against the Government a sphere he should be let alone”. Yet, in para 23 they observe against a broad definition of privacy as such a right was not explicit in the Constitution. Thus, the court was against a general recognition of a right to privacy. Further, the court in paras 22 and 24 has stressed, as the only suggestion that the “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'. They recommend in para 28 that the right to privacy will have to undergo case-by-case development. Yet again, in para 23, the court has emphasised that “privacy interest in autonomy must also be placed in the context of other rights and values.” [also, in the context of right to life and personal liberty of others, as ‘X’ v. Hospital ‘Z’ (1998) 8 SCC 296.]
62. It is safer to say that right to privacy as a part of personal liberty under the Constitution may exist in matters of personal intimacies, home and family life, correspondence, personal health. This is what Charles Warren and Louis D. Brandeis intended in their article “The right to privacy”. According to them, the idea of privacy has been understood as “the idea of private space in which man may become and remain himself” (Pr. 90 of Gobind (1975) 2 SCC 148). All Human Right Conventions ratified by India talk of respecting the private and family life, home and correspondence. The expanse is in narrow confines. Beyond this, complex issues arise in the domain of informational privacy.
63. Thus, despite the expansive approach sanctified by Maneka Gandhi case (1978) 1 SCC 248 only a certain zone of privacy contextually determined can get incorporated as implicit in Article 21. The concept of privacy being relative and flexible and of an amorphous kind the same as a generalised concept cannot be said to be integral to Article 21.
Right to choice
64. Article 21 includes the right to choose the way of life. Both “life” and “personal liberty” are individually and conjunctively wide enough to include the right of a person to make his choice with regard to his life and his growth and development. He can choose the space in which he wishes to operate and the manner in which he will operate. It is another matter that the range and extent of choice would depend upon the alternatives which are available considering the stage of development of the society. There is therefore a distinction between the right to choose and the extent of choice. The ability to make the choice would also depend upon the ability of the person to choose and this will include the financial abilities. Equally, the person can choose to act in private space or in public space. He may choose to be “let alone” and be in privacy or he may choose to step out in the open and public. The submission is that the making of choice is distinct from privacy. The right to choose is directly integral to and intrinsic right to life and personal liberty in Article 21 [I.R. I.R Coelho (Dead) By Lrs. v. State Of T.N .. (2007) 2 SCC 1]. The petitioner's contention that right to choice or decisional autonomy is contained in right to privacy is clearly erroneous. Right to choice cannot be located in privacy. It is another matter that one can make decisions or choice while being by himself.
Principle of limited purpose
65. In the domain of informational privacy, question arises as to what extent there would be a valid privacy claim implicating “life or personal liberty” when a person chooses to disclose personal information to a third party or several other parties with whom he relates to. It is submitted:
(i) Where the information is merely the basic identity information there would be no claim of privacy rights whatsoever under Article 21. Such information is part of identification information and is expected to be commonly and generally disclosed in human relation in the present day society.
(ii) Information which is more than basic identity information and pertains to other aspects of personal identity and the disclosure had been made by the person to another in a relationship of confidentiality, a presumption of limited purpose disclosure preventing further transference or utilisation, could be set to arise and implicate Article 21, provided that the further disclosure or transference is likely to cause significant injury or stigma. (iii) Where the second kind of information is transmitted to another in a relationship which is not involving confidentiality then the further transference and utilisation of the information, as such or in an aggregated and analysed form, would not involve any implication of Article 21. Non-confidential relationship does not, without more, involve any assumption that it has been given for a limited purpose. This is specially so if the transference has been made unconditionally.
(iv) Where personal information has been transmitted to the public at large or to a considerably large number of persons/institutions/service providers, then also the claim of privacy would fade out. The concept of privacy is not only relative and contextual but it also has an inherent fading attribute. The more the personal information goes into the public, the more will the informational privacy get diluted and eventually will fade out.
66. In the aforesaid circumstances an arching principle of limited purpose disclosure if at all, should be drawn only with respect to the arch of sensitive personal information transmitted to another person in a confidential relationship disclosure of which could have a real likelihood of causing significant harm or injury. It should be an important condition attached to the principle that the information can be further transferred or utilised provided such transference or utilisation is not likely to cause any significant injury or stigma.
67. It is also important that no overarching principle be devised which obstructs the growth of overall knowledge fund available with the society. Data or even meta data needs to be aggregated analysed to produce further knowledge for the benefit of the society. That enriches “life” and “personal liberty” both.
68. We are in an informational, knowledge and technological era. Technology with artificial intelligence is growing rapidly. It helps, facilitates and empowers. We cannot stand with our backs towards the growth of technology. The approach to growth of technology, information and knowledge cannot be allowed to be ostrich-like or Luddite (fear stricken). While we may be entitled to protect ourselves from significant harm and or injury, there should be no obstruction to the use of information collected.
69. Drawing of an overarching principle based on limited purpose disclosure has serious problems:
(i) It creates an assumption of limited purpose even where the information has been parted unconditionally and voluntarily.
(ii) It creates an assumption of limited purpose disclosure even where a person has freely and deliberately traded off the personal information for superior benefits.
(iii) It would actually infringe on the person's right to choice.
(iv) It is impossible to implement such a principle for two reasons.
(a) The tremendous growth of technology is likely to present a scenario where the computer collects, aggregates and analyses then transmits information simultaneously.
(b) The servers may well be located outside India, the aggregation, analysis and utilisation may happen abroad. There is no way to control it. Horizontal regulation is not possible.
(v) It also needs to be borne in mind that the overarching principle is very likely to be exploited by criminals, corrupt and terrorist. As an illustration a person having committed a crime may disclose the information confidentially to his close circle of friends or a criminal having got injured while committing a crime approaches a doctor or hospital (which is in confidential domain) then the commission of crime which has become known to a third party cannot be transferred to the State. Identically, a minor rape victim may disclose the information to a teacher would be entitled to transfer the information not only to the family, crime agencies of the State. There can be such instances of disclosure of crime in the context of money laundering and hoarding of black money.
70. Therefore, nature of information and causation of harm or injury are important aspects and no absolute overarching principles of limited purpose should be devised.
71. Requirement of consent for further transfer and utilisation of personal information, given knowingly and unconditionally, particularly in a non-confidential commercial relationship extends “ownership” idea into a parted information which post-parting assumes property dimensions. This does not flow from privacy or choice.
72. Also notable is the fact that worth of parted information arises upon aggregation and the aggregated information is not the same thing as information of individual received.
Kyllo respects “Reasonable” expectation
73. The test of reasonable expectation of privacy has not been done away with. It continues to be applied consistently in the US. Justice Scalia speaking for the majority in Kyllo v. United States 2001 SCC OnLine US SC 61, 533 US 27 (2001) said that they cannot refine the test laid down in Katz 1967 SCC OnLine US SC 248, 389 US 347 at p. 361 (1967) but when it comes to searches in homes this test cannot take away what had been traditionally been protected by IVth Amendment.
74. The reasonable expectation of privacy test has been followed consistently even after Kyllo 2001 SCC OnLine US SC 61, 533 US 27 (2001). Justice Scalia has himself applied the reasonable expectation test in his subsequent judgments both while speaking for the majority or in dissent. Some of them are as follows:
(i) Samson v. California 2006 SCC OnLine US SC 57, 547 US 843 (2006)
(ii) Safford Unified School District v. Redding 2009 SCC OnLine US SC 81, 557 US 364 (2009)
(iii) Ontario v. Quon 2010 SCC OnLine US SC 71, 560 US 746 (2010)
(iv) United States v. Jones 2012 SCC OnLine US SC 13, 565 US 400 (2012)
(v) Maryland v. R. 569 US __ (2013)
(vi) City of Los Angeles v. Patel 576 US __ (2015)
(The majority judgment by Sotomayer, J. examined the question whether the warrantless search of records of motels was reasonable and whether it violated IVth Amendment. Justice Scalia in his dissenting judgment held that industry such as motels/inns, etc are highly regulated industries and those who enter such industries have a lesser expectation of privacy.)
IX. Mr Gopal Sankaranarayanan, Advocate, for the respondents
1. The issue
1.1. This Bench of nine Hon'ble Judges has been constituted to ascertain the correctness of the judgments of this Hon'ble Court in M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865 and Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329, vis-à-vis their observations concerning the fundamental right to privacy. The petitioners have, inter alia, argued that neither of these judgments deal with the issue of privacy; that the observations therein are obiter; that even if it were part of the ratio, that was in the context of the Gopalan compartmentalisation, and in any case, ought to be overruled. In light of these submissions and those made by the respondents, there appear to be three alternatives available to this Hon'ble Court:
1.1.1. To decide that M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865 and Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329 are correctly decided and that there is no fundamental right to privacy.
1.1.2. To decide that M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865 and Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329 are correctly decided but as per an earlier legal regime that no longer prevails, and that there is a fundamental right to privacy.
1.1.3. To decide that M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865 and Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329 are correctly decided regardless of the legal regime, and that only certain aspects of the right to privacy can be protected as fundamental rights, while others are protected as legal rights.
2. The questions
2.1. What is the scope of the right to privacy? How is it to be defined?
2.2. How much of this right to privacy can be elevated to the status of a fundamental right? Are there aspects which are protected as a legal right, without more?
2.3. How would such a fundamental right to privacy be controlled? What tests would be made applicable under Article 21?
2.4. What are the consequences of a declaration of a right as a fundamental right? What obligations follow on the State, and if at all, on non-State actors? Can such a right be waived? Where aspects of these rights are protected by law, what else would follow if they are raised to the level of a fundamental right?
3. The propositions
3.1. M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865 and Kharak Singh AIR 1963 SC 1295, (1963) 2 Cri LJ 329 are correctly decided. The findings concerning privacy being a fundamental right are part of the ratio of these two judgments.
3.2. There has been no change in the constitutional context from Gopalan AIR 1950 SC 27, (1950) 51 Cri LJ 1383 through Cooper (1970) 1 SCC 248 & Maneka (1978) 1 SCC 248 till now.
3.3. Privacy is incapable of precise definition and ought not to elevated in all aspects, dimensions and sub-species to the level of a fundamental right.
3.3.1. The fundamental aspect: 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.
3.3.2. The legal aspect: Those facets which are not protected by Article 21 but have statutory and regulatory protection.
3.3.3. The unprotected residue: Those facets which have sociological and philosophical underpinnings but are not presently subject to protection either by Article 21 or by statute.
3.4. Two aspects that need to be considered on recognising aspects of the rights to privacy are:
3.4.1. They cannot be waived; and
3.4.2. The test to protect against their invasion is whether such State action is just, fair and reasonable (and not to concern itself with the interest of the State);
3.5. The international legal regime is no different from the Indian experience, but caution ought to be exercised in importing approaches out of context.
A brief backdrop on interpretation
Detailed submissions
3.1.1. M.P. Sharma v. Satish Chandra1
3.1.1.1. In the context of search warrants, the Court first considers the proposition placed before it in the following words:
“It is urged that both search and seizure of a document and a compelled production thereof on notice or summons serve the same purpose of being available as evidence in a prosecution against the person concerned, and that any other view would defeat or weaken the protection afforded by the guarantee of the fundamental right. This line of argument is not altogether without force and has the apparent support of the Supreme Court of the United States of America in Boyd v. United States 1886 SCC OnLine US SC 58, 116 US 616 (1886).”
3.1.1.2. In order to understand the context of Boyd 1886 SCC OnLine US SC 58, 116 US 616 (1886), the Court then proceeded to extract the 4th and 5th Amendments to the Constitution and then extracted the following phrase from the majority judgment:
“The compulsory production of a man's private papers is search and seizure.”
and again thus
“We have been unable to perceive that the seizure of a man's private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself.”
3.1.1.3. The judgment then proceeds in noting that the majority held that the order for production was vulnerable not only on the ground of the 5th Amendment (self-incrimination) but also the 4th Amendment (illegal search). It then rejects the applicability of Boyd 1886 SCC OnLine US SC 58, 116 US 616 (1886) to the Indian context and concludes as follows:
“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.”
3.1.1.4. The “totally different fundamental right” referred to here is obviously Article 20(3) which was relied upon by the petitioner in the case. That in itself makes no difference to the present case where the petitioners contend that the right to privacy is located in Part III of the Constitution. The verdict in M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865 directly negates such a contention, having concluded that the fundamental right to privacy is not recognised in our Constitution.
3.1.2. Kharak Singh v. State of U.P.2
3.1.2.1. The majority judgment penned by Ayyangar, J proceeds to deal with the challenge to Regulation 236 of the U.P. Police Regulations which had 6 sub-clauses. The Court first records that the challenge raised by the petitioner is also on violation of personal liberty as enshrined in Article 21 and then proceeds to deal with each of the regulations seriatim.
3.1.2.2. In the context of clause (b) which dealt with nocturnal domiciliary visits, the Court adverted to the words of Field, J in Munn v. Illinois 1876 SCC OnLine US SC 4, 94 US 113 (1877) speaking in the context of the due process clauses in the 5th and 14th Amendments to say:
“By the term ‘life’ as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all these limits 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 … By the term liberty, as used in the provision something more is meant than mere freedom from physical restraint or the bounds of a prison.”
3.1.2.3. The Court then states that our own Article 21 must be given the widest interpretation and concludes that “life” be given the same interpretation as that given by Field, J. Then, in order to interpret “personal liberty”, the Court refers to Frankfurter, J in Wolf v. Colorado 1949 SCC OnLine US SC 102, 93 L Ed 1782, 338 US 25 (1949), where he said:
“The security of one's privacy against arbitrary intrusion by the police … is basic to a free society. It is therefore implicit in ‘the concept of ordered liberty’ and as such enforceable against the States through the Due Process Clause. The knock at the door, whether by day or by night, as a prelude to a search, without authority of law but solely on the authority of the police, did not need the commentary of recent history to be condemned as inconsistent with the conception of human rights enshrined in the history and the basic constitutional documents of English-speaking peoples … 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.”
3.1.2.4. It is therefore apparent that the question of privacy squarely arose in the context of interpreting the “personal liberty” clause in the light of American case law. The judgment then draws a contrast after extracting the 4th Amendment to say that “our Constitution does not in terms confer any like Constitutional guarantee”.
3.1.2.5. This is precisely why, immediately thereafter, when the validity of Clauses (c), (d) & (e) dealing with shadowing and reporting the movements of suspects are concerned, the Court says:
“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.
3.1.2.6. The very basis for the majority sustaining Clauses (c), (d) & (e) is that there is no right to privacy in our Constitution. This is the ratio of the ruling, absent which there is no rationale to save the impugned clauses.
3.1.3. Admittedly, several judgments of this Hon'ble Court have attributed the genesis of the discussion on the right to privacy to these two judgments. Hence, there ought not to be much doubt that indeed they did deal with the issue. The only misdirection appears to be what the ratio was attributed to be.
3.2. There has been no change in the constitutional context from Gopalan till now
3.2.1. Mr Subramanium's written submissions commence with the following paragraph:
“It is submitted that the decisions in M.P. Sharma v. Satish Chandra AIR 1954 SC 300, 1954 Cri LJ 865 and Kharak Singh v. State of U.P. AIR 1963 SC 1295, (1963) 2 Cri LJ 329 to the extent they interpret fundamental rights on a distinctive basis (as recognized in A.K Gopalan v. State Of Madras . AIR 1950 SC 27, (1950) 51 Cri LJ 1383, are no longer good law. In view of the fact that A.K. Gopalan case AIR 1950 SC 27, (1950) 51 Cri LJ 1383 stands overruled in R.C. Cooper v. Union of India (1970) 1 SCC 248, it follows a fortiori that neither of the above decisions are effective.”
3.2.2. It has unfortunately been accepted without question that:
(a) A.K. Gopalan AIR 1950 SC 27, (1950) 51 Cri LJ 1383 had decided that all fundamental rights are to be decided on a distinctive basis; and
(b) R.C. Cooper (1970) 1 SCC 248 laid down new law in overruling this proposition of Gopalan AIR 1950 SC 27, (1950) 51 Cri LJ 1383.
3.2.3. Shah, J. speaking for the majority of 10 Judges in R.C. Cooper (1970) 1 SCC 248 said (and this has been reproduced in Para 9 of Mr Subramanium's submissions):
“The majority of the Court (Kania, C.J., and Patanjali Sastri, Mahajan, Mukherjea and Das, JJ.), held that Article 22 being a complete code relating to preventive detention, the validity of an order of detention must be determined strictly according to the terms and “within the four corners of that Article”.
As a consequence, the judgment went on to conclude that:
“In our judgment, the assumption in A.K. Gopalan case AIR 1950 SC 27, (1950) 51 Cri LJ 1383 that certain articles in the Constitution exclusively deal with specific matters and in determining whether there is infringement of the individual's guaranteed rights, the object and the form of the State action alone need be considered, and effect of the laws on fundamental rights of the individuals in general will be ignored cannot be accepted as correct.”
3.2.4. It is doubtless that on the latter proposition (object v. effect), Gopalan was correctly overruled by Cooper (1970) 1 SCC 248. However, on the former (individual rights being complete codes), there appears to be a doubt whether the premise of Shah, J.'s majority judgment is correct. A careful perusal of the individual judgments in Gopalan AIR 1950 SC 27, (1950) 51 Cri LJ 1383 would show that in fact only one of the Judges (Mahajan, J.) had agreed with the Attorney General's complete code argument.
3.2.5. The following are the relevant extracts from the judgments in Gopalan AIR 1950 SC 27, (1950) 51 Cri LJ 1383:
Kania, C.J.: The learned Attorney General contended that the subject of preventive detention does not fall under Article 21 at all and is covered wholly by Article 22. According to him, Article 22 is a complete code. I am unable to accept that contention. [Para 26/P.115]
Fazl Ali. J.: 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. [Para 58]
Sastri, J.: The learned Attorney General contended that Article 21 did not apply to preventive detention at all, as Article 22 clauses (4) to (7) formed a complete code of constitutional safeguards in respect of preventive detention, and, provided only these provisions are conformed to, the validity of any law relating to preventive detention could not be challenged. I am unable to agree with this view. [Para 133/P. 207]
Das, J.: The learned Attorney General, on the other hand has at one stage of his argument, urged that Article 21 has nothing to do with preventive detention at all and that preventive detention is wholly covered by Articles 22(4) to (7) which by themselves constitute a complete code. I am unable to accede to this extreme point of view also. [Para 291/P. 324]
3.2.6. It is thus evident that the majority in Gopalan AIR 1950 SC 27, (1950) 51 Cri LJ 1383 did not say what the majority in Cooper (1970) 1 SCC 248 erroneously presumed they did i.e. that the complete code theory was accepted and applied. In fact, on the very facts of the case, the detention of the petitioner was examined with reference to Article 22 and Article 21 with the latter taken to supplement the former. If the above complete code proposition was correct, there would have been no reason for Gopalan AIR 1950 SC 27, (1950) 51 Cri LJ 1383 judgment to become the cause celebre in our constitutional history for its rejection of the due process argument.
Note:—Advertence may also be made to the fact that the arguments on Article 19 were countenanced but rejected, not because of the complete code theory, but because reading Articles 19 and 21 as overlapping would cause the entire penal law to become vulnerable, leading to chaos.
3.2.7. Despite the error, Cooper (1970) 1 SCC 248 has been repeatedly referred to as having overruled Gopalan AIR 1950 SC 27, (1950) 51 Cri LJ 1383 on the complete code theory, most notably in Sambhu Nath Sarkar v. State of W.B. (1973) 1 SCC 856 and Khudiram Das v. State of W.B. (1975) 2 SCC 81 The same propositions were followed without question by the majority in Maneka Gandhi v. Union of India (1978) 1 SCC 248 speaking through Bhagwati, J:
“The decision in A.K. Gopalan case AIR 1950 SC 27, (1950) 51 Cri LJ 1383 gave rise to the theory that the freedoms under Articles 19, 21, 22 and 31 are exclusive — each article enacting a code relating to the protection of distinct rights, but this theory was overturned in R.C. Cooper case (1970) 1 SCC 248” [Para 5]
However, it was Kailasam, J. in that very case who entered upon a detailed analysis of the Gopalan AIR 1950 SC 27, (1950) 51 Cri LJ 1383 and Cooper (1970) 1 SCC 248 verdicts and stated as follows:
“We are not concerned in this case as to whether the decision in Bank Nationalisation case (1970) 1 SCC 248 is in the nature of obiter dicta so far as it held that Articles 19(1) and 31(2) are interrelated. But it is necessary to state that the decision proceeded on some erroneous assumptions. At p. 571 of Bank Nationalisation case (1970) 1 SCC 248 it was assumed : “The majority of the Court (Kania, C.J. and Patanjali Sastri, Mahajan, Mukherjea and Das, JJ.) held that Article 22 being a complete code relating to preventive detention the validity of an order of detention must be determined strictly according to the terms and within the four corners of that article.” This statement is not borne out from the text of the judgments in Gopalan case AIR 1950 SC 27, (1950) 51 Cri LJ 1383. … The Court has not considered the reasoning in Gopalan case AIR 1950 SC 27, (1950) 51 Cri LJ 1383 and overruled it.” [Para 158]
3.2.8. It is submitted that in as many as 96 cases from 1950 to 1970, challenges were tested against multiple fundamental rights, without any cloistered approach as has been attributed to the Gopalan AIR 1950 SC 27, (1950) 51 Cri LJ 1383 dictum. It was, therefore, an error on the part of the Cooper (1970) 1 SCC 248 majority to presume that for the previous two decades the law had been to exercise judicial review on individual fundamental rights without going further.
3.2.9. As a result of the above, the proposition put forward by the petitioners that in view of Cooper (1970) 1 SCC 248 overruling Gopalan AIR 1950 SC 27, (1950) 51 Cri LJ 1383, the judgments in M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865 and Kharak AIR 1963 SC 1295, (1963) 2 Cri LJ 329 are no longer good law does not hold.
3.2.10. The above submission is quite apart from the fact that the judgments in M.P. Sharma AIR 1954 SC 300, 1954 Cri LJ 865 and Kharak AIR 1963 SC 1295, (1963) 2 Cri LJ 329 dealt with the content of “life and personal liberty” in Article 21 and did not concern itself with the “complete code” theory. In fact, this is even acknowledged by Bhagwati, J. in Maneka Gandhi (1978) 1 SCC 248 in the following words:
“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) 51 Cri LJ 1383 and the observations made by Patanjali Sastri, J., Mukherjea, J., and S.R. Das, J., seemed to place a narrow interpretation on the words “personal liberty” so as to confine the protection of Article 21 to freedom of the person against unlawful detention. But there was no definite pronouncement made on this point since the question before the Court was not so much the interpretation of the words “personal liberty” as the inter-relation between Articles 19 and 21. It was in Kharak Singh v. State of U.P. AIR 1963 SC 1295, (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.” [Para 5]
Without prejudice….
3.3. Only certain aspects of the right to privacy can be elevated to fundamental right status.
3.3.1. There does not appear to be any cavil with the fact that a right to privacy exists. However, privacy being an omnibus term which the petitioners have admitted they cannot define, great care must be taken before subjecting the entire genus of privacy rights to a hallowed protection.
3.3.2. Privacy, not strictly being a jural term, appears across many disciplines concerning man—ethics, philosophy, psychology and medicine. Notwithstanding the various forays made in the legal field into understanding its full import, some assistance could be received from the classification available in the medical field. The Winter 2016 Edition of Stanford Encyclopedia of Philosophy, in its chapter entitled “Privacy and Medicine” classifies privacy into 5 groups:
(i) Informational privacy (confidentiality, data, secrecy of diagnosis, anonymity while testing, IVF)
(ii) Physical privacy (solitude for the sick and dying, bodily modesty, non-consensual testing and imaging)
(iii) Associational privacy (regulating visitors, levels of access)
(iv) Proprietary privacy (blood, tissue samples, fluids)
(v) Decisional privacy (birth control, abortion, gender selection, right to refuse care)
3.3.3. Each of the above groups would equally apply to any aspect of human conduct, even outside the medical realm. In India, many of these are protected or regulated by law, with restrictions on their invasion, conditions for their use and liabilities for transgressions. Several other aspects have been specifically recognised as part of the phrases “life” and “personal liberty” under Article 21 of the Constitution, thereby according to them the status of a fundamental right:
3.3.3.1. The fundamental rights
Over the course of the last 67 years, Article 21 has been gradually expanded to include a whole host of rights that are essential to individuals. Particularly, the phrase “personal liberty” includes within it the aspects of autonomy, self-determination and personhood. When the right to health, shelter and education are among the dozens of rights that have been read into this compendious term, very little remains, and which probably ought not to be raised to that standard by way of the indirect acceptance of the word “privacy”. It would be best to leave the specifics to a case-by-case determination.
In addition, it may be relevant to consider that in the decisions where a right to privacy has been specifically considered by this Hon'ble Court, the contexts are extremely limited and does not encompass the entire width of privacy as is being presently canvassed.
3.3.3.2. The legal rights
As correctly submitted by the petitioners, there are several laws and regulations in place which perceive the necessity to protect the privacy of individuals. These provisions, including the Regulations made under the Aadhaar Act, 2016 itself recognise the right to privacy and acknowledge the fact that it requires protection. However, the legislature in its wisdom has chosen certain specific categories of privacy rights and afforded them statutory security, which includes procedural protections and penal consequences in the event of breaches.
It is of note that even the 271st Report of the Law Commission entitled “Human DNA Profiling” submitted as recently as 26-7-2017 acknowledges the existence of such a right very clearly. In its conclusions while enclosing the DNA Based Technology (Use and Regulation) Bill, 2017, the Commission states:
“7.5 The Bill of 2017 provides provisions intended to protect the right to privacy. The mechanism provided permits for processing of DNA samples only for 13 CODIS loci which would not violate in any way the privacy of a person and as a result will never go beyond identification of a particular person. The strict adherence to 13 CODIS loci will eliminate the apprehension of revealing genetic traits.”
3.3.3.3. It is submitted that the residue of the privacy rights that do not at the moment have protection as fundamental rights via judicial dictum or as legal rights by legislation will have to be specifically enunciated and brought forward in a fit case in order to secure the protection of this Hon'ble Court under Article 21.
3.3.4. As a result, it is submitted that a careful analysis would be required in specific cases to accord the protection of Article 21 to the various species of privacy rights.
3.4. Once so declared, the fundamental right must withstand the established constitutional norms
3.4.1. Waiver
3.4.1.1. It has been well-established since the celebrated decision in Basheshar Nath v. CIT 1959 Supp (1) SCR 528, AIR 1959 SC 149 that fundamental rights cannot be waived. In fact, the enunciation can be traced back to the following passage from the majority judgment of Mahajan, C.J. in Behram Khurshid Pesikaka v. State Of Bombay . (1955) 1 SCR 613, AIR 1955 SC 123, 1955 Cri LJ 215:
“Again, we are not able to subscribe to the view that in a criminal prosecution it is open to an accused person to waive his constitutional right and get convicted. A reference to Cooley's Constitutional Limitations, Vol. I, p. 371, makes the proposition clear. Therein the learned professor says that a party may consent to waive rights of property, but the trial and punishment for public offences are not within the province of individual consent or agreement. In our opinion, the doctrine of waiver enunciated by some American Judges in construing the American Constitution cannot be introduced in our Constitution without a fuller discussion of the matter. No inference in deciding the case should have been raised on the basis of such a theory. The learned Attorney General when questioned about the doctrine did not seem to be very enthusiastic about it. Without finally expressing an opinion on this question we are not for the moment convinced that this theory has any relevancy in construing the fundamental rights conferred by Part III of our Constitution. 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. Reference to some of the articles, inter alia, Articles 15(1), 20, 21 makes the proposition quite plain. A citizen cannot get discrimination by telling the State “You can discriminate”, or get convicted by waiving the protection given under Articles 20 and 21.”
3.4.1.2. While in Basheshar Nath 1959 Supp (1) SCR 528, AIR 1959 SC 149, Bhagwati and Subba Rao, JJ. adopted the position that no fundamental right could be waived, Das and Kapur, JJ. restricted that principle only to Article 14. However, in Olga Tellis v. Bombay Municipal Corpn. (1985) 3 SCC 545, SCC at paras 27-29, the Constitution Bench applied the principle to Article 21 and the right to dwell on pavements. This position has remained the law of the land till date without any detraction.
3.4.1.3. This being the position, if this Hon'ble Court were to hold that the right to privacy as a whole were a fundamental right, then it would not be possible to waive any part of it. This would lead to the following complications:
(i) All the statutory provisions that deal with aspects of privacy as detailed in Appendix 5 would be vulnerable.
(ii) 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.
(iii) 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.
3.4.1.4. As a consequence, it is submitted that the best approach would be to recognise that certain aspects of the right to privacy may be a part of Article 21, but that they would be determined on a case by case basis.
3.4.2. The Article 21 test
3.4.2.1. During the arguments before this Hon'ble Court, a question has arisen regarding the test to be applied to a right that emanates from one or more of the fundamental rights and is then located in Article 21.
3.4.2.2. The opinion of the majority in Maneka Gandhi (1978) 1 SCC 248 was that the procedure prescribed by law has to be “fair, just and reasonable, not fanciful, oppressive or arbitrary”. It was precisely this test that was applied in Mithu v. State Of Punjab . (1983) 2 SCC 277 to strike down Section 303 of the Penal Code [Paras 6 &23 per Chandrachud, C.J. and Para 24 per Reddy, J)
3.4.2.3. It is submitted that merely because privacy is traceable to Articles 14 and 19 of the Constitution does not automatically qualify it to be a fundamental right. This is in fact the view of the majority in Maneka (1978) 1 SCC 248, speaking through Bhagwati, J. in the following words:
“29. …It is not enough that a right claimed by the petitioner flows or emanates from a named fundamental right or that its existence is necessary in order to make the exercise of the named fundamental right meaningful and effective. Every activity which facilitates the exercise of a named fundamental right is not necessarily comprehended in that fundamental right nor can it be regarded as such merely because it may not be possible otherwise to effectively exercise that fundamental right. The contrary construction would lead to incongruous results and the entire scheme of Article 19(1) which confers different rights and sanctions different restrictions according to different standards depending upon the nature of the right will be upset. What is necessary to be seen is, and that is the test which must be applied, whether the right claimed by the petitioner is an integral part of a named fundamental right or partakes of the same basic nature and character as the named fundamental right so that the exercise of such right is in reality and substance nothing but an instance of the exercise of the named fundamental right.
33. We cannot, therefore, accept the theory that a peripheral or concomitant right which facilitates the exercise of a named fundamental right or gives it meaning and substance or makes its exercise effective, is itself a guaranteed right included within the named fundamental right.”
3.4.2.4. It is evident, therefore, that it is only the core (the umbra) of the facilitating unnamed right which would be recognised as protected by Article 21 and not what has been often referred to as the penumbral right of privacy.
3.4.2.5. It is submitted that the concepts of “legitimate State interest” and “compelling State interest” are concepts alien to the Indian constitutional scheme and therefore find no mention within it. It would be inappropriate to place an additional burden on the State by testing whether the State's interest is at all involved—a question that is in fact properly left to the legislature as the people's representative. For example, if, based on military intelligence that enemy incursions are possible at the border, the State enacts law mandating border residents to compulsorily register themselves at the district headquarters, the legitimacy of the State's action ought not to be examined by this Hon'ble Court.
3.4.2.6. Thus, if and when any aspect of privacy is read into Article 21, the only test that would apply is the one enunciated in Maneka (1978) 1 SCC 248 and followed till date.
3.5. The international legal regime is as limited as India (if not more so) in the recognition of a fundamental right to privacy
3.5.1. It is clear that the American case law has evolved in a completely different context, hailing from a bare bones constitutional text with a context-specific interpretation emanating from its Supreme Court. The decisions which have touched upon privacy over the last century fall broadly into the few categories of surveillance, search & seizure, bodily autonomy and sexual choice. It is difficult to conclude from these few instances that a wide right to privacy exists in the United States.
3.5.2. The House of Lords in Wainwright v. Home Office 2003 UKHL 53, (2004) 2 AC 406, (2003) 3 WLR 1137 (HL) was very clear in enunciating that there existed no common law right to privacy and no remedy could be granted in tort. In fact, it was specifically stated that the remedies would lie in other actions (battery, trespass, etc.) or via statutory remedies provided in the Interception of Communications Act, 1985 and Police Act, 1997. This is not unlike the Indian context as has been detailed above.
3.5.3. Care must be taken not to confuse the issue of the right to privacy as a tort as against its existence as a fundamental right. Even the celebrated Harvard article of Warren and Brandeis dealt exclusively with the existence of the private right with no advertence to its public law element.
3.5.4. It is submitted that the foreign experiences in the context of the right to privacy pale in significance to the robust development of constitutional law in India. It would be apposite to apply the dicta of the Indian courts which reflect the Indian societal experience rather than to import without a context.
X. Dr Arghya Sengupta, Advocate, for the respondents
1. These written submissions are presented for the kind perusal of this Hon'ble Court.
2. The reference order dated 18-7-2017 (2017) 10 SCC 641 from which the present proceedings arise, states:
“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 v. Satish Chandra 1954 SCR 1077, AIR 1954 SC 300, 1954 Cri LJ 865, by an eight-Judge Constitution Bench, and also, in Kharak Singh v. State of U.P. (1964) 1 SCR 332, AIR 1963 SC 1295, (1963) 2 Cri LJ 329 by a six-Judge Constitution Bench, that there is no such fundamental right, is the correct expression of the constitutional position.”
3. If the Court finds the two aforementioned cases correctly decided, then no question of a fundamental right to privacy arises in the first place. However, if the Court finds the two cases wrongly decided or is able to distinguish them, the Court would have to lay down whether there is a right to privacy in Part III of the Constitution; if so, what are its contours and if not, then whether any aspects of privacy are already protected by Part III.
4. Without prejudice to the arguments made earlier regarding the correctness of M.P. Sharma v. Satish Chandra 1954 SCR 1077, AIR 1954 SC 300, 1954 Cri LJ 865 (“M.P. Sharma”) (8 Judges) and Kharak Singh v. State of U.P. (1964) 1 SCR 332, AIR 1963 SC 1295, (1963) 2 Cri LJ 329 (“Kharak Singh”) (6 Judges), our submission is as follows:
4.1. No general fundamental right to privacy ought to be read in to Part III of the Constitution:
4.1.1. The United States Supreme Court, on whose judgments, reliance has been placed by the petitioners, no longer uses the right to privacy to test laws that might have been tested on this ground, were it a well-established part of American constitutional law.
4.1.2. Reading in a right to privacy from certain privacy interests that may inhere in Part III of the Constitution is conceptually unsound.
4.1.3. An analysis of existing case law decided on the ground of right to privacy will demonstrate that they either relate to protections already granted under Article 21 or Article 19 or should not be protected under the Constitution at all.
4.2. Several concerns relating to privacy breaches raised by the petitioners are the rightful subject-matter of a data protection law:
4.2.1. Data protection and privacy per se are overlapping but distinct issues.
4.2.2. Only a comprehensive data protection legislation can effectively address such concerns.
4.2.3. The Government of India is alive to the need for such a law.
4.1. No general fundamental right to privacy ought to be read in to Part III of the Constitution
4.1.1. The United States Supreme Court, on whose judgments, reliance has been placed by the petitioners, no longer uses the right to privacy to test laws that might have been tested on this ground, were it a well-established part of American constitutional law.
5. The petitioners have placed reliance on the decision of the United States Supreme Court in Katz v. United States 1967 SCC OnLine US SC 248, 389 US 347 (1967) (“Katz”) to contend that the United States Constitution recognises a right to privacy. In Katz 1967 SCC OnLine US SC 248, 389 US 347 (1967), the question before the Supreme Court was whether eavesdropping on a conversation through a device placed outside a public phone booth was an unreasonable search and seizure offending the Fourth Amendment. The Fourth Amendment to the US Constitution provides,
“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.”
(emphasis supplied)
6. Till Katz 1967 SCC OnLine US SC 248, 389 US 347 (1967), it was held that such protection was only available for personal property, akin to common law trespass (see Scalia, J.'s opinion in United States v. Jones 565 US 400 (2012), for precedents). In Katz 1967 SCC OnLine US SC 248, 389 US 347 (1967), it was held by Potter Stewart, J. (at pp. 350-352):
“In the first place, the correct solution of Fourth Amendment problems is not necessarily promoted by incantation of the phrase ‘constitutionally protected area.’ Secondly, the Fourth Amendment cannot be translated into a general constitutional right to privacy. That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all. Other provisions of the Constitution protect personal privacy from other forms of governmental invasion. But the protection of a person's general right to privacy—his right to be let alone by other people—is, like the protection of his property and of his very life, left largely to the law of the individual States.”
“… But this effort to decide whether or not a given “area”, viewed in the abstract, is “constitutionally protected” deflects attention from the problem presented by this case. For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. See Lewis v. United States 1966 SCC OnLine US SC 177, 385 US 206 at p. 210 (1966); United States v. Lee 1927 SCC OnLine US SC 147, 71 L Ed 1202, 274 US 559 at p. 563 (1927). But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. See Rios v. United States 1960 SCC OnLine US SC 125, 4 L Ed 2d 1688, 364 US 253 (1960); Jackson, ex p 96 US 727 at p. 733 (1877).
The Government stresses the fact that the telephone booth from which the petitioner made his calls was constructed partly of glass, so that he was as visible after he entered it as he would have been if he had remained outside. But what he sought to exclude when he entered the booth was not the intruding eye-it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen…”
(emphasis supplied).
7. Thus in Katz 1967 SCC OnLine US SC 248, 389 US 347 (1967), it was held that privacy protection in the Fourth Amendment extended to public places, moving beyond common law trespass, but did not entail a general right of privacy. It is instructive to note that Katz 1967 SCC OnLine US SC 248, 389 US 347 (1967) was decided two years after Griswold v. Connecticut 1965 SCC OnLine US SC 124, 381 US 479 (1965), widely viewed as first incorporating the right to privacy into US constitutional law. In Griswold 1965 SCC OnLine US SC 124, 381 US 479 (1965), the question before the Court was whether a Connecticut statute that forbade the use of contraceptives by married couples was unconstitutional. It was struck down by the Court ostensibly for violating the right to privacy. Douglas, J. speaking for the Court held (at pp. 485-486),
“The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a “governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” NAACP v. Alabama 1964 SCC OnLine US SC 112, 377 US 288 at p. 307 (1964). Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.
We deal with a right of privacy older than the Bill of Rights-older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”
(emphasis supplied)
8. However Stewart, J., who provided the opinion for the Court two years later in Katz 1967 SCC OnLine US SC 248, 389 US 347 (1967), dissented. He said (at p. 530),
“What provision of the Constitution, then, does make this state law invalid? The Court says it is the right of privacy “created by several fundamental constitutional guarantees.” With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.”
9. It is thus clear that Justice Stewart's dissenting view in Griswold 1965 SCC OnLine US SC 124, 381 US 479 (1965) decided in the context of the Fourteenth Amendment and the right to privacy became the controlling view of the Court when it came to the Fourth Amendment, viz. that this Amendment, or the Constitution generally did not espouse any general right to privacy.
10. The law relating to a general right to privacy appeared to be reinstated in the seminal decision of the Supreme Court in Roe v. Wade 1973 SCC OnLine US SC 20, 410 US 113 (1973). In Roe 1973 SCC OnLine US SC 20, 410 US 113 (1973), the question before the Court was whether a Texas statute which criminalised abortion except for limited grounds relating to the health of the mother was constitutional. It was struck down with the majority holding (at p. 154),
“We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.”
11. Interestingly, Stewart, J. wrote a concurring opinion in Roe v. Wade 1973 SCC OnLine US SC 20, 410 US 113 (1973) which held that the Texas statute is unconstitutional because it violated the due process clause since a decision fundamental to the individual such as whether to bear or beget a child is central to her liberty, much more than whether children should be allowed to learn a foreign language or not (earlier held to be constitutionally protected). The opinion strikes down the statute for violating liberty in the Fourteenth Amendment and not any general right to privacy. He holds (at pp. 168-170),
“ “In a Constitution for a free people, there can be no doubt that the meaning of ‘liberty’ must be broad indeed.” Board of Regents v. Roth 1972 SCC OnLine US SC 174, 408 US 564 at p. 572 (1972). The Constitution nowhere mentions a specific right of personal choice in matters of marriage and family life, but the “liberty” protected by the Due Process Clause of the Fourteenth Amendment covers more than those freedoms explicitly named in the Bill of Rights. See Schware v. Board of Bar Examiners 1957 SCC OnLine US SC 56, 353 US 232 at pp. 238-39 (1957); Pierce v. Society of Sisters 1925 SCC OnLine US SC 168, 69 L Ed 1070, 268 US 510 at pp. 534-35 (1925); Meyer v. Nebraska 1923 SCC OnLine US SC 150, 67 L Ed 1042, 262 US 390 at pp. 399-400 (1923). Shapiro v. Thompson 1969 SCC OnLine US SC 82, 394 US 618 at pp. 629-30 (1969); United States v. Guest 1966 SCC OnLine US SC 59, 383 US 745 at pp. 757-58 (1966); Carrington v. Rash 1965 SCC OnLine US SC 33, 380 US 89 at p. 96 (1965); Aptheker v. Secy. of State 1964 SCC OnLine US SC 163, 378 US 500 at p. 505 (1964); Kent v. Dulles 1958 SCC OnLine US SC 113, 2 L Ed 3d 1204, 357 US 116 at p. 127 (1958); Boilling v. Sharpe 1954 SCC OnLine US SC 45, 347 US 497 at pp. 499-500 (1954); Truax v. Raich 1915 SCC OnLine US SC 225, 239 US 33 at p. 41 (1915).
Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. Loving v. Virginia 1967 SCC OnLine US SC 152, 18 L Ed 1010, 388 US 1 at p. 12 (1967); Griswold v. Connecticut 1965 SCC OnLine US SC 124, 381 US 479 (1965); Pierce v. Society of Sisters 1925 SCC OnLine US SC 168, 69 L Ed 1070, 268 US 510 at pp. 534-35 (1925); Meyer v. Nebraska 1923 SCC OnLine US SC 150, 67 L Ed 1042, 262 US 390 at pp. 399-400 (1923). See also Prince v. Massachusetts 1944 SCC OnLine US SC 27, 321 US 158 at p. 166 (1944); Skinner v. Oklahoma 1942 SCC OnLine US SC 125, 86 L Ed 1655, 316 US 535 at p. 541 (1942). As recently as last Term, in Eisenstadt v. Baird 1972 SCC OnLine US SC 62, 405 US 438 at p. 453 (1972), we recognised 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. That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy. Certainly the interests of a woman in giving of her physical and emotional self during pregnancy and the interests that will be affected throughout her life by the birth and raising of a child are of a far greater degree of significance and personal intimacy than the right to send a child to private school protected in Pierce v. Society of Sisters 1925 SCC OnLine US SC 168, 69 L Ed 1070, 268 US 510 at pp. 534-35 (1925), or the right to teach a foreign language protected in Meyer v. Nebraska 1923 SCC OnLine US SC 150, 67 L Ed 1042, 262 US 390 at pp. 399-400 (1923).” Abele v. Markle 351 F Supp 224 at p. 227 (Conn 1972).
Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment.”
(emphasis supplied)
12. It is clear that Justice Stewart's view protects the interests of the pregnant woman to bear or beget a child, not as an instance of a general right to privacy not found in the constitutional text, but an instance of liberty that is worthy of protection in the Fourteenth Amendment to the Constitution. It is apparent from the future development of case law in the United States that this is the prevalent point of view. This will become apparent from a discussion of three cases below.
13. In Whalen v. Roe 1977 SCC OnLine US SC 21, 429 US 589 (1977), the issue before the Supreme Court was whether a New York Statute that required disclosure of certain personal information relating to patients and doctors to whom a particular scheduled drug, which had both a lawful and unlawful market, was prescribed, in order to check abuse, was constitutional. Upholding Justice Stewart's reasoning, it was held by the Court: (at pp. 598-600)
“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. Appellees argue that both of these interests are impaired by this statute. The mere existence in readily available form of the information about patients' use of Schedule II drugs creates a genuine concern that the information will become publicly known and that it will adversely affect their reputations. This concern makes some patients reluctant to use, and some doctors reluctant to prescribe, such drugs even when their use is medically indicated. It follows, they argue, that the making of decisions about matters vital to the care of their health is inevitably affected by the statute. Thus, the statute threatens to impair both their interest in the nondisclosure of private information and also their interest in making important decisions independently.
We are persuaded, however, that the New York program does not, on its face, pose a sufficiently grievous threat to either interest to establish a constitutional violation.”[emphasis supplied]
The Court speaking through Stevens, J. held: (at pp. 603-604)
“We hold that neither the immediate nor the threatened impact of the patient-identification requirements in the New York State Controlled Substances Act of 1972 on either the reputation or the independence of patients for whom Schedule II drugs are medically indicated is sufficient to constitute an invasion of any right or liberty protected by the Fourteenth Amendment. 392 US 1 at p. 9 (1968)”
14. In fact, Justice Stevens has consistently advocated the return to a wider understanding of ‘liberty’ in the Fourteenth Amendment in place of reading in new rights such as privacy (the words ‘liberty’, ‘freedom’ and ‘autonomy’ entail the same idea and are used interchangeably). In Fitzgerald v. Porter Memorial Hospital 523 F 2d 716 (7th Cir 1975), when he was a Judge in the US Court of Appeals in the Seventh Circuit he held (in a case that asked for a husband's right to be in the hospital room at the time of delivery of his baby) (at pp. 719-720),
“5. Plaintiffs characterize the right they assert as an aspect of the “right of marital privacy.” The source of its constitutional protection is either the so-called penumbra of various provisions of the Bill of Rights or the word “liberty” in the Due Process Clause of the Fourteenth Amendment.
6. It is somewhat unfortunate that claims of this kind tend to be classified as assertions of a right to privacy. For the group of cases that lend support to plaintiffs' position do not rest on the same privacy concept that Brandeis and Warren identified in their article in the 1890 Edition of the Harvard Law Review. These cases do not deal with the individual's interest in protection from unwarranted public attention, comment, or exploitation. They deal, rather, with the individual's right to make certain unusually important decisions that will affect his own, or his family's destiny. The Court has referred to such decisions as implicating “basic values”, as being “fundamental”, and as being dignified by history and tradition. The character of the Court's language in these cases brings to mind the origins of the American heritage of freedom the abiding interest in individual liberty that makes certain state intrusions on the citizen's right to decide how he will live his own life intolerable. Guided by history, our tradition of respect for the dignity of individual choice in matters of conscience and the restraints implicit in the federal system, federal judges have accepted the responsibility for recognition and protection of these rights in appropriate cases. But can it fairly be said that this is such a case?” (footnotes omitted)
(emphasis supplied)
Then at para 12 (at p. 721):
“12. We hold that the so-called right of marital privacy does not include the right of either spouse to have the husband present in the delivery room of a public hospital which, for medical reasons, has adopted a rule requiring his exclusion.”
Justice Stevens' jurisprudence and how he was the key Judge on the Supreme Court in moving away from a right to privacy to “the long arm of liberty” in the Fourteenth Amendment has been described in Jamal Greene, The So-Called Right to Privacy' 43 UC Davis Law Review 715-747, at pp. 731-747 (2010) [Professor Jamal Greene is Professor Law, Columbia Law School. The title is taken from a memorandum from then Justice Department Attorney John Roberts to the Attorney General on 11-12-1981 where Roberts wrote of the ‘so-called right to privacy’. Roberts is the present Chief Justice of the Supreme Court of the United States of America.]
15. Stewart, J. in concurrence held: (at pp. 608-609)
“The first case referred to, Griswold v. Connecticut 1965 SCC OnLine US SC 124, 381 US 479 (1965), held that a State cannot constitutionally prohibit a married couple from using contraceptives in the privacy of their home. Although the broad language of the opinion includes a discussion of privacy, see id., at 484-485, the constitutional protection there discovered also related to (1) marriage, see id., at 485-486; id., at 495 (Goldberg, J., concurring); id., at 500 (Harlan, J., concurring in judgment), citing Poe v. Ullman 1961 SCC OnLine US SC 133, 367 US 497 at p. 522 (1961) (Harlan, J., dissenting); Griswold 1965 SCC OnLine US SC 124, 381 US 479 (1965), US at pp. 502-503 (WHITE, J., concurring in judgment); (2) privacy in the home, see id., at 484-485 (majority opinion); id., at 495 (Goldberg, J., concurring); id., at 500 (Harlan, J., concurring in judgment), citing Poe v. Ullman 1961 SCC OnLine US SC 133, 367 US 497 at p. 522 (1961), US at p. 522 (Harlan, J., dissenting); and (3) the right to use contraceptives, see Griswold 1965 SCC OnLine US SC 124, 381 US 479 (1965), US at p. 503 (WHTE, J., concurring in judgment); see also Roe v. Wade 1973 SCC OnLine US SC 20, 410 US 113 (1973), US at pp. 169-170 (STEWART, J., concurring). Whatever the ratio decidendi of Griswold 1965 SCC OnLine US SC 124, 381 US 479 (1965), it does not recognize a general interest in freedom from disclosure of private information.”
(emphasis supplied)
16. Thus it is clear that the Court followed an incremental approach to understanding which facets of liberty in the Fourteenth Amendment would be entitled to protection rather than recognising a general right to privacy. Alternatively put, it was apparent to the Court that when a privacy claim was made, the rationale underlying the same was the need to protect liberty in various critical facets of human life.
17. It is our humble submission that in cases concerning the right to privacy in the Fourteenth Amendment that followed, it was liberty and not privacy that was the controlling interest. Thus in Planned Parenthood of Southeastern Pennsylvania v. Casey, Governor of Pennsylvania 1992 SCC OnLine US SC 102, 505 US 833 (1992), the Supreme Court in its first significant abortion judgment after Roe v. Wade 1973 SCC OnLine US SC 20, 410 US 113 (1973), held: (at pp. 846, 851)
“Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall “deprive any person of life, liberty, or property, without due process of law.” The controlling word in the cases before us is “liberty.” Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years, since Mugler v. Kansas 1887 SCC OnLine US SC 282, 123 US 623 at pp. 660-61 (1887), the Clause has been understood to contain a substantive component as well, one “barring certain government actions regardless of the fairness of the procedures used to implement them.” Daniels v. Williams 1986 SCC OnLine US SC 12, 474 US 327 at p. 331 (1986)….
Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Carey v. Population Services International 1977 SCC OnLine US SC 103, 431 US 678 at p. 685 (1977). Our cases recognize “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.” Eisenstadt v. Baird 1972 SCC OnLine US SC 62, 405 US 438 at p. 453 (1972), US at p. 453 (emphasis in original). Our precedents “have respected the private realm of family life which the state cannot enter.” Prince v. Massachusetts 1944 SCC OnLine US SC 27, 321 US 158 at p. 166 (1944), US at p. 166 (1944). 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.”
(emphasis supplied)
18. It is evident that Casey 1992 SCC OnLine US SC 102, 505 US 833 (1992) involved a creative reinterpretation of Roe 1973 SCC OnLine US SC 20, 410 US 113 (1973), and the controlling interest was liberty and not privacy. In fact, the word “privacy” occurs only twice in the opinion of the Court, once while citing a precedent and another time not linked to protecting a sphere of decision-making, as had been the case in Roe 1973 SCC OnLine US SC 20, 410 US 113 (1973).
19. Finally, the falling into desuetude of the right to privacy was confirmed in Lawrence v. Texas 2003 SCC OnLine US SC 73, 539 US 558 (2003). If there were a right to privacy in the Constitution then surely it would have been the primary ground for invalidating a statute that criminalised intimate conduct of same-sex couples. However, the opinion makes it clear that liberty was the controlling interest in this case too. Though the respect for private life was mentioned, the ground for striking down this law was violation of liberty. The lead opinion of Kennedy, J. begins with the words: (at p. 562)
“Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and in its more transcendent dimensions.”
20. Again, (at p. 567):
“It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.”
(emphasis supplied).
21. A catena of decisions in the United States have thus refused to follow the understanding of a right to privacy upheld in Griswold 1965 SCC OnLine US SC 124, 381 US 479 (1965) and Roe 1973 SCC OnLine US SC 20, 410 US 113 (1973). Katz 1967 SCC OnLine US SC 248, 389 US 347 (1967), relied upon by the petitioners, was the first to recognise that there was no such general right to privacy. Subsequent cases, such as Whalen, Casey and Lawrence which could have been decided on privacy grounds were instead tested on liberty grounds. On this test, the laws in Whalen and Casey passed muster, whereas the one in Lawrence did not. For a full list of such cases and the argument as to why the right to privacy is “no more”, see the article by Professor Jamal Greene [Jamal Greene, ‘The So-Called Right to Privacy’ 43 UC Davis Law Review 715-747 (2010)].
22. Further, this move away from privacy to liberty is not limited to any particular ideological viewpoint prevalent in the United States Supreme Court. In fact, the loosely described “liberal wing” of the Court, certainly pro-choice in abortion matters, have also jettisoned privacy in favour of liberty. This is clear from the dissenting opinion of Justice Ginsburg in Gonzales v. Carhart 2007 SCC OnLine US SC 25, 550 US 124 (2007), which involved a challenge to the prohibition of a particular technique of abortion (the partial birth abortion ban) which had made no exception for the health of the mother. The Court upheld the prohibition. Ginsburg, J., in dissent, wrote for herself and Breyer, Souter and Stevens, JJ.:
“As Casey 1992 SCC OnLine US SC 102, 505 US 833 (1992) comprehended, at stake in cases challenging abortion restrictions is a woman's control over her [own] destiny. Casey 1992 SCC OnLine US SC 102, 505 US 833 (1992), US at p. 869 (plurality opinion). See also id., at 852 (majority opinion). There was a time, not so long ago when women were regarded as the center of home and family life, with attendant special responsibilities that precluded full and independent legal status under the Constitution. Id., at 896-897 (quoting Hoyt v. Florida 1961 SCC OnLine US SC 159, 368 US 57 at p. 62 (1961)). Those views, this Court made clear in Casey, are no longer consistent with our understanding of the family, the individual, or the Constitution. Casey 1992 SCC OnLine US SC 102, 505 US 833 (1992) US at p. 897. Women, it is now acknowledged, have the talent, capacity, and right to participate equally in the economic and social life of the Nation. Id., at 856. Their ability to realize their full potential, the Court recognized, is intimately connected to their ability to control their reproductive lives. Ibid. Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature. See, e.g., Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan L Rev 261 (1992); Law, Re-thinking Sex and the Constitution, 132 U Pa L Rev 955, 1002ñ1028 (1984).”
23. This move by Justice Ginsburg, away from a general notion of the right to privacy, vindicates the approach followed by Justice Stewart through his dissenting view in Griswold 1965 SCC OnLine US SC 124, 381 US 479 (1965), lead opinion in Katz 1967 SCC OnLine US SC 248, 389 US 347 (1967) and concurring views in Roe 1973 SCC OnLine US SC 20, 410 US 113 (1973) and Whalen 1977 SCC OnLine US SC 21, 429 US 589 (1977). It will be instructive for the Court to note that Justice Stewart's views have been cited by the Indian Supreme Court and High Courts in at least twenty cases, including prominently in Maneka Gandhi v. Union of India (1978) 1 SCC 248, Indra Sawhney v. Union of India 1992 Supp (3) SCC 217 and Bachan Singh v. State Of Punjab . (1980) 2 SCC 684. A full list of these cases is annexed [See Annexure 1].
24. On the evidence of the development of the right to privacy in American constitutional law and its falling into disuse with decades of experience, it is humbly submitted that no analogous general fundamental right to privacy ought to be declared as part of the Constitution of India by the Supreme Court in the present proceedings.
4.1.2. Reading in a right to privacy from certain privacy interests that may inhere in Part III of the Constitution is conceptually unsound.
25. It is evident from American constitutional law that there may be certain zones of privacy which inhere in the First, Third, Fourth, Fifth, Ninth and Fourteenth Amendments to the Constitution. These zones of privacy appear to be nothing but certain interests of immunity from interference which are protected in order to protect the substantive rights in question. As the petitioners have argued, this may also be the position in Indian constitutional law. But the fallacy of translating these zones of privacy into a self-standing and free-floating right has been clearly pointed out by Robert Bork in his seminal work The Tempting of America. Bork writes:
“It is important to understand Justice Douglas' argument both because the method, though without merit, continually recurs in constitutional adjudication and because the “right of privacy” has become a loose canon in the law. Douglas began by pointing out that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” There is nothing exceptional about that thought, other than the language of penumbras and emanations. Courts often give protection to a constitutional freedom by creating a buffer zone, by prohibiting a government from doing something not in itself forbidden but likely to lead to an invasion of a right specified in the Constitution. Douglas cited NAACP v. Alabama 1964 SCC OnLine US SC 112, 377 US 288 at p. 307 (1964), in which the Supreme Court held that the State could not force the disclosure of the organisation's membership lists since that would have a deterrent effect upon the members' first amendment rights of political and legal action. That may well have been part of the purpose of the statute. But for this anticipated effect upon guaranteed freedoms, there would be no constitutional objection to the required disclosure of membership. The right not to disclose has no life of its own independent of the rights specified in the first amendment.
Douglas named the buffer zone or “penumbra” of the first amendment a protection of “privacy,” although, in NAACP v. Alabama 1964 SCC OnLine US SC 112, 377 US 288 at p. 307 (1964), of course, confidentiality of membership was required not for the sake of individual privacy but to protect the public activities of politics and litigation. Douglas then asserted that other amendments create “zones of privacy.” These were the First, Third (soldiers not to be quartered in private homes), Fourth (ban on unreasonable searches and seizures) and Fifth (freedom from self-incrimination). There was no particularly good reason to use the word “privacy” for the freedom cited, except for the fact that the opinion was building toward those “sacred precincts of marital bedrooms.” The phrase “areas of freedom” would have been more accurate since the provisions cited both private and public behaviour….
The Court majority said there was now a right of privacy but did not even intimate an answer to the question, “privacy to do what?” People often take addictive drugs in private, some men physically abuse their wives and children in private, executives conspire to fix prices in private, Mafiosi confer with their button men in private. If these sound bizarre one professor at a prominent law school has suggested that the right of privacy may create a right to engage in prostitution. Moreover, as we shall see, the Court has extended the right of privacy to activities in no sense can be said to be done in private. The truth is that “privacy” will turn out to protect those activities that enough justices to form a majority think ought to be protected and not activities with which they have little sympathy.
If one called the zones of the separate rights of the Bill of Rights zones of “freedom” which would be more accurate, then, should one care to follow Douglas's logic, the zones would add up to a general right of freedom independent of any provision of the Constitution…”
(emphasis supplied)
[Robert H. Bork, The Tempting of America, Free Press (1990), pp. 97-99]
26. In the same vein, Professor Louis Henkin writes (in the immediate aftermath of Roe v. Wade 1973 SCC OnLine US SC 20, 410 US 113 (1973)):
“In our day the Justices have newly recognized the “right of privacy.” I think that denomination is misleading, if not mistaken. To date, at least, the right has brought little new protection for what most of us think of as “privacy”—freedom from official intrusion. What the Supreme Court has given us, rather, is something essentially different and farther-reaching, an additional zone of autonomy, of presumptive immunity to governmental regulation. Appreciating what the Supreme Court has wrought suggests the need for new inquiries into our sense of public good, into the comparative weights of different goods in the balances of constitutional jurisprudence, indeed into the very purposes of our constitutional government.”
[Louis Henkin, ‘Privacy and Autonomy’ 74 Columbia Law Review 1410-1433, at pp. 1410-1411 (1974)]
27. Thus privacy at its core is nothing but a zone of freedom. This can be stated differently—privacy at its most basic has been understood to be the right to be let alone (Samuel Warren and Louis Brandeis, ‘Right to Privacy’ IV(5) Harvard Law Review 193-220 (1890)). Such a right essentially places a correlative duty on everyone else to stay off. In Hohfeldian terms, this is the exact conception of a liberty. Hohfeld writes,
“In other words, if X has a right against Y that he shall stay off the former's land, the correlative (and equivalent) is that Y is under a duty toward X to stay off the place. If, as seems desirable, we should seek a synonym for the term “right” in this limited and proper meaning, perhaps the word “claim” would prove the best…
In the example last put, whereas X has a right or claim that Y, the other man, should stay off the land, he himself has the privilege of entering on the land; or in equivalent words, X does not have a duty to stay off. The privilege of entering is the negation of a duty to stay off.”
[Wesley Newcomb Hohfeld, “Some Fundamental Legal Conceptions as applied in Judicial Reasoning” 23 Yale Law Journal 16-59, at p. 32 (1914)]
28. Please note that in Hohfeldian terms, the term “privilege” is the same as “liberty”. See, Hohfeld (at p. 36):
“On grounds already emphasized, it would seem that the line of reasoning pursued by Lord Lindley in the great case of Quinn v. Leathern 1901 AC 495 at p. 534 (HL), is deserving of comment:
“The plaintiff had the ordinary rights of a British subject. He was at liberty to earn his own living in his own way, provided he did not violate some special law prohibiting him from so doing, and provided he did not infringe the rights of other people. This liberty involved liberty to deal with other persons who were willing to deal with him. This liberty is a right recognised by law; its correlative is the general duty of every one not to prevent the free exercise of this liberty, except so far as his own liberty of action may justify him in so doing. But a person's liberty or right to deal with others is nugatory, unless they are at liberty to deal with him if they choose to do so. Any interference with their liberty to deal with him affects him.”
A “liberty” considered as a legal relation (or “right” in the loose and generic sense of that term) must mean, if it have any definite content at all, precisely the same thing as privilege and certainly that is the fair connotation of the term as used the first three times in the passage quoted”)
(emphasis supplied)
29. This is consistent with the philosophical understanding of privacy as protecting liberty,
“Besides giving us control over the context in which we act, privacy has a more defensive role in protecting our liberty. We may wish to do or say things not forbidden by the restraints of morality, but which are nevertheless unpopular or unconventional. If we thought that our every word and deed were public, fear of disapproval or more tangible retaliation might keep us from doing or saying things which we would do or say if we could be sure of keeping them to ourselves or within a circle of those who we know approve or tolerate our tastes.”
[Charles Fried, ‘Privacy’ 77(3) Yale Law Journal 475-493, at p. 483 (January 1968)]
30. In this sense privacy achieves nothing more than serving as a substitute for freedom/liberty since at its conceptual core it essentially is a command to others to “stay off”. It is thus a purely formal conceptualisation that does not answer any substantive question (“privacy to do what?”). This is evident from the oral observation made by Nariman, J. in this case, summarising the position of the petitioners that privacy extends over the body and mind, with the mind aspect having two facets—information and decisions. It is our humble submission that this principle is overbroad and formal. In a formal sense, privacy over body and mind means little but prescribing that others should stay off matters relating to the body and mind since the individual should have the liberty to do as she pleases in these matters. However this cannot mean that the individual can slash her wrists (a facet of a right over her body) or take drugs (an individual choice) or refuse to give her relationship status when asked on her form (information). This is best exemplified by a question posed by Chandrachud, J. in his oral observations that it may not be a constitutional problem if a woman is asked on a form about the number of children she has, but it will be a problem if she is asked the number of abortions she has had. Privacy over information should have made both these instances a violation—but given that the former appears to be a violation and the latter does not, it is clear that there is a substantive notion at play i.e. the nature of personal liberties which deserve constitutional protection. This cannot be explained simply by reference to “privacy”. Instead it is a substantive notion of a constitutionally protected liberty that provides the answer. According to Joseph Raz, this determination of what counts as constitutionally protected rights is done by courts with utmost caution in constitutional review:
“We now have an outline of an account of the proper role of constitutional review in most liberal democracies, in matters of fundamental civil and political rights. Since these fundamental rights inextricably combine issues of individual interest with questions of the public interest, they can and should, like other issues of individual rights, be dealt with by the courts. But at the same time they inevitably involve the courts in politics, since they cannot be settled except by deciding questions concerning the public interest. Since, controversial though these issues are, they are relatively free from conflict of interests and are to be settled on the basis of the central tenets of the political tradition of the country concerned, it is fitting that they should be removed from the ordinary democratic process and be assigned to a separate political process.
This means that the courts are political, but the political issues they deal with in constitutional review of fundamental rights differ for the most part in kind from the stuff that democratic politics is mostly concerned with. This does not mean, of course, that the job of the courts is to arrest the march of time and freeze the process of change which affects a country's political culture, and its common good, just as it affects everything else. All that is meant is that, in responding to change and in encouraging change, the courts should be attuned to the community's political traditions and to changes, which are normally continuous and gradual, in its common good, and not to short-term swings, however violent, in democratic politics.”
[Joseph Raz ‘Rights and Individual Well-being’ in, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Clarendon Press 1995), at pp. 57-58]
31. It is for this reason that while conceptually privacy essentially protects a liberty interest, several privacy interests have little to do with constitutionally protected liberties (when the question “privacy to do what?” is asked (for e.g., appropriation of someone's image). Further, liberty is broader in content than privacy itself (for e.g. the freedom to travel abroad has no discernible privacy component). Thus the discussion above evidences a fundamental philosophical conception that privacy is purely formal and does no conceptual work that liberty cannot do, and does not do in the context of constitutionally protected personal liberty.
32. On the basis of the arguments above, even if the petitioners are right that there might be zones of privacy in the Constitution, these are first, not all-pervasive in the Constitution but limited to where liberties exist (there is no necessary zone of privacy in Article 14, for example) and second, they are conceptually zones of liberty. Insofar as they exist in Article 19 (and other freedoms), their site of protection is a constitutionally protected liberty per se and insofar as they exist in Article 21, their site of protection may be dignity (protection of medical records), property (unauthorised intrusion into the home) or personal liberty per se (freedom of association). Thus reading in a right to privacy from a zone of privacy is conceptually unsound and does not protect anything that is not already protected under Part III.
33. On the contrary, such an expansive and putatively free-floating understanding of the right to privacy might be over-broad in its conceptualisation. Privacy itself at its core does not, and it is our humble submission, cannot answer the question, privacy to do what. As a result, privacy may lead to insulating certain spaces from necessary intervention. This has been the feminist critique of privacy which deserves particular attention:
“But feminist consciousness has exploded the private. For women, the measure of the intimacy has been the measure of the oppression. To see the personal as political means to see the private as public. On this level, women have no privacy to lose or to guarantee. We are not inviolable.
Our sexuality, meaning gender identity, is not only violoble, it is (hence we are) our violation. Privacy is everything women as women have never been allowed to be or to have; at the same time the private is everything women have been equated with and defined in terms of men's ability to have. To confront the fact that we have no privacy is to confront our private degradation as the public order. To fail to recognize this place of the private in women's subordination by seeking protection behind a right to that privacy is thus to be cut off from collective verification and state support in the same act. The very place (home, body), relations (sexual), activities (intercourse and reproduction), and feelings (intimacy, selfhood) that feminism finds central to women's subjection form the core of privacy doctrine. But when women are segregated in private, one at a time, a law of privacy will tend to protect the right of men “to be let alone” to oppress us one at a time. A law of the private, in a state that mirrors such a society, will translate the traditional values of the private sphere into individual women's right to privacy, subordinating women's collective needs to the imperatives of male supremacy. It will keep some men out of the bedrooms of other men.”
(emphasis supplied)
[Catharine MacKinnon, ‘Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence’ 8(4) Signs 635-658, at p. 656 (Summer 1983)]
34. It is our humble submission that the instant case is the Griswold 1965 SCC OnLine US SC 124, 381 US 479 (1965) moment in Indian constitutional law. The experience of the United States of America counsels us to be cautionary about creating a free-standing right to privacy, a conceptually unsound and practically meaningless interpretive exercise.
As Hyman Gross wrote of Griswold 1965 SCC OnLine US SC 124, 381 US 479 (1965),
“The word “privacy” is put to torture until it confesses a constitutional guaranty for everything it designates in household parlance. The encroachment upon solitude and disturbance of repose occasioned by the salesman at the front door is said to involve the matter of privacy, as does the disruption of repose by a loudspeaker on a bus, and loss of autonomy through application of a sterilization law. In this way a verbal groundwork is provided for deciding that something called “privacy” is offended by a state law regulating marital intimacies, an area of accustomed autonomy.
Though we may counsel the avoidance of ambiguity, we cannot question that the Supreme Court may fashion whatever words it chooses to comprehend what it has in mind to protect; and that therefore the word “privacy” may be used to designate particular things said to be protected by the Constitution-including freedom from legislative regulation of marital intimacies. But what the Supreme Court cannot do is make an eccentricity in common word usage do the job of legal reasoning in constitutional interpretation. It cannot give autonomy protection under constitutional rights of privacy simply because the word “privacy” is sometimes loosely used to designate autonomy. That is what has been attempted in Griswold 1965 SCC OnLine US SC 124, 381 US 479 (1965).”
(emphasis supplied)
[Hyman Gross, The Concept of Privacy' 42 New York University Law Review 34-54, at p. 43-44 (1967)]
35. In Indian constitutional law, the broad import of the term “personal liberty” is well-established. The Supreme Court has held it to include the right to travel abroad and consequently return to India (Satwant Singh Sawhney v. Passport Officer (1967) 3 SCR 525, AIR 1967 SC 1836), to have interviews with family and friends while imprisoned (Francis Coralie Mullin v. UT of Delhi (1981) 1 SCC 608), for women to make reproductive choices (Suchita Srivastava v. Chandigarh Admn. (2009) 9 SCC 1), for self-determination of gender (National Legal Services Authority v. Union of India (2014) 5 SCC 438), amongst others. Thus when any State action is challenged on this ground, it will be ascertained first, whether it affects a liberty interest, secondly, whether the liberty in question is within the sphere on constitutionally protected liberties and thirdly, whether the interference with such interest is justified by a countervailing legitimate State interest.
36. For the aforesaid reasons, a general fundamental right to privacy should not be read into Part III of the Constitution.
4.1.3. An analysis of existing case law decided on the ground of right to privacy will demonstrate that they either relate to aspects of privacy already protected under Article 21 or Article 19 or should not be protected under the Constitution at all.
37. The conceptual conclusion above will be made good by an analytical exercise. Three Supreme Court cases that have made a determination regarding the right to privacy will be taken and it will be demonstrated that either the same could be decided on alternate grounds, if the privacy interests are constitutional, or should not be decided as a constitutional matter at all, if the privacy interests are not worthy of constitutional protection.
38. In PUCL v. Union of India (1997) 1 SCC 301, it was held that Section 5(2) of the Indian Telegraph Act, 1885 which allowed for wire-tapping of phones was violative of privacy. Several procedural safeguards were read in to prevent such a violation. The Court held (per Kuldip Singh, J.):
“18. The right to privacy-by itself-has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case. But the right to hold a telephone conversation in the privacy of one's 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, in fact Article 21 of the Constitution of India unless it is permitted under the procedure established by law.”
39. On this basis, a series of procedural safeguards were read in to ensure that telephone tapping is narrowly tailored to comply with Article 21. However it is clear that conversations on the telephone, irrespective of their content, if tapped, would interfere with the liberty of individuals to speak freely. Further, the opinion in PUCL appears to only protect telephone conversation in the privacy of one's home or office, despite recognising the prevalence of mobile phones. Personal liberty provides a clearer ground for testing any phone tapping, not being tied to any particular place, subject of course to any legitimate State interest in doing so.
40. Again, in R. Rajagopal v. State of T.N. (1994) 6 SCC 632, the question before the Court was whether a direction issued by the Tamil Nadu Police to the editor and publisher of a Tamil weekly that was slated to publish the life-story of a notorious criminal Auto Shankar was constitutional. While the case ought to have been decided simply on whether the restriction was reasonable as per Article 19(2), the Court formulated four questions:
“8. Whether a citizen of this country can prevent another person from writing his life-story or biography? Does such unauthorised writing infringe the citizen's right to privacy? Whether the freedom of press guaranteed by Article 19(1)(a) entitle the press to publish such unauthorised account of a citizen's life and activities and if so to what extent and in what circumstances? What are the remedies open to a citizen of this country in case of infringement of his right to privacy and further in case such writing amounts to defamation?”
This was owing to the fact that there was an allegation that unauthorised publication of the life-story of the criminal would lead to the violation of his privacy. Regarding the right to privacy, the Court held (per Jeevan Reddy, J.):
“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. 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.
41. On this basis, the Court decided:
“29. Applying the above principles, it must be held that the petitioners have a right to publish, what they allege to be the life-story/autobiography of Auto Shankar insofar as it appears from the public records, even without his consent or authorisation. But if they go beyond that and publish his life-story, they may be invading his right to privacy and will be liable for the consequences in accordance with law. Similarly, the State or its officials cannot prevent or restrain the said publication. The remedy of the affected public officials/public figures, if any, is after the publication, as explained hereinabove.”
42. It is humbly submitted that this case did not require any discussion of the constitutional right to privacy. There was no claim by the criminal himself (he was not a party to the case) that any aspect critical to his personhood or liberty would be violated by the publication. On the contrary, as the judgment makes clear, the publication would appear to show corruption in the ranks of the Tamil Nadu Police. It cannot be anybody's claim that there is a constitutional privacy interest in protecting such activities from disclosure. This is simply a case of testing the reasonableness of the restriction imposed by the State on publication. Even in the hypothetical case that there was a privacy claim, the same would be a horizontal claim made by the convict against the publisher claiming that publication might affect his reputation. This could either be a tortious claim or an action for defamation. Given the facts, no constitutional question of privacy ought to have arisen in this case. This represents a privacy interest that ought not to be entitled to constitutional protection and is a cautionary sign against reading in a general right to privacy in the Constitution.
43. Finally, in Mr X v. Hospital Z’ (1998) 8 SCC 296, the question before the Court was whether the right to privacy of the patient was violated when his blood test results showing he was HIV+ were disclosed by the hospital to his future wife thereby leading to cancellation of marriage. It was held by the Court (per Saghir Ahmad, J.):
“28. 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.”
44. On this basis, the Court held that the patient's right to privacy would be outweighed by the future wife's right to a healthy life. The merits of such a decision aside, the framing of the issue as a privacy issue, disguises theissue at its core—that the patient should have liberty to decide with whom, when and how we would like to disclose his medical record. This is a libertyinterest which is protected by ensuring the dignity of the individual. It isclear from the judgment that disclosure of medical records would certainlylead to disturbance and psychological difficulties. Thus it would affect thepatient's sense of dignity, the basis of his personhood. Thus a claim based on privacy, as significant as it may be in this case, is a liberty interest which has individual dignity as the site of its protection.
45. In the final analysis, the history and development of the law relating to privacy shows an inductive movement from four distinct tortious offences to one consolidated category, a facet of which was deemed worthy of protection, not just in private law, but in constitutional law. As Dean William Prosser wrote in his seminal article on the subject,
“What has emerged from the decisions is no simple matter. It is not one tort, but a complex of four. The law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff, in the phrase coined by Judge Cooley, “to be let alone.” Without any attempt to exact definition, these four torts may be described as follows:
1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.
2. Public disclosure of embarrassing private facts about the plaintiff.
3. Publicity which places the plaintiff in a false light in the public eye.
4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness.”
[William L. Prosser, ‘Privacy’, 48(3) California Law Review 383-422, at p. 389 (1960)]
It is only a facet of category (1) that has been elevated to constitutional status when it affects a constitutionally protected right, both in the United States and in India. The remaining aspects of privacy continue to be protected in common law or in statute (e.g. protection for privileged communications in Sections 123-131 of the Indian Evidence Act, 1872). Reading in a general fundamental right to privacy has the potential to erode these critical distinctions.
46. Reading in such a general fundamental right to privacy suffers from two further difficulties. First, the Court would be creating a redundancy, since as explained above, privacy is nothing but a liberty interest of an individual. In other words, it is “personal liberty” which is already protected by the Constitution. In a well-established line of precedent, the Court has held while interpreting statutes that Parliament should not be intended to have created redundancies while drafting statutes (See, Grasim Industries Ltd. v. Collector Of Customs, Bombay . (2002) 4 SCC 297; State of Maharashtra v. Marwanjee F. Desai (2002) 2 SCC 318. Similarly the Court too should not create a redundancy itself by using a synonym for what is essentially a “personal liberty” interest. Creating such a new category would also fall foul of the cardinal philosophical principle of Occam's razor that plurality should not be resorted to in explanation except by necessity. This has been explained by C. Delisle Burns in the leading philosophy journal, Mind:
“It seems clear, as Mr Thorburn has shown (MIND, vol. xxiv., N.S., No. 94), that Ockham, even if he ever used the phrase “Entia non sunt multi-plicanda,” etc., certainly preferred “Pluralitas non est ponenda”. The usual form of the razor' seems very clumsy. I have never myself found it in any work of Ockham's; but it is quite possible that he did use it. In any case his preference for the form “Pluralitas non est ponenda” is very reasonable, in view of his complaint against Scotus that the ‘doctor subtilis’ created imaginary things which did not exist. “Entia non sunt multiplicanda” seems to be a rule about “real things”: it seems to imply that one could “multiply” them. But, Ockham might say, if you try as ‘hard as you like,’ the mind cannot bring any object into existence nor, by knowing it, make any difference to the object known.
“Pluralitas non est ponenda” would mean “You must not suppose that more things exist” than you have evidence for. And in the same way “Frustra fit per plura quod potest fieri per pauciora” means that an explanation is useless of what is already explained. This phrase, by the way, may be found in the treatise “de Sacramento altaris” (p. 3) besides the places referred to by Mr Thorburn.”
(emphasis supplied)
[C. Delisle Burns, ‘Occam's Razor’ 24(96) Mind 592, at p. 592 (1915)]
47. On the basis of the aforesaid arguments, it is our submission that privacy interests are purely formal interests that seek to protect liberty. “Personal liberty” in Article 21 is capacious enough to protect such interests. Other privacy interests (that may protect liberties, but not those that in our political and legal culture ought to enjoy constitutional protection) ought not to be read in to Article 21. This distinction is best preserved by not reading in a general right to privacy in the Constitution—a conclusion that follows from comparative experience in the United States of America, philosophical foundations of privacy and a close study of precedents on this subject in Indian constitutional law. Further, given that reading in a derivative right in this case will do no conceptual work, the fundamental tenet that the law must not create a redundancy should be upheld.
48. It is important to note however that contrary to the arguments made by Mr C. Aryama Sundaram, learned counsel for the State of Maharashtra, our submission in this regard is not a critique of the judicial trend of reading in “unenumerated rights” into Part III of the Constitution, as the petitioners have contended. It is our humble submission that the major premise of this contention, that there are unenumerated rights in the Constitution, itself is mistaken. Writing on this subject, Ronald Dworkin said:
“So the distinction between enumerated and unenumerated rights is widely understood to pose an important constitutional issue: the question whether and when courts have authority to enforce rights not actually enumerated in the Constitution as genuine constitutional rights. I find the question unintelligible, however, as I said at the outset, because the presumed distinction makes no sense. The distinction between what is on some list and what is not is of course genuine and often very important. An ordinance might declare, for example, that it is forbidden to take guns, knives, or explosives in hand luggage on an airplane. Suppose airport officials interpreted that ordinance to exclude canisters of tear gas as well, on the ground that the general structure of the ordinance, and the obvious intention behind it, prohibits all weapons that might be taken aboard and used in hijacks or terrorism. We would be right to say that gas was not on the list of what was banned, and that it is a legitimate question whether officials are entitled to add “unenumerated” weapons to the list. But the distinction between officials excluding pistols, switch- blades and hand-grenades on the one hand, and tear gas on the other, depends upon a semantic assumption: that tear gas falls within what philosophers call the reference of neither “guns” nor “knives” nor “explosives.” No comparable assumption can explain the supposed distinction between enumerated and unenumerated constitutional rights. The Bill of Rights, as I said, consists of broad and abstract principles of political morality, which together encompass, in exceptionally abstract form, all the dimensions of political morality that in our political culture can ground an individual constitutional right. The key issue in applying these abstract principles to particular political controversies is not one of reference but of interpretation, which is very different.”
(emphasis supplied).
[Ronald Dworkin, “Unenumerated Rights: Whether and how Roe should be overruled” 59 University of Chicago Law Review 381-432, at p. 387 (1992)].
49. Thus when dealing with constitutional provisions such as Articles 14, 19 and 21 which deal with abstract principles, any interpretation is subject to the charge of creating an unenumerated right. However it is our humble submission that when such an interpretive exercise is resorted to, it is critical that the interest that is now found protected must conceptually be substantive in nature (which is not the case for privacy as a concept) and constitutionally be within the contours of the right it is derived from (which is not the case for the right of privacy, derived from the right to personal liberty in Article 21). Neither of these conditions is met in the case of right to privacy and thus it is conceptually unsound to read it into Part III of the Constitution.
4.2. Several concerns relating to privacy breaches raised by the petitioners will be effectively redressed by a data protection law
4.2.1. Data protection and privacy per se are overlapping but distinct concerns
50. In the current digital era, several privacy concerns relate to processing of data. The analysis of very large and complex sets of data is done today through ‘Big Data’ analytics. Employment of such analytics enables organizations and governments to gain remarkable insights in areas such as health, food security, intelligent transport systems, energy efficiency and urban planning [European Commission, “European Data Protection Reform and Big Data: Factsheet”, (2016) available at:
51. For instance, companies such as Google have developed spell-checking systems by applying ‘Big Data’ analytics to correlate mistyped queries with their correct forms [Viktor Mayer-Schönberger & Kenneth Cukier, Big Data: A Revolution that will transform how we live, work and think (Houghton Mifflin Harcourt 2013) 112].
52. However, much of this data is personal data and has the possibility of infringing privacy interests of individuals. As a result of this, over 100 jurisdictions now have data protection laws and over 40 other jurisdictions have pending bills and initiatives [David Banisar, “National Comprehensive Data Protection/Privacy Laws and Bills 2016,” available at
53. Data protection laws govern the processing of “personal data”, which is understood as data relating to an individual who can be identified through such information [See for instance, European Union General Data Protection Regulation adopted by the European Parliament in April 2016, Articles 2 and 4(1); UK Data Protection Act, 1998; Canada's Personal Information Protection and Electronics Documents Act, assented to on 13-4-2000; South Africa Protection of Personal Information Act, 2013].
54. While often used synonymously with privacy, conceptually the two are distinct [Herbert Burkert, ‘Towards a New Generation of Data Protection Legislation’ in Gutwirth et al (ed.), Reinventing Data Protection (Springer 2009), at p. 335]. It is not as an intervener contends, a subset of privacy. This is best exemplified in Articles 7 and 8 of the EU Charter of Fundamental Rights. They read:
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.
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.
55. It is clear that data protection and privacy are two distinct fundamental rights in the EU. This distinction was the product of recognition over a period of time of the independent importance of data protection. Explaining the distinction, Raphael Gellert and Serge Gutwirth write:
“All in all, data protection and privacy overlap on a mode whereby data protection is both broader and narrower than privacy. It is narrower because it only deals with the processing personal data, whereas the scope of privacy is wider. It is broader, however, because it applies to the processing of personal data, even if the latter does not infringe upon privacy. Privacy also is broader and narrower: it might apply to a processing of data which are not personal but nevertheless affects one's privacy, while it will not apply upon a processing of personal data which is not considered to infringe upon one's privacy. It can be said as well that a processing of personal data can have consequences not only in terms of privacy, but also in terms of other constitutional rights, and most obviously, when the processing of data relating to individuals bears risks in terms of discrimination.”
[Raphael Gellert and Serge Gutwirth, ‘The legal construction of privacy and data protection’ 29 Computer Law & Security Review 522-530, at p. 526 (2013)]
56. Data protection is narrower than privacy since it is limited to data alone and does not extend to aspects of privacy that are not informational. At the same time it is broader than privacy since it covers all data relating to an identifiable individual and not just information relatable to an individual's private life [Julianne Kokott & Christoph Sobotta, ‘The distinction between privacy and data protection in the jurisprudence of the CJEU and the ECtHR’ 3(4) International Data Privacy Law 222-228, at p. 225 (2013)]. The difference in scope is apparent from international instruments relating to data protection and national data protection laws—these contain provisions that are aimed at facilitating data flows and not just protecting privacy. It is pertinent to note that the OECD principles for processing of personal data, which have formed the basis of several data protection laws, were primarily developed to ensure uniformity in laws so as to facilitate trans-border data flows and “allow a full exploitation of the potentialities of modern data processing technologies insofar as this is desirable” [Explanatory Memorandum to the OECD Guidelines on the Protection of Privacy and Trans-border Flows of Personal Data (1980)]. The OECD principles are:
“Collection Limitation Principle
There should be limits to the collection of personal data and any such data should be obtained by lawful and fair means and, where appropriate, with the Knowledge or consent of the data subject.
Data Quality Principle
Personal data should be relevant to the purposes for which they are to be used, and, to the extent necessary for those purposes, should be accurate, complete and kept up-to-date.
Purpose Specification Principle
The purposes for which personal data are collected should be specified not later than at the time of data collection and the subsequent use limited to the fulfilment of those purposes or such others as are not incompatible with those purposes and as are specified on each occasion of change of purpose.
Use Limitation Principle
Personal data should not be disclosed, made available or otherwise used for purposes other than those specified in accordance with (the purpose specification principle) except:
(a) with the consent of the data subject; or
(b) by the authority of law.
Security Safeguards Principle
Personal data should be protected by reasonable security safeguards against such risks as loss or unauthorised access, destruction, use, modification or disclosure of data.
Openness Principle
There should be a general policy of openness about developments, practices and policies with respect to personal data. Means should be readily available of establishing the existence and nature of personal data, and the main purposes of their use, as well as the identity and usual residence of the data controller.
Individual Participation Principle
An individual should have the right:
(a) to obtain from a data controller, or otherwise, confirmation of whether or not the data controller has data relating to him;
(b) to have communicated to him, data relating to him within a reasonable time;
at a charge, if any, that is not excessive;
in a reasonable manner; and
in a form that is readily intelligible to him;
(c) to be given reasons if a request made under subparagraphs (a) and (b) is denied, and to be able to challenge such denial; and
(d) to challenge data relating to him and, if the challenge is successful to have the data erased, rectified, completed or amended.
Accountability Principle
A data controller should be accountable for complying with measures which give effect to the principles stated above.
57. It is apparent that some practices such as ensuring adequate data quality and openness have little to do with privacy but are rather aimed at ensuring accuracy such that the data can be effectively used. The aim of data protection is to ensure fairness in processing of data and it is sought to be achieved through the principles stated above. Thus, neither is the correlation between data protection and privacy exact nor is the former a subset of the latter. Privacy interest protection is an important rationale of data protection law, though it has other rationales; while privacy is not limited to data protection related issues alone.
4.2.2. A comprehensive data protection legislation can address privacy concerns relating to data
58. Arguing for an intervener, a counsel cited United States v. Jones 565 US 400 (2012) to recommend that privacy protection in the Constitution ought to extend to public information as well. He quoted Justice Sotomayor's concurring view:
“More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”
Irrespective of the merits of such a view, the reason why in the United States such information that is already public is not protected is owing to the absence of a comprehensive data protection legislation. The Privacy Act, 1974 only governs personal data in federal government databases. There is no law that governs collection, use and disclosure of data made by individuals to private sector data processors. This is a deliberate regulatory choice, as explained by a White House Report on the subject:
“Despite some important differences, the privacy frameworks in the United States and those countries following the EU model are both based on the FIPPs. The European approach, which is based on a view that privacy is a fundamental human right, generally involves top-down regulation and the imposition of across-the-board rules restricting the use of data or requiring explicit consent for that use. The United States, in contrast, employs a sectoral approach that focuses on regulating specific risks of privacy harm in particular contexts, such as health care and credit. This places fewer broad rules on the use of data, allowing industry to be more innovative in its products and services, while also sometimes leaving unregulated potential uses of information that fall between sectors.”
[John Podesta et al, Executive Office of the President, ‘Big Data: Seizing Opportunities, Preserving Values, May 2014]
59. Thus in fact, Justice Sotomayor's call for constitutional privacy protection for publicly available data is a response to the absence of a comprehensive data protection legislation in the United States of America. This however is not a model that deserves emulation. As stated above, a majority of countries regulate the collection, use, disclosure and other processing of data through data protection legislation. This is because it is recognised that rules relating to data protection promote accountability and safeguard against harms from collection, use, sharing, retention, etc. of personal data.
60. It is humbly submitted that the Constitution cannot provide detailed provisions of this nature. The Supreme Court has recognised that matters of detail cannot be provided in the Constitution itself, given it is the basic law of the land, or statutes flowing from the Constitution. In D.S. Garewal v. State of Punjab AIR 1959 SC 512, while speaking in the context of regulation of recruitment and conditions of service by means of rules, the Supreme Court held per Wanchoo, J. (as he then was):
“7…. Regulation of recruitment and conditions of service requires numerous and varied rules, which may have to be changed from time to time as the exigencies of public service require. This could not be unknown to the Constitution makers and it is not possible to hold that the intention of the Constitution was that these numerous and varied rules should be framed by Parliament itself and that any amendment of these rules which may be required to meet the difficulties of day-to-day administration should also be made by Parliament only with all the attending delay which passing of legislation entails. We are, therefore, of opinion that in the circumstances of Article 312 it could not have been the intention of the Constitution that the numerous and varied provisions that have to be made in order to regulate the recruitment and the conditions of service of all-India services should all be enacted as statute law and nothing should be delegated to the executive authorities….”
(emphasis supplied)
61. This has been recognised most clearly in the European Union. Despite the Charter of Fundamental Rights containing privacy and data protection rights, the EU has formulated detailed directives on data protection. The law governing the field has been the EU Data Protection Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. However on 27-4-2016, the EU adopted a revised framework—Regulation (EU) 2016/679 of the European Parliament and of the Council of 27-4-2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data. Commonly known as the European Union General Data Protection Regulation (GDPR) its date of entry into force is 25-5-2018.
62. In its Preamble, the GDPR provides:
“(6) Rapid technological developments and globalisation have brought new challenges for the protection of personal data. The scale of the collection and sharing of personal data has increased significantly. Technology allows both private companies and public authorities to make use of personal data on an unprecedented scale in order to pursue their activities. Natural persons increasingly make personal information available publicly and globally. Technology has transformed both the economy and social life, and should further facilitate the free flow of personal data within the Union and the transfer to third countries and international organisations, while ensuring a high level of the protection of personal data.
(7) Those developments require a strong and more coherent data protection framework in the Union, backed by strong enforcement, given the importance of creating the trust that will allow the digital economy to develop across the internal market. Natural persons should have control of their own personal data. Legal and practical certainty for natural persons, economic operators and public authorities should be enhanced.”
63. It is a comprehensive regulation covering 99 provisions that deal with scope of application, legitimate grounds for processing, substantive obligations on data controllers and processors, rights of individuals to access, rectification, erasure and objections and establishment of appropriate enforcement machinery together with imposition of fines which extend up to 20,000,000 EUR, or in the case of an undertaking, up to 4% of the total worldwide annual turnover of the preceding financial year, whichever is higher [Article 83(5)]. It thus comprehensively covers the fair information practices laid down by the OECO and builds on them to ensure greater protection of data.
64. The EU GDPR is testament to the proposition that data protection related concerns are best dealt with comprehensively by legislation irrespective of whether a right exists in the Constitution in this regard or not. This is because potential harms to individuals from collection and use of data could happen in multiple ways and specific procedural and substantive rules are necessary in order to protect against the same.
4.2.3. Parliament is alive to such data protection concerns
65. The issue of protection of data has been, and continues to be a topic of consideration in Parliament. A key example of this may be found in the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (“the Aadhaar Act”). The Aadhaar Act contains key data protection principles of informed consent, collection limitation, purpose specification, use limitation, access and correction, accountability and data security. The following provisions are relevant:
8. (1) The Authority shall perform authentication of the Aadhaar number of an Aadhaar number holder submitted by any requesting entity, in relation to his biometric information or demographic information, subject to such conditions and on payment of such fees and in such manner as may be specified by regulations.
(2) A requesting entity shall—
(a) unless otherwise provided in this Act, obtain the consent of an individual before collecting his identity information for the purposes of authentication in such manner as may be specified by regulations; and
(b) ensure that the identity information of an individual is only used for submission to the Central Identities Data Repository for authentication.
(3) A requesting entity shall inform, in such manner as may be specified by regulations, to the individual submitting his identity information for authentication, the following details with respect to authentication, namely:
(a) the nature of information that may be shared upon authentication; (b) the uses to which the information received during authentication may be put by the requesting entity; and (c) alternatives to submission of identity information to the requesting entity.”
[Collection Limitation, Use Limitation]
28. (1) The Authority shall ensure the security of identity information and authentication records of individuals.
(2) Subject to the provisions of this Act, the Authority shall ensure confidentiality of identity information and authentication records of individuals.
(3) The Authority shall take all necessary measures to ensure that the information in the possession or control of the Authority, including information stored in the Central Identities Data Repository, is secured and protected against access, use or disclosure not permitted under this Act or regulations made thereunder, and against accidental or intentional destruction, loss or damage.
(4) Without prejudice to sub-sections (1) and (2), the Authority shall—(a) adopt and implement appropriate technical and organisational security measures;
(b) ensure that the agencies, consultants, advisors or other personsappointed or engaged for performing any function of the Authority under this Act, have in place appropriate technical and organisational security measures for the information; and
(c) ensure that the agreements or arrangements entered into with such agencies, consultants, advisors or other persons, impose obligationsequivalent to those imposed on the Authority under this Act, and requiresuch agencies, consultants, advisors and other persons to act only oninstructions from the Authority.
(5) Notwithstanding anything contained in any other law for the time being in force, and save as otherwise provided in this Act, the Authority or any of its officers or other employees or any agency that maintains the Central Identities Data Repository shall not, whether during his service or thereafter, reveal any information stored in the Central Identities Data Repository or authentication record to anyone:
Provided that an Aadhaar number holder may request the Authority to provide access to his identity information excluding his core biometric information in such manner as may be specified by regulations.”
[Security Safeguards Principle]
“29. (1) No core biometric information, collected or created under this Act, shall be—
(a) shared with anyone for any reason whatsoever; or
(b) used for any purpose other than generation of Aadhaar numbers and authentication under this Act.
(2) The identity information, other than core biometric information, collected or created under this Act may be shared only in accordance with the provisions of this Act and in such manner as may be specified by regulations.
(3) No identity information available with a requesting entity shall be—
(a) used for any purpose, other than that specified to the individual at the time of submitting any identity information for authentication; or
(b) disclosed further, except with the prior consent of the individual to whom such information relates.
(4) No Aadhaar number or core biometric information collected or created under this Act in respect of an Aadhaar number holder shall be published, displayed or posted publicly, except for the purposes as may be specified by regulations.
[Use Limitation; Purpose Specification]
“31. (1) In case any demographic information of an Aadhaar number holder is found incorrect or changes subsequently, the Aadhaar number holder shall request the Authority to alter such demographic information in his record in the Central Identities Data Repository in such manner as may be specified by regulations.
(2) In case any biometric information of Aadhaar number holder is lost or changes subsequently for any reason, the Aadhaar number holder shall request the Authority to make necessary alteration in his record in the Central Identities Data Repository in such manner as may be specified by regulations.
(3) On receipt of any request under sub-section (1) or sub-section (2), the Authority may, if it is satisfied, make such alteration as may be required in the record relating to such Aadhaar number holder and intimate such alteration to the concerned Aadhaar number holder.
(4) No identity information in the Central Identities Data Repository shall be altered except in the manner provided in this Act or regulations made in this behalf.”
[Data Quality Principle; Individual Participation Principle]
“32. (1) The Authority shall maintain authentication records in such manner and for such period as may be specified by regulations.
(2) Every Aadhaar number holder shall be entitled to obtain hisauthentication record in such manner as may be specified by regulations.
(3) The Authority shall not, either by itself or through any entity under its control, collect, keep or maintain any information about the purpose of authentication.”
[Accountability Principle]
66. At the same time, both Parliament and the Union of India are alive to the fact that concerns relating to data protection go beyond Aadhaar. Thus a Private Member's Bill was introduced recently on 21-7-2017 on the subject of data privacy and protection. Further, the Attorney-General for India mentioned in open court on 18-4-2017 that the Union of India is actively considering a comprehensive data protection legislation which should be enacted soon [Karmanya Singh Sareen v. Union of India (2017) 10 SCC 638]. Since then, the Government has taken several steps towards this end.
67. The aforementioned arguments are only in response to the argument made by the petitioners and an intervener that significant data protection concerns necessitate a reading in of a right to privacy in the Constitution. Such an argument is flawed since data protection concerns require a comprehensive legislation to be fully tackled. Thus no right ought to be read into the Constitution on this basis. Without prejudice, the horizontality of data protection issues means that the manner of implementing and enforcing any constitutional dimensions of the right be left to Parliament to decide by law as it is only a comprehensive statute that can ensure necessary protection.
4.3. Conclusion
68. For the aforementioned reasons, it is humbly submitted that the Hon'ble Supreme Court be pleased to not read in a general fundamental right to privacy in the Constitution of India.
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