RIGHT TO PRIVACY IS A
FUNDAMENTAL RIGHT, IT IS INTRINSIC TO RIGHT TO LIFE. Government cannot peep into the bedrooms and toilets of individuals.
There are 6 judgments of the 9
member Constitutional Bench of the Supreme Court of India which was delivered on
24-8-2017. Below is the text of the order. Below order, main parts of the 6 seperate judgments as mentioned in the order is given for more clarity.
WRIT PETITION (CIVIL)
NO 494 OF 2012
JUSTICE K S PUTTASWAMY
(RETD.), AND ANR. ..Petitioners
VERSUS
UNION OF INDIA AND ORS.
..Respondents
ORDER OF THE COURT
1 The judgment on behalf of the
Hon’ble Chief Justice Shri Justice Jagdish Singh Khehar, Shri Justice R K
Agrawal, Shri Justice S Abdul Nazeer and Dr Justice D Y Chandrachud was
delivered by Dr Justice D Y Chandrachud.
Shri Justice J Chelameswar, Shri Justice S A Bobde, Shri Justice Abhay
Manohar Sapre, Shri Justice Rohinton Fali Nariman and Shri Justice Sanjay
Kishan Kaul delivered separate judgments.
2 The reference is disposed of in
the following terms:
(i) The decision in M P Sharma
which holds that the right to privacy is not
protected by the Constitution stands over-ruled;
(ii) The decision in Kharak Singh
to the extent that it holds that the right to privacy is not protected by the
Constitution stands over-ruled;
(iii) The right to privacy is
protected as an intrinsic part of the right to life and personal liberty under
Article 21 and as a part of the freedoms guaranteed by Part III of the
Constitution.
(iv) Decisions subsequent to Kharak Singh
which have enunciated the position in (iii) above lay down the correct position
in law.
New Delhi; AUGUST 24, 2017
1ST combined judgment of 4.
Our Conclusions
1. The
judgment in M P Sharma holds essentially that in the absence of a provision similar
to the Fourth Amendment to the US Constitution, the right to privacy cannot be
read into the provisions of Article 20 (3) of the Indian Constitution. The
judgment does not specifically adjudicate on whether a right to privacy would
arise from any of the other provisions of the rights guaranteed by Part III
including Article 21 and Article 19. The observation that privacy is not a
right guaranteed by the Indian Constitution is not reflective of the correct
position. M P Sharma is overruled to theextent to which it indicates to the
contrary.
2. Kharak
Singh has correctly held that the content of the expression ‘life’ under
Article 21 means not merely the right to a person’s “animal existence” and that
the expression ‘personal liberty’ is a guarantee against invasion into the
sanctity of a person’s home or an intrusion into personal security. Kharak
Singh also correctly laid down that the dignity of the individual must lend
content to the meaning of ‘personal liberty’. The first part of the decision in
Kharak Singh which invalidated domiciliary visits at night on the ground that
they violated ordered liberty is an implicit recognition of the right to
privacy. The second part of the decision, however, which holds that the right
to privacy is not a guaranteed right under our Constitution, is not reflective
of the correct position. Similarly, Kharak Singh’s reliance upon the decision
of the majority in Gopalan is not reflective of the correct position in view of
the decisions in Cooper and in Maneka. Kharak Singh to the extent that it holds
that the right to privacy is not protected under the Indian Constitution is
overruled.
3. (A) Life and personal liberty are
inalienable rights. These are rights which are inseparable from a dignified
human existence. The dignity of the individual, equality between human beings
and the quest for liberty are the foundational pillars of the Indian
Constitution;
(B)Life and personal liberty are not
creations of the Constitution. These rights are recognised by the Constitution
as inhering in each individual as an intrinsic and inseparable part of the
human element which dwells within;
(C)Privacy is a constitutionally protected
right which emerges primarily from the guarantee of life and personal liberty
in Article 21 of the Constitution. Elements of privacy also arise in varying
contexts from the other facets of freedom and dignity recognised and guaranteed
by the fundamental rights contained in Part III;
(D)Judicial recognition of the existence
of a constitutional right of privacy is not an exercise in the nature of
amending the Constitution nor is the Court embarking on a constitutional
function of that nature which is entrusted to Parliament;
(E)Privacy is the constitutional core of
human dignity. Privacy has both a normative and descriptive function. At a
normative level privacy sub-serves those eternal values upon which the
guarantees of life, liberty and freedom are founded. At a descriptive level,
privacy postulates a bundle of entitlements and interests whichlie at the
foundation of ordered liberty;
(F) Privacy includes at its core the
preservation of personal intimacies, the sanctity of family life, marriage,
procreation, the home and sexual orientation. Privacy also connotes a right to
be left alone. Privacy safeguards individual autonomy and recognises the
ability of the individual to control vital aspects of his or her life. Personal
choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity
and recognises the plurality and diversity of our culture. While the legitimate
expectation of privacy may vary from the intimate zone to the private zone and
from the private to the public arenas, it is important to underscore that privacy
is not lost or surrendered merely because the individual is in a public place. Privacy
attaches to the person since it is an essential facet of the dignity of the human
being;
(G) This Court has not embarked upon an
exhaustive enumeration or a catalogue of entitlements or interests comprised in
the right to privacy. The Constitution must evolve with the felt necessities of
time to meet the challenges thrown up in a democratic order governed by the
rule of law. The meaning of the Constitution cannot be frozen on the
perspectives present when it was adopted. Technological change has given rise
to concerns which were not present seven decades ago and the rapid growth of
technology may render obsolescent many notions of the present. Hence the
interpretation of the Constitution must be resilient and flexible to allow
future generations to adapt its content bearing in mind its basic or essential
features;
(H) Like other rights which form part of
the fundamental freedoms protected by Part III, including the right to life and
personal liberty under Article 21, privacy is not an absolute right. A law
which encroaches upon privacy will have to withstand the touchstone of
permissible restrictions on fundamental rights. In the context of Article 21 an
invasion of privacy must be justified on the basis of a law which stipulates a
procedure which is fair, just and reasonable. The law must also be valid with
reference to the encroachment on life and personal liberty under Article 21. An
invasion of life or personal liberty must meet the three-fold requirement of (i)
legality, which postulates the existence of law; (ii) need, defined in terms of
a legitimate state aim; and (iii) proportionality which ensures a rational
nexus between the objects and the means adopted to achieve them; and
(I) Privacy has both positive and negative
content. The negative content restrains the state from committing an intrusion
upon the life and personal liberty of a citizen. Its positive content imposes
an obligation on the state to take all necessary measures to protect the
privacy of the individual.
4. Decisions
rendered by this Court subsequent to Kharak Singh, upholding the right to privacy
would be read subject to the above principles.
5.
Informational privacy is a facet of the right to privacy. The dangers to
privacy in an age of information can originate not only from the state but from
non-state actors as well. We commend to the Union Government the need to
examine and put into place a robust regime for data protection. The creation of
such a regime requires a careful and sensitive balance between individual
interests and legitimate concerns of the state. The legitimate aims of the
state would include for instance protecting national security, preventing and
investigating crime, encouraging innovation and the spread of knowledge, and
preventing the dissipation of social welfare benefits. These are matters of
policy to be considered by the Union government while designing a carefully
structured regime for the protection of the data. Since the Union government
has informed the Court that it has constituted a Committee chaired by Hon’ble
Shri Justice B N Srikrishna, former Judge of this Court, for that purpose, the
matter shall be dealt with appropriately by the Union government having due
regard to what has been set out in this judgment.
6. The reference is answered in the above terms.
CJI J J J
[JAGDISH SINGH KHEHAR] [R K AGRAWAL] [Dr D Y CHANDRACHUD] [S ABDUL NAZEER]
FOLLOWING ARE OF 5 INDIVIDUAL JUDGMENTS
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40. I do not think that anybody
in this country would like to have the officers of the State intruding into their
homes or private property at will or soldiers quartered in their houses without
their consent. I do not think that anybody would like to be told by the State
as to what they should eat or how they should dress or whom they should be
associated with either in their personal, social or political life. Freedom of
social and political association is guaranteed to citizens under Article
19(1)(c). Personal association is still a doubtful area. The decision making
process regarding the freedom of association, freedoms of travel and residence
are purely private and fall within the realm of the right of privacy. It is one
of the most intimate decisions. All liberal democracies believe that the State
should not have unqualified authority to intrude into certain aspects of human
life and that the authority should be limited by parameters constitutionally
fixed. Fundamental rights are the only constitutional firewall to prevent
State’s interference with those core freedoms constituting liberty of a human
being. The right to privacy is certainly one of the core freedoms which is to
be defended. It is part of liberty within the meaning of that expression in
Article 21.
41. I am in complete agreement
with the conclusions recorded by my learned brothers in this regard.
J
(J. CHELAMESWAR)
********************
Conclusion
47. In view of the foregoing, I
answer the reference before us in the following terms:
a. The ineluctable conclusion
must be that an inalienable constitutional right to privacy inheres in Part III
of the Constitution. M.P. Sharma and the majority opinion in Kharak Singh must
stand overruled to the extent that they indicate to the contrary.
b. The right to privacy is
inextricably bound up with all exercises of human liberty – both as it is specifically
enumerated,across Part III, and as it is guaranteed in the residue under Article
21. It is distributed across the various articles in Part III and, mutatis
mutandis, takes the form of whichever of their enjoyment its violation
curtails.
c. Any interference with privacy
by an entity covered by Article 12’s description of the ‘state’ must satisfy
the tests
applicable to whichever one or
more of the Part III freedoms the
interference affects.
J
[S. A. BOBDE]
****************
Conclusion
94. This reference is answered by
stating that the inalienable fundamental right to privacy resides in Article 21
and other fundamental freedoms contained in Part III of the Constitution of
India. M.P. Sharma (supra) and the majority in Kharak Singh (supra), to the extent
that they indicate to the contrary, stand overruled.
J.
(R.F. Nariman)
*****************
35) In view of foregoing
discussion, my answer to question No. 2 is that “right to privacy” is a part of
fundamental right of a citizen guaranteed under Part III of the Constitution.
However, it is not an absolute right but is subject to certain reasonable
restrictions, which the State is entitled to impose on the basis of social,
moral and compelling public interest in accordance with law.
36) Similarly, I also hold that
the “right to privacy” has multiple facets, and, therefore, the same has to go through
a process of case-to-case development as and when any citizen raises his
grievance complaining of infringement of his alleged right in accordance with law.
37) My esteemed learned brothers,
Justice J. Chelameswar, Justice S.A. Bobde, Justice Rohinton Fali Nariman and
Dr. Justice D.Y. Chandrachud have extensively dealt with question No. 1 in the
context of Indian and American Case law on the subject succinctly. They have
also dealt with in detail the various submissions of the learned senior counsel
appearing for all the parties.
38) I entirely agree with their
reasoning and the conclusion on question No. 1 and hence do not wish to add
anything to what they have said in their respective scholarly opinions.
J
[ABHAY MANOHAR SAPRE]
*****************
83. Let the right of privacy, an
inherent right, be unequivocally a fundamental right embedded in part-III of
the Constitution of India, but subject to the restrictions specified, relatable
to that part. This is the call of today. The old order changeth yielding place
to new.
J.
(SANJAY KISHAN KAUL)
