Running into 547 pages, the verdict upholds the sanctity of the right to privacy. The nine judges underscored the fact that it is an intrinsic part of the right to life and personal liberty under Article 21, though not absolute in nature
Nine judges of this Court assembled to determine whether privacy is a constitutionally protected value... If privacy is to be construed as a protected constitutional value, it would redefine in significant ways our concepts of liberty and the entitlements that flow out of its protection.
Privacy, in its simplest sense, allows each human being to be left alone in a core which is inviolable. Yet the autonomy of the individual is conditioned by her relationships with the rest of society. The overarching presence of state and nonstate entities regulates aspects of social existence which bear upon the freedom of the individual.
The preservation of constitutional liberty is, so to speak, work in progress. Challenges have to be addressed to existing problems. Equally, new challenges have to be dealt with in terms of a constitutional understanding of where liberty places an individual in the context of a social order. The emergence of new challenges is exemplified by this case, where the debate on privacy is being analysed in the context of a global information based society. In an age where information technology governs virtually every aspect of our lives, the task before the Court is to PART A 5 impart constitutional meaning to individual liberty in an interconnected world.
While we revisit the question whether our constitution protects privacy as an elemental principle, the Court has to be sensitive to the needs of and the opportunities and dangers posed to liberty in a digital world.
A Bench of three judges of this Court, while considering the constitutional challenge to the Aadhaar card scheme of the Union government noted in its order dated 11 August 2015 that the norms for and compilation of demographic biometric data by government was questioned on the ground that it violates the right to privacy.
The Attorney General for India urged that the existence of a fundamental right of privacy is in doubt in view of two decisions: the first – M P Sharma v Satish Chandra, District Magistrate, Delhi1 (“M P Sharma”) was rendered by a Bench of eight judges and the second, in Kharak Singh v State of Uttar Pradesh (“Kharak Singh”) was rendered by a Bench of six judges.
Each of these decisions, in the submission of the Attorney General, contained observations that the Indian Constitution does not specifically protect the right to privacy.
On the other hand, the submission of the petitioners was that M P Sharma and Kharak Singh were founded on principles expounded in A K Gopalan v State of Madras (“Gopalan”). Gopalan, which construed each provision contained in the Chapter on fundamental rights as embodying a distinct protection, was held not to be good law by an eleven-judge Bench in Rustom Cavasji Cooper v Union of India (“Cooper”).
Hence the petitioners submitted that the basis of the two earlier decisions is not valid. Moreover, it was also urged that in the seven-judge Bench decision in Maneka Gandhi v Union of India5 (“Maneka”), the minority judgment of Justice Subba Rao in Kharak Singh was specifically approved of and the decision of the majority was overruled.
The correctness of the decisions in M P Sharma and Kharak Singh, is to be evaluated during the course of the reference. Besides, the jurisprudential correctness of subsequent decisions holding the right to privacy to be a constitutionally protected right is to be determined.
The decision in M P Sharma held that in the absence of a provision like the Fourth Amendment to the US Constitution, a right to privacy cannot be read into the Indian Constitution. The decision in M P Sharma did not decide whether a constitutional right to privacy is protected by other provisions contained in the fundamental rights including among them, the right to life and personal liberty under Article 21.
Hence the decision cannot be construed to specifically exclude the protection of privacy under the framework of protected guarantees including those in Articles
19 or 21.
The decision in Kharak Singh is noteworthy because while invalidating Regulation 236(b) of the Police Regulations which provided for nightly domiciliary visits, the majority construed this to be an unauthorised intrusion into a person’s home and a violation of ordered liberty. While arriving at this conclusion, the majority placed reliance on the privacy doctrine enunciated by Justice Frankfurter, speaking for the US Supreme Court in Wolf v Colorado (the extract from Wolf cited in the majority judgment specifically adverts to ‘privacy’ twice).
Having relied on this doctrine to invalidate domiciliary visits, the majority in Kharak Singh proceeded to repel the challenge to other clauses of Regulation 236 on the ground that the right of privacy is not guaranteed under the Constitution and hence Article 21 had no application. This part of the judgment in Kharak Singh is inconsistent with the earlier part of the decision. The decision of the majority in Kharak Singh suffers from an internal inconsistency.
Sexual orientation is an essential attribute of privacy. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.
Let the right of privacy, an inherent right, be unequivocally a fundamental right embedded in part-III of the Constitution of India, but subject to the restrictions specified, relatable to that part. This is the call of today. The old order changeth yielding place to new.
Justice R F Nariman
A senior counsel and former Solicitor General, he was elevated as SC judge in 2014 and is known for Triple talaq case
1 This 9-Judge Bench has not been constituted to look into the constitutional validity of the Aadhar Act, but it has been constituted to consider a much larger question, namely, that the right of privacy would be found, inter alia, in Article 21 in both “life” and “personal liberty” by rich and poor alike primarily against State action.
2 In any event, the analogy to be drawn from the cases dealing with liquor does not take us further for the simple reason that the fundamental right to privacy once recognised, must yield in given circumstances to legitimate State interests in combating crime. But this arises only after recognition of the right to privacy as a fundamental right and not before.
What must be a reasonable restriction in the interest of a legitimate State interest or in public interest cannot determine whether the intrusion into a person’s affairs is or is not a fundamental right. Every State intrusion into privacy interests which deals with the physical body or the dissemination of information personal to an individual or personal choices relating to the individual would be subjected to the balancing test prescribed under the fundamental right that it infringes depending upon where the privacy interest claimed is founded.
Justice Abhay Manohar Sapre
Sapre, a former Chief Justice of the Guwahati and Manipur High Courts, was elevated as a Supreme Court Judge in 2014
In my view, unity and integrity of the Nation cannot survive unless the dignity of every individual citizen is guaranteed.
Similarly, I also hold that the “right to privacy” has multiple facets, and, therefore, the same has to go through a process of case-to-case development as and when any citizen raises his grievance complaining of infringement of his alleged right in accordance with law.
Justice Sanjay Kishan Kaul
1 This reference has arisen from the challenge to what is called the ‘Aadhar Card Scheme’. On account of earlier judicial pronouncements, there was a cleavage of opinions and to reconcile this divergence of views, it became necessary for the reference to be made to a nineJudges Bench.
2 Knowledge about a person gives a power over that person. The personal data collected is capable of effecting representations, influencing decision making processes and shaping behaviour. It can be used as a tool to exercise control over us like the ‘big brother’ State exercised. This can have a stultifying effect on the expression of dissent and difference of opinion, which no democracy can afford.
3 There is no justification for making all truthful information available to the public. The public does not have an interest in knowing all information that is true. Which celebrity has had sexual relationships with whom might be of interest to the public but has no element of public interest and may therefore be a breach of privacy. Thus, truthful information that breaches privacy may also require protection.
4 Every individual should have a right to be able to exercise control over his/her own life and image as portrayed to the world and to control commercial use of his/her identity. This also means that an individual may be permitted to prevent others from using his image, name and other aspects of his/her personal life and identity for commercial purposes without consent.
5 Children around the world create perpetual digital footprints on social network websites... as they learn their ‘ABCs’: Apple, Bluetooth, and Chat followed by Download, E-Mail, Facebook, Google, Hotmail, and Instagram. They should not be subjected to the onsequences of their childish mistakes and naivety, their entire life.
Justice S A Bobde
A former Chief Justice of Madhya Pradesh High Court, Bobde was elevated as a Supreme Court Judge in 2013. He is known for the Aadhaar case
1 The ineluctable conclusion must be that an inalienable constitutional right to privacy inheres in Part III of the Constitution. M P Sharma and the majority opinion in Kharak Singh must stand overruled to the extent that they indicate to the contrary.
2 The right to privacy is inextricably bound up with all exercises of human liberty – both as it is specifically enumerated across Part III, and as it is guaranteed in the residue under Article 21. It is distributed across the various articles in Part III and, mutatis mutandis, takes the form of whichever of their enjoyment its violation curtails.
3 Any interference with privacy by an entity covered by Article 12’s description of the ‘state’ must satisfy the tests applicable to whichever one or more of the Part III freedoms the interference affects.
Justice Jasti Chelameswar
A former Chief Justice of Kerala & Guwahati HC, he was elevated as an SC Judge in 2011. A dissenter in NJAC verdict
1I do not think that anybody in this country would like to have the officers of the State intruding into their homes or private property at will or soldiers quartered in their houses without their consent. I do not think that anybody would like to be told by the State as to what they should eat or how they should dress or whom they should be associated with either in their personal, social or political life. Freedom of social and political association is guaranteed to citizens under Article 19(1)(c). Personal association is still a doubtful area.
2The decision making process regarding the freedom of association, freedoms of travel and residence are purely private and fall within the realm of the right of privacy. It is one of the most intimate decisions. All liberal democracies believe that the State should not have unqualified authority to intrude into certain aspects of human life and that the authority should be limited by parameters constitutionally fixed. Fundamental rights are the only constitutional firewall to prevent State’s interference with those core freedoms constituting liberty of a human being. The right to privacy is certainly one of the core freedoms which is to be defended.
3It goes without saying that no legal right can be absolute. Every right has limitations.
The judgment in M P Sharma holds essentially that in the absence of a provision similar to the Fourth Amendment to the US Constitution, the right to privacy cannot be read into the provisions of Article 20 (3) of the Indian Constitution. The judgment does not specifically adjudicate on whether a right to privacy would arise from any of the other provisions of the rights guaranteed by Part III including Article 21 and Article 19.
The observation that privacy is not a right guaranteed by the Indian Constitution is not reflective of the correct position. M P Sharma is overruled to the extent to which it indicates to the contrary.
Kharak Singh has correctly held that the content of the expression ‘life’ under Article 21 means not merely the right to a person’s “animal existence” and that the expression ‘personal liberty’ is a guarantee against invasion into the sanctity of a person’s home or an intrusion into personal security. Kharak Singh also correctly laid down that the dignity of the individual must lend content to the meaning of ‘personal liberty’.
The first part of the decision in Kharak Singh which invalidated domiciliary visits at night on the ground that they violated ordered liberty is an implicit recognition of the right to privacy.
The second part of the decision, however, which holds that the right to privacy is not a guaranteed right under our Constitution, is not reflective of the correct position.
Similarly, Kharak Singh’s reliance upon the decision of the majority in Gopalan is not reflective of the correct position in view of the decisions in Cooper and in Maneka. Kharak Singh to the extent that it holds that the right to privacy is not protected under the Indian Constitution is overruled.
(A) Life and personal liberty are inalienable rights. These are rights which are inseparable from a dignified human existence. The dignity of the individual, equality between human beings and the quest for liberty are the foundational pillars of the Indian Constitution; (B) Life and personal liberty are not creations of the Constitution.
These rights are recognised by the Constitution as inhering in each individual as an intrinsic and inseparable part of the human element which dwells within; (C) Privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution.
(D) Judicial recognition of the existence of a constitutional right of privacy is not an exercise in the nature of amending the Constitution nor is the Court embarking on a constitutional function of that nature which is entrusted to Parliament; (E) Privacy is the constitutional core of human dignity. Privacy has both a normative and descriptive function. (F) Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone.
Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy attaches to the person since it is an essential facet of the dignity of the human being; (G) This Court has not embarked upon an exhaustive enumeration or a catalogue of entitlements or interests comprised in the right to privacy.
The Constitution must evolve with the felt necessities of time to meet the challenges thrown up in a democratic order governed by the rule of law.
The interpretation of the Constitution must be resilient and flexible to allow future generations to adapt its content bearing in mind its basic or essential features; (H) Like other rights which form part of the fundamental freedoms protected by Part III, including the right to life and personal liberty under Article 21, privacy is not an absolute right. A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights.
In the context of Article 21 an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. The law must also be valid with reference to the encroachment on life and personal liberty under Article 21.