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right to privacy

Fundamental Right to Privacy

Justice K. S. Puttaswamy v. Union of India

Judgement of the Supreme Court in Plain English (I)

On 24th August, 2017 a 9 Judge Bench of the Supreme Court delivered a unanimous verdict in Justice K.S. Puttaswamy vs. Union of India and other connected matters, affirming that the Constitution of India guarantees to each individual a fundamental right to privacy. Although unanimous, the verdict saw 6 separate concurring decisions. Justice Chandrachud authored the decision speaking for himself, Justices Khehar and R.K. Agarwal and Abdul Nazeer. The remaining 5 judges each wrote individual concurring judgments.



The conclusion arrived at by the Bench in the concurring judgments records the plurality of opinions and the various facets of privacy that have made their way into the reasoning. The first of the two-part series examines the decision authored by Justice Chandrachud, along with those of Chelameshwar and Bobde JJ.



Chandrachud J.

The doctrinal foundation of the right to privacy in India rests on the trilogy of decisions in M.P. Sharma vs. Satish Chandra, Kharak Singh vs. State of U.P. and Govind vs State of Maharashtra. Of these, the decision in M.P. Sharma does not adjudicate on constitutional protection of a privacy right. Further, Kharak Singh, while rightly acknowledging that ‘life’ under Article 21 is not a right to “animal existence”, suffers from an internal inconsistency that where on the one hand the regulation permitting domiciliary visits was struck down on the rationale of privacy without expressly using the term, on the other it recorded the absence of constitutional protection of privacy. These two contradicting views cannot co-exist and the two decisions, to the extent that they hold that the Constitution of India does not protect privacy, are overruled.

Fundamental rights emanate from basic notions of liberty and dignity. Although Article 19 expansively enumerates some facets of liberty, this does not denude Article 21 of its wide scope and ambit. Privacy is a concomitant of an individual’s right to exercise control over his own personality and finds its origin in the notion that certain natural or inherent rights are inseparable from the human personality. Like other rights in Part III of the Constitution, privacy too cannot be an absolute right and its violation must, in addition to the test of due process and procedure established by law, also factor in legitimate State interests.

The right to privacy imposes on the State a duty to protect the privacy of an individual, corresponding to the liability that is to be incurred by the state for intruding the right to life and personal liberty. The right to life and liberty are inalienable to human existence – not bounties granted by the state, nor creations of the Constitution. No civilized state can contemplate an encroachment upon them without the authority of law. ADM Jabalpur vs, S.S. Shukla is overruled to the extent that it held that the aforesaid rights may be surrendered in an emergency.

Judicial recognition of the constitutional protection of a privacy right does not in any manner amount to usurpation of a legislative function, as the right is not independent of the liberties guaranteed under Part III and emerges from the concepts of liberty and dignity alluded to in the Preamble.

Privacy recognises the ability of individuals to control vital aspects of their lives and safeguards the autonomy exercised by them in decisions of personal intimacies, matters of home and marriage, the sanctity of family life and sexual orientation, all of which are at the core of privacy.

The Constitution must evolve to meet the aspirations and challenges of the present and the future. In an age where information technology governs virtually every aspect of our lives, the Courts must impart meaning to the concept of individual liberty, particularly where an overarching presence of State and non-State entities regulates aspects of social existence which bear upon the freedom of an individual. Every individual irrespective of social or economic status is entitled to the intimacy and autonomy which privacy protects.

Chelameshwar J.

Among basic rights conferred on individuals by the Constitution as a shield against excesses by the State, some rights are at the core of human existence. Thus, they are granted the status of fundamental, inalienable rights essential to enjoy liberty. Liberty is the freedom of an individual to do what he pleases and the exercise of that freedom would be meaningless in the absence of privacy.

M.P. Sharma is not an authority for the absolute proposition that the Constitution does not protect a privacy right, for such is not the ratio of the case.

The right to privacy incorporates three aspects: repose, sanctuary and intimate decision. Each of this is essential to the liberty of an individual and finds resonance in the freedoms guaranteed under Part III. A liberal democracy safeguards certain core human values and freedoms against unqualified intrusion by the State. Fundamental rights are detriments to state’s interference with the liberty of an individual of which privacy is an essential ingredient.

Like all fundamental rights, privacy too has its limitations. There must be identified depending upon the nature of privacy interest claimed. Courts must be guided by the standard of just, fair and reasonable legislation as applicable to Article 21. The strictest scrutiny standard of compelling State interest must be used.


Bobde J.

Natural rights protect those moral interests which are inherent to human beings. The innate dignity and autonomy of the individual are two such universally affirmed and safeguarded moral values. Privacy being intimately connected to the two eminently qualifies as a natural, inalienable right. It must be elevated to the status of a fundamental right and granted constitutional protection irrespective of whether it is legal or common law right. Privacy has the nature of being both a common law right as well as a fundamental right. Its content, in both forms, is identical. The difference is that as a fundamental right it is available against state action, while common law right operates horizontally between individuals.

The right to be let alone, to seclude oneself from intrusions of any manner, is essential to privacy. Every individual is entitled to a state of repose. Liberty and privacy are integrally connected in a way that privacy is often the basic condition necessary to exercise personal liberty.

Privacy is as inalienable as the right to perform any constitutionally permissible act and constitutes the springboard for the exercise of the freedoms guaranteed by Part III and can thus be located in Part III as a whole.

Only after acknowledging that the right of privacy is a fundamental right, can we consider how it affects the plenary powers of the state. There is no warrant to assume a privacy right is an absolute right which cannot be reasonably restricted.

Individuals avail their right to privacy by exercising the liberty granted to them under the Constitution while specifically including or excluding certain individuals or entities from the performance of such act of freedom. Consequently, privacy also entails negative autonomy to not do a specific act.

“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.” Consequently an act of the State violating the right must satisfy the test of the applicable Article apart from the test of being fair, just and reasonable under Article 21.


Reading out the operative portion of the judgment, Chief Justice J S Khehar said "few of us have written different orders"

"However these are our conclusion: Petitions are disposed of in following terms:"

1.The decision in M P Sharma that privacy is not a fundamental right stands overruled.

2.The decision in Kharak Singh that privacy is not a fundamental right stands overruled.

3.Right to privacy is protected as intrinsic part of right to life and liberty.

4.All decisions subsequent to Kharak Singh makes the position clear and will hold the field.

CONCRETE OBSERVATIONS : PRIVACY JUDGMENT

Justice DY Chandrachud [For CJI Khehar, Justices RK Agrawal, Abdul Nazeer]


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 the extent to which it indicates to the contrary.


2 Kharak Singh has correctly held that the content of the expression ‘life’ under Article 21 means not merely the right to a person’s “animal existence” and that the expression ‘personal liberty’ is a guarantee against invasion into the sanctity of a person’s home or an intrusion into personal security. Kharak Singh also correctly laid down that the dignity of the individual must lend content to the meaning of ‘personal liberty’. The first part of the decision in Kharak Singh which invalidated domiciliary visits at night on the ground that they violated ordered liberty is an implicit recognition of the right to privacy. The second part of the decision, however, which holds that the right to privacy is not a guaranteed right under our Constitution, is not reflective of the correct position. Similarly, Kharak Singh’s reliance upon the decision of the majority in Gopalan is not reflective of the correct position in view of the decisions in Cooper and in Maneka. Kharak Singh to the extent that it holds that the right to privacy is not protected under the Indian Constitution is overruled.


3 (A) Life and personal liberty are inalienable rights. These are rights which are inseparable from a dignified human existence. The dignity of the individual, equality between human beings and the quest for liberty are the foundational pillars of the Indian Constitution;


(B) Life and personal liberty are not creations of the Constitution. These rights are recognised by the Constitution as inhering in each individual as an intrinsic and inseparable part of the human element which dwells within;


(C) Privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution. Elements of privacy also arise in varying contexts from the other facets of freedom and dignity recognised and guaranteed by the fundamental rights contained in Part III;


(D) Judicial recognition of the existence of a constitutional right of privacy is not an exercise in the nature of amending the Constitution nor is the Court embarking on a constitutional function of that nature which is entrusted to Parliament;


(E)Privacy is the constitutional core of human dignity. Privacy has both a normative and descriptive function. At a normative level privacy sub-serves those eternal values upon which the guarantees of life, liberty and freedom are founded. At a descriptive level, privacy postulates a bundle of entitlements and interests which lie at the foundation of ordered liberty;


(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.


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.


Justice Chelameswar


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 40 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.


I am in complete agreement with the conclusions recorded by my learned brothers in this regard.


It goes without saying that no legal right can be absolute. Every right has limitations. This aspect of the matter is conceded at the bar. Therefore, even a fundamental right to privacy has limitations. The limitations are to be identified on case to case basis depending upon the nature of the privacy interest claimed. There are different standards of review to test infractions of fundamental rights. While the concept of reasonableness overarches Part III, it operates differently across Articles (even if only slightly differently across some of them). Having emphatically interpreted the Constitution’s liberty guarantee to contain a fundamental right of privacy, it is necessary for me to outline the manner in which such a right to privacy can be limited. I only do this to indicate the direction of the debate as the nature of limitation is not at issue here.


To begin with, the options canvassed for limiting the right to privacy include an Article 14 type reasonableness enquiry 62; limitation as per the express provisions of Article 19; a just, fair and reasonable basis (that is, substantive due process) for limitation per Article 21; and finally, a just, fair and reasonable standard per Article 21 plus the amorphous standard of ‘compelling state interest’. The last of these four options is the highest standard of scrutiny 63 that a court can adopt. It is from this menu that a standard of review for limiting the right of privacy needs to be chosen.


At the very outset, if a privacy claim specifically flows only from one of the expressly enumerated provisions under Article 19, then the standard of review would be as expressly provided under Article 19. However, the possibility of a privacy claim being entirely traceable to rights other than Art. 21 is bleak. Without discounting that possibility, it needs to be noted that Art. 21 is the bedrock of the privacy guarantee. If the spirit of liberty permeates every claim of privacy, it is difficult if not impossible to imagine that any standard of limitation, other than the one under Article 21 applies. It is for this reason that I will restrict the available options to the latter two from the above described four.


The just, fair and reasonable standard of review under Article 21 needs no elaboration. It has also most commonly been used in cases dealing with a privacy claim hitherto.64 Gobind resorted to the compelling state interest standard in addition to the Article 21 reasonableness enquiry. From the United States where the terminology of ‘compelling state interest’ originated, a strict standard of scrutiny comprises two things- a ‘compelling state interest’ and a requirement of ‘narrow tailoring’ (narrow tailoring means that the law must be narrowly framed to achieve the objective). As a term, compelling state interest does not have definite contours in the US. Hence, it is critical that this standard be adopted with some clarity as to when and in what types of privacy claims it is to be used. Only in privacy claims which deserve the strictest scrutiny is the standard of compelling State interest to be used. As for others, the just, fair and reasonable standard under Article 21 will apply. When the compelling State interest standard is to be employed must depend upon the context of concrete cases. However, this discussion sets the ground rules within which a limitation for the right of privacy is to be found.


Justice Bobde




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.


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.


Any interference with privacy by an entity covered by Article 12’s description of the ‘state’ must satisfy the tests applicable to whichever one or more of the Part III freedoms the interference affects.



Justice RF Nariman


It is clear that the international covenants and declarations to which India was a party, namely, the 1948 Declaration and the 1966 Covenant both spoke of the right to life and liberty as being “inalienable”. Given the fact that this has to be read as being part of Article 21 by virtue of the judgments referred to supra, it is clear that Article 21 would, therefore, not be the sole repository of these human rights but only reflect the fact that they were 117 “inalienable”; that they inhere in every human being by virtue of the person being a human being;


Secondly, developments after this judgment have also made it clear that the majority judgments are no longer good law and that Khanna, J.’s dissent is the correct version of the law. Section 2(1)(d) of the Protection of Human Rights Act, 1993 recognises that the right to life, liberty, equality and dignity referable to international covenants and enforceable by Courts in India are “human rights”. We are of the view that the aforesaid statement made by the learned author reflects the correct position in constitutional law. We, therefore, expressly overrule the majority judgments in ADM Jabalpur


Before parting with this subject, we may only indicate that the majority opinion was done away with by the Constitution’s 44th Amendment two years after the judgment was delivered. By that Amendment, Article 359 was amended to state that where a proclamation of emergency is in operation, the President may by order declare that the right to move any Court for the enforcement of rights conferred by Part III of the Constitution may remain suspended for the period during which such proclamation is in force, excepting Articles 20 and 21. On this score also, it is clear that the right of privacy is an inalienable human right which inheres in every person by virtue of the fact that he or she is a human being.


Conclusion


This reference is answered by stating that the inalienable fundamental right to privacy resides in Article 21 and other fundamental freedoms contained in Part III of the Constitution of India. M.P. Sharma (supra) and the majority in Kharak Singh (supra), to the extent that they indicate to the contrary, stand overruled. The later judgments of this Court recognizing privacy as a fundamental right do not need to be revisited. These cases are, therefore, sent back for adjudication on merits to the original Bench of 3 honourable Judges of this Court in light of the judgment just delivered by us.


Before parting with this subject, we may only indicate that the majority opinion was done away with by the Constitution’s 44th Amendment two years after the judgment was delivered. By that Amendment, Article 359 was amended to state that where a proclamation of emergency is in operation, the President may by order declare that the right to move any Court for the enforcement of rights conferred by Part III of the Constitution may remain suspended for the period during which such proclamation is in force, excepting Articles 20 and 21. On this score also, it is clear that the right of privacy is an inalienable human right which inheres in every person by virtue of the fact that he or she is a human being.


Conclusion


This reference is answered by stating that the inalienable fundamental right to privacy resides in Article 21 and other fundamental freedoms contained in Part III of the Constitution of India. M.P. Sharma (supra) and the majority in Kharak Singh (supra), to the extent that they indicate to the contrary, stand overruled. The later judgments of this Court recognizing privacy as a fundamental right do not need to be revisited. These cases are, therefore, sent back for adjudication on merits to the original Bench of 3 honourable Judges of this Court in light of the judgment just delivered by us.


Justice AM Sapre


I, therefore, do not find any difficulty in tracing the "right to privacy“ emanating from the two expressions of the Preamble namely, "liberty of thought, expression, belief, faith and worship" and "Fraternity assuring the dignity of the individual“ and also emanating from Article 19 (1)(a) which gives to every citizen "a freedom of speech and expression" and further emanating from Article 19(1)(d) which gives to every citizen "a right to move freely throughout the territory of India" and lastly, emanating from the expression “personal liberty" under Article 21. Indeed, the right to privacy is inbuilt in these expressions and flows from each of them and in juxtaposition.


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.


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.


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.


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.


Some learned senior counsel appearing for the petitioners, however, argued that the law laid down by this Court in some earlier decided cases though not referred for consideration be also overruled while answering the questions referred to this Bench whereas some senior counsel also made attempts to attack the legality and correctness of Aadhar Scheme in their submissions.


These submissions, in my view, cannot be entertained in this case. It is for the reason that firstly, this Bench is constituted to answer only specific questions; secondly, the submissions pressed in service are not referred to this Bench and lastly, it is a settled principle of law that the reference Court cannot travel beyond the reference made and is confined to answer only those questions that are referred. (See - Naresh Shridhar Mirajkar & Ors. vs. State of Maharashtra & Anr. (1966) 3 SCR 744 at page 753).


Suffice it to say that as and when any of these questions arise in any case, the appropriate Bench will examine such questions on its merits in accordance with law.


Justice SK Kaul


In I.R. Coelho Vs. The State of Tamil Nadu it was observed that the ADM Jabalpur case has been impliedly overruled and that the supervening event was the 44th Amendment to the Constitution, amending Article 359 of the Constitution. I fully agree with the view expressly overruling the ADM Jabalpur case which was an aberration in the constitutional jurisprudence of our country and the desirability of burying the majority opinion ten fathom deep, with no chance of resurrection.


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




Elaboration : Privacy as an inalienable right: Privacy is a natural right, inherent to a human being. It is thus a pre- constitutional right which vests in humans by virtue of the fact that they are human. The right has been preserved and recognized by the Constitution, not created by it. Privacy is not bestowed upon an individual by the state, nor capable of being taken away by it. It is thus inalienable.

Relationship with Dignity: It was argued by the state that the recognition of privacy would require a Constitutional amendment, and could not be 'interpreted' into the Constitution. The judgment has recognized that privacy was intrinsic to other liberties guaranteed as fundamental rights under the Constitution. Privacy is an element of human dignity, and ensures that a human being can lead a life of dignity by, among other things, exercising a right to make essential choices, to express oneself, dissent, etc. Dignity was, consequently, an intrinsic aspect of the right to life and liberty enshrined under Article 21 of the Constitution, as 'life' was not limited to mere existence, but was made worth living because of the attendant freedom of dignity. It was only when life could be lived with dignity that liberty could be of any substance.

Commitment to International Obligations: The recognition of privacy as fundamental constitutional value was a part of India's commitment5 to safeguard human rights under international law under the International Covenant of Civil and Political Rights ("ICCPR") which found reference in domestic law under the Protection of Human Rights Act, 1993. The ICCPR recognizes a right to privacy6. The Universal Declaration of Human Rights too specifically recognizes a right to privacy.7The Judgment has held that constitutional provisions had to be read and interpreted in a manner such that they were in conformity with international commitments made by India.



The submission of the government was that the SC cannot recognize a juristic concept which is so vague and uncertain that it fails to withstand constitutional scrutiny. The judgments rejected this argument. In the simplest form, the judgments recognize the right as "right to be let alone". Justice Nariman categorizes the right as having three aspects: personal privacy (such as the right to move freely), informational privacy and the privacy of choice.


The SC has traced the history of recognition of various facets of the right to privacy by citing various scholastic writing, .Indian and foreign judgments and provides description of privacy right. However, the Lead Judgment succinctly concludes that:


"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.'


Justice Bobde has stated that scope and ambit of a constitutional protection of privacy can only be revealed on a case-by-case basis.


In this context, the Lead Judgment relies on an article that represents privacy through a diagrammatic structure that identifies nine types of privacy:


Bodily privacy: Privacy of the physical body against violations and restraints of bodily movement

Spacial Privacy: Privacy of a space, such as family life and intimate relations

Communicational Privacy: Right against access to communication, or control over it

Proprietary Privacy: Right to use property as a means to shield facts or information

Intellectual Privacy: Privacy of thought, mind, opinions and beliefs

Decisional Privacy: The ability to make intimate decisions

Associational Privacy: Privacy of the choice of who to interact with

Behavioral Privacy: The ability to control the extent of access even while conducting publically visible activities

Informational Privacy: An interest in preventing information about the self from being dissemination, and controlling the extent of access to the information.


What is the impact of declaring privacy as a fundamental right? What is the impact of the judgment on non-state parties ?

The impact of recognizing privacy as a fundamental right, as opposed to a statutory or a common-law right, is that it is an inviolable right. A fundamental right provides a touchstone on which the validity of a law may be determined or a state's action may be assessed. While a statutory right may be modified, amended, or annulled by a simple act of legislation, a constitutional right is not subject to amendment or annulment at the instance of the legislature. Any abridgment of a constitutional right, must meet the tests prescribed under Article 21, Article 19, or the specific freedom it seeks to abridge.


To clarify, fundamental rights under Article 19 and 21 are as such enforceable only against the state or instrumentalities of the state and not against non-state parties. However, almost all the 6 judgments highlight the need for data protection law to control actions of the non-state parties as well. The horizontal application of the right to privacy will have to be tested in the view of this judgment. In fact the Lead Judgment calls upon the government to bring out a detailed data protection regime based on the broad guidelines laid down in the judgments. Most of the views are expressed in this connection – referred to as 'informational privacy' in the Judgment – are discussed in detail below in section VIII.


At present as against the non-state entities, privacy is recognized as a common law (as opposed to a constitutional) right. The enforcement will depend on facts and circumstances of the case. Under the Information Technology Act, 2000 and rules framed thereunder there are limited provisions with respect to protection of personal information and sensitive data and personal information.


IV. What are the reasonable restrictions on the fundamental right to privacy that have been recognized by the Court?

Since the fundamental rights are not to be read in a silo, any infringement of fundamental rights will therefore have to pass the basic tests of Articles 21 and 14 of the Constitution. These tests are:


The need for an existence of a law; and

The law should not be arbitrary; and

The infringement of the right by such law should be proportional for achieving a legitimate state aim.

The judgments have recognized the below mentioned restrictions on the right to privacy


The Lead Judgement notes the tests for the reasonable restrictions on the right to privacy in Para 3 (H) of the conclusion. It holds that a law which encroaches upon the right to privacy will have to "withstand the touchstone of permissible restrictions on fundamental rights" Any infringement of privacy must be by a law which is "fair, just and reasonable". The three-fold requirement for such infringement would be: "(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"

Justice Chelameshwar has held in paragraph 45 of his judgment that aside from meeting the 'fair, just and reasonable' requirement under Article 21, there should be a requirement for 'compelling state interest' for those privacy claims which deserve the 'strictest scrutiny'

Justice Bobde, in paragraph 45 of his judgment held that any infringement of the fundamental right to Privacy must pass the same standard required for the infringement of personal liberty, ie. In terms of the judgement in the case of Maneka Gandhi v. Union of India11, such law must be "fair, just and reasonable, not fanciful, oppressive or arbitrary"

Justice Nariman has held in paragraph 60 of his judgement that statutory restrictions on privacy would prevail if it is found that the 'social or public interest and the reasonableness of the restrictions outweighs the particular aspect of privacy claimed.

Justice Sapre in paragraph 26 of his judgment says that the right to privacy is subject to reasonable restrictions "in view of the social, moral and compelling public interest that the state is entitled to impose by law."

Justice Kaul has held in paragraph 72 of his judgment that that right to privacy would be subject to reasonable restrictions on the grounds of national security, public interest and the grounds enumerated in the provisos to Article 19 of the Constitution.

an fundamental rights be waived by consent?

The state argued that privacy cannot be held to be a fundamental right, as fundamental right cannot be waived. This would lead to several complications arising with regard to the functioning of the state. This argument was made on the basis that the state would be virtually barred even from contractually collecting any information from individuals in India and this would hamper the functioning of the state as it is required to collect certain information of citizens while exercising its required functions.


Interestingly, the Lead Judgement does not deal with this argument of the government. It merely refers to SC judgment "Behram Khurshed Pesikaka v. State of Bombay"12 and concurred with the view that "Part III of the Constitution is a part of the wider notion of securing the vision of justice of and, as a matter of doctrine, the rights guaranteed were held not to be capable of being waived"13.


In this regard Justice Nariman in his judgment has observed14 as follows:


Statutory provisions that deal with aspects of privacy would continue to be tested on the ground that they would violate the fundamental right to privacy, and would not be struck down, if it is found on a balancing test that the social or public interest and the reasonableness of the restrictions would outweigh the particular aspect of privacy claimed. If this is so, then statutes which would enable the State to contractually obtain information about persons would pass muster in given circumstances, provided they safeguard the individual right to privacy as well......

.... in pursuance of a statutory requirement, if certain details need to be given for the concerned statutory purpose, then such details would certainly affect the right to privacy, but would on a balance, pass muster as the State action concerned has sufficient inbuilt safeguards to protect this right – viz. the fact that such information cannot be disseminated to anyone else, save on compelling grounds of public interest.


What would be the reasonable expectation of privacy, especially in a public place?

The Lead Judgment in its conclusion summarizes this aspect as follows:


"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."


The SC has not however, gone on to examine or analyze the extent or scope of the legitimate expectation of privacy of an individual in a public place as such an examination / determination would differ based on the facts of each matter at hand. The aforementioned determination is additionally relevant in light of several instances wherein certain actions have been question to be in violation of the right to privacy of individuals in public such as the installation of CCTV cameras by the government in public areas. It may be argued that now the installation of the CCTV cameras by the government needs to satisfy the test of reasonable restriction as discussed above.


Justice Bobde has negated the argument of State of Gujarat that only those privacy claims which involve a 'reasonable expectation of privacy' be recognized as protected by the fundamental right. He goes on to explain


Such a formulation would exclude three recurring red herrings in the Respondents' arguments before us. Firstly, it would not admit of arguments that privacy is limited to property or places. So, for example, taking one or more persons aside to converse at a whisper even in a public place would clearly signal a claim to privacy, just as broadcasting one's words by a loudspeaker would signal the opposite intent. Secondly, this formulation would not reduce privacy to solitude. Reserving the rights to admission at a large gathering place, such as a cinema hall or club, would signal a claim to privacy. Finally, neither would such a formulation require us to hold that private information must be information that is inaccessible to all others.


Justice Nariman has also discussed the state's argument on the "reasonable expectation of privacy test", which provides that, "if information is voluntarily parted with by an individual, no right to privacy exists", as was laid down in Katz v. United States22 . Justice Nariman has rejected the state's argument that the Court should follow the "reasonable expectation of privacy test", while determining the contours of the right to privacy by referring to the judgment of the SC in District Registrar and Collector, Hyderabad & Anr. v. Canara Bank, etc.23, and thereby holding that that the "reasonable expectation of privacy test" has no plausible foundation under Article's 14, 19, 20 and 21 of the Constitution of India.


VIII. Data protection or 'Informational Privacy'

The Judgments at several places deal with informational privacy (especially in the context of inter-connected digital world), both in the hands of state and non-state entities.


Some Judgments discuss various aspects of collection, use and handling of data e.g. big data, data analytics, use of wearable devices and social media networks resulting in generation of vast amounts of user data relating to end users' lifestyles, choices and preferences, use of cookies files on browsers for tracking user behavior and for the creation of user profiles.


The Lead Judgment specifically deals with informational privacy but substantial part of the discussion is on the handling of information by the State. The Lead Judgment contemplates a robust regime (as per requirements of Article 21) satisfying the tests below:


existence of law to justify an encroachment on privacy; and

the requirement of a need, in terms of a legitimate state aim, ensures that the nature and content of the law which imposes the restriction falls within the zone of reasonableness mandated by Article 14, which is a guarantee against arbitrary state action. [The 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]; and

the means which are adopted by the legislature are proportional to the object and needs sought to be fulfilled by the law. Proportionality is an essential facet of the guarantee against arbitrary state action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law.

The Lead Judgment relied upon SC judgment in the matter of District Registrar and Collector, Hyderabad v Canara Bank24 in relation to the informational privacy in the hands of the nationalized Bank. Some Judgments also refer to the recommendations made by the Expert Group's Report set up earlier by the government in 2012, proposing a framework for the protection of privacy concerns in India25. However, no binding observations have been made by the SC with respect to the recommendations made by the Expert Group.26


In the conclusion of the Lead Judgment the SC acknowledges that the government has set up committee under Justice B N Srikrishna ("MeiTy Committee") for suggesting appropriate data protection law in India and directs that the matter shall be dealt with appropriately by the Union government having due regard to what has been set out in its judgment.27


Some judgments have alluded to different facets of data protection regime. Most of them appear more as discussion points rather than binding ratio. The Lead Judgment refers to non-discriminatory treatment on the basis of data collected. Justice Kaul has alluded to the need for "right to be forgotten". He has also suggested that EU law may be a useful guidance.


Justice Kaul suggests that profiling of individuals by the State that leads to discrimination is not acceptable however, such profiling can be used for public interest and protection of national security.


from the right to privacy in this modern age emanate certain other rights such as the right of individuals to exclusively commercially exploit their identity and personal information, to control the information that is available about them on the 'world wide web' and to disseminate certain personal information for limited purposes alone;

There is no justification for making all truthful information available to the public. The public does not have an interest in knowing all information that is true. Which celebrity has had sexual relationships with whom might be of interest to the public but has no element of public interest and may therefore be a breach of privacy. Thus, truthful information that breaches privacy may also require protection.

This also means that an individual may be permitted to prevent others from using his image, name and other aspects of his/her personal life and identity for commercial purposes without his/her consent.

The impact of abovementioned observations in relation to right of celebrities will need to be examined in detail


Justice Kaul further discusses the right to control and correct information on the world wide web and alludes to right to be forgotten as essential ingredient subject to some limitations.


The three tests specified above that apply in relation to a fundamental right, should not necessarily apply in relation to handling of the data by non-state parties. If the same three tests were to be made applicable to non-State then the data protection regime will be very restrictive and will thwart innovation and efficient delivery of goods and services. Therefore, the proposed data protection regime ought to make distinction between the handling of the data by the State and Non-State parties.


Justice Kaul has specifically dealt with privacy concerns against non-state parties, and some of the key observations are below:


A large number of people would like to keep such search history private, but it rarely remains private, and is collected, sold and analysed for purposes such as targeted advertising. Of course, 'big data' can also be used to further public interest. There may be cases where collection and processing of big data is legitimate and proportionate, despite being invasive of privacy otherwise.

Knowledge about a person gives a power over that person. The personal data collected is capable of effecting representations, influencing decision making processes and shaping behaviour. It can be used as a tool to exercise control over us like the 'big brother' State exercised. This can have a stultifying effect on the expression of dissent and difference of opinion, which no democracy can afford.

There is an unprecedented need for regulation regarding the extent to which such information can be stored, processed and used by non-state parties. There is also a need for protection of such information from the State. Our Government was successful in compelling Blackberry to give to it the ability to intercept data sent over Blackberry devices. While such interception may be desirable and permissible in order to ensure national security, it cannot be unregulated.

One way to view the question of how the fundamental right to privacy affects non-state parties is to see the judgment as requiring (or, at the least, suggesting) that the State create a data protection law. This is to preserve citizens' informational privacy (or per Justice Nariman, their privacy interest of "data protection") against non-State parties. In the past, similarly, the SC observed the need for a law against sexual harassment in the workplace, and directed the government to frame such a law in the interest of protecting fundamental rights (Vishaka v. State of Rajasthan)30.


IX. Way forward

Justice Kaul has stated in Para 70 of his opinion that:


"The State must ensure that information is not used without the consent of users and that it is used for the purpose and to the extent it was disclosed"


This assertion has been supported by an observation by Justice Chandrachud in Para 177 of the Lead Judgement31. Read together, it appears that the need for 'consent' in the data protection regime will be one that is constitutionally mandated as part of the right to privacy.


Considering the observation in the Lead Judgment and by Justice Kaul with respect to consent and the discussion regarding the AP Shah Committee, it is likely that the data protection law will contain the following broad aspects:


It is likely to technologically neutral,

While the present regime only makes the data controller accountable for 'Sensitive Personal Data or Information', it is expected that this regime will be expanded to include a wider gamut of data.

It is likely to expand the scope of the consent requirements and permissions for data sharing.





Justice K. S. Puttaswamy v Union of India (5 judges bench)


Case Description

A 4:1 majority upheld the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016. While it ruled that the Act is constitutional, it struck down individual sections of the Act as unconstitutional.


Background

On 26th September 2018, the Bench delivered its verdict:


Justice Sikri's majority opinion (on behalf of Chief Justice Misra, Justice Khanwilkar and himself)

Justice Bhushan's concurring opinion

Justice Chandrachud's dissenting opinion


In 2011, the Central Government initiated a new identity document known as the Aadhaar Card and established a new agency, the Unique Identification Authority of India (UIDAI), to issue the card. Aadhaar is a twelve digit unique identity number. The government intended for Aadhaar to be the primary identity number for all legal Indian residents. It has made Aadhaar available to every legal resident free of cost. In order to apply for the card, a resident must submit their biometric data, which includes a scan of their fingerprints and retinas. The UIDAI is responsible for storing the data in a centralized database.



The Government progressively made the Aadhaar Card mandatory for numerous welfare schemes. These include subsidised food under the Public Distribution System and the Mid-Day Meal Scheme and guaranteed wage labour under the Mahatma Gandhi National Rural Employment Guarantee Scheme.



The Aadhaar scheme has been challenged before the Supreme Court by Justice K.S. Puttaswamy, a retired judge of the Karnataka High Court. He claims that Aadhaar infringes upon fundamental rights guaranteed by the Constitution. Broadly, his objections include:


The government has not put in place adequate privacy safeguards. Any private entity may request authentication by Aadhaar for any reason subject to regulations by the UIDAI. There are no checks on the power of the government to use the biometric data collected.

Entitlements granted to the individuals by the State's social sector schemes are themselves a fundamental right. They cannot be limited for any reason, including the failure to produce an Aadhaar Card/Number when applying for benefits.


On 26th September 2018, the Court delivered its judgment. It upheld the Aadhaar Act as constitutionally valid. It ruled that the Act empowers disenfranchised sections of society by providing them better access to fundamental entitlements, such as State subsidies. The Court held that the Act was competently passed by Parliament, even though it was passed as a Money Bill. The Court held that the Act does not violate the fundamental rights guaranteed under Articles 14, 15, 19 and 21.









Delhi High Court (Right to privacy and public functionaries)

Sasikala Pushpa vs Facebook India And Ors on 2 June, 2020


nine Judge Bench of the Supreme Court in Justice K.S. Puttuswamy supra was constituted to determine whether privacy is a constitutionally protected value. Prior thereto, the existence of a fundamental right of privacy was in doubt in view of M.P. Sharma Vs. Satish Chandra, District Magistrate, Delhi MANU/SC/0018/1954 and Kharak Singh Vs. State of Uttar Pradesh MANU/SC/0085/1962 containing observations that the Indian Constitution did not specifically protect the right to privacy. However, now the Nine Judge Bench has authoritatively held (i) that the right of privacy is a fundamental right; (ii) that it is a right which protects the inner sphere of the individual from interference from both State and Non-state actors and allows the individuals to make autonomous life choices; (iii) technology has made it possible to inter a citizen's house without knocking at his/her door and this is equally possible both by the State and Non-state actors; (iv) it is an individual's choice as to who enters his house, how he lives and in what relationship; (v) that the privacy of the home must protect the family, marriage, procreation and sexual orientation which are all important aspects of dignity; (vi) that if the individual permits someone to enter the house it does not mean that others can enter the house; the only check and balance is that it should not harm the other individual or affect his/her right; (vii) that the only permitted exception is where there is a countervailing public interest which in particular circumstances is strong enough to outweigh it;


(viii) that the question to be asked is, was it necessary and proportionate for the intrusion to take place, for example, in order to expose illegal activity or to prevent the public from being significantly mislead by public claims made by the individual concern or what it necessary because the information would make a contribution to a debate of general interest; and, (ix) that the Court, in order to decide a case, must carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure.


(XV) R. Rajagopal supra cited by the counsel for the plaintiff himself holds, that (i) public figures like public officials often play an influential role in ordering society; (ii) as a class, the public figures have, as the public officers have, access to mass-media communication, both to influence the policy and to counter-criticism of their views and activities; (iii) a citizen has a legitimate and substantial interest in the conduct of such persons and the freedom of press extends to engaging in uninhibited debate about the involvement of public figures in public issues and events; (iv) freedom of press flows from the freedom of speech and expression guaranteed by Article 19(1)(a); but the said right is subject to reasonable restrictions placed thereon by an existing law or a law made after the commencement of the Constitution in the interest of or in relation to several matters set out therein; (v) decency and defamation are two of the grounds mentioned in Article 19(2); law of torts providing for damages for invasion of the right to privacy and defamation and Section 499/500 of Indian Penal Code are the existing law saved under Article 19(2); (vi) what is called for is a proper balancing of the freedom of press and the said laws consistent with the democratic way of life ordained by the Constitution; and, (vii) over the last few decades, constant vigilance over exercise of governmental power by the press and the media is the demand of the day; it is essential for a good Government.


(XVI) In this context mention may also be made of:


(A) Khushwant Singh Vs. Maneka Gandhi AIR 2002 Delhi 58--A Division Bench of this Court in this case was concerned with balancing of competing interest of a well-known author to publish his autobiography where reference has been made to personal life of a public figure and the public figure's claim for protection against such publication under her rights of privacy. It was held, that the freedom of press extends to engaging any inhibited debate about the involvement of public figures in public issues and comments; that a close and microscopic examination of the private lives of public men is a natural consequence of holding of public offices; that what is good for a private citizen who does not come within the public gaze may not be true of a person holding public office; that what a person holding public office does within the four walls of his house does not totally remain a private matter; however the scrutiny of public figures by media should not also reach a stage where it amounts to harassment of public figures and their family members--they must be permitted to live and lead their life in peace; but the public gaze cannot be avoided, which is necessary corollary of their holding public offices; persons holding public office have to show greater tolerance for comments and criticism; they must not be thin skinned in reference to the comments made on them and even where they know that the observations are undeserved and unjust, they must bear with them and submit to be misunderstood for a time; even what may be the private lives of the public figures, become matters of public interest; the two competing interests have to be balanced.

(B) People's Union for Civil Liberties Vs. Union of India (2003) 4 SCC 399 holds (i) that right to participate in the affairs of the polity of the country, by casting vote at the time of election would be meaningless unless the voters are well informed about all sides of the issues, in respect of which they are called upon to express their views by casting their votes; (ii) that disinformation, misinformation, non-information, all equally create an uninformed citizenry which would finally make democracy a mobocracy and farce; (iii) that exposure to public gaze and scrutiny is one of the surest means of achieving a clean and healthy administration; (iv) that a citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters; none can publish anything concerning the above matters without his consent - whether truthful or otherwise and whether laudatory or critical; (v) that position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy--this is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others; (vi) that the right of a voter to know the biodata of a candidate is the foundation of democracy; (vii) that the old dictum - let the people have the truth and the freedom to discuss it and all will go well with the Government - should prevail; (viii) that voters' fundamental right to know the antecedents of a candidate is independent of statutory rights under the election law; a voter is first citizen of this country and apart from statutory rights, he is having fundamental rights conferred by the Constitution; members of a democratic society should be sufficiently informed so that they may cast their votes intelligently in favour of persons who are to govern them;

(ix) that the right to know about the candidate standing for election has been brought within the sweep of Article 19(1)(a);

(x) that the right to information so evolved by the Court is qualitatively different from the right to get information about public affairs or the right to receive information through the press and electronic media; and, (xi) that the right to information of the voter/citizen is enforced against an individual who intends to become a public figure and the information relates to his personal matters.

(C) Indu Jain Vs. Forbes Incorporated MANU/DE/9527/2007, holding (i) that being photographed in a public street is taken to be one of the ordinary incidents of living in a free community, the real issue was whether publicising the content of the photograph would be offensive; the balance in such a case has to be arrived at between the public right to information and whether it would justify dissemination or publication or photograph taken covertly and without authorisation; (ii) that once the information is identified as ‗private', the Courts are required to balance the claimant's interest in keeping the information private against the countervailing interest of the recipient in publishing it; (iii) that a public figure who makes very public a statement about a matter in respect of which even a public figure would ordinarily be entitled to privacy would be attracting or seeking publicity and it would be in public interest to show the said statement, if false, to be false; (iv) that a public figure though is entitled to have his privacy respected but should recognise that because of his public position he has to expect and accept that his or her actions would be more closely scrutinised by the media; (v) that conduct which, in the case of a private individual, would not be the appropriate subject of comment, would be the proper subject of comment in the case of a public figure; such a person might be a legitimate subject of public attention whether or not he had quoted publicity; (vi) that in drawing up a balance sheet between the respective interests of the parties, courts should not act as censors or arbiters of taste--this is the task of others; if there is not a sufficient case for restraining publication the fact that a more lurid approach will be adopted by the publication than the Court would regard as acceptable is not relevant; (vii) that if the contents of the publication are untrue the law of defamation provides prohibition; (viii) that newsworthiness has been defined broadly to include not only the matters of public policy, but any matter of public concern, including the accomplishments, everyday lives and humanity involvements of famous people; and, (ix) however, if the publicity is so offensive as to constitute a sensational preying into private lives for its own sake, it serves no legitimate public interest and is not deserving of its protection. In the facts of that case injunction was refused.

(D) CPIO, Supreme Court of India Vs. Subhash Chandra Agarwal (2009) 162 DLT 135, holds (i) that a private citizen's privacy right is undoubtedly of the same nature and character as that of a public servant; (ii) that yet, inherent in the situation of the latter is the premise that he acts for the public good, in the discharge of his duties, and is accountable for them; (iii) that the character of protection, afforded to the two classes--public servants and private individuals, is to be viewed from this perspective; (iv) that the nature of restriction on the right to privacy is therefore of a different order; in the case of private individuals, the degree of protection afforded is greater; in the case of public servants, the degree of protection can be lower, depending on what is at stake; and, (v) that if an important value in public disclosure of personal information is demonstrated, in the particular facts of a case, by way of objective material or evidence, furnished by the information seeker, the protection afforded may not be available.

(E) India TV Independent News Service Pvt. Ltd. Vs. Yashraj Films Pvt. Ltd. 192 (2012) DLT 502 (DB), holding that the law pertaining to privilege, privacy and libel would guide us that for public figures even their personal affairs could be a matter of public interest and as against common citizens, weaker defences are available to public figures and celebrities in relation to their personal affairs.

(F) Nirmaljit Singh Narula Vs. Yashwant Singh MANU/DE/4341/2012, holding that the plaintiff in that case, who claimed himself to be a ‗Baba' and Spiritual Guide and through his Samagams and telecast of his discourses through various T.V. Channels, like public figures is under a constant public and media gaze, should not be sensitive and rather should be open to criticism and scrutiny; the filing of defamation suit though a right of the plaintiff could not be allowed to become a lethal weapon in sabotaging the freedom of the press. It was however also held that it takes years and decades to build reputation or goodwill but any irresponsible act on the part of the media can result in ruining the image and reputation of such person which may cause incalculable and irreversible damage to the prestige and reputation of such a person; if such people commit any unduly act or indulge into any nefarious or illegal activity or do not maintain self restrain or commit any act demeaning their position and status, then later on they cannot complain that they stand defamed, disreputed or ridiculed; the media is watching them 24X7 as they owe a duty to the society to expose such people indulging into illegal, immoral, unruly acts.

(G) Pushp Sharma Vs. D.B. Corp. Ltd. 2018 SCC OnLine Del 11537, holding (i) that though the new age media, especially the electronic media and internet, posts greater challenges, that per se ought not to dilute valuable right of free speech which is the lifeblood of democracy; (ii) that the salutary and established principle in issues that concerned free speech are that public figures and public institutions have to fulfil a very high threshold to seek injunctive relief in respect of alleged libel or defamation; (iii) that those who fill public positions must not be too thin-skinned in respect of references made upon them; and, (iv) that the mere frame of the relief--of permanent injunction does not alter the principle; the cause of action on which the plaintiffs based their suit being alleged defamation, the ordinary principles of injunctive relief, having regard to the nature of the subject matter i.e. restraint of speech, would be the same.

(H) Sunil Sachdeva Vs. Owner of Domain Name WWW.CJR7.Com 2019 SCC OnLine Del 11168, where myself, on a conspectus of numerous precedents, concluded (i) that one's right to know may invade another's right to privacy and breach of confidentiality; (ii) that the former right has to be harmonized with the need for personal privacy, confidentiality of information and effective governance; (iii) that the two rights have to be balanced and distinction was made between ―something which is of interest to the public‖ and ―something which is in public interest‖; and, (iv) that public may be interested in private matters with which the public may have no concern and need to know; however such interest of the public in private matters would repudiate and directly traverse the protection of privacy and there is a right to shield oneself from unwarranted access to one's personal information and to protect facets of reputation, honor etc. associated with the right to privacy.

(I) Supreme Court of India Vs. Subhash Chandra Agarwal 2019 SCC OnLine SC 1459, holding that (i) public interest, sometimes criticised as inherently amorphous and incapable of a precise definition, is a time tested and historical conflict of rights test which is often applied in the right to information legislation to balance right to access and protection of the conflicting right to deny access; (ii) comparison or balancing exercise of competing public interests and privacy rights has to be undertaken; and,(iii) right of the public to information on the assets of the Judges of the Supreme Court was held to not impinge upon the right to privacy of the Judges.

(XVII) As would follow on the conspectus of the aforesaid case law, this Court is required to balance the right claimed by the plaintiff of privacy qua whom she meets at her residence, has to be balanced with the right of the public to know the identity of the person whom the plaintiff meets and hobnobs with, behind closed doors.


(XVIII) Considering the fact that the plaintiff is a politician, participating in the electoral process and is a representative of the people, the people and/or the electorate certainly have a right to know that the plaintiff behind closed doors meets and hobnobs a man to whom she is not married and particularly a man who belongs to a political party which is a rival of political party to which the plaintiff belongs. The plaintiff, as a representative of people and whether performing executive function or functions as a Legislator, would be issuing orders / directions and/or participate in law making, regulating the conduct of human beings and in the said context the electorate has a right to know of the behind curtains meetings of the plaintiff with a man other than her husband and particularly a man belonging to a political party which the plaintiff, before the public criticises or opposes in the elections. If such meetings with member of a rival political party, which the plaintiff wants to remain hidden from the public, are not of interest to the public for the purposes of maintaining purity of administration and law making, little else would qualify as of public interest. The plaintiff, of course cannot be permitted to publically oppose and criticise a political party to whose members she is otherwise close. Or, at least public has an interest in knowing the true state of affairs. For the said balancing act, no trial is required, particularly when the plaintiff, in the plaint, has not even pleaded what was argued on 27th February, 2019.


(XIX) Thus, in the facts of the present case, the public interest in knowing the meeting of the plaintiff at her residence with a man belonging to a rival political party far outweigh the private interest of the plaintiff of keeping the same hidden from public eyes. The plaintiff has not pleaded the public interest in her said meetings and/or in keeping the same hidden.


Thus, the suit as framed and as argued is not found to contain any material plea on trial whereof the plaintiff may be found to be entitled to the reliefs claimed. The plaintiff, as aforesaid, is not found entitled to any order against Facebook Inc., Google LLC and YouTube LLC to remove the photographs and/or to block access to them. Once it is so, the suit must fail and is dismissed with costs payable equally to Facebook Inc. on the one hand and Google LLC and YouTube LLC together on the other hand, of Rs.2 lacs each.





Allahabad High Court

Smt.Safiya Sultana Thru. Husband ... vs State Of U.P. Thru. Secy. Home, ... on 12 January, 2021

22. Lata Singh Vs. State of U.P. and another5 was one of the initial cases which came up before the Supreme Court raising the issue of the right of a person to marry of his own choice. In the said case petitioner solemnized her marriage, with her own free will, with a person of another caste. The said marriage was strongly opposed by her brothers and they also committed violence upon her and her husband. Condemning the same, Supreme Court held:


"17. The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter-caste marriages are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo inter-caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter- religious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple are not harassed by anyone nor subjected to threats or acts of violence, and anyone who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law." (emphasis supplied)


23. Again the issue was considered in the cases of Arumugam Servai vs. State of Tamil Nadu6and Bhagwan Dass vs. State (NCT of Delhi)7. In both the cases, brutality was caused by "khappanchayat" or family members against the persons solemnizing marriage with their own choice. The Supreme Court referring to the case of Lata Singh5strongly condemned and criticized such atrocious acts and directed the State authorities to take immediate steps in all such cases.


24. In Indian Woman Says Gang-Raped on Orders of Village Court Published in Business and Financial News Dated 23-1-2014 in Re8 the Supreme Court found the right of freedom of choice in marriage to be a fundamental right and an inherent aspect of Article 21 of the Constitution of India. The court declared:


"16. Ultimately, the question which ought to consider and assess by this Court is whether the State police machinery could have possibly prevented the said occurrence. The response is certainly a "yes". The State is duty bound to protect the Fundamental Rights of its citizens; and an inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage. Such offences are resultant of the State's incapacity or inability to protect the fundamental rights of its citizens." (emphasis supplied)


25. Another case of honour killing came up before Supreme Court in Vikas Yadav vs. State of U.P. and another9. Again Court held:


"75. One may feel "My honour is my life" but that does not mean sustaining one's honour at the cost of another. Freedom, independence, constitutional identity, individual choice and thought of a woman, be a wife or sister or daughter or mother, cannot be allowed to be curtailed definitely not by application of physical force or threat or mental cruelty in the name of his self-assumed honour. That apart, neither the family members nor the members of the collective has any right to assault the boy chosen by the girl. Her individual choice is her self-respect and creating dent in it is destroying her honour. And to impose so called brotherly or fatherly honour or class honour by eliminating her choice is a crime of extreme brutality, more so, when it is done under a guise. It is a vice, condemnable and deplorable perception of "honour", comparable to medieval obsessive assertions." (emphasis supplied)


26. In Asha Ranjan vs. State of Bihar10, the Supreme Court again declared the right of a person in choosing a partner to be legitimate constitutional right recognized under Article 19 of the Constitution of India. The judgment reads:


"61. ...choice of woman in choosing her partner in life is a legitimate constitutional right. It is founded on individual choice that is recognized in the Constitution under Article 19, and such a right is not expected to succumb to the concept of "class honour" or "group thinking". It is because the sense of class honour has no legitimacy even if it is practised by the collective under some kind of a notion." (emphasis supplied)


27. Supreme Court considered the matter of the honour killing and right to marry at length in the case of Shakti Vahini. The relevant paragraphs of the said judgment read as under:


"41. What we have stated hereinabove, to explicate, is that the consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock. Their consent has to be piously given primacy. If there is offence committed by one because of some penal law, that has to be decided as per law which is called determination of criminality. It does not recognise any space for informal institutions for delivery of justice. It is so since a polity governed by "Rule of Law" only accepts determination of rights and violation thereof by the formal institutions set up for dealing with such situations. It has to be constantly borne in mind that rule of law as a concept is meant to have order in a society. It respects human rights. Therefore, the khap panchayat or any panchayat of any nomenclature cannot create a dent in exercise of the said right.


43. Honour killing guillotines individual liberty, freedom of choice and one's own perception of choice. It has to be sublimely borne in mind that when two adults consensually choose each other as life partners, it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution. Such a right has the sanction of the constitutional law and once that is recognized, the said right needs to be protected and it cannot succumb to the conception of class honour or group thinking which is conceived of on some notion that remotely does not have any legitimacy.


44. The concept of liberty has to be weighed and tested on the touchstone of constitutional sensitivity, protection and the values it stands for. It is the obligation of the constitutional courts as the sentinel on qui vive to zealously guard the right to liberty of an individual as the dignified existence of an individual has an inseparable association with liberty. Without sustenance of liberty, subject to constitutionally valid provisions of law, the life of a person is comparable to the living dead having to endure cruelty and torture without protest and tolerate imposition of thoughts and ideas without a voice to dissent or record a disagreement. The fundamental feature of dignified existence is to assert for dignity that has the spark of divinity and the realisation of choice within the parameters of law without any kind of subjugation. The purpose of laying stress on the concepts of individual dignity and choice within the framework of liberty is of paramount importance. We may clearly and emphatically state that life and liberty sans dignity and choice is a phenomenon that allows hollowness to enter into the constitutional recognition of identity of a person.


45. The choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is erosion of choice. True it is, the same is bound by the principle of constitutional limitation but in the absence of such limitation, none, we mean, no one shall be permitted to interfere in the fructification of the said choice. If the right to express one's own choice is obstructed, it would be extremely difficult to think of dignity in its sanctified completeness. When two adults marry out of their volition, they choose their path; they consummate their relationship; they feel that it is their goal and they have the right to do so. And it can unequivocally be stated that they have the right and any infringement of the said right is a constitutional violation...


52. Once the fundamental right is inherent in a person, the intolerant groups who subscribe to the view of superiority class complex or higher clan cannot scuttle the right of a person by leaning on any kind of philosophy, moral or social, or self-proclaimed elevation. Therefore, for the sustenance of the legitimate rights of young couples or anyone associated with them and keeping in view the role of this Court as the guardian and protector of the constitutional rights of the citizens and further to usher in an atmosphere where the fear to get into wedlock because of the threat of the collective is dispelled, it is necessary to issue directives and we do so on the foundation of the principle stated in Lakshmi Kant Pandey vs. Union of India reported in (1984) 2 SCC 244, Vishaka Vs. State of Rajasthan reported in (1997) 6 SCC 241 and Prakash Singh Vs. Union of India reported in (2006) 8 SCC 1." (emphasis supplied)


28. Thus the Supreme Court in the case of Shakti Vahini1 again held the right to choose a life partner, to be a fundamental right recognized under Article 19 and 21 of the Constitution. Once the said fundamental right is inherent in a person, the same cannot be scuttled. It found that it is the duty of the Court to remove any interference with the legitimate rights of the young couples or anyone associated with them. The Supreme Court also issued preventive, remedial as well as punitive measures to be followed and implemented by the State authorities.


29. In a Habeas Corpus Petition Shafin Jahan vs. Asokan K.M. and Others11 again right of an individual to marry without any interference came up before the Supreme Court. In the said case, the High Court failed to take appropriate steps for releasing the detenue, a major lady, to live with her own choice, while trying to make out a case of attempts being made for taking her out of the country after change of religion in a clandestine manner. The relevant portions of the judgment read:


"52. It is obligatory to state here that expression of choice in accord with law is acceptance of individual identity. Curtailment of that expression and the ultimate action emanating there from on the conceptual structuralism of obeisance to the societal will destroy the individualistic entity of a person. The social values and morals have their space but they are not above the constitutionally guaranteed freedom. The said freedom is both a constitutional and a human right. Deprivation of that freedom which is ingrained in choice on the plea of faith is impermissible. Faith of a person is intrinsic to his/her meaningful existence. To have the freedom of faith is essential to his/her autonomy; and it strengthens the core norms of the Constitution. Choosing a faith is the substratum of individuality and sans it, the right of choice becomes a shadow. It has to be remembered that the realisation of a right is more important than the conferment of the right. Such actualisation indeed ostracises any kind of societal notoriety and keeps at bay the patriarchal supremacy. It is so because the individualistic faith and expression of choice are fundamental for the fructification of the right. Thus, we would like to call it indispensable preliminary condition.


53. Non-acceptance of her choice would simply mean creating discomfort to the constitutional right by a constitutional court which is meant to be the protector of fundamental rights. Such a situation cannot remotely be conceived. The duty of the court is to uphold the right and not to abridge the sphere of the right unless there is a valid authority of law. Sans lawful sanction, the centripodal value of liberty should allow an individual to write his/her script. The individual signature is the insignia of the concept.


54. In the case at hand, the father in his own stand and perception may feel that there has been enormous transgression of his right to protect the interest of his daughter but his viewpoint or position cannot be allowed to curtail the fundamental rights of his daughter who, out of her own volition, married the appellant. Therefore, the High Court has completely erred by taking upon itself the burden of annulling the marriage between the appellant and Respondent 9 when both stood embedded to their vow of matrimony.


84. A marriage can be dissolved at the behest of parties to it, by a competent court of law. Marital status is conferred through legislation or, as the case may be, custom. Deprivation of marital status is a matter of serious import and must be strictly in accordance with law. The High Court in the exercise of its jurisdiction under Article 226 ought not to have embarked on the course of annulling the marriage. The Constitution recognises the liberty and autonomy which inheres in each individual. This includes the ability to take decisions on aspects which define one's personhood and identity. The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual. Intimacies of marriage lie within a core zone of privacy, which is inviolable. The absolute right of an individual to choose a life partner is not in the least affected by matters of faith. The Constitution guarantees to each individual the right freely to practise, profess and propagate religion. Choices of faith and belief as indeed choices in matters of marriage lie within an area where individual autonomy is supreme. The law prescribes conditions for a valid marriage. It provides remedies when relationships run aground. Neither the state nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters. They form the essence of personal liberty under the Constitution. In deciding whether Shafin Jahan is a fit person forHadiya to marry, the High Court has entered into prohibited terrain. Our choices are respected because they are ours. Social approval for intimate personal decisions is not the basis for recognisingthem. Indeed, the Constitution protects personal liberty from disapproving audiences.


86. The right to marry a person of one's choice is integral to Article 21 of the Constitution. The Constitution guarantees the right to life. This right cannot be taken away except through a law which is substantively and procedurally fair, just and reasonable. Intrinsic to the liberty which the Constitution guarantees as a fundamental right is the ability of each individual to take decisions on matters central to the pursuit of happiness. Matters of belief and faith, including whether to believe are at the core of constitutional liberty. The Constitution exists for believers as well as for agnostics. The Constitution protects the ability of each individual to pursue a way of life or faith to which she or he seeks to adhere. Matters of dress and of food, of ideas and ideologies, of love and partnership are within the central aspects of identity. The law may regulate (subject to constitutional compliance) the conditions of a valid marriage, as it may regulate the situations in which a marital tie can be ended or annulled. These remedies are available to parties to a marriage for it is they who decide best on whether they should accept each other into a marital tie or continue in that relationship. Society has no role to play in determining our choice of partners.


87. In Justice K S Puttaswamy vs. Union of India reported in (2017) 10 SCC 1, this Court in a decision of nine judges held that the ability to make decisions on matters close to one's life is an inviolable aspect of the human personality: (SCC pp. 498-99, para 298) "298. ...The autonomy of the individual is the ability to make decisions on vital matters of concern to life... The intersection between one's mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self-determination... The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual."


A Constitution Bench of this Court, in Common Cause (A Regd. Society) vs. Union of India reported in (2018) 5 SCC 1, held: (SCC p.194, para 346) "346. ...Our autonomy as persons is founded on the ability to decide:


on what to wear and how to dress, on what to eat and on the food that we share, on when to speak and what we speak, on the right to believe or not to believe, on whom to love and whom to partner, and to freely decide on innumerable matters of consequence and detail to our daily lives."


The strength of the Constitution, therefore, lies in the guarantee which it affords that each individual will have a protected entitlement in determining a choice of partner to share intimacies within or outside marriage.


88. The High Court, in the present case, has treaded on an area which must be out of bounds for a constitutional court. The views of the High Court have encroached into a private space reserved for women and men in which neither law nor the judges can intrude. The High Court was of the view that at twenty-four, Hadiya "is weak and vulnerable, capable of being exploited in many ways". The High Court has lost sight of the fact that she is a major, capable of taking her own decisions and is entitled to the right recognised by the Constitution to lead her life exactly as she pleases. The concern of this Court in intervening in this matter is as much about the miscarriage of justice that has resulted in the High Court as much as about the paternalism which underlies the approach to constitutional interpretation reflected in the judgment in appeal. The superior courts, when they exercise their jurisdiction parents patriae do so in the case of persons who are incapable of asserting a free will such as minors or persons of unsound mind. The exercise of that jurisdiction should not transgress into the area of determining the suitability of partners to a marital tie. That decision rests exclusively with the individuals themselves. Neither the state nor society can intrude into that domain. The strength of our Constitution lies in its acceptance of the plurality and diversity of our culture. Intimacies of marriage, including the choices which individuals make on whether or not to marry and on whom to marry, lie outside the control of the state. Courts as upholders of constitutional freedoms must safeguard these freedoms. The cohesion and stability of our society depend on our syncretic culture. The Constitution protects it. Courts are duty-bound not to swerve from the path of upholding our pluralism and diversity as a nation." (emphasis supplied)

30. A conflict in various decisions was found with regard to the right to privacy of an individual and true nature of such a right. The same was thus referred to a nine-Judge Bench in case of Justice K.S. Puttaswamy (Retd.) and another vs. Union of India and others12. The issue before the Supreme Court can be well understood from the following paragraphs of the judgment:


"2. 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.


4. ............The Attorney General for India urged that the existence of a fundamental right to privacy is in doubt in view of two decisions : the first - M P Sharma vs. Satish Chandra reported in AIR 1954 SC 300 ("M.P. Sharma")was rendered by a Bench of eight Judges and the second, in Kharak Singh vs. State of Uttar Pradesh reported in AIR 1963 SC 1295 ("Kharak Singh") was rendered by a Bench of six Judges. Each of these decisions, in the submission of the Attorney General, contained observations that the Indian Constitution does not specifically protect the right to privacy. On the other hand, the submission of the petitioners was that M P Sharma and Kharak Singh were founded on principles expounded in A. K. Gopalan vs. State of Madras reported in AIR 1950 SC 27 ("Gopalan"). Gopalan, which construed each provision contained in the Chapter on Fundamental Rights as embodying a distinct protection, was held not to be good law by an eleven-Judge Bench Rustom Cavasji Cooper vs. Union of India reported in (1970) 1 SCC 248 ("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 vs. Union of India reported in (1978) 1 SCC 248 ("Maneka"), the minority judgment of Subba Rao, J. in Kharak Singh was specifically approved of and the decision of the majority was overruled.


5. 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 vs. State of Madhya Pradesh reported in (1975) 2 SCC 148 ("Gobind"), R. Rajagopal vs. State of Tamil Nadu reported in (1994) 6 SCC 632 ("Rajagopal") and People's Union for Civil Liberties vs. Union of India reported in (1997) 1 SCC 301 ("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 11-8-2015 in K. S. Puttaswamy vs. Union of India (2015) 8 SCC 735:..............


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." (emphasis supplied)


31. Thus Supreme Court found that there was a conflict situation existing with regard to fundamental right to privacy under the Indian Constitution. Supreme Court in Puttaswamy12 case considered at length and detailed the right to privacy. To fully appreciate the same it is necessary to refer to the said judgment in some detail. The majority view is given by Dr. Justice D. Y. Chandrachud and in addition concurring judgments are also given by other members of the bench. Relevant portions for our purposes are:


"23. Following the decision in Maneka Gandhi vs. Union of India reported in (1978) 1 SCC 248, the established constitutional doctrine is that the expression "personal liberty" in Article 21 covers a variety of rights, some of which "have been raised to the status of distinct fundamental rights" and given additional protection under Article 19. Consequently, in Satwant Singh Sawhney vs. D. Ramaratham reported in (1967) 3 SCR 525, 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 (supra) 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 vs. Satish Chandra reported in AIR 1954 SC 300 and Kharak Singh vs. State of U.P. reported in AIR 1963 SC 1295 adopted a doctrinal position on the relationship between Articles 19 and 21, based on the view of the majority in A.K. Gopalan vs. State of Madras reported in AIR 1950 SC 27. This view stands abrogated particularly by the judgment in Rustom Cavasjee Cooper vs. Union of India reported in (1978) 1 SCC 248 and the subsequent statement of doctrine in Maneka (supra). The decision in Maneka (supra), in fact, expressly recognized that it is the dissenting judgment of Subba Rao, J. in Kharak Singh (supra) which represents the exposition of the correct constitutional principle. The jurisprudential foundation which held the field sixty-three years ago in M. P. Sharma (supra) and fifty-five years ago in Kharak Singh (supra) 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 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 (supra) and Kharak Singh (supra) 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." (emphasis supplied)


32. The Supreme Court referred to large number of judgments, two out of which relate to the issues in the present case and are thus quoted:


"62. The Court in R. Rajagopal vs. State of Tamil Nadu reported in (1994) 6 SCC 632 held that neither the State nor can its officials impose prior restrictions on the publication of an autobiography of a convict. In the course of its summary of the decision, the Court held: (SCC pp.649-50, para 26) "(1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone". A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent -- whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.


88. In Ram Jethmalani vs. Union of India reported in (2011) 8 SCC 1: (2011) 3 SCC (Cri) 310 ("Ram Jethmalani"), a Bench of two Judges was dealing with a public interest litigation concerned with unaccounted monies and seeking the appointment of a Special Investigating Team to follow and investigate a money trail. This Court held that the revelation of the details of the bank accounts of individuals without the establishment of a prima facie ground of wrongdoing would be a violation of the right to privacy. This Court observed thus: (SCC pp.35-36, paras 83 & 84) "83. Right to privacy is an integral part of right to life. This is a cherished constitutional value, and it is important that human beings be allowed domains of freedom that are free of public scrutiny unless they act in an unlawful manner. We understand and appreciate the fact that the situation with respect to unaccounted for monies is extremely grave. Nevertheless, as constitutional adjudicators we always have to be mindful of preserving the sanctity of constitutional values, and hasty steps that derogate from fundamental rights, whether urged by Governments or private citizens, howsoever well-meaning they may be, have to be necessarily very carefully scrutinised. The solution for the problem of abrogation of one zone of constitutional values cannot be the creation of another zone of abrogation of constitutional values.


84. The rights of citizens, to effectively seek the protection of fundamental rights, under clause (1) of Article 32 have to be balanced against the rights of citizens and persons under Article 21.The latter cannot be sacrificed on the anvil of fervid desire to find instantaneous solutions to systemic problems such as unaccounted for monies, for it would lead to dangerous circumstances, in which vigilante investigations, inquisitions and rabble rousing, by masses of other citizens could become the order of the day. The right of citizens to petition this Court for upholding of fundamental rights is granted in order that citizens, inter alia, are ever vigilant about the functioning of the State in order to protect the constitutional project. That right cannot be extended to being inquisitors of fellow citizens. An inquisitorial order, where citizens' fundamental right to privacy is breached by fellow citizens is destructive of social order. The notion of fundamental rights, such as a right to privacy as part of right to life, is not merely that the State is enjoined from derogating from them. It also includes the responsibility of the State to uphold them against the actions of others in the society, even in the context of exercise of fundamental rights by those others." (emphasis supplied)


33. The Supreme Court further stated:


"108. Over the last four decades, our constitutional jurisprudence has recognised the inseparable relationship between protection of life and liberty with dignity. Dignity as a constitutional value finds expression in the Preamble. The constitutional vision seeks the realisation of justice (social, economic and political); liberty (of thought, expression, belief, faith and worship); equality (as a guarantee against arbitrary treatment of individuals) and fraternity (which assures a life of dignity to every individual). These constitutional precepts exist in unity to facilitate a humane and compassionate society. The individual is the focal point of the Constitution because it is in the realisation of individual rights that the collective well-being of the community is determined. Human dignity is an integral part of the Constitution. Reflections of dignity are found in the guarantee against arbitrariness (Article 14), the lamps of freedom (Article 19) and in the right to life and personal liberty (Article 21).


118. Life is precious in itself. But life is worth living because of the freedoms which enable each individual to live life as it should be lived. The best decisions on how life should be lived are entrusted to the individual. They are continuously shaped by the social milieu in which individuals exist. The duty of the State is to safeguard the ability to take decisions - the autonomy of the individual - and not to dictate those decisions.


''Life' within the meaning of Article 21 is not confined to the integrity of the physical body. The right comprehends one's being in its fullest sense. That which facilitates the fulfilment of life is as much within the protection of the guarantee of life.


119. To live is to live with dignity. The draftsmen of the Constitution defined their vision of the society in which constitutional values would be attained by emphasising, among other freedoms, liberty and dignity. So fundamental is dignity that it permeates the core of the rights guaranteed to the individual by Part III. Dignity is the core which unites the fundamental rights because the fundamental rights seek to achieve for each individual the dignity of existence. Privacy with its attendant values assures dignity to the individual and it is only when life can be enjoyed with dignity can liberty be of true substance. Privacy ensures the fulfilment of dignity and is a core value which the protection of life and liberty is intended to achieve.


260. The impact of the decision in Rustom Cavasjee Cooper vs. Union of India reported in (1970) 1 SCC 248 is to establish a link between the fundamental rights guaranteed by Part III of the Constitution. The immediate consequence of the decision is that a law which restricts the personal liberties contained in Article 19 must meet the test of permissible restrictions contemplated by Clauses (2) to (6) in relation to the fundamental freedom which is infringed. Moreover, since the fundamental rights are interrelated, Article 21 is no longer to be construed as a residue of rights which are not specifically enumerated in Article 19. Both sets of rights overlap and hence a law which affects one of the personal freedoms under Article 19would, in addition to the requirement of meeting the permissible restrictions contemplated in clauses (2) to (6), have to meet the parameters of a valid "procedure established by law" under Article 21 where it impacts on life or personal liberty. The law would be assessed not with reference to its object but on the basis of its effect and impact on the fundamental rights. Coupled with the breakdown of the theory that the fundamental rights are watertight compartments, the post-Maneka (supra) jurisprudence infused the test of fairness and reasonableness in determining whether the "procedure established by law" passes muster under Article 21...


262. Technology, as we experience it today is far different from what it was in the lives of the generation which drafted the Constitution. Information technology together with the internet and the social media and all their attendant applications have rapidly altered the course of life in the last decade. Today's technology renders models of application of a few years ago obsolescent. Hence, it would be an injustice both to the draftsmen of the Constitution as well as to the document which they sanctified to constrict its interpretation to an originalist interpretation. Today's problems have to be adjudged by a vibrant application of constitutional doctrine and cannot be frozen by a vision suited to a radically different society. We describe the Constitution as a living instrument simply for the reason that while it is a document which enunciates eternal values for Indian society, it possesses the resilience necessary to ensure its continued relevance. Its continued relevance lies precisely in its ability to allow succeeding generations to apply the principles on which it has been founded to find innovative solutions to intractable problems of their times. In doing so, we must equally understand that our solutions must continuously undergo a process of re-engineering.


264. The submission betrays lack of understanding of the reason why rights are protected in the first place as entrenched guarantees in a Bill of Rights or, as in the case of the Indian Constitution, as part of the fundamental rights. Elevating a right to the position of a constitutionally protected right places it beyond the pale of legislative majorities. When a constitutional right such as the right to equality or the right to life assumes the character of being a part of the basic structure of the Constitution, it assumes inviolable status: inviolability even in the face of the power of amendment. Ordinary legislation is not beyond the pale of legislative modification. A statutory right can be modified, curtailed or annulled by a simple enactment of the legislature. In other words, statutory rights are subject to the compulsion of legislative majorities. The purpose of infusing a right with a constitutional element is precisely to provide it a sense of immunity from popular opinion and, as its reflection, from legislative annulment. Constitutionally protected rights embody the liberal belief that personal liberties of the individual are so sacrosanct that it is necessary to ensconce them in a protective shell that places them beyond the pale of ordinary legislation. To negate a constitutional right on the ground that there is an available statutory protection is to invert constitutional theory. As a matter of fact, legislative protection is in many cases, an acknowledgment and recognition of a constitutional right which needs to be effectuated and enforced through protective laws. For instance, the provisions of Section 8(1)(j) of the Right to Information Act, 2005 which contain an exemption from the disclosure of information refer to such information which would cause an unwarranted invasion of the privacy of the individual.


291. Having noticed this, the evolution of Article 21, since the decision in Rustom Cavasjee Cooper Vs. Union of India reported in (1970) 1 SCC 248 indicates two major areas of change. First, the fundamental rights are no longer regarded as isolated silos or watertight compartments. In consequence, Article 14 has been held to animate the content of Article 21. Second, the expression "procedure established by law" in Article 21 does not connote a formalistic requirement of a mere presence of procedure in enacted law. That expression has been held to signify the content of the procedure and its quality which must be fair, just and reasonable.The mere fact that the law provides for the deprivation of life or personal liberty is not sufficient to conclude its validity and the procedure to be constitutionally valid must be fair, just and reasonable. The quality of reasonableness does not attach only to the content of the procedure which the law prescribes with reference to Article 21 but to the content of the law itself. In other words, the requirement of Article 21 is not fulfilled only by the enactment of fair and reasonable procedure under the law and a law which does so may yet be susceptible to challenge on the ground that its content does not accord with the requirements of a valid law. The law is open to substantive challenge on the ground that it violates the fundamental right.


297. What, then, does privacy postulate? Privacy postulates the reservation of a private space for the individual, described as the right to be let alone. The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality. The notion of privacy enables the individual to assert and control the human element which is inseparable from the personality of the individual. The inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life. The autonomy of the individual is associated over matters which can be kept private. These are concerns over which there is a legitimate expectation of privacy. The body and the mind are inseparable elements of the human personality. The integrity of the body and the sanctity of the mind can exist on the foundation that each individual possesses an inalienable ability and right to preserve a private space in which the human personality can develop. Without the ability to make choices, the inviolability of the personality would be in doubt. Recognizing a zone of privacy is but an acknowledgment that each individual must be entitled to chart and pursue the course of development of personality. Hence privacy is a postulate of human dignity itself. Thoughts and behavioural patterns which are intimate to an individual are entitled to a zone of privacy where one is free of social expectations. In that zone of privacy, an individual is not judged by others. Privacy enables each individual to take crucial decisions which find expression in the human personality. It enables individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demands of homogeneity. Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity in creating a zone of solitude. Privacy protects the individual from the searching glare of publicity in matters which are personal to his or her life. Privacy attaches to the person and not to the place where it is associated. Privacy constitutes the foundation of all liberty because it is in privacy that the individual can decide how liberty is best exercised. Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural culture.


298. Privacy of the individual is an essential aspect of dignity. Dignity has both an intrinsic and instrumental value. As an intrinsic value, human dignity is an entitlement or a constitutionally protected interest in itself. In its instrumental facet, dignity and freedom are inseparably intertwined, each being a facilitative tool to achieve the other. The ability of the individual to protect a zone of privacy enables the realization of the full value of life and liberty. Liberty has a broader meaning of which privacy is a subset. All liberties may not be exercised in privacy. Yet others can be fulfilled only within a private space. Privacy enables the individual to retain the autonomy of the body and mind. The autonomy of the individual is the ability to make decisions on vital matters of concern to life. Privacy has not been couched as an independent fundamental right. But that does not detract from the constitutional protection afforded to it, once the true nature of privacy and its relationship with those fundamental rights which are expressly protected is understood. Privacy lies across the spectrum of protected freedoms. The guarantee of equality is a guarantee against arbitrary State action. It prevents the State from discriminating between individuals. The destruction by the State of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary State action. Privacy of the body entitles an individual to the integrity of the physical aspects of personhood. The intersection between one's mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self-determination. When these guarantees intersect with gender, they create a private space which protects all those elements which are crucial to gender identity. The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual. Above all, the privacy of the individual recognises an inviolable right to determine how freedom shall be exercised. An individual may perceive that the best form of expression is to remain silent. Silence postulates a realm of privacy. An artist finds reflection of the soul in a creative endeavour. A writer expresses the outcome of a process of thought. A musician contemplates upon notes which musically lead to silence. The silence, which lies within, reflects on the ability to choose how to convey thoughts and ideas or interact with others. These are crucial aspects of personhood. The freedoms under Article 19 can be fulfilled where the individual is entitled to decide upon his or her preferences. Read in conjunction with Article 21, liberty enables the individual to have a choice of preferences on various facets of life including what and how one will eat, the way one will dress, the faith one will espouse and a myriad other matters on which autonomy and self-determination require a choice to be made within the privacy of the mind. The constitutional right to the freedom of religion under Article 25 has implicit within it the ability to choose a faith and the freedom to express or not express those choices to the world. These are some illustrations of the manner in which privacy facilitates freedom and is intrinsic to the exercise of liberty. The Constitution does not contain a separate article telling us that privacy has been declared to be a fundamental right. Nor have we tagged the provisions of Part III with an alpha suffixed right of privacy: this is not an act of judicial redrafting. Dignity cannot exist without privacy. Both reside within the inalienable values of life, liberty and freedom which the Constitution has recognised. Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self-determination.


316. The judgment in M. P. Sharma vs. Satish Chandra reported in AIR 1954 SC 300 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 (supra) is overruled to the extent to which it indicates to the contrary.


317. Kharak Singh vs. State of U.P. reported in AIR 1963 SC 1295 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 (supra) 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 (supra) 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 (supra) reliance upon the decision of the majority in A.K. Gopalan vs. State of Madras reported in AIR 1950 SC 27 is not reflective of the correct position in view of the decisions in Rustom Cavasjee Cooper vs. Union of India reported in (1970) 1 SCC 248 and in Maneka Gandhi vs. Union of India reported in (1978) 1 SCC 248. Kharak Singh (supra) to the extent that it holds that the right to privacy is not protected under the Indian Constitution is overruled.


318. 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;


319. 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


320. 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.


321. 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.


322. Privacy is the constitutional core of human dignity. Privacy has both a normative and descriptive function. At a normative level privacy subserves those eternal values upon which the guarantees of life, liberty and freedom are founded. At a descriptive level, privacy postulates a bundle of entitlements and interests which lie at the foundation of ordered liberty.


323. 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;" (emphasis supplied)


34. Concurring with the same, Justice Chelameswar in his separate judgment, in paragraph 375 states:


"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." (emphasis supplied)


35. Again agreeing, Chief Justice S. A. Bobde (then Justice S.A. Bobde) states in paragraphs 402, 403 and 407:


"402. "Privacy" is "[t]he condition or state of being free from public attention to intrusion into or interference with one's acts or decisions", Black's Law Dictionary (Bryan Garner Edition) 3783 (2004). The right to be in this condition has been described as "the right to be let alone", Samuel D. Warren and Louis D. Brandeis, "The Right To Privacy", 4 HARV L REV 193 (1890). What seems to be essential to privacy is the power to seclude oneself and keep others from intruding it in any way. These intrusions may be physical or visual, and may take any of several forms including peeping over one's shoulder to eavesdropping directly or through instruments, devices or technological aids.


403. Every individual is entitled to perform his actions in private. In other words, she is entitled to be in a state of repose and to work without being disturbed, or otherwise observed or spied upon. The entitlement to such a condition is not confined only to intimate spaces such as the bedroom or the washroom but goes with a person wherever he is, even in a public place......"


407. Undoubtedly, privacy exists, as the foregoing demonstrates, as a verifiable fact in all civilized societies. But privacy does not stop at being merely a descriptive claim. It also embodies a normative one. The normative case for privacy is intuitively simple. Nature has clothed man, amongst other things, with dignity and liberty so that he may be free to do what he will consistent with the freedom of another and to develop his faculties to the fullest measure necessary to live in happiness and peace. The Constitution, through its Part III, enumerates many of these freedoms and their corresponding rights as fundamental rights. Privacy is an essential condition for the exercise of most of these freedoms. Ex facie, every right which is integral to the constitutional rights to dignity, life, personal liberty and freedom, as indeed the right to privacy is, must itself be regarded as a fundamental right." (emphasis supplied)


36. Justice R. F. Nariman also concurring in his separate judgment states:


"521. In the Indian context, a fundamental right to privacy would cover at least the following three aspects:


- Privacy that involves the person i.e. when there is some invasion by the State of a person's rights relatable to his physical body, such as the right to move freely;


- Informational privacy which does not deal with a person's body but deals with a person's mind, and therefore recognizes that an individual may have control over the dissemination of material that is personal to him. Unauthorised use of such information may, therefore lead to infringement of this right; and


- The privacy of choice, which protects an individual's autonomy over fundamental personal choices.


For instance, we can ground physical privacy or privacy relating to the body in Articles 19(1)(d) and (e) read with Article 21; ground personal information privacy under Article 21; and the privacy of choice in Articles 19(1)(a) to (c), 20(3), 21 and 25. The argument based on "privacy" being a vague and nebulous concept need not, therefore, detain us.


522. We have been referred to the Preamble of the Constitution, which can be said to reflect core constitutional values. The core value of the nation being democratic, for example, would be hollow unless persons in a democracy are able to develop fully in order to make informed choices for themselves which affect their daily lives and their choice of how they are to be governed." (emphasis supplied)

37. Thus, the nine-Judges Bench concluded:

"644. The right of privacy is a fundamental right. It is a right which protects the inner sphere of the individual from interference from both State, and non-State actors and allows the individuals to make autonomous life choices.

645. It was rightly expressed on behalf of the petitioners that the technology has made it possible to enter a citizen's house without knocking at his/her door and this is equally possible both by the State and non-State actors. It is an individual's choice as to who enters his house, how he lives and in what relationship. The privacy of the home must protect the family, marriage, procreation and sexual orientation which are all important aspects of dignity.


646. If the individual permits someone to enter the house it does not mean that others can enter the house. The only check and balance is that it should not harm the other individual or affect his or her rights. This applies both to the physical form and to technology. In an era where there are wide, varied, social and cultural norms and more so in a country like ours which prides itself on its diversity, privacy is one of the most important rights to be protected both against State and non-State actors and be recognized as a fundamental right. How it thereafter works out in its inter-play with other fundamental rights and when such restrictions would become necessary would depend on the factual matrix of each case. That it may give rise to more litigation can hardly be the reason not to recognize this important, natural, primordial right as a fundamental right." (emphasis supplied)


38. Again the issue with regard to the personal rights of an individual came up before a Constitution Bench of Supreme Court in the case of Navtej Singh Johar and others vs. Union of India13. The vires of Section 377 I.P.C. came under consideration in the said case. The Court held:


"95. Thus, we are required to keep in view the dynamic concepts inherent in the Constitution that have the potential to enable and urge the constitutional courts to beam with expansionism that really grows to adapt to the ever-changing circumstances without losing the identity of the Constitution. The idea of identity of the individual and the constitutional legitimacy behind the same is of immense significance. Therefore, in this context, the duty of the constitutional courts gets accentuated. We emphasize on the role of the constitutional courts in realizing the evolving nature of this living instrument. Through its dynamic and purposive interpretative approach, the judiciary must strive to breathe life into the Constitution and not render the document a collection of mere dead letters. The following observations made in Ashok Gupta vs. State of U.P. reported in (1997) 5 SCC 201 further throws light on this role of the courts:- (SCC p.244, para 51) "51. Therefore, it is but the duty of the Court to supply vitality, blood and flesh, to balance the competing rights by interpreting the principles, to the language or the words contained in the living and organic Constitution, broadly and liberally."


110. The Supreme Court as well as other constitutional courts have time and again realized that in a society undergoing fast social and economic change, static judicial interpretation of the Constitution would stultify the spirit of the Constitution. Accordingly, the constitutional courts, while viewing the Constitution as a transformative document, have ardently fulfilled their obligation to act as the sentinel on qui vive for guarding the rights of all individuals irrespective of their sex, choice and sexual orientation.


121. An argument is sometimes advanced that what is permissible between two adults engaged in acceptable sexual activity is different in the case of two individuals of the same sex, be it homosexuals or lesbians, and the ground of difference is supported by social standardization. Such an argument ignores the individual orientation, which is naturally natural, and disrobes the individual of his/her identity and the inherent dignity and choice attached to his/her being.


122. The principle of transformative constitutionalism also places upon the judicial arm of the State a duty to ensure and uphold the supremacy of the Constitution, while at the same time ensuring that a sense of transformation is ushered constantly and endlessly in the society by interpreting and enforcing the Constitution as well as other provisions of law in consonance with the avowed object. The idea is to steer the country and its institutions in a democratic egalitarian direction where there is increased protection of fundamental rights and other freedoms. It is in this way that transformative constitutionalism attains the status of an ideal model imbibing the philosophy and morals of constitutionalism and fostering greater respect for human rights. It ought to be remembered that the Constitution is not a mere parchment; it derives its strength from the ideals and values enshrined in it. However, it is only when we adhere to constitutionalism as the supreme creed and faith and develop a constitutional culture to protect the fundamental rights of an individual that we can preserve and strengthen the values of our compassionate Constitution.


131. The duty of the constitutional courts is to adjudge the validity of law on well-established principles, namely, legislative competence or violations of fundamental rights or of any other constitutional provisions. At the same time, it is expected from the courts as the final arbiter of the Constitution to uphold the cherished principles of the Constitution and not to be remotely guided by majoritarian view or popular perception. The Court has to be guided by the conception of constitutional morality and not by the societal morality.


167. The above authorities capture the essence of the right to privacy. There can be no doubt that an individual also has a right to a union under Article 21 of the Constitution. When we say union, we do not mean the union of marriage, though marriage is a union. As a concept, union also means companionship in every sense of the word, be it physical, mental, sexual or emotional. The LGBT community is seeking realisation of its basic right to companionship, so long as such a companionship is consensual, free from the vice of deceit, force, coercion and does not result in violation of the fundamental rights of others.


613. The choice of a partner, the desire for personal intimacy and the yearning to find love and fulfilment in human relationships have a universal appeal, straddling age and time. In protecting consensual intimacies, the Constitution adopts a simple principle: the State has no business to intrude into these personal matters. Nor can societal notions of heteronormativity regulate constitutional liberties based on sexual orientation." (emphasis supplied)


39. One of the issues before the court was the considerations to be taken into account by a court when a fundamental right is violated by a law. The Supreme Court held:


"428. When the constitutionality of a law is challenged on the ground that it violates the guarantees in Part III of the Constitution, what is determinative is its effect on the infringement of fundamental rights. This affords the guaranteed freedoms their true potential against a claim by the state that the infringement of the right was not the object of the provision. It is not the object of the law which impairs the rights of the citizens. Nor is the form of the action taken determinative of the protection that can be claimed. It is the effect of the law upon the fundamental right which calls the courts to step in and remedy the violation. The individual is aggrieved because the law hurts. The hurt to the individual is measured by the violation of a protected right. Hence, while assessing whether a law infringes a fundamental right, it is not the intention of the lawmaker that is determinative, but whether the effect or operation of the law infringes fundamental rights." (emphasis supplied) Thus even in the said judgment, the Constitutional Bench again found that the personal liberty goes not merely with regard to matters of marriage but to the union of two persons, even if they belong to same sex.


40. The law as declared by the Supreme Court, since the case of Lata Singh5 till the decision in Navtej Singh Johar13, has travelled a long distance defining fundamental rights of personal liberty and of privacy. "once a person becomes a major he or she can marry whosoever he/she likes" (Lata Singh5); "an inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage"(Indian Woman Says Gang-Raped on Orders of Village Court8); "choice of woman in choosing her partner in life is a legitimate constitutional right. It is founded on individual choice that is recognized in the Constitution under Article 19" (Asha Ranjan10); "the consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock.....it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution"(Shakti Vahini1); "Neither the state nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters..... Social approval for intimate personal decisions is not the basis for recognising them."(Shafin Jahan11) and finally the nine-judges bench "Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self-determination.......privacy is one of the most important rights to be protected both against State and non-State actors and be recognized as a fundamental right."(Puttuswamy12) is a long chain of decisions growing stronger with time and firmly establishing personal liberty and privacy to be fundamental rights including within their sphere right to choose partner without interference from State, family or society.


41. In view of the changed social circumstances and progress in laws noted and proposed by the Law Commission as well as law declared by the aforesaid judgments of the Supreme Court, it would be cruel and unethical to force the present generation living with its current needs and expectations to follow the customs and traditions adopted by a generation living nearly 150 years back for its social needs and circumstances, which violates fundamental rights recognized by the courts of the day. In view of law settled in Satyawati Sharma3 and Kashmir Singh4as stated above, it is the duty of this court to revisit the interpretation of the procedure under challenge as provided in the Act of 1954.


42. In Githa Hariharan vs. Reserve Bank of India14,Supreme Court restates the principle of interpretation of statute, that, where two constructions of the statute are possible court will uphold the one that is in consonance with the Constitution of India rather one that would go against it.


"9. .....It is well settled that if on one construction a given statute will become unconstitutional, whereas on another construction which may be open, the statute remains within the constitutional limits, the court will prefer the latter on the ground that the legislature is presumed to have acted in accordance with the Constitution and courts generally lean in favour of the constitutionality of the statutory provisions.


40. ...It is now settled law that a narrow pedantic interpretation running counter to the constitutional mandate ought always to be avoided unless, of course, the same makes a violent departure from the legislative intent..."


43. In N. Kannadasan vs. Ajoy Khose15 again Supreme Court in held:


"71. ...Constitutionalism envisages that all laws including the constitutional provisions should be interpreted so as to uphold the basic features of the constitution."


44. In Puttuswamy12 also the guidelines provided by the Supreme Court in paragraph 260 "The law would be assessed not with reference to its object but on the basis of its effect and impact on the fundamental rights.......The mere fact that the law provides for the deprivation of life or personal liberty is not sufficient to conclude its validity and the procedure to be constitutionally valid must be fair, just and reasonable. The quality of reasonableness does not attach only to the content of the procedure which the law prescribes with reference to Article 21 but to the content of the law itself" and in paragraph 325 are "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. An invasion of life or personal liberty must meet the threefold 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."


45. The interpretation of Sections 6 and 7 read with Section 46 containing the procedure of publication of notice and inviting objections to the intended marriage in Act of 1954 thus has to be such that would uphold the fundamental rights and not violate the same. In case the same on their simplistic reading are held mandatory, as per the law declared today, they would invade in the fundamental rights of liberty and privacy, including within its sphere freedom to choose for marriage without interference from state and non-state actors, of the persons concerned. Further, note should also be taken of the fact that marriages in India can be performed either under the personal laws or under the Act of 1954. In fact, even today, majority of marriages are performed under the personal laws. These marriages under personal laws are performed by a priest of the religion followed by the parties. Such marriages under any personal law do not require publication of any notice or calling for objections with regard to such a marriage. The individuals intending to marry approach the priest who performs the marriage as per the customs and rituals of the said religion. Their orally saying that they are competent to marry is regarded sufficient for solemnizing marriage under the personal laws. In case any party violates any condition of the said personal law, for example, if one of the parties conceals his/her marital status and commits second marriage; marriage is barred under any law (one of the parties is a minor and conceals age or marriage is within the degrees of the prohibited relationship etc.); the consent of any party is obtained by deceit or under pressure; or any other such circumstances arises, the issues are later decided by a court of law. But, the marriage takes place without any interference from any corner, even if it is later to be declared void. However, under Sections 6 and 7 of Act of 1954 the persons intending to solemnize a marriage are required to give a notice and the Marriage Officer thereafter is made duty bound to publish the notice for a period of 30 days and invite objections with regard to the same. Any person can object to the marriage on the ground that it violates any of the condition of Section 4 of Act of 1954. None of the conditions under Section 4 of Act of 1954 is such, violation of which would impact rights of any person in any manner different than the same would in case of a marriage under any personal law. Even if a marriage takes place in violation of any of the conditions of Section 4, legal consequences would follow and the courts can decide upon the same, including declare such a marriage to be void, as they do under the personal laws. There is no apparent reasonable purpose achieved by making the procedure to be more protective or obstructive under the Act of 1954, under which much less numbers of marriages are taking place, than procedure under the other personal laws, more particularly when this discrimination violates the fundamental rights of the class of persons adopting the Act of 1954 for their marriage.


46. However, in case, such individuals applying to solemnize their marriage under the Act of 1954 themselves by their free choice desire that they would like to have more information about their counterparts, they can definitely opt for publication of notice under Section 6 and further procedure with regard to objections to be followed. Such publication of notice and further procedure would not be violative of their fundamental rights as they adopt the same of their free will. Therefore, the requirement of publication of notice under Section 6 and inviting/entertaining objections under Section 7 can only be read as directory in nature, to be given effect only on request of parties to the intended marriage and not otherwise.


47. Thus, this Court mandates that while giving notice under Section 5 of the Act of 1954 it shall be optional for the parties to the intended marriage to make a request in writing to the Marriage Officer to publish or not to publish a notice under Section 6 and follow the procedure of objections as prescribed under the Act of 1954. In case they do not make such a request for publication of notice in writing, while giving notice under Section 5 of the Act, the Marriage Officer shall not publish any such notice or entertain objections to the intended marriage and proceed with the solemnization of the marriage. It goes without saying that it shall be open for the Marriage Officer, while solemnizing any marriage under the Act of 1954, to verify the identification, age and valid consent of the parties or otherwise their competence to marry under the said Act. In case he has any doubt, it shall be open for him to ask for appropriate details/proof as per the facts of the case.


48. Since the matter relates to protection of fundamental rights of large number of persons, the Senior Registrar of this Court shall ensure that a copy of this order is communicated to the Chief Secretary of the State of U.P. who shall forthwith communicate the same to all the Marriage Officers of the State and other concerned authorities as expeditiously as possible.



Delhi High Court

Krishna Kishore Singh vs Sarla A Saraogi & Ors. on 10 June, 2021

4.1. VIOLATION OF CELEBRITY RIGHTS / THE RIGHT TO PUBLICITY


(i) Celebrity rights have been acknowledged for the benefit of those who have worked hard to be known as distinguished personalities. It gives them the right to publicity, which allows them to control the commercial use of their identity and entitles them to the money that arises from their fame. Such celebrity rights are assignable and licensable for commercial benefits. They also offer posthumous protection to the legal heirs of the celebrities, and cannot be used by third parties for commercial advantage without the consent of their legal heir. In the present case, the public perception of the Plaintiff's son is of tremendous value. After their death, the public at large cannot be permitted to make windfall gain through commercially exploiting the persona of the deceased.


(ii) There is no strict proof required for identifiability of a 'celebrity'. It should be enough if there is a resemblance of name, likeness, or reputation of a celebrity

(iii) The law in this regard is well-settled and courts have, in the past, granted injunctive relief prior to release of a movie on this ground, in the cases of Shivaji Rao (supra) and in Kirtibhai Raval & Ors v. Raghuram Jaisukhram Chandrani. 3 In the latter case, the Gujarat High Court upheld that the right to publicity of a celebrity is transferred to their direct descendant after their death.


VIOLATION OF THE RIGHT TO PRIVACY


(i) Right to life under Article 21 of the Constitution of India includes the right to privacy, of not just ones' own but of one's family as well. It is the case of the Plaintiff that any depiction of his own or his son's life is violative of the Plaintiff's right to privacy. Any depiction of Plaintiff's son's life or his own life is directly violating right to privacy. The only exception to right to privacy is if the information is mentioned in public record documents, recorded in the manner specifically prescribed under the Public Records Act, 1993 [hereinafter referred to as the 'Public Records Act'] and the Indian Evidence Act, 1872 [hereinafter referred to as the 'Evidence Act']. However, no such public records exist in the present case. In this regard, reliance is placed on Kirtibhai (supra) and R. Rajgopal v. State of T.N. & Ors.8


(ii) The right to privacy of the late actor and his family have already been recognized and enforced by a Division Bench of the Bombay High Court. 9 Therein, the misreporting and titillating media coverage Nilesh Navalakha and Ors. v. UOI, 2021 SCC OnLine Bom 56.


incident had led to the filing of a batch of Public Interest Litigations [hereinafter referred to as 'PIL'] in the Bombay High Court, seeking action against news broadcasters that were conducting parallel media trial, on the ground of it being an overreach of the right to freedom of expression under Article 19(1)(a) of the Constitution of India, as well as an impediment on right of fair trial. The Court, therein, directed the media to exercise restraint and refrain from publishing news, debates or interviews which would intrude on the privacy of the deceased or cause prejudice to an ongoing inquiry or investigation.


VIOLATION OF THE RIGHT TO FREE AND FAIR TRIAL


(i) As a CBI investigation into the demise of the Plaintiff's son is presently underway, the fictitious portrayal of the circumstances surrounding his death will prejudice the case of the Plaintiff. In this regard, reliance is placed upon AV Bellaramin and Ors. v. V. Santhakumaran Nair.10


(ii) Ashok Saraogi (Defendant No. 4) has been quoted in the media as saying that, "Since I was involved in this case, ... definitely I know the internal things ... so I had to take the lead and I asked my wife to produce this film". He goes on to say that his movie will give fresh information in the case, and "It's like pushing the investigative agencies to move further on the basis of the hints given by us." This amounts to blatantly interfering with the process of justice and creating prejudice in the minds of the public.


(iii) The right to fair trial trumps the right to free speech. In this regard, reliance is placed on the decision of the Bombay High Court in Nilesh Navalakha (supra) that was rendered in a Public Interest Litigation, stemming from the present facts.


NO VIOLATION OF CELEBRITY RIGHTS / THE RIGHT TO PUBLICITY


(i) While accepting the celebrity status of the Plaintiff's deceased son, Mr. Lall stated that the right of a celebrity is infringed only in case they are identifiable as a part of an artistic work. He denies the use of the deceased's name, image, caricature or style of delivering dialogues in Defendant No. 3's film.


(ii) Section 306 of the Indian Succession Act, 1925 clearly enlists certain rights that cease to exist after the demise of a person. The cause of action of defamation as defined in the Indian Penal Code, 1860, shall cease to exist upon the demise of a celebrity. Reliance is placed on A. Balakrishnan v. R. Kanagavel Kamaraj and Anr.11


(iii) Public persons, thus, are different from a private citizen. Celebrities or public figures must not be too thin-skinned in respect of reference made upon them. Their shoulders should be broad enough to shrug off the comments made upon them. The persons in public life and public gaze have to have a thick-skin when they are exposed to comments and criticisms, including in respect of their private life. Thus, the right of privacy, the protection of which would be available to private citizens would not be the same for public figures who cannot brush their private life under the carpet.


NO VIOLATION OF THE RIGHT TO PRIVACY


(i) There is plethora of material available in the public domain on the life and death of the Plaintiff's son. The life of the deceased has thus, already become public, which has also been admitted by the Plaintiff. He also states that, as the mysterious demise of the deceased and the consequent investigation has already been discussed extensively in the news. Hence, there can be no question of privacy over that which is already in the public realm. Reliance is placed on Ram Gopal Verma v. Amrutha Perumalla.12


(ii) Plaintiff has not raised any objections against author or publishers of widely available news coverage which is already available in the public domain. He is thus estopped from claiming violation of the right to privacy, since the Defendants are only fictionalizing such information available in the public domain into a movie inspired by such events. Reference is made towards Khushwant Singh v. Maneka Gandhi,to assert that the celebrity who uses publicity for their own cause cannot restrict another's freedom of speech on their public persona.


(iii) Moreover, the right to privacy of a celebrity extinguishes upon his demise. Such a right lives and dies with the deceased, and thus the Plaintiff cannot attempt to exercise a right which has ceased to exist a year ago.


VIOLATION OF FREEDOM OF SPEECH AND EXPRESSION


(i) The Plaintiff, under the guise of the present interim application, seeks to assert a gag order on all movies, web-series, books, interviews or other material may be published about the deceased, which is in violation of the freedoms granted under Article 19(1)(a) of the Constitution of India.


(ii) The film is neither a biopic nor a biography of the Plaintiff's son, it is not even based on or concerned with his life, but instead is a fictional rendition with creative dramatization of true events generally surrounding the lives of film or TV celebrities who have reportedly passed away due to unnatural causes, details whereof are widely available in the public domain made with creative liberties.


(iii) The film carries a disclaimer which denounces any resemblance to a real person. Once the disclaimer is included at the beginning of the cinematograph film, any apprehension that it is a biopic of any character, is put to rest.

(iv) There is no obligation on these Defendants to take prior consent from Plaintiff. The Defendants' rights under Article 19 are not restricted on the premise that film makers must only portray one particular version of facts or only make fictional depictions. Defendants are entitled to allude to incidents which have taken place and to present a version of those incidents which, according to them, represent a balanced portrayal of social reality. Moreover, the restrictions provided in Article 19(2) of the Constitution are not applicable in the present case.


(v) The rights of the Defendants under Article 19(1)(a) have to be balanced against the right to privacy of the Plaintiff under Article 21, and the court is to consider this aspect at the stage of the claim of damages, rather than a preventive action for injunction against the publication. A public figure is expected to be more thick-skinned than the common man, as their right to privacy is weakened or diluted by the public's right to know, whereby their life becomes a part of public discourse.


NO VIOLATION OF RIGHT TO FAIR TRAIL


(i) The allegation of violation of right to fair trial is entirely misconceived, as the Plaintiff is not under trial in any proceedings.


(ii) The investigative agencies and the judicial system do not rely on cinematographic films for the purpose of investigation or criminal trial. Even in cases where unsavoury remarks were made against living persons when inquiry was ongoing, the court has upheld the freedom of speech to make such remarks. Reliance is placed on Adarsh Cooperative Housing Society Limited v. UOI & Ors.21 Dr. Shashi Tharoor v. Arnab Goswami & Anr., and Reliance Petrochemicals Ltd. v. Proprietor of Indian Express News Papers Bombay.



Supreme Court of India

R. Rajagopal vs State Of T.N on 7 October, 1994

26. We may now summarise the broad principles flowing from the above discussion:


(1)The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone". A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.

(2)The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interests of decency [Article 19(2) an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised in press/media. (3)There is yet another exception to the rule in (1) above


- indeed, this is not an exception but an independent rule. In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable for damages. It is equally obvious that in matters not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen, as explained in (1) and (2) above. It needs no reiteration that judiciary, which is protected by the power to punish for contempt of court and Parliament and legislatures protected as their privileges are by Articles 105 and 104 respectively of the Constitution of India, represent exceptions to this rule.


(4)So far as the Government, local authority and other organs and institutions exercising governmental power are concerned, they cannot maintain a suit for damages for defaming them.


(5)Rules 3 and 4 do not, however, mean that Official Secrets Act, 1923, or any similar enactment or provision having the force of law does not bind the press or media.


(6)There is no law empowering the State or its officials to prohibit, or to impose a prior restraint upon the press/media.


27.We may hasten to add that the principles above mentioned are only the broad principles. They are neither exhaustive nor all-comprehending; indeed no such enunciation is possible or advisable. As rightly pointed out by Mathew, J., this right has to go through a case-by-case development. The concepts dealt with herein are still in the process of evolution.


Supreme Court of India

People'S Union Of Civil Liberties ... vs Union Of India (Uoi) And Anr. on 18 December, 1996

35. We, therefore, order and direct as under:


1. An order for telephone-tapping in terms of Section 5(2) of the Act shall not be issued except by the Home Secretary, Government of India (Central Government) and Home Secretaries of the State Governments. In an urgent case the power may be delegated to an officer of the Home Department of the Government of India and the State Governments not below the rank of Joint Secretary. Copy of the order shall be sent to the Review Committee concerned within one week of the passing of the order.


2. The order shall require the person to whom it is addressed to intercept in the course of their transmission by means a public telecommunication system, such communications as are described in the order. The order may also require the person to whom it is addressed to disclose the intercepted material to such persons and in such manner as are described in the order.


3. The matters to be taken into account in considering whether an order is necessary under Section 5(2) of the Act shall include whether the information which is considered necessary to acquire could reasonably be acquired by other means.


4. The interception required under Section 5(2) of the Act shall be the interception of such communications as are sent to or from one or more addresses, specified in the order, being an address or addresses likely to be used for the transmission of communications to or from, from one particular person specified or described in the order or one particular set of premises specified or described in the order.


5. The order under Section 5(2) of the Act shall, unless renewed, cease to have effect at the end of the period of two months from the date of issue. The authority which issued the order may, at. any time before the end of two month period renew the order if it considers that it is necessary to continue the order in terms of Section 5(2) of the Act. The total period for the operation of the order shall not exceed six months.


6. The authority which issued the order shall maintain the following records:


(a) the intercepted communications,


(b) the extent to which the material is disclosed,


(c) the number of persons and their identity to whom any of the material is disclosed.


(d) the extent to which the material is copied and


(e) the number of copies made of any of the material.


7. The use of the intercepted material shall be limited to the minimum that is necessary in terms of Section 5(2) of the Act.


8. Each copy made of any of the intercepted material shall be destroyed as soon as its retention is no longer necessary in terms of Section 5(2) of the Act.


9.There shall be a Review Committee consisting of Cabinet Secretary, the Law Secretary and the Secretary, Telecommunication at the level of the Central Government. The Review Committee at the State level shall consist of Chief Secretary, Law Secretary and another member, other than the Home Secretary, appointed by the State Government.


(a) The Committee shall on its own, within two months of the passing of the order by the authority concerned, investigate whether there is or has been a relevant order under Section 5(2) of the Act. Where there is or has been an order whether there has been any contravention of the provisions of Section 5(2) of the Act.


(b) If on an investigation the Committee concludes that there has been a contravention of the provisions of Section 5(2) of the Act, it shall set aside the order under scrutiny of the Committee. It shall further direct the destruction of the copies of the intercepted material.


(c) If on investigation, the Committee comes to the conclusion that there has been no contravention of the provisions of Section 5(2) of the Act, it shall record the finding to that effect.

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