K.S. Puttaswamy v. Union of India

Reported case name: JUSTICE K S PUTTASWAMY (RETD.), AND ANR. v. UNION OF INDIA AND ORS

Citation: [2017] 10 S.C.R. 569

Court: Supreme Court of India

Bench: J.S. KHEHAR, JASTI CHELAMESWAR, S.A. BOBDE, R.K. AGRAWAL, R.F. NARIMAN, ABHAY MANOHAR SAPRE, D.Y. CHANDRACHUD, SANJAY KISHAN KAUL, S. ABDUL NAZEER

Case summary

JUSTICE K S PUTTASWAMY (RETD.), AND ANR. v. UNION OF INDIA AND ORS.pdf

Judgment text

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO 494 OF 2012 JUSTICE K S PUTTASWAMY (RETD. ), AND ANR. .. Petitioners VERSUS UNION OF INDIA AND ORS. .. Respondents WITH T. C. (CIVIL) NO 151 OF 2013 T. C. (CIVIL) NO 152 OF 2013 W. P. (CIVIL) NO 833 OF 2013 W. P. (CIVIL) NO 829 OF 2013 W. P. (CIVIL) NO 932 OF 2013 CONMT. PET. (CIVIL) NO 144 OF 2014 IN W. P. (C) NO. 494/2012 T. P. (CIVIL) NO 313 OF 2014 T. P. (CIVIL) NO 312 OF 2014 S. L. P(CRL. ) NO. 2524/2014 W. P. (CIVIL) NO. 37/2015 W. P. (CIVIL) NO. 220/2015 CONMT. PET. (C)NO. 674/2015 IN W. P. (C) NO. 829/2013 T. P. (CIVIL)NO. 921/2015 CONMT. PET. (C)NO. 470/2015 IN W. P. (C) NO. 494/2012 CONMT. PET. (C)NO. 444/2016 IN W. P. (C) NO. 494/2012 CONMT. PET. (C)NO. 608/2016 IN W. P. (C) NO. 494/2012 W. P. (CIVIL) NO. 797/2016 CONMT. PET. (C)NO. 844/2017 IN W. P. (C) NO. 494/2012 W. P. (C) NO. 342/ 2017 AND WITH W. P. (C) NO.

000372/2017 J U D G M E N T Dr D Y CHANDRACHUD, J This judgment has been divided into sections to facilitate analysis.

They are : The reference Decision in M P Sharma Decision in Kharak Singh Gopalan doctrine: fundamental rights as isolated silos Cooper and Maneka: Interrelationship between rights Origins of privacy Natural and inalienable rights Evolution of the privacy doctrine in India I The Indian Constitution • Preamble • Jurisprudence on dignity • Fundamental Rights cases • No waiver of Fundamental Rights • Privacy as intrinsic to freedom and liberty • Discordant Notes : (i) ADM Jabalpur (ii) Suresh Koushal J India’s commitments under International law K Comparative law on privacy (i) UK decisions (ii) US Supreme Court decisions (iii) Constitutional right to privacy in South Africa (iv) Constitutional right to privacy in Canada (v) Privacy under the European Convention on Human Rights and the European Charter (vi) Decisions of the Inter-American Court of Human Rights L Criticisms of the privacy doctrine a Thomson’s Reductionism b Posner’s Economic critique c Bork’s critique d Feminist critique M Constituent Assembly and privacy: limits of originalist interpretation N Is the statutory protection to privacy reason to deny a constitutional right?

O Not an elitist construct P Not just a common law right Q Substantive Due Process R Essential nature of privacy S Informational privacy T Conclusions PART A A The reference 1 Nine judges of this Court assembled to determine whether privacy is a constitutionally protected value. The issue reaches out to the foundation of a constitutional culture based on the protection of human rights and enables this Court to revisit the basic principles on which our Constitution has been founded and their consequences for a way of life it seeks to protect. This case presents challenges for constitutional interpretation. If privacy is to be construed as a protected constitutional value, it would redefine in significant ways our concepts of liberty and the entitlements that flow out of its protection. 2 Privacy, in its simplest sense, allows each human being to be left alone in a core which is inviolable. Yet the autonomy of the individual is conditioned by her relationships with the rest of society.

Those relationships may and do often pose questions to autonomy and free choice. The overarching presence of state and non-state entities regulates aspects of social existence which bear upon the freedom of the individual. The preservation of constitutional liberty is, so to speak, work in progress. Challenges have to be addressed to existing problems. Equally, new challenges have to be dealt with in terms of a constitutional understanding of where liberty places an individual in the context of a social order. The emergence of new challenges is exemplified by this case, where the debate on privacy is being analysed in the context of a global information based society. In an age where information technology governs virtually every aspect of our lives, the task before the Court is to PART A impart constitutional meaning to individual liberty in an interconnected world.

While we revisit the question whether our constitution protects privacy as an elemental principle, the Court has to be sensitive to the needs of and the opportunities and dangers posed to liberty in a digital world. 3 A Bench of three judges of this Court, while considering the constitutional challenge to the Aadhaar card scheme of the Union government noted in its order dated 11 August 2015 that the norms for and compilation of demographic biometric data by government was questioned on the ground that it violates the right to privacy. The Attorney General for India urged that the existence of a fundamental right of privacy is in doubt in view of two decisions : the first – M P Sharma v Satish Chandra, 1 District Magistrate, Delhi (“M P Sharma”) was rendered by a Bench of eight 2 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 3 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 (1954) SCR 1077 (1964) 1 SCR 332 AIR 1950 SC 27 PART A 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 5 of India (“Maneka”), the minority judgment of Justice Subba Rao in Kharak Singh was specifically approved of and the decision of the majority was overruled.

4 While addressing these challenges, the Bench of three judges of this Court took note of several decisions of this Court in which the right to privacy has been held to be a constitutionally protected fundamental right. Those decisions include : Gobind 6 7 v State of Madhya Pradesh (“Gobind”), R Rajagopal v State of Tamil Nadu 8 (“Rajagopal”) and People’s Union for Civil Liberties v Union of India (“PUCL”). These subsequent decisions which affirmed the existence of a constitutionally protected right of privacy, were rendered by Benches of a strength smaller than those in M P Sharma and Kharak Singh. Faced with this predicament and having due regard to the far-reaching questions of importance involving interpretation of the Constitution, it was felt that institutional integrity and judicial discipline would require a reference to a larger Bench. Hence the Bench of three learned judges observed in its order dated 11 August 2015: “12.

We are of the opinion that the cases on hand raise far reaching questions of importance involving interpretation of the Constitution. 4 (1970) 1 SCC 248 5 (1978) 1 SCC 248 (1975) 2 SCC 148 (1994) 6 SCC 632 (1997) 1 SCC 301 PART A What is at stake is the amplitude of the fundamental rights including that precious and inalienable right under Article 21. If the observations made in M. P. Sharma (supra) and Kharak Singh (supra) are to be read literally and accepted as the law of this country, the fundamental rights guaranteed under the Constitution of India and more particularly right to liberty under Article 21 would be denuded of vigour and vitality. At the same time, we are also of the opinion that the institutional integrity and judicial discipline require that pronouncement made by larger Benches of this Court cannot be ignored by the smaller Benches without appropriately explaining the reasons for not following the pronouncements made by such larger Benches.

With due respect to all the learned Judges who rendered the subsequent judgments - where right to privacy is asserted or referred to their Lordships concern for the liberty of human beings, we are of the humble opinion that there appears to be certain amount of apparent unresolved contradiction in the law declared by this Court. 13. Therefore, in our opinion to give a quietus to the kind of controversy raised in this batch of cases once for all, it is better that the ratio decidendi of M. P. Sharma (supra) and Kharak Singh (supra) is scrutinized and the jurisprudential correctness of the subsequent decisions of this Court where the right to privacy is either asserted or referred be examined and authoritatively decided by a Bench of appropriate strength. ” 5 On 18 July 2017, a Constitution Bench presided over by the learned Chief Justice considered it appropriate that the issue be resolved by a Bench of nine judges.

The order of the Constitution Bench reads thus: “During the course of the hearing today, it seems that it has become essential for us to determine whether there is any fundamental right of privacy under the Indian Constitution. The determination of this question would essentially entail whether the decision recorded by this Court in M. P. Sharma and Ors. vs. Satish Chandra, District Magistrate, Delhi and Ors. - 1950 SCR 1077 by an eight-Judge Constitution Bench, and also, in Kharak Singh vs. The State of U. P. and Ors. - 1962 (1) SCR 332 by a six-Judge Constitution Bench, that there is no such fundamental right, is the correct expression of the constitutional position. PART A Before dealing with the matter any further, we are of the view that the issue noticed hereinabove deserves to be placed before the nine-Judge Constitution Bench. List these matters before the Nine- Judge Constitution Bench on 19. 07. 2017.

” 6 During the course of hearing, we have been ably assisted on behalf of the petitioners by Mr Gopal Subramanium, Mr Kapil Sibal, Mr Arvind Datar, Mr Shyam Divan, Mr Anand Grover, Ms Meenakshi Arora, Mr Sajan Poovayya and Mr Jayant Bhushan, learned senior counsel. Mr J S Attri, learned senior counsel supported them on behalf of the State of Himachal Pradesh. On behalf of the Union of India, the Court has had the benefit of the erudite submissions of Mr K K Venugopal, Attorney General for India. He has been ably supported by Mr Tushar Mehta, Additional Solicitor General, Mr Rakesh Dwivedi, senior counsel for the State of Gujarat, Mr Aryama Sundaram for the State of Maharashtra, Mr Gopal Sankaranarayanan and Dr Arghya Sengupta respectively. While some state governments have supported the stand of the Union government, others have supported the petitioners. 7 The correctness of the decisions in M P Sharma and Kharak Singh, is to be evaluated during the course of the reference.

Besides, the jurisprudential correctness of subsequent decisions holding the right to privacy to be a constitutionally protected right is to be determined. The basic question whether privacy is a right protected under our Constitution requires an understanding of what privacy means. For it is when we understand what interests or entitlements privacy safeguards, that we can determine whether the Constitution protects privacy. The contents of privacy need to PART B be analysed, not by providing an exhaustive enunciation or catalogue of what it includes but by indicating its broad contours.

The Court has been addressed on various aspects of privacy including : (i) Whether there is a constitutionally protected right to privacy; (ii) If there is a constitutionally protected right, whether this has the character of an independent fundamental right or whether it arises from within the existing guarantees of protected rights such as life and personal liberty; (iii) the doctrinal foundations of the claim to privacy; (iv) the content of privacy; and (v) the nature of the regulatory power of the state. B Decision in M P Sharma 8 An investigation was ordered by the Union government under the Companies Act into the affairs of a company which was in liquidation on the ground that it had made an organized attempt to embezzle its funds and to conceal the true state of its affairs from the share-holders and on the allegation that the company had indulged in fraudulent transactions and falsified its records.

Offences were registered and search warrants were issued during the course of which, records were seized. The challenge was that the searches violated the fundamental rights of the petitioners under Article 19(1)(f) and Article 20(3) of the Constitution. The former challenge was rejected. The question which this Court addressed was whether there was a contravention of Article 20(3). Article 20(3) mandates that no person accused of an offence shall be compelled 9 to be a witness against himself. Reliance was placed on a judgment of the US Boyd v. United States, 116 US 616 (1886) PART B Supreme Court holding that obtaining incriminating evidence by an illegal search and seizure violates the Fourth and Fifth Amendments of the American Constitution. While tracing the history of Indian legislation, this Court observed that provisions for search were contained in successive enactments of the Criminal Procedure Code.

Justice Jagannadhadas, speaking for the Bench, held that a search or seizure does not infringe the constitutional right guaranteed by Article 20(3) of the Constitution: “…there is no basis in the Indian law for the assumption that a search or seizure of a thing or document is in itself to be treated as compelled production of the same. Indeed a little consideration will show that the two are essentially different matters for the purpose relevant to the present discussion. A notice to produce is addressed to the party concerned and his production in compliance therewith constitutes a testimonial act by him within the meaning of Article 20(3) as above explained. But a search warrant is addressed to an officer of the Government, generally a police officer. Neither the search nor the seizure are acts of the occupier of the searched premises. They are acts of another to which he is obliged to submit and are, therefore, not 10 his testimonial acts in any sense.

” 9 Having held that the guarantee against self-incrimination is not offended by a search and seizure, the Court observed that : “A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction. Nor is it legitimate to assume that the constitutional MP Sharma (Supra note 1), at page 1096 PART C protection under Article 20(3) would be defeated by the statutory provisions for searches.

” (emphasis supplied) 10 These observations – to be more precise in one sentence - indicating that the Constitution makers did not subject the regulation by law of the power of search and seizure to a fundamental right of privacy, similar to the Fourth amendment of the US Constitution, have been pressed in aid to question the existence of a protected right to privacy under our Constitution. C Decision in Kharak Singh 11 After being challaned in a case of dacoity in 1941, Kharak Singh was released for want of evidence. But the police compiled a “history sheet” against him. ‘History sheets’ were defined in Regulation 228 of Chapter XX of the U P Police Regulations as “the personal records of criminals under surveillance”. Kharak Singh, who was subjected to regular surveillance, including midnight knocks, moved this Court for a declaration that his fundamental rights were infringed.

Among the measures of surveillance contemplated by Regulation 236 were the following: “(a) Secret picketing of the house or approaches to the houses of suspects; (b) domiciliary visits at night; (c) thorough periodical inquiries by officers not below the rank of sub-inspector into repute, habits, associations, income, expenses and occupation; (d) the reporting by constables and chaukidars of movements and absences from home; Ibid, at page 1096-97 PART C (c) the verification of movements and absences by means of inquiry slips; (f) the collection and record on a history-sheet of all information bearing on conduct. ” 12 This Court held that the freedom to move freely throughout the territory of India, guaranteed by Article 19(1)(d) was not infringed by a midnight knock on the door of the petitioner since “his locomotion is not impeded or prejudiced in any manner”.

13 When the decision in Kharak Singh was handed down, the principles governing the inter-relationship between the rights protected by Article 19 and the right to life and personal liberty under Article 21 were governed by the judgment in Gopalan. Gopalan considered each of the articles in the Chapter on fundamental rights as embodying distinct (as opposed to over-lapping) freedoms. Hence in Kharak Singh, the Court observed : “In view of the very limited nature of the question before us it is unnecessary to pause to consider either the precise relationship between the “liberties” in Article 19(1)(a) & (d) on the one hand and that in Article 21 on the other, or the content and significance of the words “procedure established by law” in the latter Article, both of which were the subject of elaborate consideration by this Court 12 in A. K. Gopalan v. State of Madras.

” 14 The decision in Kharak Singh held that clause (b) of Regulation 236 which provided for domiciliary visits at night was violative of Article 21. The Court observed: “Is then the word “personal liberty” to be construed as excluding from its purview an invasion on the part of the police of the sanctity Kharak Singh (Supra note 2), at page 345 PART C of a man's home and an intrusion into his personal security and his right to sleep which is the normal comfort and a dire necessity for human existence even as an animal? It might not be inappropriate to refer here to the words of the preamble to the Constitution that it is designed to “assure the dignity of the individual” and therefore of those cherished human values as the means of ensuring his full development and evolution.

We are referring to these objectives of the framers merely to draw attention to the concepts underlying the constitution which would point to such vital words as “personal liberty” having to be construed in a reasonable manner and to be attributed that sense which would promote and achieve those objectives and by no means to stretch the meaning of the phrase to square with any pre-conceived notions or doctrinaire constitutional 13 theories. ” 15 In taking this view, Justice Rajagopala Ayyangar, speaking for a majority of five judges, relied upon the judgment of Justice Frankfurter, speaking for the US Supreme 14 Court in Wolf v Colorado , which held : “The security of one's privacy against arbitrary intrusion by the police … is basic to a free society… We have no hesitation in saying that were a State affirmatively to sanction such police incursion into privacy it would run counter to 15 the guarantee of the Fourteenth Amendment.

” (emphasis supplied) While the Court observed that the Indian Constitution does not contain a guarantee similar to the Fourth Amendment of the US Constitution, it proceeded to hold that : “Nevertheless, these extracts would show that an unauthorised intrusion into a person's home and the disturbance caused to him thereby, is as it were the violation of a common law right of a man an ultimate essential of ordered liberty, if not of the very Ibid, at pages 347-348 338 US 25 (1949) Cited in Kharak Singh (Supra note 2), at page 348 PART C concept of civilisation. An English Common Law maxim asserts that “every man's house is his castle” and in Semayne case [5 Coke 91 : 1 Sm LC (13th Edn) 104 at p. 105] where this was applied, it was stated that “the house of everyone is to him as his castle and fortress as well as for his defence against injury and violence as for his repose”. We are not unmindful of the fact that Semayne case [(1604) 5 Coke 91 : 1 Sm LC (13th Edn) 104 at p.

105] was concerned with the law relating to executions in England, but the passage extracted has a validity quite apart from the context of the particular decision. It embodies an abiding principle which transcends mere protection of property rights and expounds a concept of “personal liberty” which does not rest on any element of feudalism or on any theory of freedom which has ceased to be of 16 value. ” (emphasis supplied) 16 Kharak Singh regards the sanctity of the home and the protection against unauthorized intrusion an integral element of “ordered liberty”. This is comprised in ‘personal liberty’ guaranteed by Article 21. The decision invalidated domiciliary visits at night authorised by Regulation 236 (b), finding them to be an unauthorized intrusion into the home of a person and a violation of the fundamental right to personal liberty.

However, while considering the validity of clauses (c),(d) and (e) which provided for periodical enquiries, reporting by law enforcement personnel and verification of movements, this Court held as follows : “…the freedom guaranteed by Article 19(1)(d) is not infringed by a watch being kept over the movements of the suspect. Nor do we consider that Article 21 has any relevance in the context as was sought to be suggested by learned Counsel for the petitioner. As already pointed out, the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in Ibid, at page 349 PART C which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III. ” (emphasis supplied) In the context of clauses (c), (d) and (e), the above extract indicates the view of the majority that the right of privacy is not guaranteed under the Constitution. 17 Justice Subba Rao dissented.

Justice Subba Rao held that the rights conferred by Part III have overlapping areas. Where a law is challenged as infringing the right to freedom of movement under Article 19(1)(d) and the liberty of the individual under Article 21, it must satisfy the tests laid down in Article 19(2) as well as the requirements of Article 21. Justice Subba Rao held that : “No doubt the expression “personal liberty” is a comprehensive one and the right to move freely is an attribute of personal liberty. It is said that the freedom to move freely is carved out of personal liberty and, therefore, the expression “personal liberty” in Article 21 excludes that attribute. In our view, this is not a correct approach. Both are independent fundamental rights, though there is overlapping. There is no question of one being carved out of another. The fundamental right of life and personal liberty have many attributes and some of them are found in Article 19.

If a person's fundamental right under Article 21 is infringed, the State can rely upon a law to sustain the action; but that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned. In other words, the State must satisfy that both the fundamental rights are not infringed by showing that there is a law and that it does amount to a reasonable restriction within the meaning of Article 19(2) of the Constitution. But in this case no such defence is available, as admittedly there is no such law. So the petitioner can legitimately plead that his fundamental rights both 18 under Article 19(1)(d) and Article 21 are infringed by the State. ” Ibid, at page 351 Ibid, at pages 356-357 PART C 18 Justice Subba Rao held that Article 21 embodies the right of the individual to be free from restrictions or encroachments.

In this view, though the Constitution does not expressly declare the right to privacy as a fundamental right, such a right is essential to personal liberty. The dissenting opinion places the matter of principle as follows: “In an uncivilized society where there are no inhibitions, only physical restraints may detract from personal liberty, but as civilization advances the psychological restraints are more effective than physical ones. The scientific methods used to condition a man's mind are in a real sense physical restraints, for they engender physical fear channelling one's actions through anticipated and expected grooves. So also the creation of conditions which necessarily engender inhibitions and fear complexes can be described as physical restraints. Further, the right to personal liberty takes in not only a right to be free from restrictions placed on his movements, but also free from encroachments on his private life.

It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty. Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a person's house, where he lives with his family, is his “castle”; it is his rampart against encroachment on his personal liberty. The pregnant words of that famous Judge, Frankfurter J. , in Wolf v. Colorado [[1949] 238 US 25] pointing out the importance of the security of one's privacy against arbitrary intrusion by the police, could have no less application to an Indian home as to an American one. If physical restraints on a person's movements affect his personal liberty, physical encroachments on his private life would affect it in a larger degree.

Indeed, nothing is more deleterious to a man's physical happiness and health than a calculated interference with his privacy. We would, therefore, define the right of personal liberty in Article 21 as a right of an individual to be free from restrictions or encroachments on his person, whether those restrictions or encroachments are directly imposed or indirectly brought about by calculated measures. If so understood, all the acts of surveillance under PART D Regulation 236 infringe the fundamental right of the petitioner under Article 21 of the Constitution. ” (emphasis supplied) Significantly, both Justice Rajagopala Ayyangar for the majority and Justice Subba Rao in his dissent rely upon the observations of Justice Frankfurter in Wolf v Colorado which specifically advert to privacy. The majority, while relying upon them to invalidate domiciliary visits at night, regards the sanctity of the home as part of ordered liberty.

In the context of other provisions of the regulation, the majority declines to recognise a right of privacy as a constitutional protection. Justice Subba Rao recognised a constitutional by protected right to privacy, considering it as an ingredient of personal liberty. D Gopalan doctrine : fundamental rights as isolated silos 19 When eight judges of this Court rendered the decision in M P Sharma in 1954 and later, six judges decided the controversy in Kharak Singh in 1962, the ascendant and, even well established, doctrine governing the fundamental rights contained in Part III was founded on the Gopalan principle. In Gopalan, Chief Justice Kania, speaking for a majority of five of the Bench of six judges, construed the relationship between Articles 19 and 21 to be one of mutual exclusion. In this line of enquiry, what was comprehended by Article 19 was excluded from Article 21. The seven freedoms of Article 19 were not subsumed in the fabric of life or personal liberty in Article 21.

Ibid, at pages 358-359 PART D The consequence was that a law which curtailed one of the freedoms guaranteed by Article 19 would be required to answer the tests of reasonableness prescribed by clauses 2 to 6 of Article 19 and those alone. In the Gopalan perspective, free speech and expression was guaranteed by Article 19(1)(a) and was hence excluded from personal liberty under Article 21. Article 21 was but a residue. Chief Justice Kania held : “Reading Article 19 in that way it appears to me that the concept of the right to move freely throughout the territory of India is an entirely different concept from the right to “personal liberty” contemplated by Article 21. “Personal liberty” covers many more rights in one sense and has a restricted meaning in another sense.

For instance, while the right to move or reside may be covered by the expression, “personal liberty” the right to freedom of speech (mentioned in Article 19(1)(a)) or the right to acquire, hold or dispose of property (mentioned in 19(1)(f)) cannot be considered a part of the personal liberty of a citizen. They form part of the liberty of a citizen but the limitation imposed by the word “personal” leads me to believe that those rights are not covered by the expression personal liberty. So read there is no conflict between Articles 19 and 21. The contents and subject-matters of Articles 19 and 21 are thus not the same and they proceed to deal with the rights covered by their respective words from totally different angles.

As already mentioned in respect of each of the rights specified in sub-clauses of Article 19(1) specific limitations in respect of each is provided, while the expression “personal liberty” in Article 21 is generally controlled by the general expression “procedure established by 20 law”. ” ‘Procedure established by law’ under Article 21 was, in this view, not capable of being expanded to include the ‘due process of law’. Justice Fazl Ali dissented. The dissent Gopalan (Supra note 3), at pages 36-37 PART D adopted the view that the fundamental rights are not isolated and separate but protect a common thread of liberty and freedom: “To my mind, the scheme of the Chapter dealing with the fundamental rights does not contemplate what is attributed to it, namely, that each article is a code by itself and is independent of the others. In my opinion, it cannot be said that Articles 19,20, 21 and 22 do not to some extent overlap each other.

The case of a person who is convicted of an offence will come under Articles 20 and 21 and also under Article 22 so far as his arrest and detention in custody before trial are concerned. Preventive detention, which is dealt with an Article 22, also amounts to deprivation of personal liberty which is referred to in Article 21, and is a violation of the right of freedom of movement dealt with in Article 19(1)(d)… It seems clear that the addition of the word “personal” before “liberty” in Article 21 cannot change the meaning of the words used in Article 19, nor can it put a matter which is inseparably bound up 21 with personal liberty beyond its place... ” 22 20 In Satwant Singh Sawhney v D Ramarathnam (“Satwant Singh Sawhney”), Justice Hidayatullah, speaking for himself and Justice R S Bachawat, in the dissenting view noticed the clear lines of distinction between the dissent of Justice Subba Rao and the view of the majority in Kharak Singh.

The observations of Justice Hidayatullah indicate that if the right of locomotion is embodied by Article 21 of which one aspect is covered by Article 19(1)(d), that would in fact advance the minority view in Kharak Singh: “Subba Rao J. (as he then was) read personal liberty as the antithesis of physical restraint or coercion and found that Articles 19(1) and 21 overlapped and Article 19(1)(d) was not carved out of personal liberty in Article 21. According to him, personal liberty could be curtailed by law, but that law must satisfy the test in Article Ibid, at pages 52-53 (1967) 3 SCR 525 PART E 19(2) in so far as the specific rights in Article 19(1)(3) are concerned. In other words, the State must satisfy that both the fundamental rights are not infringed by showing that there is a law and that it does not amount to an unreasonable restriction within the meaning of Article 19(2) of the Constitution.

As in that case there was no law, fundamental rights, both under Article 19(1)(d) and Article 21 were held to be infringed. The learned Chief Justice has read into the decision of the Court a meaning which it does not intend to convey. He excludes from Article 21 the right to free motion and locomotion within the territories of India and puts the right to travel abroad in Article 21. He wants to see a law and if his earlier reasoning were to prevail, the law should stand the test of Article 19(2). But since clause (2) deals with matters in Article 19(1) already held excluded, it is obvious that it will not apply. The law which is made can only be tested on the ground of articles other than Article 19 such as Articles 14, 20 and 22 which alone bears upon this matter. In other words, the majority decision of the Court in this case has rejected Ayyangar J.

's view and accepted the view of the minority in Kharak Singh case… This view obviously clashes with the reading of Article 21 in Kharak Singh case, because there the right of motion and locomotion was held to be excluded from Article 21. In other words, the present decision advances the minority view in Kharak Singh case above 23 the majority view stated in that case. ” E Cooper and Maneka : Interrelationship between rights 21 The theory that the fundamental rights are water-tight compartments was discarded in the judgment of eleven judges of this Court in Cooper. Gopalan had adopted the view that a law of preventive detention would be tested for its validity only with reference to Article 22, which was a complete code relating to the subject. Legislation on preventive detention did not, in this view, have to meet the touchstone of Article 19(1)(d).

The dissenting view of Justice Fazl Ali in Gopalan was noticed by Ibid, at page 554 PART E Justice J C Shah, speaking for this Court, in Cooper. The consequence of the Gopalan doctrine was that the protection afforded by a guarantee of personal freedom would be decided by the object of the State action in relation to the right of the individual and not upon its effect upon the guarantee. Disagreeing with this view, the Court in Cooper held thus : ”…it is necessary to bear in mind the enunciation of the guarantee of fundamental rights which has taken different forms.

In some cases it is an express declaration of a guaranteed right: Articles 29(1), 30(1), 26, 25 and 32; in others to ensure protection of individual rights they take specific forms of restrictions on State action — legislative or executive — Articles 14, 15, 16, 20, 21, 22(1), 27 and 28; in some others, it takes the form of a positive declaration and simultaneously enunciates the restriction thereon: Articles 19(1) and 19(2) to (6); in some cases, it arises as an implication from the delimitation of the authority of the State, e. g. Articles 31(1) and 31(2); in still others, it takes the form of a general prohibition against the State as well as others: Articles 17, 23 and 24. The enunciation of rights either express or by implication does not follow a uniform pattern. But one thread runs through them: they seek to protect the rights of the individual or groups of individuals against infringement of those rights within specific limits.

Part III of the Constitution weaves a pattern of guarantees on the texture of basic human rights. The guarantees delimit the protection of those rights in their allotted fields: they do not attempt to enunciate distinct 24 rights. ” (emphasis supplied) 22 The abrogation of the Gopalan doctrine in Cooper was revisited in a seven- judge Bench decision in Maneka. Justice P N Bhagwati who delivered the leading opinion of three Judges held that the judgment in Cooper affirms the dissenting Cooper (Supra note 4), at page 289 (para 52) PART E opinion of Justice Subba Rao (in Kharak Singh) as expressing the valid constitutional position. Hence in Maneka, the Court held that: “It was in Kharak Singh v. State of U. P. [AIR 1963 SC 1295 : (1964) 1 SCR 332 : (1963) 2 Cri LJ 329] that the question as to the proper scope and meaning of the expression “personal liberty” came up pointedly for consideration for the first time before this Court.

The majority of the Judges took the view “that “personal liberty” is used in the article as a compendious term to include within itself all the varieties of rights which go to make up the “personal liberties” of man other than those dealt with in the several clauses of Article 19(1). In other words, while Article 19(1) deals with particular species or attributes of that freedom, ‘personal liberty’ in Article 21 takes in and comprises the residue. The minority Judges, however, disagreed with this view taken by the majority and explained their position in the following words: “No doubt the expression ‘personal liberty’ is a comprehensive one and the right to move freely is an attribute of personal liberty. It is said that the freedom to move freely is carved out of personal liberty and, therefore, the expression ‘personal liberty’ in Article 21 excludes that attribute. In our view, this is not a correct approach. Both are independent fundamental rights, though there is overlapping.

There is no question of one being carved out of another. The fundamental right of life and personal liberty has many attributes and some of them are found in Article 19. If a person's fundamental right under Article 21 is infringed, the State can rely upon a law to sustain the action, but that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned. ” There can be no doubt that in view of the decision of this Court in R. C. Cooper v. Union of India [(1970) 2 SCC 298 : (1971) 1 SCR 512] the minority view must be regarded as correct and the majority view must be 25 held to have been overruled.

” (emphasis supplied) 23 Following the decision in Maneka, the established constitutional doctrine is that the expression ‘personal liberty’ in Article 21 covers a variety of rights, some of which Maneka (Supra Note 5), at page 278 (para 5) PART E ‘have been raised to the status of distinct fundamental rights’ and given additional protection under Article 19. Consequently, in Satwant Singh Sawhney, the right to travel abroad was held to be subsumed within Article 21 as a consequence of which any deprivation of that right could be only by a ‘procedure established by law’. Prior to the enactment of the Passports Act, 1967, there was no law regulating the right to travel abroad as a result of which the order of the Passport Officer refusing a passport was held to be invalid. The decision in Maneka carried the constitutional principle of the over-lapping nature of fundamental rights to its logical conclusion.

Reasonableness which is the foundation of the guarantee against arbitrary state action under Article 14 infuses Article 21. A law which provides for a deprivation of life or personal liberty under Article 21 must lay down not just any procedure but a procedure which is fair, just and reasonable. 24 The decisions in M P Sharma and Kharak Singh adopted a doctrinal position on the relationship between Articles 19 and 21, based on the view of the majority in Gopalan. This view stands abrogated particularly by the judgment in Cooper and the subsequent statement of doctrine in Maneka. The decision in Maneka, in fact, expressly recognized that it is the dissenting judgment of Justice Subba Rao in Kharak Singh which represents the exposition of the correct constitutional principle. The jurisprudential foundation which held the field sixty three years ago in M P Sharma and fifty five years ago in Kharak Singh has given way to what is now a settled position in constitutional law.

Firstly, the fundamental rights emanate from basic notions of liberty and dignity and the enumeration of some facets of liberty as PART E distinctly protected rights under Article 19 does not denude Article 21 of its expansive ambit. Secondly, the validity of a law which infringes the fundamental rights has to be tested not with reference to the object of state action but on the basis of its effect on the guarantees of freedom. Thirdly, the requirement of Article 14 that state action must not be arbitrary and must fulfil the requirement of reasonableness, imparts meaning to the constitutional guarantees in Part III. 25 The doctrinal invalidation of the basic premise underlying the decisions in M P Sharma and Kharak Singh still leaves the issue of whether privacy is a right protected by Part III of the Constitution open for consideration. There are observations in both decisions that the Constitution does not contain a specific protection of the right to privacy.

Presently, the matter can be looked at from the perspective of what actually was the controversy in the two cases. M P Sharma was a case where a law prescribing a search to obtain documents for investigating into offences was challenged as being contrary to the guarantee against self-incrimination in Article 20(3). The Court repelled the argument that a search for documents compelled a person accused of an offence to be witness against himself. Unlike a notice to produce documents, which is addressed to a person and whose compliance would constitute a testimonial act, a search warrant and a seizure which follows are not testimonial acts of a person to whom the warrant is addressed, within the meaning of Article 20(3). The Court having held this, the controversy in M P Sharma would rest at that.

The observations in M P Sharma to the effect that the constitution makers had not thought it fit to subject the regulatory power of search and seizure to constitutional limitations PART E by recognising a fundamental right of privacy (like the US Fourth amendment), and that there was no justification to impart it into a ‘totally different fundamental right’ are at the highest, stray observations. 26 The decision in M P Sharma held that in the absence of a provision like the Fourth Amendment to the US Constitution, a right to privacy cannot be read into the Indian Constitution. The decision in M P Sharma did not decide whether a constitutional right to privacy is protected by other provisions contained in the fundamental rights including among them, the right to life and personal liberty under Article 21. Hence the decision cannot be construed to specifically exclude the protection of privacy under the framework of protected guarantees including those in Articles 19 or 21.

The absence of an express constitutional guarantee of privacy still begs the question whether privacy is an element of liberty and, as an integral part of human dignity, is comprehended within the protection of life as well. 27 The decision in Kharak Singh is noteworthy because while invalidating Regulation 236(b) of the Police Regulations which provided for nightly domiciliary visits, the majority construed this to be an unauthorized intrusion into a person’s home and a violation of ordered liberty. While arriving at this conclusion, the majority placed reliance on the privacy doctrine enunciated by Justice Frankfurter, speaking for the US Supreme Court in Wolf v Colorado (the extract from Wolf cited in the majority judgment specifically adverts to ‘privacy’ twice).

Having relied on this doctrine PART F to invalidate domiciliary visits, the majority in Kharak Singh proceeded to repel the challenge to other clauses of Regulation 236 on the ground that the right of privacy is not guaranteed under the Constitution and hence Article 21 had no application. This part of the judgment in Kharak Singh is inconsistent with the earlier part of the decision. The decision of the majority in Kharak Singh suffers from an internal inconsistency. F Origins of privacy 28 An evaluation of the origins of privacy is essential in order to understand whether (as the Union of India postulates), the concept is so amorphous as to defy description. The submission of the government is that the Court cannot recognize a juristic concept which is so vague and uncertain that it fails to withstand constitutional scrutiny. This makes it necessary to analyse the origins of privacy and to trace its evolution.

29 The Greek philosopher Aristotle spoke of a division between the public sphere of political affairs (which he termed the polis) and the personal sphere of human life (termed oikos). This dichotomy may provide an early recognition of “a confidential 26 zone on behalf of the citizen” . Aristotle’s distinction between the public and private realms can be regarded as providing a basis for restricting governmental authority to activities falling within the public realm. On the other hand, activities in the private Michael C. James, “A Comparative Analysis of the Right to Privacy in the United States, Canada and Europe”, Connecticut Journal of International Law (Spring 2014), Vol. 29, Issue 2, at page 261 PART F realm are more appropriately reserved for “private reflection, familial relations and 27 self-determination” . 30 At a certain level, the evolution of the doctrine of privacy has followed the public – private distinction.

William Blackstone in his Commentaries on the Laws of England (1765) spoke about this distinction while dividing wrongs into private wrongs and public wrongs. Private wrongs are an infringement merely of particular rights concerning individuals and are in the nature of civil injuries. Public wrongs constitute a breach of general and public rights affecting the whole community and according to him, are called crimes and misdemeanours. 31 John Stuart Mill in his essay, ‘On Liberty’ (1859) gave expression to the need to preserve a zone within which the liberty of the citizen would be free from the authority of the state. According to Mill : “The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over 28 himself, over his own body and mind, the individual is sovereign.

” 29 While speaking of a “struggle between liberty and authority” , Mill posited that the tyranny of the majority could be reined by the recognition of civil rights such as the individual right to privacy, free speech, assembly and expression. Ibid, at page 262 John Stuart Mill, On Liberty, Batoche Books (1859), at page 13 Ibid, at page 6 PART F 32 Austin in his Lectures on Jurisprudence (1869) spoke of the distinction between the public and the private realms : jus publicum and jus privatum. The distinction between the public and private realms has its limitations. If the reason for protecting privacy is the dignity of the individual, the rationale for its existence does not cease merely because the individual has to interact with others in the public arena. The extent to which an individual expects privacy in a public street may be different from that which she expects in the sanctity of the home.

Yet if dignity is the underlying feature, the basis of recognising the right to privacy is not denuded in public spaces. The extent of permissible state regulation may, however, differ based on the legitimate concerns of governmental authority. 33 James Madison, who was the architect of the American Constitution, contemplated the protection of the faculties of the citizen as an incident of the inalienable property rights of human beings. In his words : “In the former sense, a man’s land, or merchandize, or money is called his property. In the latter sense, a man has property in his opinions and the free communication of them… He has an equal property interest in the free use of his faculties and free choice of the objects on which to employ them. In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights. Where an excess of power prevails, property of no sort is duly respected.

No man is safe in his opinions, his person, his faculties or his possessions… Conscience is the most sacred of all property; other property depending in part on positive law, the exercise of that, being a natural and inalienable right. To guard a man’s house as his castle, PART F to pay public and enforce private debts with the most exact faith, can give no title to invade a man’s conscience which is more sacred than his castle, or to withhold from it that debt of protection, for which the public faith is pledged, by the very nature and original 30 conditions of the social pact. ” Madison traced the recognition of an inviolable zone to an inalienable right to property. Property is construed in the broadest sense to include tangibles and intangibles and ultimately to control over one’s conscience itself.

34 In an article published on 15 December 1890 in the Harvard Law Review, Samuel D Warren and Louis Brandeis adverted to the evolution of the law to incorporate within it, the right to life as “a recognition of man’s spiritual nature, of his 31 feelings and his intellect” . As legal rights were broadened, the right to life had “come to mean the right to enjoy life – the right to be let alone”. Recognizing that “only a part of the pain, pleasure and profit of life lay in physical things” and that “thoughts, emotions, and sensations demanded legal recognition”, Warren and Brandeis revealed with a sense of perspicacity the impact of technology on the right to be let alone: “Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right “to be let alone”.

Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that “what is whispered in the closet shall be proclaimed James Madison, “Essay on Property”, in Gaillard Hunt ed. , The Writings of James Madison (1906), Vol. 6, at pages 101-103. Warren and Brandeis, “The Right to Privacy”, Harvard Law Review (1890), Vol. 4, No. 5, at page 193 PART F from the house-tops.

” For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons… The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by 32 mere bodily injury. ” In their seminal article, Warren and Brandeis observed that: “The principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of 33 private property, but that of an inviolate personality.

” (emphasis supplied) The right “to be let alone” thus represented a manifestation of “an inviolate personality”, a core of freedom and liberty from which the human being had to be free from intrusion. The technology which provided a justification for the need to preserve the privacy of the individual was the development of photography. The right to be let alone was not so much an incident of property as a reflection of the inviolable nature of the human personality. 35 The ringing observations of Warren and Brandeis on the impact of technology have continued relevance today in a globalized world dominated by the internet and Ibid, at pages 195-196 Ibid, at page 205 PART F information technology. As societies have evolved, so have the connotations and ambit of privacy.

36 Though many contemporary accounts attribute the modern conception of the ‘right to privacy’ to the Warren and Brandeis article, historical material indicates that it was Thomas Cooley who adopted the phrase “the right to be let alone”, in his 34 Treatise on the Law of Torts . Discussing personal immunity, Cooley stated: “the right of one’s person may be said to be a right of complete 35 immunity; the right to be alone. ” Roscoe Pound described the Warren and Brandeis article as having done “nothing 36 less than add a chapter to our law” . However, another writer on the subject states that: “This right to privacy was not new. Warren and Brandeis did not even coin the phrase, “right to privacy,” nor its common soubriquet, 37 “the right to be let alone”. ” The right to be let alone is a part of the right to enjoy life. The right to enjoy life is, in its turn, a part of the fundamental right to life of the individual.

34 nd Thomas Cooley, Treatise on the Law of Torts (1888), 2 edition 35 Ibid, at page 29 36 Dorothy J Glancy, “The Invention of the Right to Privacy”, Arizona Law Review (1979) Vol. 21, No. 1, at page 1. The article attributes the Roscoe Pound quotation to “Letter from Roscoe Pound to William Chilton (1916)” as quoted in Alpheus Mason, Brandeis : A Free Man’s Life 70 (1956). Ibid, at pages 2-3. PART F 37 The right to privacy was developed by Warren and Brandeis in the backdrop of the dense urbanization which occurred particularly in the East Coast of the United States. Between 1790 and 1890, the US population had risen from four million to sixty- three million. The population of urban areas had grown over a hundred-fold since the end of the civil war. In 1890, over eight million people had immigrated to the US.

Technological progress and rapid innovations had led to the private realm being placed under stress : “…technological progress during the post-Civil War decades had brought to Boston and the rest of the United States “countless, little-noticed revolutions” in the form of a variety of inventions which made the personal lives and personalities of individuals increasingly accessible to large numbers of others, irrespective of acquaintance, social or economic class, or the customary constraints of propriety. Bell invented the telephone in Boston; the first commercial telephone exchange opened there in 1877, while Warren and Brandeis were students at the Harvard Law School. By 1890 there were also telegraphs, fairly inexpensive portable cameras, sound recording devices, and better and cheaper methods of making window glass.

Warren and Brandeis recognized that these advances in technology, coupled with intensified newspaper enterprise, increased the vulnerability of individuals to having their actions, words, images, and personalities communicated without their consent beyond the protected circle of 38 family and chosen friends. ” 39 Coupled with this was the trend towards ‘newspaperization’ , the increasing presence of the print media in American society. Six months before the publication of the Warren and Brandeis’ article, E L Godkin, a newspaper man had published an article on the same subject in Scribner’s magazine in July 1890. Godkin, however, suggested no Ibid, at pages 7-8 Ibid, at page 8 PART F realistic remedy for protecting privacy against intrusion, save and except “by the 40 cudgel or the horsewhip” . It was Warren and Brandeis who advocated the use of the 41 common law to vindicate the right to privacy.

38 Criminal libel actions were resorted to in the US during a part of the nineteenth century but by 1890, they had virtually ceased to be “a viable protection for individual 42 privacy” . The Sedition Act of 1789 expired in 1801. Before truth came to be accepted as a defence in defamation actions, criminal libel prosecutions flourished in the State 43 courts. Similarly, truth was not regarded as a valid defence to a civil libel action in much of the nineteenth century. By the time Warren and Brandeis wrote their article in 1890, publication of the truth was perhaps no longer actionable under the law of defamation. It was this breach or lacuna that they sought to fill up by speaking of the 44 right to privacy which would protect the control of the individual over her personality. The right to privacy evolved as a “leitmotif” representing “the long tradition of American 45 individualism”.

46 39 Conscious as we are of the limitations with which comparative frameworks of law and history should be evaluated, the above account is of significance. It reflects 40 Ibid, at page 9 41 Ibid, at page 10 42 Ibid, at page 12 43 Ibid, at page 14 44 Ibid, at Pages 15-16 Id at Pages 21-22 Illustratively, the Centre for Internet and Society has two interesting articles tracing the origin of privacy within Classical Hindu Law and Islamic Law. See Ashna Ashesh and Bhairav Acharya ,“Locating Constructs of Privacy PART G the basic need of every individual to live with dignity. Urbanization and economic development lead to a replacement of traditional social structures. Urban ghettos replace the tranquillity of self-sufficient rural livelihoods. The need to protect the privacy of the being is no less when development and technological change continuously threaten to place the person into public gaze and portend to submerge the individual into a seamless web of inter-connected lives.

G Natural and inalienable rights 40 Privacy is a concomitant of the right of the individual to exercise control over his or her personality. It finds an origin in the notion that there are certain rights which are natural to or inherent in a human being. Natural rights are inalienable because they are inseparable from the human personality. The human element in life is impossible to conceive without the existence of natural rights. In 1690, John Locke had in his Second Treatise of Government observed that the lives, liberties and estates of individuals are as a matter of fundamental natural law, a private preserve. The idea of a private preserve was to create barriers from outside interference. In 1765, William Blackstone in his Commentaries on the Laws of England spoke of a “natural liberty”. There were, in his view, absolute rights which were vested in the individual by the immutable laws of nature.

These absolute rights were divided into within Classical Hindu Law”, The Centre for Internet and Society, available at https://cis-india. org/internet-governance/blog/loading-constructs-of-privacy-within-classical-hindu-law. See also Vidushi Marda and Bhairav Acharya, “Identifying Aspects of Privacy in Islamic Law”, The Centre for Internet and Society, available at https://cis-india. org/internet-governance/blog/identifying-aspects-of-privacy-in-islamic-law PART G rights of personal security, personal liberty and property. The right of personal security involved a legal and uninterrupted enjoyment of life, limbs, body, health and reputation by an individual.

41 The notion that certain rights are inalienable was embodied in the American Declaration of Independence (1776) in the following terms: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness”. (emphasis supplied) The term inalienable rights was incorporated in the Declaration of the Rights of Man and of the Citizen (1789) adopted by the French National Assembly in the following terms: “For its drafters, to ignore, to forget or to depreciate the rights of man are the sole causes of public misfortune and government corruption. These rights are natural rights, inalienable and sacred, the National Assembly recognizes and proclaims them-it does not grant, concede or establish them-and their conservation is the reason for all political communities; within these rights figures resistance to oppression”.

(emphasis supplied) 42 In 1921, Roscoe Pound, in his work titled “The Spirit of the Common Law”, explained the meaning of natural rights: “Natural rights mean simply interests which we think ought to be secured; demands which human beings may make which we think ought to be satisfied. It is perfectly true that neither law nor state PART G creates them. But it is fatal to all sound thinking to treat them as legal conceptions. For legal rights, the devices which law employs to secure such of these interests as it is expedient to recognize, are 47 the work of the law and in that sense the work of the state. ” Two decades later in 1942, Pound in “The Revival of Natural Law” propounded that: “Classical natural law in the seventeenth and eighteenth centuries had three postulates. One was natural rights, qualities of the ideal or perfect man in a state of perfection by virtue of which he ought to have certain things or be able to do certain things.

These were a guarantee of stability because the natural rights were taken to be immutable and inalienable. (2) The social compact, a postulated contract basis of civil society. Here was a guide to change. (3) An ideal law of which positive laws were only declaratory; an ideal body of perfect precepts governing human relations and ordering human conduct, guaranteeing the natural 48 rights and expressing the social compact. ” (emphasis supplied) 43 In 1955, Edwin W Patterson in “A Pragmatist Looks At Natural Law and Natural Rights” observed that rights which individuals while making a social compact to create a government, reserve to themselves, are natural rights because they originate in a condition of nature and survive the social compact.

In his words: “The basic rights of the citizen in our political society are regarded as continuing from a prepolitical condition or as arising in society independently of positive constitutions, statutes, and judicial decisions, which merely seek to “secure” or “safeguard” rights already reserved. These rights are not granted by a benevolent despot to his grateful subjects. The “natural rights” theory thus provided a convenient ideology for the preservation of such important rights as freedom of speech, freedom of religion and procedural due process of law. As a pragmatist, I should prefer to Roscoe Pound, The Spirit of the Common Law, Marshall Jones Company (1921), at page 92 Roscoe Pound, “The Revival of Natural Law”, Notre Damne Lawyer (1942), Vol. 27, No 4, at page 330 PART G explain them as individual and social interests which arise or exist normally in our culture and are tuned into legal rights by being 49 legally protected. ” 44 Natural rights are not bestowed by the state.

They inhere in human beings because they are human. They exist equally in the individual irrespective of class or strata, gender or orientation. 45 Distinguishing an inalienable right to an object from the object itself emphasises the notion of inalienability. All human beings retain their inalienable rights (whatever their situation, whatever their acts, whatever their guilt or innocence). The concept of natural inalienable rights secures autonomy to human beings. But the autonomy is not absolute, for the simple reason that, the concept of inalienable rights postulates that there are some rights which no human being may alienate. While natural rights protect the right of the individual to choose and preserve liberty, yet the autonomy of the individual is not absolute or total. As a theoretical construct, it would otherwise be strictly possible to hire another person to kill oneself or to sell oneself into slavery or servitude.

Though these acts are autonomous, they would be in violation of inalienable rights. This is for the reason that: “…These acts, however autonomous, would be in violation of inalienable rights, as the theories would have it. They would be morally invalid, and ineffective actually to alienate inalienable rights. Although self-regarding, they pretend to an autonomy that does not exist. Inalienable rights are precisely directed against such false Edwin W. Patterson, “A Pragmatist Looks At Natural Law and Natural Rights”, in Arthur L. Harding ed. , Natural Law and Natural Rights (1955), at pages 62-63 PART G autonomy. Natural inalienable rights, like other natural rights, have long rested upon what has been called the law of nature of natural law. Perhaps all of the theories discussed above could be called law of nature or natural law theories.

The American tradition, even as early as 1641, ten years before Thomas Hobbes published Leviathan, included claims of natural rights, and these claims appealed to the law of nature, often in terms. Without a moral order of the law of nature sort, natural inalienable rights are difficult to pose. “’It is from natural law, and from it alone, that man obtains those rights we refer to as inalienable and inviolable…Human rights can have no foundation 50 other than natural law. ” 46 The idea that individuals can have rights against the State that are prior to rights created by explicit legislation has been developed as part of a liberal theory of law propounded by Ronald Dworkin. In his seminal work titled “Taking Rights 51 Seriously” (1977), he states that: “Individual rights are political trumps held by individuals.

Individuals have rights when, for some reason, a collective goal is not a sufficient justification for denying them what they wish, as individuals, to have or to do, or not a sufficient justification for 52 imposing some loss or injury upon them. ” (emphasis supplied) Dworkin asserts the existence of a right against the government as essential to protecting the dignity of the individual: “It makes sense to say that a man has a fundamental right against the Government, in the strong sense, like free speech, if that right is necessary to protect his dignity, or his standing 50 Craig A. Ster and Gregory M. Jones, “The Coherence of Natural Inalienable Rights”, UMKC Law Review (2007- 08), Volume 76 (4), at pages 971-972 Ronald Dworkin, Taking Rights Seriously, Duckworth (1977) Ibid, at page xi PART G as equally entitled to concern and respect, or some other personal value of like consequence.

” (emphasis supplied) Dealing with the question whether the Government may abridge the rights of others to act when their acts might simply increase the risk, by however slight or speculative a margin, that some person’s right to life or property will be violated, Dworkin says : “But no society that purports to recognize a variety of rights, on the ground that a man’s dignity or equality may be invaded in a variety 54 of ways, can accept such a principle … If rights make sense, then the degrees of their importance cannot be so different that some count not at all when others are 55 mentioned … If the Government does not take rights seriously, then it does not 56 take law seriously either …” Dworkin states that judges should decide how widely an individual’s rights extend.

He states: “Indeed, the suggestion that rights can be demonstrated by a process of history rather than by an appeal to principle shows either a confusion or no real concern about what rights are… This has been a complex argument, and I want to summarize it. Our constitutional system rests on a particular moral theory, namely, that men have moral rights against the state. The different clauses of the Bill of Rights, like the due process and equal protection clauses, must be understood as appealing to moral concepts rather than laying down particular concepts; therefore, a court that undertakes the burden of applying these clauses fully as law must 53 Ibid, at page 199 Ibid, at page 203 Ibid, at page 204 Ibid, at page 205 PART H be an activist court, in the sense that it must be prepared to frame and answer questions of political morality…” A later section of this judgment deals with how natural and inalienable rights have been developed in Indian precedent.

H Evolution of the privacy doctrine in India 47 Among the early decisions of this Court following Kharak Singh was R M 58 Malkani v State of Maharashtra . In that case, this Court held that Section 25 of the Indian Telegraph Act, 1885 was not violated because : “Where a person talking on the telephone allows another person to record it or to hear it, it cannot be said that the other person who is allowed to do so is damaging, removing, tampering, touching machinery battery line or post for intercepting or acquainting himself with the contents of any message. There was no element of coercion or compulsion in attaching the tape recorder to the 59 telephone. ” This Court followed the same line of reasoning as it had in Kharak Singh while rejecting a privacy based challenge under Article 21. Significantly, the Court observed that : “Article 21 was invoked by submitting that the privacy of the appellant’s conversation was invaded.

Article 21 contemplates procedure established by law with regard to deprivation of life or personal liberty. The telephone conversation of an innocent citizen will be protected by Courts against wrongful or high handed interference by tapping the conversation. The protection is not for Ibid, at page 147 (1973) 1 SCC 471 Ibid, at page 476 (para 20) PART H the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants. It must not be understood that the Court will tolerate safeguards for the protection of the citizen to be imperilled by permitting the police to proceed by 60 unlawful or irregular methods. ” In other words, it was the targeted and specific nature of the interception which weighed with the Court, the telephone tapping being directed at a guilty person. Hence the Court ruled that the telephone conversation of an innocent citizen will be protected against wrongful interference by wiretapping.

61 48 In Gobind , a Bench of three judges of this Court considered a challenge to the validity of Regulations 855 and 856 of State Police Regulations under which a history sheet was opened against the petitioner who had been placed under surveillance. The Bench of three judges adverted to the decision in Kharak Singh and to the validation of the Police Regulations (other than domiciliary visits at night). By the time the decision was handed down in Gobind, the law in the US had evolved 62 and this Court took note of the decision in Griswold v Connecticut (“Griswold”) in which a conviction under a statute on a charge of giving information and advice to married persons on contraceptive methods was held to be invalid. This Court adverted to the dictum that specific guarantees of the Bill of Rights have penumbras which create zones of privacy.

The Court also relied upon the US Supreme Court decision 63 in Jane Roe v Henry Wade in which the Court upheld the right of a married woman 60 Ibid, at page 479 (para 31) (1975) 2 SCC 148 381 US 479 (1965) 410 US 113 (1973) PART H to terminate her pregnancy as a part of the right of personal privacy. The following observations of Justice Mathew, who delivered the judgment of the Court do indicate a constitutional recognition of the right to be let alone : “There can be no doubt that the makers of our Constitution wanted to ensure conditions favourable to the pursuit of happiness. They certainly realized as Brandeis, J. said in his dissent in Olmstead v.

64 United States , 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 65 against the government a sphere where he should be let alone”. These observations follow upon a reference to the Warren and Brandeis article; the two decisions of the US Supreme Court noted earlier; the writings of Locke and Kant; and to dignity, liberty and autonomy. 49 Yet a close reading of the decision in Gobind would indicate that the Court eventually did not enter a specific finding on the existence of a right to privacy under the Constitution.

The Court indicated that if the Court does find that a particular right should be protected as a fundamental privacy right, it could be overridden only subject to a compelling interest of the State : “There can be no doubt that privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior. If the Court does find that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling State interest test. Then the question would be 277 US 438 (1928) Supra note 6, at page 155 (para 20) PART H whether a State interest is of such paramount importance as would justify an infringement of the right.

” (emphasis supplied) While emphasising individual autonomy and the dangers of individual privacy being eroded by new developments that “will make it possible to be heard in the street what is whispered in the closet”, the Court had obvious concerns about adopting a broad definition of privacy since the right of privacy “is not explicit in the Constitution”. Observing that the concept of privacy overlaps with liberty, this Court noted thus : “Individual autonomy, perhaps the central concern of any system of limited government, is protected in part under our Constitution by explicit constitutional guarantees. In the application of the Constitution our contemplation cannot only be of what has been but what may be. Time works changes and brings into existence new conditions. Subtler and far reaching means of invading privacy will make it possible to be heard in the street what is whispered in the closet.

Yet, too broad a definition of privacy raises serious questions about the propriety of judicial reliance on a right that is not explicit in the Constitution. Of course, privacy primarily concerns the individual. It therefore relates to and overlaps with the concept of liberty. The most serious advocate of privacy must confess that there are serious problems of defining the essence and scope of the right. Privacy interest in autonomy must also be placed in the context of other rights and 67 values. ” (emphasis supplied) Justice Mathew proceeded to explain what any right of privacy must encompass and protect and found it to be implicit in the concept of ordered liberty : “Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing.

This catalogue approach to the question is obviously not as instructive as it does not give an analytical picture of the distinctive characteristics of the right of Ibid, at page 155 (para 22) Ibid, at page 156 (para 23) PART H 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 68 concept of ordered liberty. ” In adverting to ordered liberty, the judgment is similar to the statement in the judgment of Justice Rajagopala Ayyangar in Kharak Singh which found the intrusion of the home by nightly domiciliary visits a violation of ordered liberty. The Court proceeded to hold that in any event, the right to privacy will need a case to case elaboration.

The following observations were carefully crafted to hold that even on the “assumption” that there is an independent right of privacy emanating from personal liberty, the right to movement and free speech, the right is not absolute: “The right to privacy in any event will necessarily have to go through a process of case-by-case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterize as a fundamental right, we 69 do not think that the right is absolute.

” (emphasis supplied) Again a similar “assumption” was made by the Court in the following observations: “…Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right, that fundamental right must be subject to restriction on the basis of compelling public interest. As Regulation 856 has the force of law, it cannot be said that the fundamental right of the petitioner under Article 21 has been violated by the provisions Ibid, at page 156 (para 24) Ibid, at page 157 (para 28) PART H 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) 70 and 857. ” (emphasis supplied) The Court declined to interfere with the regulations.

50 The judgment in Gobind does not contain a clear statement of principle by the Court of the existence of an independent right of privacy or of such a right being an emanation from explicit constitutional guarantees. The Bench, which consisted of three judges, may have been constrained by the dictum in the latter part of Kharak Singh. Whatever be the reason, it is evident that in several places Justice Mathew proceeded on the “assumption” that if the right to privacy is protected under the Constitution, it is a part of ordered liberty and is not absolute but subject to restrictions tailor-made to fulfil a compelling state interest. This analysis of the decision in Gobind assumes significance because subsequent decisions of smaller Benches have proceeded on the basis that Gobind does indeed recognise a right to privacy. What the contours of such a right are, emerges from a reading of those decisions. This is the next aspect to which we now turn.

71 51 Malak Singh v State of Punjab and Haryana (“Malak Singh”) dealt with the provisions of Section 23 of the Punjab Police Rules under which a surveillance register Ibid, at page 157-158 (para 31) (1981) 1 SCC 420 was to be maintained among other persons, of all convicts of a particular description and persons who were reasonably believed to be habitual offenders whether or not, they were convicted. The validity of the rules was not questioned in view of decisions in Kharak Singh and Gobind. The rules provided for modalities of surveillance. Justice O Chinnappa Reddy speaking for a Bench of two judges of this Court recognised the need for surveillance on habitual and potential offenders. In his “Prevention of crime is one of the prime purposes of the constitution of a police force. The preamble to the Police Act, 1861 says: “Whereas it is expedient to reorganise the police and to make it a more efficient instrument for the prevention and detection of crime.

” Section 23 of the Police Act prescribes it as the duty of police officers “to collect and communicate intelligence affecting the public peace; to prevent the commission of offences and public nuisances”. In connection with these duties it will be necessary to keep discreet surveillance over reputed bad characters, habitual offenders and other potential offenders. Organised crime cannot be successfully fought without close watch of suspects. But, surveillance may be intrusive and it may so seriously encroach on the privacy of a citizen as to infringe his fundamental right to personal liberty guaranteed by Article 21 of the Constitution and the freedom of movement guaranteed by Article 19(1)(d). That cannot be permitted. This is recognised by the Punjab Police Rules themselves. Rule 23. 7, which prescribes the mode of surveillance, permits the close watch over the movements of the person under surveillance but without any illegal interference.

Permissible surveillance is only to the extent of a close watch over the movements of the person under surveillance and no more. So long as surveillance is for the purpose of preventing crime and is confined to the limits prescribed by Rule 23. 7 we do not think a person whose name is includ

Source: Supreme Court of India. Archive: Supreme Court of India official judgment archive. Judicial reproduction: section 52(1)(q)(iv). Text extracted automatically; compare with the source PDF for layout and accuracy.